Sims v. Saul ( 2020 )

1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 ELIZABETH S.,1 Case No. 18-cv-07153-TSH 8 Plaintiff, ORDER RE: CROSS-MOTIONS FOR 9 v. SUMMARY JUDGMENT 10 ANDREW M. SAUL, Re: Dkt. Nos. 24, 35 11 Defendant. 12 13 I. INTRODUCTION 14 Plaintiff Elizabeth S. brings this action pursuant to 42 U.S.C. § 405(g), seeking judicial 15 review of a final decision of Defendant Andrew M. Saul, Commissioner of Social Security, 16 denying Plaintiff’s claim for disability benefits. Pending before the Court are the parties’ cross- 17 motions for summary judgment. ECF Nos. 24 (Pl.’s Mot.), 35 (Def.’s Mot.). Pursuant to Civil 18 Local Rule 16-5, the motions have been submitted without oral argument. Having reviewed the 19 parties’ positions, the Administrative Record (“AR”), and relevant legal authority, the Court 20 hereby DENIES Plaintiff’s motion and GRANTS Defendant’s cross-motion for the following 21 reasons. 22 II. BACKGROUND 23 A. Age, Education and Work Experience 24 Plaintiff is 57 years old. AR 211. She did not graduate from high school but did complete 25 some college courses. AR 41, 73-74. She has past relevant work as a Deli Clerk (DOT# 316.684- 26 27 1 Partially redacted in compliance with Federal Rule of Civil Procedure 5.2(c)(2)(B) and the 1 014) and as a Cashier (DOT # 211.462-010), both light exertion, SVP 2, unskilled jobs. AR 24, 2 75, 253. 3 B. Medical Evidence 4 1. Objective Evidence 5 A May 2, 2013 radiology report by Dr. Sandra Mun, M.D., Alameda County Medical 6 Center, reported “mild soft tissue swelling” around Plaintiff’s bilateral wrists and proximal 7 interphalangeal (“PIP”) joints, no aggressive bony erosions or demineralization, and “questionable 8 minimal osteophyte formation in several proximal and distal interphalangeal [(“DIP”)] joints 9 suggesting possible early degenerative change.” AR 600. 10 An August 26, 2014 assessment by Dr. C Michael Neuwelt, M.D., Alameda County 11 Medical Center, noted “bilateral mild soft tissue swelling” of Plaintiff’s PIPs, with minimal 12 tenderness to palpation in those joints, and mild tenderness to palpation of her 13 metacarpophalangeal (“MCP”) joints and bilateral wrists with some associated soft tissue 14 swelling, but “[o]therwise, no tenderness of her bilateral elbows or shoulders.” AR 435. Dr. 15 Neuwelt found strength was full in all extremities. Id. The assessment also noted a full range of 16 motion of Plaintiffs fingers “albeit with some pain after flexion” and “full range to wrist extension 17 with decreased [] range of motion to wrist flexion,” and “[n]o obvious effusion or soft tissue 18 swelling.” Id. Based on lab data the assessment concluded, “[t]his is inflammatory 19 polyarthopathy, possibly rheumatoid arthritis as the patient claims this is a rheumatoid flare, 20 however with negative CRP, rheumatoid factor and anti-CCP less suggestive of true rheumatoid 21 arthritis.” Id. 22 After a physical exam by Dr. Matthew Kiefer, M.D., Alameda County Medical Center, on 23 November 11, 2014, he found mild diffuse tenderness at Plaintiff’s bilateral hand joints, wrist 24 joints, elbow, shoulder, hip, and knee, without tenderness or effusion. AR 331. He found full 25 range of motion at all joints and no localized tenderness. Id. 26 A December 22, 2014 radiology report by Dr. Farhad Sani, M.D., also Alameda County 27 Medical Center, relative to Plaintiff’s left hand, reported “rheumatoid arthritis possible foreign 1 PIP and DIP joints,” and “mild degenerative changes” in the DIP and PIP joints. AR 605. 2 A December 21, 2015 radiology report by Dr. Sani relative to Plaintiff’s left wrist and 3 hand, reported no acute fracture, no malalignment, unchanged moderate degeneration throughout 4 the PIP and DIP joints, and mild degenerative changes in the radiocarpal joint. AR 517. 5 In a July 24, 2016 assessment Dr. Sancia Ferguson, M.D., Highland Hospital, found based 6 on imaging and a physical examination “no joint inflammation as well as normal inflammatory 7 markers.” AR 500. She noted that rheumatoid factor and CCP antibodies had previously been 8 checked and were negative. Id. She believed that Plaintiff had degenerative joint diseases 9 (osteoarthritis). On December 8, 2016, Dr. Mun reviewed x-rays, saw and evaluated Plaintiff, and 10 reviewed and agreed with Dr. Ferguson’s July 24 assessment. Id. She discharged Plaintiff with 11 Tylenol, an over-the-counter acetaminophen painkiller. Id. 12 In an April 17, 2017 assessment, Dr. Ferguson found based on physical examination: 13 [Patient] has enlargement of the PIPs consistent with Bouchard nodes. They are tender to palpation. There is no evidence of synovitis 14 [(membrane inflammation)] in these joints. She also has tenderness to palpation in the DIPs. She has subtle thickening in the MCPs. 15 Wrists bilaterally are restricted to flexion, but have normal extension. Left wrist, subtle synovitis thought to be palpable. Left wrist is 16 tender. Elbows nontender, nondistended. Shoulder on the left has some subacromial tenderness, but normal abduction, internal and 17 external rotation. 18 AR 491. Dr. Ferguson noted that Plaintiff had had no new labs since 2015, and that imaging of 19 Plaintiff’s hands from October 2010 was within normal limits. Id. She assessed that Plaintiff was 20 “serologically negative with subtle inflammation and overlapping degenerative changes in the 21 PIPs and DIPs.” Id. Differential diagnosis at that time included diagnosis of seronegative 22 rheumatoid arthritis. AR 491-92. 23 A May 17, 2017 x-ray report by Dr. Mun indicated “periarticular osteopenia and soft tissue 24 swelling of inflammatory arthritis” in both hands, erosions seen in the left third PIP joint, and “no 25 deviation or frank joint destruction.” AR 489. 26 A July 18, 2017 EEG/EMG report by Dr. Michael Gibbs, M.D., indicated “right median 27 sensory motor neuropathy at the wrist (carpal tunnel) severe,” and “left median sensory motor 1 sensory motor and left ulnar sensory nerve conduction study.” Id. 2 2. Dr. Gaasbeek’s Psychiatric Evalution 3 On June 13, 2015, Dr. Kyle Van Gaasbeek, PsyD, MDSI Physician Services, completed a 4 comprehensive psychiatric evaluation of Plaintiff. AR 342-45. He diagnosed her with major 5 depressive disorder, moderate, and stimulant use disorder, severe, cocaine in remission. AR 344. 6 His functional assessment was that Plaintiff had an unimpaired ability to perform simple and 7 repetitive tasks, accept instructions from supervisors, and perform work activities on a consistent 8 basis without special attention or additional instruction; a mild impairment in her ability to 9 perform detailed and complex tasks; and a moderately impaired ability to interact with coworkers 10 and the public, maintain regular attendance in the workplace, complete a normal workday without 11 interruptions from a psychotic condition, and deal with the usual stress encountered in the 12 workplace. AR 345. Dr. Gaasbeek’s prognosis was that Plaintiff’s “problem is treatable. She 13 receives treatment for her depression. There is a good likelihood that she would be able to 14 eventually fully recover, especially if she is able to have some stability . . . .” AR 344-45. 15 3. Dr. McMillan’s Internal Medicine Evaluation 16 In a June 25, 2015 evaluation, Dr. Eugene McMillan, M.D., Bayview Medical Clinic, 17 noted under “Psychiatric History” that Plaintiff stated that she had been given medications but had 18 not regularly used them. AR 349. He noted that she reported a history of hearing voices. Id. 19 Physical examination revealed that Plaintiff had 16 kilograms grip strength in her right hand, and 20 19 in the left. AR 350. Plaintiff had normal DIP, PIP, and MCP joints, and there was no wrist 21 tenderness or shoulder tenderness. Id. Plaintiff had normal range of motions in her wrists, 22 elbows, shoulders, hips, knees, and ankles, and full-strength wrist, elbow, shoulder, hip, knee, and 23 ankle flexion and extension. AR 351. Dr. McMillan concluded, among other things, that there 24 was no evidence of inflammatory arthritis on physical examination; that Plaintiff had been poorly 25 compliant with past recommended treatment; and that Plaintiff would have no limitations with 26 gripping and fine manipulation. Id. 27 1 4. Dr. Franklin and Childs’ Psychological Evaluation 2 On January 7, 2016, Dr. Lesleigh Franklin, PhD and Dionna Childs, MS, completed a 3 psychological evaluation and report on Plaintiff. AR 455-62. They assessed Plaintiff with marked 4 limitation in ability to understand, remember, and carry out simple or detailed instructions, interact 5 appropriately with members of the public, accept instructions, and respond appropriately to 6 criticism from supervisors; and extreme limitations in ability to maintain attention and 7 concentration over two-hour segments, perform at a consistent pace without an unreasonable 8 number and length of rest periods, get along and work with others, respond appropriately to 9 changes in a routine work setting and deal with normal work stressors, and complete a normal 10 workday and workweek without interruptions from psychologically-based symptoms. AR 462. 11 They reported based on a Wechsler Abbreviated Scale of Intelligence (“WASI”) test a composite 12 IQ for Plaintiff of 61, “extremely low.” Id. 13 5. Dr. Sakhai and LMFT Neumann’s Mental Impairment Questionnaire 14 On March 17, 2017, Dr. Roya Sakhai, PhD and LMFT Emma Neumann completed a 15 Mental Impairment Questionnaire on Plaintiff. AR 471-76. They noted that Plaintiff was 16 receiving psychotherapy with minimal progress, and that Plaintiff was unlikely to improve without 17 more intensive therapy, social and economic resources, and medication compliance. AR 471. 18 They indicated marked or extreme impairments in Plaintiff’s understanding and memory, social 19 interaction, adaptation, and activities of daily living; and extreme limitations in all categories of 20 Plaintiff’s sustained concentration and persistence. AR 473-75. They indicated that Plaintiff 21 suffered from extreme function limitation. AR 475. As reasons for their assessments, they found 22 that Plaintiff was “barely able to have a conversation, is often in a catatonic state, and is afraid to 23 leave her house.” AR 471. They found that Plaintiff was socially isolated, mistrustful and 24 withdrawn, and opined that she was not able to function or perform activities of daily living 25 independently. AR 474. They found she had severe agoraphobia. AR 475. 26 6. Dr. Howard’s Medical Source Statement 27 On May 15, 2017, Dr. Jonathan Howard, PsyD, completed a Medical Source Statement of 1 she lived alone, but required assistance with cooking, shopping, cleaning, and lifting heavy items, 2 and that should could not sit, stand, or walk for long periods. AR 463. Plaintiff denied ever 3 having been psychiatrically hospitalized and reported that she was not taking any medications. 4 AR 464. During a mental status exam, Plaintiff responded to questions and tasks, had adequate 5 rapport, and was adequately cooperative and required only mild encouragement. Id. Dr. Howard 6 found Plaintiff’s thought process appeared logical and coherent and found no signs of psychosis. 7 AR 465. Nevertheless, Dr. Howard assessed Plaintiff with moderate to marked impairment in 8 ability to understand, remember, and carry out instructions. AR 468. He based this assessment on 9 Plaintiff’s performance on the mental status exam, Trail Making Tests Parts A & B, a Wechsler 10 Adult Intelligence Scale-IV (“WAIS”) test, and a Wechsler Memory Scale-IV test. Id. He 11 assessed Plaintiff with marked impairment in ability to interact appropriately with supervision, co- 12 workers, and the public; in her pace, persistence of tasks, and ability to perform activities within a 13 schedule and maintain regular attendance; and to respond to changes in routine work settings. AR 14 467, 469. He based this assessment on Plaintiff’s presentation of moderate to marked anxiety and 15 depression, and her performance on objective testing. AR 469. He reported after the WAIS test a 16 composite IQ score of 59, “extremely low.” AR 465. He diagnosed Plaintiff with mood disorder, 17 not otherwise specified (“NOS”), with depressed and reported psychotic features; rule out 18 psychotic disorder, NOS; and a Global Assessment of Functioning (“GAF”) score of 54-562. AR 19 466. 20 7. Dr. Ferguson’s Functional Assessment 21 On August 15, 2017, Dr. Ferguson completed a functional assessment of Plaintiff based on 22 a physical examination. AR 606-10. She diagnosed Plaintiff with osteoarthritis and rheumatoid 23 arthritis. AR 606. She noted significant inflammation in Plaintiff’s wrists, hands, and shoulders, 24 and that Plaintiff’s wrists were restricted. Id. She noted that x-rays demonstrated both 25 26 2 A GAF score in that range reflects “moderate symptoms (e.g., flat affect and circumstantial speech, occasional panic attacks) OR moderate difficulty in social, occupational, or school 27 functioning (e.g.. few friends, conflicts with peers or co-workers).” 1 inflammatory and degenerative arthritis in Plaintiff’s hands, and evidence of bursitis in her should 2 and hips. AR 608. She opined based on those findings that Plaintiff was able to lift and carry on a 3 frequent or occasional basis less than 10 pounds; stand and walk with normal breaks about two 4 hours during an eight-hour day; and sit with normal breaks about six hours during an eight-hour 5 day. AR 607. She concluded that Plaintiff could occasionally3 twist, stoop, and climb stairs, but 6 was unable to crouch or climb ladders. AR 608. And she found Plaintiff’s ability to reach and 7 push and pull, and her gross and fine manipulation were limited by her impairments. AR 609. 8 8. Dr. Aames’ Mental Impairment Questionnaire and Psychotherapy Notes 9 On August 15, 2017, Dr. Ted Aames, PhD, Trust Clinic, completed a Mental Impairment 10 Questionnaire on Plaintiff. AR 611-615. He diagnosed Plaintiff with major depressive disorder 11 (“MDD”) with psychotic features; Other Specified Trauma- and Stressor-Related Disorder— 12 Persistent Complex Bereavement; and Panic Disorder. He indicated an overall marked 13 impairment in Plaintiff’s ability to understand, remember, and apply information; interact with 14 others; and adapt and manage herself; and an extreme impairment in her ability to concentrate, 15 persist, or maintain pace. AR 613-614. 16 9. Dr. Khan’s Functional Assessment 17 On September 20, 2017, Dr. Qiratulanne Khan, Trust Clinic, completed a functional 18 assessment of Plaintiff. AR 616-20. She diagnosed Plaintiff with osteoarthritis and rheumatoid 19 arthritis. AR 616. She noted Plaintiff had joint tenderness and swelling in both hands, knees, and 20 wrists. Id. She also noted that x-rays demonstrated both inflammatory and degenerative arthritis 21 in Plaintiff’s hands, and bursitis in her should and hips. AR 618. She opined based on those 22 findings that Plaintiff was able to lift and carry on a frequent or occasional basis less than 10 23 pounds; stand and walk with normal breaks about two hours during an eight-hour day; and sit with 24 normal breaks about four hours during an eight-hour day. AR 617. 25 10. Additional Substance Use Evidence 26 Dr. Neuwelt’s August 26, 2014 assessment indicated that Plaintiff had been taking 27 1 tramadol, an opioid painkiller, which she had gotten from friends. AR 434. Plaintiff reported that 2 she drank a half pint of vodka with a few beers on a nearly daily basis, that she occasionally 3 smoked marijuana, and that she sometimes inhaled illicit substances. Id. 4 In a September 8, 2014 Psychological Evaluation Dr. Michael Boroff, PsyD, Trust Clinic, 5 indicated that Plaintiff had been self-medicating her physical and emotional pain with alcohol and 6 occasional cocaine use. AR 321. He diagnosed Plaintiff with moderate alcohol use disorder and 7 mild cocaine use disorder. AR 322. 8 Dr. Franklin’s January 1, 2015 psychological evaluation indicated that Plaintiff reported 9 that she drinks when she smokes and uses cocaine sometimes. She reported that “substances get 10 her motivated to take care of things,” and that her cocaine use was daily but “she now uses it 2 11 times per week at home by herself.” AR 456. Dr. Franklin noted that records referenced an arrest 12 with cocaine prior to 2015. Id. 13 A March 10, 2015 Psychiatry Intake form completed by Dr. Serena Wu, MD, LifeLong 14 Medical Care, indicated that records from “Alameda County psych” showed that Plaintiff was 15 actively using cocaine in 2014. AR 558. 16 In a May 5, 2015 assessment, Dr. Neuwelt indicated that Plaintiff continued to drink one to 17 two beers a day and use marijuana and was trying to quit cocaine but had used about 1 ½ to 2 18 weeks prior. AR 411. 19 Dr. Gaasbeek noted in his June 13, 2015 psychiatric evaluation that Plaintiff reported using 20 cocaine on and off for a “very long time” but that she had been clean for 10 years, except for one 21 instance of relapse after her partner died. AR 342-33. He diagnosed her with stimulant use 22 disorder, severe, cocaine in remission. AR 344. 23 In his June 25, 2015 evaluation, Dr. McMillan noted that Plaintiff stated that she drinks 24 alcohol every day and had used cocaine the day before. AR 349. 25 Dr. Ferguson indicated in a November 6, 2015 appointment summary that Plaintiff had a 26 history of polysubstance abuse including marijuana and cocaine. AR 397. 27 Dr. Aames noted in a February 9, 2017 psychotherapy initial assessment that Plaintiff 1 medicate. AR 538. She reported last using substances about a year prior. Id. 2 In their March 17, 2017 impairment questionnaire, Dr. Sakhai and LMFT Neumann 3 indicated that Plaintiff was not using alcohol or drugs, and that to the best of their knowledge, she 4 had not abused drugs or alcohol since 2010. AR 476. This was inconsistent with Plaintiff’s 5 admissions to other treatment providers. 6 III. SOCIAL SECURITY ADMINISTRATION PROCEEDINGS 7 On February 28, 2015, Plaintiff filed a claim for Disability Insurance Benefits (“DIB”), 8 and Supplemental Security Income (“SSI”) under Titles II and XVI of the Social Security Act 9 (“SSA”), alleging disability beginning on December 1, 2010, due to sleep apnea, major depressive 10 disorder, mood disorder, anxiety disorder, panic disorder, and degenerative arthritis. AR 18, 109- 11 10, 211-21, 242, 272. The agency denied the claims on March 7, 2015 and September 11, 2015, 12 respectively. AR 146-48, 151-56. Plaintiff filed a request for reconsideration on September 11, 13 2015 which was denied on December 2, 2015. AR 157-61. On February 1, 2016, Plaintiff timely 14 requested a hearing before an Administrative Law Judge (“ALJ”). AR 18, 165-70. ALJ Arthur 15 Zeidman conducted a hearing on September 19, 2017. AR 18. Plaintiff testified in person at the 16 hearing and was represented by a non-attorney representative, Anne Su. Id. Victoria Rei, an 17 impartial vocational expert, also testified. Id.; AR 98. The ALJ issued an unfavorable decision on 18 November 24, 2017, finding Plaintiff not disabled under sections 216(i) and 223(d) or section 19 1614(a)(3)(A) of the SSA. AR 15-32. 20 A. Plaintiff’s Testimony 21 Plaintiff was asked at her hearing what prevents her from working. She testified that grief 22 and depression keep her from working, and that she is scared to leave her house because she is 23 afraid people come in when she is not there or when is asleep. AR 77. She testified that on 24 August 25, 2017, the Oakland Police Department shot through the windows of her apartment, 25 mistaking her unit for someone else’s. AR 78. 26 She testified that she takes medication for pain, and that her “ankles go out periodically” 27 and that she cannot go for long walks. AR 78. She testified that taking medication sometimes 1 swelled up and it was difficult to walk. AR 79. She testified that her last drink of alcohol was 2 “give or take” 2015. AR 81. 3 Plaintiff testified that she had an in-home care provider that came somewhere between 45 4 hours a month and 20 hours a week, but she couldn’t recall exactly how much. AR 84-85. The 5 care provider helped her cook, clean, and sometimes get dressed when her hands prevented her 6 from doing so. AR 85. The care provider also took her to get medicine from the pharmacy. AR 7 79. Plaintiff testified that she had a care provider for over a year. AR 85. 8 Plaintiff testified that she had been prescribed wrist guards, and that she thought an 9 arthritis clinic had prescribed them. AR 90. She testified that the wrist guards didn’t entirely help 10 with her pain, and that she sometimes had difficulty with opening things like cans, doors, and 11 bottles with twist tops. Id. Sometimes her care provider helped her with doing so. Id. 12 Concerning her psychological health, Plaintiff testified that she often hears things that 13 other people do not hear, including people calling her name. AR 91. She testified that she sees 14 visions, things that other people do not see. AR 91-92. She was asked whether she thought that 15 people were living in her attic and responded that she does, and that she thinks they come down 16 from the attic when she’s not home. AR 92. She was also asked whether she thinks someone is 17 moving around objects in her home and responded that she does. AR 92. She testified that she 18 sees Dr. Aames for her mental health and had seen other multiple other therapists or doctors in the 19 past. AR 93. 20 B. Vocational Expert’s Testimony 21 Rei testified that in her opinion, a hypothetical individual with Plaintiff’s age, education, 22 and past jobs, and same residual functional capacity as determined by the ALJ, if limited to less 23 than the full range of light work, would not be able to do past work as a deli clerk and cashier. AR 24 101. 25 C. ALJ’s Decision and Plaintiff’s Appeal 26 On November 24, 2017, the ALJ issued an unfavorable decision finding Plaintiff was not 27 disabled. AR 15-32. This decision became final when the Appeals Council declined to review it 1 this action for judicial review pursuant to 42 U.S.C. § 405(g). On July 11, 2019, Plaintiff filed the 2 present Motion for Summary Judgment. On December 17, 2019, Defendant filed a Cross-Motion 3 for Summary Judgment. 4 IV. STANDARD OF REVIEW 5 This Court has jurisdiction to review final decisions of the Commissioner pursuant to 42 6 U.S.C. § 405(g). An ALJ’s decision to deny benefits must be set aside only when it is “based on 7 legal error or not supported by substantial evidence in the record.” Trevizo v. Berryhill, 871 F.3d 8 664, 674 (9th Cir. 2017) (citation and quotation marks omitted). Substantial evidence is “such 9 relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Biestek 10 v. Berryhill, 139 S. Ct. 1148, 1154 (2019) (citation and quotation marks omitted). It requires 11 “more than a mere scintilla” but “less than a preponderance” of the evidence. Id.; Trevizo, 871 12 F.3d at 674. 13 The court “must consider the entire record as a whole, weighing both the evidence that 14 supports and the evidence that detracts from the Commissioner’s conclusion, and may not affirm 15 simply by isolating a specific quantum of supporting evidence.” Trevizo, 871 F.3d at 675 (citation 16 and quotation marks omitted). However, “[w]here evidence is susceptible to more than one 17 rational interpretation, the ALJ’s decision should be upheld.” Id. (citation and quotation marks 18 omitted). “The ALJ is responsible for determining credibility, resolving conflicts in medical 19 testimony, and for resolving ambiguities.” Garrison v. Colvin, 759 F.3d 995, 1010 (9th Cir. 2014) 20 (citation and quotation marks omitted). 21 V. DISCUSSION 22 A. The ALJ’s Determination of Whether Plaintiff Was Disabled 23 A claimant is considered “disabled” under the SSA if two requirements are met. See 42 24 U.S.C. § 423(d); Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999). First, the claimant must 25 demonstrate “an inability to engage in any substantial gainful activity [(“SGA”)] by reason of any 26 medically determinable physical or mental impairment which can be expected to result in death or 27 which has lasted or can be expected to last for a continuous period of not less than 12 months.” 42 1 claimant is unable to perform previous work and cannot, based on age, education, and work 2 experience “engage in any other kind of [SGA] which exists in the national economy.” Id. § 3 423(d)(2)(A). 4 The regulations promulgated by the Commissioner of Social Security provide for a five- 5 step sequential analysis to determine whether a Social Security claimant is disabled. 20 C.F.R. § 6 404.1520. The sequential inquiry is terminated when “a question is answered affirmatively or 7 negatively in such a way that a decision can be made that a claimant is or is not disabled.” Pitzer 8 v. Sullivan, 908 F.2d 502, 504 (9th Cir. 1990). During the first four steps of this sequential 9 inquiry, the claimant bears the burden of proof to demonstrate disability. Valentine v. Comm’r 10 Soc. Sec. Admin., 574 F.3d 685, 689 (9th Cir. 2009). At step five, the burden shifts to the 11 Commissioner “to show that the claimant can do other kinds of work.” Id. (quoting Embrey v. 12 Bowen, 849 F.2d 418, 422 (9th Cir. 1988)). 13 The ALJ must first determine whether the claimant is performing SGA, which would 14 mandate that the claimant be found not disabled regardless of medical condition, age, education, 15 and work experience. 20 C.F.R. § 404.1520(a)(4)(i), (b). Here, the ALJ determined Plaintiff had 16 not performed SGA since December 1, 2010. AR 21. 17 At step two, the ALJ must determine, based on medical findings, whether the claimant has 18 a “severe” impairment or combination of impairments as defined by the SSA. 20 C.F.R. § 19 404.1520(a)(4)(ii). If no severe impairment is found, the claimant is not disabled. 20 C.F.R. § 20 404.1520(c). Here, the ALJ determined Plaintiff had the following severe impairments: substance 21 use disorder; rheumatoid arthritis, versus osteoarthritis; carpal tunnel syndrome; affective 22 disorders; anxiety disorders; and cognitive disorder. AR 21. 23 If the ALJ determines that the claimant has a severe impairment, the process proceeds to 24 the third step, where the ALJ must determine whether the claimant has an impairment or 25 combination of impairments that meet or equals an impairment listed in 20 C.F.R. Part 404, Subpt. 26 P, App. 1 (the “Listings”). 20 C.F.R. § 404.1520(a)(4)(iii). If a claimant’s impairment either 27 meets the listed criteria for the diagnosis or is medically equivalent to the criteria of the diagnosis, 1 experience. 20 C.F.R. § 404.1520(d). Here, the ALJ determined Plaintiff did not have an 2 impairment or combination of impairments that met the Listings. AR 21. In particular, the ALJ 3 found that the severity of Plaintiff’s physical impairments did not singly or combined meet or 4 medically equal the criteria of any disorder listed in 14.09, inflammatory Arthritis. And the ALJ 5 found that Plaintiff’s mental impairments, including her substance use disorders, did not singly or 6 in combination, meet or medically equal the criterial of any disorder listed in 12.00, mental 7 disorders. If the ALJ determines that a claimant’s impairment does not meet a listing, the analysis 8 proceeds to the fourth step. 9 Before getting to step four, however, the ALJ must determine the claimant’s Residual 10 Function Capacity (“RFC”). 20 C.F.R. § 404.1520(e). RFC refers to what an individual can do in 11 a work setting, despite mental or physical limitations caused by impairments or related symptoms. 12 20 C.F.R. § 404.1545(a)(1). The ALJ assesses the claimant’s physical and mental abilities, as well 13 as other abilities affected by the claimant’s impairments. Id. §§ 404.1545(b)-(d), 416.945(b)-(d). 14 In doing so, the ALJ must consider all the claimant’s medically determinable impairments, 15 including the medically determinable impairments that are nonsevere. 20 C.F.R. § 404.1545(e). 16 With respect to a claimant’s physical abilities, “[a] limited ability to perform certain physical 17 demands of work activity, such as sitting, standing, walking, lifting, carrying, pushing, pulling, or 18 other physical functions (including manipulative or postural functions, such as reaching, handling, 19 stooping or crouching), may reduce [a claimant’s] ability to do past work and other work.” Id. §§ 20 404.1545(b), 416.945(b). With respect to a claimant’s mental abilities, “[a] limited ability to carry 21 out certain mental activities, such as limitations in understanding, remembering, and carrying out 22 instructions, and in responding appropriately to supervision, coworkers, and work pressures in a 23 work setting, may reduce [the claimant’s] ability to do past work and other work.” Id. §§ 24 404.1545(c), 416.945(c). 25 Here, the ALJ determined that with her substance abuse disorder, Plaintiff had the RFC to 26 perform light work as defined by 20 C.F.R. § 404.1567(b) and § 416.967(b), except that she could 27 lift or carry 20 pounds occasionally and 10 pounds frequently. AR 23. The ALF found that 1 understanding simple oral instructions; could never work at unprotected heights and never operate 2 motor vehicles; was limited to simple, routine tasks and had judgment limited to simple-work 3 related decisions; could occasionally respond appropriately to supervisors, coworkers, and the 4 general public; could deal with changes in her work setting limited to simple work-related 5 decisions; and would have two absences per month. AR 23. 6 The fourth step of the evaluation process then requires the ALJ determine whether the 7 claimant’s RFC is sufficient to perform past relevant work. 20 C.F.R. §§ 404.1520(a)(4)(iv); 8 404.1520(f). Past relevant work is work performed within the past 15 years that was SGA, and 9 that lasted long enough for the claimant to learn to do it. 20 C.F.R. § 404.1560(b)(1). If the 10 claimant has the RFC to do his past relevant work, the claimant is not disabled. 20 C.F.R. § 11 404.1520(a)(4) (iv). Here, the ALJ determined, based on the vocational expert’s testimony, that 12 Plaintiff could not perform past relevant work as a Deli Clerk or Cashier. AR 24. 13 In the fifth step of the analysis, the burden shifts to the Commissioner to prove that there 14 are other jobs existing in significant numbers in the national economy which the claimant can 15 perform consistent with the claimant’s RFC, age, education, and work experience. 20 C.F.R. §§ 16 404.1520(g); 404.1560(c). The Commissioner can meet this burden by relying on the testimony of 17 a vocational expert or by reference to the Medical-Vocational Guidelines at 20 C.F.R. pt. 404, 18 subpt. P, app. 2. Lounsburry v. Barnhart, 468 F.3d 1111, 1114 (9th Cir. 2006).4 Here, the ALJ 19 determined that there were no jobs in the national economy which Plaintiff could perform, and 20 therefore that Plaintiff was disabled. AR 25. 21 If, however, there is a determination that the claimant is disabled and there is medical 22 evidence showing drug addiction and alcoholism (“DAA”), then the ALJ must determine whether 23 the DAA is “material” to the finding that the claimant is disabled. 20 C.F.R. § 404.1535(a). 24 Under the SSA a claimant “shall not be considered disabled . . . if alcoholism or drug addiction 25 would . . . be a contributing factor material to the . . . determination that the individual is 26 disabled.” 42 U.S.C. § 423(d)(2)(C). In determining whether a claimant’s DAA is material, the 27 1 key question is whether the individual would still be found disabled if she stopped using drugs or 2 alcohol. See 20 C.F.R. §§ 404.1535(b), 416.935(b). The ALJ must “evaluate which of [the 3 claimant’s] current physical and mental limitations . . . would remain if [she] stopped using drugs 4 or alcohol and then determine whether any or all of [her] remaining limitations would be 5 disabling.” 20 C.F.R. §§ 404.1535(b)(2), 416.935(b)(2). “If the remaining limitations would still 6 be disabling, then the claimant’s drug addiction or alcoholism is not a contributing factor material 7 to his disability. If the remaining limitations would not be disabling, then the claimant’s substance 8 abuse is material and benefits must be denied.” Parra v. Astrue, 481 F.3d 742, 747 (9th Cir. 2007) 9 (citing 20 C.F.R. §§ 404.1535(b)(2)(ii)); 416.935(b)(2)(ii). The claimant bears the burden of 10 proving that her substance use is not a material contributing factor to his disability. Parra, 481 11 F.3d at 745. 12 The ALJ determined that if Plaintiff stopped substance use, she would continue to have a 13 severe impairment or combination of impairments, but that she still would not have an impairment 14 or combination of impairments that meets or medically equals any of the impairments in the 15 Listings. AR 25-27. The ALJ found that if the she stopped substance use, she would have the 16 RFC to perform light work as defined by 20 §§ 404.1567(b) and 416.967(b), except be able to lift 17 or carry 20 pounds occasionally and 10 pounds frequently; push and pull as much as she could 18 carry; be able to sit, stand, or walk for six hours during an eight-hour workday; and be limited to 19 simple, routine tasks. AR 27-32. The ALJ thus found that Plaintiff would be able to perform past 20 relevant work as a Deli Clerk or Cashier, i.e., that that work would not require the performance of 21 work-related activities beyond Plaintiff’s RFC. AR 32. Accordingly, the ALJ concluded that 22 Plaintiff’s DAA was a contributing factor material to the finding of disability because she would 23 not be disabled if she stopped the substance use; and because it was, Plaintiff had not been 24 disabled with the meaning of the SAA at any time from the alleged onset date, through the date of 25 the decision, November 24, 2017. AR 32. 26 B. Plaintiff’s Arguments 27 Plaintiff argues that the ALJ erred in concluding that she did not meet listing 14.09, 1 for Summ J. 7, ECF No. 24. She argues that she does. Regarding her mental impairments, 2 Plaintiff argues that the ALJ also erred in evaluating whether she met mental impairment listings 3 12.03, schizophrenia spectrum and other psychotic disorders, 12.04, depressive, bipolar and 4 related disorders, 12.05, intellectual disorder, and 12.06, anxiety and obsessive-compulsive 5 disorders. Regarding listings 12.03, 12.04, and 12.06, she argues the ALJ erred in finding she had 6 only moderate or mild limitations in the four areas of mental functioning under paragraph B of 7 listings and thus could not meet the criteria of that paragraph. Id. at 12-15. She argues also that 8 the ALJ erred in proceeding to a materiality determination and that the ALJ’s determination that 9 DAA was material was not supported by substantial evidence. Id. at 10-12. Lastly, she argues 10 that the ALJ should have consulted the Medical-Vocational Guidelines to determine if she was 11 disabled with an RFC of light, and that he erred by failing to do so. Id. at 16. 12 C. Legal Standards 13 When determining whether a claimant is disabled, the ALJ must consider each medical 14 opinion in the record together with the rest of the relevant evidence. 20 C.F.R. § 416.927(b); King 15 v. Berryhill, 2018 WL 4586726, at *11 (N.D. Cal. Sept. 25, 2018). In deciding how much weight 16 to give to any medical opinion, the ALJ considers the extent to which the medical source presents 17 relevant evidence to support the opinion. 20 C.F.R. § 416.927(c)(3). Generally, more weight will 18 be given to an opinion that is supported by medical signs and laboratory findings, and the degree 19 to which the opinion provides supporting explanations and is consistent with the record as a 20 whole. 20 C.F.R. § 416.927(c)(3)-(4). The better an explanation a source provides for a medical 21 opinion, the more weight will be given. 20 C.F.R. § 416.927(c)(3). 22 The Ninth Circuit has “developed standards that guide [the] analysis of an ALJ’s weighing 23 of medical evidence.” Ryan v. Comm'r of Soc. Sec., 528 F.3d 1194, 1198 (9th Cir. 2008) (citing 20 24 C.F.R. § 404.1527). Courts “distinguish among the opinions of three types of physicians: (1) 25 those who treat the claimant (treating physicians); (2) those who examine but do not treat the 26 claimant (examining physicians); and (3) those who neither examine nor treat the claimant 27 (nonexamining physicians).” Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1995). “By rule, 1 physicians.” Orn v. Astrue, 495 F.3d 625, 631 (9th Cir. 2007) (citing 20 C.F.R. § 404.1527). If a 2 claimant has a treatment relationship with a provider, and clinical evidence supports that 3 provider’s opinion and is consistent with the record, the provider will be given controlling 4 weight. 20 C.F.R. § 416.927(c)(2). “The opinion of a treating physician is given deference 5 because ‘he is employed to cure and has a greater opportunity to know and observe the patient as 6 an individual.’” Morgan v. Comm'r of the Soc. Sec. Admin., 169 F.3d 595, 600 (9th Cir. 7 1999) (quoting Sprague v. Bowen, 812 F.2d 1226, 1230 (9th Cir. 1987)).5 8 D. Analysis 9 1. The ALJ’s Evaluation of Listing 14.09 10 Plaintiff challenges the ALJ’s finding that she did not have “inflammation or deformity of . 11 . . one major peripheral joint in each upper extremity resulting in the inability to perform fine and 12 gross movements effectively,” and thus did not meet listing 14.09, inflammatory arthritis. AR 21- 13 22. “Listing-level severity in 14.09A . . . is shown by an impairment that results in an ‘extreme’ 14 (very serious) limitation.” Listings § 14.00(D)(6)(e)(i). “The section is met with persistent 15 inflammation or deformity of [1] one major peripheral weight-bearing joint resulting in the 16 inability to ambulate effectively (as defined in 14.00C6); or [2] one major peripheral joint in each 17 upper extremity resulting in the inability to perform fine and gross movements effectively (as 18 defined in 14.00C7).” Id. The inability to perform fine and gross movements “effectively means 19 an extreme loss of function of both upper extremities; i.e., an impairment(s) that interferes very 20 seriously with the individual’s ability to independently initiate, sustain, or complete activities.” Id. 21 §§ 14.00(C)(7), 1.00(B)(2)(c). The ALJ concluded that Plaintiff suffers from rheumatoid arthritis 22 and carpal tunnel syndrome, and that these impairments were severe, but he found these 23 impairments did not meet either criteria in 14.09A. AR 21-22. 24 In making her argument, Plaintiff points out first that in Dr. Ferguson’s August 15, 2017 25 26 5 Rules regarding the evaluation of medical opinion evidence were updated in 2017, but the updates were made effective only for claims filed on or after March 27, 2017. See 82 Fed. Reg. 27 5844 (Jan. 18, 2017). As Plaintiff’s claim was filed in 2015, the Court evaluates the medical 1 functional assessment, she diagnosed Plaintiff with rheumatoid arthritis and osteoarthritis. But a 2 diagnosis associated with a listed impairment is not by itself sufficient to meet the criteria of a 3 listing. See Young v. Sullivan, 911 F.2d 180, 181, 183-85 (9th Cir. 1990) (“While the [Listings 4 do] describe conditions that are generally considered severe enough to prevent a person from 5 doing any gainful activity, an ALJ should not consider a claimant’s impairment to be one listed in 6 Appendix 1 solely because it has the diagnosis of a listed impairment. It must also have the 7 findings shown in the Listing of that impairment.”) (citing 20 C.F.R. § 404.1525(d) (“Can your 8 impairment(s) meet a listing based only on a diagnosis? No. Your impairment(s) cannot meet the 9 criteria of a listing based only on a diagnosis. To meet the requirements of a listing, you must 10 have a medically determinable impairment(s) that satisfies all of the criteria in the listing.”)). 11 Moreover, although the ALJ considers opinions from medical sources on issues such as whether 12 impairments meet or equal the requirements of any listing, the final responsibility for deciding the 13 issue is left for the ALJ. 20 C.F.R. § 404.1527(d)(2), (3). So, Dr. Ferguson’s diagnosis is not 14 determinative. 15 Plaintiff also points out that Dr. Ferguson noted significant inflammation in Plaintiff’s 16 wrists, hands, and shoulders, and that Plaintiff’s wrists were restricted. “[L]ike the opinion of a 17 treating doctor, the opinion of an examining doctor can only be rejected for specific and legitimate 18 reasons that are supported by substantial evidence in the record.” Lester v. Chater, 81 F.3d 821, 19 830-31 (9th Cir. 1995) (citations omitted). The ALJ reviewed Dr. Ferguson’s assessment (and Dr. 20 Khan’s similar assessment) but gave little weight to her assessment of the extent to which 21 Plaintiff’s impairments affected her postural activities and gross and fine manipulation. AR 30. 22 He felt those restrictions were inconsistent with Plaintiff’s “conservative treatment modalities, 23 [and] her limited examination findings which consist[ed] generally of tenderness in her hands,” 24 and he found that Dr. Ferguson (and Dr. Khan) had provided “little explanation for [those] 25 extreme postural, standing/walking, and manipulative restrictions.” AR 30. In particular, the ALJ 26 noted that radiology reports from Dr. Mun (May 2, 2013) and Dr. Sani (Dec. 21, 2015 and Dec. 27 22, 2014) reported only mild soft tissue swelling around the bilateral wrists and PIP joints, and 1 Dr. Ferguson’s July 24, 2016 assessment that imaging and a physical examination had 2 demonstrated “no joint inflammation as well as normal inflammatory markers.” AR 31, 500. 3 After reviewing x-rays, evaluating Plaintiff, and reviewing and agreeing with Dr. Ferguson’s 4 assessment, Dr. Mun “treated [Plaintiff] conservatively with extra strength Tylenol.” AR 31, 500. 5 The ALJ also found that objective evaluations, “while demonstrating tenderness to 6 palpation, also showed full muscle strength in upper and lower extremities, and intact sensation.” 7 AR 31. Dr. Kiefer’s November 11, 2014 findings are consistent with that finding. He found only 8 mild, diffuse tenderness at Plaintiff’s bilateral hand joints, wrist joints, elbows, and shoulders, and 9 a full range of motion at all joints and no localized tenderness. AR 331. Dr. Neuwelt’s August 10 26, 2014 assessment is also consistent. It noted “bilateral mild soft tissue swelling” of Plaintiff’s 11 PIPs with minimal tenderness to palpation in those joints, and mild tenderness to palpation of her 12 MCP joints and bilateral wrists with some associated soft tissue swelling, but “[o]therwise, no 13 tenderness of her bilateral elbows or shoulders. . . . Strength is full in all extremities.” AR 435. 14 The assessment also noted a full range of motion of fingers, “full range to wrist extension with 15 decreased [] range of motion to wrist flexion,” and “[n]o obvious effusion or soft tissue swelling.” 16 Id. And it concluded, “negative CRP, rheumatoid factor and anti-CCP less suggestive of true 17 rheumatoid arthritis.” Id. And Dr. McMillan on June 25, 2015 noted that Plaintiff had normal 18 DIP, PIP, and MCP joints, no wrist tenderness or shoulder tenderness, and normal range of 19 motions in her wrists, elbows, shoulders, hips, knees, and ankles, and full-strength wrist, elbow, 20 shoulder, hip, knee, and ankle flexion and extension. AR 350-51. 21 Plaintiff argues that Dr. Ferguson’s medical opinion is supported by treating appointments 22 showing persistent inflammation and deformity. She cites to a range of pages in the record, AR 23 488-520 and 606-610, but points to no particular portion from any medical record which would 24 support Dr. Ferguson’s assessment that she suffered from extreme postural, mobility, and 25 manipulative restrictions. She also cites Dr. Gibbs’ July 18, 2017 EEG/EMG Report, which 26 diagnosed “right median sensory motor neuropathy at the wrist (carpel tunnel) severe,” and “left . . 27 . moderate.” AR 488. The ALJ considered that report, but noted the lack of any subsequent 1 follow-up throughout the record, and “limited objective findings.” AR 30. The ALJ identified 2 “large treatment gaps in the claimant’s record” which he found were inconsistent with her 3 allegations of debilitating impairments,” AR 30 (citing AR 521-605), and “evidence of 4 noncompliance with treatment recommendations,” AR 30. The record supports the ALJ’s 5 findings. For example, Dr. Neuwelt’s August 26, 2014 assessment indicated that Plaintiff was last 6 seen in the rheumatology clinic in late April 2014, and was then prescribed Norco (an opioid pain 7 reliever) and prednisone (a corticosteroid anti-inflammatory), but that she did not fill her 8 prescription for prednisone and had been taking Norco only for symptomatic relief. AR 434. Dr. 9 Neuwelt also noted that Plaintiff had been taking an opioid pain reliever which she obtained from 10 friends. Id. His May 5, 2015 assessment indicated that Plaintiff was “very noncompliant with 11 medications and is requesting Norco refill and a prescription of Valium. We will refill Norco, 12 however, patient needs to work on establishing primary care, and we will not get Valium, but 13 trazodone for her sleep. The patient is to work on setting a primary care . . . .” AR 411. A March 14 30, 2016 chart note by Dr. Matthew Fentress, MD indicated that Plaintiff “ran out of 15 methotrexate6 – can’t remember when,” AR 583, and that while she continued to take Norco, she 16 was only taking the methotrexate “on an ‘as needed’ basis, and ran out some time ago,” AR 584. 17 And Dr. Ferguson’s April 17, 2017 assessment indicated that “[o]n prior exams . . . [Plaintiff] was 18 treated with methotrexate, though it is unclear what effect [it] had as it was [a] somewhat long 19 period of time between when it was started and when she was followed up in clinic again.” AR 20 490. (Dr. Ferguson also noted that Plaintiff had had no new labs done since 2015, AR 491, and 21 that she strongly felt she did not have carpal tunnel syndrome, AR 492.). 22 Furthermore, although Dr. Ferguson’s August 15, 2017 functional assessment found 23 significant inflammation in Plaintiff’s wrists, hands, and shoulders, her April 17, 2017 assessment 24 was that there was no evidence of membrane inflammation in Plaintiff’s PIP joints, no tenderness 25 6 Methotrexate is an “effective and widely used medication[] for treating inflammatory types of 26 arthritis,” and is believed to “slow[] the progression of [rheumatoid arthritis] and relieves symptoms by causing cells to release a molecule called adenosine, which blocks other chemicals 27 that promote inflammation . . . .” Methotrexate: Managing Side Effects, Arthritis Foundation, 1 to palpation in her DIP joints, normal extension in her wrists, and nondistended shoulders with 2 normal abduction and internal and external rotation, and that Plaintiff was serologically negative 3 with only subtle inflammation in the PIPs and DIPs. AR 491-92. And aside from Dr. Ferguson’s 4 assessment, Plaintiff points to no other medical evidence which would support her findings of an 5 extreme loss of function in either upper extremity. She cites Dr. Mun’s May 17, 2017 radiology 6 report, wherein Dr. Mun noted “periarticular osteopenia and soft tissue swelling of inflammatory 7 arthritis. Erosions are seen in the left third PIP joint.” AR 489. But those findings are consistent 8 with the ALJ’s conclusion that while Plaintiff had arthritis, the record did not support the extreme 9 limitations outlined in Dr. Ferguson’s assessment. 10 The ALJ provided specific and legitimate reasons for finding that Plaintiff’s physical 11 impairments did not meet or medically equal a 14.09 listing, and substantial evidence supports that 12 finding. Thus, it is upheld. 13 2. The ALJ’s Evaluation of Listings 12.03, 12.04, and 12.06 14 Plaintiff contends that she met the following listings for mental disorders: 12.03, 15 schizophrenia spectrum and other psychotic disorders, 12.04, depressive, bipolar and related 16 disorders, 12.05, intellectual disorder, and 12.06, anxiety and obsessive-compulsive disorders. 17 Her argument relates to paragraph B of those listings. Listings 12.03, 12.04, and 12.06 have three 18 paragraphs, designated A, B, and C, and a claimant’s mental disorder must satisfy the 19 requirements of both paragraphs A and B, or the requirements of both paragraphs A and C. 20 Listings § 12.00(A)(2). In every mental impairment listing except 12.05, paragraph B provides 21 the functional criteria an ALJ assesses to evaluate how an impairment limits a claimant’s 22 functioning. Id. § 12.00(A)(2)(b). The criteria, which represent the areas of mental functioning a 23 person uses in a work setting, are: [1] understand, remember, or apply information; [2] interact 24 with others; [3] concentrate, persist, or maintain pace; and [4] adapt or manage oneself. Id. To 25 satisfy the paragraph B criteria, a claimant’s mental impairment must result in “extreme” 26 limitation of one, or “marked” limitation of two, of the four areas of mental functioning. Id.; 20 27 C.F.R. § 404.1520a(c)(3). An extreme limitation is an inability to function independently, 1 ability to function independently, appropriately, effectively, and on a sustained basis. Listings § 2 12.00(F)(2)(d)-(e). The ALJ found that Plaintiff had only moderate or mild limitations in each of 3 the four areas of mental functioning. AR 22. He found that if Plaintiff stopped substance use, she 4 would have only moderate limitations in understanding, remembering, or applying information, 5 concentrating, persisting, or maintaining pace, and adapting or managing herself; and only mild 6 limitation in interacting with others. AR 26. Plaintiff argues that the ALJ erred in finding she did 7 not have extreme or marked limitations in any of the four areas of mental functioning. 8 a. Understanding, Remembering, or Applying Information 9 Concerning Plaintiff’s understanding, remembering, and applying information, Plaintiff 10 makes no substantive argument, and instead merely re-states the various findings of healthcare 11 providers that she suffered from marked or extreme limitations in this area of functioning. The 12 ALJ gave little weight to each of those opinions. The Court turns to each one in turn. 13 i. Dr. Aames’ Opinion 14 Dr. Aames’ August 15, 2017 mental impairment questionnaire noted an overall marked 15 impairment in Plaintiff’s ability to understand, remember, and apply information, interact with 16 others, and adapt and manage herself; and an extreme impairment in her ability to concentrate, 17 persist, or maintain pace. AR 613-14. The ALJ considered Dr. Aames’ assessment but found it 18 overly restrictive and gave it little weight. He found it failed to rely on objective testing and 19 evaluation, and relied too much on Dr. Aames’ “routine psychotherapy sessions centered on the 20 claimant’s life stressors.” AR 31. Moreover, the ALJ found the assessment failed to account for 21 Plaintiff’s “persistent noncompliance with treatment,” including with substance abuse, “and her 22 ability to maintain living in her own with limited assistance.” AR 31. The ALJ noted that 23 Plaintiff had received psychotherapy from Dr. Aames from February to July 2017. See 521-39. 24 He found that Dr. Aames’ notes showed that many of Plaintiff’s symptoms appeared to be stress 25 or grief-related. AR 28. The record is consistent with that finding. See, e.g., AR 521, 535-36. 26 Regarding Plaintiff’s noncompliance with treatment, the ALJ noted that on July 13, 2017, 27 after Plaintiff asked Dr. Aames about refilling prescriptions for Risperidone and Fluoxetine (two 1 filled since April 2016. AR 523, 525. The ALJ referenced two other occasions in which a 2 treatment provider raised the issue of Plaintiff’s failure to follow prescribed treatment. AR 28. 3 On August 4, 2015 Dr. Wu noted that Plaintiff requested a prescription of Xanax, “and at first 4 stated that the Prozac I prescribed at her last visit didn’t work – but on further questioning, I doubt 5 she actually took the medication at all.” AR 554. Dr. Wu noted that Plaintiff asked for valium if 6 she could not be given Xanax, and that she spent the rest of the appointment explaining why she 7 does not prescribe Xanax for anxiety. She also noted that Plaintiff “was on Risperdal, tried 2mg, 8 disliked, [then] [s]topped med.” AR 555. On May 5, 2016, Dr. Jeffrey Seal, MD, noted that 9 Plaintiff “[didn’t] want to take the mediation I prescribed (Zoloft)[,] pulls 2 bottles of it out and 10 says she was previously given the same thing and doesn’t like it.” AR 542. He noted that Plaintiff 11 told him, “I don’t want these medications, Xanax works for me.” AR 542. He noted that he 12 revisited a conversation he had with Plaintiff from the prior visit about the need to try medication 13 on a regular basis and that Plaintiff had been taking it only as needed. AR 542. Plaintiff 14 complained to Dr. Seal that she was stressed because “she ‘shouldn’t have to see psychiatrists’ to 15 get disability money after having worked for 35 years.” AR 542. Returning to Dr. Aames’ chart 16 notes, on July 28, 2017 (about two weeks before he completed his questionnaire) he noted that 17 Plaintiff was not at that time taking any prescribed anti-depressants or other psychotropic drugs. 18 See AR 521, 523. Hence, the record does support the ALJ’s finding of persistent noncompliance 19 with treatment, and Dr. Aames’ assessment evidently failed to take into account noncompliance. 20 Noncompliance with prescribed treatment is a significant consideration in the determination of 21 disability status. 20 C.F.R. 404.1530 (“If you do not follow the prescribed treatment without a 22 good reason, we will not find you disabled or, if you are already receiving benefits, we will stop 23 paying you benefits.”). Lastly, it’s not clear that Dr. Aames factored any objective testing or 24 evaluation into his assessment, and Plaintiff has not pointed to anything showing he did. 25 The ALJ provided sufficient reason for giving little weight to Dr. Aames’ assessment and 26 those reasons are supported by substantial evidence in the record. 27 ii. Dr. Sakhai and LMFT Neumann’s Opinion 1 Questionnaire, in which they noted marked or extreme impairments in Plaintiff’s understanding 2 and memory; social interaction; adaptation; and activities of daily living; and extreme limitations 3 in all categories of Plaintiff’s sustained concentration and persistence. AR 473-75. The ALJ 4 considered this assessment but gave it little weight because he found it was inconsistent with the 5 evidence in the record. AR 28. In particular, he noted that Plaintiff began therapy with LMFT 6 Neumann in late October 2016 and saw her for 10 visits from then to March 17, 2017. AR 28, 7 487-77. He noted that the visits were “routine therapy sessions” and that there was “little change 8 in Ms. Neumann’s observations, which generally consisted of notes regarding the claimant’s 9 fatigue and sleepiness due to hyper-vigilance and staying up all night, her grief, and difficult 10 relationship with her family.” AR 28. He noted that treatment notes documented no objective 11 mental status evaluations but rather assertions of the same, repeated observations. Id. He noted 12 that Dr. Sakhai did not conduct mental status testing to assess Plaintiff’s mental functioning. He 13 also felt that Dr. Sakhai’s assessment was not consistent with Plaintiff’s ability to live 14 independently with limited support services. AR 28-29. 15 The record supports the ALJ’s conclusions. As he found, Neumann’s treatment notes often 16 focused on Plaintiff’s grief and difficult relationship with her family. See, e.g., AR 486, 485, 484, 17 483, 482, 480 (ordered chronologically). While notes indicated that Plaintiff was suffering from 18 paranoid schizophrenia or depression, they discussed no functional or behavioral limitations other 19 than Plaintiff frequently feeling sleepy because of hypervigilance and staying awake at night. See, 20 e.g., AR 486, 482, 481, 478, 477. Only twice did the notes mention that Plaintiff had difficulty 21 responding to questions, and both times the difficulty was associated with her feeling sleepy. AR 22 478 (“Client seemed extremely sleepy and had difficult responding to therapist’s questions.”), 477 23 (“Tried to engage with client and ask her about her extremely drowsy state.”). Those limited 24 observations are not consistent with Dr. Sakhai and Neumann’s finding that Plaintiff was “barely 25 able to have a conversation, is often in a catatonic state.” AR 471. Also, most of the stated 26 treatment goals, which remained largely consistent across treatment, don’t strike the Court as 27 consistent with the type of treatment necessary for a patient with extreme impairments in mental 1 symptoms of hypervigilance and paranoia); AR 484, 483, 481 (teaching Plaintiff coping skills to 2 help her calm herself); AR 480 (working with Plaintiff to process grief and the associated 3 insomnia and depression); AR 479 (working on strategies for decreasing anxiety); AR 478 4 (working to develop capacity to express thoughts and feelings in therapy rather than retreating into 5 herself). Lastly, neither the therapy notes nor the questionnaire mentioned objective testing or any 6 other foundation for Dr. Sakhai and Neumann’s assessment of such extreme limitations. And the 7 questionnaire also indicated that Plaintiff last abused drugs or alcohol in 2010, even though 8 Plaintiff admitted to substance abuse as late as June 2015. See AR 349. This suggests either that 9 Dr. Sakhai and Neumann were not aware of Plaintiff’s drug use or they did not account for the 10 potential effects of substance abuse. 11 Relevant evidence supports the ALJ’s decision to discount Dr. Sakhai and Neumman’s 12 assessment. The decision was not in error. 13 iii. Dr. Howard’s Opinion 14 Dr. Howard’s May 15, 2015 Medical Source Statement assessed Plaintiff with moderate to 15 marked impairment in ability to understand, remember, and carry out instructions; and marked 16 impairment in ability to interact appropriately with supervision, co-workers, and the public; in her 17 pace, persistence of tasks, and ability to perform activities within a schedule and maintain regular 18 attendance; and to respond to changes in routine work settings. AR 467-69. After a WAIS test, he 19 reported a composite IQ score of 59, “extremely low.” AR 465. He diagnosed Plaintiff with a 20 GAF score of 54-56, AR 466, which indicates moderate difficulty in social and occupational 21 functioning. 22 The ALJ considered Dr. Howard’s assessment, but again gave the assessment little weight. 23 AR 29-30. He found Dr. Howard’s assessment of marked social interaction limitations was 24 inconsistent with his objective observations, after a mental status exam, that Plaintiff was 25 cooperative and compliant, and responded to questions adequately. AR 464. The ALJ noted that 26 although claimant appeared moderately to markedly depressed and anxious during the exam, and 27 self-reported sleep disturbance, social isolation, memory and concentration difficulty, she was 1 AR 463, 464. The ALJ also noted the absence of any mention of Plaintiff responding to internal 2 stimuli. See AR 464-65. Additionally, Dr. Howard noted that “claimant appeared to comprehend 3 the directions of the tests administered, and was able to respond to . . . tasks of the evaluation.” 4 AR 463. He noted that the normative samples of the tests administered were appropriate for 5 Plaintiff’s education level and acculturation level. Id. Plaintiff reported never having been 6 psychiatrically hospitalized and that she was not then taking any medications. AR 464. Plaintiff’s 7 hygiene and grooming appeared adequate, and she had no abnormal tics, tremors, or mannerisms. 8 Id. Her eye contact appeared adequate, and she was alert and oriented to person, place, time, and 9 purpose of the evaluation, though she was unable to name the clinic she was in. Id. She was 10 adequately cooperative and compliant with the evaluation and required only mild encouragement, 11 though Dr. Howard noted that she became easily discouraged. Id. She presented “at least average 12 language comprehension,” as indicated by an ability to follow test instructions without the 13 necessity of repetitions. Id. Her insight appeared fair and her judgment appeared good. AR 465. 14 “[D]espite her reported hallucinations and fear that people break into her house if she leaves, she 15 demonstrated no overt evidence of psychotic thought process.” AR 466. 16 Accordingly, the record supports the ALJ’s reasons for giving little weight to Dr. 17 Howard’s assessment of marked impairment in areas of mental functioning. While Dr. Howard’s 18 assessment did include objective testing that suggested significant impairment in Plaintiff’s ability 19 to function, Dr. Howard’s own objective observations amounted to substantial evidence 20 contradicting those findings, and the ALJ was within his discretion to give more weight to those 21 observations. See Magallanes v. Bowen, 881 F.2d 747, 750 (9th Cir. 1989) (“The ALJ is [] 22 responsible for resolving ambiguities.”); Key v. Heckler, 754 F.2d 1545, 1549 (9th Cir. 1985) 23 (“Where the evidence as a whole can support either outcome, we may not substitute our judgment 24 for the ALJ’s.”); Cha Thao Moua v. Comm’r of Soc. Sec., 2018 WL 5848889, at *2 (E.D. Cal. 25 Nov. 6, 2018) (“The ALJ properly summarized the findings of the doctors, including observations 26 and tests not consistent with their conclusions, and provided specific and legitimate reasons for 27 assigning the weight he did.”); White v. Colvin, 2016 U.S. Dist. LEXIS 135723, at *42-45 (D. 1 vague and imprecise and inconsistent with his own observation). 2 iv. Dr. Franklin and Assessor Childs’ Opinion 3 Dr. Franklin and Childs’ January 1, 2015 psychological evaluation and report assessed 4 Plaintiff with marked limitation in ability to understand, remember, and carry out simple or 5 detailed instructions; interact appropriately with members of the public; accept instructions; and 6 respond appropriately to criticism from supervisors; and extreme limitations in ability to maintain 7 attention and concentration over two-hour segments; perform at a consistent pace without an 8 unreasonable number and length of rest periods; get along and work with others; respond 9 appropriately to changes in a routine work setting and deal with normal work stressors; and 10 complete a normal workday and workweek without interruptions from psychologically-based 11 symptoms. AR 462. They reported a composite IQ for Plaintiff of 61, “extremely low.” Id. 12 The ALJ considered this report as well but gave it little weight. AR 29. As a main reason, 13 he noted that Dr. Franklin and Childs found that it was “clear” that Plaintiff’s impairments were 14 not caused by substance abuse, even though Plaintiff stated at the evaluation that she drinks, 15 smokes, and uses cocaine. AR 456, 462. Plaintiff also stated that substances “get her motivated to 16 take care of things” and that her cocaine use had at one point been daily but at that time was two 17 times per week at home by herself. AR 456. The report also noted that records had indicated “a 18 history of substance related issues,” and a number of medical issues including “multiple attempts 19 at . . . psychotropic and pain medication prescriptions . . . .” Id. Plaintiff reported that she “takes 20 lots of pain medication.” Id. The report didn’t indicate which medications, despite a documented 21 history of substance use issues, and medical records—apparently reviewed by Dr. Franklin and 22 Childs—which showed that Plaintiff had previously admitted to self-medicating with alcohol and 23 cocaine. See AR 321, 455. Accordingly, the ALJ found that the assessment failed to consider the 24 impact of Plaintiff’s substance use on her mental and cognitive functioning, and that this reduced 25 the probative value of their report and reliability of their assessment. AR 29. He also found their 26 conclusion contradicted their own recommendation that she pursue regular psychotherapy to allow 27 her to stop “self-medicating.” 1 and Childs’ opinion, and the reason is supported by substantial evidence. See Cothrell v. 2 Berryhill, 742 Fed. Appx. 232, 236 (9th Cir. 2018) (“The ALJ did not err in failing to consider the 3 testimony of [the] examining psychologist. Like the ALJ, [she] found that [claimant] was disabled 4 . . . . [She], did not, however, discuss the effect of [claimant’s substance use on her disability 5 determination despite acknowledging [claimant’s] history of substance use. . . . This is a specific 6 and legitimate reason to reject Dr. Causeya’s opinion on this point.”) (citation and internal 7 quotation marks omitted). 8 Aside from these four opinions, Plaintiff cites to no other evidence that would support a 9 finding of a marked or extreme limitation in understanding, remembering, or applying 10 information. The ALJ gave specific and legitimate reasons based on substantial evidence for 11 discounting those opinions, and the record as a whole supports the ALJ’s finding of only a 12 moderate level of impairment in this area of mental functioning. 13 b. Interacting with Others 14 In addressing the severity of her limitation in interacting with others, Plaintiff asserts that 15 she is paranoid with persecutory delusions and intentionally isolates herself. In support of that 16 assertion, she mostly cites random things she said to various treatment providers. See Pl.’s Mot. at 17 13. However, she cites no authority which suggests that a claimant’s mere statements are 18 substantial evidence, and the Court does not find these are. Other than her own statements, 19 Plaintiff relies again on Dr. Howard’s assessment that she suffered from marked impairment in 20 this area. But for the reasons discussed above, the ALJ did not err in discounting Dr. Howard’s 21 opinion. 22 Plaintiff also asserts that she has been volatile and at times aggressive with providers. She 23 cites two incidents. In one Dr. Aames noted that Plaintiff “evinced [an irritable] mood and would 24 talk over” him when he tried to explain a misunderstanding with some potential financial 25 assistance from the LifeLong Trust Health Center. AR 527. Plaintiff “stormed out” of Dr. 26 Aames’ office saying, “See, that’s why I hate doctors. You don’t want to help me.” Id. In the 27 other incident, Plaintiff told Dr. Aames she needed surgery for arthritis, but then quipped, “I’m not 1 does much of anything to show that Plaintiff suffered from significant limitation in interacting 2 with others (or even a moderate one). 3 The Court agrees with the ALJ’s finding that Plaintiff “generally interacted adequately 4 with treatment providers, and was able to seek care for herself and communicate her needs 5 adequately.” AR 26. The record supports his finding of only mild limitations in interacting with 6 others. 7 c. Concentrating, Persisting, or Maintaining Pace 8 Regarding this area of functioning, the only evidence that Plaintiff points to are: Dr. Sakhai 9 and LMFT Neumann’s opinion that she was catatonic and “barely able to have a conversation,” as 10 well as their assessment that she suffered from extreme impairment in this area of functioning; Dr. 11 Howard’s opinion that she demonstrated marked impairment in this area; and Dr. Franklin’s 12 opinion that she suffered from extreme impairment to perform at a consistent pace. For the 13 reasons discussed above, the ALJ did not err in discounting those opinions. 14 Plaintiff otherwise argues that “being able to drive, filling out paperwork . . . or testifying 15 about herself in a disability hearing is not substantial evidence of mild impairments.” Pl.’s Mot. 16 13. But at this step, it was Plaintiff’s burden of proof to demonstrate disability, and she did not 17 put forth substantial evidence of anything other than mild or moderate impairments. 18 Substantial evidence supports the ALJ’s finding of only moderate limitation in 19 concentrating, persisting, or maintaining pace. 20 d. Adapting or Managing Oneself 21 Here, the ALJ determined that a finding of a moderate limitation was supported by 22 Plaintiff’s testimony that she was able to live alone, albeit with limited help from an in-home 23 support services aide. AR 26. He noted that Plaintiff is generally capable of taking care of her 24 hygiene and grooming, as there was no evidence in the record that she required toileting or help 25 with bathing or similar tasks. Id. He noted that she was able to manage her finances by paying 26 bills and was able to go to the store to get things that she needed. Id.; see AR 343. 27 Plaintiff argues that she is not capable of caring for her herself or her own home. The 1 in a March 2017 session and that a month earlier had noted that she was “poorly groomed and 2 casually dressed in what appeared to be pajamas bottoms, layered shirts, and a knitted hat.” AR 3 531, 535. Those observations don’t get Plaintiff anywhere near the goalpost of proving a marked 4 or extreme limitation in managing herself. 5 Plaintiff also points out that she has an in-home support services aid. The ALJ considered 6 this fact in determining that Plaintiff had only moderate limitations in the four areas of mental 7 functioning. AR 26. Plaintiff’s need for limited assistance in living independently does not 8 seriously limit her ability to function independently, appropriately, effectively. Substantial 9 evidence supports the ALJ’s finding of only moderate limitation in this area of functioning. 10 Because the ALJ did not err in finding that Plaintiff’s impairments did not result in 11 extreme or marked limitation of any of the four areas of mental function, he correctly found that 12 the paragraph B criteria for 12.03, 12.04, or 12.06 were not satisfied. Thus, he correctly found that 13 Plaintiff’s impairments did not meet or medically equal 12.03, 12.04, or 12.06. 14 3. The ALJ’s Evaluation of Listing 12.05 15 “Listing 12.05 explains that intellectual disability refers to significantly subaverage 16 general intellectual functioning with deficits in adaptive functioning initially manifested during 17 the developmental period; i.e., the evidence demonstrates or supports onset of the impairment 18 before age 22.” Kennedy v. Colvin, 738 F.3d 1172, 1175 (9th Cir. 2013) (citing § 12.05) (internal 19 quotation marks omitted) (emphasis added). The ALJ found that listing 12.05 was not met 20 because Plaintiff did not have significant deficits in adaptive functioning currently manifested by 21 dependence upon others for personal needs such as toileting, eating, dressing, or bathing. AR 22. 22 He found no records showing that Plaintiff had a disability prior to age 22, and that her inability to 23 graduate from high school was alone insufficient evidence of that. Id. He accurately found that 24 no evidence suggested that Plaintiff had significantly subaverage general intellectual functioning 25 before the age of 22. 26 Plaintiff asserts that “extensive clinical interviewing from Dr. Franklin over multiple hours 27 demonstrates that [her] problems with school started in her youth.” Pl.’s Mot. at 15. However, 1 schooling did not come to the surface through “extensive clinical interviewing . . . over multiple 2 hours;” it seems instead that Plaintiff simply told Dr. Franklin on one occasion that “she got good 3 grades but dropped out the second semester of 12th grade,” and for reasons having nothing to do 4 with her intellectual functioning at all. See AR 455. Further, Plaintiff reported several other 5 times, including during her testimony before the ALJ, that she took some college or certification 6 courses. See AR 41, 343, 349, 463. She also reported that she had good grades in school and 7 denied having taken special education courses. AR 463. The record does not support Plaintiff’s 8 contention that she meets listing 12.05, and the ALJ did not err in finding so. 9 4. The ALJ’s DAA Materiality Finding 10 If there is a determination that the claimant is disabled and there is medical evidence 11 showing DAA, then the ALJ must determine whether the DAA is material to the finding that the 12 claimant is disabled. 20 C.F.R. § 404.1535(a). The ALJ found Plaintiff’s substance abuse was 13 material. 14 Plaintiff argues the ALJ erred in proceeding with a materiality determination. As Plaintiff 15 notes, under the SSA and regulations, an ALJ makes a DAA materiality determination when 16 medical evidence from an acceptable medical source establishes that a claimant has a substance 17 use disorder. 2013 SSR LEXIS 2, at *9-10. Plaintiff argues that materiality was not an issue from 18 her alleged onset date, December 1, 2010.7 That is not accurate. On September 8, 2014, Dr. 19 Boroff indicated that Plaintiff had been self-medicating her physical and emotional pain with 20 alcohol and occasional cocaine use, and he diagnosed her with moderate alcohol use disorder and 21 mild cocaine use disorder. AR 321-22. On June 13, 2015, Dr. Gaasbeek diagnosed Plaintiff with 22 stimulant use disorder, severe, cocaine in remission. AR 344. And a November 6, 2015 treatment 23 7 Plaintiff’s Title II and Title XVI applications alleged an onset date of December 1, 2010. Before 24 the ALJ, Plaintiff attempted to amend her alleged onset date to February 28, 2015, the date she filed her applications. Because her date last insured was September 30, 2011, such an amendment 25 would have amounted to a withdrawal of her Title II claim. The ALJ denied the motion to amend because he found it wasn’t clear Plaintiff understood the amendment would have that 26 consequence. In her opening brief before this Court, Plaintiff says she is appealing the denial of both her Title II and Title XVI applications, but in her reply she abandons her Title II claim. The 27 apparent reason for abandoning the Title II claim is to cut off consideration of evidence, including 1 note by Dr. Ferguson noted a history of polysubstance abuse including marijuana and cocaine. 2 AR 397. 3 Furthermore, the record is replete with other references of substance abuse. For example, 4 Dr. Neuwelt indicated on August 26, 2014 that Plaintiff had been taking tramadol, an opioid 5 painkiller, which she had gotten from friends, and had reported that she drank a pint and a half of 6 vodka with a few beers on a nearly daily basis, that she occasionally smoked marijuana, and that 7 she sometimes inhaled illicit substances. AR 434. He noted, “[w]e performed extensive 8 counseling regarding her prior transaminitis likely caused by alcohol intake as well, with possible 9 contribution of Norco abuse. Discussed the potential side effects of methotrexate-induced 10 transaminitis and strongly advised to quit drinking alcohol as well as decreasing the amount of 11 Norco that she uses.” AR 436. On January 1, 2015, Dr. Franklin indicated that Plaintiff reported 12 that she drinks when she smokes and uses cocaine sometimes, that “substances get her motivated 13 to take care of things,” and that her cocaine use was daily but “she now uses it 2 times per week at 14 home by herself.” AR 456. Dr. Franklin noted that records referenced an arrest with cocaine prior 15 to 2015. Id. Dr. Wu indicated on March 10, 2015 that records indicated that Plaintiff was actively 16 using cocaine in 2014. AR 558. On May 5, 2015, Dr. Neuwelt indicated that Plaintiff continued 17 to drink one to two beers a day and used marijuana and was trying to quit cocaine but had used 18 about 1 ½ to 2 weeks prior. AR 411. On June 25, 2015, Dr. McMillan noted that Plaintiff stated 19 that she drinks alcohol every day and had used cocaine the day before. AR 349. Dr. Aames noted 20 on February 9, 2017 that Plaintiff reported that she had in the past used both cocaine and alcohol 21 to self-medicate. AR 538. Plaintiff reported last using substances about only a year prior. Id. 22 “[W]hen evidence exists of a claimant’s drug or alcohol abuse,” as it does here, in large 23 quantity, “the claimant bears the burden of proving that his substance abuse is not a material 24 contributing factor to his disability.” Parra v. Astrue, 481 F.3d 742, 744-45 (9th Cir. 2007). 25 Plaintiff really only points to Dr. Sakhai and LMFT Neumann’s March 17, 2017 questionnaire, 26 where they indicated that Plaintiff last abused drugs or alcohol in 2010. But as mentioned earlier, 27 the ALJ gave little weight to this assessment. And Plaintiff admitted to substance abuse as late as 1 drug use (or misreported it). 2 Plaintiff was not, as she asserts, honest about her alcohol and cocaine use. For example, 3 Plaintiff reported to Dr. Gaasbeek on June 13, 2015 that she hadn’t used cocaine for a “very long 4 time,” for close to 10 years. But she reported to Dr. Franklin on January 1, 2015 using it “2 times 5 per week,” and on May 5, 2015 she admitted to Dr. Neuwelt to having used cocaine 1 ½ to 2 6 weeks prior. And again on June 25, 2015, she admitted to Dr. McMillan to using cocaine the day 7 before. 8 Finally, Plaintiff has not, as she asserts, put forth affirmative evidence of abstinence in the 9 relevant period. The ALJ’s decision to proceed with a materiality determination was not in error, 10 and his finding of materiality was supported by substantial evidence in the record. 11 5. Plaintiff’s Remaining Two Arguments 12 Plaintiff contends that the ALJ erred in finding that she had the RFC to perform light work 13 with an ability to lift or carry 20 pounds occasionally and 10 pounds frequently. She points to Dr. 14 Ferguson and Dr. Khan’s assessments that she could lift and carry only less than 10 pounds. As 15 explained above, however, the ALJ properly discounted those assessments as inconsistent with the 16 record. Consequently, this argument fails. 17 Plaintiff also argues that the ALJ improperly ignored the Medical-Vocational Guidelines in 18 finding that she would have the RFC to perform light work if she stopped substance use and thus 19 would not be disabled. The Guidelines, however, are applicable at step five. See Hoopai v. 20 Astrue, 499 F.3d 1071, 1075 (9th Cir. 2007) (“To assist in the step-five determination, the Social 21 Security Administration established the Medical-Vocational Guidelines (the grids), which . . . set 22 forth rules that identify whether jobs requiring a specific combination of these factors exist in 23 significant numbers in the national economy.”) (citation and internal quotations omitted); Tackett 24 v. Apfel, 180 F.3d 1094, 1100-01 (9th Cir. 1999) (“There are two ways for the Commissioner to 25 meet the burden of showing that there is other work in ‘significant numbers’ in the national 26 economy that claimant can perform: (a) by the testimony of a vocational expert, or (b) by 27 reference to the Medical-Vocational Guidelines at 20 C.F.R. pt. 404, subpt. P, app. 2.”) (citation 1 was made at step four. The Guidelines were not applicable. 2 VI. CONCLUSION 3 For the reasons stated above, the Court DENIES Plaintiff’s motion and GRANTS 4 || Defendant’s cross-motion. The Court shall enter a separate judgment, after which the Clerk of 5 Court shall terminate the case. 6 IT IS SO ORDERED. 7 8 Dated: March 24, 2020 9 TAA. |} THOMAS S. HIXSON 10 United States Magistrate Judge 11 12 13 © 15 16 = 17 Z 18 19 20 21 22 23 24 25 26 27 28