FILED
NOT FOR PUBLICATION JUL 06 2010
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
KIMBER TAYLOR, No. 09-35510
Plaintiff - Appellant, D.C. No. 6:08-cv-00230-AA
v.
MEMORANDUM *
MICHAEL J. ASTRUE, Commissioner of
Social Security Administration,
Defendant - Appellee.
Appeal from the United States District Court
for the District of Oregon
Ann L. Aiken, Chief District Judge, Presiding
Argued and Submitted June 7, 2010
Portland, Oregon
Before: HALL, FERNANDEZ, and McKEOWN, Circuit Judges.
Kimber Taylor (“Taylor”) appeals from a judgment of the district court
affirming a decision of the Commissioner of Social Security (“Commissioner”)
denying her application for Supplemental Security Income (“SSI”) disability
benefits pursuant to Title XVI of the Social Security Act (“the Act”).
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
The district court had jurisdiction pursuant to 42 U.S.C. § 405(g). We have
jurisdiction pursuant to 28 U.S.C. § 1291. We affirm.
I.
Because the parties are familiar with the factual and procedural history of
this case, we will not recount it here except as necessary to our disposition of the
claims of error raised on appeal.
II.
Taylor raises numerous claims of error as to the Commissioner’s findings at
Steps Two, Three, and Five of the five-step sequential evaluation process that she
is not “disabled” within the meaning of the Act.1 The final decision of the
Commissioner (here, that of the ALJ) must be affirmed if it is supported by
substantial evidence and the correct legal standards were applied. See Batson v.
Comm’r Soc. Sec. Admin., 359 F.3d 1190, 1193 (9th Cir. 2004).
A.
At Step Two, the ALJ was required to determine whether Taylor has a
medically determinable impairment or combination of impairments that is
1
Although the ALJ also found at Step Four that Taylor has the residual
functional capacity (“RFC”) to perform her “past relevant work” as a mail sorter,
the Commissioner concedes that finding was not supported by substantial
evidence.
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“severe.” 20 C.F.R. § 416.920(c). An impairment is not “severe” if it does not
significantly limit her ability to do basic work activities. Id., § 416.921(a).
The Commissioner does not dispute that Taylor has medically determinable
mental impairments, as confirmed by two non-treating Disability Determination
Services (“DDS”) psychologists, who opined—in substantial agreement with her
primary treating physician and a consulting psychologist who examined her—that
she suffers from depressive and anxiety disorders. The Commissioner contends,
however, that substantial credible evidence supports the ALJ’s finding at Step Two
of only “non-severe” impairments. We agree.
In particular, a body of largely undisputed evidence supports the finding that
Taylor’s mental impairments respond well to treatment with anti-depressant and
anti-anxiety medications, and medication used to treat attention deficit disorders,
so long as she complies with her treatment plan. “Impairments that can be
controlled effectively with medication are not disabling for the purpose of
determining eligibility for SSI benefits.” Warre v. Comm’r of Soc. Sec. Admin.,
439 F.3d 1001, 1006 (9th Cir. 2006).
There is also substantial evidence from a variety of sources—including the
DDS psychologists’ opinions that her mental impairments result in no more than
“mild” functional limitations when the effects of drug and alcohol abuse are
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excluded, Taylor’s own and her friend’s reports of her daily activities since her
alleged date of onset, and records of the Oregon Vocational Rehabilitation Division
(“VRD”)—that directly supports the ALJ’s finding that Taylor’s impairments are
not “severe.” In addition, there is substantial evidence that Taylor and her care-
giver have exaggerated the extent to which her mental impairments limit her ability
to work, and the assessments of the severity of her mental impairments from her
treating physician and the examining psychologist are based primarily on her
discredited self-reporting. The ALJ properly rejected the latter opinions by
providing specific, legitimate reasons for doing so that were supported by
substantial evidence. See Bayliss v. Barnhart, 427 F.3d 1211, 1216 (9th Cir. 2005).
B.
At Step Three, the ALJ was required to determine whether Taylor has any
impairment or combination of impairments that meets or equals those impairments
listed in 20 C.F.R. Part 404, Subpart P, Appendix 1. In evaluating whether Taylor
has such a “listed” disabling condition, the ALJ was required to consider whether
her mental impairments meet the so-called “B criteria”: (1) marked restriction of
activities of daily living; (2) marked difficulties in maintaining social functioning;
(3) marked difficulties in maintaining concentration, persistence, or pace; or (4)
repeated episodes of decompensation. Id., § 12.00(C). If Taylor’s impairments
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meet the B criteria, the ALJ was required to find her disabled. 20 C.F.R. §
416.920(a)(4)(iii); 20 C.F.R. pt. 404, subpt. P, app. 1 §§ 12.04 (affective
disorders), 12.06 (anxiety disorders).
Taylor does not suggest that she meets the fourth B criterion, as there is no
evidence of any episode of “decompensation” in this record. She contends,
however, that she is seriously limited in her ability to function independently,
appropriately, effectively, and on a sustained basis in the other three areas. The
credible evidence in the record does not support Taylor on this point.
As noted, the DDS psychologists opined that, excluding any effects of
alcoholism or drug addiction, which Taylor agrees should not be considered, she
has only “mild” restriction of activities of daily living, and “mild” difficulties in
maintaining social functioning, concentration, persistence, and pace. Based on this
evidence alone, the ALJ properly could find that Taylor does not have any listed
impairment. But the ALJ’s determination is also supported by medical records
showing improvement in her conditions with treatment that began in 2003, lay
evidence of her activities of daily living and social functioning since her alleged
date of onset, and VRD records.
C.
Taylor further contends that the ALJ abused his discretion by denying her
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request for a second consultative examination to obtain neuro-psychological
testing. We disagree. The Social Security Administration (“SSA”) has broad
latitude in ordering consultative examinations. Reed v. Massanari, 270 F.3d 838,
842 (9th Cir. 2001). The SSA may purchase a consultative examination when the
evidence as a whole is not sufficient to support a decision on a claim. 20 C.F.R. §
416.919a(b). In this case, however, the ALJ did not find the evidence insufficient
to support his decision. Rather, in finding that Taylor was not disabled at Steps
Two and Three, the ALJ found dispositive a body of largely undisputed evidence
showing that Taylor experienced notable improvement in her mental health status
and functioning throughout the period from the date of onset to the date of
decision, as a result of medications prescribed by her treating physician and other
treatment she received at his clinic. See Warre, 439 F.3d at 1006. Thus, the ALJ
did not err in declining to order a second consultative examination.
D.
At Step Five, the ALJ was required to determine whether, considering her
RFC, age, education, and work experience, Taylor is able to perform any work that
exists in significant numbers in the national economy. RFC is the ability to
perform physical and mental work activities on a sustained basis despite limitations
from all of her impairments, whether severe or non-severe. 20 C.F.R.
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§ 416.920(e); id., § 416.945(a). It is SSA’s burden at Step Five to provide
evidence demonstrating that other work exists in significant numbers in the
national economy that Taylor can do. 20 C.F.R. § 416.912(g); id., § 416.960(c).
The ALJ’s alternative finding at Step Five was supported by substantial
evidence. Medical records documenting Taylor’s improved mental status and
functioning while taking prescribed medications, a statement from her friend
regarding her daily activities and relationships with other friends and neighbors,
and the testimony of a vocational expert (“VE”), support the ALJ’s findings that
Taylor has the RFC to perform simple, routine tasks requiring only light to
medium exertion, and that she can perform jobs that exist in significant numbers in
Oregon and in the national economy, including mail sorter, laundry worker, and
food sorter. Conflicting evidence from her care-giver and two former employers
does not negate the ALJ’s finding at Step Five, and the ALJ could properly reject
the reports and opinions of the treating physician and examining psychologist
about her functional limitations, as they were based primarily on Taylor’s
discredited self-reports. See Batson, 359 F.3d at 1197.
IV.
For all of these reasons, the district court judgment upholding the
Commissioner’s denial of SSI disability benefits is AFFIRMED.
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