Pamela Howes v. Nancy Berryhill, 676 F. App'x 644

Background

Pamela K. Howes appealed the district court’s affirmance of the Commissioner’s denial of supplemental security income under Title XVI.
The ALJ found Howes not fully credible about the severity of her symptoms and concluded several impairments were nonsevere at step two.
ALJ relied on medical record showing favorable response to minimal/conservative treatment, unexplained treatment gaps, providers’ notes of poor effort during exams, inconsistencies with daily activities, and a sporadic pre-onset work history.
The ALJ formulated an RFC allowing light work with limitations and alternatively identified available sedentary jobs in the national economy.
Howes argued the ALJ erred in rejecting her treating physician’s sedentary-work opinion and challenged credibility findings; she also raised ineffective-assistance claims against her counsel.
The Ninth Circuit reviewed de novo and affirmed, finding the ALJ’s credibility, step-two, RFC, and step-five determinations supported by substantial evidence and that ineffective-assistance claims were inapplicable.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Credibility of symptom testimony	Howes argued her reported limitations were disabling and should be credited	ALJ pointed to conservative treatment response, treatment gaps, poor effort, activity inconsistencies, and spotty work history	ALJ gave specific, clear, convincing reasons to discount credibility; affirmed
Step Two — severity of certain impairments	Howes argued hand pain, carpal tunnel, plantar fasciitis, bowel issues were severe	Commissioner argued medical record did not support severity finding	Substantial evidence supported ALJ’s finding that these impairments were nonsevere
Weight to treating physician’s opinion / RFC	Howes argued treating doctor limited her to sedentary work and ALJ erred rejecting it	Commissioner argued RFC included all limitations supported by record and alternative findings remedied any error	Even if ALJ erred rejecting sedentary opinion, error was harmless because RFC and alternate jobs supported non-disability
Step Five — vocational testimony and hypothetical	Howes contended RFC/hypothetical omitted limitations, so VE testimony was unreliable	Commissioner argued hypothetical matched record-supported RFC	Limitations in ALJ’s hypothetical were supported by substantial evidence; step five harmless of error
Ineffective assistance of counsel	Howes claimed counsel failed to provide effective assistance before agency/court	Commissioner argued right to counsel assistance does not apply in civil SSA proceedings	Ninth Circuit: ineffective-assistance right does not apply; claim not cognizable

Key Cases Cited

Ghanim v. Colvin, 763 F.3d 1154 (9th Cir. 2014) (standard of review: de novo for district court’s review of agency decision)
Molina v. Astrue, 674 F.3d 1104 (9th Cir. 2012) (factors undermining credibility include failure to seek treatment and inconsistent daily activities)
Tommasetti v. Astrue, 533 F.3d 1035 (9th Cir. 2008) (favorable response to minimal treatment undermines severity claims)
Thomas v. Barnhart, 278 F.3d 947 (9th Cir. 2002) (spotty work history and poor effort support adverse credibility findings)
Meanel v. Apfel, 172 F.3d 1111 (9th Cir. 1999) (substantial evidence standard for step-two severity determinations)
Webb v. Barnhart, 433 F.3d 683 (9th Cir. 2005) (assessing whether medical evidence clearly establishes nonsevere impairment)
Bayliss v. Barnhart, 427 F.3d 1211 (9th Cir. 2005) (RFC must incorporate limitations supported by substantial evidence)
Ludwig v. Astrue, 681 F.3d 1047 (9th Cir. 2012) (harmless-error analysis where claimant shows no prejudice)
Magallanes v. Bowen, 881 F.2d 747 (9th Cir. 1989) (vocational hypothetical need only reflect limitations supported by substantial evidence)
Nicholson v. Rushen, 767 F.2d 1426 (9th Cir. 1985) (no right to effective assistance of counsel in civil SSA proceedings)