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Case 5:12-cv-01183-SS Document 20 Filed 07/11/13 Page 1 of 27 Page ID #:896

UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA

Plaintiff,

v.

VIRGINIA VALENZUELA,

)
)
)
)
)
)
CAROLYN W. COLVIN,
)
)
Acting Commissioner of the
Social Security Administration, )
)
)
_______________________________)

Defendant.

NO. EDCV 12-1183 SS

MEMORANDUM DECISION AND ORDER

I.

INTRODUCTION

Virginia Valenzuela (“Plaintiff”) seeks review of the Commissioner
of the Social Security Administration’s (“the Commissioner” or the
"Agency") decision denying her disability benefits.1 The parties have
consented, pursuant to 28 U.S.C. § 636, to the jurisdiction of the

1 The Court notes that Carolyn W. Colvin became the Acting
Commissioner of the Social Security Administration on February 14, 2013.
Accordingly, pursuant to Rule 25(d) of the Federal Rules of Civil
Procedure, the Court orders that the caption be amended to substitute
Carolyn W. Colvin for Michael J. Astrue as the defendant in this action.

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Case 5:12-cv-01183-SS Document 20 Filed 07/11/13 Page 2 of 27 Page ID #:897

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

II.

PROCEDURAL HISTORY

On February 13, 2008, Plaintiff filed applications for Disability
Insurance Benefits (“DIB”) and Supplemental Security Income (“SSI”).
(Administrative Record (“AR”) 108, 111). Plaintiff alleged disability
beginning January 11, 2008 due to limitations from asthma, sleep apnea,
diabetes, high blood pressure and obesity. (AR 134). The Agency denied
Plaintiff’s DIB and SSI applications on April 1, 2008, and after
reconsideration, on July 2, 2008. (AR 46-49, 54-59).

Plaintiff then filed a request for hearing before an Administrative
Law Judge (“ALJ”). (AR 61-68). The hearing took place on August 27,
2009, with ALJ Mason D. Harrell, Jr. presiding. (AR 20-41). The ALJ
issued an unfavorable decision on November 17, 2009, finding Plaintiff
capable of performing a limited range of sedentary work. (AR 7-19).
Plaintiff then filed a request for review of the ALJ’s decision before
the Appeals Council on January 5, 2010. (AR 5). On July 17, 2010, the
Appeals Council denied Plaintiff’s request and the ALJ’s decision became
the final decision of the Commissioner. (AR 1-3).

On August 25, 2010, Plaintiff appealed the Appeals Council’s
decision by seeking judicial review in this Court. On June 28, 2011,
this Court remanded the matter to the Commissioner for further
proceedings. (AR 541-53). Pursuant to this Court’s remand order, the

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Case 5:12-cv-01183-SS Document 20 Filed 07/11/13 Page 3 of 27 Page ID #:898

Appeals Council instructed the ALJ to consider all of the relevant
medical evidence and give proper weight to the treating physician’s
opinion, further assess Plaintiff’s credibility, and obtain further
testimony from a vocational expert. (AR 493).

After this Court’s January 6, 2012 order remanding the case for
further proceedings, a second hearing was held before a different ALJ.
(AR 558). On March 22, 2012, ALJ Duane D. Young issued a partially
favorable decision, finding that Plaintiff’s asthma condition met the
requirements of Listing 3.03(B) between January 31, 2006 and December
31, 2007, rendering her disabled during that period of time. (AR 497-
98). The ALJ also found medical improvement by January 1, 2008, the
date Plaintiff’s disability ended. (AR 500). Subsequent to January 1,
2008, the ALJ found that Plaintiff had the residual functional capacity
to perform a limited range of sedentary work, and therefore could return
to her past relevant work. (AR 500, 504). Plaintiff filed the instant
action on July 20, 2012.

III.

FACTUAL BACKGROUND

Plaintiff was born March 27, 1966. (AR 129). Plaintiff completed
school through the twelfth grade. (AR 139). Plaintiff has a history
of asthma, obesity, sleep apnea, hypertension, and diabetes. The
medical record shows that Plaintiff was primarily treated by Tarek Z.
Madhi, M.D. at Parkview Community Hospital. However, several other
physicians from the Riverside Family Physicians group saw Plaintiff on

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Case 5:12-cv-01183-SS Document 20 Filed 07/11/13 Page 4 of 27 Page ID #:899

several occasions during the relevant time periods. (AR 172-268, 269-
390, 391-446).

A.

Medical History

On December 22, 2005, Plaintiff went to the emergency room
complaining of shortness of breath. (AR 350). Intake notes show
Plaintiff had an upper respiratory infection that she had been treating
with antibiotics for four days. (Id.). Plaintiff complained that her
nebulizer was not helping her breathing. (Id.). Plaintiff was
diagnosed with an asthma exacerbation and discharged in stable
condition. (AR 353). Medical notes from December 30, 2005 indicate
that Plaintiff received medical treatment for a bad cough and was
diagnosed with asthmatic bronchitis. (AR 191). Plaintiff’s weight was
then in excess of 350 pounds. (Id.).

On May 7, 2006, Plaintiff was admitted to the emergency room for
shortness of breath, which she had been experiencing for four days. (AR
371-73). Plaintiff was diagnosed with exercise-induced asthma. (Id.).
Again, on May 8, 2006 Plaintiff presented with an asthma attack. (AR
187). Dr. Madhi noted that Plaintiff could walk approximately fifteen
minutes before experiencing shortness of breath. (Id.). Plaintiff was
using Advair to control her asthma and Albuterol, through a nebulizer,
to control symptom flares. (Id.). Plaintiff stated that she used the
nebulizer three to four times a day, but that it did not help. (Id.).
Plaintiff was then readmitted to the emergency room at Parkview
Community Hospital on May 24, 2006 with another asthma attack and again
on May 31, 2006 for asthma and bronchitis. (AR 366, 181-82).

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Case 5:12-cv-01183-SS Document 20 Filed 07/11/13 Page 5 of 27 Page ID #:900

On July 18, 2006, Plaintiff was diagnosed with bronchitis at a
follow-up appointment. (AR 237). On August 9, 2006, Plaintiff visited
Dr. Madhi after participating in a sleep study. (AR 175). Dr. Madhi
directed Plaintiff to continue using Advair and Albuterol at home.
(Id.). On September 27, 2006, Plaintiff allegedly injured her right
knee and had pain in her ankle. (AR 173, 378). A week and a half
later, Plaintiff had X-rays and a CT scan. (AR 195-98). The tests
revealed that there was no fracture. (Id.). However, there was some
soft tissue swelling. (Id.).

On January 5, 2007, Plaintiff met with Dr. Madhi for chronic
asthma. (AR 231). Dr. Madhi noted that Plaintiff became short of
breath walking two blocks. (Id.). Two days later, on January 7, 2007,
Plaintiff presented to the emergency room with severe shortness of
breath. (AR 207). Plaintiff was diagnosed with an asthma exacerbation
and was put on oxygen by Amiksha Patel, M.D. (Id.). On January 9,
2007, Plaintiff was discharged. (AR 203). Dr. Madhi instructed
Plaintiff to take Albuterol four times a day as needed through a hand-
held nebulizer, take one puff of Advair twice a day and follow up in a
week. (AR 203-04). Further notes show Plaintiff was instructed to lose
weight. (AR 203).

On April 24, 2007, Plaintiff went to the emergency room with
shortness of breath, which had been increasing in severity for one week.
(AR 203). Neither Plaintiff’s nebulizer, nor the several treatments she
received on intake, improved her condition. (Id.). Plaintiff was
diagnosed with an asthma exacerbation. (Id.).

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Case 5:12-cv-01183-SS Document 20 Filed 07/11/13 Page 6 of 27 Page ID #:901

Nonetheless, Dr. Madhi’s notes from May 7, 2007 show that Plaintiff
was doing well and that her asthma was stable. (AR 225-26). On July
27, 2007, Plaintiff reported to the emergency room with left upper chest
pain. However, a heart attack was ruled out after several tests and
Plaintiff was discharged three days later, pain free. (AR 295).

Plaintiff went to the emergency room on November 28, 2007. (AR
441). Plaintiff was diagnosed with asthma and bronchitis and discharged
the same day. (AR 443). On December 2, 2007, Plaintiff returned to the
emergency room with a moderate cough. (AR 315). Dr. Madhi diagnosed
Plaintiff with an asthma exacerbation, again discharging her on the same
day. (AR 317).

On December 31, 2007, Plaintiff went to the emergency room for a
laceration to the head. (AR 326). Plaintiff’s respiration was “even
and unlabored,” her lungs were clear, and there were no signs of
respiratory distress. (Id.). CT scans confirmed that there was no
fracture or subluxation of the knee. (AR 297).

Plaintiff returned January 2, 2008 to the emergency department for
an examination of her head wound and knee. (AR 331). Plaintiff was
discharged in stable condition. (Id.). Plaintiff had “no new
complications or complaints.” (AR 332). On January 7, 2008, Plaintiff
had a routine appointment with Dr. Madhi for her diabetes. (AR 220).
Dr. Madhi advised Plaintiff to engage in regular aerobic activity, such
as brisk walking, for at least thirty minutes a day, most days of the
week. (Id.). Plaintiff met with her primary physician, Dr. Madhi,

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again on March 19, 2008. (AR 468). Dr. Madhi advised Plaintiff to
engage in regular aerobic activity. (Id.).

Plaintiff saw orthopedic surgeon, Stephen P. Suzuki, M.D., on March
27, 2008, regarding her December 2007 knee injury. (AR 447). Dr.
Suzuki diagnosed Plaintiff with traumatic chondromalacia patella, or
swelling of the underside of the patella. (Id.). Dr. Suzuki prescribed
over-the-counter, non-steroidal anti-inflammatory medications, a home
exercise program with ice, and physical therapy. (Id.).

On April 21, 2008, Plaintiff saw Dr. Madhi for diabetes. (AR 470).
Plaintiff was described as “well appearing” and “in no distress.”(Id.).
Dr. Madhi advised Plaintiff to engage in regular brisk aerobic physical
activity and requested a follow up in one month for a blood pressure
check. (AR 471). Plaintiff saw Dr. Madhi for hypertension on June 9,
2008. (AR 472). Again, Plaintiff was “well appearing” and “in no
distress.” (Id.). Dr. Madhi emphasized the importance of exercising
for a half an hour or more most days of the week and encouraged
Plaintiff to adjust her diet. (AR 472-73).

On September 19, 2008, Plaintiff saw Dr. Madhi for spontaneous
vertigo. (AR 474). Dr. Madhi told Plaintiff the illness was not
serious, but also that she should avoid working at heights. (Id.).
Additional notes from Plaintiff’s visit with Dr. Madhi show that
Plaintiff “[had not] been checking [her blood] sugars much”. (Id.).

Nearly three months later, on January 13, 2008, Plaintiff had an
appointment for hypertension with Dr. Madhi. (AR 476). Dr. Madhi noted

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Case 5:12-cv-01183-SS Document 20 Filed 07/11/13 Page 8 of 27 Page ID #:903

that Plaintiff did not take her medications that day. (Id.). Dr. Madhi
again stressed the importance of regular exercise and encouraged
Plaintiff to adjust her caloric intake. (AR 477).

B.

State Agency Physicians

On March 28, 2008, state agency physician Salvatorre Stella, M.D.,
assessed Plaintiff’s residual functional capacity (“RFC”). (AR 456).
Dr. Stella concluded that Plaintiff had a light RFC. (AR 458). Dr.
Stella determined that Plaintiff could lift twenty pounds occasionally
and ten pounds frequently. (AR 453). Dr. Stella further determined
that Plaintiff could stand or walk with normal breaks for six hours in
an eight hour workday and sit for a total of about six hours in an eight
hour workday. (Id.). Dr. Stella also found that Plaintiff could
occasionally climb ramps or stairs and balance, stoop, kneel, crouch,
crawl, but never climb scaffolds or ropes. (AR 454). Furthermore, Dr.
Stella determined that Plaintiff should avoid pulmonary irritants and
heavy moving machinery. (AR 455). Finally, Dr. Stella found that the
medical evidence did not support Plaintiff’s use of a walker. (AR 458).

On July 2, 2008, state agency physician R. Jacobs, M.D., reviewed
Dr. Stella’s assessment of Plaintiff’s RFC on reconsideration. (AR
460). Plaintiff presented Dr. Jacobs with new medical records
evidencing her chondromalacia patella. (Id.). Dr. Jacobs found that
the new evidence did not change Plaintiff’s RFC. (Id.). Accordingly,
Dr. Jacobs affirmed Dr. Stella’s original assessment. (Id.).

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Case 5:12-cv-01183-SS Document 20 Filed 07/11/13 Page 9 of 27 Page ID #:904

C.

Plaintiff’s Testimony

In Plaintiff’s disability report, Plaintiff listed sleep apnea,
diabetes, asthma, high blood pressure, and obesity as conditions that
limited her ability to work. (AR 134). Furthermore, in Plaintiff’s
Asthma Questionnaire from June 2008, Plaintiff claimed to have asthma
attacks twice a month. (AR 501). In the Questionnaire, Plaintiff also
stated that it had been one year since she last went to the emergency
room because of an asthma attack. (Id.).

In an Exertional Questionnaire from June 2008, Plaintiff stated
that her typical day included washing dishes and helping with the
laundry. (AR 162). Plaintiff also wrote that she could walk a quarter
mile in ten to fifteen minutes, but would be short of breath, and that
she could lift a plastic chair and carry two gallons of milk. (AR 162-
63).

At Plaintiff’s hearing on January 6, 2012, in front of ALJ Duane
D. Young, Plaintiff testified that she began using a nebulizer in 2003
and that she used it three to six times a day. (AR 569-70). Plaintiff
acknowledged using the nebulizer consistently since 2003. (AR 574,
576). Plaintiff further explained that she was able to control her
asthma because she had lost over one hundred and twenty-five pounds over
the past two and a half years. (AR 573-74). Additionally, Plaintiff’s
counsel recognized that prior to 2007 Plaintiff had been using an
inhaler.

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D. New Evidence

Plaintiff submitted new evidence, not evaluated by either ALJ, to
this Court. The new evidence consists of medical records from April
2009 through April 2011. (Plaintiff’s Exhibit A (“Pl’s Ex. A”). On
April 28, 2009, Plaintiff received treatment for an upper respiratory
infection at Parkview Community Hospital. (Pl’s Ex. A at 4). Plaintiff
was diagnosed with acute bronchitis. (Id.). On August 28, 2009,
Plaintiff visited the doctor on account of heavy bleeding and was
assessed with menorrhagia. (Pl’s Ex. A at 6). On October 29, 2009,
Plaintiff saw Dr. Madhi to receive the flu vaccine and lab results.
(Pl’s Ex. A at 8). At this time, Plaintiff had lost thirty five pounds
and weighed three hundred and sixty-five pounds. (Id.).

In 2010, Plaintiff made five visits to Parkview Community Hospital.
On April 26, 2010, Plaintiff reported to the hospital for upper
abdominal pain. (Pl’s Ex. A at 9). The CT scan was negative. (Id.).
Plaintiff’s weight was down to three hundred and thirty-one pounds.
(Id.). On July 2, 2010, Plaintiff went to see Dr. Madhi for pain in her
tailbone. (Pl’s Ex. A at 12). Plaintiff saw Dr. Madhi again for her
tailbone on July 15, 2010. (Pl’s Ex. A at 14). On October 10, 2010,
Plaintiff reported to Parkview Community Hospital for upper right
quadrant pain and a rash on both hands. (Pl’s Ex. A at 16). Vicky N.
Mai, M.D. suggested it was gastroenteritis. (Id.). On her last visit
of 2010, November 29, Plaintiff reported to Parkview Community Hospital
with left ear pain. (Pl’s Ex. A at 18). Plaintiff was prescribed
Cortisporin, an antibiotic, for her ear. (Id.). Plaintiff weighed two
hundred and ninety-one pounds. (Id.).

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Case 5:12-cv-01183-SS Document 20 Filed 07/11/13 Page 11 of 27 Page ID #:906

The newly submitted records also show three visits to Parkview
Community Hospital in 2011. On February 3, 2011, Plaintiff met with Dr.
Madhi for high blood pressure. (Pl’s Ex. A at 20). Plaintiff also
complained of diarrhea, caused by gastroenteritis, for three days.
(Id.). Dr. Madhi stressed the importance of exercising for thirty to
forty-five minutes most days of the week. (Id.). On February 10, 2011,
Plaintiff was diagnosed with acute sinusitis. (Pl’s Ex. A at 22).
Plaintiff’s weight was two hundred and eighty-seven pounds. (Id.). The
last medical record is from April 14, 2011. (Pl’s Ex. A at 24).
Plaintiff was diagnosed with another upper respiratory infection, acute
bronchitis. (Id.). Plaintiff’s final weight reflected in the record
was two hundred and eighty-three pounds. (Id.).

THE FIVE-STEP SEQUENTIAL EVALUATION PROCESS

IV.

To qualify for disability benefits, a claimant must demonstrate a
medically determinable physical or mental impairment that prevents him
from engaging in substantial gainful activity2 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. § 423(d)(1)(A)). The impairment must render the claimant
incapable of performing the work he previously performed and incapable
of performing any other substantial gainful employment that exists in

2 Substantial gainful activity means work that involves doing
significant and productive physical or mental duties and is done for pay
or profit. 20 C.F.R. §§ 404.1510, 416.910.

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Case 5:12-cv-01183-SS Document 20 Filed 07/11/13 Page 12 of 27 Page ID #:907

the national economy. Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir.
1999) (citing 42 U.S.C. § 423(d)(2)(A)).

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

(1)

(2)

(3)

(4)

(5)

Is the claimant presently engaged in substantial gainful
activity? If so, the claimant is found not disabled.
If not, proceed to step two.

Is the claimant’s impairment severe? If not, the
claimant is found not disabled. If so, proceed to step
three.

Does the claimant’s impairment meet or equal one of a
list of specific impairments described in 20 C.F.R. Part
404, Subpart P, Appendix 1? If so, the claimant is
found disabled. If not, proceed to step four.

Is the claimant capable of performing her past work? If
so, the claimant is found not disabled. If not, proceed
to step five.

Is the claimant able to do any other work? If not, the
claimant is found disabled. If so, the claimant is
found not disabled.

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Tackett, 180 F.3d at 1098-99; see also 20 C.F.R. §§ 404.1520(a)(4)(i)-
(v), 416.920(a)(4)(i)-(v); Bustamante v. Massanari, 262 F.3d 949, 953-54
(9th Cir. 2001) (citations omitted).

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. If, at step four, the claimant meets his 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 RFC, age, education, and work experience. Tackett, 180 F.3d
at 1098, 1100; Reddick, 157 F.3d at 721; 20 C.F.R. §§ 404.1520(a)(4)(v),
416.920(a)(4)(v). The Commissioner may do so by the testimony of a VE
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 nonexertional
limitations, the Grids are inapplicable and the ALJ must take the
testimony of a VE. Moore v. Apfel, 216 F.3d 864, 869 (9th Cir. 2000).

V.

THE ALJ’S DECISION

On March 22, 2012, ALJ Duane D. Young issued a partially favorable
decision, finding Plaintiff disabled from January 31, 2006 through
December 31, 2008. (AR 506). The ALJ employed the five-step sequential
evaluation process, (AR 494-95), and concluded that after December 31,
2007, Plaintiff was not disabled within the meaning of the Social

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Security Act. (AR 506). At the first step, the ALJ observed that
Plaintiff had not engaged in substantial gainful activity since the
alleged onset of Plaintiff’s disability, January 31, 2006. (AR 497).
Next, the ALJ found that during the period of Plaintiff’s disability,
Plaintiff’s severe impairments were asthma, obesity, diabetes mellitus,
and right knee degenerative changes. (Id.). At step three, the ALJ
found that the severity of Plaintiff’s asthma met the criteria of
Listing 3.03B of 20 C.F.R. Part 404, subpart P, Appendix 1 from January
31, 2006 to December 31, 2008. (AR 497-499). Accordingly, the ALJ
found Plaintiff disabled during that time. (AR 499).

The ALJ next considered whether Plaintiff’s disability continued
through the date of the decision, March 22, 2012. (AR 492). To
determine whether Plaintiff’s disability continued, the ALJ applied the
medical improvement analysis from 20 C.F.R. § 416.994. (AR 495). The
ALJ first determined that Plaintiff’s severe impairments, subsequent to
December 31, 2007, were the same as during the time of her disability.
(AR 499). Next, the ALJ considered Plaintiff’s severe impairments, both
singly and in combination, beginning January 1, 2008. (AR 500). The
ALJ found that Plaintiff’s severe impairments did not meet or medically
equal the criteria of any medical listing. (Id.). Accordingly the ALJ
found that medical improvement had occurred as of January 1, 2008 and
that Plaintiff no longer met Listing 3.03B. (Id.).

Finally, the ALJ found that, beginning January 1, 2008, Plaintiff
had the residual functional capacity to perform sedentary work. (Id.).
The ALJ noted that Plaintiff was precluded from climbing ladders, ropes
and scaffolds; could only occasionally balance, stoop, kneel, crouch,

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crawl, push and pull with the right lower extremity, and climb ramps and
stairs; must avoid concentrated exposure to workplace hazards, even
moderate exposure to pulmonary irritants; and must have a sit and stand
option. (Id.). The ALJ then determined that since January 1, 2008,
Plaintiff was capable of performing her past relevant work as a
telemarketer, receptionist or telephone operator. (AR 504).

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); Smolen v.
Chater, 80 F.3d 1273, 1279 (9th Cir. 1996).

“Substantial evidence is more than a scintilla, but less than a
preponderance.” Reddick, 157 F.3d at 720. It is “relevant evidence
which a reasonable person might accept as adequate to support a
conclusion.” (Id.). To determine whether substantial 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.

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VII.

DISCUSSION

Plaintiff contends that the ALJ failed to consider all of the
relevant medical evidence. She also maintains that the ALJ improperly
disregarded Plaintiff’s subjective testimony. Finally, Plaintiff argues
that the ALJ failed to properly consider the relevant vocational
evidence. The Court disagrees with Plaintiff's contentions and finds
that the ALJ's decision should be affirmed.

A.

The ALJ Properly Considered The Relevant Medical Evidence

Plaintiff argues that the ALJ “arbitrarily determined without any
supporting medical documentation that Plaintiff’s asthmatic condition
improved on January 1, 2008.” (Plaintiff’s Memorandum in Support of
Complaint “Pl’s MSC at 4). Plaintiff further maintains that the new
medical records, not seen by the ALJ, are material and should be
considered. (Pl’s MSC at 5). However, the ALJ properly considered the
medical record, which is consistent with a finding of Plaintiff’s
improvement by January 1, 2008. Moreover, remand for consideration of
the new evidence is not required as the new evidence is not material.

Social Security regulations require the ALJ to consider all the
relevant medical evidence when determining whether a claimant is
disabled. 20 C.F.R. §§ 404.1520(b), 416.927(c). One acceptable source
of medical evidence is medical reports from licensed medical physicians.
20 C.F.R. § 1513(a),(b). When considering medical reports, the ALJ must
give the greatest weight to the opinion of the claimant’s treating

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physicians. Turner v. Comm’r of Soc. Sec. Admin., 613 F.3d 1217, 1222
(9th Cir. 2010). If an ALJ rejects or ignores a treating physician's
opinion, the ALJ must give specific reasons for doing so. Taylor v.
Comm’r of Soc. Sec. Admin., 659 F.3d 1228, 1234 (9th Cir. 2011).
Further, while the ALJ is required to develop and interpret the medical
record, the ALJ is not required to discuss every piece of evidence.
Howard ex rel. Wolff v. Barnhart, 341 F.3d 1006, 1012 (9th Cir. 2003).

Here, the ALJ determined that Plaintiff was disabled from January
31, 2006 to December 31, 2007. (AR 497-499). At step three of the
five-step inquiry, a claimant is considered disabled if they meet one
of the statutory Listings. 20 C.F.R. §§ 404.1520, 416.920. To meet the
criteria of Listing 3.03B, a claimant must suffer from asthma attacks
at least once every two months or at least six times a year, despite
treatment. 20 C.F.R. Pt. 404, Subpt. P, AP. 1, 3.03B. Hospitalizations
of more than 24 hours count as two attacks. Id. After examining the
record, the ALJ found that Plaintiff had at least six asthma attacks in
2006 and at least six asthma attacks in 2007. (AR 498). Therefore, the
ALJ properly found that Plaintiff met the requirements of 3.03B.
However, the medical record shows that after December 31, 2007,
Plaintiff’s hospitalization for asthma exacerbations ceased.

After December 31, 2007, Plaintiff saw her physicians for regular
diabetes and hypertension follow-ups, a head wound, a knee injury, and
a case of benign vertigo. (AR 220, 331, 468, 470-77). Plaintiff was
not, however, hospitalized for asthma, nor did she receive any emergency
treatment for asthma. Plaintiff argues that although she did not
receive any emergency treatment for asthma after January 1, 2008, she

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did receive significant treatment in the form of an in-home nebulizer.
(Pl’s MSC at 4). However, the lack of hospitalization shows that
Plaintiff’s in-home nebulizer use effectively controlled her asthma.
Warre v. Comm’r of Soc. Sec. Admin., 439 F.3d 1001, 1006 (9th Cir. 2006)
(“Impairments that can be controlled effectively with medication are not
disabling for the purpose of determining eligibility for SSI
benefits.”). Furthermore, the ALJ considered Plaintiff’s continued
asthma condition in the improvement analysis. The ALJ found that
Plaintiff could perform only sedentary work and placed specific
limitations on her exposure to pulmonary irritants. (AR 500). The
absence of asthma complications in the record, such as emergency room
visits, and hospitalizations after December 31, 2007 is a clear
indication of Plaintiff’s significant improvement. Accordingly,
substantial evidence in the record supports the ALJ’s finding of medical
improvement.

Plaintiff contends that the new medical records support her
disability claim and should be included in the administrative record.
(Pl’s MSC at 5). New evidence may be included in the record by remand
for reconsideration under 42 U.S.C. § 405(g). Under 42 U.S.C. § 405(g),
remand for new evidence is warranted only if the new evidence is
material. New evidence is material if it bears directly and
substantially on the matter in dispute and if there is a reasonable
possibility that the new evidence would have changed the outcome of the
determination. Luna v. Astrue, 623 F.3d 1032, 1034 (9th Cir. 2010)
(holding that when a claimant is awarded benefits on a second benefits
application one day after the denial of benefits on a first application,
remand is appropriate to determine whether medical evidence presented

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in the second application would affect the outcome of the first). Here,
Plaintiff’s new evidence is not material, and, if anything, adds further
support to the ALJ’s conclusion.

The new evidence consists of medical records from April 2009 to
April 2011. (Pl’s Ex. A). The new medical records fail to mention
asthma attacks, home nebulizer use, or breathing problems, except those
related to bronchitis and sinusitis. The records show Plaintiff to be
“well appearing” and “in no distress” and her lungs are generally
described as clear. (Pl’s Ex. A at 4, 7, 8, 16, 18, 20, 22, 24).
Additionally, Plaintiff’s doctor visits during that time were all
unrelated to asthma. Instead, Plaintiff saw her physicians for tailbone
pain, menstrual problems, ear pain and abdominal pain. (Pl’s Ex. A at
4, 6, 8, 12, 14, 18, 22, 24). Furthermore, the records show that
Plaintiff’s weight dropped from four hundred and twenty-three pounds to
two hundred and eighty-three pounds. (Pl’s Ex. A at 24). In general,
the new medical records show Plaintiff to be in substantially better
health than she was in the earlier records presented to the ALJ.
Accordingly there would be no change in the outcome even if the ALJ
considered the new evidence and remand for consideration of the new
evidence is not required.

B.

The ALJ Provided Clear And Convincing Reasons For Rejecting
Plaintiff’s Subjective Testimony

Plaintiff contends that the ALJ did not provide clear and
convincing reasons for rejecting Plaintiff’s testimony regarding her
respiratory issues. In particular, Plaintiff maintains that the ALJ

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improperly assessed Plaintiff’s credibility regarding her use of the in-
home nebulizer. The Court disagrees.

When assessing the credibility of a claimant, 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.).
Then, if there is, in order to reject the testimony, the ALJ must make
specific credibility findings. (Id.). In assessing the claimants
testimony, the ALJ may use “ordinary techniques of credibility
evaluation.” Turner, 613 F.3d at 1224 (internal quotations omitted).
The ALJ may also consider any inconsistencies in the claimants conduct
and any inadequately or unexplained failure to pursue treatment or
follow treatment. Tommasetti v. Astrue, 533 F.3d 1035, 1039 (9th Cir.
2008). Additionally, the ALJ may discredit the claimant’s testimony
where his normal activities can transfer to the work setting. Morgan
v. Comm’r of Soc. Sec. Admin., 169 F.3d 595, 600 (9th Cir. 1999).

Here, the ALJ applied the two-step analysis to Plaintiff’s
subjective testimony. (AR 502). At the first step, the ALJ found that
Plaintiff’s impairments could reasonably lead to the alleged symptoms.
(Id.). However, the ALJ rejected Plaintiff’s subjective testimony as
to the “intensity, severity, and limiting effects” of her symptoms after
January 1, 2008. (Id.). As required, the ALJ provided clear and
convincing reasons for rejecting Plaintiff’s testimony.

First, the ALJ found that the “evidence submitted [did] not support
the severity of symptoms alleged.” (AR 501). Plaintiff alleged that

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she was incapable of sustaining full-time employment because of her
asthma and nebulizer use, yet the medical record after January 1, 2008
shows minimal to no asthma complications. The ALJ also found that
Plaintiff “failed to follow treatment recommendations,” noting that
Plaintiff failed to take her medication on January 13, 2007. (Id.).
Additionally, the ALJ noted that “the lack of more aggressive
treatment[,] surgical intervention or even a referral to a specialist
suggest [Plaintiff’s] symptoms were not as severe as alleged.” (AR
502).

The ALJ also relied upon Plaintiff’s daily activities to reject her
subjective testimony. Plaintiff’s daily activities included doing the
laundry, helping with dishes, and grocery shopping when necessary. (AR
162-3). The ALJ noted that many of Plaintiff’s daily activities
required physical and mental abilities that are “the same as those
necessary for obtaining and maintaining employment and are inconsistent
with the presence of an incapacitating or debilitating condition.” (AR
502). Further, the ALJ found that these daily activities undermined
Plaintiff’s credibility regarding allegations of disabling functional
limitations. (Id.). The ALJ also found inconsistences in Plaintiff’s
testimony regarding activities she could perform. (Id.). For example,
Plaintiff alleged shortness of breath and right knee pain, yet she
stated in her questionnaire that she could walk a quarter of a mile.
(AR 162).

Finally, at the hearing, the ALJ questioned Plaintiff’s credibility
in regards to her nebulizer use. The ALJ explicitly advised Plaintiff
to retrieve records supporting the frequency of her in-home nebulizer

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use. (AR 502, 592, 594). However, no such records were ever submitted
to the ALJ. (AR 502). The ALJ noted that the failure to obtain and
submit such pertinent evidence also suggests that Plaintiff’s symptoms
and limitations were not as severe as alleged. (Id.).

Rather than simply reject Plaintiffs subjective testimony, the ALJ
systematically stated reasons supported by the record for rejecting
Plaintiff's alleged degree of limitations. Contrary to Plaintiff’s
contention that the ALJ improperly disregarded Plaintiff’s testimony,
the Court concludes that the ALJ presented clear and convincing reasons
for rejecting Plaintiff’s subjective testimony.

C.

The ALJ Properly Considered The Relevant Vocational Evidence

Plaintiff argues that the ALJ failed to properly consider the
relevant vocational evidence. Plaintiff contends that the ALJ failed
to consider the Vocational Expert’s (“VE”) response to the third
hypothetical question. The third hypothetical included the testimony
from the VE stating that the use of a nebulizer as frequently as
Plaintiff alleged would result in her inability to maintain employment.
(Pl’s MSC at 13). Plaintiff also maintains that the ALJ erred in
considering the job of receptionist as past relevant work.

As an initial matter, the ALJ posed three hypotheticals to the VE.
The first hypothetical described an individual exertionally limited to
light work activity and various other limitations. (AR 589). For the
second hypothetical, the ALJ asked the VE to consider an individual
limited to sedentary activity and with the other limitations described

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above in the ALJ’s findings.3 (AR 590). This hypothetical accurately
described Plaintiff’s RFC and limitations, as found by the ALJ. The
third hypothetical added the limitation that the individual would be
required to take a thirty-five minute break, in addition to lunch and
normal breaks, to account for the frequency of Plaintiff’s alleged
nebulizer use. (AR 591).

When an ALJ poses a hypothetical derived from the RFC to a
vocational expert, the hypothetical must include all the limitations and
restrictions of the particular claimant. Valentine v. Comm’r of Soc.
Sec. Admin., 574 F.3d 685, 690 (9th Cir. 2009). However, “[a]n ALJ is
free to accept or reject restrictions in a hypothetical question that
are not supported by substantial evidence.” Osenbrock v. Apfel, 240
F.3d 1157, 1164-65 (9th Cir. 2001).

In making his decision, the ALJ properly relied on only the second
hypothetical, which included all of Plaintiff’s limitations and
restrictions. Plaintiff failed to present medical evidence supporting
the frequency of her nebulizer use. Plaintiff also failed to present
any evidence demonstrating that she needed the nebulizer to the same
extent as she did previously. Further, as discussed above, the ALJ gave
clear and convincing reasons for discrediting Plaintiff’s subjective

3 The ALJ found Plaintiff was precluded from climbing ladders,
ropes and scaffolds; limited to no more than occasional balancing,
stopping, kneeling, crouching, crawling, and climbing ramps and stairs;
must avoid concentrated exposure to workplace hazards; she must avoid
even moderate exposure to pulmonary irritants; she is limited to no more
than occasional pushing and pulling with the right lower extremity; and
must have a sit stand option. (AR 500).

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testimony regarding her nebulizer use and the severity of her symptoms.
Therefore the limitations posed in the ALJ’s third hypothetical went
beyond the limitations that the ALJ found Plaintiff to have.
Accordingly the ALJ was free to disregard the VE’s answer to the third
hypothetical.

To support her claim, Plaintiff also argues that previous expert
testimony stated that Plaintiff’s need for nebulizer use during work
hours would preclude her from employment. (Id.). However, the VE’s
testimony at the first hearing was based on a different set of
additional limitations that were no longer present. Compare (AR 37-38)
with (AR 589-90). Here, the ALJ in relied only on those limitations
that he found at the second hearing, which did not include the same
degree of nebulizer use,4 and properly included those limitations in the
second hypothetical question posed to the VE. Accordingly, the ALJ did
not err in disregarding the VE’s answer to the third hypothetical
question.

Similarly, Plaintiff argues that the ALJ failed to discuss how
talking allegedly exacerbated Plaintiff’s asthma. Because all of the
occupations the ALJ identified as past relevant work included frequent
talking, Plaintiff claims that the ALJ erred in failing to properly
consider her talking limitation. (Id.). As the only evidence in
support of this limitation was Plaintiff’s own testimony, and the ALJ
made specific credibility findings rejecting Plaintiff’s subjective

4 As the ALJ noted, he requested documentation to support
Plaintiff's allegations regarding nebulizer use, but no documents were
submitted. (See AR 502).

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testimony, the ALJ was free to reject those limitations which were not
supported by the remainder of the record. Thus, the ALJ was not
required to consider the Plaintiff’s subjective testimony regarding
asthma exacerbations due to talking, as the record failed to support
these limitations.

Finally, Plaintiff contends that the ALJ’s conclusion that
Plaintiff could perform past relevant work as a receptionist is not
supported by substantial evidence. Specifically, Plaintiff maintains
that her job as a receptionist never rose to substantial gainful
activity. (Pl’s MSC at 12). This argument fails on two grounds.

The record shows that the job of receptionist qualifies as past
relevant employment for Plaintiff. Past relevant employment is
employment within the past fifteen years that amounted to substantial
gainful activity and lasted long enough for the claimant to learn how
to do it. 20 C.F.R. 404.1560. Substantial gainful activity is activity
that involves significant mental or physical activities and is done for
pay or profit. 20 C.F.R. § 404.1572(a),(b). One indication of
substantial gainful activity is the claimant's earnings. Lewis v.
Apfel, 236 F.3d 503, 515 (9th Cir. 2001). Generally earnings over seven
hundred dollars a month is evidence that the claimant has engaged in
substantial gainful activity. 20 C.F.R. § 404.1574(b)(2).

In her disability application, Plaintiff says she worked as a
receptionist between 1998 and 2003. (AR 130). Although one
receptionist position only lasted a few months, the other, titled
“receptionist/operator” was her longest, best paying job. (AR 135).

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During that time, Plaintiff earned $13,598.29 in 2000, $11,108.56 in
2001 and $12,547.93 in 2002. (AR 709). Plaintiff’s earnings as a
receptionist over this three-year period average well over the statutory
guidelines, indicating that her work as receptionist was substantial
gainful activity. Therefore, it was proper for the ALJ to consider
Plaintiff’s position of receptionist as past relevant work.

Even if considering the job of receptionist as past relevant work
was error, it was harmless error and does not require remand. “An ALJ’s
error is harmless when it is inconsequential to the ultimate
nondisability determination.” Molina, 674 F.3d at 1115 (internal
citations and quotations omitted). Here, the ALJ found that not only
could Plaintiff perform her past relevant work as a receptionist, but
also as a telemarketer and a telephone operator. (AR 504). If the ALJ
erred in finding the job of receptionist was past relevant work, he
nevertheless found two other jobs within Plaintiff’s RFC that Plaintiff
could perform and Plaintiff does not contend these two positions did not
result in substantial gainful activity. As such, if the conclusion
about the receptionist position was error, it was harmless error.

In sum, the ALJ properly included all of Plaintiff’s limitations
in the hypothetical he relied upon. The ALJ also properly considered
the job of receptionist as past relevant employment, and even if such
consideration was error, it was harmless error. Accordingly,
Plaintiff’s final claim that the ALJ failed to consider the relevant
vocational evidence fails.

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VIII.

CONCLUSION

Consistent with the foregoing, and pursuant to sentence four of 42
U.S.C. § 405(g),5 IT IS ORDERED that judgment be entered AFFIRMING the
decision of the Commissioner and dismissing this action with prejudice.
IT IS FURTHER ORDERED that the Clerk of the Court serve copies of this
Order and the Judgment on counsel for both parties.

DATED: July 11, 2013

________/S/___________________
SUZANNE H. SEGAL
UNITED STATES MAGISTRATE JUDGE

THIS MEMORANDUM IS NOT INTENDED FOR PUBLICATION NOR IS IT
INTENDED TO BE INCLUDED IN OR SUBMITTED TO ANY ONLINE SERVICE
SUCH AS WESTLAW OR LEXIS.

5 This sentence provides: “The [district] court shall have power
to enter, upon the pleadings and transcript of the record, a judgment
affirming, modifying, or reversing the decision of the Commissioner of
Social Security, with or without remanding the cause for a rehearing.”

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