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Jurisdiction: California Central District Court
Decision Date: 9/29/2014

STATES

                                                                                                                                                                                                                                                                                                                                                                                                                            FEDERAL

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        Hinrichs v. Colvin Hinrichs v. Colvin (C.D. Cal., 2014)

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        MARIANGELA MARCONI HINRICHS, Plaintiff,
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        v.
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        CAROLYN W. COLVIN, Acting Commissioner of theSocial Security Administration, Defendant.

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        No. EDCV 13-01256 SS

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        September 29, 2014

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        MARIANGELA MARCONI HINRICHS, Plaintiff, v. CAROLYN W. COLVIN, Acting Commissioner of theSocial Security Administration, Defendant.

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        No. EDCV 13-01256 SS

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        September 29, 2014

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        MEMORANDUM DECISION AND ORDER

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        INTRODUCTION

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                Mariangela Hinrichs ("Plaintiff") seeks review of the final decision of the Commissioner of the Social Security Administration (the "Commissioner" or the "Agency") denying her Disability Insurance Benefits and Supplemental Security Income. The parties consented, pursuant to 28 U.S.C. § 636(c), to the

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                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        jurisdiction of the undersigned United States Magistrate Judge. For the reasons stated below, the decision of the Commissioner is AFFIRMED.

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        II.
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        PROCEDURAL HISTORY

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                Plaintiff filed applications for Title II Disability Insurance Benefits ("DIB") and Title XVI Supplemental Security Income ("SSI") on June 7, 2010. (Administrative Record ("AR") 213). She alleged a disability onset date of June 3, 2010. (AR 213, 222). The Agency denied Plaintiff's applications on January 12, 2011, and upon reconsideration on May 24, 2011. (AR 158, 167). On June 14, 2011, Plaintiff requested a hearing before an Administrative Law Judge ("ALJ"). (AR 173). Plaintiff appeared and testified at a hearing before ALJ Lynn Ginsberg on March 27, 2012. (AR 27-71). On April 13, 2012, the ALJ issued a decision denying Plaintiff DIB and SSI. (AR 7-21).

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                Plaintiff timely filed a request for review of the ALJ's unfavorable decision on May 1, 2012, which the Appeals Council denied on May 17, 2013. (AR 1, 5). On July 16, 2013, Plaintiff filed the instant action.

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                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        III.
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        FACTUAL BACKGROUND

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                Plaintiff was born on March 11, 1960. (AR 222). She was fifty years old as of the alleged disability onset date and fifty-two years old at the time of her hearing before the ALJ. (AR 32, 222). Plaintiff graduated from college in 1986 (AR 227) and was a medical social worker with a home health care agency in Wisconsin until June 3, 2010, prior to filing for disability benefits. (AR 237, 274). Plaintiff worked as a social worker for more than twenty years. (AR 530). Plaintiff first sought treatment in April 2009 (AR 485) and alleges that her ailments became severe enough to prevent her from working on November 1, 2009. (AR 226). However, because Plaintiff's husband was unemployed, Plaintiff "forced herself to continue working despite feeling awful most days, " resigning only once her husband had found a new job. (AR 226). Plaintiff submitted her application for disability benefits on June 7, 2010, four days after she stopped working, and listed her illnesses as fibromyalgia, chronic obstructive pulmonary disease ("COPD"), sleep apnea, obesity, depression, and thyroid cancer. (AR 213, 226). Approximately one month later, in July 2010, Plaintiff and her family moved to California. (AR 34).

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                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        A. Medical History And Treating Doctors' Opinions

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                1. Physical Condition

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                a. Dr. Cynthia Weisflock

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                On August 18, 2009, Plaintiff saw Dr. Cynthia Weisflock at ThedaCare Physicians, a clinic located in Tigerton, Wisconsin. Plaintiff complained of shortness of breath and difficulty swallowing. (AR 479). Plaintiff stated that she was not receiving treatment for previously diagnosed COPD, which Dr. Weisflock attributed, in part, to Plaintiff's smoking. (AR 481-82). Dr. Weisflock prescribed inhalers and advised Plaintiff to stop smoking. (AR 482). Dr. Weisflock expressed satisfaction with Plaintiff's heart function (AR 481) and noted that Plaintiff reported her edema improved when she wore anti-embolism stockings and took one of her husband's "water pills. " (AR 482).

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                On September 25, 2009, Plaintiff saw Dr. Weisflock a second time, now complaining of multiple body aches that had allegedly been present for several years. (AR 472). Plaintiff had pain at thirteen of the eighteen fibromyalgia points. Based on

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        Page 5

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        Plaintiff's symptoms, Dr. Weisflock diagnosed Plaintiff with fibromyalgia and prescribed Cymbalta for her pain. (Id. )

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                On March 17, 2010, Plaintiff visited an endocrinologist as a follow-up to her 2008 thyroid operation. (AR 383). The examination revealed thyroid levels "within goal range, " well-healed scar tissue from the operation, and no need for a change in Plaintiff's Synthroid dosage. (AR 383-84). Despite Plaintiff's assertion that she had difficulty breathing, the endocrinologist found Plaintiff's respiratory effort normal, though she noted some wheezing; she also noted "1+ pitting edema at the ankles. " (Id. )

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                On March 22, 2010, Plaintiff again complained of shortness of breath. (AR 389). Dr. Weisflock observed "few expiratory wheezes and rhonchi" and noted that Plaintiff was already scheduled to see a pulmonologist the next day. (AR 389-90). Plaintiff asserted that she had last smoked on February 14, 2010. (AR 389).

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                b. Dr. Michael Maguire

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                Plaintiff visited pulmonologist Michael Maguire, M. D. on March 23, 2010. (AR 423-24). Dr. Maguire observed that

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                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        Plaintiff's chest x-ray was clear, that she exhibited no coughing or wheezing, and that Plaintiff said "her inahlers had helped. " (AR 423). A pulmonary function test found Plaintiff's lung volumes within normal limits, although the laboratory report noted that a "mild restrictive defect is suggested but not confirmed by lung volumes. " (AR 428). Though Plaintiff's weight gain and "mild restriction" of pulmonary functions likely contributed to her shortness of breath, Dr. Maguire concluded that these were "well out-of-proportion to the pulmonary function testing. " (Id. ). He prescribed a nocturnal polysomnogram on the theory that Plaintiff suffered from a nighttime breathing disorder. (AR 432).

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                The subsequent sleep study, conducted on April 1, 2010, revealed a severely elevated apnea index of 107. 5. (AR 420). However, when Plaintiff next visited Dr. Maguire, on June 1, 2010, she reported that she had experienced a "remarkable improvement" in her shortness of breath after using a continuous positive airway pressure ("CPAP") machine for a short period of time. (AR 418). Nevertheless, Plaintiff told Dr. Maguire that the improvement had subsided "due to all the stress in her life, " and that inhalers also were not helping much. (Id. ). Dr. Maguire diagnosed Plaintiff with severe obstructive sleep apnea syndrome and COPD related to her weight and tobacco use. (AR 419). He

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                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        opined that "weight loss and exercise are going to help Plaintiff more than anything else, " and did not alter Plaintiff's medications. (AR 419).

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                c. Apple Medical Group

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                Plaintiff first visited Apple Medical Group ("AMG") on August 2, 2010, after she moved to California. (AR 524-25). The treating physician found that Plaintiff could expend normal respiratory effort with no cough and that she exhibited neither cardiovascular irregularities nor abdominal pain. (AR 525). The physician noted edema in Plaintiff's legs but reported that Plaintiff denied pain in her extremities, other than tenderness "when someone touches her skin. " (Id. ). The treatment report noted that Plaintiff was taking Cymbalta for fibromyalgia and that she suffered from COPD and sleep apnea. (AR 524-25). The physician found Plaintiff "negative for fatigue. " (AR 524).

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                Twelve days later, however, Plaintiff returned to AMG complaining that her fibromyalgia symptoms were worsening, with "burning" or "tingling" in her hands. (AR 521-22). Her other symptoms were unchanged, and she remained "negative" for fatigue, as well as for cough, dyspnea, wheezing and chest pain. (Id. ). On her next visit to AMG, on October 12, 2010, Plaintiff reported that her hips were beginning to hurt and her pain medications

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                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        were no longer effectively controlling her pain. (AR 557). Plaintiff was referred to a rheumatologist. (Id. ).

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                On December 15, 2010, Plaintiff reported feeling better after taking Prednisone. (AR 561). On August 22, 2011, on a follow-up visit related to her postoperative hypothyroid condition, Plaintiff was "doing fairly well, " and her weight had dropped to 365 pounds with exercise, although she reported fatigue. (AR 680-81). She still had no abdominal or chest pain, but reported back pain. (Id. ) On March 2, 2012, however, Plaintiff weighed 420 pounds, complained of moderate back pain that radiated to her extremities, and said that her daily activities aggravated the pain. (AR 683). Plaintiff told her physician that she not only smoked but that she had "never tried to stop smoking. " (AR 683). This statement contradicts Plaintiff's earlier reports to several physicians that she had stopped smoking on February 14, 2010. (See, e. g. AR 389, 423). Plaintiff requested pain medication and was prescribed Naproxen. (AR 683, 685).

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                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                d. Dr. Dharmarajan Ramaswamy

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                Plaintiff first visited rheumatologist Dharmarajan Ramaswamy, M. D on December 12, 2010. (AR 600). According to Dr. Ramaswamy's handwritten notes, Plaintiff reported receiving Prednisone but described "pain + swelling + stiffness all over body. " Three days later, however, Plaintiff told her physician at AMG that she felt better after taking Prednisone. (Compare id. and AR 561). Plaintiff again told Dr. Ramaswamy she "felt partially better" on March 28, 2011, this time due to taking "MTX. " (AR 639). She added that she was not experiencing any side effects from her medications. (Id. ). By May 25, 2011, Plaintiff's condition appears to have improved again, and Dr. Ramaswamy recorded that Plaintiff felt "overall better with current regimen. " (AR 670). On August 24, 2011, Plaintiff told Dr. Ramaswamy she "was feeling better as long as he sic was taking MTX, " but that she had run out of the medication two weeks earlier. (AR 673). She also admitted to not taking one of her medications, Gabapentin, three times daily as prescribed. (Id. ).

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                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        Dr. Ramaswamy noted that Plaintiff continued to have tender points associated with her fibromyalgia, and increased the dosages of some of Plaintiff's medications. (AR 674).

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                2. Mental Condition

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                a. Dr. Oluwafemi Adeyemo

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                On December 14, 2010, Dr. Oluwafemi Adeyemo conducted a complete consultative psychiatric evaluation of Plaintiff. (AR 528-32). During the evaluation, Plaintiff complained that she did not feel well most of the time due to "multiple medical problems. " (AR 529). She also reported experiencing episodes of anxiety and depression. (Id. ). However, Dr. Adeyemo noted that Plaintiff was alert, fully oriented, polite, cooperative and able to maintain adequate eye contact. (AR 531). Plaintiff' s speech was "spontaneous, clear and relevant. " (Id. ). Plaintiff's memory and thought processes appeared to be intact. (AR 531). She reported that she enjoyed reading and watching television and that she helped her children with their

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                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        homework after she picked them up from school. She also took them to "multiple after school programs or activities" and cooked for her family. (Id. )

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                Dr. Adeyemo diagnosed Plaintiff with adjustment disorder with mixed anxiety and depressed mood. (Id. ). He found that Plaintiff had "mild restrictions in daily activities but does not appear to have any difficulty with social functioning. " (AR 532). As a result, although she might have "mild difficulty responding to usual work situations, " Plaintiff could understand, retain, and execute simple instructions and "should be able to respond appropriately to co-workers, supervisors, and the public. " (Id. ). Dr. Adeyemo gave Plaintiff a Global Assessment of Functioning ("GAF") score of sixty-five. (Id. ).

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        B. Non-examining Physicians' Opinions Regarding Plaintiff's Physical Condition

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                1. Dr. Dan Funkenstein

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                On January 11, 2011, non-examining physician Dan Funkenstein, M. D. completed an RFC physical assessment based on a

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                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        review of Plaintiff's medical records. (AR 533-46). After reviewing Plaintiff's descriptions of her medical conditions and daily activities, he found her "partially credible, although objective evidence supports some of the allegations it does not fully support all of them. " (AR 545). Dr. Funkenstein concluded that Plaintiff had a severe physical impairment, but not at the listing level, and that she had an RFC to perform light work. (AR 545-46). He added that Plaintiff's weight likely contributed to her other conditions. (AR 545).

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                2. Dr. C. C. Scott

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                On April 6, 2011, non-examining physician C. C. Scott, M. D. affirmed, without elaboration, Dr. Funkenstein's assessment that Plaintiff had an RFC to perform light work. (AR 658).

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        C. Non-examining Physicians' Opinions Regarding Plaintiff's Mental Condition

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                1. Dr. Dan Funkenstein

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                On January 11, 2011, Dr. Funkenstein completed an RFC mental assessment of Plaintiff based on a review of her medical records. (AR 533-46). Dr. Funkenstein's report essentially affirmed Dr. Adeyemo's earlier conclusions. (Compare AR 533-46 and AR 528-32). He concluded that Plaintiff's depression was non-severe and noted that Plaintiff had mild difficulty maintaining social

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                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        functioning, concentration, persistence or pace. (AR 541, 546). She was mildly restricted in her daily activities. (AR 546).

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        D. Vocational Expert Testimony

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                Vocational Expert ("VE") Sandra Fioretti testified at Plaintiff's ALJ hearing regarding the existence of jobs in the national economy that Plaintiff could perform given her physical and mental limitations. (AR 60-70). The VE testified that an individual with Plaintiff's age, education, experience and mental and physical limitations would be able to perform light, unskilled work as a cashier, office helper and information clerk. (AR 63). She opined that these jobs existed in significant numbers in both the national and local economies, and provided specific job numbers for each occupation. (AR 63).

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                The ALJ then posed hypotheticals to the VE. First, the ALJ asked if Plaintiff could perform her past work, or any of the jobs identified, if Plaintiff took a forty-five minute break per day. (AR 68-69). The VE explained that if the breaks were scheduled, Plaintiff might be able to work in the field of her training, as a social worker or case work supervisor. (AR 69). However, if breaks could not be scheduled, Plaintiff could not undertake any of her past occupations or the identified jobs. (Id. ). The ALJ also asked whether Plaintiff would be able to perform any listed jobs if she had to miss three or more days of

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                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        work per month. (AR 70). The VE replied that this limitation would eliminate all listed jobs. (Id. ).

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        E. Plaintiff's Testimony

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                1. Testimony Before the ALJ

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                During her March 22, 2012 hearing before the ALJ, Plaintiff testified that she usually woke up at eight or eight-thirty a. m but did not get out of bed until nine-thirty. (AR 38). She then took her medications and thought about what dishes she might be able to cook for dinner. (AR 39). Other than grocery shopping trips on which her children helped her carry the groceries, Plaintiff testified that "pretty much I sit in the house, I watch TV. " (Id. ) Moreover, her grocery shopping was limited to picking up "milk and bread and small things that we're missing"; otherwise, Plaintiff's husband did the grocery shopping. (AR 44).

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                Nevertheless, Plaintiff also described picking up her two children from school daily and driving them to extracurricular activities twice a week. (AR 35-37). She attended her children's baseball and softball games once per week. (AR 38). Although she described driving her children to play rehearsals "a few miles away" (AR 52), she also described walking there (AR 40). Plaintiff volunteered for her daughter's Girl Scout troop for four months in 2010, attending one ninety-minute meeting per week. (AR 37). She attended church services about twice per

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        Page 15

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        month. (AR 39). "On a good day, " she might take her children to McDonald's for ice cream or shop with them at Walmart, where she used an electric cart to move through the store. (AR 51). Plaintiff was able to dine out at restaurants approximately every one to three weeks. (AR 43). Although Plaintiff said she also took a cane with her when she went shopping, she did not use the cane on the day of the hearing. (AR 53-54).

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                Plaintiff told the ALJ that she needed her husband's assistance after using the bathroom and that she showered no more than twice a week, because her husband had to stand by in case she fell. (AR 41). However, she was able to bend in order to sort the laundry after it was washed. (AR 42). She also planned menus and prepared simple dinners almost daily. (AR 39, 41).

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                Plaintiff said that she had tried dieting but "couldn't do it. " (AR 46). Plaintiff's "real exercise" occurred in her apartment pool because she felt "a lot less pain moving around in the pool. " (Id. ). Plaintiff also stated that losing weight did not always make her feel better. (Id. ).

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                Plaintiff testified that she took Gabapentin and Naproxen for pain, and took Vicodin when the pain got "really severe. " (AR 47). She used a CPAP machine for sleep apnea, but found the machine uncomfortable and avoided using it some nights. (Id. ). Plaintiff initially stated that she had quit smoking but then acknowledged that she still smoked occasionally, adding "I don't want to be caught in a lie. " (Id. ).

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                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                2. Statements From Plaintiff's Benefits Application

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                Plaintiff made some statements on her Benefits Application that were inconsistent with her testimony before the ALJ. For example, in her Application, Plaintiff stated that she woke up daily at six a. m rather than eight or eight-thirty. (Compare AR 38 and AR 243). Plaintiff's Application described her as spending much of a typical day at home, except for her daily drive to pick up her children at school. (AR 243). This differed from her testimony to the ALJ, during which Plaintiff described driving her children to a variety of activities and walking them to others, including outdoor sports and rehearsals for a play. (AR 40). In the Application Plaintiff stated that she was able to pursue her scrapbooking hobby only once per month, due to an inability to concentrate. (AR 247). However, she told the ALJ she scrapbooked "a couple of times a week probably. " (AR 40). Plaintiff made no mention in her Application of having to limit her shopping trips to purchasing "small things, " as she later told the ALJ, and instead described shopping for "food/household items, things my children need for school, clothes. " (Compare AR 44 and AR 246).

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                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        F. Richard Hinrichs's Third Party Function Report

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                On August 18, 2010, Plaintiff's husband, Richard Hinrichs, completed a Third Party Function Report. (AR 258-65). He explained that it was difficult for Plaintiff to get out of bed in the morning. (AR 258). When she finally got out of bed, she took her medications. (Id. ). Plaintiff was able to do light chores, but needed to rest after completing them. (AR 258). Plaintiff was able to do laundry with the help of her children. (AR 260). Mr. Hinrichs explained that Plaintiff could microwave her meals and also cared for their two children. (AR 258).

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                Mr. Hinrichs stated that his wife had difficulty breathing. (AR 260). He also explained that Plaintiff's breathing device caused her pain and she could not sleep for more than two hours at a time. (AR 259). Mr. Hinrichs explained that Plaintiff was able to drive and bought "small perishables" from the grocery store, using an electric cart when shopping. (AR 261).

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        IV.
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        THE FIVE-STEP SEQUENTIAL EVALUATION PROCESS

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                To qualify for disability benefits, "a claimant must demonstrate a medically determinable physical or mental impairment that prevents her from engaging in substantial gainful activity and that 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) (citing 42 U.S.C.

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                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        § 423(d)(1)(A)). 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) (citing 42 U.S.C. § 423(d)(2)(A)).

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                To determine whether a claimant is entitled to benefits, an ALJ conducts a five-step inquiry. 20 C. F. R. §§ 404. 1520, 416. 920. The steps and their related inquiries are as follows:

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                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        Tackett 180 F. 3d at 1098-99; see also Bustamante v. Massanari 262 F. 3d 949, 953-54 (9th Cir. 2001) (citations omitted); 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 1099, 1100; Reddick 157 F. 3d at 721; 20 C. F. R. §§ 404. 1520(g)(1), 416. 920(g)(1). The Commissioner may do so by the testimony of a vocational expert or by reference to the Medical-Vocational Guidelines appearing in 20 C. F. R. Part 404, Subpart P, Appendix 2 (commonly known as "the Grids"). Osenbrock v. Apfel 240 F. 3d 1157, 1162 (9th Cir. 2001). When a claimant has both exertional (strength-related) and non-exertional limitations, the Grids are inapplicable and the ALJ must take the testimony of a vocational expert. Moore v. Apfel 216 F. 3d 864, 869 (9th Cir. 2000) (citing Burkhart v. Bowen 856 F.2d 1335, 1340 (9th Cir. 1988)).

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                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        V.
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        THE ALJ'S DECISION

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                The ALJ employed the five-step sequential evaluation process and concluded that Plaintiff was not under a disability within the meaning of the Social Security Act from June 3, 2010, through the date of the ALJ's decision on April 13, 2012. (AR 21). At step one, the ALJ found that Plaintiff had not engaged in substantial gainful employment since June 3, 2010. (AR 12). At step two, the ALJ found that Plaintiff had the severe impairments of fibromyalgia, chronic obstructive pulmonary disorder, sleep apnea, and cancer of the thyroid (status post thyroidectomy as of July 2008), as well as obesity. (20 C. F. R. § 404. 1520 404. 1520(c)). (Id. ). However, at step three, the ALJ found that Plaintiff did not have an impairment or combination of impairments that met or medically equaled one of the listed impairments in 20 C. F. R. Part 404, Subpart P, Appendix 1 (20 C. F. R. §§ 404. 1520(d), 404. 1525, 404. 1526). (AR 15). The ALJ noted that there is no medical listing for either fibromyalgia or obesity and that Plaintiff's impairments, "considered singly and in combination, do not meet or medically equal the criteria of any medical listing. " (Id. ). The ALJ then found that Plaintiff had the following RFC:

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        Page 21

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        (Id. ). In reaching this finding, the ALJ stated that she had considered all of Plaintiff's symptoms and the extent to which they could reasonably be accepted as consistent with the objective medical evidence and other evidence, based on the requirements of 20 C. F. R. § 404. 1529 and SSRs 96-4p and 96-7p. (Id. ). The ALJ also considered opinion evidence in accordance with the requirements of 20 C. F. R. § 404. 1527 and SSRs 96-2p, 96-5p, 96-6p and 06-3p. (Id. ).

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        Page 22

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                The ALJ found that the claimant's subjective allegations were "less than fully credible. " (AR 17). In making this finding, the ALJ gave great weight to Plaintiff's own description of her daily activities, stating that she had "engaged in a somewhat normal level of daily activity and interaction. " (Id. ). The ALJ observed that Plaintiff's daily activities included "preparing meals, completing light household chores, driving and attending her children's extracurricular activities, grocery shopping and attending church. " (Id. ). The ALJ reasoned that Plaintiff's conservative treatment plan suggested that her symptoms and limitations were not as severe as alleged. (Id. ). Perhaps most significantly, the ALJ's review of Plaintiff's treatment and medication regime revealed that both had been "relatively effective in controlling her symptoms. " (Id. ).

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                Additionally, the ALJ found that Mr. Hinrichs's Third Party Function Report was not credible for several reasons. In particular, she opined that Mr. Hinrichs provided little more than a "parroting of the subjective complaints already testified by Plaintiff. " (Id. ). Moreover, the ALJ rejected Mr. Hinrichs's observations as unsupported by the clinical and diagnostic medical evidence in the record. (Id. ).

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                At step four, the ALJ determined that Plaintiff was unable to perform any of her past relevant work as defined by 20 C. F. R. § 404. 1565. (AR 19). However, based on the testimony of VE Sandra Fioretti, the ALJ found that considering Plaintiff's age, education, work experience and RFC, Plaintiff could perform jobs

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        Page 23

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        that existed in significant numbers in the national economy. (AR 20-21). The ALJ specifically asked the VE whether Plaintiff's "additional limitations, " though not among the listed impairments justifying a disability ruling, might prevent Plaintiff from pursuing these otherwise available jobs, which included working as a cashier, office helper, or information clerk. (Id. ) The VE responded that these representative occupations would still remain available to Plaintiff. (AR 20, 63). In sum, the ALJ found that Plaintiff was not under a disability as defined by 20 C. F. R. 404. 1520(g). (AR 21).

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        VI.
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        STANDARD OF REVIEW

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                Under 42 U.S.C. § 405(g), a district court may review the Commissioner's decision to deny benefits. "The court may set aside the Commissioner's decision when the ALJ's findings are based on legal error or are not supported by substantial evidence in the record as a whole. " Aukland v. Massanari 257 F. 3d 1033, 1035 (9th Cir. 2001) (citing Tackett 180 F. 3d at 1097); Smolen v. Chater 80 F. 3d 1273, 1279 (9th Cir. 1996) (citing Fair v. Bowen 885 F.2d 597, 601 (9th Cir. 1989)).

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                "Substantial evidence is more than a scintilla, but less than a preponderance. " Reddick 157 F. 3d at 720 (citing Jamerson v. Chater 112 F. 3d 1064, 1066 (9th Cir. 1997)). It is "relevant evidence which a reasonable person might accept as adequate to support a conclusion. " Id. To determine whether substantial

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        Page 24

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        evidence supports a finding, the court must "'consider the record as a whole, weighing both evidence that supports and evidence that detracts from the Commissioner's conclusion. '" Aukland 257 F. 3d at 1035 (quoting Penny v. Sullivan 2 F. 3d 953, 956 (9th Cir. 1993)). If the evidence can reasonably support either affirming or reversing that conclusion, the court may not substitute its judgment for that of the Commissioner. Reddick 157 F. 3d at 720-21 (citing Flaten v. Sec'y 44 F. 3d 1453, 1457 (9th Cir. 1995)).

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        VII.
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        DISCUSSION

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                Plaintiff challenges the ALJ's decision on three grounds. First, Plaintiff contends that the ALJ mischaracterized medical evidence favorable to Plaintiff and failed to properly consider the relevant medical evidence in her assessment of Plaintiff's RFC. (Memorandum in Support of Plaintiff's Complaint ("MSPC") at 3). Second, Plaintiff contends that the ALJ failed to properly consider Plaintiff's subjective complaints and assess her credibility. (MSPC at 5). Third, Plaintiff argues that the ALJ failed to provide clear and convincing reasons for rejecting the Third Party Function Report. (MSPC at 8).

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                The Court disagrees with all three contentions. The ALJ's RFC determination was supported by substantial evidence. Furthermore, the ALJ offered clear and convincing reasons supported by substantial evidence for finding Plaintiff's

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        Page 25

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        subjective testimony less than fully credible. Additionally, the ALJ properly considered Mr. Hinrichs's Third Party Function Report. Accordingly, for the reasons discussed below, the ALJ's decision must be AFFIRMED.

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        A. The ALJ's RFC Determination Was Supported By Substantial Evidence

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                Plaintiff contends that the ALJ failed to properly consider all of the relevant medical evidence in determining Plaintiff's RFC. (MSPC at 3). Specifically, Plaintiff argues that the ALJ failed to consider medical evidence that showed Plaintiff's condition was worsening. (Id. ). Plaintiff contends that this purported failure to properly consider the medical evidence constitutes reversible error. The Court disagrees.

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                Social Security regulations require the ALJ to consider all relevant medical evidence when determining whether a claimant is disabled. 20 C. F. R. §§ 404. 1520(b), 416. 927(c). Furthermore, "the ALJ is responsible for determining credibility, resolving conflicts in medical testimony, and for resolving ambiguities. " Andrews v. Shalala 53 F. 3d 1035, 1039 (9th Cir. 1995); see also Tommasetti v. Astrue 533 F. 3d 1035, 1041 (9th Cir. 2008) ("The ALJ is the final arbiter with respect to resolving ambiguities in the medical evidence. "). Findings of fact that are supported by substantial evidence are conclusive. 42 U.S.C. § 405(g); see also Kay v. Heckler 754 F.2d 1545 1549 (1985) ("Where the evidence as a whole can support either a grant or a denial, the court

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        Page 26

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        may not substitute its judgment for the ALJ's. "); Ryan v. Comm'r 528 F. 3d 1194, 1198 (9th Cir. 2008) ("Where evidence is susceptible to more than one rational interpretation, ' the ALJ's decision should be upheld. ") (quoting Burch v. Barnhart 400 F. 3d 676, 679 (9th Cir. 2005)).

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                An ALJ may not select only the facts that support her decision, omitting facts favorable to the claimant. Reddick 157 F. 3d at 722-23 (impermissible for an ALJ to develop evidentiary basis by "not fully accounting for the context of materials or all parts of the testimony and reports"); Gallant v. Heckler 753 F.2d 1450 1456 (9th Cir. 1984) (error for an ALJ to ignore competent evidence in the record in order to justify her conclusion). Moreover, even where one of a claimant's medical conditions does not meet the listing criteria for a disabling impairment, the ALJ must still consider the condition's effect in combination with the other alleged illnesses. Celaya v. Halter 332 F. 3d 1177, 1181-82 (9th Cir. 2003). Thus, for example, where a claimant's obesity is severe but not disabling on its own, the ALJ must nevertheless consider the obesity's interaction with the claimant's other conditions, such as diabetes. Id. at 1182; cf. Burch v. Barnhart 400 F. 3d 676, 682 (9th Cir. 2005) (distinguishing Celaya and concluding that a multiple impairment analysis is not required where "the medical record is silent as to whether and how claimant's obesity might have exacerbated her condition" and "the claimant did not present any testimony or other evidence . . . that her obesity impaired her ability to work. ").

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                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                The ALJ must also resolve conflicting medical evidence. See Batson v. Comm'r 359 F. 3d 1190, 1195 (9th Cir. 2004); Benton ex. rel Benton v. Barnhart 331 F. 3d 1030, 1040 (9th Cir. 2003). An ALJ need not address every piece of evidence in the record, however, but only evidence that is significant or probative. See Howard ex rel. Wolff v. Barnhart 341 F. 3d 1006, 1012 (9th Cir. 2006). If the administrative process resulted in error that is merely harmless, the claimant is not entitled to a remand. See Carmickle v. Comm'r 533 F. 3d 1155, 1162 (9th Cir. 2008) (harmless error rule applies to review of administrative decisions regarding disability).

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                Here, the ALJ did not ignore medical evidence that might have shown Plaintiff's condition was worsening, as Plaintiff contends. To the contrary, the ALJ considered such evidence and discussed it at length. (See, e. g. AR 18, in particular 1-6; AR 19, 1-2). Having also assessed the conflicting evidence at length and in detail, the ALJ found "substantial evidence" weighing against a finding that Plaintiff is disabled. See Aukland 257 F. 3d at 1035 (internal citation omitted).

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                Plaintiff suggests that the ALJ's failure to discuss Plaintiff's August 2, 2010 doctor visit, which revealed plus-two edema in her bilateral lower extremities, shows that the ALJ failed to consider evidence that Plaintiff's health was worsening. (MSPC at 3). However, Plaintiff, herself did not include edema as a condition limiting her ability to work on her

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        Page 28

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        disability report. (AR 226). Despite this omission, the ALJ accounted for Plaintiff's edema multiple times. For example, the ALJ noted that on March 17, 2010, Plaintiff had "plus one pitting edema at the ankles. " (AR 18). The ALJ also gave great weight to Dr. Funkenstein's report, which acknowledged Plaintiff's edema five times. (AR 544-45). The ALJ fully considered the existence and extent of Plaintiff's edema, concluding, based on the medical evidence, that it was not severe. (AR 12). Incorporated into this finding is the ALJ's repeated observation that Plaintiff's daily activities were compatible with light work. See, e. g. AR 17 (Plaintiff's described physical and mental capabilities "replicate those necessary for obtaining and maintaining employment"); AR 19 (RFC is supported by evidence as a whole).

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                Moreover, the treating physician's additional findings at the same August 2, 2010 examination favored a finding that Plaintiff faced fewer physical limitations, not more. Including more details of that examination, as Plaintiff seems to request, would only weaken Plaintiff's argument. For example, AMG's treating physician found that Plaintiff did not exhibit respiratory abnormalities despite her earlier COPD diagnosis, recorded that Plaintiff denied pain in her extremities, and found that Plaintiff was "negative for fatigue. " (AR 524-25). The Court must consider these observations since they were within the body of evidence the ALJ considered in rendering her decision.

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                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                In addition, the ALJ appropriately considered medical evidence showing that Plaintiff's conditions were well-managed, at least in part, by medications and that Plaintiff's condition was, at times, improving. This evidence includes a series of Plaintiff's own reports to her physicians, beginning in December 2010, in which she described either partial or "overall" improvement due to her prescribed use of Prednisone, Methotrexate, and other medications. (See Parts A(1)(c) & (d) supra). The ALJ also considered Plaintiff's "severe" impairments as they acted in combination, and not just individually, including Plaintiff's obesity. See, e. g. AR 18 (ALJ's consideration of Plaintiff's obesity as it affected her ability to "ambulate" and her other body systems; ALJ's consideration of effect of sleep apnea and fibromyalgia on claimant's other conditions and functional limitations). As noted above, the evidence in the record demonstrated that Plaintiff worked as a social worker for many years before moving to California and the evidence indicates that she was obese during at least some of this time. Accordingly, the evidence would support a finding that her obesity did not prevent her from working. (See AR 237, 274, 530).

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                After reviewing the ALJ's decision and based on the foregoing, the Court finds that the ALJ's RFC determination was supported by substantial evidence.

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                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        B. The ALJ Offered Clear And Convincing Reasons Supported By Substantial Evidence For Finding Plaintiff's Subjective Testimony Less Than Fully Credible

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                Plaintiff contends that the ALJ erred by failing to articulate clear and convincing reasons for finding Plaintiff's subjective testimony less than fully credible. (MSPC at 8). The Court disagrees. The ALJ's decision contains extensive citation to and discussion of clear and convincing reasons supported by substantial evidence for rejecting Plaintiff's testimony.

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                When assessing a claimant's credibility, the ALJ must engage in a two-step analysis. Molina v. Astrue 674 F. 3d 1104, 1112 (9th Cir. 2012) . First, the ALJ must determine if there is medical evidence of an impairment that could reasonably produce the symptoms alleged. (Id. ). If such evidence exists, the ALJ must make specific credibility findings in order to reject the claimant's testimony. (Id. ). The ALJ may use "ordinary techniques of credibility evaluation" during this inquiry. Smolen 80 F. 3d at 1284. The ALJ may also consider any inconsistencies in the claimant's conduct and any inadequately explained or unexplained failure to pursue or follow treatment. Tommasetti 533 F. 3d at 1039. Additionally, the ALJ may use evidence of the claimant's ability to perform daily activities that are transferrable to the workplace to discredit her testimony about an inability to work. Morgan v. Comm'r 169 F. 3d 595, 600 (9th Cir. 1999).

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        Page 31

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                As noted above, to determine whether the record presents "substantial evidence" to support or reject the Commissioner's findings, the Court considers "the record as a whole. " Aukland 257 F. 3d at 1035 (quoting Penny v. Sullivan 2 F. 3d 953, 956 (9th Cir. 1993)). To be substantial, the evidence must be "more than a scintilla, but less than a preponderance. " Reddick 157 F. 3d at 720 (citing Jamerson 112 F. 3d at 1066).

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                Here, there was medical evidence of impairment. However, the ALJ articulated specific, clear and convincing reasons for discounting Plaintiff's testimony about the severity of her physical symptoms. First, the ALJ cited Plaintiff's daily activities as an indication that her testimony was unreliable. The ALJ noted that Plaintiff prepared meals, completed light household chores, drove her children to extracurricular activities, attended those activities, shopped for groceries and attended church. (AR 17). The ALJ further emphasized that "despite Plaintiff's impairments, she had engaged in a somewhat normal level of daily activity and interaction. " (Id. ). Plaintiff, herself, had described these activities not only to the ALJ but also during her psychiatric evaluation by Dr. Adeyemo. (See AR 597).

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                The Court agrees with the ALJ's finding that Plaintiff's daily activities, both while she was still employed and after the alleged onset date, render her allegations of disabling fatigue and pain questionable. On her Benefits Application, Plaintiff described forcing herself to continue working despite "feeling

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        Page 32

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        awful most days and being late to work on many occasions. " (AR 226). She told the ALJ that prior to her resignation, she regularly arrived at work one to two hours late and was "starting to get in trouble" for working from home at times. (AR 56). Yet, Plaintiff's October 2009 work evaluation noted with approval that Plaintiff "works her scheduled hours and often fields calls from home, " and praised Plaintiff for becoming more rather than less punctual. (AR 277). The same evaluation noted that Plaintiff had only four recorded absences during 2009. (Id. ) Not until her husband found a new job did Plaintiff resign and apply for disability benefits. (AR 226).

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                Similarly, Plaintiff claimed that she was constantly fatigued during 2010, and yet she found the energy to leave her house for a number of reasons every day. (AR 35-37, 40). Plaintiff walked and drove to her children's many extracurricular activities, regularly shopped for groceries and other household goods, dined in restaurants, and completed a number of household chores on a daily or semi-regular basis. (See generally AR 35-51). The extent of Plaintiff's activities, both in and outside of her home, undermines her subjective complaints.

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                It was proper for the ALJ to rely on and cite evidence of Plaintiff's daily activities in evaluating whether her subjective testimony was credible. See, e. g. Smolen 80 F. 3d at 1284 (ALJ may consider claimant's daily activities in evaluating testimony as to severity of symptoms); Morgan 169 F. 3d at 600 (ALJ may discount claimant's testimony where her normal activities can

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                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        transfer to the work setting); Fair 885 F.2d at 603 (daily activities may be reason to discredit excess pain allegation where claimant spends substantial part of the day performing activities that may transfer to a work setting).

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                Additionally, the ALJ appropriately cited inconsistencies between Plaintiff's testimony and the objective medical evidence. (AR 17). An ALJ may consider such inconsistencies as one factor, among many, bearing on the credibility of a plaintiff's subjective testimony. See, e. g. Thomas v. Barnhart 278 F. 3d 947, 958-60 (9th Cir. 2002) (ALJ properly considered the lack of objective medical evidence, as well as other factors, in evaluating the credibility of a plaintiff's subjective testimony regarding the severity of her impairments and pain); Morgan 169 F. 3d at 599-600 (same).

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                The ALJ noted numerous inconsistencies between Plaintiff' s testimony and the objective medical evidence, which called into doubt the physical limitations Plaintiff alleged. The ALJ explained that Plaintiff's treatment had been essentially routine and conservative in nature, and that the lack of aggressive treatment or surgical intervention suggested Plaintiff's "symptoms and limitations were not as severe as she alleged. "

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        Page 34

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        (AR 17). To counter this finding, Plaintiff argues that a doctor's prescription for Methotrexate, Prednisone, or Vicodin "cannot be considered as conservative forms of treatment. " (MSPC at 5). Plaintiff offers no facts to substantiate this statement, however, and the Court observes that Plaintiff testified that she only took Vicodin when her pain was "really severe. " (AR 47). Nor is Plaintiff's assertion that she "consistently reported fatigue" (MSPC at 6) accurate, as the records of her August 2 and 14, 2010 physician visits reveal that she was "negative for fatigue" on those occasions, while seeking treatment for other conditions. (AR 521, 524).

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                Furthermore, the records cited by the ALJ (AR 18) indicate that Plaintiff's medication and treatment have been relatively successful in managing her symptoms. For example, on December 15, 2010, Plaintiff reported feeling better after taking Prednisone. (AR 561). On May 25, 2011, and August 24, 2011, Plaintiff again reported improvement due to the effectiveness of her medications. (AR 670). Plaintiff also indicated that she experienced no side effects from her medications. (AR 639). Plaintiff told Dr. Maguire that she experienced a "remarkable, " if temporary, improvement in her shortness of breath while using the CPAP machine (AR 418), though she sometimes avoided using it because doing so was uncomfortable. (AR 47). Finally, Plaintiff testified that taking a water pill and wearing stockings were relatively effective treatments for her edema. (AR 49). In sum, the record supports the ALJ's conclusion that Plaintiff's medication and treatment were relatively effective in treating

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        Page 35

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        her symptoms. After reviewing the ALJ's decision and based on the foregoing, the Court finds that the ALJ provided sufficiently clear and convincing reasons, supported by substantial evidence, for discounting Plaintiff's subjective statements.

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        C. The ALJ Properly Considered Richard Hinrichs's Third Party Function Report

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                Plaintiff argues that the ALJ failed to properly assess the testimony and statements of Plaintiff's husband, lay witness Richard Hinrichs. (MSPC at 8). When determining a claimant's disability, an ALJ is "required to consider and comment upon competent lay testimony, as it concerns how the claimant's impairments impact his ability to work. " Bruce v. Astrue 557 F. 3d 1113, 1115-16 (9th Cir. 2009). Disregarding the testimony of a plaintiff's friends or family members without adequate justification violates 20 C. F. R. § 404. 1513(e)(2)(1991). Smolen 80 F. 3d at 1288. However, the ALJ may reject lay testimony provided that she gives "reasons for doing so that are 'germane to the witness. '" Carmickle 533 F. 3d at 1164 (quoting Greger v. Barnhart 464 F. 3d 968, 972 (9th Cir. 2006). "Inconsistency with medical evidence is one such reason. " Bayliss v. Barnhart 427 F. 3d 1211, 1218 (9th Cir. 2005) (internal citation omitted). It is proper for an ALJ to reject lay witness testimony or portions of lay witness testimony that conflict with the objective medical evidence or the plaintiff's daily activities. Id.

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                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                The ALJ proffered two reasons for rejecting Mr. Hinrichs's testimony. First, the ALJ concluded that the medical evidence conflicted with Mr. Hinrichs's Third Person Function Report. Second, the ALJ emphasized that Mr. Hinrichs's testimony appeared to be no more than a "parroting" of Plaintiff's subjective complaints. (AR 17). Both were legitimate reasons for rejecting Mr. Hinrich's testimony.

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                As discussed above, the medical evidence the ALJ considered and discussed at length indicated that Plaintiff did not suffer from disabling limitations, and that Plaintiff's medication and treatment were moderately successful in treating her symptoms. (AR 18-19). Mr. Hinrichs failed to acknowledge the effect of medications on his wife's symptoms or the evidence of improvement in the record.

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                Moreover, Mr. Hinrichs essentially repeated his wife's description of both her symptoms. (See AR 258-65). In addition to rejecting lay testimony that is inconsistent with medical evidence, the ALJ may reject third party testimony that does not add new substance to a claimant's testimony. See Molina 674 F. 3d at 1117 ("Where lay witness testimony does not describe any limitations not already described by the claimant, and the ALJ's well-supported reasons for rejecting the claimant's testimony apply equally well to the lay witness testimony, it would be inconsistent with our prior harmless error precedent to deem the

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        Page 37

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        ALJ's failure to discuss the lay witness testimony to be prejudicial per se. "). Therefore, remand is not required on this ground.

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        VIII.
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        CONCLUSION

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                Consistent with the foregoing, IT IS ORDERED that Judgment be entered AFFIRMING the decision of the Commissioner. The Clerk of the Court shall serve copies of this Order and the Judgment on counsel for both parties.

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        DATED: September 29, 2014

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                /s/_________        SUZANNE H. SEGAL        UNITED STATES MAGISTRATE JUDGE

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        --------

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        Footnotes:

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                 Plaintiff makes inconsistent claims as to her disability onset date. In her application, she stated that her conditions became severe enough to keep her from working as of November 1, 2009. (AR 226). However, Plaintiff also stated that sh'e was able to work until June 3, 2010, seven months later. Id. For the sake of clarity the Court will refer to June 3, 2010 as the disability onset date.

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        The ALJ's Decision cites August 18, 2009 as the earliest treatment date. (AR 18). However, Plaintiff's treatment records show that she sought treatment for aches, edema, and shortness of breath on April 1, 2009 (AR 485), and these conditions are among those Plaintiff later cited as contributing to her disability. Previously, Plaintiff had undergone a total thyroidectomy operation on July 23, 2008. (AR 343).

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        Plaintiff lived in Wisconsin before moving to California in July 2010. (AR 34).

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        When determining whether a patient has fibromyalgia, doctors examine eighteen fixed locations ("points") on the body. Doctors press each point firmly to see if the patient flinches. Generally, if a patient flinches after compression of eleven or more points, she will be diagnosed with fibromyalgia. See Rollins v. Massanari 261 F. 3d 853, 863 (9th Cir. 2001).

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        Dr. Pamela Baeten examined Plaintiff on this visit. However, her report was addressed to Dr. Weisflock for review. (AR 383-84).

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        Plaintiff's pulmonologist visit is discussed below.

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        The ALJ's Decision appears to be in error as to the date of Dr. Maguire's sleep apnea diagnosis, erroneously recording it as June 6, 2 010. (Compare AR 18 and 419).

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        The record does not indicate which doctor(s) treated Plaintiff at AMG, but Plaintiff's subsequent referral for laboratory tests came from AMG physician Surya Reddy, M. D.

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        Plaintiff's rheumatologist visit is discussed below.

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        Plaintiff's counsel told the ALJ that Plaintiff weighed at least 350 pounds at all relevant times. (AR 32).

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        This appears to be the first mention of back pain in the patient's medical record, although she had previously reported generalized pain related to her fibromyalgia.

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        According to Dr. Ramaswamy's notes of a subsequent appointment, on January 29, 2011, Plaintiff said her hands "felt better" due to Prednisone, but that this medication "did not help" her shoulders or neck. (AR 640).

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        The Court understands "MTX" to be medical shorthand for Methotrexate, an anti-inflammatory drug commonly prescribed for rheumatoid arthritis, psoriasis, and certain cancers. See Methotrexate, MedlinePlus, http: //www. nlm. nih. gov/medlineplus/druginfo/meds/a682019. html#why (last visited Sept. 17, 2014).

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        According to Dr. Adeyemo's notes, Plaintiff reported taking five medications: Synthroid, Wellbutrin, Cymbalta, Lasix, and Prednisone. (AR 530). This list differs from the list AMG recorded in an office visit report one day later: Synthroid, Wellbutrin, Cymbalta, Furosemide (Lasix), Ventolin, Symbicort, Vicodin, Spiriva, and Naproxen. (AR 561). Curiously, AMG's listing of Plaintiff's prescriptions omitted Prednisone even though another part of the same visit report mentioned Plaintiff's use of the drug. (Id. )

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        A GAF score between sixty-one and seventy indicates "some mild symptoms (e. g depressed mood and mild insomnia) or some difficulty in social, occupational, or school functioning (e. g occasional truancy, or theft within the household), but generally functioning pretty well, has some meaningful interpersonal relationships. " American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders Fourth Edition, Text Revision (DSM-IV-TR), 34 (2000).

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        Plaintiff was previously employed as a social worker, social work manager and school tutor. (AR 236).

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        Although she told the ALJ that she walked her children to these activities, Plaintiff did not check a box on the Application indicating that she walked on some of her trips out of the house. (AR 246). She also indicated that walking caused her pain and shortness of breath (AR 248).

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        A physical or mental impairment is considered "severe" if it "significantly limits the claimant's physical or mental ability to do basic work activities. " 20 C. F. R. § 404. 1520

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        The Court notes that the ALJ omitted mention of at least one claim by Plaintiff that further calls her credibility into question: her statement to the AMG physician, on March 2, 2012, that she had "never tried to stop smoking" and was still smoking as of that date. (AR 684). This admission directly contradicted Plaintiff's numerous statements to other physicians that she quit smoking on February 14, 2010. (See, e. g. AR 389, 423).

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                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        Footnotes:

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        Plaintiff makes inconsistent claims as to her disability onset date. In her application, she stated that her conditions became severe enough to keep her from working as of November 1, 2009. (AR 226). However, Plaintiff also stated that she was able to work until June 3, 2010, seven months later. Id. For the sake of clarity the Court will refer to June 3, 2010 as the disability onset date.

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        The ALJ's Decision cites August 18, 2009 as the earliest treatment date. (AR 18). However, Plaintiff's treatment records show that she sought treatment for aches, edema, and shortness of breath on April 1, 2009 (AR 485), and these conditions are among those Plaintiff later cited as contributing to her disability. Previously, Plaintiff had undergone a total thyroidectomy operation on July 23, 2008. (AR 343).

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        Plaintiff lived in Wisconsin before moving to California in July 2010. (AR 34).

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        When determining whether a patient has fibromyalgia, doctors examine eighteen fixed locations ("points") on the body. Doctors press each point firmly to see if the patient flinches. Generally, if a patient flinches after compression of eleven or more points, she will be diagnosed with fibromyalgia. See Rollins v. Massanari 261 F. 3d 853, 863 (9th Cir. 2001).

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        Dr. Pamela Baeten examined Plaintiff on this visit. However, her report was addressed to Dr. Weisflock for review. (AR 383-84).

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        Plaintiff's pulmonologist visit is discussed below.

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        The ALJ's Decision appears to be in error as to the date of Dr. Maguire's sleep apnea diagnosis, erroneously recording it as June 6, 2 010. (Compare AR 18 and 419).

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        The record does not indicate which doctor(s) treated Plaintiff at AMG, but Plaintiff's subsequent referral for laboratory tests came from AMG physician Surya Reddy, M. D.

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        Plaintiff's rheumatologist visit is discussed below.

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        Plaintiff's counsel told the ALJ that Plaintiff weighed at least 350 pounds at all relevant times. (AR 32).

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        This appears to be the first mention of back pain in the patient's medical record, although she had previously reported generalized pain related to her fibromyalgia.

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        According to Dr. Ramaswamy's notes of a subsequent appointment, on January 29, 2011, Plaintiff said her hands "felt better" due to Prednisone, but that this medication "did not help" her shoulders or neck. (AR 640).

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        The Court understands "MTX" to be medical shorthand for Methotrexate, an anti-inflammatory drug commonly prescribed for rheumatoid arthritis, psoriasis, and certain cancers. See Methotrexate, MedlinePlus, http: //www. nlm. nih. gov/medlineplus/druginfo/meds/a682019. html#why (last visited Sept. 17, 2014).

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        According to Dr. Adeyemo's notes, Plaintiff reported taking five medications: Synthroid, Wellbutrin, Cymbalta, Lasix, and Prednisone. (AR 530). This list differs from the list AMG recorded in an office visit report one day later: Synthroid, Wellbutrin, Cymbalta, Furosemide (Lasix), Ventolin, Symbicort, Vicodin, Spiriva, and Naproxen. (AR 561). Curiously, AMG's listing of Plaintiff's prescriptions omitted Prednisone even though another part of the same visit report mentioned Plaintiff's use of the drug. (Id. )

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        A GAF score between sixty-one and seventy indicates "some mild symptoms (e. g depressed mood and mild insomnia) or some difficulty in social, occupational, or school functioning (e. g occasional truancy, or theft within the household), but generally functioning pretty well, has some meaningful interpersonal relationships. " American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders Fourth Edition, Text Revision (DSM-IV-TR), 34 (2000).

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        Plaintiff was previously employed as a social worker, social work manager and school tutor. (AR 236).

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        Although she told the ALJ that she walked her children to these activities, Plaintiff did not check a box on the Application indicating that she walked on some of her trips out of the house. (AR 246). She also indicated that walking caused her pain and shortness of breath (AR 248).

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        A physical or mental impairment is considered "severe" if it "significantly limits the claimant's physical or mental ability to do basic work activities. " 20 C. F. R. § 404. 1520

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        The Court notes that the ALJ omitted mention of at least one claim by Plaintiff that further calls her credibility into question: her statement to the AMG physician, on March 2, 2012, that she had "never tried to stop smoking" and was still smoking as of that date. (AR 684). This admission directly contradicted Plaintiff's numerous statements to other physicians that she quit smoking on February 14, 2010. (See, e. g. AR 389, 423).

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                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        Cited By
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        Cites
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        Fair v. Bowen, 885 F.2d 597 (9th Cir., 1989)
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        Decision Date: 1989-09-13 Citations: 19
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        Key v. Heckler, 754 F.2d 1545 (C.A.9 (Cal.), 1985)
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        Decision Date: 1985-03-08 Citations: 13
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        Negative Treatment
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        Notes

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