Bautista v. Colvin, No. 1:2015cv03064 - Document 27 (E.D. Wash. 2016)

Court Description: ORDER GRANTING PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT AND DENYING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT; granting ECF No. 13 Plaintiff's Motion for Summary Judgment - the matter is remanded to the Commissioner for additional proceedings pursuant to sentence four 42 U.S.C. 405(g); denying ECF No. 19 Defendant's Motion for Summary Judgment. CASE CLOSED. Signed by Magistrate Judge Mary K. Dimke. (TR, Case Administrator)

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Bautista v. Colvin Doc. 27 1 2 3 4 UNITED STATES DISTRICT COURT 5 EASTERN DISTRICT OF WASHINGTON 6 No. 1:15-CV-03064-MKD KAREN BAUTISTA, Plaintiff, 7 vs. 8 9 CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant. 10 ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ECF Nos. 13, 19 11 12 BEFORE THE COURT are the parties’ cross-motions for summary judgment. 13 ECF Nos. 13, 19. The parties consented to proceed before a magistrate judge. ECF 14 No. 25. The Court, having reviewed the administrative record and the parties’ 15 briefing, is fully informed. For the reasons discussed below, the Court grants 16 Plaintiff’s motion (ECF No. 13) and denies Defendant’s motion (ECF No. 19). 17 18 19 JURISDICTION The Court has jurisdiction over this case pursuant to 42 U.S.C. §§ 405(g); 1383(c)(3). 20 ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT - 1 Dockets.Justia.com 1 2 STANDARD OF REVIEW A district court’s review of a final decision of the Commissioner of Social 3 Security is governed by 42 U.S.C. § 405(g). The scope of review under § 405(g) is 4 limited; the Commissioner’s decision will be disturbed “only if it is not supported by 5 substantial evidence or is based on legal error.” Hill v. Astrue, 698 F.3d 1153, 1158 6 (9th Cir. 2012). “Substantial evidence” means “relevant evidence that a reasonable 7 mind might accept as adequate to support a conclusion.” Id. at 1159 (quotation and 8 citation omitted). Stated differently, substantial evidence equates to “more than a 9 mere scintilla[,] but less than a preponderance.” Id. (quotation and citation omitted). 10 In determining whether the standard has been satisfied, a reviewing court must 11 consider the entire record as a whole rather than searching for supporting evidence in 12 isolation. Id. 13 In reviewing a denial of benefits, a district court may not substitute its 14 judgment for that of the Commissioner. If the evidence in the record “is susceptible 15 to more than one rational interpretation, [the court] must uphold the ALJ’s findings 16 if they are supported by inferences reasonably drawn from the record.” Molina v. 17 Astrue, 674 F.3d 1104, 1111 (9th Cir. 2012). Further, a district court “may not 18 reverse an ALJ’s decision on account of an error that is harmless.” Id. An error is 19 harmless “where it is inconsequential to the [ALJ’s] ultimate nondisability 20 determination.” Id. at 1115 (quotation and citation omitted). The party appealing ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT - 2 1 the ALJ’s decision generally bears the burden of establishing that it was harmed. 2 Shineski v. Sanders, 556 U.S. 396, 409-10 (2009). 3 FIVE-STEP EVALUATION PROCESS 4 A claimant must satisfy two conditions to be considered “disabled” within the 5 meaning of the Social Security Act. First, the claimant must be “unable to engage in 6 any substantial gainful activity by reason of any medically determinable physical or 7 mental impairment which can be expected to result in death or which has lasted or 8 can be expected to last for a continuous period of not less than twelve months.” 42 9 U.S.C. §§ 423(d)(1)(A); 1382c(a)(3)(A). Second, the claimant’s impairment must 10 be “of such severity that he is not only unable to do his previous work[,] but cannot, 11 considering his age, education, and work experience, engage in any other kind of 12 substantial gainful work which exists in the national economy.” 42 U.S.C. §§ 13 423(d)(2)(A); 1382c(a)(3)(B). 14 The Commissioner has established a five-step sequential analysis to determine 15 whether a claimant satisfies the above criteria. See 20 C.F.R. §§ 404.1520(a)(4)(i)- 16 (v); 416.920(a)(4)(i)-(v). At step one, the Commissioner considers the claimant’s 17 work activity. 20 C.F.R. §§ 404.1520(a)(4)(i); 416.920(a)(4)(i). If the claimant is 18 engaged in “substantial gainful activity,” the Commissioner must find that the 19 claimant is not disabled. 20 C.F.R. §§ 404.1520(b); 416.920(b). 20 ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT - 3 1 If the claimant is not engaged in substantial gainful activity, the analysis 2 proceeds to step two. At this step, the Commissioner considers the severity of the 3 claimant’s impairment. 20 C.F.R. §§ 404.1520(a)(4)(ii); 416.920(a)(4)(ii). If the 4 claimant suffers from “any impairment or combination of impairments which 5 significantly limits [his or her] physical or mental ability to do basic work 6 activities,” the analysis proceeds to step three. 20 C.F.R. §§ 404.1520(c); 7 416.920(c). If the claimant’s impairment does not satisfy this severity threshold, 8 however, the Commissioner must find that the claimant is not disabled. 20 C.F.R. 9 §§ 404.1520(c); 416.920(c). 10 At step three, the Commissioner compares the claimant’s impairment to 11 severe impairments recognized by the Commissioner to be so severe as to preclude a 12 person from engaging in substantial gainful activity. 20 C.F.R. §§ 13 404.1520(a)(4)(iii); 416.920(a)(4)(iii). If the impairment is as severe or more severe 14 than one of the enumerated impairments, the Commissioner must find the claimant 15 disabled and award benefits. 20 C.F.R. §§ 404.1520(d); 416.920(d). 16 If the severity of the claimant’s impairment does not meet or exceed the 17 severity of the enumerated impairments, the Commissioner must pause to assess the 18 claimant’s “residual functional capacity.” Residual functional capacity (RFC), 19 defined generally as the claimant’s ability to perform physical and mental work 20 activities on a sustained basis despite his or her limitations, 20 C.F.R. §§ ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT - 4 1 404.1545(a)(1); 416.945(a)(1), is relevant to both the fourth and fifth steps of the 2 analysis. 3 At step four, the Commissioner considers whether, in view of the claimant’s 4 RFC, the claimant is capable of performing work that he or she has performed in the 5 past (past relevant work). 20 C.F.R. §§ 404.1520(a)(4)(iv); 416.920(a)(4)(iv). If 6 the claimant is capable of performing past relevant work, the Commissioner must 7 find that the claimant is not disabled. 20 C.F.R. §§ 404.1520(f); 416.920(f). If the 8 claimant is incapable of performing such work, the analysis proceeds to step five. 9 At step five, the Commissioner considers whether, in view of the claimant’s 10 RFC, the claimant is capable of performing other work in the national economy. 20 11 C.F.R. §§ 404.1520(a)(4)(v); 416.920(a)(4)(v). In making this determination, the 12 Commissioner must also consider vocational factors such as the claimant’s age, 13 education and past work experience. 20 C.F.R. §§ 404.1520(a)(4)(v); 14 416.920(a)(4)(v). If the claimant is capable of adjusting to other work, the 15 Commissioner must find that the claimant is not disabled. 20 C.F.R. §§ 16 404.1520(g)(1); 416.920(g)(1). If the claimant is not capable of adjusting to other 17 work, analysis concludes with a finding that the claimant is disabled and is therefore 18 entitled to benefits. 20 C.F.R. §§ 404.1520(g)(1); 416.920(g)(1). 19 20 The claimant bears the burden of proof at steps one through four above. Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999). If the analysis proceeds to ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT - 5 1 step five, the burden shifts to the Commissioner to establish that (1) the claimant is 2 capable of performing other work; and (2) such work “exists in significant numbers 3 in the national economy.” 20 C.F.R. §§ 404.1560(c)(2); 416.920(c)(2); Beltran v. 4 Astrue, 700 F.3d 386, 389 (9th Cir. 2012). 5 ALJ’S FINDINGS 6 Plaintiff applied for disability insurance benefits on January 2, 2008, and 7 supplemental security income benefits on January 14, 2008. Tr. 131-33, 134-37. In 8 both applications, Plaintiff alleged a disability onset date of July 29, 2007. Tr. 242- 9 50, 252-58. The applications were denied initially, Tr. 74-77, and on 10 reconsideration, Tr. 83-89. Plaintiff appeared at a hearing before an Administrative 11 Law Judge (ALJ) on November 12, 2014. Tr. 567-610. On March 5, 2015, the ALJ 12 denied Plaintiff’s claim.1 Tr. 510-25. 13 At the outset, the ALJ found that Plaintiff met the insured status requirements 14 1 15 A prior hearing was held before a different ALJ on June 10, 2010. Tr. 35-69. On 16 June 24, 2010, the ALJ denied Plaintiff’s applications. Tr. 18-24. In December 17 2013, the District Court granted Plaintiff’s motion for summary judgment, reversed, 18 and remanded for a new hearing and further administrative proceedings. See Case 19 No. 2:12-cv-03051-MHW at ECF Nos. 21, 22. The Appeals Council ordered 20 remand for further administrative proceedings. Tr. 656-58. ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT - 6 1 of the Act with respect to her disability insurance benefit claim through December 2 31, 2011. Tr. 513. At step one, the ALJ found that Plaintiff has not engaged in 3 substantial gainful activity since the alleged onset date, July 29, 2007. Tr. 513. At 4 step two, the ALJ found that Plaintiff has the following severe impairments: 5 degenerative disc disease of the cervical and lumbar spine; asthma; bilateral carpal 6 tunnel syndrome (status post bilateral surgical release); headaches; and obesity. Tr. 7 513. At step three, the ALJ found that Plaintiff does not have an impairment or 8 combination of impairments that meets or medically equals a listed impairment. Tr. 9 513. The ALJ then concluded that Plaintiff has the RFC to perform a range of light 10 work, with additional limitations. Tr. 515. At step four, the ALJ found that Plaintiff 11 is able to perform her past relevant work as a cashier and order clerk. Tr. 523. 12 Alternatively, at step five, the ALJ found that, considering Plaintiff’s age, education, 13 work experience, and RFC, there are jobs that exist in significant numbers in the 14 national economy that Plaintiff could perform, such as production assembler and 15 hand packager. Tr. 525. On that basis, the ALJ concluded that Plaintiff was not 16 disabled as defined in the Social Security Act. Tr. 525. The Appeals Council denied 17 18 19 20 ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT - 7 1 review,2 making the ALJ’s decision the Commissioner’s final decision for purposes 2 of judicial review. See 42 U.S.C. § 1383(c)(3); 20 C.F.R. §§ 416.1481, 422.210. 3 ISSUES Plaintiff seeks judicial review of the Commissioner’s final decision denying 4 5 her disability income benefits under Title II and supplemental security income 6 benefits under Title XVI of the Social Security Act. ECF No. 13. Plaintiff raises the 7 following issues for this Court’s review: 8 1. Whether the ALJ properly weighed the medical opinion evidence; 9 2. Whether the ALJ properly discredited Plaintiff’s symptom claims; 3. Whether the ALJ properly determined Plaintiff’s severe impairments at 10 step two; and 11 4. Whether the ALJ properly found that Plaintiff can perform her past 12 13 relevant work; alternatively, whether the ALJ properly found that there are 14 other jobs that Plaintiff could perform. 15 ECF No. 13 at 7. 16 17 18 2 19 20 This document is not in the Court’s record. As neither party raises an issue in this respect, the Court presumes the document was inadvertently omitted. ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT - 8 1 2 DISCUSSION A. Medical Opinion Evidence 3 Plaintiff faults the ALJ for failing to discuss the opinion of examining 4 psychologist Paul Schneider, Ph.D., and for discrediting the opinions of treatment 5 providers Fady Sabry, M.D., and Nancy Schwartzcopf, ARNP. ECF No. 13 at 18- 6 23. 7 There are three types of physicians: “(1) those who treat the claimant (treating 8 physicians); (2) those who examine but do not treat the claimant (examining 9 physicians); and (3) those who neither examine nor treat the claimant but who 10 review the claimant’s file (nonexamining or reviewing physicians).” Holohan v. 11 Massanari, 246 F.3d 1195, 1201-02 (9th Cir. 2001) (brackets omitted). “Generally, 12 a treating physician’s opinion carries more weight than an examining physician’s, 13 and an examining physician’s opinion carries more weight than a reviewing 14 physician’s.” Id. “In addition, the regulations give more weight to opinions that are 15 explained than to those that are not, and to the opinions of specialists concerning 16 matters relating to their specialty over that of nonspecialists.” Id. (citations omitted). 17 If a treating or examining physician’s opinion is uncontradicted, an ALJ may 18 reject it only by offering “clear and convincing reasons that are supported by 19 substantial evidence.” Bayliss v. Barnhart, 427 F.3d 1211, 1216 (9th Cir. 2005). 20 “However, the ALJ need not accept the opinion of any physician, including a ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT - 9 1 treating physician, if that opinion is brief, conclusory and inadequately supported by 2 clinical findings.” Bray v. Comm’r of Soc. Sec. Admin., 554 F.3d 1219, 1228 (9th 3 Cir. 2009) (internal quotation marks and brackets omitted). “If a treating or 4 examining doctor’s opinion is contradicted by another doctor’s opinion, an ALJ may 5 only reject it by providing specific and legitimate reasons that are supported by 6 substantial evidence.” Bayliss, 427 F.3d at 1216 (citing Lester v. Chater, 81 F.3d 7 821, 830-31 (9th Cir. 1995). 8 9 Here, Dr. Schneider’s opinion is essentially uncontradicted; accordingly, the ALJ was required to provide clear and convincing reasons for discounting it. 10 Bayliss, 427 F.3d at 1216. Dr. Sabry’s and Ms. Schwartzkopf’s opinions were 11 contradicted by other treating and examining sources; accordingly, the ALJ was 12 required to provide specific, legitimate reasons supported by substantial evidence to 13 reject Dr. Sabry’s opinion, Bayliss, 427 F.3d at 1216, and germane reasons for 14 rejecting Ms. Schwartkopf’s opinion, Molina, 674 F.3d at 1114. 15 1. Dr. Schneider 16 Plaintiff alleges that the ALJ failed to discuss an October 2011 opinion, Tr. 17 866-70, by examining psychologist Paul Schneider, Ph.D. ECF No. 13 at 19-20. 18 In October 2011, Dr. Schneider conducted a psychological evaluation and 19 diagnosed Plaintiff with pain disorder associated with both psychological factors and 20 general medical condition; post-traumatic stress disorder (PTSD) in partial ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT - 10 1 remission; and sleep disorder, insomnia, likely due to “schedule and pain issues.” 2 Tr. 869. Dr. Schneider opined that Plaintiff was likely unable to work, but that over 3 time, with behavioral changes, “she may well be able to work someday.” Tr. 869- 4 70. 5 “Where an ALJ does not explicitly reject a medical opinion or set forth 6 specific, legitimate reasons for crediting one medical opinion over another, he errs.” 7 Garrison v. Colvin, 759 F.3d 995, 1012 (9th Cir. 2014) (citing Nguyen v. Chater, 8 100 F.3d 1462, 1464 (9th Cir. 1996)). In other words, an ALJ errs when he rejects a 9 medical opinion or assigns it little weight while doing nothing more than ignoring it, 10 asserting without explanation that another medical opinion is more persuasive, or 11 criticizing it with boilerplate language that fails to offer a substantive basis for his 12 conclusion. Garrison, 759 F.3d at 1012-13. 13 Here, the ALJ failed to discuss Dr. Schneider’s opinion, other than to include 14 in her credibility assessment some of the activities Plaintiff described to Dr. 15 Schneider. The ALJ’s sole reference to Dr. Schneider’s opinion simply noted: 16 The claimant reported that she would walk for forty-five minutes several times per week as exercise. She also stated that she was “busy with her grandchildren three or four times a week.” 17 18 Tr. 520 (citing Tr. 868) (Dr. Schneider’s evaluation). The ALJ did not otherwise 19 address the evaluation, including Dr. Schneider’s opinion that Plaintiff was “likely” 20 unable to work due to a combination of mental and physical impairments. ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT - 11 1 The Commissioner correctly notes that Plaintiff failed to allege depression or 2 other mental impairments as part of her application. ECF No. 19 at 10. However, 3 there is medical evidence from treating sources referring to mental impairments 4 (depression), including diagnoses and medication treatment, as well as brief 5 testimony from Plaintiff regarding depression. Accordingly, as the only examining 6 psychologist, Dr. Schneider’s opinion clearly has some relevance to Plaintiff’s 7 possible mental impairments and resulting limitations. 8 9 For example, Plaintiff’s treating sources have specifically discussed treatment for depression. See, e.g., Tr. 863 (in January 2012, treatment provider Mary 10 Murphy, PAC, noted that depakote is helping a little with Plaintiff’s depression); Tr. 11 762 (in September 2013, treating source Nancy Schwartzkopf, ARNP, assessed, in 12 part, depressive disorder, NOS; however, Plaintiff declined treatment); Tr. 814-15 13 (in November 2013, Guy Garrett, PAC, listed depression as a chronic problem); Tr. 14 883 (in October 2014, Ms. Schwartzkopf assessed depressive disorder). 15 Moreover, as the only examining psychologist, Dr. Schneider’s opinion is 16 uncontradicted. If a treating or examining physician’s opinion is uncontradicted, an 17 ALJ may reject it only by offering “clear and convincing reasons that are supported 18 by substantial evidence.” Bayliss, 427 F.3d at 1216. Here, the ALJ did not give any 19 reason for rejecting Dr. Schneider’s opinion. Moreover, at step two, the ALJ failed 20 to address whether Plaintiff suffered from any severe mental impairment. Tr. 513. ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT - 12 1 At the hearing, Plaintiff testified that she tries “not to” have a problem with 2 depression. Tr. 599. The ALJ was required to discuss Dr. Schneider’s opinion 3 because, although Plaintiff did not allege mental limitations as part of her 4 application for benefits, Dr. Schneider’s opinion had some support in the medical 5 record by treating sources, is supported minimally by Plaintiff’s own testimony, and, 6 significantly, is not contradicted. 7 8 9 10 11 12 For these reasons, the ALJ erred when she failed to discuss Dr. Schneider’s opinion. 2. Dr. Sabry Next, Plaintiff faults the ALJ for discrediting the opinions of treating physician provider Fady Sabry, M.D. ECF No. 13 at 20-23. In May 2008, Dr. Sabry assessed an RFC for sedentary work due to mild to 13 moderate asthma; Tr. 219, while six months later, he again assessed an RFC for 14 sedentary work, due to moderate asthma and CTS. Tr. 366. 15 later, in January 2011, he assessed an RFC for less than sedentary work, because he 16 opined Plaintiff was unable to lift any amount of weight, occasionally or frequently; 17 Plaintiff could sit and stand for one hour in an eight-hour work day; and no 18 environmental or manipulative restrictions were assessed. Tr. 773-74. Dr. Sabry did 19 not specify the impairments causing the claimant’s limitations, but he opined that 20 pain management and pulmonary consultations were needed. Id. Roughly three years ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT - 13 1 The ALJ gave minimal weight to Dr. Sabry’s opinions, except to agree with 2 his opinion from 2008 that the claimant’s evidence of record is consistent with her 3 ongoing ability to persist with some form of gainful activity after onset. Tr. 521. 4 First, the ALJ rejected these opinions as unsupported by Dr. Sabry’s own 5 exam findings. Tr. 521. Contradictions between a doctor’s opinion and his own 6 medical results provides a permissible basis to reject his opinion. See Bayliss, 427 7 F.3d at 1216. For example, the ALJ found that Dr. Sabry’s November 2008 exam 8 revealed normal upper extremities, normal neurological findings, and normal gait 9 and station. Tr. 521 (citing Tr. 364-65); again in January 2011, Dr. Sabry’s exam 10 documented normal respiratory findings, normal lumbar spine rotation, and negative 11 single leg raise tests when Plaintiff was seated. The ALJ noted that this exam was 12 otherwise devoid of any testing of Plaintiff’s strength, sensation, or mobility. Tr. 13 521 (citing Tr. 773-77). The ALJ notes that in Dr. Sabry’s May 2008 opinion, the 14 doctor did not refer to any positive examination findings. Tr. 521 (citing Tr. 418). 15 This was a specific and legitimate reason to reject Dr. Sabry’s opinion. 16 Second, the ALJ rejected Dr. Sabry’s opinions because they were inconsistent 17 with Plaintiff’s work history. Tr. 521. An ALJ may discount an opinion that is 18 inconsistent with a claimant’s reported functioning. See Morgan v. Comm’r of Soc. 19 Sec. Admin., 169 F.3d 595, 601-02 (9th Cir. 1999). The ALJ found that Plaintiff’s 20 ability to work at the medium exertional level with essentially the same limitations ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT - 14 1 assessed by Dr. Sabry, limitations that he opined resulted in an RFC for sedentary 2 work, undermined Dr. Sabry’s opinion that Plaintiff was more severely limited. Tr. 3 521. See Tr. 164-67 (In September 2014, Plaintiff told provider Ms. Schwartzkopf 4 that she had had back pain for fifteen years, Plaintiff had worked mainly at a 5 medium exertion level until 2007); Tr. 199 (Plaintiff’s report of her work history). 6 This was a specific and legitimate reason to reject the medical opinion. 7 Third, the ALJ rejected Dr. Sabry’s opinions, finding them inconsistent with 8 the longitudinal treatment records, and by records indicating the assessed conditions 9 have “either improved or been stable with treatment since 2007.” Tr. 521. An ALJ 10 may discredit treating physicians’ opinions that are conclusory, brief, and 11 unsupported by the records as a whole, or by objective medical findings. Batson v. 12 Comm’r of Soc. Sec. Admin., 359 F.3d 1190, 1195 (9th Cir. 2004) (citations 13 omitted). The ALJ relied on other examinations that were inconsistent with an RFC 14 for sedentary work because they were essentially normal. See Tr. 521 (citing Tr. 15 335) (At an exam in April 2009, Plaintiff’s back, neck, spine and extremities were 16 all normal; no tenderness in Plaintiff’s musculoskeletal system is noted); Tr. 517 17 (citing Tr. 304) (in March 2008, Plaintiff displayed clear lungs and normal 18 respiration, asthma deemed stable); (citing Tr. 332) (in April 2009, Dr. Sabry noted 19 respiratory: “Normal to inspection. Lungs clear to ascultation.”). Moreover, 20 ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT - 15 1 treatment records showed improvement in asthma with medication,3 in CTS 2 following surgeries,4 and lower back pain complaints were inconsistent with normal 3 examination findings, see, e.g., Tr. 335 (essentially normal examination). 4 Because an ALJ need not accept the opinion of any physician, including a 5 treating physician, if that opinion is brief, conclusory, and inadequately supported by 6 clinical findings, Bray, 554 F.3d at 1228, and is not required to find an impairment 7 disabling if symptoms can be controlled with medication, Warre v. Comm’r of Soc. 8 Sec. Admin., 439 F.3d 1001, 1006 (9th Cir. 2006) (symptoms effectively controlled 9 with medication are not disabling for purposes of determining eligibility for 10 11 3 See Tr. 245 (asthma improved “a lot” with a change in medication in November 12 2004); Tr. 279 (asthma symptoms worsened when Plaintiff ran out of medication in 13 February 2008); Tr. 406 (in November 2009, Dr. Sabry noted that Plaintiff was 14 “currently stable on three asthma medications.”); Tr. 587 (Plaintiff testified that her 15 asthma improved with medication and treatment). 16 17 See Tr. 394, 387 (Plaintiff underwent right carpal tunnel release on March 1, 2009) 18 and left on May 5, 2009); Tr. 582 (Plaintiff testified that the surgeries helped.). The 19 ALJ further noted that Plaintiff had no treatment for CTS after mid-2009. Tr. 519- 20 20. 4 ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT - 16 1 benefits), the ALJ provided a specific, legitimate reason supported by substantial 2 evidence for discrediting Dr. Sabry’s opinions. 3 3. Nurse Schwartzkopf 4 Plaintiff contends that the ALJ failed to properly weigh the opinion of Nancy 5 Schwartzkopf, ARNP. ECF No. 13 at 22-23. Specifically, Plaintiff contends that 6 the ALJ ignored the objective basis of these opinions: spinal imaging, pain 7 management treatment records, and Plaintiff’s severe obesity. ECF No. 13 at 22 8 (citing Tr. 883). In October 2014, Ms. Schwartzkopf, who had treated Plaintiff from August 9 10 2012, completed a medical report, opining that Plaintiff was unable to stand or walk, 11 that she was unable to lift even two pounds, and that she would miss work four or 12 more days per month.5 Tr. 884-84. Further, Ms. Schwartzkopf opined that these 13 limitations had been ongoing since 2012. Tr. 884-85. The ALJ gave minimal 14 weight to this opinion. Tr. 521. 15 First, the ALJ noted that the assessed limitations were inconsistent with 16 Plaintiff’s work history. Tr. 521. An ALJ may discount an opinion that is 17 inconsistent with a claimant’s reported functioning. Morgan, 169 F.3d at 601-02. 18 5 19 week,” Tr. 521, but this is apparently a typographical error. 20 The ALJ mistakenly cited the limitation as “would miss four or more day[s] per ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT - 17 1 The ALJ pointed out that “the claimant’s longstanding obesity and physical 2 impairments have not prevented gainful employment at a medium exertion level and 3 do not appear to have significantly worsened since her alleged onset date.” Tr. 521. 4 For example, Plaintiff worked at a medium exertion level beginning in either 20046 5 or 20057 until July 2007 as a caregiver, Tr. 164-65; yet in 2014, Plaintiff reported 6 she had experienced back pain for fifteen years, Tr. 804, showing that she worked 7 with the same impairment at a greater exertion level than assessed by Ms. 8 Schwartzkopf. Plaintiff’s work as a hardware laborer, from July 2000 through 9 2002, was also a medium exertion job. Tr. 164-67. Plaintiff testified that she 10 worked at a hardware store as a receptionist, delivery driver, and laborer; she also 11 did some duties related to bookkeeping. Tr. 585-86. This was a germane reason to 12 reject Ms. Schwartzkopf’s opinions. 13 Second, the ALJ noted that the assessed limitations were inconsistent with 14 Plaintiff’s daily activities. Tr. 521-22. An ALJ may discount an opinion that is 15 inconsistent with a claimant’s reported functioning. Morgan, 169 F.3d at 601-02. In 16 6 Plaintiff reported she worked as a caregiver from February 3, 2005, until July 29, 17 2007. Tr. 199. 18 7 19 20 Plaintiff reported she worked as a caregiver beginning in February 2004. Tr. 164- 65. ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT - 18 1 support of her finding, the ALJ cited Plaintiff’s activities that further undermine Ms. 2 Schwartzkopf’s assessed limitations, including Plaintiff’s ability to care for an 3 infant, Tr. 578, to serve “as a caretaker for her chronically sick fiancé,” Tr. 574-76, 4 and to drive, Tr. 575. Tr. 522. The ALJ reasonably determined that these daily 5 activities were inconsistent with the severe assessed limitations identified by Ms. 6 Schwartzkopf. This was another germane reason for discounting Ms. 7 Schwartzkopf’s opinion. 8 9 Third, the ALJ found that the assessed limitations were inconsistent with the medical record. Tr. 521. An ALJ may discredit treating physicians’ opinions that 10 are conclusory, brief, and unsupported by the record as a whole, or by objective 11 findings. Batson, 359 F.3d at 1195. The ALJ observed that the December 2010 12 MRI of Plaintiff’s lumbar spine revealed mild to moderate degenerative disc disease, 13 with mild to moderate foraminal narrowing and no evidence of central canal 14 stenosis. Tr. 521-22 (citing Tr. 494). Similarly, the ALJ pointed out that in 15 December 2011, cervical spine imaging revealed mild to moderate degenerative 16 changes, with no evidence of instability with flexion or extension. Tr. 522 (citing 17 Tr. 796). The ALJ identified germane reasons for discounting this opinion. 18 19 20 B. Adverse Credibility Finding ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT - 19 1 2 3 Plaintiff faults the ALJ for failing to provide specific findings with clear and convincing reasons for discrediting her symptom claims. ECF No. 13 at 8-18. An ALJ engages in a two-step analysis to determine whether a claimant’s 4 testimony regarding subjective pain or symptoms is credible. “First, the ALJ must 5 determine whether there is objective medical evidence of an underlying impairment 6 which could reasonably be expected to produce the pain or other symptoms alleged.” 7 Molina, 674 F.3d at 1112 (internal quotation marks omitted). “The claimant is not 8 required to show that her impairment could reasonably be expected to cause the 9 severity of the symptom she has alleged; she need only show that it could reasonably 10 have caused some degree of the symptom.” Vasquez v. Astrue, 572 F.3d 586, 591 11 (9th Cir. 2009) (internal quotation marks omitted). 12 Second, “[i]f the claimant meets the first test and there is no evidence of 13 malingering, the ALJ can only reject the claimant’s testimony about the severity of 14 the symptoms if [the ALJ] gives ‘specific, clear and convincing reasons’ for the 15 rejection.” Ghanim v. Colvin, 763 F.3d 1154, 1163 (9th Cir. 2014) (internal 16 citations and quotations omitted). “General findings are insufficient; rather, the ALJ 17 must identify what testimony is not credible and what evidence undermines the 18 claimant’s complaints.” Id. (quoting Lester, 81 F.3d at 834)); Thomas v. Barnhart, 19 278 F.3d 947, 958 (9th Cir. 2002) (“[T]he ALJ must make a credibility 20 determination with findings sufficiently specific to permit the court to conclude that ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT - 20 1 the ALJ did not arbitrarily discredit claimant’s testimony.”). “The clear and 2 convincing [evidence] standard is the most demanding required in Social Security 3 cases.” Garrison, 759 F.3d at 1015 (quoting Moore v. Comm’r of Soc. Sec. Admin., 4 278 F.3d 920, 924 (9th Cir. 2002)). 5 In making an adverse credibility determination, the ALJ may consider, inter 6 alia, (1) the claimant’s reputation for truthfulness; (2) inconsistencies in the 7 claimant’s testimony or between her testimony and her conduct; (3) the claimant’s 8 daily living activities; (4) the claimant’s work record; and (5) testimony from 9 physicians or third parties concerning the nature, severity, and effect of the 10 claimant’s condition. Thomas, 278 F.3d at 958-59. 11 This Court finds the ALJ provided specific, clear, and convincing reasons for 12 finding that Plaintiff's statements concerning the intensity, persistence, and limiting 13 effects of her symptoms were “not credible.” Tr. 516. 14 15 1. Ability to Work With Impairments First, the ALJ found that Plaintiff’s allegedly disabling impairments have not 16 prevented her from performing medium exertion work in the past. Tr. 516. 17 Working with an impairment supports a conclusion that the impairment is not 18 disabling. See Drouin v. Sullivan, 966 F.2d 1255, 1258 (9th Cir. 1992). For 19 example, the ALJ found that for a period between 2000 and 2002, Plaintiff worked 20 at a hardware store, where she stocked, performed clerical and receptionist’s duties, ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT - 21 1 and drove deliveries. Tr. 516 (citing Tr. 199). The ALJ further found that between 2 2004 and mid-2007, Plaintiff was again gainfully employed, during which time she 3 worked as a cashier and caregiver. Tr. 516 (citing Tr. 164-65, 199). Her work as a 4 caregiver involved walking and/or standing at least five hours per day (six hours per 5 day as a cashier), and frequently lifting twenty-five pounds. Id. Moreover, the ALJ 6 found that when Plaintiff worked a caregiver in July 2006, she told medical 7 providers that she performed this job despite bilateral pain, tingling, and impaired 8 grip in her upper extremities. Tr. 516 (citing Tr. 272). 9 Because an ALJ may properly consider the ability to work despite physical 10 impairments as lessening a claimant’s credibility, see, e.g., Gregory v. Bowen, 844 11 F.2d 664, 667 (9th Cir. 1988), this was a clear and convincing reason for discounting 12 Plaintiff’s credibility. 13 2. Reason Employment Ended 14 Next, the ALJ determined that Plaintiff stopped working for reasons unrelated 15 to her impairments. Tr. 516. An ALJ may consider that a claimant stopped working 16 for reasons unrelated to the allegedly disabling condition in making a credibility 17 determination. See Tommasetti v. Astrue, 533 F.3d 1035, 1040 (9th Cir. 2008) (the 18 ALJ properly discounted Plaintiff’s credibility based, in part, on the fact that the 19 claimant’s reason for stopping work was not related to his disability); Bruton v. 20 Massanari, 268 F.3d 824, 828 (9th Cir. 2001) (the fact that the claimant left his job ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT - 22 1 because he was laid off, rather than because he was injured, was a clear and 2 convincing reason to find him not credible). The ALJ noted that Plaintiff testified 3 her employment at the hardware store ended because her position was eliminated. 4 Tr. 517 (citing Tr. 585). In addition, Plaintiff’s work as a caregiver ended when her 5 father died. Tr. 517 (citing Tr. 583). Similarly, Plaintiff continued to work as a 6 cashier after her father’s death; however, this job at a roadside fruit stand ended 7 because it was seasonal. Tr. 517 (citing Tr. 584). The ALJ properly considered and 8 reasonably concluded that Plaintiff’s condition was not the reason that she stopped 9 working when assessing her credibility. 10 3. Impairments Controlled by Medication 11 The ALJ found that Plaintiff’s asthma appeared to be well-controlled with 12 medication. Tr. 516-17. Conditions effectively controlled with medication are not 13 disabling for purposes of determining eligibility for benefits. Warre, 439 F.3d at 14 1006. The ALJ noted several instances in the medical record supporting this 15 conclusion. Tr. 516-17 (citing Tr. 245 (asthma was much improved with a change 16 of medication in November 2004); Tr. 279 (Plaintiff’s asthma symptoms worsened 17 when she ran out of medication in February 2008); Tr. 406 (in November 2009, Dr. 18 Sabry noted that Plaintiff was currently stable on three asthma medications); Tr. 587 19 (Plaintiff testified that her asthma symptoms improved with medication and 20 treatment)). This was another clear and convincing reason for finding Plaintiff’s ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT - 23 1 complaints of severe limitations less than fully credible. 2 4. Lack of Objective Medical Evidence 3 The ALJ found that Plaintiff’s alleged physical impairments and their 4 corresponding symptoms were not supported by the medical evidence. Tr. 516-20. 5 Subjective testimony cannot be rejected solely because it is not corroborated by 6 objective medical findings, but medical evidence is a relevant factor in determining 7 the severity of a claimant’s impairments. Rollins v. Massanari, 261 F.3d 853, 857 8 (9th Cir. 2001); see also Burch v. Barnhart, 400 F.3d 676, 681 (9th Cir. 2005). 9 The ALJ noted few objective findings support the level of limitations alleged. 10 Tr. 519. For example, a lumbar MRI in December 2010 revealed only mild to 11 moderate degenerative disk disease, with mild to moderate foraminal narrowing and 12 no evidence of central canal stenosis. Tr. 519 (citing Tr. 493); see also Tr. 465 13 (January 2011 exam reveals DTR’s are preserved and symmetric). As another 14 example, the ALJ noted that in December 2011, Plaintiff reported that her upper and 15 lower back pain was mild and stable, and that these pain symptoms had been 16 ongoing for ten years. Tr. 519 (citing Tr. 779). On exam, Plaintiff displayed normal 17 mobility in her lumbar and cervical spine; she described mild pain with motion in 18 her cervical spine; and normal range of motion in her shoulders. Plaintiff 19 demonstrated intact balance and gait, no motor weakness, and no sensory loss. Tr. 20 ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT - 24 1 519 (citing Tr. 782). Plaintiff was able “to perform deep knee bend” without 2 problems. Tr. 520 (citing Tr. 783). 3 Because an ALJ may discount pain and symptom testimony based on lack of 4 medical evidence, as long as it is not the sole basis for discounting a claimant’s 5 testimony, the ALJ did not err when she found Plaintiff’s complaints exceeded and 6 were not supported by objective and physical exam findings. 7 5. Daily Activities 8 The ALJ found that the level of physical impairment alleged was inconsistent 9 with Plaintiff’s reported daily activities. Tr. 520. A claimant’s reported daily 10 activities can form the basis for an adverse credibility determination if they consist 11 of activities that contradict the claimant’s “other testimony” or if those activities are 12 transferable to a work setting. Orn v. Astrue, 495 F.3d 625, 639 (9th Cir. 2007); see 13 also Fair v. Bowen, 885 F.2d 597, 603 (9th Cir. 1989) (daily activities may be 14 grounds for an adverse credibility finding “if a claimant is able to spend a substantial 15 part of his day engaged in pursuits involving the performance of physical functions 16 that are transferable to a work setting.”). Here, the ALJ found, for example, Plaintiff 17 testified that she was currently serving as a caretaker for her chronically ill fiancé, 18 which entailed helping him dress, preparing his meals, and helping him stand. Tr. 19 520 (citing Tr. 573-75). The ALJ noted Plaintiff also testified that she occasionally 20 cared for a six-month old grandchild and was able to drive, Tr. 575; she regularly ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT - 25 1 played computer games using a keyboard, Tr. 579-80; in 2008, prior to carpal tunnel 2 release surgeries, Plaintiff was able to prepare her own meals, Tr. 582; and 3 Plaintiff’s activities in 2008 included beadwork, hiking, and searching for agates and 4 other rocks. Tr. 520 (citing Tr. 581-82). She had taken lengthy road trips, including 5 to Sacramento, California and Vancouver, Washington, after onset. Tr. 520 (citing 6 576-77). 7 “While a claimant need not vegetate in a dark room in order to be eligible for 8 benefits, the ALJ may discredit a claimant’s testimony when the claimant reports 9 participation in everyday activities indicating capacities that are transferable to a 10 work setting” or when activities “contradict claims of a totally debilitating 11 impairment.” Molina, 674 F.3d at 1112-13 (internal quotation marks and citations 12 omitted). The record supports the ALJ’s determination that the range of both 13 physical and mental activities that Plaintiff reported are inconsistent with allegedly 14 disabling limitations and demonstrate an ability to perform work-like activities. The 15 ALJ properly relied on daily activities that exceeded alleged limitations when she 16 assessed Plaintiff’s credibility. 17 In sum, despite Plaintiff’s arguments to the contrary, the ALJ provided 18 specific, clear, and convincing reasons, supported by the record, for rejecting 19 Plaintiff’s testimony. See Ghanim, 763 F.3d at 1163. 20 ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT - 26 1 2 C. Step Two Plaintiff contends that the ALJ erred at step two by failing to include several 3 severe impairments. EFC No. 13 at 23-24. Specifically, Plaintiff contends the ALJ 4 should have included fibromyalgia/pain disorder and “multiple severe mental 5 impairments.” ECF No. 13 at 26. 6 Given the Court’s prior findings regarding the medical opinion evidence, on 7 remand, the ALJ should reevaluate the step two findings. The ALJ should assess 8 whether the diagnosed conditions of fibromyalgia, pain disorder, and depression 9 constitute severe impairments, and determine whether any impairments or any 10 combination of impairments result in additional limitations or render Plaintiff unable 11 to perform work. A medical and psychological expert may be helpful in assisting 12 the ALJ on remand. 13 D. Steps Four and Five 14 Upon remand, the ALJ will need to perform a new step four and possibly step 15 five analysis after considering Dr. Schneider’s opinion and the evidence of other 16 impairments at step two, as discussed supra. 17 E. Remedy 18 This Court finds that the ALJ erred by failing to address the uncontradicted 19 opinion of examining psychologist Dr. Schneider, the only source who evaluated 20 Plaintiff specifically for mental limitations. The question remains whether the ALJ’s ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT - 27 1 2 error was harmless. Based upon Plaintiff’s RFC, which included no mental limitations, and the 3 vocational expert’s testimony, the ALJ found Plaintiff able to perform her past 4 relevant work as a cashier and order clerk. Tr. 523. Consequently, the ALJ found 5 Plaintiff was not disabled within the meaning of the Social Security Act. Tr. 524. 6 See 20 C.F.R. §§ 404.1560(b)(3) (“If we find that you can still do your past relevant 7 work, we will determine that you can still do your past work and are not disabled.”), 8 416.960(b)(3)(same). 9 A reviewing court cannot consider an error harmless unless it can confidently 10 conclude that no reasonable ALJ, when fully crediting the testimony, could have 11 reached a different disability determination. See Stout v. Comm’r of Soc. Sec. 12 Admin., 454 F.3d 1050, 1056 (9th Cir. 2006). This Court cannot so conclude. For 13 example, if fully credited, Dr. Schneider’s opinion could potentially support a 14 conclusion that Plaintiff is unable to work. Consequently, the ALJ’s error in failing 15 to provide reasons for rejecting it was not harmless. 16 Administrative proceedings are useful where there is a need to resolve 17 conflicts and ambiguities in the evidence. Treichler v. Comm’r of Soc. Sec. Admin., 18 775 F.3d 1090, 1101 (9th Cir. 2014) (citing Andrews v. Shalala, 53 F.3d 1035, 1039 19 (9th Cir. 1995)). Here, there are conflicts to resolve. In determining the RFC, the 20 ALJ is required to consider the combined effect of all the claimant’s impairments, ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT - 28 1 mental and physical, exertional and non-exertional, severe and non-severe. 42 2 U.S.C. § 423(d)(2)(B), (5)(B). Here, this Court finds that upon remand, the ALJ 3 must consider Plaintiff’s mental impairments and any resulting limitations. For 4 example, the ALJ did not consider mental impairments when she assessed 5 credibility. See Tr. 513-20. If the ALJ determines on remand that Plaintiff suffers 6 mental impairments with resulting limitations, vocational testimony may be required 7 to determine whether mental limitations erode the occupational base of jobs Plaintiff 8 is potentially able to perform. 9 “Where,” as here, “there is conflicting evidence, and not all essential factual 10 issues have been resolved, a remand for an award of benefits is inappropriate.” 11 Treichler, 775 F.3d at 1101. Instead, this Court remands this case for further 12 proceedings. 13 CONCLUSION 14 The ALJ’s decision is not supported by substantial evidence or free of legal 15 error. On remand, the ALJ should conduct a new hearing and (1) consider at step 16 two the evidence of mental impairments and proceed if necessary with the sequential 17 evaluation; (2) take the testimony of medical and psychological experts, if 18 necessary, to determine Plaintiff’s RFC; and (3) take the testimony of a vocational 19 expert, if necessary, to determine whether Plaintiff is able to work and if there are 20 past or other jobs that Plaintiff is able to perform. ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT - 29 1 IT IS ORDERED: 2 1. Plaintiff’s Motion for Summary Judgment (ECF No. 13) is GRANTED 3 and the matter is remanded to the Commissioner for additional proceedings pursuant 4 to sentence four. 42 U.S.C. § 405(g). 5 2. Defendant’s Motion for Summary Judgment (ECF No. 19) is DENIED. 6 3. An application for attorney’s fees may be filed by separate motion. 7 The District Court Executive is directed to file this Order, enter JUDGMENT 8 FOR THE PLAINTIFF, REMAND THE CASE FOR FURTHER 9 PROCEEDINGS, provide copies to counsel, and CLOSE the file. 10 11 12 DATED this 28th day of September, 2016. S/Mary K. Dimke MARY K. DIMKE UNITED STATES MAGISTRATE JUDGE 13 14 15 16 17 18 19 20 ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT - 30

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