Todd v. Commissioner of Social Security, No. 2:2017cv00199 - Document 15 (E.D. Wash. 2018)

Court Description: ORDER GRANTING ECF No. 13 DEFENDANT'S MOTION FOR SUMMARY JUDGMENT; denying ECF No. 12 Plaintiff's Motion for Summary Judgment. FILE CLOSED. Signed by Senior Judge Robert H. Whaley. (TR, Case Administrator)

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Todd v. Commissioner of Social Security Doc. 15 1 2 FI LED I N THE U.S. DI STRI CT COURT EASTERN DI STRI CT OF WASHI NGTON 3 May 11, 2018 SEAN F. MCAVOY, CLERK 4 5 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF WASHINGTON 6 7 THERESA ANN TODD, 8 Plaintiff, 9 v. 10 11 12 13 14 15 16 17 18 19 COMMISSIONER OF SOCIAL SECURITY, No. 2:17-CV-00199-RHW ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT Defendant. Before the Court are the parties’ cross-motions for summary judgment, ECF Nos. 12, 13. Plaintiff Theresa Ann Todd brings this action seeking judicial review, pursuant to 42 U.S.C. § 405(g), of the Commissioner’s final decision, which denied her applications for Disability Insurance Benefits and Supplemental Security Income under Titles II & XVI of the Social Security Act, 42 U.S.C §§ 401-434 & 1381-1383F. After reviewing the administrative record and briefs filed by the parties, the Court is now fully informed. For the reasons set forth below, the 20 ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 1 Dockets.Justia.com 1 Court GRANTS Defendant’s Motion for Summary Judgment and DENIES Ms. 2 Todd’s Motion for Summary Judgment. 3 I. Jurisdiction 4 Ms. Todd filed her applications for supplemental security income and 5 disability insurance benefits on July 16, 2013. AR 205-10. Her alleged onset date 6 is May 31, 2013. AR 205. Her application was initially denied on September 25, 7 2013, AR 120-23, and on reconsideration on January 29, 2014, AR 131-48. 8 Administrative Law Judge (“ALJ”) Virginia M. Robinson held a hearing on 9 August 6, 2015. AR 38-67. On January 28, 2016, ALJ Robinson issued a decision 10 finding Ms. Todd ineligible for disability benefits. AR 20-31. The Appeals Council 11 denied Ms. Todd’s request for review on April 6, 2017, AR 1-5, making the ALJ’s 12 ruling the “final decision” of the Commissioner. 13 Ms. Todd timely filed the present action challenging the denial of benefits 14 on June 6, 2017. ECF No. 6. Accordingly, Ms. Todd’s claims are properly before 15 this Court pursuant to 42 U.S.C. § 405(g). 16 II. 17 The Social Security Act defines disability as the “inability to engage in any Sequential Evaluation Process 18 substantial gainful activity by reason of any medically determinable physical or 19 mental impairment which can be expected to result in death or which has lasted or 20 can be expected to last for a continuous period of not less than twelve months.” 42 ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 2 1 U.S.C. §§ 423(d)(1)(A), 1382c(a)(3)(A). A claimant shall be determined to be 2 under a disability only if the claimant’s impairments are of such severity that the 3 claimant is not only unable to do his previous work, but cannot, considering 4 claimant's age, education, and work experience, engage in any other substantial 5 gainful work that exists in the national economy. 42 U.S.C. §§ 423(d)(2)(A) & 6 1382c(a)(3)(B). 7 The Commissioner has established a five-step sequential evaluation process 8 for determining whether a claimant is disabled within the meaning of the Social 9 Security Act. 20 C.F.R. §§ 404.1520(a)(4) & 416.920(a)(4); Lounsburry v. 10 11 Barnhart, 468 F.3d 1111, 1114 (9th Cir. 2006). Step one inquires whether the claimant is presently engaged in “substantial 12 gainful activity.” 20 C.F.R. §§ 404.1520(b) & 416.920(b). Substantial gainful 13 activity is defined as significant physical or mental activities done or usually done 14 for profit. 20 C.F.R. §§ 404.1572 & 416.972. If the claimant is engaged in 15 substantial activity, he or she is not entitled to disability benefits. 20 C.F.R. §§ 16 404.1571 & 416.920(b). If not, the ALJ proceeds to step two. 17 Step two asks whether the claimant has a severe impairment, or combination 18 of impairments, that significantly limits the claimant’s physical or mental ability to 19 do basic work activities. 20 C.F.R. §§ 404.1520(c) & 416.920(c). A severe 20 impairment is one that has lasted or is expected to last for at least twelve months, ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 3 1 and must be proven by objective medical evidence. 20 C.F.R. §§ 404.1508-09 & 2 416.908-09. If the claimant does not have a severe impairment, or combination of 3 impairments, the disability claim is denied, and no further evaluative steps are 4 required. Otherwise, the evaluation proceeds to the third step. 5 Step three involves a determination of whether any of the claimant’s severe 6 impairments “meets or equals” one of the listed impairments acknowledged by the 7 Commissioner to be sufficiently severe as to preclude substantial gainful activity. 8 20 C.F.R. §§ 404.1520(d), 404.1525, 404.1526 & 416.920(d), 416.925, 416.926; 9 20 C.F.R. § 404 Subpt. P. App. 1 (“the Listings”). If the impairment meets or 10 equals one of the listed impairments, the claimant is per se disabled and qualifies 11 for benefits. Id. If the claimant is not per se disabled, the evaluation proceeds to 12 the fourth step. 13 Step four examines whether the claimant’s residual functional capacity 14 enables the claimant to perform past relevant work. 20 C.F.R. §§ 404.1520(e)-(f) 15 & 416.920(e)-(f). If the claimant can still perform past relevant work, the claimant 16 is not entitled to disability benefits and the inquiry ends. Id. 17 Step five shifts the burden to the Commissioner to prove that the claimant is 18 able to perform other work in the national economy, taking into account the 19 claimant’s age, education, and work experience. See 20 C.F.R. §§ 404.1512(f), 20 404.1520(g), 404.1560(c) & 416.912(f), 416.920(g), 416.960(c). To meet this ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 4 1 burden, the Commissioner must establish that (1) the claimant is capable of 2 performing other work; and (2) such work exists in “significant numbers in the 3 national economy.” 20 C.F.R. §§ 404.1560(c)(2); 416.960(c)(2); Beltran v. Astrue, 4 676 F.3d 1203, 1206 (9th Cir. 2012). 5 6 III. Standard of Review A district court's review of a final decision of the Commissioner is governed 7 by 42 U.S.C. § 405(g). The scope of review under § 405(g) is limited, and the 8 Commissioner's decision will be disturbed “only if it is not supported by 9 substantial evidence or is based on legal error.” Hill v. Astrue, 698 F.3d 1144, 10 1158-59 (9th Cir. 2012) (citing § 405(g)). Substantial evidence means “more than 11 a mere scintilla but less than a preponderance; it is such relevant evidence as a 12 reasonable mind might accept as adequate to support a conclusion.” Sandgathe v. 13 Chater, 108 F.3d 978, 980 (9th Cir.1997) (quoting Andrews v. Shalala, 53 F.3d 14 1035, 1039 (9th Cir. 1995)) (internal quotation marks omitted). In determining 15 whether the Commissioner’s findings are supported by substantial evidence, “a 16 reviewing court must consider the entire record as a whole and may not affirm 17 simply by isolating a specific quantum of supporting evidence.” Robbins v. Soc. 18 Sec. Admin., 466 F.3d 880, 882 (9th Cir. 2006) (quoting Hammock v. Bowen, 879 19 F.2d 498, 501 (9th Cir. 1989)). 20 ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 5 1 In reviewing a denial of benefits, a district court may not substitute its 2 judgment for that of the ALJ. Matney v. Sullivan, 981 F.2d 1016, 1019 (9th Cir. 3 1992). If the evidence in the record “is susceptible to more than one rational 4 interpretation, [the court] must uphold the ALJ's findings if they are supported by 5 inferences reasonably drawn from the record.” Molina v. Astrue, 674 F.3d 1104, 6 1111 (9th Cir. 2012); see also Thomas v. Barnhart, 278 F.3d 947, 954 (9th Cir. 7 2002) (if the “evidence is susceptible to more than one rational interpretation, one 8 of which supports the ALJ’s decision, the conclusion must be upheld”). Moreover, 9 a district court “may not reverse an ALJ's decision on account of an error that is 10 harmless.” Molina, 674 F.3d at 1111. An error is harmless “where it is 11 inconsequential to the [ALJ's] ultimate nondisability determination.” Id. at 1115. 12 The burden of showing that an error is harmful generally falls upon the party 13 appealing the ALJ's decision. Shinseki v. Sanders, 556 U.S. 396, 409–10 (2009). 14 IV. Statement of Facts 15 The facts of the case are set forth in detail in the transcript of proceedings, 16 and accordingly, are only briefly summarized here. Ms. Todd was 60 years old at 17 the time of her hearing. AR 205. She has completed school through the ninth 18 grade. AR 224. Her previous work experience includes caregiving, housekeeping, 19 and office management. AR 225. 20 // ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 6 1 2 3 V. The ALJ’s Findings The ALJ determined that Ms. Todd was not under a disability within the meaning of the Act since May 31, 2013, her alleged onset date. AR 20-31. 4 At step one, the ALJ found that Ms. Todd had not engaged in substantial 5 gainful activity since May 31, 2013, her alleged onset date (citing 20 C.F.R. §§ 6 404.1571 et seq. and 416.971 et seq.). AR 22. 7 At step two, the ALJ found Ms. Todd had the following severe 8 impairments: degenerative disc disease; osteoarthritis; hearing loss; obesity; 9 chronic obstructive pulmonary disorder; and edema (citing 20 C.F.R. §§ 10 404.1520(c) and 416.920(c)). AR 22. 11 At step three, the ALJ found that Ms. Todd did not have an impairment or 12 combination of impairments that meets or medically equals the severity of one of 13 the listed impairments in 20 C.F.R. § 404, Subpt. P, App. 1. AR 23-26. 14 At step four, the ALJ found Ms. Todd had the following residual functional 15 capacity. She can perform light work as defined in 20 C.F.R. §§ 404.1567(b) and 16 416.967(b) with the following limitations: she can lift or carry up to 20 pounds 17 occasionally and up to 10 pounds frequently; she can stand or walk for 18 approximately 6 hours and sit for approximately 6 hours per 8 hour work week 19 with normal breaks; she can occasionally climb ramps or stairs; she can never 20 climb ladders, ropes, or scaffolds; she can occasionally stoop, kneel, crouch, or ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 7 1 crawl; she can frequently handle and finger; she can occasionally reach overhead; 2 and she must avoid concentrated exposure to excessive noise, vibration, and 3 workplace hazards such as dangerous machinery or working at unprotected 4 heights. AR 26. 5 The ALJ determined that Ms. Todd is capable of performing past relevant 6 work as a cleaner (housekeeping) and hotel clerk. AR 31. The ALJ found she was 7 capable of performing this work as it is actually and generally performed. Id. 8 9 Because the ALJ found Ms. Todd capable of performing her past relevant work at step four, the ALJ did not perform a step five analysis to determine 10 whether in light of her age, education, work experience, and residual functional 11 capacity, there are jobs that exist in significant numbers in the national economy 12 that Ms. Todd can perform. 13 VI. Issues for Review 14 Ms. Todd argues that the Commissioner’s decision is not free of legal error 15 and not supported by substantial evidence. Specifically, she argues the ALJ erred 16 by: (1) failing to properly weigh the opinion of Mara L. Fusfield, ARNP; (2) 17 failing to find Ms. Todd has medically-determinable fibromyalgia; (3) failing to 18 find Ms. Todd met or equaled Listing 1.02 when the ALJ failed to consider the 19 opinion of Dr. Rox C. Burkett, M.D.; (4) improperly finding Ms. Todd could return 20 to her past relevant work and was not disabled under the Grid Rules; and (5) ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 8 1 discrediting Ms. Todd without specific, clear, and convincing reasons to do so. 2 ECF No. 12 at 4. 3 VII. Discussion 4 A. The ALJ did not err in the weighing of the opinion of Nurse Fusfield. 5 The ALJ gave little weight to the opinions in the record from Nurse Mara L. 6 Fusfield, ARNP. AR 30. First, Nurse Fusfield provided a Physical Functional 7 Evaluation for Washington State Department of Social and Health Services in July 8 2013. AR 316-18. Nurse Fusfield stated that Ms. Todd was severely limited and 9 unable to meet the demands of sedentary work. AR 318. The ALJ gave little 10 weight to this opinion because it was unsupported by the record and because Nurse 11 Fusfield noted a significant amount of objective testing was needed, so the ALJ 12 classified the opinion as “tentative.” AR 30, 317, 318. 13 Second, Nurse Fusfield also stated in January 2015 that she would assist 14 with disability paperwork because she believed Ms. Todd to be disabled. AR 504. 15 The ALJ also rejected this statement both because it “infringes on an issue reserved 16 to the Commissioner” and because it conflicts with Ms. Todd’s activities of daily 17 living. AR 30. 18 Finally, the ALJ also gave very little weight to the May 2015 Physical 19 Functional Evaluation by Nurse Fusfield that again Ms. Todd was severely limited 20 and unable to meet the demands of sedentary work. AR 30, 542-46. The ALJ ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 9 1 rejected the opinion for “the same reasons” as the other opinions, and she also 2 noted that Nurse Fusfield did not explain how or why Ms. Todd’s condition is 3 expected to last 999 months. AR 30, 544. 4 The opinions of Nurse Fusfield are classified as “other source” opinions. 5 “Other sources” for opinions include nurse practitioners, physicians' assistants, 6 therapists, teachers, social workers, spouses, and other non-medical sources. 20 7 C.F.R. §§ 404.1513(d), 416.913(d). An ALJ is required to “consider observations 8 by non-medical sources as to how an impairment affects a claimant's ability to 9 work.” Sprague v. Bowen, 812 F.2d 1226, 1232 (9th Cir.1987). Non-medical 10 testimony can never establish a diagnosis or disability absent corroborating 11 competent medical evidence. Nguyen v. Chater, 100 F.3d 1462, 1467 (9th 12 Cir.1996). An ALJ is obligated to give reasons germane to “other source” 13 testimony before discounting it. Dodrill v. Shalala, 12 F.3d 915 (9th Cir.1993). 14 Inconsistency with evidence in the medical record is a germane reason to 15 reject other source testimony. Bayliss v. Barnhart, 427 F.3d 1211, 1218 (9th Cir. 16 2005). Despite finding Ms. Todd severely limited, the record shows that Nurse 17 Fusfield described Ms. Todd as doing “a lot better” due to her medication on 18 multiple occasions. AR 348-49, 438. Additionally, there was some diagnostic 19 testing made prior to the May 2015 statement, and while these tests show some 20 evidence of limitations, they do not support the severe limitations opined by Nurse ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 10 1 Fusfield. AR 322-25. These inconsistencies are germane reasons to reject the 2 opinion. 3 Additionally, the ALJ opined that Nurse Fusfield’s opinions were tentative 4 because she recommended numerous diagnostic tests. AR 30. For example, in her 5 July 2013 opinion, Nurse Fusfield does not describe any testing to support her 6 findings, but rather states Ms. Todd needs various laboratory tests, x-rays, and 7 possibly a CT scan. AR 317, 318. The ALJ reasoned that it was unclear how Nurse 8 Fusfield made her findings absent reliable medical evidence. This is a germane 9 reason for rejecting the opinion. 10 The ALJ also rejected the statement that Ms. Todd is disabled because that is 11 a finding reserved for the Commissioner. This is appropriate. “Conclusory 12 statements . . . regarding the ultimate question of disability are not binding on the 13 ALJ.” Nyman v. Heckler, 779 F.2d 528, 530 (9th Cir. 1985). 14 Finally, the ALJ stated that the finding of disability by Nurse Fusfield 15 conflicted with Ms. Todd’s daily activities. Inconsistency between allegations by 16 an other source opinion and a claimant’s activities is a germane reason to discount 17 the opinion. Carmickle v. Comm’r, Soc. Sec. Admin., 533 F.3d 1155, 1164 (9th Cir. 18 2008). 19 20 In sum, the ALJ provided numerous germane reasons for the rejection of Nurse Fusfield’s opinions. ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 11 1 B. The ALJ did not err by failing to find Ms. Todd had severe medically- 2 determinable fibromyalgia. 3 At step two in the five-step sequential evaluation for Social Security cases, 4 the ALJ must determine whether a claimant has a medically severe impairment or 5 combination of impairments. An impairment is found to be not severe “when 6 medical evidence establishes only a slight abnormality or a combination of slight 7 abnormalities which would have no more than a minimal effect on an individual’s 8 ability to work.” Yuckert v. Bowen, 841 F.2d 303, 306 (9th Cir. 1988) (quoting 9 SSR 85-28). Step two is generally “a de minimis screening device [used] to 10 dispose of groundless claims,” and the ALJ is permitted to find a claimant lacks a 11 medically severe impairment only when the conclusion is clearly established by the 12 record. Webb v. Barnhart, 433 F. 683, 687 (9th Cir. 2005) (quoting Smolen v. 13 Chater, 80 F.3d 1273, 1290 (9th Cir.1996)). 14 The ALJ found that fibromyalgia was not a medically-determinable 15 impairment. Referring to the notes of Dr. Nina Flavin, M.D., the ALJ found that 16 the diagnosis was not conclusive and that there was no indication further testing 17 was performed to determine if Ms. Todd did have the condition. AR 23. This is 18 supported by the record. Dr. Flavin equivocally stated on December 3, 2013, that 19 the “[c]linical presentation is starting to fit with a diagnosis of fibromyalgia.” AR 20 429. In November 2014, Dr. Flavin again failed to make a conclusive diagnosis, ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 12 1 stating that fibromyalgia “best fits [Ms. Todd’s] clinical symptomatology.” AR 2 484. However, Dr. Flavin also noted that “[g]iven the concern for possible 3 polymyalgia rheumatic,” she recommended additional testing of inflammation 4 markers. Id. 5 Ms. Todd argues that despite a lack of definitive diagnosis in the record, the 6 ALJ erred by not reaching a different conclusion from the record. However, when 7 the ALJ presents a reasonable interpretation that is supported by the evidence, it is 8 not the role of the courts to second-guess it. Rollins v. Massanari, 261 F.3d 853, 9 857 (9th Cir. 2001). The Court “must uphold the ALJ's findings if they are 10 supported by inferences reasonably drawn from the record.” Molina, 674 F.3d 11 1104, 1111; see also Thomas, 278 F.3d 947, 954 (if the “evidence is susceptible to 12 more than one rational interpretation, one of which supports the ALJ’s decision, 13 the conclusion must be upheld”). 14 Moreover, Ms. Todd was found to have at least one severe impairment, so 15 this case was not resolved at step two. Thus, any error in the ALJ’s finding at step 16 two is harmless, if all impairments, severe and non-severe, were considered in the 17 determination for Ms. Todd’s residual functional capacity. See Lewis v. Astrue, 498 18 F.3d 909, 910 (9th Cir. 2007) (holding that a failure to consider an impairment in 19 step two is harmless error where the ALJ includes the limitations of that 20 impairment in the determination of the residual functional capacity). The ALJ ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 13 1 specifically noted that despite the finding regarding fibromyalgia, she did consider 2 Ms. Todd’s reported pain in machining in the decision. AR 23. Thus, even if the 3 failure to specifically accept fibromyalgia as a severe impairment was in error, it 4 would be harmless. 5 C. The ALJ did not err in finding Ms. Todd did not meet Listing 1.02. 6 The ALJ gave “particular attention” to Listing 1.02, which determines 7 disability related to major dysfunction of a joint. AR 25. The ALJ determined Ms. 8 Todd did not meet this listing, which Ms. Todd argues was in error. 9 In particular, Ms. Todd points to evidence in the record that she needed a 10 walker, which demonstrates that she had a sufficient degree of difficulty 11 ambulating that would reach the threshold of Listing 1.02. ECF No. 12 at 14-15. 12 The evidence to which she points, however, is provided either by Ms. Todd or 13 Nurse Fusfield, both whom the ALJ determined were not reliable sources. See 14 supra at pp. 9-11; infra at pp. 17-20. Likewise, the alleged level of impairment is 15 inconsistent with normal findings in gait and station on examination and a full 16 range of motion and muscle strength. AR 348-49. 17 D. The Appeals Council did not err with regard to the opinion of Dr. Rox 18 Burkett, M.D. 19 Ms. Todd alleges the Appeals Council erred by failing to consider the 20 February 2016 opinion of Dr. Burkett. AR 637-40. Ms. Todd argues that Dr. ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 14 1 Burkett’s findings demonstrated disability. ECF No. 12 at 15. In support of her 2 argument, Ms. Todd relies on the holding in Taylor v. Comm’r of Soc. Sec. Admin., 3 659 F.3d 1228 (9th Cir. 2011). In Taylor, the Ninth Circuit found error because the 4 new evidence was not considered at all by the Appeals Council. See Taylor, 659 5 F.3d at 1233 (“Somewhere in the shuffle, Dr. Thompson’s psychiatric evaluation 6 and medical source statement were lost, and the Appeals Council never considered 7 them when it denied Taylor’s request for review.”) Here, the Appeals Council 8 specifically identified Dr. Burkett’s letter as new evidence that was considered, but 9 the Appeals Council ultimately determined that Dr. Burkett’s opinion did not 10 provide a basis for changing the ALJ’s decision. AR 2, 4. Taylor is inapplicable. 11 In addition, the decision is supported by the evidence. Two other doctors, 12 Dr. Norman Staley, M.D., and Dr. Alnoor Virji, M.D., reviewed the same record 13 and offered contrary opinions to Dr. Burkett. AR 72-75, 95-98. The ALJ gave 14 significant weight to these opinions. AR 29. The Appeals Council determined this 15 was not altered by the new evidence. The Court finds no error. 16 E. The ALJ did not err by finding Ms. Todd could return to her past 17 relevant work and was not disabled under the Grid Rules. 18 Ms. Todd first alleges that the ALJ improperly calculated her residual 19 functional capacity, and that she should have been limited to sedentary work. ECF 20 No. 12 at 16. She relies on the arguments made in prior sections of her briefing. Id. ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 15 1 The Court, however, will uphold the ALJ’s findings when a claimant attempts to 2 restate the argument that the residual functional capacity finding did not account 3 for all limitations. Stubbs-Danielson v. Astrue, 539 F.3d 1169, 1175-76 (9th Cir. 4 2008). 5 Ms. Todd then alleges that the ALJ erred by failing to adequately assess 6 whether she could return to her previous relevant work. ECF No. 12 at 16-17. The 7 ALJ reached her conclusion that Ms. Todd could perform her past relevant work as 8 a housekeeper and hotel clerk based on her residual functional capacity and the 9 testimony of the vocational expert. AR 31. The ALJ made specific findings 10 regarding a review of the Dictionary of Occupational Titles regarding the 11 housekeeping job. Id. While Ms. Todd disagrees with this finding, in reviewing a 12 denial of benefits, a district court may not substitute its judgment for that of the 13 ALJ. Matney, 981 F.2d at 1019. If the evidence in the record “is susceptible to 14 more than one rational interpretation, [the court] must uphold the ALJ's findings if 15 they are supported by inferences reasonably drawn from the record.” Molina, 674 16 F.3d at 1111. 17 Likewise, there is no error with the finding that Ms. Todd could return to her 18 work as a hotel clerk. Through the use of hypothetical, the vocational expert 19 testified that absent a restriction to simple and routine tasks, the position of hotel 20 clerk would not be precluded. AR 64-65. Ultimately, the ALJ did not include a ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 16 1 restriction for simple and routine tasks in Ms. Todd’s residual functional capacity. 2 AR 26. Neither does the record support such a restriction, nor does Ms. Todd argue 3 for one. Ms. Todd bases her argument that the finding she could return to her role 4 as a hotel clerk is precluded because the vocational expert answered affirmatively 5 when asked if the hotel clerk position was primarily computer-based. AR 66. 6 However, the vocational expert found Ms. Todd able to perform the hotel clerk job 7 based on her residual functional capacity as long as it did not include restrictions 8 on simple and routine tasks. AR 64-65. It is reasonable that the vocational expert 9 considered computer usage in her calculations, as her testimony demonstrates she 10 was aware of the requirement. Moreover, Ms. Todd lists computer games among 11 her hobbies, indicating she is not as restricted on computers as this argument 12 suggests. AR 277. 13 14 F. The ALJ properly evaluated Ms. Todd’s credibility. An ALJ engages in a two-step analysis to determine whether a claimant’s 15 testimony regarding subjective symptoms is credible. Tommasetti, 533 F.3d at 16 1039. First, the claimant must produce objective medical evidence of an underlying 17 impairment or impairments that could reasonably be expected to produce some 18 degree of the symptoms alleged. Id. Second, if the claimant meets this threshold, 19 and there is no affirmative evidence suggesting malingering, “the ALJ can reject 20 ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 17 1 the claimant’s testimony about the severity of [his] symptoms only by offering 2 specific, clear, and convincing reasons for doing so.” Id. 3 In weighing a claimant's credibility, the ALJ may consider many factors, 4 including, “(1) ordinary techniques of credibility evaluation, such as the claimant's 5 reputation for lying, prior inconsistent statements concerning the symptoms, and 6 other testimony by the claimant that appears less than candid; (2) unexplained or 7 inadequately explained failure to seek treatment or to follow a prescribed course of 8 treatment; and (3) the claimant's daily activities.” Smolen v. Chater, 80 F.3d 1273, 9 1284 (9th Cir. 1996). Here, the ALJ found that the medically determinable 10 impairments could reasonably be expected to produce some of the symptoms Ms. 11 Todd alleges; however, the ALJ determined that Ms. Todd’s statements regarding 12 intensity, persistence, and limiting effects of the symptoms were not entirely 13 credible. AR 27-29. The ALJ provided multiple reasons for discrediting Ms. 14 Todd’s subjective complaint testimony. AR Id. 15 First, the ALJ found that the objective medical evidence does not support 16 Ms. Todd’s allegations. AR 27-28. Inconsistency between a claimant’s allegations 17 and relevant medical evidence is a legally sufficient reason to reject a claimant’s 18 subjective testimony. Tonapetyan v. Halter, 242 F.3d 1144, 1148 (9th Cir. 2001). 19 The ALJ noted that imaging from July 2013 demonstrated only mild changes or 20 impairments. AR 322-25. Additionally, the ALJ pointed to the findings that Ms. ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 18 1 Todd walked with a normal station and gait; despite pain, had a full range of 2 motion in her knees; and had normal muscle strength. AR 348-49. The record also 3 shows normal examination findings of the chest, lungs, and cardiovascular system 4 and no acute pulmonary process in July 2013, despite smoking a half to full pack 5 of cigarettes a day. AR 331, 352. Additional imaging in December 2014 also 6 resulted in mild findings. AR 469, 471. Medical records from Nurse Fusfield note 7 significant improvement in Ms. Todd’s symptoms with medication. AR 29, 348- 8 49, 438. 9 Additionally, the ALJ accounted for more significant findings in the residual 10 functional capacity. AR 28. For example, to compensate for the moderate to severe 11 degenerative disc disease seen on June 2015 imaging (AR 551-53, 555), the ALJ 12 limited Ms. Todd to light work. AR 28. 13 The ALJ also based her findings on inconsistent statements in the record. 14 Inconsistent statements regarding symptoms may be a valid reason to disregard a 15 claimant’s testimony. Smolen, 80 F.3d at 1284. For example, despite stating on her 16 function report that she cooks very little, AR 274, she testified at the hearing that 17 she cooks regularly for her aunt and uncle, AR 51. Likewise, she claimed at the 18 hearing she couldn’t do any laundry, AR 51, yet she stated on her function report 19 that she can do her personal laundry except for bedding, AR 275. Despite 20 ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 19 1 allegations of disabling pain, she also described a variety of household chores, 2 such as dishes, vacuuming, mopping, dusting, and cleaning the bathroom. Id. 3 Finally, the ALJ noted that Ms. Todd’s history of multiple convictions for 4 driving under the influence weigh on her credibility regarding her explanations for 5 why she cannot drive. AR 29, 276, 408. While this may not be dispositive on its 6 own, it can be considered as an “ordinary technique[] for credibility evaluation.” 7 Smolen, 80 F.3d at 1284. 8 9 In sum, the Court finds that the ALJ provided multiple legally sufficient explanations for her findings regarding Ms. Todd’s credibility. 10 VIII. Conclusion 11 Having reviewed the record and the ALJ’s findings, the Court finds the 12 ALJ’s decision is supported by substantial evidence and free from legal error. 13 Accordingly, IT IS ORDERED: 14 1. Plaintiff’s Motion for Summary Judgment, ECF No. 12, is DENIED. 15 2. Defendant’s Motion for Summary Judgment, ECF No. 13, is 16 GRANTED. 17 /// 18 /// 19 /// 20 /// ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 20 1 2 3 3. The District Court Executive is directed to enter judgment in favor of Defendant and against Plaintiff. IT IS SO ORDERED. The District Court Executive is directed to enter this 4 Order, forward copies to counsel and close the file. 5 DATED this 11th day of May, 2018. 6 7 s/Robert H. Whaley ROBERT H. WHALEY Senior United States District Judge 8 9 10 11 12 13 14 15 16 17 18 19 20 ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 21

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