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Quiroz v. Colvin

United States District Court, C.D. California

December 10, 2014

LEAH MAXINE QUIROZ, Plaintiff,
v.
CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant.

MEMORANDUM AND ORDER

KENLY KIYA KATO, Magistrate Judge.

Plaintiff Leah Maxine Quiroz seeks review of the final decision of the Commissioner of the Social Security Administration ("Commissioner" or "Agency") denying her applications for Title II Disability Insurance Benefits ("DIB") and Title XVI Supplemental Security Income ("SSI"). The parties have consented to the jurisdiction of the undersigned United States Magistrate Judge, pursuant to 28 U.S.C. § 636(c). For the reasons stated below, the Commissioner's decision is AFFIRMED.

I.

PROCEDURAL BACKGROUND

On March 2, 2011, Plaintiff filed separate applications for DIB and SSI. Administrative Record ("AR") at 195, 203. On August 18, 2011, the Agency denied the applications. Id. at 91, 102. On November 30, 2011, after reconsideration, the Agency affirmed the denial of the applications. Id. at 115, 127.

On January 14, 2012, Plaintiff requested a hearing before an Administrative Law Judge ("ALJ"). Id. at 155. On October 22, 2012, a hearing was held before ALJ Troy Silva. Id. at 52. On October 24, 2012, the ALJ issued a decision denying Plaintiff's applications. Id. at 28.

On November 9, 2012, Plaintiff asked the Agency's Appeals Council to review the ALJ's decision. Id. at 24. On March 6, 2014, the Appeals Council denied Plaintiff's request for review. Id. at 4.

On June 4, 2014, Plaintiff filed the instant action. This matter is before the Court on the parties' motions for summary judgment, which the Court has taken under submission without oral argument. See ECF Nos. 18, 19.

II.

RELEVANT FACTUAL BACKGROUND

Plaintiff was born on March 8, 1963, and her alleged disability onset date ("AOD") is March 30, 2009. AR at 91. Plaintiff alleges disability based upon fusion of the lower back, nerve damage in both legs, back injury, and severe depression. Id. Plaintiff was 46 years old at the time of the AOD, and 49 years old at the time of the hearing before the ALJ. Plaintiff graduated from high school, and last worked in March 2009 as a slot attendant at a casino. Id. at 57, 110. Plaintiff previously worked as an activities assistant, prep cook, and cashier. Id. at 110-11.

A. Treating Sources

1. Dr. S.G. Sharif

Dr. S.G. Sharif, a family medicine practitioner, treated Plaintiff several times between October 10, 2008, and July 17, 2012. See id. at 396-407, 462-467, 530-35. Dr. Sharif treated Plaintiff for various ailments, including back pain, urinary tract problems, and mental health issues. Id. Dr. Sharif prescribed various medications to treat Plaintiff's ailments, including Klonopin, Ranitidine, Cymbalta, Oxycodone, Neurontin, Tramdol, Soma, Macrobid, Motrin, and Norco. Id.

2. Dr. Mark Ramirez

Plaintiff saw Dr. Mark Ramirez, a primary care physician, on May 31, 2012, and June 26, 2012, for a two-part annual physical exam. See id. at 510-14. According to Dr. Ramirez's reports, Plaintiff had chronic lumbar pain but her "pain meds decrease her chronic pain from 10 to 3, " so Dr. Ramirez recommended Plaintiff "continue them the same." Id. at 513. To address Plaintiff's back pain, Dr. Ramirez recommended a "physical therapy referral to assist with helping patient start appropriate exercise regimen." Id. at 511. (Dr. Ramirez also diagnosed Plaintiff with morbid obesity. Id.)

After the first part of the exam, pursuant to Dr. Ramirez's recommendation, Plaintiff increased her intake of Prozac. Id. at 510. After the second part of the exam, Dr. Ramirez reported that Plaintiff "believe[d]" her depression was "better." Id. Dr. Ramirez also stated he was "able to trim down [Plaintiff's] multitude of [medications] some without adverse effect." Id. at 511.

3. Dr. Edward A. Balbas

Between September 28, 2010, and September 5, 2012, Plaintiff received treatment approximately nine times at Crown City Rehabilitation Institute ("CCRI"). See id. at 391-95, 515-28, 562-66. There is no evidence she received treatment at CCRI between October 2010 and June 2011, or between December 2011 and August 2012. See id. Dr. Edward A. Balbas signed each of Plaintiff's progress reports from CCRI. A progress report dated December 15, 2011, stated: "Range of motion lumbar flexion, was limited to 30 degrees, lumbar extension, was limited to 15 degrees due to pain." Id. at 516. On that date and others, Plaintiff received "epidural injections to alleviate her pain." ECF No. 18 at 12; see also AR at 394, 516-19, 525, 563-66.

4. MFI Counseling Services

From September 14, 2011, to July 30, 2012, Plaintiff received counseling at least twelve times at MFI Counseling Services ("MFI"). AR at 484-92, 538-41. Plaintiff's counselors generally observed she appeared "tearful, " and diagnosed her with "depression, recurrent, severe." E.g., id. at 492. At one session, Plaintiff complained to her counselor that her "medical doctor" declined to submit a statement for her SSI application. Id. at 484. Plaintiff then asked the counselor to submit a statement for the application. Id. The counselor "inform[ed] [Plaintiff] that we usually do not fill out paperwork for SSI." Id.

5. Teresa Oltmans

Teresa Oltmans was Plaintiff's physical therapist. Ms. Oltmans performed an initial evaluation on August 14, 2012, and a followup evaluation on September 14, 2012. Id. at 544. In the followup evaluation, Ms. Oltmans found Plaintiff's back pain symptoms "disrupt" both sitting and standing within 15 to 60 minutes; Plaintiff is moderately impaired at lumbar sidebending and extensions; and Plaintiff is moderately impaired at lumbar flexion, with bending limited to somewhere between 20 to 39 degrees.[1] Id. at 544-45. Ms. Oltmans also noted Plaintiff's abilities to sit and stand improved between the initial and followup evaluations. Id.

B. Consultative Sources

1. Consultative Psychiatric Examination

On June 3, 2011, consultative examiner Dr. Romauldo R. Rodriguez performed a complete psychiatric evaluation of Plaintiff. After the evaluation, Dr. Rodriguez issued a report. According to the report:

- Plaintiff stopped working in March 2009 because of back pain and has not returned to work because of the pain. Id. at 415.
- "In the course of dealing with her stressors and her inability to work, [Plaintiff] describes symptoms of depression with sadness, withdrawal, irritability, sleep and appetite disturbances, feeling helpless, useless, and worthless. At times she feels that her life is not worth living but denies ever feeling suicidal." Id. at 416.
- Plaintiff was psychiatrically hospitalized once, when she was 45 years old. Id.
- Plaintiff performed various activities of daily living - running errands, driving, cooking - without any apparent assistance. Id. at 417.
- During the interview, Plaintiff appeared to be genuine and truthful, and to have good interpersonal skills. Id.
- Plaintiff "has been prescribed medication for her symptoms." However, "she is apparently not being compliant with her medications and has not bothered to have the medications refilled." Id. at 419.

Dr. Rodriguez concluded Plaintiff suffers from major depressive disorder. Id. However, he wrote that "as long as the claimant is properly treated for depression and she is compliant with her medications, she could easily recover from her symptoms in the next twelve months." Id. at 420.

2. Consultative Physical Examinations

On an unknown date, Plaintiff received a consultative physical examination by Dr. Bryan H. To. See id. at 422-25. Dr. To noted that Plaintiff complained of "range of motion" pain in her back. He found Plaintiff's range of motion "is decreased, " with Plaintiff capable of flexion of sixty degrees, extension of ten degrees, and lateral flexion of ten degrees. Id. at 424. Dr. To found Plaintiff's back pain did not "elicit true findings of nerve root irritation." Id.

On July 26, 2011, Plaintiff received another consultative examination, this time by Dr. Nizar Salek. See id. at 426-32. Dr. Salek noted Plaintiff's "chief complaint" was lower back pain. Id. at 426. Dr. Salek found Plaintiff is capable of lateral flexion of at least twenty degrees; extension of between zero and twenty-five degrees; and forward flexion of at least seventy degrees, "with significant pain in the lower back." Id. at 429. Dr. Salek diagnosed Plaintiff with (1) "[l]ower back pain, status post fusion and laminectomy, " (2) depression, and (3) obesity. Id. at 430-31.

C. Plaintiff's Pre-Hearing Allegations

In a Function Report dated March 26, 2011, Plaintiff claimed that, as a result of her physical and mental conditions, she was unable to clean her home and had difficulty bending "to put shoes or pants on" or "to wash lower parts of body." Id. at 263. Plaintiff stated she prepared food once a day. Id. at 264. Plaintiff claimed she only goes outside two to three times per month, and does not go out alone. Id. at 265. Plaintiff stated that she can "always" pay attention; she follows instructions "very well"; and she "only" has problems getting along with others when she is "going through my depressed moods." Id. at 267.

D. ALJ Hearing

1. Plaintiff's Testimony

At the October 22, 2012, hearing before the ALJ, Plaintiff testified she had her first back surgery in 1999 and her second in 2003. Id. at 57. She testified that, due to her back pain, she would not be able to sit or stand all day. Id. Plaintiff testified she used a cane at home, which was not prescribed by a doctor, "so if I get tired of walking, to balance me." Id. at 58.

Plaintiff testified she had gone to physical therapy and "finished, " but "they wanted me to do some more, ... because they weren't happy with the relief that I had gotten." Id. at 70. When asked whether she did "any exercise at home, " Plaintiff said she did "what the physical therapy taught me to do" - "just small stuff" like laying on her back and lifting her legs. Id. at 58. When the ALJ asked Plaintiff to explain a significant gap, from 2010 to 2011, in treatment by Dr. Balbas, Plaintiff was vague but essentially said Dr. Balbas did not give her the "option" of treatment during that time. Id. at 62.

Plaintiff testified she was hospitalized twice for depression in the past because she had tried to commit suicide. Id. at 63. Plaintiff could not recall when those hospitalizations occurred, but said they were "[n]ot recent[]" and occurred before the AOD. Id.

Plaintiff testified she has "difficulty bending over." Id. at 68. She said she dresses herself but is unable to bend over to put on her shoes. Id. Plaintiff said she bathes herself, drives, babysits her grandchildren occasionally, and goes to church every Sunday. Id. at 68-69. Plaintiff said she does not do outreach programs with her church because "I'm always in pain, so I stay home a lot." Id. at 68-69.

2. Statements by Plaintiff's Counsel

At the hearing, the ALJ asked Plaintiff's counsel whether she had "anything that shows greater limitations than what... is outlined by the [consultative examiners], " such as a "treating source opinion." Id. at 64. Plaintiff's counsel answered there was no treating source opinion. Id. Counsel then elaborated: "[W]e definitely tried to get [medical source opinions]. Her doctors just wouldn't fill them out. Some doctors have policies to that effect." Id. at 65.

The ALJ also asked Plaintiff's counsel whether there were "objective studies showing radiculitis or a basis for... radiculitis." Id. at 59. Counsel answered, "No." Id. The ALJ asked Plaintiff's counsel whether there were any treatment records showing a progression of Plaintiff's symptoms from 2003, the time of Plaintiff's second back surgery, until the AOD in 2009. Id. Counsel answered that there were only "six pages from 2003, " following Plaintiff's surgery. Id. at 60; see also id. at 346-51.

When the ALJ asked about the gap in Plaintiff's treatment by Dr. Balbas, Plaintiff's counsel offered a different explanation than Plaintiff did. Id. at 61. Whereas Plaintiff claimed Dr. Balbas did not give her the "option" of treatment during the gap, Plaintiff's counsel stated: "It looked to me from the record like there was a lot of mental health issues going on [during the gap] and not necessarily in the physical realm." Id.; see also id. at 62 ("It looks like... the treatment kind of shifted to a mental health perspective and then we're back re-establishing care with [Dr. Balbas].").

3. Vocational Expert's Testimony

The ALJ presented various descriptions of hypothetical individuals to a vocational expert ("VE"), and asked the expert what jobs such an individual would be able to perform. The first hypothetical individual was "a younger individual with a high school education" who could not "climb ladders, ropes or scaffolds, " but who was able to "lift and/or carry 20 pounds occasionally and ten pounds frequently"; to "bend, kneel, stoop, crouch and crawl on an occasional basis"; and to "occasionally climb ramps and stairs." Id. at 83. The ALJ asked the VE whether such an individual would "be able to do any of the claimant's past work." Id. The VE answered that such an individual would be able to work as a slot attendant and cashier as those positions are described in the Dictionary of Occupational Titles ("DOT"). Id.

The second hypothetical individual was the same as the first hypothetical individual, but was "limited to simple, repetitive tasks." Id. at 84. The ALJ asked the VE whether such an individual could "do any of the claimant's past work." Id. The VE answered, "The slot attendant position." Id.

The third hypothetical individual was the same as the first hypothetical individual, "except this individual would be able to lift and/or carry up to ten pounds only." Id. The ALJ asked the VE whether such an individual could "do any of the claimant's past work." Id. The VE answered no, but added that such an individual would be able to perform sedentary unskilled work, such as a mail-sorting or ticket-checking position. Id. at 84-85.

The fourth hypothetical individual was the same as the third hypothetical individual, "except this individual would be limited to simple, repetitive tasks." Id. at 85. The ALJ asked the VE whether such an individual would be able to perform the same jobs as the third hypothetical individual. Id. The VE answered yes. Id.

The fifth hypothetical individual was the same as the first hypothetical individual, "except this individual would require a sit/stand option." Id. at 85. The ALJ asked the VE whether such an individual would "be able to do any of the claimant's past work." Id. The VE answered no, but offered examples of other "unskilled positions with a sit/stand option" that the hypothetical individual could do. Id. at 85-86.

The sixth (and last) hypothetical individual described by the ALJ was "an individual with any of the limitations I've already described, except you would have an individual who is going to miss work occasionally due to depression, ... meaning up to one-third of the time." Id. at 86. The ALJ asked the VE whether there would "be work for that individual." Id. The VE answered, "There would not be any work." Id.

After the ALJ finished examining the VE, Plaintiff's counsel presented descriptions of additional hypothetical individuals to the VE, and asked whether those individuals would be able to work. As a seventh hypothetical individual, Plaintiff's counsel asked the VE to consider "the individual described in hypothetical number four, " but with the "additional limitations of occasional push/pull with the [bilateral] lower extremities" and "frequent reaching in all directions bilaterally and frequent fine and gross manipulation bilaterally." Id. at 87. The VE said the seventh hypothetical individual would not be able to do the same jobs as the fourth hypothetical individual, but would be able to be a "call out operator" or "surveillance system monitor." Id. at 87-88.

Plaintiff's counsel then described an eighth hypothetical individual, who was the same as the seventh but who "should not be responsible for the safety of others [or do any] jobs that would require any hyper vigilance." Id. at 88. The VE said the eighth hypothetical individual could still be a call out operator, but could not be a surveillance system monitor. Id.

Plaintiff's counsel then described a ninth hypothetical individual, who was the same as the eighth but who required "a sit/stand option." Id. at 89. The VE said there would be no jobs for such an individual. Id. Plaintiff's counsel then said, "That's all I have, " and made a brief closing argument. Id.

III.

STANDARD FOR EVALUATING DISABILITY

In order to qualify for DIB or SSI, a claimant must demonstrate a medically determinable physical or mental impairment that (1) prevents her from engaging in substantial gainful activity and (2) is expected to result in death or to last for a continuous period of at least twelve months. Reddick v. Chater, 157 F.3d 715, 721 (9th Cir. 1998). The impairment must render the claimant incapable of performing the work she previously performed and incapable of performing any other substantial gainful employment that exists in the national economy. Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999).

To decide if a claimant is disabled, and therefore entitled to benefits, an ALJ conducts a five-step inquiry. 20 C.F.R. §§ 404.1520, 416.920. The steps are:

(1) Is the claimant presently engaged in substantial gainful activity? If so, the claimant is found not disabled. If not, proceed to step two.
(2) Is the claimant's impairment severe? If not, the claimant is found not disabled. If so, proceed to step three.
(3) Does the claimant's impairment meet or equal one of the specific impairments listed in 20 C.F.R. Part 404, Subpart P, Appendix 1? If so, the claimant is found disabled. If not, proceed to step four.[2]
(4) Is the claimant capable of performing work she has done in the past? If so, the claimant is found not disabled. If not, proceed to step five.
(5) Is the claimant able to do any other work? If not, the claimant is found disabled. If so, the claimant is found not disabled.

Tackett, 180 F.3d at 1098-99; see also Bustamante v. Massanari, 262 F.3d 949, 953-54 (9th Cir. 2001); 20 C.F.R. §§ 404.1520(b)-(g)(1), 416.920(b)-(g)(1).

The claimant has the burden of proof at steps one through four, and the Commissioner has the burden of proof at step five. Bustamante, 262 F.3d at 953-54. Additionally, the ALJ has an affirmative duty to assist the claimant in developing the record at every step of the inquiry. Id. at 954. If, at step four, the claimant meets her burden of establishing an inability to perform past work, the Commissioner must show that the claimant can perform some other work that exists in "significant numbers" in the national economy, taking into account the claimant's residual functional capacity ("RFC"), age, education, and work experience. Tackett, 180 F.3d at 1098, 1100; Reddick, 157 F.3d at 721; 20 C.F.R. §§ 404.1520(g)(1), 416.920(g)(1).

IV.

THE ALJ'S DECISION

A. Step One

At step one, the ALJ found Plaintiff "has not engaged in substantial gainful activity since March 30, 2009, the alleged onset date" of disability. AR at 33 (citations omitted).

B. Step Two

At step two, the ALJ found Plaintiff "has the following severe impairments: status post lumbar diskectomy and fusion with residual pain and limitation of range of motion." Id. (citations omitted). The ALJ found the following impairments of Plaintiff's non-severe: gastroesophageal reflux disease (GERD), obesity, and depression. Id. at 33-34.

C. Step Three

The ALJ found Plaintiff did not have an impairment that meets or equals any of the impairments listed in 20 C.F.R. Part 404, Subpart P, Appendix 1. Id. at 36.

D. RFC Determination

The ALJ found Plaintiff "has the residual functional capacity to perform light work as defined in 20 C.F.R. 404.1567(b) and 416.967(b) except she can lift and/or carry 20 pounds occasionally and 10 pounds frequently; she can occasionally bend, kneel, stoop, crouch, and crawl; she can occasionally climb ramps and stairs; and she cannot climb ladders, ropes, or scaffolds." Id. As part of the RFC assessment, the ALJ found that Plaintiff's "subjective complaints are less than fully credible and the objective medical evidence does not support the alleged severity of symptoms." Id. at 41. The ALJ's analysis in support of this credibility determination spans approximately five pages. See id. at 37-41.

One reason the ALJ found Plaintiff's claim of total disability not fully credible was her description of personal activities, which included doing chores, cooking, going to church weekly, and babysitting occasionally. Id. at 37. The ALJ found that "the claimant's description of her daily activities is not inconsistent with the residual functional capacity for a range of light work activities that I have assessed." Id. at 37.

Another reason the ALJ found Plaintiff's disability claim not fully credible was the absence of evidence that Plaintiff's back condition worsened between 2003, when she had her second back surgery, and the AOD of March 2009. The ALJ noted Plaintiff returned to work after both of her back surgeries and "continued to work until March 2009 until she allegedly quit because she could no longer do the work because of [her] back pain." Id. The ALJ stated: "However, the claimant's allegedly disabling back pain was present at approximately the same level of severity prior to the alleged onset date and there is no evidence of trauma or exacerbation of the pain at or prior to the alleged onset date." Id. (citing AR at 407). The ALJ noted Plaintiff "did not start going to rehabilitation" at CCRI for her lower back pain "until September 2010, " and that she did not go to CCRI at all between December 2011 and August 2012. Id. at 38-39. After summarizing Plaintiff's treatment at CCRI, the ALJ concluded: "While the claimant has complained that her pain level appears to be increasing with constant pain, the objective findings have not changed. The claimant's condition does not show pertinent deterioration or any additional medical difficulties." Id. at 39.

Another reason the ALJ found Plaintiff's claim not fully credible was that Plaintiff did not begin physical therapy for lower back pain until August 14, 2012, more than three years after the AOD. Id. (discussing AR at 542-61). In addition, the ALJ, after summarizing Plaintiff's treatment notes, concluded physical therapy was "generally effective at easing the claimant's pain and improving her capacities." Id. The ALJ noted, for example, that Plaintiff began to see significant improvement after only a couple of weeks of physical therapy. Id.

Another reason the ALJ found Plaintiff's claim of disability less than fully credible was Plaintiff "was never seen by, or referred to, an orthopedist or a neurologist for her back pain or reported radiculopathy." Id. "Notably, " the ALJ stated, "other than going to physical therapy and a rehabilitation physician for [epidural steroid] injections, the claimant has only received her treatment from a general practitioner." Id. The ALJ stated that, judging from the Administrative Record, it appeared Dr. Sharif "did not perform physical examinations or diagnostic testing, " but instead relied on "the claimant's subjective complaints of back pain and leg pain that was allegedly getting worse." Id. The ALJ further noted Dr. Mark Ramirez's notes from June 26, 2012, indicated "that physical examination of the claimant was unremarkable." Id.

Another reason the ALJ found Plaintiff's claim of disability less than fully credible was that Plaintiff had generally received only "conservative treatment consisting of pain medications, physical therapy, and epidural steroid injections." Id. at 39. Moreover, the ALJ noted that, according to Plaintiff's medical record, these "treatment modalities... have been generally successful in controlling" Plaintiff's "allegedly disabling symptoms." Id. at 40.

Finally, the ALJ also noted the absence of a treating source statement that directly addressed whether Plaintiff was disabled. The ALJ stated: "Notably, there is no medical source statement from any treating source suggesting functional limitations from the claimant's physical impairments and no statement by a physician that the claimant cannot work." Id. at 41.

E. Step Four

At step four, the ALJ found Plaintiff "is capable of performing past relevant work as a cashier and a slot attendant." Id.

F. Step Five

The ALJ did not analyze step five.

V.

PLAINTIFF'S CLAIMS

Plaintiff asserts the following claims:

1. The ALJ failed to develop the record.
2. The ALJ's RFC assessment is unsupported by substantial evidence.
3. The ALJ's credibility determination is legally erroneous and unsupported by substantial evidence.
4. The ALJ's step five determination is unsupported by substantial evidence.[3] ECF No. 18 at 1.

VI.

STANDARD OF REVIEW

Pursuant to 42 U.S.C. § 405(g), a district court may review the Commissioner's decision to deny benefits. This Court "may set aside a denial of benefits if it is not supported by substantial evidence or it is based on legal error." Pinto v. Massanari, 249 F.3d 840, 844 (9th Cir. 2001) (citation and internal quotation marks omitted).

"Substantial evidence" is evidence a reasonable person might accept as adequate to support a conclusion. Lingenfelter v. Astrue, 504 F.3d 1028, 1035 (9th Cir. 2007). It is more than a scintilla but less than a preponderance. Id. To determine whether substantial evidence supports a finding, the reviewing court "must review the administrative record as a whole, weighing both the evidence that supports and the evidence that detracts from the Commissioner's conclusion." Reddick v. Chater, 157 F.3d 715, 720 (9th Cir. 1998); see also Hill v. Astrue, 698 F.3d 1153, 1159 (9th Cir. 2012) (stating that a reviewing court "may not affirm simply by isolating a specific quantum of supporting evidence") (citations and internal quotation marks omitted). "If the evidence can reasonably support either affirming or reversing, " the reviewing court "may not substitute its judgment" for that of the Commissioner. Reddick, 157 F.3d at 720-21; see also Molina v. Astrue, 674 F.3d 1104, 1111 (9th Cir. 2012) ("Even when the evidence is susceptible to more than one rational interpretation, we must uphold the ALJ's findings if they are supported by inferences reasonably drawn from the record.").

The Court may review only the reasons stated by the ALJ in his decision "and may not affirm the ALJ on a ground upon which he did not rely." Orn v. Astrue, 495 F.3d 625, 630 (9th Cir. 2007). If the ALJ erred, the error may only be considered harmless if it is "clear from the record" that the error was "inconsequential to the ultimate nondisability determination." Robbins, 466 F.3d at 885 (citation and internal quotation marks omitted).

VII.

DISCUSSION

A. The ALJ Did Not Have a Duty to Request Additional Information from Plaintiff's Treating Sources.

1. Background

Plaintiff argues the "ALJ erred by failing to contact Ms. Quiroz's treating health providers for treating source opinions." ECF No. 18 at 10. Plaintiff suggests the ALJ was required to request such opinions because Plaintiff's counsel "informed the ALJ at the hearing that the treating sources would not fill out the requested medical source statements." Id. at 11 (citing AR at 65); see also id. at 12 ("The ALJ should have developed the record to fully understand Ms. Quiroz's limitations and erred in not requesting or issuing a subpoena for such opinion evidence, especially given the fact that he was informed of Ms. Quiroz's attorney's requests to the physicians to get said opinion evidence directly.").

Plaintiff specifically faults the ALJ for failing to request opinions from Dr. Sharif, Dr. Balbas, and MFI. Id. at 11-12. Plaintiff does not articulate how the records that were already before the ALJ from Dr. Balbas and MFI were inadequate. However, Plaintiff argues that, because the ALJ failed to request a treating physician opinion from Dr. Sharif, the ALJ improperly concluded Dr. Sharif's "reports fail to reveal significant clinical and laboratory abnormalities that would be expected for a more incapacitated individual.'" Id. at 11 (quoting AR at 29). Plaintiff argues: "Dr. Sharif must have believed Ms. Quiroz experienced limitations from her physical impairments which is evident given the types of medications he prescribed to relieve her symptoms." Id. As the Court understands it, Plaintiff argues (1) the ALJ assumed, based on an inadequate record, Dr. Sharif did not believe Plaintiff "experienced limitations"; and (2) based on this incorrect assumption, the ALJ concluded Dr. Sharif's records "fail to reveal" evidence of incapacitation.

2. Legal Standard

"The ALJ always has a special duty to fully and fairly develop the record and to assure that the claimant's interests are considered." Celaya v. Halter, 332 F.3d 1177, 1183 (9th Cir. 2003) (citation and internal quotation marks omitted). "[I]t is incumbent upon the ALJ to scrupulously and conscientiously probe into, inquire of, and explore for all the relevant facts." Id. (citation and internal quotation marks omitted).

"[A]n ALJ's duty to develop the record further is triggered only when there is ambiguous evidence or when the record is inadequate to allow for proper evaluation of the evidence." McLeod v. Astrue, 640 F.3d 881, 885 (9th Cir. 2010) (footnote and internal quotation marks omitted); see also Thomas v. Barnhart, 278 F.3d 947, 958 (9th Cir. 2002) ("[T]he requirement for additional information is triggered only when the evidence from the treating medical source is inadequate to make a determination as to the claimant's disability."). "The ALJ may discharge this duty in several ways, including subpoenaing the claimant's physicians, submitting questions to the claimant's physicians, continuing the hearing, or keeping the record open after the hearing to allow supplementation of the record." Tonapetyan v. Halter, 242 F.3d 1144, 1150 (9th Cir. 2001) (citations omitted).

3. Application

Plaintiff argues that the ALJ, in concluding Dr. Sharif's records "fail to reveal" evidence of incapacitation, improperly assumed, based on an inadequate record, Dr. Sharif did not believe Plaintiff "experienced limitations." ECF No. 18 at 11. This argument is meritless. First, "[i]t appears from the record that substantially all of [Dr. Sharif's] medical records throughout the time [he] treated [Plaintiff] were before the ALJ." McLeod, 640 F.3d at 884. Plaintiff has not demonstrated there was anything "unclear or ambiguous" about those records. Id. Thus, "[t]he ALJ had no duty to request more information from" Dr. Sharif. Id.

Second, the ALJ's conclusion regarding Dr. Sharif's records does not demonstrate the ALJ assumed anything about Dr. Sharif's beliefs. A doctor's belief that a claimant experiences limitations does not preclude an ALJ from finding that the doctor's records do not reveal evidence of incapacitation. On the contrary, ALJs frequently find that a limitation does not constitute a disability. See, e.g., Verduzco v. Apfel, 188 F.3d 1087, 1089 (9th Cir. 1999) ("Although [he] clearly does suffer from diabetes, high blood pressure, and arthritis, there is no evidence to support his claim that those impairments are severe.'"); Matthews v. Shalala, 10 F.3d 678, 680 (9th Cir. 1993) ("The mere existence of an impairment is insufficient proof of a disability.") (citation omitted).

Similarly unavailing is Plaintiff's argument that the ALJ had a duty to request medical source statements from Dr. Sharif, Dr. Balbas, and MFI simply because those practitioners allegedly refused to provide such statements to Plaintiff. Plaintiff does not cite any authority, and the Court is not aware of any, requiring an ALJ to request a source statement whenever a plaintiff cannot obtain one. As previously stated, "an ALJ's duty to develop the record further is triggered only when there is ambiguous evidence or when the record is inadequate to allow for proper evaluation of the evidence." McLeod, 640 F.3d at 885 (emphasis added). Plaintiff has failed to demonstrate the evidence before the ALJ was ambiguous or inadequate. Thus, the ALJ was not required to request additional statements from Plaintiff's treating sources.

B. The ALJ's RFC Assessment and Step Four Determination Were Supported by Substantial Evidence.

1. Background

Plaintiff argues the ALJ's RFC assessment was not supported by substantial evidence. Specifically, Plaintiff challenges the ALJ's determination that Plaintiff can "occasionally bend.'" ECF No. 18 at 13 (quoting AR at 36). According to Plaintiff's motion for summary judgment: "Although [Plaintiff's] pain is managed from time to time, [she] still exhibits an inability to bend over and this limitation is substantiated by the objective medical evidence, namely by Dr. Balbas and Ms. Oltman's medical observations and notes." Id. at 14. Plaintiff argues "the ALJ erred in finding that Ms. Quiroz can occasionally bend and this matter requires remand for a proper RFC determination." Id.

Plaintiff also argues the ALJ's erroneous RFC determination was not harmless. According to Plaintiff, as a result of the faulty determination, the ALJ posed hypothetical questions to the VE that failed "to account for all of Ms. Quiroz's limitations." Id. at 17. The ALJ then relied on the VE's responses to those "incomplete" hypothetical questions to conclude, at step four, Plaintiff could perform past relevant work. Id. Thus, according to Plaintiff, the ALJ's RFC assessment tainted his determination at step four.

2. Discussion

The ALJ's finding that Plaintiff can occasionally bend was supported by substantial evidence. Contrary to Plaintiff's contention, Dr. Balbas's and Ms. Oltman's notes did not contradict the ALJ's finding. Neither practitioner's notes state Plaintiff cannot bend; to the contrary, they both affirmatively state Plaintiff can bend, albeit not as much as someone who is unimpaired. Dr. Balbas's report stated that, as of December 15, 2011, Plaintiff's range of lumbar flexion was limited to 30 degrees. AR at 516. Ms. Oltman's report stated that, as of September 14, 2012, Plaintiff's range of lumbar flexion was between 20 and 39 degrees - with the ideal range being greater than 50 degrees. Id. at 545. The ALJ took these findings into account, noting at step two that Plaintiff's lumbar "range of motion" is limited. AR at 33. Thus, contrary to Plaintiff's contention, Dr. Balbas's and Ms. Oltman's reports did not contradict the ALJ's conclusion that Plaintiff can occasionally bend.

Because the ALJ's RFC assessment was not erroneous, his hypothetical questions to the VE did not, as Plaintiff contends, "fail[] to account for all of Ms. Quiroz's limitations."[4] ECF No. 18 at 17. In the alternative, assuming arguendo the ALJ's finding that Plaintiff can occasionally bend is erroneous, the finding was harmless because Plaintiff's past relevant jobs as a cashier and slot attendant do not require bending. See DOT §§ 211.462-018, 342.667-912.

C. The ALJ's Credibility Determination Was Neither Legally Erroneous Nor Unsupported by Substantial Evidence.

1. Background

Plaintiff challenges the ALJ's determination that the "claimant's subjective complaints are less than fully credible and the objective medical evidence does not support the alleged severity of symptoms.'" ECF No. 18 at 14 (quoting AR at 41). Plaintiff argues this determination "is legally erroneous and unsupported by substantial evidence." Id. Plaintiff's motion for summary judgment argues she "should have been found credible, " given "the frequency of her symptoms, persistence in seeking medical attention to absolve her pain and limitations, [and] corroboration by her testimonial and medical records." Id. at 16.

2. Legal Standard

"In assessing the credibility of a claimant's testimony regarding subjective pain or the intensity of symptoms, the ALJ engages in a two-step analysis." Molina, 674 F.3d at 1112 (citation omitted). "First, the ALJ must determine whether there is objective medical evidence of an underlying impairment which could reasonably be expected to produce the pain or other symptoms alleged." Id. (citations and internal quotation marks omitted). "If the claimant has presented such evidence, and there is no evidence of malingering, then the ALJ must give specific, clear, and convincing reasons in order to reject the claimant's testimony about the severity of the symptoms." Id. (citations and internal quotation marks omitted). "At the same time, the ALJ is not required to believe every allegation of disabling pain, or else disability benefits would be available for the asking...." Id. (citations and internal quotation marks omitted).

"In evaluating the claimant's testimony, the ALJ may use ordinary techniques of credibility evaluation." Id. (citations and internal quotation marks omitted). "For instance, the ALJ may consider inconsistencies either in the claimant's testimony or between the testimony and the claimant's conduct; unexplained or inadequately explained failure to seek treatment or to follow a prescribed course of treatment; and whether the claimant engages in daily activities consistent with the alleged symptoms...." Id. (citations and internal quotation marks omitted). "While a claimant need not vegetate in a dark room in order to be eligible for benefits, the ALJ may discredit a claimant's testimony when the claimant reports participation in everyday activities indicating capacities that are transferable to a work setting...." Id. (citations and internal quotation marks omitted). "Even where those activities suggest some difficulty functioning, they may be grounds for discrediting the claimant's testimony to the extent that they contradict claims of a totally debilitating impairment." Id. (citations and internal quotation marks omitted).

"When evidence reasonably supports either confirming or reversing the ALJ's decision, we may not substitute our judgment for that of the ALJ." Ghanim v. Colvin, 763 F.3d 1154, 1164 (9th Cir. 2014) (citation and internal quotation marks omitted). Even if "the ALJ erred in relying on one of several reasons in support of an adverse credibility determination, " the error is considered harmless if "the ALJ's remaining reasoning and ultimate credibility determination were adequately supported by substantial evidence in the record." Carmickle v. Comm'r, Soc. Sec. Admin., 533 F.3d 1155, 1162 (9th Cir. 2008) (citation and emphasis omitted). "So long as there remains substantial evidence supporting the ALJ's conclusions on credibility and the error does not negate the validity of the ALJ's ultimate credibility conclusion, such is deemed harmless and does not warrant reversal." Id. (citations, internal quotation marks, and alterations omitted); see also id. at 1163 ("Here, the ALJ's decision finding [the claimant] less than fully credible is valid, despite the [ALJ's] errors....").

3. Application

The ALJ gave "specific, clear, and convincing reasons" for rejecting Plaintiff's claim that she cannot work. Molina, 674 F.3d at 1112. After an extensive review of the record, the ALJ concluded Plaintiff's claim of total disability beginning in March 2009 was an exaggeration. See AR at 37-41. In support of this finding, the ALJ cited, inter alia, Plaintiff's daily activities; Plaintiff's failure to go to CCRI for rehabilitation until September 2010; Plaintiff's failure to begin physical therapy until August 2012; the absence of evidence that Plaintiff's back condition worsened before she quit working in March of 2009; Plaintiff's reliance primarily on general practitioners for treatment; Plaintiff's positive response to relatively conservative treatment;[5] and the absence of any medical opinion - from either a treating or examining source - that Plaintiff is unable to work. See supra Section VI.D. Each of these considerations was valid. See, e.g., Molina, 674 F.3d at 1112 (stating a claimant's "everyday activities" and "failure to seek treatment" may "contradict claims of a totally debilitating impairment"); Magallanes v. Bowen, 881 F.2d 747, 755 (9th Cir. 1989) (upholding ALJ's determination that Plaintiff did not have a disabling back impairment before a particular date, where the ALJ "pointed out the absence of objective medical findings or evidence of" impairment prior to that date); Meanel v. Apfel, 172 F.3d 1111, 1114 (9th Cir. 1999) ("[T]he ALJ properly considered [claimant's doctor's] failure to prescribe, and [claimant's] failure to request, any serious medical treatment for [claimant's] supposedly excruciating pain.") (citation omitted); Morgan v. Comm'r of Soc. Sec. Admin., 169 F.3d 595, 599 (9th Cir. 1999) ("[C]ontrary to [the claimant's] claims of lack of improvement, [his doctor] reported that [his] mental symptoms improved with the use of medication."); Verduzco, 188 F.3d at 1089 ("None of the [claimant's] treating or examining physicians ever indicated that [he] was disabled.").

Plaintiff challenges the ALJ's credibility determination, citing "the frequency of her symptoms, persistence in seeking medical attention to absolve her pain and limitations, " and the "corroboration by her testimonial and medical records." ECF No. 18 at 16. However, Plaintiff does not specifically challenge any of the ALJ's findings or any of the evidence the ALJ cited. Even assuming certain findings or certain evidence the ALJ cited are invalid, his credibility determination was supported by substantial evidence. See Carmickle, 533 F.3d at 1162-63. At most, Plaintiff has shown that the evidence "reasonably supports either confirming or reversing the ALJ's decision, " in which case the decision must be affirmed. Ghanim, 763 F.3d at 1164.

VIII.

CONCLUSION

IT IS THEREFORE ORDERED that judgment be entered AFFIRMING the decision of the Commissioner.


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