Coaty v. Commissioner Social Security Administration

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF OREGON

EMILY C.,1 Case No. 1:13-cv-01348-AA

AMENDED OPINION AND ORDER

Plaintiff,

v.

CAROLYN W. COLVIN,

Commissioner of Social

Security,

Defendant.

Michael A. Halliday

Halliday Law, PC

494 State Street, Suite 250

Salem, Oregon 97301

Attorney for plaintiff

S. Amanda Marshall

Adrian Brown

Ronald K. Silver

United States Attorney’s Office

1000 S.W. Third Avenue, Suite 600

Portland, Oregon 97201

Diana Swisher Andsager

Social Security Administration

Office of General Counsel

701 Fifth Avenue, Suite 2900 M/S 221A

1 In the interest of privacy and pursuant to the Court’s Order (doc.34)

granting plaintiff’s Motion for Redaction (doc. 33), this amended opinion uses

only the first name and the initial of the last name of the non-governmental

party in this case. Where applicable this amended opinion uses the same

designation for a non-governmental party’s immediate family member.

Seattle, Washington 98104

Attorneys for defendant

AIKEN, District Judge:

Plaintiff Emily C. brings this action pursuant to the Social

Security Act (“Act”) to obtain judicial review of a final decision

of the Commissioner of Social Security (“Commissioner”). The

Commissioner denied plaintiff’s application for Title II

disability insurance benefits (“DIB”). For the reasons set forth

below, the Commissioner’s decision is affirmed and this case is

dismissed.

PROCEDURAL BACKGROUND

On May 6, 2010, plaintiff applied for DIB. Tr. 125-28. Her

application was denied initially and upon reconsideration. Tr. 86-

90, 92-95. On March 28, 2012, a hearing was held before an

Administrative Law Judge (“ALJ”), wherein plaintiff was represented

by counsel and testified, as did a vocational expert (“VE”). Tr.

34-81. On April 9, 2012, the ALJ issued a decision finding

plaintiff not disabled within the meaning of the Act. Tr. 21-28.

After the Appeals Council denied her request for review, plaintiff

filed a complaint in this Court.2 Tr. 5-14.

STATEMENT OF FACTS

Born on January 26, 1975, plaintiff was 31 years old on the

2 The record before the Court constitutes nearly 800 pages, but with

multiple incidences of duplication. Where evidence occurs in the record more

than once, the Court will generally cite to the transcript pages on which

that information first appears.

alleged onset date of disability and 37 years old at the time of

the hearing. Tr. 41, 125. Plaintiff graduated from high school and

a four-year college program. Tr. 43, 219. She worked previously as

a cook helper, receptionist, and human resources clerk. Tr. 44-47,

76, 139. Plaintiff alleges disability as of January 13, 2007, due

to a motor vehicle accident, which resulted in “[b]ack problems[,]

lumbar pain,” and fibromyalgia. Tr. 125, 160; Pl.’s Opening Br. 2.

STANDARD OF REVIEW

The court must affirm the Commissioner’s decision if it is

based on proper legal standards and the findings are supported by

substantial evidence in the record. Hammock v. Bowen, 879 F.2d

498,501 (9th Cir. 1989). Substantial evidence is “more than a mere

scintilla. It means such relevant evidence as a reasonable mind

might accept as adequate to support a conclusion.” Richardson v.

Perales, 402 U.S. 389, 401 (1971) (citation and internal quotations

omitted). The court must weigh “both the evidence that supports and

detracts from the [Commissioner’s] conclusions.” Martinez v.

Heckler, 807 F.2d 771, 772 (9th Cir. 1986). Variable

interpretations of the evidence are insignificant if the

Commissioner’s interpretation is rational. Burch v. Barnhart, 400

F.3d 676, 679 (9th Cir. 2005).

The initial burden of proof rests upon the claimant to

establish disability. Howard v. Heckler, 782 F.2d 1484, 1486 (9th

Cir. 1986). To meet this burden, the claimant must demonstrate an

“inability to engage in any substantial gainful activity by reason

of any medically determinable physical or mental impairment which

can be expected . . . to last for a continuous period of not less

than 12 months.” 42 U.S.C. § 423(d)(1)(A).

The Commissioner has established a five-step sequential

process for determining whether a person is disabled. Bowen v.

Yuckert, 482 U.S. 137, 140 (1987); 20 C.F.R. § 404.1502. First, the

Commissioner determines whether a claimant is engaged in

“substantial gainful activity.” Yuckert, 482 U.S. at 140; 20

C.F.R. § 404.1520(b). If so, the claimant is not disabled.

At step two, the Commissioner evaluates whether the claimant

has a “medically severe impairment or combination of impairments.”

Yuckert, 482 U.S. at 140-41; 20 C.F.R. § 404.1520(c). If the

claimant does not have a severe impairment, she is not disabled.

At step three, the Commissioner determines whether the

claimant’s impairments, either singly or in combination, meet or

equal “one of a number of listed impairments that the

[Commissioner] acknowledges are so severe as to preclude

substantial gainful activity.” Yuckert, 482 U.S. at 140-41; 20

C.F.R. § 404.1520(d). If so, the claimant is presumptively

disabled; if not, the Commissioner proceeds to step four. Yuckert,

482 U.S. at 141.

At step four, the Commissioner resolves whether the claimant

can still perform “past relevant work.” 20 C.F.R. § 404.1520(f). If

the claimant can work, she is not disabled; if she cannot perform

past relevant work, the burden shifts to the Commissioner. At step

five, the Commissioner must establish that the claimant can perform

other work existing in significant numbers in the national and

local economy. Yuckert, 482 U.S. at 141-42; 20 C.F.R. §

404.1520(g). If the Commissioner meets this burden, the claimant is

not disabled. 20 C.F.R. § 404.1566.

THE ALJ’S FINDINGS

At step one of the five step sequential evaluation process

outlined above, the ALJ found that plaintiff “did not engage in

substantial gainful activity during the period from her alleged

onset date of January 13, 2007[,] through her date last insured of

December 31, 2008.” Tr. 23. At step two, the ALJ determined that

plaintiff’s “cervical and lumbar strain” and “fractured ribs” were

medically determinable and severe. Id. At step three, the ALJ found

plaintiff’s impairments, either singly or in combination, did not

meet or equal the requirements of a listed impairment. Tr. 24.

Because she did not establish presumptive disability at step

three, the ALJ continued to evaluate how plaintiff’s impairments

affected her ability to work. The ALJ resolved that plaintiff

possessed the residual functional capacity (“RFC”) to “perform a

range of sedentary work as defined in [20 C.F.R. §] 404.1567(a)

except due to residual pain symptoms attributable to injuries

sustained in a 2007 motor vehicle accident, she could perform no

more than occasional stooping, crouching, crawling, bilateral

overhead reaching, or climbing of ladders[,] ropes, and scaffolds.”

Id.

At step four, the ALJ determined plaintiff could perform her

past relevant work as a receptionist and human resources clerk. Tr.

28. Accordingly, the ALJ concluded that plaintiff was not disabled

under the Act. Id.

DISCUSSION

Plaintiff argues that the ALJ erred by: (1) finding her not

fully credible; (2) rejecting medical evidence furnished by Clay

McCord, M.D., Mark Eaton, M.D., Thomas Treger, M.D., and Alden

Glidden, M.D., as well as physical therapists Ashlie Angel and

Caroline Riblett; and (3) “ma[king] incorrect representations of

the record.” Pl.’s Opening Br. 12.

I. Credibility

Plaintiff asserts that the ALJ failed to provide a clear and

convincing reason, supported by substantial evidence, for rejecting

her subjective symptom testimony concerning the severity of her

impairments. When a claimant has medically documented impairments

that could reasonably be expected to produce some degree of the

symptoms complained of, and the record contains no affirmative

evidence of malingering, “the ALJ can reject the claimant’s

testimony about the severity of . . . symptoms only by offering

specific, clear and convincing reasons for doing so.” Smolen v.

Chater, 80 F.3d 1273, 1281 (9th Cir. 1996) (citation omitted).

A general assertion that the claimant is not credible is

insufficient; the ALJ must “state which . . . testimony is not

credible and what evidence suggests the complaints are not

credible.” Dodrill v. Shalala, 12 F.3d 915, 918 (9th Cir. 1993).

The reasons proffered must be “sufficiently specific to permit the

reviewing court to conclude that the ALJ did not arbitrarily

discredit the claimant’s testimony.” Orteza v. Shalala, 50 F.3d

748, 750 (9th Cir. 1995) (internal citation omitted). If the “ALJ’s

credibility finding is supported by substantial evidence in the

record, [the court] may not engage in second-guessing.” Thomas v.

Barnhart, 278 F.3d 947, 959 (9th Cir. 2002) (citation omitted).

At the hearing, plaintiff testified that she became unable to

work as a result of her January 2007 motor vehicle accident, which

caused “excruciating pain . . . all throughout [her] body.” Tr. 49.

Plaintiff initially stated her pain “lasted well over six months;”

however, towards the end of the hearing, plaintiff remarked several

times that the “same complaints” and the “same pain” had existed

from the date of her accident to present. Tr. 50-51, 65. Beyond

reporting her capacity to engage in limited household chores, such

as cooking, laundry, and grocery shopping, plaintiff was unable to

recount the specific details of her daily activities or functional

abilities during the adjudication period. Tr. 54-59, 61-64, 66-70.

After summarizing her hearing testimony, the ALJ determined

that plaintiff’s medically determinable impairments could

reasonably be expected to produce some degree of symptoms, but her

statements regarding the extent of these symptoms were not fully

credible due to her failure to recall specific facts regarding the

time period in question, the lack of corroborating medical

evidence, and her activities of daily living. Tr. 25-27.

Specifically, the ALJ first noted plaintiff’s inability “to

recall certain details from prior to the date last insured.” Tr.

25. The ALJ may discredit a claimant’s testimony that is imprecise

“with respect to the alleged period of disability and pain

symptoms.” Tommasetti v. Astrue, 533 F.3d 1035, 1040 (9th Cir.

2008). In other words, an adverse credibility finding is a

determination that a claimant’s testimony is not reliable, as

opposed to dishonest. SSR 96-7p, available at 1996 WL 374186; see

also St. Mary’s v. Hicks, 509 U.S. 502, 520-21 (1993) (“[t]o say

that the [witness] becomes a liar and a perjurer when the testimony

is not believed, is nothing short of absurd”). Therefore,

plaintiff’s repeated admissions at the hearing that she did not

know or could not recall salient facts concerning her pain or

functioning from the dispositive time period is tantamount to an

admission that the ALJ’s credibility finding was valid. Tr. 42-71.

Indeed, the record is replete with evidence evincing that plaintiff

was a “poor historian.” See, e.g., Tr. 332-34, 373, 392-94,

730,732.

The ALJ also found that plaintiff’s “subjective complaints are

not entirely consistent with objective medical findings documented

as of the date last insured.” Tr. 26. “While subjective pain

testimony cannot be rejected on the sole ground that it is not

fully corroborated by objective medical evidence, the medical

evidence is still a relevant factor in determining the severity of

the claimant’s pain and its disabling effects.” Rollins v.

Massanari, 261 F.3d 853, 857 (9th Cir. 2001). Where, as here, there

is a remote date last insured, it is more difficult to determine

the nature of a claimant’s limitations attributable to severe

impairments during the period at issue, such that contemporaneous

self-reports to medical providers, as memorialized by their

treatment notes, are the most accurate portrayal of functioning.

Treatment records from within or around the adjudication

period do not reflect consistent reports of significant back or

musculoskeletal pain. See Tr. 26-27, 229-312, 344-63, 432-94, 771-

74; see also Greger v. Barnhart, 464 F.3d 968, 972-73 (9th Cir.

2006) (failure to report allegedly disabling symptoms to treatment

providers during the adjudication period is a valid reason to

discount a claimant’s credibility). For instance, medical records

from the emergency room on the date of plaintiff’s accident show

fractured ribs and abrasions, but no back pain or impairment upon

examination, and imaging studies of plaintiff’s spine were

unremarkable. Tr. 233-38, 241-42, 246; see also Tr. 248-51

(approximately ten days after the accident, plaintiff only

complained of rib and arm pain, and an examination of her back and

neck were “normal”). In February 2007, plaintiff reported that her

musculoskeletal pain was “getting better” and her rib fractures and

hemothorax had healed. Tr. 262-66. In fact, she was “just having

pain” in her right hand at that time and this pain “was not bad

enough” to use medication. Tr. 262. In March 2007, she sought

rehabilitation because her “thumb hurt” when she “move[d] it

certain ways.” Tr. 280-81. In April 2007, plaintiff reported an

increase in thumb pain after taking drum lessons, but otherwise a

significant improvement in symptoms, such that “she was now doing

okay except for some mild residual swelling and tenderness.” Tr.

279. In July 2007, plaintiff reported “getting better slowly.” Tr.

289. While, as discussed in greater detail below, plaintiff sought

physical therapy thereafter, she did not obtain treatment from a

doctor until September 2008, when she reported back pain that was

aggravated by sitting, walking, standing, bending, lifting, and

twisting, but nonetheless “improving.” Tr. 302, 305. At that time,

she had a normal range of cervical and lumbar motion, and normal

reflexes, sensation, and strength. Tr. 304, 306. Subsequently,

plaintiff did not seek treatment of any kind from September 2008

through June 2010 and she was not diagnosed with fibromyalgia until

June 2011. Tr. 63.

In sum, the lack of corroborating medical evidence contravenes

plaintiff’s hearing statements that she had disabling back pain

during the adjudication period. She does not now proffer a reason,

finance-related or otherwise, for her failure to obtain regular

services relating to her allegedly disabling impairments between

January 2007 and December 2008. See Tr. 63-64 (when asked directly

---

why she did not seek treatment between September 2008 and June

2010, plaintiff responded that she “was told with the physical

therapy exercises [she received in October 2007 that] it would take

a long time” to “recondition” and “retrain” her body). While

plaintiff offers an alternative interpretation of the record, the

ALJ’s reading was rational, and is upheld. Burch, 400 F.3d at 679.

Moreover, the ALJ rejected plaintiff’s subjective symptom

testimony in light of her activities of daily living. Tr. 26-27.

Daily activities may be used to discredit a claimant where they

either “are transferable to a work setting” or “contradict claims

of a totally debilitating impairment.” Molina v. Astrue, 674 F.3d

1104, 1112-13 (9th Cir. 2012) (citations omitted). As the ALJ

denoted, plaintiff was able to cook, clean, grocery shop, garden,

drive independently, take drum lessons, socialize, attend numerous

medical appointments and vocational rehabilitation, travel, and

engage in certain forms of exercise, such as walking, stretching,

and pilates, during and after the relevant time period. Tr. 26-27,

62, 147-54, 168-75, 185, 286, 289-90, 303, 332, 339, 374, 391, 462,

661. Thus, the ALJ provided clear and convincing reasons, supported

by substantial evidence, for rejecting plaintiff’s subjective

symptom statements. The ALJ’s credibility finding is affirmed.3

3 Therefore, plaintiff’s contingent argument of RFC deficiency “is

without merit.” Collingswood-Banse v. Colvin, 2015 WL 853063, *6 (D.Or. Feb.

24, 2015). Plaintiff’s conclusory assertion, without argument or evidence,

that “[t]he ALJ improperly failed to evaluate each of the symptoms alleged

[under the] the framework set forth in 20 C.F.R. § 404.1529(c),” is likewise

without merit. Pl.’s Opening Br. 11. As the Commissioner observes, “the ALJ

sufficiently addressed her activities, her pain, its causes and effects,

her medication and treatment she underwent.” Def.’s Resp. Br. 7 (citing Tr.

25-27).

II. Medical Evidence

Plaintiff argues that the ALJ failed to provide legally

sufficient reasons, supported by substantial evidence, for

rejecting evidence from Drs. McCord, Eaton, Treger, Glidden, and

Ms. Angel, and Ms. Riblett. There are three types of acceptable

medical opinions in Social Security cases: those from treating,

examining, and non-examining doctors. Lester v. Chater, 81 F.3d

821, 830 (9th Cir. 1995). To reject the uncontroverted opinion of

a treating or examining doctor, the ALJ must present clear and

convincing reasons. Bayliss v. Barnhart, 427 F.3d 1211, 1216 (9th

Cir. 2005) (citation omitted). If a treating or examining doctor’s

opinion is contradicted by another doctor’s opinion, it may be

rejected by specific and legitimate reasons. Id.

A. Dr. McCord’s Opinion

In June 2011, plaintiff commenced care with rheumatologist Dr.

McCord. Tr. 403-04, 408. Based on a clinical interview and physical

examination, the doctor diagnosed plaintiff with fibromyalgia. Tr.

404. In January 2012, Dr. McCord completed a check-the-box form

prepared by plaintiff’s attorney, wherein the only diagnosis he

listed was fibromyalgia. Tr. 408-15. Although he assessed her pain

as moderate, Dr. McCord nonetheless opined that plaintiff had been

unable to work since 2007. Id.

The ALJ afforded “little weight” to Dr. McCord’s opinion

because it was “speculative” due to the remote date last insured

and the fact that the doctor only began treating plaintiff in June

2011. Tr. 27. In addition, the ALJ noted that Dr. McCord’s opinion

was inconsistent with plaintiff’s activities of daily living. Id.

“[A]n ALJ may reject a medical opinion, even that of a treating

doctor, where it was completed years after claimant’s date last

insured and was not offered as retrospective analysis.” Morgan v.

Colvin, 2013 WL 6074119, *10 (D.Or. Nov. 13, 2013) (citations and

internal quotations and ellipses omitted). An ALJ may also reject

a medical opinion that is contrary to the claimant’s daily

activities. Rollins, 261 F.3d at 856.

Here, the record supports the ALJ’s conclusion. Plaintiff did

not even begin treatment with Dr. McCord until almost three years

after the date last insured. Tr. 408. Further, Dr. McCord’s opinion

does not meaningfully relate back to the period in question. See

Tidwell v. Apfel, 161 F.3d 599, 602 (9th Cir. 1999) (“[t]he fact

that Dr. Winkler did not examine Appellant until November 12, 1993,

more than a year after the expiration of her insured status,

coupled with other contradictory medical evidence, fully supports

the ALJ’s determination that Dr. Winkler’s [retrospective]

submissions were not convincing”). While he indicated that “2007”

was the “earliest date that [his] description of [plaintiff’s]

current symptoms and limitations [applied],” he did not provide any

explanation for this conclusion and there is no evidence reflecting

that he reviewed plaintiff’s longitudinal medical record; Dr.

McCord had also only seen plaintiff approximately two times before

rendering this opinion. Tr. 403-04, 408-15; see also Crane v.

Shalala, 76 F.3d 251, 253 (9th Cir. 1996) (ALJ may “permissibly

reject . . . check-off reports that [do] not contain any

explanation of the bases of their conclusions”).

As such, the ALJ reasonably concluded that Dr. McCord’s

opinion regarding the remote onset of plaintiff’s fibromyalgia was

speculative, especially in light of the fact that plaintiff

underwent evaluation for fibromyalgia numerous times after her

motor vehicle accident and prior to Dr. McCord’s assessment, and

did not meet the diagnostic criteria. See, e.g., Tr. 330 (Carl

Barbee, M.D., noting an insufficient number of tender points to

diagnose fibromyalgia), 333 (plaintiff reporting to Yolanda Suarez,

D.O., that “she for sure doesn’t have [fibromyalgia]” based on

previous assessments), 370 (Barbara Gilbertson, D.O., finding, upon

examination, that plaintiff “does not have any typical type tender

points for fibromyalgia syndrome”); see also SSR 12-29, available

at 2012 WL 3104869 (describing the diagnostic criteria for

fibromyalgia). Regardless, as summarized in section I, plaintiff’s

daily activities both before and after the date last insured evince

the ability to perform a limited range of sedentary work. The ALJ

provided legally sufficient reasons, supported by substantial

evidence, for affording less weight to the opinion of Dr. McCord.

B. Records From the Remaining Sources

Immediately following her motor vehicle accident in January

2007, plaintiff was treated in the emergency department by Drs.

Eaton and Treger. Tr. 229-46. In May 2007, plaintiff initiated

physical therapy with Ms. Angel, who was supervised by Dr. Glidden;

treatment was terminated after one or two sessions because

plaintiff “met all of her goals” and was “going on a trip back

east.” Tr. 283, 285-86, 290. Between September and October 2007,

plaintiff underwent additional physical therapy with Ms. Riblett.

Tr. 308-12. As plaintiff observes, chart notes from these providers

generally reflect that plaintiff experienced residual pain and

deconditioning following the automobile accident. In other words,

there is no evidence from Dr. Eaton, Dr. Treger, Dr. Glidden, Ms.

Angel, or Ms. Riblett inhering to plaintiff’s functional capacities

or ability to work.

The ALJ accepted diagnoses from these sources in evaluating

step two and, accordingly, found that plaintiff suffered from the

medically determinable, severe impairments of “cervical and lumbar

strain” and “fractured ribs.” Tr. 23. Additionally, the ALJ

expressly discussed evidence from Drs. Eaton and Treger in

formulating the RFC but did not afford any particular weight

thereto. Tr. 26. The ALJ, however, did not address treatment notes

from Dr. Glidden/Ms. Angel or Ms. Riblett. Nevertheless, because

the reports of Dr. Eaton, Dr. Treger, Dr. Glidden, Ms. Angel, and

Ms. Riblett “did not contain any functional limitations, they were

not probative as to what kind of work plaintiff could perform

despite [her] impairments and, therefore, the ALJ was not required

to formally assess, or even discuss, them.”4 Corso v. Colvin, 2014

WL 950029, *10 (D.Or. Mar. 11, 2014) (citations omitted).

This is because it is well-established that an ALJ can

disregard a medical report that does “not show how [a claimant’s]

symptoms translate into specific functional deficits which preclude

work activity.” Morgan v. Comm’r of Soc. Sec. Admin., 169 F.3d 595,

601 (9th Cir. 1999); see also Meanel v. Apfel, 172 F.3d 1111, 1114

(9th Cir. 1999) (ALJ properly rejected a medical opinion that

failed to explain the extent or significance of a condition);

Johnson v. Shalala, 60 F.3d 1428, 1432 (9th Cir. 1995) (ALJ may

reject a medical opinion that includes “no specific assessment of

[the claimant’s] functional capacity” during the relevant time

period); 20 C.F.R. § 404.1527(a)(2) (“[m]edical opinions are

statements from physicians and psychologists or other acceptable

medical sources that reflect judgments about the nature and severity

of your impairment(s)[,] what you can still do despite impairment(s),

and your physical or mental restrictions”). The ALJ’s assessment of

the medical evidence is affirmed.

4 Plaintiff’s contention of error in relation to these sources is

fatally flawed for two additional reasons. First, plaintiff failed to

provide any argument or evidence regarding how the ALJ’s treatment of this

evidence was harmful. See McLeod v. Astrue, 640 F.3d 881, 888 (9th Cir.

2011) (as amended) (the claimant bears the burden of establishing how an

alleged error is harmful). Indeed, plaintiff did not even cite to the records

from Drs. Eaton and Treger that were allegedly wrongfully rejected. Pl.’s

Opening Br. 7; Pl.’s Reply Br. 6. Second, plaintiff neglected to acknowledge

that evidence from non-acceptable medical sources cannot be used to

establish the existence of an impairment at step two and, while relevant, is

generally afforded less weight. 20 C.F.R. § 404.1513; SSR 06-03p, available

at 2006 WL 2329939; Lewis v. Apfel, 236 F.3d 503, 512 (9th Cir. 2001).

III. Characterization of the Record

Lastly, although not stated outright, plaintiff argues that the

ALJ’s decision was invalid due to bias. A “presumption of honesty and

integrity” exists in those who serve as adjudicators for

administrative agencies. Withrow v. Larkin, 421 U.S. 35, 47 (1975).

A claimant bears the burden of rebutting this presumption by showing

“a conflict of interest or some other specific reason for

disqualification” that is “so extreme as to display clear inability

to render fair judgment.” Rollins, 261 F.3d at 857-58 (citation and

internal quotations omitted).

Plaintiff points to three alleged “incorrect representations”

made by the ALJ to demonstrate “an obvious lack of careful

consideration.” Pl.’s Opening Br. 7, 12-13 (challenging the ALJ’s

characterization of her husband’s hearing testimony, the date on

which she stopped working, and her hypothyroidism). Plaintiff’s

argument is unavailing for two reasons. First, the allegedly

“incorrect representations” were not, in fact, incorrect. It was

reasonable for the ALJ to conclude, based on her husband, Neal C’s

hearing statements, that plaintiff’s condition deteriorated after the

date last insured. Tr. 25, 27, 73-74. Specifically, Mr. C. testified

that plaintiff’s condition “hasn’t got much better since the car

wreck,” such that he has had “to do a lot more things” around the

house since December 2008. Tr. 73-74. Further, despite her

assertion to the contrary, there is ample evidence in the record

reflecting that plaintiff’s hyperthyroidism is “all controlled”

with medication, such that the ALJ appropriately found this

condition “non-severe.” Tr. 24; see, e.g., Tr. 280 (plaintiff

reporting in March 2007 that her hypothyroidism was “all controlled

and normal [with the medication] synthroid”), 673 (plaintiff

remarking in July 2011 that “her hypothyroidism [is] well

controlled on synthroid”). Finally, although the ALJ found that

plaintiff’s earnings from 2007 did not qualify as substantial

gainful activity, she nonetheless accurately noted that plaintiff

“reported in her initial application materials that she did not

stop working until January 2009.” Tr. 23; see also Tr. 160

(plaintiff’s application listing “l/31/2009” as the date she

stopped working).

Significantly, plaintiff does not argue error on appeal in

relation to the ALJ’s step one or two findings, or treatment of the

lay witness testimony. See generally Pl.’s Opening Br.; Pl.’s Reply

Br. Plaintiff therefore failed to carry her burden in establishing

how this alleged error was harmful. See Stout v. Comm’r, Soc. Sec.

Admin., 454 F.3d 1050, 1055 (9th Cir. 2006) (mistakes that are

“nonprejudicial to the claimant or irrelevant to the ALJ’s ultimate

disability conclusion” are harmless); see also McLeod, 640 F.3d at

888. The ALJ’s decision is upheld in this regard.

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CONCLUSION

The Commissioner’s decision is AFFIRMED and this case is

DISMISSED.

IT IS SO ORDERED.

Dated this _ 5_t_h_ day of January 2021.

_____________________________

/s/Ann Aiken

Ann Aiken

United States District Judge