Magallanes v. Colvin, No. 1:2014cv03078 - Document 21 (E.D. Wash. 2015)
Court Description: ORDER GRANTING DEFENDANTS MOTION FOR SUMMARY JUDGMENT. Plaintiffs Motion for Summary Judgment ECF No. 18 is DENIED. Defendants Motion for Summary Judgment ECF No. 19 is GRANTED. The file is CLOSED. Signed by Judge Thomas O. Rice. (LLH, Courtroom Deputy)
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Magallanes v. Colvin Doc. 21 1 2 3 4 UNITED STATES DISTRICT COURT 5 EASTERN DISTRICT OF WASHINGTON 6 7 EVA MAGALLANES, NO: 1:14-CV-3078-TOR Plaintiff, 8 v. 9 10 11 ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT CAROLYN W. COLVIN, Acting Commissioner of Social Security Administration, Defendant. 12 13 14 BEFORE THE COURT are the parties’ cross-motions for summary 15 judgment (ECF Nos. 18, 19). Plaintiff is represented by D. James Tree. Defendant 16 is represented by Jordan D. Goddard. This matter was submitted for consideration 17 without oral argument. The Court has reviewed the administrative record and the 18 parties’ completed briefing and is fully informed. For the reasons discussed below, 19 the Court grants Defendant’s motion and denies Plaintiff’s motion. 20 // ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 1 Dockets.Justia.com 1 2 3 4 5 JURISDICTION The Court has jurisdiction over this case pursuant to 42 U.S.C. § 405(g); 1383(c)(3). STANDARD OF REVIEW A district court’s review of a final decision of the Commissioner of Social 6 Security is governed by 42 U.S.C. § 405(g). The scope of review under §405(g) is 7 limited: the Commissioner’s decision will be disturbed “only if it is not supported 8 by substantial evidence or is based on legal error.” Hill v. Astrue, 698 F.3d 1153, 9 1158-59 (9th Cir. 2012) (citing 42 U.S.C. § 405(g)). “Substantial evidence” means 10 relevant evidence that “a reasonable mind might accept as adequate to support a 11 conclusion.” Id. at 1159 (quotation and citation omitted). Stated differently, 12 substantial evidence equates to “more than a mere scintilla[,] but less than a 13 preponderance.” Id. (quotation and citation omitted). In determining whether this 14 standard has been satisfied, a reviewing court must consider the entire record as a 15 whole rather than searching for supporting evidence in isolation. Id. 16 In reviewing a denial of benefits, a district court may not substitute its 17 judgment for that of the Commissioner. If the evidence in the record “is 18 susceptible to more than one rational interpretation, [the court] must uphold the 19 ALJ’s findings if they are supported by inferences reasonably drawn from the 20 record.” Molina v. Astrue, 674 F.3d 1104, 1111 (9th Cir. 2012). Further, a district ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 2 1 court “may not reverse an ALJ’s decision on account of an error that is harmless.” 2 Id. An error is harmless “where it is inconsequential to the [ALJ’s] ultimate 3 nondisability determination.” Id. at 1117 (internal quotation marks and citation 4 omitted). The party appealing the ALJ’s decision generally bears the burden of 5 establishing that it was harmed. Shinseki v. Sanders, 556 U.S. 396, 409-10 (2009). 6 FIVE-STEP SEQUENTIAL EVALUATION PROCESS 7 A claimant must satisfy two conditions to be considered “disabled” within 8 the meaning of the Social Security Act. First, the claimant must be “unable to 9 engage in any substantial gainful activity by reason of any medically determinable 10 physical or mental impairment which can be expected to result in death or which 11 has lasted or can be expected to last for a continuous period of not less than twelve 12 months.” 42 U.S.C. §§ 423(d)(1)(A); 1382c(a)(3)(A). Second, the claimant’s 13 impairment must be “of such severity that he is not only unable to do his previous 14 work[,] but cannot, considering his age, education, and work experience, engage in 15 any other kind of substantial gainful work which exists in the national economy.” 16 42 U.S.C. §§ 423(d)(2)(A); 1382c(a)(3)(B). 17 The Commissioner has established a five-step sequential analysis to 18 determine whether a claimant satisfies the above criteria. See 20 C.F.R. §§ 19 404.1520(a)(4)(i)-(v); 416.920(a)(4)(i)-(v). At step one, the Commissioner 20 considers the claimant’s work activity. 20 C.F.R. §§ 404.1520(a)(4)(i); ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 3 1 416.920(a)(4)(i). If the claimant is engaged in “substantial gainful activity,” the 2 Commissioner must find that the claimant is not disabled. 20 C.F.R. §§ 3 404.1520(b); 416.920(b). 4 If the claimant is not engaged in substantial gainful activities, the analysis 5 proceeds to step two. At this step, the Commissioner considers the severity of the 6 claimant’s impairment. 20 C.F.R. §§ 404.1520(a)(4)(ii); 416.920(a)(4)(ii). If the 7 claimant suffers from “any impairment or combination of impairments which 8 significantly limits [his or her] physical or mental ability to do basic work 9 activities,” the analysis proceeds to step three. 20 C.F.R. §§ 404.1520(c); 10 416.920(c). If the claimant’s impairment does not satisfy this severity threshold, 11 however, the Commissioner must find that the claimant is not disabled. Id. 12 At step three, the Commissioner compares the claimant’s impairment to 13 several impairments recognized by the Commissioner to be so severe as to 14 preclude a person from engaging in substantial gainful activity. 20 C.F.R. §§ 15 404.1520(a)(4)(iii); 416.920(a)(4)(iii). If the impairment is as severe or more 16 severe than one of the enumerated impairments, the Commissioner must find the 17 claimant disabled and award benefits. 20 C.F.R. §§ 404.1520(d); 416.920(d). 18 If the severity of the claimant’s impairment does meet or exceed the severity 19 of the enumerated impairments, the Commissioner must pause to assess the 20 claimant’s “residual functional capacity.” Residual functional capacity (“RFC”), ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 4 1 defined generally as the claimant’s ability to perform physical and mental work 2 activities on a sustained basis despite his or her limitations (20 C.F.R. §§ 3 404.1545(a)(1); 416.945(a)(1)), is relevant to both the fourth and fifth steps of the 4 analysis. 5 At step four, the Commissioner considers whether, in view of the claimant’s 6 RFC, the claimant is capable of performing work that he or she has performed in 7 the past (“past relevant work”). 20 C.F.R. §§ 404.1520(a)(4)(iv); 8 416.920(a)(4)(iv). If the claimant is capable of performing past relevant work, the 9 Commissioner must find that the claimant is not disabled. 20 C.F.R. §§ 10 404.1520(f); 416.920(f). If the claimant is incapable of performing such work, the 11 analysis proceeds to step five. 12 At step five, the Commissioner considers whether, in view of the claimant’s 13 RFC, the claimant is capable of performing other work in the national economy. 14 20 C.F.R. §§ 404.1520(a)(4)(v); 416.920(a)(4)(v). In making this determination, 15 the Commissioner must also consider vocational factors such as the claimant’s age, 16 education, and work experience. Id. If the claimant is capable of adjusting to 17 other work, the Commissioner must find that the claimant is not disabled. 20 18 C.F.R. §§ 404.1520(g)(1); 416.920(g)(1). If the claimant is not capable of 19 adjusting to other work, the analysis concludes with a finding that the claimant is 20 disabled and is therefore entitled to benefits. Id. ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 5 1 The claimant bears the burden of proof at steps one through four above. 2 Lockwood v. Comm’r of Soc. Sec. Admin., 616 F.3d 1068, 1071 (9th Cir. 2010). If 3 the analysis proceeds to step five, the burden shifts to the Commissioner to 4 establish that (1) the claimant is capable of performing other work; and (2) such 5 work “exists in significant numbers in the national economy.” 20 C.F.R. §§ 6 404.1560(c); 416.960(c)(2); Beltran v. Astrue, 700 F.3d 386, 389 (9th Cir. 2012). 7 ALJ’S FINDINGS 8 Plaintiff protectively filed applications for disability insurance benefits and 9 supplemental security income on July 26, 2010, alleging a disability onset date of 10 March 30, 2010, in both applications. Tr. 137, 271-72, 273-74, 275-78. These 11 applications were denied initially and upon reconsideration, and Plaintiff requested 12 a hearing. Tr. 200-08, 209-17, 219-23, 224-25. A video hearing was held with an 13 Administrative Law Judge (“ALJ”) on August 8, 2012. Tr. 80-117. The ALJ 14 rendered a decision denying Plaintiff benefits on November 20, 2012. Tr. 17-37. 15 The ALJ found that Plaintiff met the insured status requirements of Title II 16 of the Social Security Act through December 31, 2011. Tr. 22. At step one, the 17 ALJ found that Plaintiff had not engaged in substantial gainful activity since 18 March 30, 2010, the alleged onset date. Tr. 22. At step two, the ALJ found that 19 Plaintiff had the following severe impairments: osteoarthritis of the knees, 20 degenerative disc disease of the lumbar spine, major depressive disorder, post- ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 6 1 traumatic stress disorder, unspecified personality disorder, and obesity. Tr. 22. At 2 step three, the ALJ found that Plaintiff did not have an impairment or combination 3 of impairments that meet or medically equal a listed impairment. Tr. 24. The ALJ 4 then determined that Plaintiff had the RFC 5 6 7 8 9 10 11 to perform less than the full range of light work as defined in 20 CFR 404.1567(b) and 416.967(b). The claimant can lift or carry no more than 20 pounds occasionally and 10 pounds frequently and she has the ability to stand or walk for 6 hours in an 8 hour day. The claimant is limited to work that provides a sit/stand option that would allow the individual to sit or stand alternatively; frequently push or pull; and frequently operate foot controls. The claimant is limited to work where she never climbs ladders, ropes, or scaffolds. The claimant is limited to occasional stooping, kneeling, crouching, and crawling. The claimant should avoid concentrated exposure to workplace hazards such as dangerous machinery and unprotected heights. The claimant’s work is limited to simple routine tasks, involving only simple work related decisions, with few workplace changes. 12 Tr. 26. At step four, the ALJ found that Plaintiff was unable to perform any past 13 relevant work. Tr. 30. At step five, the ALJ found that Plaintiff could perform the 14 representative occupations of parking lot attendant, office helper, and outside 15 deliverer. Tr. 31. The ALJ also noted, in light to the vocational expert’s testimony 16 at the hearing, that even if Plaintiff was limited to a sedentary exertional level, 17 there are jobs that exist in significant numbers in the economy, including cashier II 18 (seated position) and call out operator. Tr. 31. In light of her step five findings, 19 the ALJ concluded that Plaintiff was not disabled under the Social Security Act 20 and denied her claims on that basis. Tr. 31. ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 7 1 The Appeals Council denied Plaintiff’s request for review on April 10, 2014, 2 making the ALJ’s decision the Commissioner’s final decision for purposes of 3 judicial review. Tr. 1-6; 20 C.F.R. §§ 404.981, 416.1484, and 422.210. 4 5 ISSUES Plaintiff seeks judicial review of the Commissioner’s final decision denying 6 her disability benefits and supplemental security income under Titles II and XVI of 7 the Social Security Act. Plaintiff raises the following three issues for review: 8 1. Whether the ALJ properly discounted Plaintiff’s credibility; 9 2. Whether the ALJ properly accounted for the opinion of Dr. Edward Beaty; and 10 11 12 3. Whether the ALJ’s RFC assessment incorporated the full extent of Plaintiff’s limitations. ECF No. 18 at 7-20. This Court addresses each issue in turn. 13 DISCUSSION 14 A. 15 “In assessing the credibility of a claimant’s testimony regarding subjective Adverse Credibility Finding 16 pain or the intensity of symptoms, the ALJ engages in a two-step analysis.” 17 Molina, 674 F.3d at 1112 (citing Vasquez v. Astrue, 572 F.3d 586, 591 (9th Cir. 18 2009)). First, the ALJ must determine whether the claimant has proved the 19 existence of a physical or mental impairment with “medical evidence consisting of 20 signs, symptoms, and laboratory findings.” 20 C.F.R. §§ 416.908, 416.927; see ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 8 1 Molina, 674 F.3d at 1112. A claimant’s statements about his or her symptoms 2 alone will not suffice. 20 C.F.R. §§ 416.908, 416.927. “Once the claimant 3 produces medical evidence of an underlying impairment, the Commissioner may 4 not discredit the claimant’s testimony as to subjective symptoms merely because 5 they are unsupported by objective evidence.” Berry v. Astrue, 622 F.3d 1228, 6 1234 (9th Cir. 2010) (quoting Lester v. Chater, 81 F.3d 821, 834 (9th Cir. 1995)); 7 Bunnell v. Sullivan, 947 F.2d 341, 345 (9th Cir. 1991) (en banc). As long as the 8 impairment “could reasonably be expected to produce the pain or other 9 symptoms,” the claimant may offer a subjective evaluation as to the severity of the 10 impairment. Bunnell, 947 F.2d at 345-56. This rule recognizes that the severity of 11 a claimant’s symptoms “cannot be objectively verified or measured.” Id. at 347 12 (citation omitted). 13 However, an ALJ may conclude that the claimant’s subjective assessment is 14 unreliable, so long as the ALJ makes “a credibility determination with findings 15 sufficiently specific to permit [a reviewing] court to conclude that the ALJ did not 16 arbitrarily discredit claimant’s testimony.” Thomas v. Barnhart, 278 F.3d 947, 958 17 (9th Cir. 2002); see also Bunnell, 947 F.2d at 345 (“[A]lthough an adjudicator may 18 find the claimant’s allegations of severity to be not credible, the adjudicator must 19 specifically make findings which support this conclusion.”). If there is no 20 evidence of malingering, the ALJ’s reasons for discrediting the claimant’s ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 9 1 testimony must be “specific, clear and convincing.” Chaudhry v. Astrue, 688 F.3d 2 661, 672 (9th Cir. 2012) (quotation and citation omitted). The ALJ “must 3 specifically identify the testimony she or he finds not to be credible and must 4 explain what evidence undermines the testimony.” Holohan v. Massanari, 246 5 F.3d 1195, 1208 (9th Cir. 2001); see Berry, 622 F.3d at 1234 (“General findings 6 are insufficient; rather, the ALJ must identify what testimony is not credible and 7 what evidence undermines the claimant’s complaints.”). 8 9 In weighing the claimant’s credibility, the ALJ may consider many factors, including “‘(1) ordinary techniques of credibility evaluation, such as the claimant’s 10 reputation for lying, prior inconsistent statements concerning the symptoms, and 11 other testimony by the claimant that appears less than candid; (2) unexplained or 12 inadequately explained failure to seek treatment or to follow a prescribed course of 13 treatment; and (3) the claimant’s daily activities.’” Chaudry, 688 F.3d at 672 14 (quoting Tommasetti v. Astrue, 533 F.3d 1035, 1039 (9th Cir. 2008)). If the ALJ’s 15 finding is supported by substantial evidence, the court may not engage in second- 16 guessing. Id. (quoting Tommasetti, 533 F.3d at 1039). 17 Here, the ALJ found that the Plaintiff’s “medically determinable 18 impairments could reasonably be expected to cause some of the alleged symptoms; 19 however, . . . the [Plaintiff’s] statements concerning the intensity, persistence, and 20 limiting effects of these symptoms are not completely credible.” Tr. 27. Because ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 10 1 there is no evidence of malingering in this case, the Court must determine whether 2 the ALJ provided specific, clear, and convincing reasons not to credit Plaintiff’s 3 testimony regarding the limiting effect of her symptoms. Chaudhry, 688 F.3d at 4 672. 5 Although Plaintiff contends that the ALJ improperly conducted an adverse 6 credibility analysis, ECF No. 18 at 13-22, this Court disagrees. The ALJ provided 7 the following specific, clear, and convincing reasoning supported by substantial 8 evidence for finding Plaintiff’s subjective statements not fully credible: the ALJ 9 found that (1) the medical evidence did not support the degree of physical and 10 mental limitation alleged by Plaintiff; (2) Plaintiff’s presentation at physical and 11 mental exams was inconsistent with her reported limitations; and (3) Plaintiff “may 12 have narcotic seeking behaviors and that the claimant’s level of impairments do 13 not warrant the type and amount of pain medication that she alleged she needs.” 14 Tr. 27-28. 15 First, the ALJ found the medical evidence did not support the degree of 16 physical limitation alleged by Plaintiff. For instance, although Plaintiff testified to 17 a lot of pain in her knees and back, problems with stairs and walking, need for a 18 cane, inability to squat, bend, or stand for more than 20 minutes, and ability to lift 19 only 15 pounds, the ALJ highlighted the following contradictory medical evidence: 20 X-rays of the knees showed that joint space was maintained, and no osteophytosis or acute bony defect or fracture was noted. MRI's of the ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 11 1 2 3 4 5 6 7 8 9 claimant’s back showed a few mildly bulging discs in the lumbar spine. An orthopedist, Dr. Pierson, noted that the claimant ambulated without the use of a cane or crutch, had no tenderness to palpation over the knees, and had a negative McMurray test. The claimant was found to have no lumbar spine tenderness, a normal range of motion, and normal curvature. Strength was noted to be 5/5. The claimant’s patellar and ankle jerk reflexes were 1+ and equal bilaterally. The claimant had an active range of motion in the knees from 0 to 120 degrees of flexion. A neurological examiner noted that the claimant did not have any reflex, sensory, or motor changes that would suggest a radiculopathy, and did not find any evidence for myelopathy. Dr. Kraus noted that for almost all of the claimant's strength testing, she needed a lot of coaching to give good effort, hut that overall, he could not find any weakness. Dr. Kraus noted that he was unable to find any neurological abnormality or cause for the claimant’s pain symptoms. Tr. 27 (citations omitted). These inconsistencies between the Plaintiff’s alleged 10 limitations and physical medical evidence provided a permissible reason for 11 discounting Plaintiff’s credibility. Thomas, 278 F.3d at 958; see also Rollins v. 12 Massanari, 261 F.3d 853, 857 (9th Cir. 2001) (“While subjective pain testimony 13 cannot be rejected on the sole ground that it is not fully corroborated by objective 14 medical evidence, the medical evidence is still a relevant factor in determining the 15 severity of the claimant’s pain and its disabling effects.”). 16 Second, the ALJ found inconsistencies between Plaintiff’s reports of 17 significant limitations and her presentation at both physical and mental exams. As 18 noted by the ALJ, “[t]he claimant is described by providers as alert and oriented, 19 with appropriate mood and affect,” she “presents [herself] as appropriately dressed 20 and groomed,” and “has been noted to have normal attention span and ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 12 1 concentration.” Tr. 27-28. Because the ALJ may employ “ordinary techniques of 2 credibility evaluation” when assessing the Plaintiff’s credibility, Thomas, 278 F.3d 3 at 960, the ALJ provided another permissible reason for not fully crediting 4 Plaintiff’s testimony. 5 Finally, the ALJ cited to Plaintiff’s possible narcotic seeking behavior as 6 another reason to not fully credit Plaintiff’s subjective statements of pain. As 7 stated by Plaintiff at one medical visit, her prior treating physician, Dr. Rosa 8 Martinez, would not provide pain medication because that Dr. Martinez was 9 “concerned about getting sued over prescribing narcotics.” Tr. 28, 668. In another 10 visit, with Dr. Phillip Dove, the physician noted that Plaintiff “quickly redirected 11 the conversation to her pain medication and the need for methadone and narcotics” 12 and that when he tried to redirect her to a conversation of a diagnosis and her 13 records from an orthopedist “she became very agitat[ed], aggressive[,] refused to 14 release records or leave blood,” “became insulting about why” he was asking so 15 many questions, and she ultimately “left very angry storming out.” Tr. 28, 654-55. 16 When Plaintiff had a subsequent visit with Ms. Jessica Wynn, ARNP, Plaintiff told 17 Ms. Wynn that the appointment with Dr. Dove had not went well and that she did 18 not understand why no one would prescribe her medicine. Tr. 28, 648. In light of 19 Plaintiff’s “unremarkable” physical exams, the ALJ reasonably questioned whether 20 the amount of medication Plaintiff alleged she needed was consistent with the level ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 13 1 of impairment or instead evidenced narcotic seeking behavior. This was a specific, 2 clear, and convincing reason to discount Plaintiff’s testimony regarding her alleged 3 limitations. See Edlund v. Massanari, 253 F.3d 1152, 1157 (9th Cir. 2001) 4 (recognizing narcotic seeking behavior as a permissible reason for an ALJ to not 5 fully credit a claimant’s alleged limitations). 6 Plaintiff reasonably faults the ALJ for discounting her mental health 7 statements based on evidence in the record showing improvement. ECF No. 17- 8 19. As noted by Plaintiff, the ALJ’s examples of improvement appear to have 9 been “cherry-picked” periods of temporary well-being rather than constituting 10 examples of “broader development,” Garrison v. Colvin, 759 F.3d 995, 1018 (9th 11 Cir. 2014): 16 [I]t is error to reject a claimant’s testimony merely because symptoms wax and wane in the course of treatment. Cycles of improvement and debilitating symptoms are a common occurrence, and in such circumstances it is error for an ALJ to pick out a few isolated instances of improvement over a period of months or years and to treat them as a basis for concluding a claimant is capable of working. Reports of “improvement” in the context of mental health issues must be interpreted with an understanding of the patient’s overall wellbeing and the nature of her symptoms. 17 Id. at 1017 (citations omitted). For instance, specific to Plaintiff’s reports of 18 depression, the ALJ noted the following: 12 13 14 15 19 20 As to claimant’s mental symptoms, there are numerous reports in the record of the claimant presenting as teary and emotional during medical appointments. However, medical evidence shows that the claimant reported that her mood was “better” after her medication was ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 14 1 2 adjusted in April 2011, and that she felt good and happy. One of the claimant’s treating providers, Sandra Carollo, ARNP, noted that the claimant was presenting better than at previous appointments; the claimant’s mood was less labile, and she was not as teary. 3 Tr. 27 (citations omitted). As noted by Plaintiff, however, Plaintiff had numerous 4 appointments following April 2011 in which her reports of mental health waxed 5 and waned. ECF No. 18 at 17-18 (citing Tr. 696, 699, 700, 704, 708-09). 6 Nevertheless, the ALJ provided other specific, clear, and convincing reasons based 7 on substantial evidence for not fully crediting Plaintiff’s testimony, as detailed 8 above. See Stout v. Comm’r of Soc. Sec. Admin., 454 F.3d 1050, 1055 (9th Cir. 9 2006) (discussing application of the harmless error analysis, including where “the 10 ALJ provided numerous other record-supported reasons for discrediting the 11 claimant’s testimony”). Further, any error here is inconsequential to the ALJ’s 12 ultimate nondisability finding, see id., which considered evidence in the record 13 regarding Plaintiff’s non-exertional limitations and ultimately determined such 14 limitations would only have “intermittent” effects on Plaintiff’s ability to work. 15 See Tr. 29 (discussing Dr. Beaty’s and Dr. Doughtery’s opinions regarding 16 Plaintiff’s mental limitations, as well as rejecting the validity of Plaintiff’s GAF 17 assessment). Thus, any error was harmless. 18 B. Dr. Beaty’s Medical Opinion 19 There are three types of physicians: “(1) those who treat the claimant 20 (treating physicians); (2) those who examine but do not treat the claimant ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 15 1 (examining physicians); and (3) those who neither examine nor treat the claimant 2 [but who review the claimant’s file] (nonexamining [or reviewing] physicians).” 3 Holohan, 246 F.3d at 1201-02 (citations omitted). Generally, the opinion of a 4 treating physician carries more weight than the opinion of an examining physician, 5 and the opinion of an examining physician carries more weight than the opinion of 6 a reviewing physician. Id. In addition, the Commissioner’s regulations give more 7 weight to opinions that are explained than to opinions that are not, and to the 8 opinions of specialists on matters relating to their area of expertise over the 9 opinions of non-specialists. Id. (citations omitted). 10 Plaintiff contends that the ALJ did not properly weigh the findings of Dr. 11 Beaty, a state agency doctor who reviewed Plaintiff’s file. Specifically, Plaintiff 12 points to the following limitations as stated in Dr. Beaty’s report: Plaintiff is 13 “moderately limited” in her ability to (1) carry out detailed instructions, (2) 14 maintain attention and concentration for extended periods, and (3) complete a 15 normal workday and workweek without interruptions from psychologically-based 16 symptoms and to perform at a consistent pace without an unreasonable number and 17 length of rest periods. ECF No. 18 at 8 (citing Tr. 194). Plaintiff further contends 18 that the ALJ improperly ignored the testimony of the vocational expert, who in 19 considering Dr. Beaty’s opinions, concluded that Plaintiff would not be able to 20 sustain work. Id. at 11. ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 16 1 The ALJ afforded Dr. Beaty’s assessment “significant weight.” Tr. 29. As 2 the ALJ found, “[w]hile the claimant’s subjective experience of pain and 3 depression may cause some intermittent difficulties, the claimant has the 4 concentration, persistence, and pace for a normal workday.” Tr. 29. This Court 5 does not find error in the ALJ’s assessment of Dr. Beaty’s findings: Dr. Beaty 6 never opined that Plaintiff was unable to complete a normal workday, only that she 7 would have moderate difficulties in so doing. Quite the opposite, Dr. Beaty 8 specifically stated that Plaintiff “is capable of independent self-care, maintaining 9 adequate attention and CPP [concentration, persistence and pace] for a normal 10 workday, and capable of simple routine tasks.” Tr. 190. The ALJ was not required 11 to rely on the vocational expert’s contrary view, over that of Dr. Beaty and the 12 other evidence in the record. Rather, ALJ properly acknowledged these 13 limitations, and, in giving Dr. Beaty’s opinion significant weight, similarly found 14 Plaintiff was capable of completing a normal workday. Accordingly, this Court 15 does not find error. 16 C. 17 The RFC is “the most [a claimant] can still do despite [her] limitations.” 20 18 C.F.R § 404.1545(a)(1), 416.945(a)(1). In making this finding, the ALJ need only 19 include credible limitations supported by substantial evidence. Batson v. Comm’r 20 of Soc. Sec. Admin., 359 F.3d 1190, 1197 (9th Cir. 2004). RFC Assessment ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 17 1 Plaintiff contends the following limitations were inappropriately excluded 2 from the ALJ’s RFC finding: (1) Plaintiff is capable of less than full-time 3 sedentary work and cannot stand for very long; (2) Plaintiff requires a job that 4 allows her to sit or stand or will, not simply the option to do either; (3) Plaintiff can 5 only have limited contact with the public because of major depressive disorder, 6 personality disorder, and post-traumatic stress disorder; and (4) Plaintiff’s 7 obesity’s limiting effects. ECF No. 18 at 22-30. 8 First, Plaintiff faults the ALJ’s RFC as indicating Plaintiff is capable of 9 standing for six out of eight hours despite Dr. Howard Platter’s opinion that 10 Plaintiff should be restricted to sedentary work. However, the ALJ properly 11 rejected the opinion of Dr. Platter, a non-examining physician, by reference to 12 specific evidence in the medical record. Sousa v. Callahan, 143 F.3d 1240, 1244 13 (9th Cir. 1998). Affording Dr. Platter’s opinion “no weight,” the ALJ noted that 14 Plaintiff’s “clinical examinations have been largely unremarkable and do not 15 support a sedentary residual functional capacity.” Tr. 28. Rather the ALJ afforded 16 greater weight to an examining orthopedist, Dr. Pierson, who noted that Plaintiff 17 ambulated without the use of a cane or crutch, had no tenderness to palpation over 18 the knees, and had a negative McMurray test. Tr. 29 (citing Tr. 633). Further, any 19 error in not incorporating Dr. Platter’s sedentary limitation into the RFC is 20 harmless considering the ALJ found the following in her step five analysis: ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 18 1 2 3 4 5 6 Based on the vocational expert’s testimony at the hearing, the undersigned notes that even if the claimant was limited to a sedentary exertional level, there are jobs that exist in significant numbers in the economy. The vocational expert testified that such an individual would be able to perform cashier II (DOT 211.462-010, light, SVP 2). Although this job is classified as light, the vocational expert identified a subset of this job which allowed a seated position, and indicated that this subset would have 2,400 jobs in Washington State, and 115,000 jobs nationwide. The vocational expert testified that such an individual could also perform the job of call out operator (DOT 237.367-014, sedentary, SVP 2), with 700 jobs in Washington State, and 50,000 jobs nationwide. 7 8 Tr. 31; see Stubbs-Danielson v. Astrue, 539 F.3d 1169, 1174 (9th Cir. 2008) (“[T]o 9 the extent the ALJ’s RFC finding erroneously omitted Stubbs-Danielson’s postural 10 limitations (only occasional balancing, stooping, and climbing of ramps and stairs), 11 any error was harmless since sedentary jobs require infrequent stooping, balancing, 12 crouching, or climbing.”) 13 Second, Plaintiff faults the ALJ’s RFC assessment for only limiting her to 14 work that allows Plaintiff to sit or stand alternatively, rather than at will. ECF No. 15 18 at 25-26. Plaintiff cites to her problems with standing and the need to take 16 frequent breaks in support or this contention. Based on the vocational expert’s 17 testimony, Plaintiff contends there are not jobs in the national economy that would 18 accommodate such an at-will sit/stand limitation. Id. at 26. Plaintiff’s argument, 19 however, is without merit. As stated above, the ALJ properly rejected Plaintiff’s 20 self-reported standing limitations. Further, the ALJ’s step five assessment noted ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 19 1 that there were significant jobs in the national and state economy that would 2 account for Plaintiff’s alleged sedentary limitation. Thus, any error in not including 3 this standing limitation in the RFC was harmless. See Stubbs-Danielson, 539 F.3d 4 at 1174. 5 Third, Plaintiff contends the RFC does not account for her non-exertional 6 limitations, including her limited tolerance with the public because of major 7 depressive disorder, personality disorder, and post-traumatic stress disorder. ECF 8 No. 18 at 26-28. In support, Plaintiff cites to Dr. Beaty’s finding that Plaintiff has 9 moderate limitations in social interaction, which opinion the ALJ rejected. Id. at 10 26-27. However, the ALJ noted specific evidence in the record that contradicted 11 this non-treating, non-examining medical opinion: 12 13 14 The undersigned gives little weight to Dr. Beaty’s opinion regarding moderate difficulties in social functioning as it is inconsistent with evidence in the record which shows that the claimant enjoys reading to her grandson and talking on the telephone to relatives 3 times per week. The claimant reported that she does not have any problems getting along with family, friends, neighbors, or others. 15 16 Tr. 29 (citations omitted). Further, the ALJ afforded significant weight to Dr. 17 Roland Dougherty, Ph.D., a consultative psychological examiner, who found that 18 Plaintiff’s social skills appeared fair. Accordingly, because ALJ properly rejected 19 this opinion of Dr. Beaty, she need not have incorporated this discredited opinion 20 into her RFC finding. See Batson, 359 F.3d at 1197. ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 20 1 Finally, Plaintiff faults the ALJ for not incorporating the limiting effects of 2 her obesity into the RFC finding. ECF No. 18 at 28-30. Plaintiff reported that her 3 feet get swollen if she has to walk or stand too long, which in turn requires her to 4 rest her feet to allow recovery. Id. at 29. Again, any error in not including 5 Plaintiff’s reported limitations, which the ALJ already discounted as detailed 6 above, was harmless considering her step five finding regarding sedentary jobs. 7 See Stubbs-Danielson, 539 F.3d at 1174. 8 9 Accordingly, because the ALJ’s RFC finding is supported by substantial evidence in the record and need not have included discounted limitations, no error 10 has been shown. 11 IT IS ORDERED: 12 1. Plaintiff’s Motion for Summary Judgment (ECF No. 18) is DENIED. 13 2. Defendant’s Motion for Summary Judgment (ECF No. 19) is 14 15 16 17 GRANTED. The District Court Executive is directed to file this Order, enter Judgment for Defendant, provide copies to counsel, and CLOSE the file. DATED May 19, 2015. 18 19 THOMAS O. RICE United States District Judge 20 ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 21
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