Rivera v. Colvin, No. 1:2015cv03019 - Document 23 (E.D. Wash. 2015)

Court Description: ORDER GRANTING ECF No. 18 DEFENDANT'S MOTION FOR SUMMARY JUDGMENT; denying ECF No. 15 Plaintiff's Motion for Summary Judgment. FILE CLOSED. Signed by Magistrate Judge John T. Rodgers. (TR, Case Administrator)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF WASHINGTON 10 11 12 JERRY RIVERA, No. 1:15-CV-03019-JTR Plaintiff, ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT 13 14 15 16 17 v. CAROLYN W. COLVIN, Commissioner of Social Security, Defendant. 18 19 BEFORE THE COURT are cross-Motions for Summary Judgment. ECF 20 No. 15, 18. Attorney D. James Tree represents Jerry Rivera (Plaintiff); Special 21 Assistant United States Attorney Christopher J. Brackett represents the 22 Commissioner of Social Security (Defendant). The parties have consented to 23 proceed before a magistrate judge. ECF No. 6. After reviewing the administrative 24 record and briefs filed by the parties, the Court GRANTS Defendant’s Motion for 25 Summary Judgment and DENIES Plaintiff’s Motion for Summary Judgment. 26 JURISDICTION 27 Plaintiff filed an application for Supplemental Security Income (SSI) on 28 November 17, 2011, alleging disability since October 31, 1981. Tr. 205-11. The ORDER GRANTING DEFENDANT’S MOTION . . . - 1 1 application was denied initially and upon reconsideration. Tr. 83-96, 97-110. 2 Administrative Law Judge (ALJ) Larry Kennedy held a hearing on October 28, 3 2013, at which Plaintiff, represented by counsel, testified as did vocational expert 4 (VE) Kimberly Mullinax. Tr. 27-72. The ALJ issued an unfavorable decision on 5 November 6, 2013. Tr. 8-26. The Appeals Council denied review. Tr. 1-4. The 6 ALJ’s November 2013 decision became the final decision of the Commissioner, 7 which is appealable to the district court pursuant to 42 U.S.C. § 405(g). Plaintiff 8 filed this action for judicial review on January 30, 2015. ECF Nos. 1, 4. 9 STATEMENT OF FACTS 10 The facts of the case are set forth in the administrative hearing transcript, the 11 ALJ’s decision, and the briefs of the parties. They are only briefly summarized 12 here. 13 Plaintiff was 31 years old at the time of the hearing. Tr. 35. Plaintiff 14 attended school through eighth grade and has not obtained a GED. Tr. 35. 15 Plaintiff can read, do simple math, and writes at a third or fourth grade level. Tr. 16 35-36. Plaintiff last worked at a gun club for three months starting April 1, 2013. 17 Tr. 38. At this job, Plaintiff built targets, painted and repaired PVC pipes, worked 18 on an irrigation/sprinkler system, did some carpentry, maintained equipment, 19 loaded skeets, picked up spent shotgun shells, and collected live ammunition. Tr. 20 39, 60. Plaintiff worked by himself under a supervisor who gave him a list of 21 things to do. Tr. 39. Plaintiff estimated that he might have worked as much as 22 thirty two hours a week. Tr. 40. Before working at the gun club, Plaintiff did 23 maintenance work at a farm and a ranch. Tr. 41-42. None of these jobs involved 24 very much interaction with other employees or supervisors. Tr. 44-45. 25 Plaintiff testified that he is unable to work because of problems interacting 26 with other people. Tr. 44. Plaintiff claimed that when he is around other people, 27 he becomes nervous, violent, and upset. Tr. 44. Plaintiff testified that he has pain 28 and numbness in his hands and wrists, which affects his grip. Tr. 50. Plaintiff’s ORDER GRANTING DEFENDANT’S MOTION . . . - 2 1 left knee sometimes “pops out of place” or “gives out,” which requires Plaintiff to 2 wear a knee brace and sometimes an immobilization brace. Tr. 51. On a typically day, Plaintiff does small things around the house and “stare[s] 3 4 at the walls a lot.” Tr. 42. Plaintiff has about three friends that he occasionally 5 spends time with. Tr. 43. Plaintiff tries to avoid other people and spends most of 6 his time at home. Tr. 47-48. Plaintiff spends more than half the day lying down. 7 Tr. 52. 8 STANDARD OF REVIEW 9 The ALJ is responsible for determining credibility, resolving conflicts in 10 medical testimony, and resolving ambiguities. Andrews v. Shalala, 53 F.3d 1035, 11 1039 (9th Cir. 1995). The Court reviews the ALJ’s determinations of law de novo, 12 deferring to a reasonable interpretation of the statutes. McNatt v. Apfel, 201 F.3d 13 1084, 1087 (9th Cir. 2000). The decision of the ALJ may be reversed only if it is 14 not supported by substantial evidence or if it is based on legal error. Tackett v. 15 Apfel, 180 F.3d 1094, 1097 (9th Cir. 1999). Substantial evidence is defined as 16 being more than a mere scintilla, but less than a preponderance. Id. at 1098. Put 17 another way, substantial evidence is such relevant evidence as a reasonable mind 18 might accept as adequate to support a conclusion. Richardson v. Perales, 402 19 U.S. 389, 401 (1971). If the evidence is susceptible to more than one rational 20 interpretation, the court may not substitute its judgment for that of the ALJ. 21 Tackett, 180 F.3d at 1097. Nevertheless, a decision supported by substantial 22 evidence will still be set aside if the proper legal standards were not applied in 23 weighing the evidence and making the decision. Brawner v. Secretary of Health 24 and Human Services, 839 F.2d 432, 433 (9th Cir. 1988). If substantial evidence 25 supports the administrative findings, or if conflicting evidence supports a finding 26 of either disability or non-disability, the ALJ’s determination is conclusive. 27 Sprague v. Bowen, 812 F.2d 1226, 1229-1230 (9th Cir. 1987). 28 /// ORDER GRANTING DEFENDANT’S MOTION . . . - 3 1 2 SEQUENTIAL EVALUATION PROCESS The Commissioner has established a five-step sequential evaluation process 3 for determining whether a person is disabled. 20 C.F.R. §§ 404.1520(a), 4 416.920(a); see Bowen v. Yuckert, 482 U.S. 137, 140-142 (1987). In steps one 5 through four, the burden of proof rests upon claimants to establish a prima facie 6 case of entitlement to disability benefits. Tackett, 180 F.3d at 1098-1099. This 7 burden is met once claimants establish that physical or mental impairments prevent 8 them from engaging in their previous occupations. 20 C.F.R. § 416.920(a)(4). If 9 claimants cannot do their past relevant work, the ALJ proceeds to step five, and the 10 burden shifts to the Commissioner to show that (1) the claimants can make an 11 adjustment to other work, and (2) specific jobs exist in the national economy which 12 claimants can perform. Batson v. Comm’r of Soc. Sec. Admin., 359 F.3d 1190, 13 1193-1194 (2004). If claimants cannot make an adjustment to other work in the 14 national economy, a finding of “disabled” is made. 20 C.F.R. § 416.920(a)(4)(i-v). 15 ADMINISTRATIVE DECISION 16 17 18 19 On November 6, 2013, the ALJ issued a decision finding Plaintiff was not disabled as defined in the Social Security Act. At step one, the ALJ found Plaintiff had not engaged in substantial gainful activity since November 17, 2011, the application date. Tr. 13. 20 At step two, the ALJ determined Plaintiff had the following severe 21 impairments: left knee degenerative joint disease; attention deficit/hyperactivity 22 disorder (ADHD); posttraumatic stress disorder (PTSD); anxiety disorder not 23 otherwise specified (NOS); personality disorder versus borderline antisocial and 24 schizoid personality traits; alcohol dependence in substantial remission; and, 25 cannabis dependence in partial remission. Tr. 13. 26 At step three, the ALJ found Plaintiff did not have an impairment or 27 combination of impairments that met or medically equaled the severity of one of 28 the listed impairments. Tr. 14. ORDER GRANTING DEFENDANT’S MOTION . . . - 4 1 2 At step four, the ALJ assessed Plaintiff’s residual function capacity (RFC) and determined he could perform light work with the following limitations: 3 22 [Plaintiff] can lift up to twenty pounds occasionally and lift and/or carry up to ten pounds frequently, stand and/or walk about two hours in an eight-hour day with normal breaks, and sit for about six hours in an eight-hour day with normal breaks. [Plaintiff] cannot perform prolonged walking or standing, and cannot use foot controls. He can occasionally balance, stoop, and crouch, and cannot climb ramps, stairs, ladders, ropes, or scaffolds. He can frequently finger, and reach bilaterally, must avoid concentrated exposure to hazards such as unenclosed and unprotected heights, and must avoid all exposure to vibration. [Plaintiff] can perform simple, routine tasks and follow short, simple instructions, and can do work that needs little or no judgment and could perform simple duties that can be learned on the job in a short period. [Plaintiff] has average ability to perform sustained work activities (i.e. can maintain attention and concentration; persistence and pace) in an ordinary work setting on a regular and continuing basis (i.e. eight hours a day, for five days a week, or an equivalent work schedule) within customary tolerances of employers rules regarding sick leave and absence. [Plaintiff] needs [a work] environment with minimal supervisor contact (Minimal contact does not preclude all contact, rather it means contact does not occur regularly. Minimal contact also does not preclude simple and superficial exchanges and it does not preclude being in proximity to the supervisor.[)] He can work in proximity to co-workers but not in a cooperative or team effort. [Plaintiff] needs a work environment that requires minimal interactions with co-workers. He needs a work environment that is predictable and with few work setting changes. He requires a work environment without public contact. 23 Tr. 16. The ALJ concluded that Plaintiff was not able to perform his past relevant 24 work. Tr. 20. 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 25 At step five, the ALJ determined that, considering Plaintiff’s age, education, 26 work experience and RFC, and based on the testimony of the vocational expert, 27 there were other jobs that exist in significant numbers in the national economy 28 Plaintiff could perform, including the jobs of document preparer and escort vehicle ORDER GRANTING DEFENDANT’S MOTION . . . - 5 1 driver. Tr. 21. The ALJ thus concluded Plaintiff was not under a disability within 2 the meaning of the Social Security Act at any time from November 17, 2011, 3 through the date of the ALJ’s decision. Tr. 22. 4 ISSUES The question presented is whether substantial evidence supports the ALJ’s 5 6 decision denying benefits and, if so, whether that decision is based on proper legal 7 standards. Plaintiff contends the ALJ erred by (1) discounting Dr. Mary Pellicer’s 8 clinical findings and diagnoses regarding Plaintiff’s wrist and shoulder 9 impairments and failing to properly develop the record regarding those 10 impairments; (2) failing to properly consider the opinion of examining clinical 11 psychologist Dr. Roland Dougherty; (3) failing to provide specific, clear, and 12 convincing reasons for discrediting Plaintiff’s testimony regarding the severity and 13 limiting effects of his impairments; and, (4) not accounting for the full extent of 14 Plaintiff’s functional limitations in the ALJ’s RFC assessment. 15 16 DISCUSSION A. Credibility 17 Plaintiff contests the ALJ’s adverse credibility determination. 18 It is generally the province of the ALJ to make credibility determinations, 19 Andrews, 53 F.3d at 1039, but the ALJ’s findings must be supported by specific 20 cogent reasons, Rashad v. Sullivan, 903 F.2d 1229, 1231 (9th Cir. 1990). Absent 21 affirmative evidence of malingering, the ALJ’s reasons for rejecting the claimant’s 22 testimony must be “specific, clear and convincing.” Smolen v. Chater, 80 F.3d 23 1273, 1281 (9th Cir. 1996). “General findings are insufficient: rather the ALJ 24 must identify what testimony is not credible and what evidence undermines the 25 claimant’s complaints.” Lester v. Chater, 81 F.3d 821, 834 (9th Cir. 1995). 26 The ALJ found Plaintiff not fully credible concerning the intensity, 27 persistence, and limiting effects of his symptoms. Tr. 17. The ALJ reasoned that 28 Plaintiff was less than credible because his symptom reporting was contrary to (1) ORDER GRANTING DEFENDANT’S MOTION . . . - 6 1 his daily activities, (2) the fact that he worked during the relevant period 2 (especially his work at the gun club), (3) the results of psychological testing, and 3 (4) evidence that suggested that Plaintiff did not have serious behavioral problems 4 or problems getting along with others. 5 1. Daily Activities 6 The ALJ noted Plaintiff was able to drive, go to the grocery store, do his 7 own laundry, read, play online computer games, and watch movies. Tr. 17. The 8 ALJ also noted Plaintiff had three friends, lived with his fiancé, had worked at one 9 location with two or three other people, and had good reading and concentration 10 skills. Tr. 17 (citing Tr. 320, 380). The ALJ noted that some of Plaintiff’s 11 activities involved significant use of his hands such as picking up spent 12 ammunition at the gun club, working on an irrigation system, throwing hay bales, 13 and driving. Tr. 17 (citing Tr. 378, 413). 14 A claimant’s daily activities may support an adverse credibility finding if 15 (1) the claimant’s activities contradict his or her other testimony, or (2) “the 16 claimant is able to spend a substantial part of his day engaged in pursuits involving 17 performance of physical functions that are transferable to a work setting.” Orn v. 18 Astrue, 495 F.3d 625, 639 (9th Cir. 2007) (citing Fair v. Bowen, 885 F.2d 597, 603 19 (9th Cir. 1989)). “The ALJ must make ‘specific findings relating to [the daily] 20 activities’ and their transferability to conclude that a claimant’s daily activities 21 warrant an adverse credibility determination.” Id. (quoting Burch v. Barnhart, 400 22 F.3d 676, 681 (9th Cir. 2005)). A claimant need not be “utterly incapacitated” to 23 be eligible for benefits. Fair, 885 F.2d at 603. 24 The ALJ did not err in using inconsistencies between Plaintiff’s activities 25 and Plaintiff’s testimony to discredit Plaintiff. The ALJ properly found Plaintiff’s 26 testimony regarding his social difficulties undermined by the fact that Plaintiff 27 lives with his fiancé, has a few friends that he occasionally spends time with, and 28 has worked with a small team of co-workers. See Tr. 36, 43, 45. The ALJ also ORDER GRANTING DEFENDANT’S MOTION . . . - 7 1 properly found inconsistencies between Plaintiff’s allegations of poor grip 2 undermined by the fact that he was able to pick up spent ammunition, throw hay 3 bales, and drive. See Tr. 378, 413. Furthermore, Plaintiff’s ability to play 4 computer games, watch movies, and read for long periods belies his testimony that 5 he has difficulty concentrating. Tr. 54. The inconsistencies between Plaintiff’s 6 testimony and his activities identified by the ALJ are clear and convincing reasons 7 to discredit Plaintiff. 8 2. Work During Relevant Period 9 The ALJ noted Plaintiff reported working as a fruit picker (seasonally) and 10 part time at a gun club doing maintenance work. Tr. 17. The ALJ noted that 11 Plaintiff’s work at the gun club was especially inconsistent with Plaintiff’s 12 symptom reporting. Tr. 17. The ALJ noted that, at the gun club, Plaintiff used his 13 hands to pick up ammunition, threw hay bales, responded appropriately to a 14 situation where a child pointed a gun at him on two occasions, and was otherwise 15 capable of some social interaction. Tr. 17-18 (citing Tr. 413 (Plaintiff injured 16 when “throwing up a bale of hay”)); see also Tr. 44 (Plaintiff describing his 17 reaction to the gun incident). 18 Generally, a claimant’s ability to work can be considered in assessing 19 credibility. Bray v. Comm’r, Soc. Sec. Admin., 554 F.3d 1219, 1227 (9th Cir. 20 2009). The fact that a claimant “tried to work for a short period of time and, 21 because of his impairments, failed,” should not be used to discredit the claimant. 22 Lingenfelter v. Astrue, 504 F.3d 1028, 1038-39 (9th Cir. 2007). In fact, evidence 23 that a claimant tried to work and failed may support the claimant’s allegations of 24 disabling pain. Id. at 1038. 25 The ALJ did not err in using Plaintiff’s work during his alleged period of 26 disability to discredit him. Plaintiff’s work as a seasonal fruit picker suggests 27 Plaintiff is capable of working with his hands. Plaintiff’s work at the gun club 28 suggests he is capable of a range of work tasks and some limited social contact. ORDER GRANTING DEFENDANT’S MOTION . . . - 8 1 Plaintiff’s work did not appear to end because of his impairments. His work as a 2 fruit picker was seasonal and his work at the gun club ended due to a workplace 3 injury. See Tr. 38, 404-20. Plaintiff’s ability to work during his alleged period of 4 disability is a clear and convincing reason to discredit Plaintiff. 5 3. Inconsistent with Results of Psychological Testing 6 The ALJ noted that Plaintiff’s IQ score was in the average range. Tr. 18 7 (citing Tr. 339). The ALJ further noted Plaintiff “was able to recall three of three 8 objects after five minutes, could recount a recent news item, was able to complete 9 a serial threes test easily and accurately, and was able to carry out a three-step 10 command with ease.” Tr. 18 (citing Tr. 335-36, 379-80). 11 An ALJ may cite inconsistencies between a claimant’s testimony and the 12 objective medical evidence in discounting the claimant’s testimony. Bray, 554 13 F.3d at 1227. 14 The ALJ did not err in finding Plaintiff’s testimony inconsistent with the 15 results of psychological testing. Plaintiff testified he has problems focusing and is 16 generally “scatter brained.” Tr. 54. The ALJ reasonably found these allegations 17 inconsistent with Plaintiff’s IQ score and the mental status examinations performed 18 by Dr. Dougherty. See Tr. 335-36, 339, 379-80. These inconsistencies are clear 19 and convincing reasons to discredit Plaintiff. Records of Plaintiff’s Ability to Get Along with Others 20 4. 21 The ALJ cited a 1997 school assessment that indicated Plaintiff did not have 22 serious behavioral disabilities. Tr. 18 (citing Tr. 344). The ALJ also noted 23 Plaintiff was pleasant and cooperative with his treating and evaluating providers. 24 Tr. 18 (citing Tr. 338, 379, 381, 420). 25 In determining a claimant’s credibility, the ALJ may consider “ordinary 26 techniques of credibility evaluation, such as the claimant’s reputation for lying, 27 prior inconsistent statements . . . and other testimony by the claimant that appears 28 less than candid.” Smolen, 80 F.3d at 1284. ORDER GRANTING DEFENDANT’S MOTION . . . - 9 The ALJ may have erred in using Plaintiff’s school records and demeanor at 1 2 this medical appointments to discredit him, but any error is harmless. Simply 3 because Plaintiff appeared agreeable at his medical appointments does not mean he 4 does not have social or behavioral problems. Regarding Plaintiff’s school records, 5 the Court agrees with Plaintiff that Plaintiff’s records document some significant 6 behavioral issues. See ECF No. 15 at 23 n.8 (citing Tr. 234, 314, 322). The ALJ’s 7 citation to a single report stating Plaintiff’s problems were not considered “serious 8 behavior disabilities,” Tr. 344, seems to be contrary to the majority of the evidence 9 indicating Plaintiff has some behavioral and social problems. See ECF No. 15 10 (citing Tr. 44-48, 55-56, 279-81, 292, 300, 364, 372, 374, 378). Any error is 11 harmless, however, because the ALJ provided other valid reasons to discredit 12 Plaintiff and adequately accounted for Plaintiff’s social limitations in the ALJ’s 13 RFC assessment. See Tommasetti v. Astrue, 533 F.3d 1035, 1038 (9th Cir. 2008) 14 (an error is harmless when “it is clear from the record that the . . . error was 15 inconsequential to the ultimate nondisability determination.”); Carmickle v. 16 Comm’r, Soc. Sec. Admin., 533 F.3d 1160, 1163 (9th Cir. 2008) (upholding 17 adverse credibility finding where ALJ provided four reasons to discredit claimant, 18 two of which were invalid). 19 5. 20 The ALJ provided specific, clear, and convincing reasons to find Plaintiff 21 less than fully credible and this finding is supported by substantial evidence. In 22 light of these valid reasons, any error contained in the ALJ’s adverse credibility 23 finding is harmless. 24 B. 25 Conclusion Evaluation of Medical Evidence Plaintiff argues the ALJ failed to properly consider and weigh the medical 26 opinion expressed by examining sources Mary Pellicer, M.D., and Roland 27 Dougherty, Ph.D. ECF No. 15 at 7-17. 28 /// ORDER GRANTING DEFENDANT’S MOTION . . . - 10 1 “In making a determination of disability, the ALJ must develop the record 2 and interpret the medical evidence.” Howard ex. rel. Wolff v. Barnhart, 341 F.3d 3 1006, 1012 (9th Cir. 2003). 4 In weighing medical source opinions, the ALJ should distinguish between 5 three different types of physicians: (1) treating physicians, who actually treat the 6 claimant; (2) examining physicians, who examine but do not treat the claimant; 7 and, (3) nonexamining physicians who neither treat nor examine the claimant. 8 Lester, 81 F.3d at 830. The ALJ should give more weight to the opinion of a 9 treating physician than to the opinion of an examining physician. Orn, 495 F.3d at 10 631. The ALJ should give more weight to the opinion of an examining physician 11 than to the opinion of a nonexamining physician. Id. 12 When a physician’s opinion is not contradicted by another physician, the 13 ALJ may reject the opinion only for “clear and convincing” reasons. Baxter v. 14 Sullivan, 923 F.2d 1391, 1396 (9th Cir. 1991). When a physician’s opinion is 15 contradicted by another physician, the ALJ is only required to provide “specific 16 and legitimate reasons” for rejecting the opinion of the first physician. Murray v. 17 Heckler, 722 F.2d 499, 502 (9th Cir. 1983). 18 To the extent that Drs. Pellicer and Dougherty assessed Plaintiff with 19 limitations that would prevent him from working, these opinions are contradicted 20 by the opinions of State agency consultant physicians Edward Beaty, Ph.D., John 21 Robinson, Ph.D., Gordon Hale, M.D., Gerald Peterson, Ph.D., and Charles Wolfe, 22 M.D. Tr. 73-81, 84-96, 98-110. Therefore, the ALJ was required to provide 23 specific and legitimate reasons for rejecting the opinions of Drs. Pellicer and 24 Dougherty. 25 1. Mary Pellicer, M.D. 26 Dr. Pellicer completed a physical evaluation of Plaintiff in February 2012. 27 Tr. 363-68. Upon physical examination, Dr. Pellicer found Plaintiff had mostly 28 normal range of motion, but decreased range of motion in his left knee. Tr. 366- ORDER GRANTING DEFENDANT’S MOTION . . . - 11 1 67. Dr. Pellicer noted Plaintiff had problems with coordination and that he 2 couldn’t open a jar or pick up coins from a flat surface. Tr. 367. Dr. Pellicer rated 3 Plaintiff’s strength on the right side as “5/5” and “4+/5” on the left side. Tr. 367- 4 68. Dr. Pellicer’s clinical impressions of Plaintiff included wrist derangement, 5 possible carpal tunnel syndrome; left shoulder derangement; and, chronic left knee 6 pain secondary to left knee derangement, possible meniscal tear. Tr. 368. For 7 each of these clinical impressions, Dr. Pellicer recommended further evaluation. 8 Tr. 368. Dr. Pellicer concluded Plaintiff had the following limitations: 9 He is able to stand and walk for at least 6 hours in an 8 hour day with more frequent breaks due to chronic left knee pain. Sitting: no restrictions No assistive devices needed. [Plaintiff] would be capable of lifting and carrying 10 [pounds] occasionally due to chronic left knee pain and left shoulder derangement. [Plaintiff] can bend but can’t squat, crawl, kneel or climb due to chronic left knee pain. [Plaintiff] can only manipulate occasionally due to bilateral wrist problems. He is able to see, hear, speak and drive independently and do all the necessary daily self-care activities. 10 11 12 13 14 15 16 17 18 19 Tr. 368. The ALJ gave “little to no weight” to Dr. Pellicer’s opinions. Tr. 19. The 20 21 ALJ found Dr. Pellicer’s evaluation internally inconsistent, pointing to 22 inconsistency between Dr. Pellicer’s conclusion that Plaintiff has “bilateral wrist 23 problems,” Tr. 368, with her findings that Plaintiff had normal strength in his right 24 wrist and only a slight decrease of strength in his left wrist, Tr. 367. Tr. 19. The 25 ALJ also found Dr. Pellicer’s opinions inconsistent with Plaintiff’s activities of 26 picking fruit and picking up spent ammunition. Tr. 19. Finally, the ALJ noted 27 Plaintiff had a normal range of motion and x-rays revealed no abnormalities. Tr. 28 19. ORDER GRANTING DEFENDANT’S MOTION . . . - 12 1 The ALJ did not err in giving little weight to Dr. Pellicer’s opinions. The 2 ALJ properly noted the inconsistency between Dr. Pellicer’s mostly normal 3 examination findings with her opinion that Plaintiff had “bilateral wrist problems.” 4 Tr. 368. See Bayliss v. Barnhart, 427 F.3d 1211, 1216 (9th Cir. 2005) (finding that 5 an ALJ may cite internal inconsistencies in evaluating a physician’s report); 6 Thomas v. Barnhart, 278 F.3d 947, 957 (9th Cir. 2002) (ALJ may reject a medical 7 opinion that is “inadequately supported by clinical findings”). The ALJ also 8 properly cited to Plaintiff’s activities, which, contrary to Dr. Pellicer’s opinion, 9 suggest his hand problems are not as severe as found by Dr. Pellicer. See Morgan 10 v. Comm’r, Soc. Sec. Admin., 169 F.3d 595, 602 (9th Cir. 1999) (ALJ properly 11 relied on the fact that claimant could perform certain activities to discount a 12 physician’s opinion that the claimant’s impairments prevented him from working). 13 Finally, the ALJ properly reasoned that Plaintiff’s complaints were not supported 14 by objective evidence, including x-rays and Dr. Pellicer’s range of motion testing. 15 See Batson, 359 F.3d at 1196 (inconsistency with objective evidence is a specific 16 and legitimate reason for rejecting physician’s opinions). 17 Plaintiff argues Dr. Pellicer’s opinions are not internally inconsistent, noting 18 that Dr. Pellicer observed that Plaintiff exhibited Phalen’s signs (indicating carpal 19 tunnel syndrome) and was unable to open a jar or pick up coins. ECF No. 15 at 9- 20 10 (citing Tr. 366-67). Plaintiff makes a reasonable argument, but this does not 21 explain the inconsistency identified by the ALJ, i.e., Dr. Pellicer’s conclusion that 22 Plaintiff had “bilateral wrist problems,” Tr. 368, and Dr. Pellicer’s finding Plaintiff 23 had “[n]ormal wrist range of motion” and mostly normal strength in his wrist 24 flexors and extensors, Tr. 367. The ALJ reasonably gave more weight to Dr. 25 Pellicer’s examination findings than to Dr. Pellicer’s “bilateral wrist problems” 26 conclusion, Tr. 368. 27 28 Plaintiff further argues that his periodic activity of picking up spent ammunition and prior work harvesting fruit (which lasted for two months) was not ORDER GRANTING DEFENDANT’S MOTION . . . - 13 1 contrary to Dr. Pellicer’s opinions. ECF No. 15 at 10-11 (citing SSR 96-8p). 2 Plaintiff is correct in arguing SSR 96-8p requires the ALJ’s RFC assessment to 3 include the claimant’s “maximum remaining ability to do sustained work activities 4 in an ordinary setting on a regular and continuing basis.” But SSR 96-8p does not 5 prohibit the ALJ from using inconsistencies between a physician’s opinion and the 6 claimant’s activities as a reason to discount the physician’s opinion. In this case, 7 the ALJ reasonably inferred that Plaintiff’s work at the gun club and picking fruit 8 involved more use of his hands than found by Dr. Pellicer, and this was a specific 9 and legitimate reason to discount Dr. Pellicer’s opinions. 10 Additionally, Plaintiff argues that x-rays were not useful in detecting his 11 shoulder impairment and that the ALJ should have accepted Dr. Pellicer’s findings 12 based on her clinical interview with Plaintiff. ECF No. 15 at 11-12. Whether x- 13 rays are capable of revealing Plaintiff’s shoulder impairment is outside of the 14 Court’s expertise. As argued by Defendant, however, the negative x-ray is 15 supported by the fact that Dr. Pellicer’s physical examination of Plaintiff revealed 16 Plaintiff had full range of motion and near-full strength in his shoulders. ECF No. 17 18 at 6-7 (citing Tr. 19); see also Tr. 366-67. 18 Finally, Plaintiff argues the ALJ erred by not supplementing the record 19 based on Dr. Pellicer’s recommendation for further evaluation of Plaintiff’s wrist 20 and shoulder impairments. ECF No. 15 at 13. “In Social Security cases the ALJ 21 has a special duty to fully and fairly develop the record and to assure that the 22 claimant’s interests are considered.” Smolen, 80 F.3d at 1288. Despite the ALJ’s 23 duty to develop the record, it remains the claimant’s burden to prove he or she is 24 disabled. 42 U.S.C. § 423(d)(5)(A); 20 C.F.R. § 416.912(a). “An ALJ’s duty to 25 develop the record . . . is triggered only when there is ambiguous evidence or when 26 the record is inadequate to allow for proper evaluation of the evidence.” Mayes v. 27 Massanari, 276 F.3d 453, 459-60 (9th Cir. 2001); see also Webb v. Barnhart, 433 28 F.3d 683, 687 (9th Cir. 2005) (“The ALJ’s duty to supplement a claimant’s record ORDER GRANTING DEFENDANT’S MOTION . . . - 14 1 is triggered by ambiguous evidence, the ALJ’s own finding that the record is 2 inadequate[,] or the ALJ’s reliance on an expert’s conclusion that the evidence is 3 ambiguous.”). 4 In this case, Dr. Pellicer’s opinions were not ambiguous. Dr. Pellicer 5 assessed Plaintiff with specific functional limitations after conducting a clinical 6 interview, physical examination, and reviewing Plaintiff’s x-rays. Although Dr. 7 Pellicer might have needed more information to reach definitive diagnoses, the fact 8 that she was able to assess Plaintiff with specific functional limitations 9 demonstrates she had a sufficient basis to opine on the subject most relevant to 10 determining Plaintiff’s RFC. The ALJ did not give weight to some of Dr. 11 Pellicer’s opinions, but this does not mean the opinions were ambiguous. As 12 discussed supra, the ALJ provided specific and legitimate reasons for discounting 13 certain opinions of Dr. Pellicer. Ultimately, it is Plaintiff’s burden to show that he 14 is disabled, and, in this case, he failed to meet that burden. The ALJ did not err by 15 not further developing the record. 16 2. Roland Dougherty, Ph.D. 17 Dr. Dougherty completed a psychological evaluation of Plaintiff in May 18 2011. Tr. 329-38. Dr. Dougherty diagnosed Plaintiff with ADHD; PTSD, in 19 partial remission; anxiety disorder, NOS, possibly with psychotic features; rule out 20 specific learning disorders; alcohol dependence, in substantial remission; and 21 cannabis dependence, in partial remission. Tr. 337. Dr. Dougherty opined that 22 Plaintiff likely did not have a severe cognitive impairment and attributed Plaintiff’s 23 problems in school to his ADHD symptoms. Tr. 337. Dr. Dougherty opined that 24 Plaintiff’s prognosis was “fair,” and he might benefit from counseling and 25 psychotropic medication. Tr. 338. Dr. Dougherty concluded: 26 27 28 [Plaintiff] was pleasant and cooperative . . . His social skills appear to be at least fair. His thinking was rational and goal directed. He reports being able to do some tasks well, especially if he can work ORDER GRANTING DEFENDANT’S MOTION . . . - 15 1 2 3 alone. He reads extensively. He should be able to understand, remember, and follow at least simple directions. He reports being able to work at light tasks for extended periods. Tr. 338. 4 Dr. Dougherty completed a second psychological evaluation of Plaintiff in 5 March 2012. Tr. 372-82. Dr. Dougherty’s diagnoses were nearly identical to the 6 diagnoses made in his May 2011 evaluation. Tr. 381. Dr. Dougherty noted 7 Plaintiff reported he was “less depressed” and his condition had “improved . . . 8 slightly” since Dr. Dougherty’s previous evaluation. Tr. 381. Dr. Dougherty 9 opined that Plaintiff’s prognosis was guarded, but might “improve appreciably 10 with appropriate mental health counseling and medication resources.” Tr. 381. 11 Dr. Dougherty concluded: 12 13 14 15 16 17 18 [Plaintiff] was pleasant, polite and cooperative . . . His social skills are at least fair. His thinking was logical and goal directed. He reports having been able to work at intermittent labor jobs during the past year, though he has to work through pain. He would like to work if he can. He has difficulty being around and tolerating others. He said he works best alone. Tr. 381-82. The ALJ gave “some weight” to Dr. Dougherty’s opinions. Tr. 20. The 19 ALJ found Dr. Dougherty relied upon Plaintiff’s subjective statements, which were 20 not entirely credible. Tr. 20. The ALJ also noted that Dr. Dougherty’s opinions 21 were “too vague and general to be vocationally relevant.” Tr. 20. In particular, the 22 ALJ noted Dr. Dougherty stated that Plaintiff’s social skills “appear to be at least 23 fair” but Dr. Dougherty did not describe Plaintiff’s ability to interact with 24 supervisors, coworkers, or the public. Tr. 20 (citing Tr. 338, 381). The ALJ gave 25 weight to Dr. Dougherty’s opinion that Plaintiff can understand, remember, and 26 follow at least simple directions. Tr. 20 (citing Tr. 338). 27 28 The ALJ provided specific and legitimate reasons for giving little weight to Dr. Dougherty’s opinions. As discussed supra, the ALJ did not err in finding ORDER GRANTING DEFENDANT’S MOTION . . . - 16 1 Plaintiff less than fully credible, and the ALJ may discount a medical opinion that 2 is based “to a large extent” on a claimant’s non-credible self-reports and not on 3 clinical evidence. Tommasetti v. Astrue, 533 F.3d 1035, 1041 (9th Cir. 2008). Dr. 4 Dougherty’s substantial reliance on Plaintiff’s self-reporting is obvious as most of 5 the “limitations” contained in Dr. Dougherty’s medical source statements are 6 statements made by Plaintiff. See Tr. 338, 381-82. Cf. 20 C.F.R. §§ 404.1513, 7 416.913 (medical source statement should articulate “what [claimants] can still do 8 despite [their] impairment(s)”). The Court also agrees with the ALJ that Dr. 9 Dougherty’s opinion that Plaintiff’s “social skills are at least fair,” Tr. 338, 381, is 10 vague. The Court further finds, as argued by Defendant, that the ALJ’s RFC 11 determination, which limits Plaintiff to “minimal” interaction with coworkers, 12 supervisors, and the public, Tr. 16, adequately accounts for Dr. Dougherty’s 13 assessment of Plaintiff’s “at least fair” social skills. See ECF No. 18 at 8-9 14 (comparing Dr. Dougherty’s opinions to ALJ’s RFC assessment). 15 Plaintiff argues the ALJ erred by discounting Dr. Dougherty’s opinions on 16 the grounds that Dr. Dougherty relied on Plaintiff’s subjective statements. Plaintiff 17 argues the ALJ did not indicate that Dr. Dougherty’s opinions were “more heavily 18 based” upon Plaintiff’s self-reports than on Dr. Dougherty’s clinical observations. 19 ECF No. 15 at 15 (citing Ghanim v. Colvin, 763 F.3d 1154, 1162 (9th Cir. 2014)). 20 The Court disagrees that Ghanim requires the ALJ to make specific findings that 21 balance the extent a medical provider relied upon the claimant’s reporting and the 22 extent the medical provider relied on his or her professional expertise. Ghanim 23 rearticulated the general rule, “If a treating provider’s opinions are based ‘to a 24 large extent’ on an applicant’s self-reports and not on clinical evidence, and the 25 ALJ finds the applicant not credible, the ALJ may discount the treating provider’s 26 opinion.” Ghanim, 763 F.3d at 1162 (citing Tommasetti, 533 F.3d at 1041). In 27 Ghanim, the Ninth Circuit found that substantial evidence did not support the 28 ALJ’s finding that his treating provider’s opinion was largely based on the ORDER GRANTING DEFENDANT’S MOTION . . . - 17 1 claimant’s unreliable self-reporting. Id. In this case, substantial evidence does 2 support such a conclusion as Dr. Dougherty’s medical source statement essentially 3 regurgitates Plaintiff’s (unreliable) reporting. See Tr. 338, 381-82. 4 Plaintiff argues the ALJ erred by reasoning that Dr. Dougherty failed to state 5 specific limitations regarding Plaintiff’s ability to interact with supervisors, 6 coworkers, or the public. ECF No. 15 at 16. Plaintiff argues Dr. Dougherty was 7 not required to state his opinions in “vocationally relevant” terms. ECF No. 15 at 8 16. As discussed supra, Dr. Dougherty’s opinion concerning Plaintiff’s social 9 limitations is vague. The Court is inclined to agree with Plaintiff that medical 10 sources need not provide “vocationally relevant” opinions. But to aid the ALJ in 11 determining whether claimants can work in spite of their (mental) impairments, the 12 medical opinions must provide some specific insight into the claimants’ cognitive 13 and social functionality. Simply stating that a claimant’s social skills are “fair” 14 provides little information that the ALJ can use to determine the claimant’s RFC. Plaintiff finally argues Dr. Dougherty’s opinion that Plaintiff can 15 16 understand, remember, and follow simple instructions does not support that 17 Plaintiff can perform substantial gainful employment given Dr. Dougherty’s 18 further assessment of social limitations. ECF No. 15 at 17. The Court disagrees 19 with Plaintiff that the ALJ somehow erred in adopting part of Dr. Dougherty’s 20 opinions, but rejecting other parts. The Court finds the ALJ provided specific and 21 legitimate reasons for giving little weight to Dr. Dougherty’s opinions and mostly 22 accounted for Dr. Dougherty’s opinions in formulating Plaintiff’s RFC. 23 C. 24 25 26 Residual Functional Capacity Plaintiff argues the ALJ’s RFC assessment failed to account for manipulation and social limitations. ECF No. 15 at 24-26. A claimant’s RFC is “the most [a claimant] can still do despite [her] 27 limitations.” 20 C.F.R. § 416.945(a); see also 20 C.F.R. Part 404, Subpart P, 28 Appendix 2, § 200.00(c) (defining RFC as the “maximum degree to which the ORDER GRANTING DEFENDANT’S MOTION . . . - 18 1 individual retains the capacity for sustained performance of the physical-mental 2 requirements of jobs”). In formulating a RFC, the ALJ weighs medical and other 3 source opinions and also considers the claimant’s credibility and ability to perform 4 daily activities. See, e.g., Bray, 554 F.3d at 1226. 5 6 In this case, the ALJ found Plaintiff had the RFC to perform light work with the following limitations: 7 [Plaintiff] can lift up to twenty pounds occasionally and lift and/or carry up to ten pounds frequently, stand and/or walk about two hours in an eight-hour day with normal breaks, and sit for about six hours in an eight-hour day with normal breaks. [Plaintiff] cannot perform prolonged walking or standing, and cannot use foot controls. He can occasionally balance, stoop, and crouch, and cannot climb ramps, stairs, ladders, ropes, or scaffolds. He can frequently finger, and reach bilaterally, must avoid concentrated exposure to hazards such as unenclosed and unprotected heights, and must avoid all exposure to vibration. [Plaintiff] can perform simple, routine tasks and follow short, simple instructions, and can do work that needs little or no judgment and could perform simple duties that can be learned on the job in a short period. [Plaintiff] has average ability to perform sustained work activities (i.e. can maintain attention and concentration; persistence and pace) in an ordinary work setting on a regular and continuing basis (i.e. eight hours a day, for five days a week, or an equivalent work schedule) within customary tolerances of employers rules regarding sick leave and absence. [Plaintiff] needs [a work] environment with minimal supervisor contact (Minimal contact does not preclude all contact, rather it means contact does not occur regularly. Minimal contact also does not preclude simple and superficial exchanges and it does not preclude being in proximity to the supervisor.[)] He can work in proximity to co-workers but not in a cooperative or team effort. [Plaintiff] needs a work environment that requires minimal interactions with co-workers. He needs a work environment that is predictable and with few work setting changes. He requires a work environment without public contact. 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 Tr. 16. 28 /// ORDER GRANTING DEFENDANT’S MOTION . . . - 19 Plaintiff argues that, based on Dr. Pellicer’s opinion, the ALJ should have 1 2 found that Plaintiff can only manipulate occasionally. ECF No. 15 at 25. Plaintiff 3 also argues the ALJ should have found that he was unable to work with even 4 minimal contact with coworkers and supervisors. ECF No. 15 at 26. Plaintiff 5 argues this limitation is supported by the opinion of State agency psychological 6 consultant, John Robinson, Ph.D., that Plaintiff required “supportive supervision.” 7 Id. (citing Tr. 94). 8 9 As discussed supra, the Court finds the ALJ provided legitimate reasons for discounting the manipulation limitations assessed by Dr. Pellicer. Most notably, 10 Dr. Pellicer’s conclusion that Plaintiff has “bilateral wrist problems,” Tr. 368, was 11 inconsistent with Dr. Pellicer’s clinical findings. Plaintiff’s argument that he 12 requires “supportive supervision,” is not supported by the record. State agency 13 consultants opined that supportive supervision would be “helpful,” but they 14 stopped short of finding this to be a mandatory condition of employment. Tr. 94; 15 see also Tr. 108 (Dr. Peterson reaching the same conclusion as Dr. Robinson). An 16 ALJ need not adopt a medical opinion offered as a recommendation rather than an 17 imperative. Carmickle, 533 F.3d at 1165. Furthermore, the same consultants 18 opined that Plaintiff would “work best away from others,” Tr. 94, 108, and the ALJ 19 accounted for this limitation in his RFC assessment, see Tr. 16. The Court 20 concludes the ALJ’s RFC assessment is supported by substantial evidence and not 21 based on legal error. 22 CONCLUSION 23 Having reviewed the record and the ALJ’s findings, the Court finds the 24 ALJ’s decision is supported by substantial evidence and free of legal error. 25 Accordingly, IT IS ORDERED: 26 1. Defendant’s Motion for Summary Judgment, ECF No. 18, is 27 GRANTED. 28 /// ORDER GRANTING DEFENDANT’S MOTION . . . - 20 Plaintiff’s Motion for Summary Judgment, ECF No. 15, is DENIED. 1 2. 2 The District Court Executive is directed to file this Order and provide a copy 3 to counsel for Plaintiff and Defendant. Judgment shall be entered for Defendant 4 and the file shall be CLOSED. 5 DATED October 30, 2015. 6 7 8 _____________________________________ JOHN T. RODGERS UNITED STATES MAGISTRATE JUDGE 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 ORDER GRANTING DEFENDANT’S MOTION . . . - 21

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