Michelle Ford v. Andrew Saul

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

MICHELLE SALISE FORD, No. 18-35794

Plaintiff-Appellant,

D.C. No.

v. 2:18-cv-00099-

BAT

ANDREW M. SAUL, Commissioner of

Social Security,

Defendant-Appellee. OPINION

Appeal from the United States District Court

for the Western District of Washington

Brian Tsuchida, Magistrate Judge, Presiding

Submitted October 22, 2019*

Seattle, Washington

Filed February 20, 2020

Before: Richard R. Clifton and Sandra S. Ikuta, Circuit

Judges, and Jed S. Rakoff,** District Judge.

Opinion by Judge Ikuta

*

The panel unanimously concludes this case is suitable for decision

without oral argument. See Fed. R. App. P. 34(a)(2).

**

The Honorable Jed S. Rakoff, United States District Judge for the

Southern District of New York, sitting by designation.

2 FORD V. SAUL

SUMMARY***

Social Security

The panel affirmed the district court’s decision affirming

the Social Security Administration’s denial of a claimant’s

application for disability benefits under Titles II and XVI of

the Social Security Act.

The panel first considered the claimant’s claim that the

administrative law judge (“ALJ”) erred in rejecting the

opinion of her treating physician, Dr. Medani. The panel

concluded that the ALJ provided specific and legitimate

reasons for rejecting the opinion. First, there was a conflict

between the treating physician’s medical opinion and his own

notes. Second, there was a conflict between the treating

physician’s opinion and the claimant’s activity level. Finally,

Dr. Medani’s opinion lacked explanation.

The panel rejected claimant’s challenge to the ALJ’s

rejection of the opinion of Dr. Zipperman, an examining

physician. The panel concluded that the ALJ gave specific

and legitimate reasons for rejecting the opinion, and the

reasons were supported by substantial evidence. First, Dr.

Zipperman’s opinion regarding claimant’s functioning was

inconsistent with objective evidence in claimant’s record.

Second, Dr. Zipperman’s opinion was inconsistent with

claimant’s performance at work. Finally, the ALJ reasonably

determined that Dr. Zipperman did not provide useful

statements regarding the degree of claimant’s limitations. The

***

This summary constitutes no part of the opinion of the court. It has

been prepared by court staff for the convenience of the reader.

FORD V. SAUL 3

panel also held that the ALJ’s duty to develop the record was

not triggered where the ALJ had years of claimant’s health

records and multiple medical opinions to inform the ALJ’s

decision.

The panel next considered claimant’s argument that the

record supported her claim that she met impairment Listings

1.02 and 1.03, which involve impairments that result in an

inability to ambulate effectively. The panel held that the ALJ

did not err in giving no weight to Dr. Medani’s opinions,

which concluded that claimant’s condition met the criteria of

the listings; and therefore, those opinions did not undercut the

ALJ’s ruling that claimant did not meet Listings 1.02 and

1.03. Second, the panel held that although the ALJ made a

factual error in evaluating claimant’s ability to walk, the error

was harmless because there was ample evidence in the record

supporting the ALJ’s conclusion that claimant did not meet

the Listings. Finally, the ALJ did not err by failing to

consider whether a combination of her impairments medically

equaled the criteria of Listings 1.02 or 1.03.

Finally, the panel rejected claimant’s argument that the

ALJ erred in failing to order the vocational expert to identify

or provide his source material for his testimony on the

number of jobs that existed in the national economy that

claimant could perform. First, the ALJ’s decision not to issue

a subpoena to the vocational expert to produce the underlying

data did not violate the applicable regulations. Second, the

vocational expert’s failure to produce the data underlying her

testimony did not undermine its reliability. The panel held

that the expert’s testimony cleared the low substantial

evidence bar. Given its inherent reliability, the qualified

vocational expert’s testimony as to the number of jobs

existing in the national economy that a claimant can perform

4 FORD V. SAUL

was ordinarily sufficient by itself to support the ALJ’s finding

at step five of the sequential evaluation process. The panel

affirmed the ALJ’s conclusion at step five that claimant could

perform a significant number of other jobs in the national

economy, and therefore, she was not disabled.

COUNSEL

George Andre Fields, Invictus Legal Services, Sacramento,

California, for Plaintiff-Appellant.

Brian T. Moran, United States Attorney; Kerry Jane Keefe,

Assistant United States Attorney; Mathew W. Pile, Acting

Regional Chief Counsel; Christopher J. Brackett, Special

Assistant United States Attorney; Office of the General

Counsel, Social Security Administration, Region X, Seattle,

Washington; for Defendant-Appellee.

OPINION

IKUTA, Circuit Judge:

In this appeal from a decision of the Social Security

Administration, Michelle Ford claims that the administrative

law judge (ALJ) erred in: (1) failing to give weight to the

opinions of two of her physicians; (2) concluding that her

impairments were not per se disabling under the regulatory

listings; and (3) denying her request to subpoena the data

underlying a vocational expert’s testimony. Because the ALJ

properly provided specific and legitimate reasons for

discounting the opinions of Ford’s physicians, correctly

concluded that Ford’s impairments did not meet a listing, and

FORD V. SAUL 5

was entitled to rely on the vocational expert’s testimony

despite the expert’s failure to provide information about the

sources underlying the testimony, we affirm.

I

To determine whether an individual is disabled within the

meaning of the Social Security Act, and therefore eligible for

benefits, an ALJ follows a five-step sequential evaluation.

See 20 C.F.R. § 404.1520.1 The burden of proof is on the

claimant at steps one through four. See Valentine v. Comm’r

of Soc. Sec. Admin., 574 F.3d 685, 689 (9th Cir. 2009). At

step one, the ALJ must determine if the claimant is presently

engaged in a “substantial gainful activity,”

§ 404.1520(a)(4)(i), defined as “work done for pay or profit

that involves significant mental or physical activities,” Lewis

v. Apfel, 236 F.3d 503, 515 (9th Cir. 2001) (citing

§§ 404.1571–404.1572, 416.971–416.975). At step two, the

ALJ decides whether the claimant’s impairment or

combination of impairments is “severe,” § 404.1520(a)(4)(ii),

meaning that it significantly limits the claimant’s “physical

1

Title II of the Social Security Act provides benefits to disabled

individuals who are insured by virtue of working and paying Federal

Insurance Contributions Act (FICA) taxes for a certain amount of time.

Title XVI of the Social Security Act is a needs-based program funded by

general tax revenues designed to help disabled individuals who have low

or no income. Ford brought claims under both programs. Although each

program is governed by a separate set of regulations, the regulations

governing disability determinations are substantially the same for both

programs. Compare 20 C.F.R. §§ 404.1501–1599 (governing disability

determinations under Title II) with 20 C.F.R. §§ 416.901–999d (governing

disability determinations under Title XVI). For convenience, we cite only

the regulations governing disability determinations under Title II.

6 FORD V. SAUL

or mental ability to do basic work activities,” § 404.1522(a);

see Webb v. Barnhart, 433 F.3d 683, 686 (9th Cir. 2005).

At step three, the ALJ evaluates whether the claimant has

an impairment, or combination of impairments, that meets or

equals the criteria of any of the impairments listed in the

“Listing of Impairments” (referred to as the “listings”). See

§ 404.1520(a)(4)(iii); 20 C.F.R. Pt. 404 Subpt. P, App. 1

(pt. A). The listings describe impairments that are considered

“to be severe enough to prevent an individual from doing any

gainful activity.” § 404.1525(a). Each impairment is

described in terms of “the objective medical and other

findings needed to satisfy the criteria of that listing.”

§ 404.1525(c)(3). “For a claimant to show that his

impairment matches a listing, it must meet all of the specified

medical criteria. An impairment that manifests only some of

those criteria, no matter how severely, does not qualify.”

Sullivan v. Zebley, 493 U.S. 521, 530 (1990) (footnote

omitted). If an impairment does not meet a listing, it may

nevertheless be “medically equivalent to a listed impairment”

if the claimant’s “symptoms, signs, and laboratory findings

are at least equal in severity to” those of a listed impairment.

§ 404.1529(d)(3).2 But a claimant cannot base a claim of

2

“Symptoms means your own description of your physical or mental

impairment.” § 404.1502(i).

“Signs means one or more anatomical, physiological, or

psychological abnormalities that can be observed, apart from your

statements (symptoms). Signs must be shown by medically acceptable

clinical diagnostic techniques. Psychiatric signs are medically

demonstrable phenomena that indicate specific psychological

abnormalities, e.g., abnormalities of behavior, mood, thought, memory,

FORD V. SAUL 7

equivalence on symptoms alone. Even if the claimant alleges

pain or other symptoms that makes the impairment more

severe, the clamant’s impairment does not medically equal a

listed impairment unless the claimant has signs and

laboratory findings that are equal in severity to those set forth

in a listing. § 404.1529(d)(3). If a claimant’s impairments

meet or equal the criteria of a listing, the claimant is

considered disabled. § 404.1520(d).

If the claimant does not meet or equal a listing, the ALJ

proceeds to step four, where the ALJ assesses the claimant’s

residual functional capacity (RFC)3 to determine whether the

claimant can perform past relevant work, § 404.1520(e),

which is defined as “work that [the claimant has] done within

the past 15 years, that was substantial gainful activity, and

that lasted long enough for [the claimant] to learn to do it,”

§ 404.1560(b)(1). If the ALJ determines, based on the RFC,

that the claimant can perform past relevant work, the claimant

is not disabled. § 404.1520(f).

At step five, the burden shifts to the agency to prove that

“the claimant can perform a significant number of other jobs

orientation, development, or perception, and must also be shown by

observable facts that can be medically described and evaluated.”

§ 404.1502(g).

“Laboratory findings means one or more anatomical, physiological,

or psychological phenomena that can be shown by the use of medically

acceptable laboratory diagnostic techniques. Diagnostic techniques

include chemical tests (such as blood tests), electrophysiological studies

(such as electrocardiograms and electroencephalograms), medical imaging

(such as X-rays), and psychological tests.” § 404.1502(c).

3

A claimant’s RFC is defined as “the most [the claimant] can still do

despite [the claimant’s] limitations.” § 404.1545(a)(1).

8 FORD V. SAUL

in the national economy.” Thomas v. Barnhart, 278 F.3d 947,

955 (9th Cir. 2002). To meet this burden, the ALJ may rely

on the Medical-Vocational Guidelines found at 20 C.F.R.

Pt. 404 Subpt. P, App. 2,4 or on the testimony of a vocational

expert. Tackett v. Apfel, 180 F.3d 1094, 1101 (9th Cir. 1999).

“[A] vocational expert or specialist may offer expert opinion

testimony in response to a hypothetical question about

whether a person with the physical and mental limitations

imposed by the claimant’s medical impairment(s) can meet

the demands of the claimant’s previous work, either as the

claimant actually performed it or as generally performed in

the national economy.” § 404.1560(b)(2). An ALJ may also

use “other resources, such as the ‘Dictionary of Occupational

Titles’ and its companion volumes and supplements,

published by the Department of Labor.” Id.

Throughout the five-step evaluation, 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).

II

We now turn to the facts of this case. On October 24,

2008, Michelle Ford applied for disability benefits under Title

II and XVI. Her first disability application was denied in

4

The Medical-Vocational Guidelines “relieve the Secretary of the

need to rely on vocational experts by establishing through rulemaking the

types and numbers of jobs that exist in the national economy.” Heckler

v. Campbell, 461 U.S. 458, 461 (1983). The Guidelines “consist of a

matrix of the four factors identified by Congress—physical ability, age,

education, and work experience—and set forth rules that identify whether

jobs requiring specific combinations of these factors exist in significant

numbers in the national economy.” Id. at 461–62 (footnotes omitted).

FORD V. SAUL 9

2011; the ALJ found that Ford was not disabled for the period

between August 2007 and March 2011, and that decision

became final when Ford declined to appeal it further. Ford

then filed a second application for benefits, claiming that she

became disabled on March 26, 2011, due to a variety of

physical and mental impairments. In January 2015, an ALJ

held that Ford was disabled as of November 1, 2012, but not

before that date. The Appeals Council vacated the decision

and remanded for a new hearing, which the ALJ conducted in

November 2016. At the hearing, Ford introduced evidence

regarding both her physical and mental impairments. In

March 2017, the ALJ ruled that Ford was not disabled for the

period from March 26, 2011 to January 2, 2016. The Appeals

Council denied Ford’s request for review, and the district

court affirmed. This appeal followed.

A

The following evidence regarding Ford’s alleged physical

impairments, adduced at the November 2016 hearing, is

relevant to this appeal. Over the course of 2011, Ford

routinely visited Dr. Ignatius Medani, her primary care

physician. She typically reported back pain, shoulder pain,

nausea, and anxiety. Dr. Medani’s notes, however, showed

few objective findings related to her pain and no consistent

abnormalities, outside of a diagnosis of “very mild” carpal

tunnel syndrome. He frequently prescribed pain medications

at Ford’s request. In October 2011, a non-examining

physician examined Ford’s medical record as part of her

application for benefits. His report concluded that Ford was

not disabled because her RFC allowed her to perform

sedentary work.

10 FORD V. SAUL

In April 2012, Ford had surgery on her right foot for heel

spurs and Achilles tendinitis. In December 2012, another

non-examining physician reviewed Ford’s medical record and

concluded that Ford was not disabled. Ford’s condition

continued to improve over the course of 2013 and 2014. In

September 2014, Ford had surgery to remove a bunion and a

soft tissue mass on her right toe. During recovery, she used

a scooter to avoid putting weight on the affected foot. In

August and September 2014, Ford saw Dr. Medani several

times for medication refills. The examinations at these visits

were unremarkable, and Dr. Medani made few notes. Other

than a finding of reduced lumbar range of motion, Dr. Medani

noted no abnormalities.

In late September 2014, Dr. Medani filled out an

“Arthritis Residual Functional Capacity Questionnaire.” The

questionnaire set out the disability criteria of Listings 1.02

and 1.03 from the “Listings of Impairments.”

Listing 1.02 is entitled “Major dysfunction of a joint(s)

(due to any cause),” and describes that impairment as

“[c]haracterized by gross anatomical deformity” and

involving a “major peripheral weight bearing joint (i.e., hip,

knee or ankle), resulting in inability to ambulate effectively,

as defined in 1.00B2b.” 20 C.F.R. Pt. 404, Subpt. P, App. 1

§ 1.02.5

5

Listing 1.02 provides, in full:

Major dysfunction of a joint(s) (due to any cause):

Characterized by gross anatomical deformity (e.g.,

subluxation, contracture, bony or fibrous ankylosis,

instability) and chronic joint pain and stiffness with

signs of limitation of motion or other abnormal motion

of the affected joint(s), and findings on appropriate

FORD V. SAUL 11

Listing 1.03 is entitled “Reconstructive surgery or

surgical arthrodesis of a major weight-bearing joint,” and the

impairment is characterized by “inability to ambulate

effectively, as defined in 1.00B2b.” 20 C.F.R. Pt. 404, Subpt.

P, App. 1 § 1.03.6

Section 1.00(B)(2)(b) provides a detailed definition of the

term “inability to ambulate effectively.” See 20 C.F.R. Pt.

404, Subpt. P, App. 1 § 1.00(B)(2)(b)(1). According to the

definition section, “[i]nability to ambulate effectively means

an extreme limitation of the ability to walk; i.e., an

impairment(s) that interferes very seriously with the

individual’s ability to independently initiate, sustain, or

complete activities.” Id. Further, “[i]neffective ambulation

medically acceptable imaging of joint space narrowing,

bony destruction, or ankylosis of the affected joint(s).

With:

A. Involvement of one major peripheral weight-bearing

joint (i.e., hip, knee, or ankle), resulting in inability to

ambulate effectively, as defined in 1.00B2b;

or

B. Involvement of one major peripheral joint in each

upper extremity (i.e., shoulder, elbow, or wrist-hand),

resulting in inability to perform fine and gross

movements effectively, as defined in 1.00B2c.

6

Listing 1.03 provides, in full:

Reconstructive surgery or surgical arthrodesis of a

major weight-bearing joint, with inability to ambulate

effectively, as defined in 1.00B2b , and return to

effective ambulation did not occur, or is not expected to

occur, within 12 months of onset.

12 FORD V. SAUL

is defined generally as having insufficient lower extremity

functioning . . . to permit independent ambulation without the

use of a hand-held assistive device(s) that limits the

functioning of both upper extremities.” Id. The definition

also states that “examples of ineffective ambulation include,

but are not limited to, the inability to walk without the use of

a walker, two crutches or two canes . . . .” 20 C.F.R. Pt. 404,

Subpt. P, App. 1 § 1.00(B)(2)(b)(2).

After quoting the criteria for these listings, the

questionnaire asked, “In your opinion to a degree of medical

certainty, does Ms. Ford’s condition meet or equal the above

criteria?” Dr. Medani answered “Yes.” In response to the

next question, “Please explain,” he wrote only, “Condition is

permanent.”

The questionnaire also provided a series of check boxes

allowing the doctor to indicate the severity of Ford’s

conditions. Dr. Medani checked boxes expressing the

following opinions: (1) Ford could not sit or stand for more

than five minutes at a time or more than two hours in a

workday; (2) Ford needed to shift positions at will and take

unscheduled breaks every five minutes; (3) Ford needed to

elevate her legs for 80% of the day; (4) Ford could rarely lift

less than ten pounds and never lift more than ten pounds or

engage in actions such as climbing stairs, crouching, or

stooping; (5) Ford could perform manipulative actions for no

more than 5% of a workday; (6) Ford would miss more than

four days of work a month; and (7) Ford was incapable of

even low-stress jobs.

From 2015 to 2016, Ford’s physical examinations were

routinely normal, and she saw Dr. Medani only to have pain

medications refilled.

FORD V. SAUL 13

B

In addition to this evidence regarding her physical

condition, Ford also provided the following evidence

regarding her mental condition. In August 2011, she received

counseling at Valley Cities Counseling & Consultation

(“Valley Cities”). She reported feeling depressed and

anxious, and admitted to taking more medication than

prescribed to cope with these feelings. Ford canceled or

failed to show up for at least five appointments at Valley

Cities over the next four months. In October 2011, a non-

examining psychiatrist concluded that Ford could perform

simple tasks and familiar complex tasks, attend work within

customary tolerances, and complete a normal workday. In

June and September 2012, Ford returned to Valley Cities to

have her medication refilled. At each visit, she reported

increased depression, stress, and anxiety. In September, the

counselor diagnosed her with a depressive disorder with

psychotic features, but flagged the possibility of substance-

induced mood disorder. The counselor also reported her

objective observations that Ford was well groomed, alert and

oriented as to person, place, time, and situation, her speech

was regular in rate and rhythm, and there was no evidence of

psychosis.

In November 2012, Ford saw examining psychiatrist

Michelle Zipperman for a consultation. In her report, Dr.

Zipperman diagnosed Ford with post-traumatic stress

disorder, psychosis, depression with psychotic features, and

panic disorder. She also indicated that Ford’s ability to

function in the workplace was “limited.” Although Dr.

Zipperman noted that “the claimant’s ability to accept

instructions from supervisors is fair” and “[t]he claimant’s

ability to interact with coworkers in the public is fair,” she

14 FORD V. SAUL

concluded that “claimant’s ability to maintain attention and

concentration is limited,” her “ability to maintain regular

attendance in the workplace is limited,” and “her ability to

deal with the usual stress encountered in the workplace is

poor to limited.”

Later in November 2012, Ford returned to Valley Cities,

and reported a depressed mood, panic attacks, and

hallucinations. Again, the counselor found Ford had regular

speech, thought, and orientation. Ford missed or cancelled

three of her next four appointments. In December 2012, a

non-examining psychiatrist again concluded that Ford

remained capable of attending work within customary

tolerances, working within a routine, and completing simple

tasks and familiar complex tasks.

Ford’s mental health treatments in 2013 were sporadic.

In February 2013, she reported panic attacks, but her

counselor noted that her attention and concentration were

“fair” and that she “[did] not appear psychotic.” Evaluations

from her April 2013 visit also showed no evidence of

psychosis and normal concentration. In May 2013, Ford’s

counselor noted Ford was “alert and oriented in all spheres.”

Ford made occasional mental health visits to Valley Cities

over the course of 2013 through 2015. She frequently

canceled appointments or failed to show up for them. When

she did appear at the scheduled appointments, she showed

normal memory, attention, and concentration. She reported

no paranoia or delusions at her appointment in November

2014.

FORD V. SAUL 15

C

The record also contained information about Ford’s work

history. Ford was able to work in temporary jobs over the

course of 2015, and began working part-time at FedEx in

May 2016. Ford worked approximately 12 to 13 hours a

week at FedEx on tasks that included scanning, labeling and

sorting packages. On some days, her shifts lasted for six to

eight hours. Ford worked by herself and with coworkers. By

July 2017, she had quit her job at FedEx.

D

At the November 2016 hearing, the ALJ called a

vocational expert to testify whether a significant number of

jobs existed in the national economy that a claimant with

Ford’s RFC could perform. The vocational expert testified

that 130,000 addresser and 9,800 ink-printing jobs existed

nationwide and that Ford’s RFC allowed her to perform these

jobs. In response to cross-examination about how he had

derived those estimates, the vocational expert stated “[m]y

numbers come from a variety of sources which include the

Department of Labor and the U.S. Chamber of Commerce

and actually Social Security, itself, the Census Bureau,

through the [International Trade Administration], supply

really good numbers and, believe it or not, the state of Alaska

has good national numbers.” Probing the expert’s conclusion

regarding the number of addresser jobs, Ford’s counsel asked

“[w]hich publication indicated that there were that number of

jobs?” The expert responded, “I don’t have that information

in my notes. I typically average all my sources.” The

counsel then asked, “What were the numbers that you

averaged together to get 130,000?” Again, the expert

responded, “I don’t have that information in my notes,

16 FORD V. SAUL

either.” The expert explained that he averages the numbers

from his various sources once a year, and then puts those

numbers in his notes. Ford’s counsel then stated he had no

further questions.

A week after the hearing, Ford’s attorney asked the ALJ

to subpoena the vocational expert’s documentation regarding

the number of jobs available nationwide. The ALJ did not

respond to the subpoena request before rendering a final

decision.

E

In her opinion, the ALJ determined that Ford was not

engaged in substantial gainful activity. At step two, the ALJ

determined that Ford had a number of severe impairments.

Moving to step three, the ALJ rejected Ford’s argument

that she met or equaled the criteria of any listing. Among

other things, the ALJ concluded that Ford did not have a

severe ambulation problem, and had used a walker and

scooter only during a period of recovery for foot surgery.

Therefore, she did not have an ineffective ability to ambulate,

and her impairments did not “meet or equal” Listings 1.02 or

1.03.

The ALJ then concluded that Ford had the RFC to

perform sedentary work, as defined, with certain limitations.

In reaching this conclusion, the ALJ declined to give weight

to Dr. Medani’s opinion regarding Ford’s functional

limitations, because it was inconsistent with the objective

evidence and poorly explained. The ALJ also declined to

give weight to Dr. Zipperman’s report, because it included

conflicting statements, was inconsistent with other evidence

FORD V. SAUL 17

in the record, and did not provide useful statements about

Ford’s functional limitations (instead using terms like “fair”

and “limited”). The ALJ also gave no weight to Ford’s own

testimony, finding it to be inconsistent internally and

inconsistent with objective medical evidence in the record.

Among other things, the ALJ noted that Ford’s self-reports

were undermined by her propensity to exaggerate her

symptoms, her improving physical state, and her poor follow-

through with mental health treatment.

Turning to step five, the ALJ concluded that a significant

number of jobs existed in the national economy that Ford

could perform based on the vocational expert’s testimony.

Accordingly, the ALJ concluded that Ford was not disabled

prior to January 2, 2016. Beginning on that date, however,

Ford’s age category changed from “younger person” to

“person closely approaching advanced age,” § 404.1563

(c)–(d), and based on the same RFC, the regulations directed

a finding that she was disabled as of that date.

III

On appeal, Ford argues that the ALJ erred in: (1) giving

little or no weight to the opinions of two of her physicians,

Dr. Medani and Dr. Zipperman; (2) concluding that Ford did

not have an impairment that meets or medically equals the

severity of the impairments in Listings § 1.02 and 1.03; and

(3) failing to grant Ford’s request to subpoena the data

underlying the vocational expert’s testimony. We address

each of these alleged errors in turn.

We have jurisdiction under 28 U.S.C. § 1291. “We

review the district court’s order affirming the ALJ’s denial of

social security benefits de novo, and will disturb the denial of

18 FORD V. SAUL

benefits only if the decision ‘contains legal error or is not

supported by substantial evidence.’” Tommasetti v. Astrue,

533 F.3d 1035, 1038 (9th Cir. 2008) (citation omitted)

(quoting Orn v. Astrue, 495 F.3d 625, 630 (9th Cir. 2007)).

“Substantial evidence . . . is ‘more than a mere scintilla,’” and

means only “such relevant evidence as a reasonable mind

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

Berryhill, 139 S. Ct. 1148, 1154 (2019) (quoting Consol.

Edison Co. v. NLRB, 305 U.S. 197, 229 (1938)). If the

evidence “is susceptible to more than one rational

interpretation, it is the ALJ’s conclusion that must be

upheld.” Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir.

2005). We may affirm the ALJ’s decision even if the ALJ

made an error, so long as the error was harmless, meaning it

was “inconsequential to the ultimate nondisability

determination.” Tommasetti, 533 F.3d at 1038 (quoting

Robbins v. Soc. Sec. Admin., 466 F.3d 880, 885 (9th Cir.

2006)). An ALJ’s denial of a subpoena is reviewed for abuse

of discretion. See Solis v. Schweiker, 719 F.2d 301, 302 (9th

Cir. 1983).

A

We first consider Ford’s claim that the ALJ erred in

rejecting the opinion of her treating physician, Dr. Medani.

As a general rule, a treating physician’s opinion is entitled

to “substantial weight.” Embrey v. Bowen, 849 F.2d 418, 422

(9th Cir. 1988). Nevertheless, the ALJ need not accept the

opinion of a treating physician. If a treating physician’s

opinion is not contradicted by other evidence in the record,

the ALJ may reject it only for “clear and convincing” reasons

supported by substantial evidence in the record. See Ryan v.

Comm’r of Soc. Sec. Admin., 528 F.3d 1194, 1198 (9th Cir.

FORD V. SAUL 19

2008). But “if the treating doctor’s opinion is contradicted by

another doctor,” the ALJ may discount the treating

physician’s opinion by giving “specific and legitimate

reasons” that are supported by substantial evidence in the

record. Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1995).

“The ALJ need not accept the opinion of any physician,

including a treating physician, if that opinion is brief,

conclusory, and inadequately supported by clinical findings.”

Thomas, 278 F.3d at 957.

Because Dr. Medani’s opinions regarding Ford’s

functional capacity were contradicted by the reports of two

non-examining physicians, the ALJ could reject the opinions

by giving “specific and legitimate reasons” for doing so. See

Bayliss v. Barnhart, 427 F.3d 1211, 1216 (9th Cir. 2005).

According to Ford, the ALJ erred because Dr. Medani’s

opinions were supported by the record, and the ALJ failed to

give adequate reasons for discounting them. We disagree.

Among other reasons, the ALJ stated that Dr. Medani’s

opinion regarding Ford’s functional capacity was inconsistent

with medical evidence, including previous medical opinions

contained in his own notes. This conclusion was supported

by substantial evidence in the record. For example,

Dr. Medani’s opinion indicates that Ford could perform

manipulative movements with her hands for only five percent

of the day, but his treatment notes state that Ford had “very

mild” carpal tunnel syndrome. A conflict between a treating

physician’s medical opinion and his own notes is a “clear and

convincing reason for not relying on the doctor’s opinion,”

and therefore is also a specific and legitimate reason for

rejecting it. Id.

The ALJ also stated that Dr. Medani’s opinion was

inconsistent with Ford’s activity level. This reason was

20 FORD V. SAUL

likewise supported by substantial evidence. Dr. Medani

checked a box stating that Ford could not sit or stand for more

than five minutes at a time or two hours in a workday, yet

Ford worked six to eight hour shifts at FedEx in 2016 where

she was required to sit and stand for long periods of time. A

conflict between a treating physician’s opinion and a

claimant’s activity level is a specific and legitimate reason for

rejecting the opinion. See Rollins v. Massanari, 261 F.3d

853, 856 (9th Cir 2001).

Finally, the ALJ noted that Dr. Medani’s opinion lacked

explanation. An ALJ is not required to take medical opinions

at face value, but may take into account the quality of the

explanation when determining how much weight to give a

medical opinion. See Orn, 495 F.3d at 631; 20 C.F.R.

§ 404.1527(c)(3). While an opinion cannot be rejected merely

for being expressed as answers to a check-the-box

questionnaire, Popa v. Berryhill, 872 F.3d 901, 907 (9th Cir.

2017), “the ALJ may permissibly reject check-off reports that

do not contain any explanation of the bases of their

conclusions,” Molina v. Astrue, 674 F.3d 1104, 1111 (9th Cir.

2012) (cleaned up) (quoting Crane v. Shalala, 76 F.3d 251,

253 (9th Cir.1996)). When Dr. Medani was asked in the

questionnaire to explain why Ford met the criteria of Listings

1.02 and 1.03, which require specific medical diagnoses, he

wrote only, “Condition is permanent,” which does not explain

the basis for Dr. Medani’s conclusion. Moreover,

Dr. Medani’s conclusion that Ford met these listings is

contradicted by the medical record, which does not contain

any reference to a “gross anatomical deformity” (as required

by Listing 1.02) or “[r]econstructive surgery or surgical

FORD V. SAUL 21

arthrodesis of a major weight-bearing joint” (as required by

Listing 1.03).7

B

Ford also challenges the ALJ’s rejection of the opinion of

Dr. Zipperman, an examining physician. “The opinion of an

examining physician is . . . entitled to greater weight than the

opinion of a nonexamining physician.” Lester v. Chater,

81 F.3d 821, 830 (9th Cir. 1995). If the opinion of an

examining doctor is contradicted by another doctor, it “can

only be rejected for specific and legitimate reasons that are

supported by substantial evidence in the record.” Id. at

830–31. An ALJ needs less substantial evidence to reject an

examining physician’s opinion than to reject an treating

physician’s opinion. Id. at 831 n.8.

7

Ford also challenges the ALJ’s rejection of Dr Medani’s diagnoses

of chronic pain syndrome and fibromyalgia. The ALJ based her

conclusion on the ground that Dr Medani failed to document the bases for

such diagnoses (such as identifying the requisite tender points or ruling

out other causes). Under the social security rules, a physician may

diagnose fibromyalgia if the patient meets the 1990 or 2010 criteria

established by the American College of Rheumatology (ACR). See SSR

12-2P, 2012 WL 3104869 (July 25, 2012). According to Ford, the ALJ

erred because the ALJ rejected Dr. Medani’s diagnosis of fibromyalgia

solely on the ground that Dr. Medani did not explain how Ford’s condition

satisfied the 1990 criteria, and failed to recognize that the medical

documentation and opinions from Dr. Medani demonstrate that Ford’s

condition met the 2010 criteria. This argument fails. Dr. Medani’s

diagnosis consisted only of the single word “fibromyalgia,” and did not

explain how Ford met either the 1990 or the 2010 criteria. Nor does Ford

point to evidence in the record satisfying the 2010 criteria. Moreover,

because both the 1990 and 2010 criteria require a physician to rule out

other possible causes of a claimant’s pain, SSR 12-2P(II)(A)(3), (B)(3),

the ALJ’s determination that Dr. Medani failed to do so establishes that

Dr. Medani’s fibromyalgia diagnosis does not meet either criterion.

22 FORD V. SAUL

Ford claims that the ALJ erred in rejecting

Dr. Zipperman’s opinion because the ALJ’s reasons for doing

so were not supported by the record. Again, we disagree.

Here, Dr. Zipperman’s opinion was contradicted by the

opinions of other physicians, and so the ALJ was required to

give only “specific and legitimate” reasons for rejecting the

opinion. The ALJ did so, and her reasons were supported by

substantial evidence.

First, the ALJ concluded that Dr. Zipperman’s opinion

regarding Ford’s functioning was inconsistent with objective

evidence in Ford’s record. Substantial evidence supports this

conclusion. For instance, Dr. Zipperman concluded that Ford

was highly distractible and her ability to concentrate was

limited, but other mental health professionals found that Ford

had normal concentration and thought processes. Although

Ford argues that the ALJ failed to recognize the inherently

variable nature of mental illness, “[t]he court will uphold the

ALJ’s conclusion when the evidence is susceptible to more

than one rational interpretation.” Tommasetti, 533 F.3d

at 1038.

The ALJ also found that Dr. Zipperman’s opinion was

inconsistent with Ford’s performance at work. This finding

is also supported by substantial evidence. Dr. Zipperman

concluded that Ford’s ability to maintain regular work

attendance was limited, her ability to deal with usual

workplace stress was poor to limited, and her ability to

perform work duties at a sufficient pace was poor. This

conclusion was inconsistent with Ford’s work for FedEx,

which demonstrated an ability to sustain a work schedule,

tolerate work-related stress, and perform simple tasks. An

ALJ may consider any work activity, including part-time

work, in determining whether a claimant is disabled, see

FORD V. SAUL 23

Drouin v. Sullivan, 966 F.2d 1255, 1258 (9th Cir. 1992), and

here Ford’s own testimony established that she was able to

work occasional eight-hour shifts.

Finally, the ALJ determined that Dr. Zipperman did not

provide useful statements regarding the degree of Ford’s

limitations. Here, the ALJ found that Dr. Zipperman’s

descriptions of Ford’s ability to perform in the workplace as

“limited” or “fair” were not useful because they failed to

specify Ford’s functional limits. Therefore, the ALJ could

reasonably conclude these characterizations were inadequate

for determining RFC. Ford contends that the ALJ should

have recontacted Dr. Zipperman to further develop the record

regarding the meaning of “fair” and “limited” in Zipperman’s

opinions. See 20 C.F.R. § 404.1520b(b)(2)(i). But “[a]n

ALJ’s duty to develop the record further is triggered only

when there is ambiguous evidence or when the record is

inadequate to allow for proper evaluation of the evidence.”

Mayes v. Massanari, 276 F.3d 453, 459–60 (9th Cir. 2001).

Given that the ALJ had years of Ford’s mental health records

and multiple opinions from non-examining psychiatrists to

inform her decision, this duty was not triggered.8

C

We next turn to Ford’s argument that the record supports

her claim that she meets Listings 1.02 and 1.03, and the

8

Because the ALJ provided specific and legitimate reasons supported

by substantial evidence to justify her rejection of Dr. Zipperman’s opinion,

we do not address Ford’s argument that other reasons provided by the ALJ

were not supported by the record. See Carmickle v. Comm’r, Soc. Sec.

Admin., 533 F.3d 1155, 1162 (9th Cir. 2008).

24 FORD V. SAUL

ALJ’s conclusion to the contrary was not supported by

substantial evidence.

In making this argument, Ford relies primarily on

Dr. Medani’s conclusion that her condition meets the criteria

of these two listings. For the reasons explained above,

however, the ALJ did not err in giving Dr. Medani’s opinions

no weight, and therefore, these opinions do not undercut the

ALJ’s ruling.9

Ford also argues that the ALJ made both a legal and

factual error that undermine the conclusion that her condition

does not meet the listings. First, she claims that the ALJ

made a legal error in mistakenly concluding that a claimant

cannot meet either listing unless the claimant uses an assistive

device. This argument mischaracterizes the ALJ’s opinion.

The ALJ did not state or suggest that use of an assistive

device was necessary to prove ineffective ability to ambulate.

Rather, the ALJ stated that Ford did not use “any assistive

device for long-term” in connection with her observation that

Ford had used a walker and scooter on a temporary basis

during recovery from foot surgery, but otherwise did not

require such devices. Moreover, the ALJ’s determination that

the record was devoid of evidence that Ford lacked the ability

to ambulate or had any severe ambulation problem was based

on other evidence in the record, such as Ford’s “self-reports

or remarks by providers.”

9

Even if the ALJ had decided to credit Dr. Medani’s opinion, the

applicable regulations instruct that such a “[s]tatement[] about whether or

not [the claimant’s] impairment(s) meets or medically equals any listing

in the Listing of Impairments” would be “neither valuable nor persuasive.”

20 C.F.R. § 404.1520b(c)(3)(iv).

FORD V. SAUL 25

Second, Ford argues that the ALJ erred in evaluating

Ford’s ability to walk. Ford points to the “Function Report -

Adult” that she filled out in August 2011 as part of her claims

process. In response to the question, “How far can you walk

before needing to stop and rest?” Ford responded “maybe 1/4

of a block.”10 The ALJ, however, mistakenly characterized

these reports as stating that Ford “could walk maybe 1/4

mile.” Although the ALJ made a factual error on this point,

the misstatement is harmless because there is ample evidence

in the record supporting the ALJ’s conclusion that Ford did

not meet Listing 1.02 or 1.03. Among other things, there is

no evidence in the record that Ford suffered a gross

anatomical deformity, one of the required criteria to meet

Listing 1.02, nor any evidence that she had reconstructive

surgery of a major weight-bearing joint, one of the required

criteria to meet Listing 1.03. Because a claimant’s

impairment does not match a listing unless it meets “all of the

specified medical criteria,” Sullivan, 493 U.S. at 530, the

ALJ’s error in considering how far Ford could walk is

“inconsequential to the ultimate nondisability determination,”

Tommasetti, 533 F.3d at 1038 (citation omitted).

Finally, Ford argues that the ALJ erred by failing to

consider whether a combination of her impairments medically

equalled the criteria of Listings 1.02 or 1.03. This argument

also fails, because “[a]n ALJ is not required to discuss the

combined effects of a claimant’s impairments or compare

them to any listing in an equivalency determination, unless

the claimant presents evidence in an effort to establish

equivalence.” Burch, 400 F.3d at 683; see also Lewis,

236 F.3d at 514. While Ford’s attorney made passing

10

A non-examining physician repeated Ford’s claim that her “walk

tolerance is 1/4 block.”

26 FORD V. SAUL

reference to a “combination of impairments” at the

administrative hearing before the ALJ, he did not argue or

explain how such a combination was medically equal to a

gross anatomical deformity under Listing 1.02 or a

reconstructive surgery of a major weight-bearing joint under

Listing 1.03. Because the ALJ did not have an obligation to

discuss medical equivalency sua sponte, the ALJ did not err

in failing to do so. See Burch, 400 F.3d at 683.

D

Finally, Ford argues that the ALJ erred in failing to order

the vocational expert to identify or provide his source

material for his testimony on the number of jobs that exist in

the national economy that Ford could perform. Ford first

claims that she needed the underlying data to make a

meaningful challenge to the vocational expert’s testimony.

According to Ford, the ALJ’s failure to issue a subpoena

requiring the vocational expert to produce the underlying data

violated the applicable regulations and procedural rules, and

violated her due process rights. Second, Ford argues that the

vocational expert’s failure to produce the data underlying his

testimony undermined its reliability, and therefore the

testimony did not constitute substantial evidence supporting

the ALJ’s determination at step five.

We disagree on both points. First, the ALJ’s decision not

to issue a subpoena to the vocational expert did not violate

the applicable regulations. Under the regulations, “[w]hen it

is reasonably necessary for the full presentation of a case” a

party may request that the ALJ issue subpoenas “for the

production of books, records, correspondence, papers, or

other documents that are material to an issue at the hearing.”

20 C.F.R § 404.950(d)(1). To obtain such a subpoena, a party

FORD V. SAUL 27

“must file a written request for the issuance of a subpoena

with the administrative law judge . . . at least 5 business days

before the hearing date” unless the party shows that it has an

“unusual, unexpected, or unavoidable circumstance” beyond

the party’s control, as listed in § 404.935(b), which prevented

the party from doing so. 20 C.F.R. § 404.950(d)(2) (2013).11

Here, Ford made her request for a subpoena a week after the

hearing. Therefore, she did not meet the regulatory

requirement that such requests be made “at least 5 days

before the hearing date.” Ford does not point to any authority

entitling a claimant to make a post-hearing request or

requiring an ALJ to consider issuing a post-hearing subpoena.

Nor does she argue that an “unusual, unexpected, or

unavoidable circumstance” prevented her from making her

request at least 5 days before the hearing date. Accordingly,

the ALJ did not violate the applicable regulations.

Nor is there any “free-standing procedural rule under

which a vocational expert would always have to produce [her

underlying data] upon request.” Biestek, 139 S. Ct. at 1154.

In federal court, “an expert witness must produce all data she

has considered in reaching her conclusions,” but “no similar

requirement applies in SSA hearings.” Id. (citing Fed. R.

Civ. P. 26(a)(2)(B)). We have likewise held that “[t]he

requirements for the admissibility of expert testimony under

Federal Rule of Evidence 702 . . . do not apply to the

admission of evidence in Social Security administrative

proceedings.” Bayliss, 427 F.3d at 1218 n.4. Rather, “[a

vocational expert]’s recognized expertise provides the

11

This regulation was subsequently amended to require the request

for a subpoena to be made 10 days prior to the hearing. 20 C.F.R.

§§ 404.950(d)(2), 416.1450(d)(1).

28 FORD V. SAUL

necessary foundation for his or her testimony” and “no

additional foundation is required.” Id. at 1281.12

Second, Ford argues that the vocational expert’s failure to

produce the data underlying her testimony undermined its

reliability. Therefore, Ford contends, the expert’s testimony

did not constitute substantial evidence of the number of jobs

that exist in the national economy. This argument also fails.

Our review of an ALJ’s fact-finding for substantial evidence

is deferential, and “[t]he threshold for such evidentiary

sufficiency is not high.” Biestek, 139 S. Ct at 1154.

Substantial evidence is “more than a mere scintilla” and

means only “such relevant evidence as a reasonable mind

might accept as adequate to support a conclusion.” Id.

(citation omitted). Moreover, our inquiry “defers to the

presiding ALJ, who has seen the hearing up close.” Id. at

1157.

Given our deferential substantial evidence review, there

is no “categorical rule, applying to every case in which a

vocational expert refuses a request for underlying data,”

which would make an expert’s testimony per se unreliable.

12

Ford did not argue to the district court that the ALJ’s failure to

obtain the vocational expert’s underlying data violated her due process

rights; therefore, she forfeited this issue. See United States v. Flores-

Montano, 424 F.3d 1044, 1047 (9th Cir. 2005). In any event, this

argument is meritless. “The fundamental requirement of due process is

the opportunity to be heard ‘at a meaningful time and in a meaningful

manner.’” Mathews v. Eldridge, 424 U.S. 319, 333 (1976) (quoting

Armstrong v. Manzo, 380 U.S. 545, 552 (1965)). Here, Ford had a

meaningful opportunity to present her case to the ALJ, to cross-examine

witnesses, and even to submit rebuttal evidence after her hearing. See

Shaibi v. Berryhill, 883 F.3d 1102, 1110 (9th Cir. 2017). Due process

does not require any further procedural protections in this context. Cf.

Richardson v. Perales, 402 U.S. 389, 402 (1971).

FORD V. SAUL 29

Id. Rather, “the inquiry, as is usually true in determining the

substantiality of evidence, is case-by-case,” id., and the court

must consider the evidence in the record in each individual

case. In some cases, the “expert’s withholding of

[underlying] data, when combined with other aspects of the

record, will prevent [the expert’s] testimony from qualifying

as substantial evidence.”13 Id. This could occur, for instance,

if the expert’s testimony lacks “markers of reliability,” and

“the expert has no good reason to keep the data private.” Id.

Likewise, the expert’s “withholding of data may count

against” the expert’s opinion, such as where the expert lacked

strong qualifications and offered only “testimony that is so

feeble, or contradicted, that it would fail to clear the

substantial-evidence bar.” Id. at 1155–56. But in many of

cases, where the expert is qualified and presents cogent

testimony that does not conflict with other evidence in the

record, “the expert’s testimony still will clear (even handily

so) the more-than-a-mere-scintilla threshold” even when the

expert declines to provide the underlying data. Id. at 1157.

Here, the expert’s testimony cleared the low substantial

evidence bar. Ford points to no indicia of unreliability in the

expert’s testimony—she does not argue that the expert lacked

the necessary qualifications, that his testimony was

untrustworthy, or that the testimony was contradicted by

13

Although Ford points to a social security handbook that advises

vocational experts to bring the sources supporting their estimates to the

Social Security hearing, see Social Security Administration, Vocational

Expert Handbook, 37 (Aug. 2017), an expert’s failure to comply with such

a best practice does not, without more, make the testimony untrustworthy,

see Biestek, 139 S. Ct. at 1155 (noting that an expert’s unsupported

testimony may constitute substantial evidence even though the expert’s

“testimony would be even better” if the expert had produced supporting

data, which is a “best practice for the SSA and its experts”).

30 FORD V. SAUL

other evidence in the record.14 Moreover, unlike the expert in

Biestek, the expert here did not decline to supply his

underlying sources; rather, he merely stated that he did not

have the information in his notes. Ford does not contend that

the vocational expert’s estimate is in “obvious or apparent”

conflict with estimates provided in the Dictionary of

Occupational Titles (DOT), see Lamear v. Berryhill, 865 F.3d

1201, 1205 (9th Cir. 2017), or contradicts the Medical-

Vocational Guidelines, see Swenson v. Sullivan, 876 F.2d

683, 689 (9th Cir. 1989), which would oblige the ALJ to sua

sponte investigate and resolve the conflict. Indeed, Ford fails

to identify any ambiguity or gap in the expert’s testimony,

and so the ALJ’s duty to develop the record was not

triggered. Cf. Mayes, 276 F.3d at 459–60.

Ford does not identify any evidence undermining the

vocational expert’s testimony. We have long held that “in the

absence of any contrary evidence, a [vocational expert’s]

testimony is one type of job information that is regarded as

inherently reliable; thus, there is no need for an ALJ to assess

14

Contrary to Ford’s argument that without access to the expert’s

methodology and data she cannot rebut the expert’s testimony, Ford could

have challenged the expert’s testimony in several ways. A claimant may

challenge evidence on the ground that it conflicts with the DOT or the

Medical-Vocational Guidelines, or on the ground that it differs from those

provided by the County Business Patterns (CBP) or Occupational Outlook

Handbook (OOH). The ALJ must consider the weight of such challenges

as it makes its finding at step five. See Shaibi, 883 F.3d at 1110.

Alternatively, a claimant may request to “submit supplemental briefing or

interrogatories contrasting the [vocational expert]’s specific job estimates

with estimates of the claimant’s own.” Id. If the ALJ declines this

request, “the claimant may raise new evidence . . . before the Appeals

Council, provided that evidence is both relevant and ‘relates to the period

on or before the ALJ’s decision.’” Id. (quoting Brewes v. Comm’r of Soc.

Sec. Admin., 682 F.3d 1157, 1162 (9th Cir. 2012)).

FORD V. SAUL 31

its reliability.” Buck v. Berryhill, 869 F.3d 1040, 1051 (9th

Cir. 2017). Given its inherent reliability, a qualified

vocational expert’s testimony as to the number of jobs

existing in the national economy that a claimant can perform

is ordinarily sufficient by itself to support an ALJ’s step-five

finding. See Tackett, 180 F.3d at 1100 (“[T]he Commissioner

[can] meet the burden of showing that there is other work in

‘significant’ numbers in the national economy that [a]

claimant can perform . . . by the testimony of a vocational

expert.”) (citation omitted); Barker v. Sec’y of Health and

Human Servs., 882 F.2d 1474, 1479–80 (9th Cir. 1989).

Therefore, we conclude that the expert’s testimony here is

“the kind of evidence—far more than a mere scintilla—that

a reasonable mind might accept as adequate to support a

finding about job availability.” Biestek, 139 S. Ct. at 1155

(cleaned up). Accordingly, we affirm the ALJ’s conclusion

at step five.

AFFIRMED.