Richmond v. Commissioner of Social Security, No. 1:2017cv03161 - Document 18 (E.D. Wash. 2018)
Court Description: ORDER Denying 15 Plaintiff's Motion for Summary Judgment and Granting 16 Defendant's Motion for Summary Judgment. Signed by Magistrate Judge Mary K. Dimke. (MO, Courtroom Deputy)
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Richmond v. Commissioner of Social Security Doc. 18 1 2 3 4 FI LED I N THE U.S. DI STRI CT COURT EASTERN DI STRI CT OF WASHI NGTON 5 UNITED STATES DISTRICT COURT Sep 6 EASTERN DISTRICT OF WASHINGTON 7 KENNETH R., 8 SEAN F. MCAVOY, CLERK No. 1:17-cv-03161-MKD Plaintiff, 9 04, 2018 vs. 10 COMMISSIONER OF SOCIAL SECURITY, 11 Defendant. ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ECF Nos. 15, 16 12 13 BEFORE THE COURT are the parties’ cross-motions for summary 14 judgment. ECF Nos. 15, 16. The parties consented to proceed before a magistrate 15 judge. ECF No. 7. The Court, having reviewed the administrative record and the 16 parties’ briefing, is fully informed. For the reasons discussed below, the Court 17 denies Plaintiff’s Motion, ECF No. 15, and grants Defendant’s Motion, ECF No. 18 16. 19 20 21 ORDER - 1 Dockets.Justia.com 1 2 JURISDICTION The Court has jurisdiction over this case pursuant to 42 U.S.C. §§ 405(g); 3 1383(c)(3). 4 5 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 (9th Cir. 2012). “Substantial evidence” means “relevant evidence that a 10 reasonable mind might accept as adequate to support a conclusion.” Id. at 1159 11 (quotation and citation omitted). Stated differently, substantial evidence equates to 12 “more than a mere scintilla[,] but less than a preponderance.” Id. (quotation and 13 citation omitted). In determining whether the standard has been satisfied, a 14 reviewing court must consider the entire record as a whole rather than searching 15 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. Edlund v. Massanari, 253 F.3d 1152, 18 1156 (9th Cir. 2001). If the evidence in the record “is susceptible to more than one 19 rational interpretation, [the court] must uphold the ALJ’s findings if they are 20 supported by inferences reasonably drawn from the record.” Molina v. Astrue, 674 21 ORDER - 2 1 F.3d 1104, 1111 (9th Cir. 2012). Further, a district court “may not reverse an 2 ALJ’s decision on account of an error that is harmless.” Id. An error is harmless 3 “where it is inconsequential to the [ALJ’s] ultimate nondisability determination.” 4 Id. at 1115 (quotation and citation omitted). The party appealing the ALJ’s 5 decision generally bears the burden of establishing that it was harmed. Shinseki v. 6 Sanders, 556 U.S. 396, 409-10 (2009). 7 8 FIVE-STEP EVALUATION PROCESS A claimant must satisfy two conditions to be considered “disabled” within 9 the meaning of the Social Security Act. First, the claimant must be “unable to 10 engage in any substantial gainful activity by reason of any medically determinable 11 physical or mental impairment which can be expected to result in death or which 12 has lasted or can be expected to last for a continuous period of not less than twelve 13 months.” 42 U.S.C. §§ 423(d)(1)(A); 1382c(a)(3)(A). Second, the claimant’s 14 impairment must be “of such severity that [she] is not only unable to do [her] 15 previous work[,] but cannot, considering [her] age, education, and work 16 experience, engage in any other kind of substantial gainful work which exists in 17 the national economy.” 42 U.S.C. §§ 423(d)(2)(A); 1382c(a)(3)(B). 18 The Commissioner has established a five-step sequential analysis to 19 determine whether a claimant satisfies the above criteria. See 20 C.F.R. §§ 20 404.1520(a)(4)(i)-(v); 416.920(a)(4)(i)-(v). At step one, the Commissioner 21 ORDER - 3 1 considers the claimant’s work activity. 20 C.F.R. §§ 404.1520(a)(4)(i); 2 416.920(a)(4)(i). If the claimant is engaged in “substantial gainful activity,” the 3 Commissioner must find that the claimant is not disabled. 20 C.F.R. §§ 4 404.1520(b); 416.920(b). 5 If the claimant is not engaged in substantial gainful activity, the analysis 6 proceeds to step two. At this step, the Commissioner considers the severity of the 7 claimant’s impairment. 20 C.F.R. §§ 404.1520(a)(4)(ii); 416.920(a)(4)(ii). If the 8 claimant suffers from “any impairment or combination of impairments which 9 significantly limits [his or her] physical or mental ability to do basic work 10 activities,” the analysis proceeds to step three. 20 C.F.R. §§ 404.1520(c); 11 416.920(c). If the claimant’s impairment does not satisfy this severity threshold, 12 however, the Commissioner must find that the claimant is not disabled. 20 C.F.R. 13 §§ 404.1520(c); 416.920(c). 14 At step three, the Commissioner compares the claimant’s impairment to 15 severe impairments recognized by the Commissioner to be so severe as to preclude 16 a person from engaging in substantial gainful activity. 20 C.F.R. §§ 17 404.1520(a)(4)(iii); 416.920(a)(4)(iii). If the impairment is as severe or more 18 severe than one of the enumerated impairments, the Commissioner must find the 19 claimant disabled and award benefits. 20 C.F.R. §§ 404.1520(d); 416.920(d). 20 21 ORDER - 4 1 If the severity of the claimant’s impairment does not meet or exceed the 2 severity of the enumerated impairments, the Commissioner must pause to assess 3 the claimant’s “residual functional capacity.” Residual functional capacity (RFC), 4 defined generally as the claimant’s ability to perform physical and mental work 5 activities on a sustained basis despite his or her limitations, 20 C.F.R. §§ 6 404.1545(a)(1); 416.945(a)(1), is relevant to both the fourth and fifth steps of the 7 analysis. 8 At step four, the Commissioner considers whether, in view of the claimant’s 9 RFC, the claimant is capable of performing work that he or she has performed in 10 the past (past relevant work). 20 C.F.R. §§ 404.1520(a)(4)(iv); 416.920(a)(4)(iv). 11 If the claimant is capable of performing past relevant work, the Commissioner 12 must find that the claimant is not disabled. 20 C.F.R. §§ 404.1520(f); 416.920(f). 13 If the claimant is incapable of performing such work, the analysis proceeds to step 14 five. 15 At step five, the Commissioner considers whether, in view of the claimant’s 16 RFC, the claimant is capable of performing other work in the national economy. 17 20 C.F.R. §§ 404.1520(a)(4)(v); 416.920(a)(4)(v). In making this determination, 18 the Commissioner must also consider vocational factors such as the claimant’s age, 19 education and past work experience. 20 C.F.R. §§ 404.1520(a)(4)(v); 20 416.920(a)(4)(v). If the claimant is capable of adjusting to other work, the 21 ORDER - 5 1 Commissioner must find that the claimant is not disabled. 20 C.F.R. §§ 2 404.1520(g)(1); 416.920(g)(1). If the claimant is not capable of adjusting to other 3 work, analysis concludes with a finding that the claimant is disabled and is 4 therefore entitled to benefits. 20 C.F.R. §§ 404.1520(g)(1); 416.920(g)(1). 5 The claimant bears the burden of proof at steps one through four above. 6 Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999). If the analysis proceeds to 7 step five, the burden shifts to the Commissioner to establish that (1) the claimant is 8 capable of performing other work; and (2) such work “exists in significant 9 numbers in the national economy.” 20 C.F.R. §§ 404.1560(c)(2); 416.960(c)(2); 10 Beltran v. Astrue, 700 F.3d 386, 389 (9th Cir. 2012). 11 12 ALJ’S FINDINGS Plaintiff applied for disability insurance benefits and supplemental security 13 income benefits on July 8, 2013, alleging an amended closed period of disability 14 between September 30, 2010 and April 1, 2014. Tr. 218-26, 240-45, 43. Benefits 15 were denied initially, Tr. 87-88, and upon reconsideration. Tr. 148-58. Plaintiff 16 appeared for a hearing before an administrative law judge (ALJ) on July 13, 2015. 17 Tr. 38-86. On March 23, 2016, the ALJ denied Plaintiff’s applications. Tr. 17-37. 18 At step one, the ALJ found Plaintiff had not engaged in substantial gainful 19 activity from September 30, 2010 through April 1, 2014. Tr. 22. However, as of 20 April 2, 2014, the ALJ found Plaintiff was engaged in substantial gainful activity 21 ORDER - 6 1 and was not disabled. Tr. 22. At step two, the ALJ found Plaintiff has the 2 following severe impairments: spinal disorders, carpal tunnel syndrome, and 3 obesity. Tr. 23. At step three, the ALJ found that Plaintiff does not have an 4 impairment or combination of impairments that meets or medically equals the 5 severity of a listed impairment. Tr. 26. The ALJ then concluded that Plaintiff has 6 the RFC to perform light work with the following additional limitations: 7 The claimant could frequently climb ramps and stairs. He could occasionally climb ladders, ropes, and scaffolds. The claimant could occasionally stoop, kneel, crouch, and crawl. He could do frequent bilateral handling, fingering, and feeling. The claimant should avoid concentrated exposure to hazards such as dangerous machinery; unprotected heights, etc.; fumes, odors, dust, gases, and poor ventilation; and vibration. 8 9 10 Tr. 27. 11 At step four, the ALJ found Plaintiff was able to perform past relevant work 12 as a fast food manager and pamphlet distributor. Tr. 31. Alternatively, the ALJ 13 found that considering Plaintiff’s age, education, work experience, and RFC, there 14 are other jobs that exist in significant numbers in the national economy that the 15 Plaintiff can perform such as fast food worker, cashier II, and housekeeper. Tr. 32. 16 The ALJ concluded Plaintiff has not been under a disability, as defined in the 17 Social Security Act, from September 30, 2010 through the date of the decision. Tr. 18 32. 19 20 21 ORDER - 7 1 On July 17, 2017, the Appeals Council denied review, Tr. 1-6, making the 2 ALJ’s decision the Commissioner’s final decision for purposes of judicial review. 3 See 42 U.S.C. § 1383(c)(3); 20 C.F.R. §§ 416.1481, 422.210. 4 5 ISSUES Plaintiff seeks judicial review of the Commissioner’s final decision denying 6 him disability insurance benefits under Title II and supplemental security income 7 benefits under Title XVI of the Social Security Act. ECF No. 15. Plaintiff raises 8 the following issues for this Court’s review: 9 1. Whether the ALJ properly evaluated the medical opinion evidence; 10 2. Whether the ALJ properly considered the lay witness statements; 11 3. Whether the ALJ properly weighed Plaintiff’s symptom claims; and 12 4. Whether the ALJ properly assessed Plaintiff’s past relevant work at step 13 four. 14 See ECF No. 15 at 3-4. DISCUSSION 15 A. Medical Opinion Evidence 16 Plaintiff contends the ALJ improperly weighed the medical opinion evidence 17 of examining physician, William Drenguis, M.D. ECF No. 15 at 5-9. 18 There are three types of physicians: “(1) those who treat the claimant 19 (treating physicians); (2) those who examine but do not treat the claimant 20 (examining physicians); and (3) those who neither examine nor treat the claimant 21 ORDER - 8 1 but who review the claimant’s file (nonexamining or reviewing physicians).” 2 Holohan v. Massanari, 246 F.3d 1195, 1201-02 (9th Cir. 2001) (brackets omitted). 3 “Generally, a treating physician’s opinion carries more weight than an examining 4 physician’s, and an examining physician’s opinion carries more weight than a 5 reviewing physician’s.” Id. “In addition, the regulations give more weight to 6 opinions that are explained than to those that are not, and to the opinions of 7 specialists concerning matters relating to their specialty over that of 8 nonspecialists.” Id. (citations omitted). 9 If a treating or examining physician’s opinion is uncontradicted, an ALJ may 10 reject it only by offering “clear and convincing reasons that are supported by 11 substantial evidence.” Bayliss v. Barnhart, 427 F.3d 1211, 1216 (9th Cir. 2005). 12 “However, the ALJ need not accept the opinion of any physician, including a 13 treating physician, if that opinion is brief, conclusory and inadequately supported 14 by clinical findings.” Bray v. Comm’r Soc. Sec. Admin., 554 F.3d 1219, 1228 (9th 15 Cir. 2009) (internal quotation marks and brackets omitted). “If a treating or 16 examining doctor’s opinion is contradicted by another doctor’s opinion, an ALJ 17 may only reject it by providing specific and legitimate reasons that are supported 18 by substantial evidence.” Bayliss, 427 F.3d at 1216 (citing Lester v. Chater, 81 19 F.3d 821, 830-31 (9th Cir. 1995)). 20 21 ORDER - 9 1 In October 2013, Dr. Drenguis performed a consultative examination of 2 Plaintiff. Tr. 348-53. Dr. Drenguis diagnosed lumbar degenerative joint disease; 3 bilateral carpal tunnel syndrome, right greater than left; gout with findings of 4 inflammation in his left ankle today; history of right knee instability with minimal 5 findings on physical examination; coronary artery disease stats post coronary 6 artery bypass grafting; obesity; and bilateral degenerative joint disease of the hips. 7 Tr. 352. Functionally, Dr. Drenguis opined Plaintiff’s maximum standing and 8 walking capacity was about four hours in an eight-hour workday; maximum sitting 9 capacity was four hours in an eight-hour workday; maximum lifting/carrying 10 capacity was 20 pounds occasionally and 10 pounds frequently; and though he had 11 no limitations in reaching, he could only occasionally (versus frequently, as found 12 by the ALJ) handle, finger, and feel.1 Tr. 352-53. The vocational expert testified 13 that no jobs would be available to Plaintiff at the light or sedentary exertional level 14 if he were limited to occasional (versus frequent) handling and fingering. Tr. 80. 15 16 17 1 Dr. Drenguis’ report did not offer a definition of “occasional.” However, as 18 defined by the Social Security Rulings, “occasional” means “from very little to up 19 to one-third of the time,” where “frequent” means occurring “from one-third to 20 two-thirds of the time.” SSR 83–10, 1983 WL 31251, at *5, 6. 21 ORDER - 10 1 The ALJ gave partial weight to Dr. Drenguis’ opinion, rejecting the assessed 2 exertional and manipulative limitations. Tr. 30-31. Because these limitations were 3 contradicted by nonexamining state agency physicians, Norman Staley M.D., Tr. 4 118-19, and Guillermo Rubio, M.D., Tr. 95-96, the ALJ was required to provide 5 specific and legitimate reasons for rejecting these opinions. Bayliss, 427 F.3d at 6 1216. 7 1. Manipulative Limitations 8 Plaintiff argues the ALJ failed to give sufficient reasons for rejecting Dr. 9 Drenguis’ opinion that Plaintiff was limited to occasional handling, fingering and 10 feeling in his hands. 11 a. 12 Inconsistent Examination Findings First, the ALJ noted Dr. Drenguis’ opinion regarding manipulative 13 limitations “does not seem entirely consistent” with his examination findings that 14 Plaintiff had a normal grip and no difficulty turning a doorknob, tying a pair of 15 shoes, manipulating a button, and picking up a coin with either hand.2 Tr. 31. An 16 17 2 The “not entirely consistent” language utilized throughout the ALJ’s decision is a 18 boilerplate conclusion that many courts have criticized as “not entirely” fails to 19 inform as to what evidence the ALJ considered inconsistent. See Dejohnette v. 20 Berryhill, 2018 WL 521589 (N.D. Ill. Jan. 22, 2018) (citing Parker v. Astrue, 597 21 ORDER - 11 1 ALJ may reject opinions that are internally inconsistent. Nguyen v. Chater, 100 2 F.3d 1462, 1464 (9th Cir. 1996). An ALJ is not obliged to credit medical opinions 3 that are unsupported by the medical source’s own data. Tommasetti v. Astrue, 533 4 F.3d 1035, 1041 (9th Cir. 2008). Plaintiff contends the ability to perform activities 5 once on examination is not inconsistent with Dr. Drenguis’ opinion that Plaintiff 6 can only perform manipulative activities up to one-third of the workday. ECF No. 7 15 at 7. Plaintiff’s alternative view of the evidence does not establish error in the 8 ALJ’s decision, however. A reviewing court’s role is not to determine whether the 9 record can support the claimant’s alternative view of the evidence, but whether 10 substantial evidence supports the ALJ's conclusions. Burch v. Barnhart, 400 F.3d 11 676, 679 (9th Cir. 2005) (“Where evidence is susceptible to more than one rational 12 interpretation, it is the ALJ’s conclusion that must be upheld.”). The ALJ did not 13 error in concluding the normal physical examination findings did not corroborate 14 the more extreme manipulative limitations assessment. This was a specific and 15 16 17 F.3d 920 (7th Cir. 2010)). Nevertheless, the use of this boilerplate language does 18 not necessarily undermine the ALJ’s decision if substantial evidence supports the 19 conclusion. Given the ALJ’s more specific analysis, the ALJ’s inclusion of this 20 boilerplate does not affect the Court’s review. 21 ORDER - 12 1 legitimate reason supported by substantial evidence for giving less weight to the 2 opinion. 3 4 b. Inconsistent Medical Evidence Second, the ALJ found Dr. Drenguis’ opinion was “not entirely consistent 5 with the overall treatment record,” “inconsistencies” which Dr. Drenguis was not 6 aware of because “he did not review the overall record.” Tr. 31. An ALJ may 7 reject limitations “unsupported by the record as a whole.” Batson v. Comm’r Soc. 8 Sec. Admin., 359 F.3d 1190, 1195 (9th Cir. 2003). The specific and legitimate 9 reason standard can be met by “setting out a detailed and thorough summary of the 10 facts and conflicting clinical evidence, [the ALJ] stating his interpretation thereof, 11 and making findings.” Reddick v. Chater, 157 F.3d 715, 725 (9th Cir. 1998); 12 Embrey v. Bowen, 849 F.2d 418, 421–22 (9th Cir. 1988) (conclusory reasons do 13 not “achieve the level of specificity” required to justify an ALJ’s rejection of an 14 opinion); McAllister v. Sullivan, 888 F.2d 599, 602 (9th Cir. 1989) (an ALJ’s 15 rejection of a physician’s opinion on the ground that it was contrary to clinical 16 findings in the record was “broad and vague, failing to specify why the ALJ felt 17 the treating physician’s opinion was flawed”). 18 The ALJ’s explanation of the medical evidence acknowledged that “[s]ome 19 clinical findings have been positive, while others have been normal.” Tr. 29. The 20 ALJ detailed some of the both the positive and negative findings. Id. The ALJ 21 ORDER - 13 1 acknowledged the 2014 electrodiagnostic report, finding “severe bilateral median 2 nerve compromise affecting the sensory and motor components,” supporting the 3 diagnosis of carpal tunnel syndrome. Tr. 29 (citing Tr. 388). Evidence showed 4 Plaintiff experienced “notable symptoms” in his hands, for which a surgical release 5 was anticipated (but had not occurred). Tr. 29 (citing Tr. 462) (Sept. 2014: 6 orthopedic treatment note indicating surgical release of the carpal tunnel is “the 7 most definitive treatment”); see also Tr. 444 (“He states the reason that he has not 8 had [the surgery is] because he does not feel like he can really afford it 9 currently.”). Additionally, the ALJ noted that while Dr. Drenguis found Tinel’s 10 test3 positive, Plaintiff had no restriction in range of motion of the shoulder, elbow, 11 wrist and finger/thumb joints, normal grip, and no difficulty with turning a 12 doorknob, tying a pair of shoes, manipulating a button, and picking up a coin with 13 either hand. Tr. 29-30. Other positive and negative tests are reflected in the 14 record, including in Dr. Staley’s assessment which commented that Dr. Drenguis’ 15 16 3 Tinel’s sign is a test used by physicians to produce the symptoms of carpal 17 tunnel: “a sensation of tingling, or of ‘pins and needles,’ felt at the lesion site or 18 more distally along the course of a nerve when the latter is percussed; indicates a 19 partial lesion or early regeneration in the nerve.” Stedmans Medical Dictionary § 20 820740. 21 ORDER - 14 1 examination revealed negative Phalen’s4 and reverse Phalen’s tests bilaterally. Tr. 2 120. Other tests results reflect a positive Phalen’s test bilaterally, and a negative 3 Tinel’s test in the right hand. Tr. 462. 4 The undersigned finds no error in the ALJ’s conclusion there were both 5 positive and negative clinical findings. Furthermore, the Court finds the ALJ did 6 not ignore Plaintiff’s positive findings, though he did not explicitly discuss them 7 all, such as decreased sensation and abnormal motor strength. Tr. 332, 447. In 8 forming his opinion, Dr. Drenguis reviewed only a single clinic note in addition to 9 the SSA form 3368 and a function report. Tr. 348. After Dr. Drenguis’ 10 examination, despite lack of treatment, Plaintiff returned to work. Tr. 348. The 11 overall record of both positive and normal findings, lack of treatment yet return to 12 work, supports the ALJ’s conclusion that the overall treatment record was 13 inconsistent with Dr. Drenguis’ manipulative restriction. This was a specific and 14 legitimate reason supported by substantial evidence. 15 16 17 18 4 Phalen’s maneuver is done by pushing the back of the hands together for one 19 minute. Paresthesia may indicate carpal tunnel syndrome. Stedmans Medical 20 Dictionary § 526130. 21 ORDER - 15 1 2 c. Inconsistency with Nonexamining Opinion and Activities Third, the ALJ accorded Dr. Drenguis’ opinion less weight because he did 3 not review the overall record, as did Dr. Staley, whom the ALJ accorded 4 significant weight. Tr. 31. The Court rejects Plaintiff’s contention that Dr. 5 Staley’s opinion was not a reason offered by the ALJ in rejection of Dr. Drenguis’ 6 opinion. ECF No. 17 at 3. 7 Generally, an ALJ should accord more weight to the opinion of an 8 examining physician than to that of a non-examining physician. See Andrews v. 9 Shalala, 53 F.3d 1035, 1040–41 (9th Cir. 1995). However, the opinion of a 10 nonexamining physician may serve as substantial evidence if it is “supported by 11 other evidence in the record and [is] consistent with it.” Id. at 1041. The ALJ 12 found Dr. Staley’s opinion consistent with the objective medical evidence (which 13 evidenced both positive and negative findings as discussed above), Plaintiff’s 14 activities of daily living, and Plaintiff’s ability to work. Tr. 30. 15 In regards to daily activities, the ALJ found that Dr. Staley’s opinion was 16 supported by his consistent findings that Plaintiff “worked on his computer, was 17 fully independent in self-care and household chores, and worked part-time as a 18 home health aide.” Tr. 30. The regulations provide that an ALJ generally will 19 give more weight to a medical opinion that is “consistent ... with the record as a 20 whole.” 20 C.F.R. § 404.1527(c)(5). Moreover, an ALJ may discount a medical 21 ORDER - 16 1 source opinion to the extent it conflicts with the claimant’s daily activities. 2 Morgan v. Comm’r Soc. Sec. Admin., 169 F.3d 595, 601-02 (9th Cir. 1999). The 3 ALJ further found that Plaintiff’s pain and numbness did not preclude him from 4 also driving, grocery shopping, mowing the lawn, using a computer keyboard, and 5 playing cards. Tr. 26, 29, 30. As Dr. Staley’s opinion is supported by other 6 evidence in the record, including Plaintiff’s self-reported activities, the ALJ 7 reasonably accorded more weight to this opinion. 8 Additionally, the ALJ concluded that Dr. Staley’s opined manipulative 9 limitations were consistent with Plaintiff’s ability to work and work history. 10 Working with an impairment supports a conclusion that the impairment is not 11 disabling. See Drouin v. Sullivan, 966 F.2d 1255, 1258 (9th Cir. 1992). Plaintiff 12 performed substantial gainful activity from 2000 through 2010. Tr. 24; see also 13 Tr. 31 (noting Plaintiff reported he worked from August 1978 to September 2010 14 as a manager at a fast food restaurant). Plaintiff requested a closed period of 15 disability from September 2010, when he stopped working as a manager of fast 16 food restaurant, Tr. 29, to April 2014, the time he successfully returned to 17 substantial gainful activity working two jobs as a merchandiser and licensed 18 caregiver for his mother. Tr. 23. Plaintiff’s treatment records evidence 19 longstanding symptoms of carpal tunnel syndrome. Tr. 452 (May 2014: Plaintiff 20 reports nerve conduction studies performed 25 years ago); Tr. 461 (Sept. 2014: 21 ORDER - 17 1 describing onset as 20 years ago). The ALJ found consistent and persuasive the 2 following other evidence favoring Dr. Staley’s interpretation of the record as a 3 whole: 1) Plaintiff had worked full-time with the allegedly disabling impairment 4 both before and after the closed period of alleged disability under review; 2) there 5 was no evidence of worsening to the extent it prevented his return to work in April 6 2014; and 3) Plaintiff stopped working at as a fast food manager for reasons other 7 than his impairments. Tr. 29. 8 Plaintiff contends this evidence of work ethic should have little bearing on 9 the analysis of the period under review. ECF No. 17 at 9-10. However, courts 10 have routinely upheld this exact type of evidence as adequate reason to reject 11 allegations of disabling symptoms and limitations. See, e.g., Bray, 554 F.3d at 12 1227 (upholding ALJ’s adverse credibility determination in part because the 13 claimant “recently worked as a personal caregiver for two years, and has sought 14 out other employment since then”); Gregory v. Bowen, 844 F.2d 664, 667 (9th Cir. 15 1988) (finding that substantial evidence supported determination that claimant’s 16 back problems were not disabling where her condition remained constant for 17 several years and the impairment had not prevented her from working during that 18 time); Bruton v. Massanari, 268 F.3d 824, 828 (9th Cir. 2001) (sufficient reasons 19 for disregarding subjective testimony include stopping work for nonmedical 20 reasons and failure to seek care for allegedly disabling condition at the time 21 ORDER - 18 1 claimant stopped work); Vasquez v. Colvin, 2015 WL 5882891, *4 (C.D. Cal. Oct. 2 7, 2015) (substantial evidence supported ALJ’s determination Plaintiff’s symptoms 3 did not prevent him from work, given Plaintiff’s impairments were present at the 4 same level of severity that they had been when Plaintiff had worked and Plaintiff 5 returned to work); Plotts v. Astrue, 2009 WL 507486, *5 (D. Or. Feb. 26, 2009) 6 (the absence of worsening medical findings at the alleged date of onset, the 7 absence of improving medical findings when she returned to work, the nonmedical 8 reasons for stopping work, and failure to seek care at the time work stopped, 9 provided clear and convincing reasons to reject Plaintiff’s statements). 10 The Court concludes the ALJ properly relied upon Dr. Staley’s opinion 11 along with the other consistent evidence of Plaintiff’s work history, the reason for 12 stopping work, the lack of medical evidence of deterioration, and successful return 13 to work. Substantial evidence supports ALJ’s rejection of Dr. Drenguis’ opinion 14 and finding that Plaintiff’s manipulative limitations are not so severe so as to 15 preclude his engaging in substantial gainful activity. See Warzecha v. Berryhill, 16 692 Fed.Appx. 859, 859-60 (9th Cir. June 28, 2017) (citing cases and relying upon 17 opinion of nonexamining medical consultant supported by claimant’s actual work 18 history and lack of objective medical evidence to reject opinion of examining 19 physician). 20 21 ORDER - 19 1 Accordingly, Dr. Staley’s contradicting opinion was a specific and legitimate 2 reason to reject Dr. Drenguis’ opinion regarding manipulative limitations. 3 2. Exertional Limitations 4 Plaintiff also challenges the ALJ’s rejection of Dr. Drenguis’ opinion 5 Plaintiff could only sit for four hours and could stand or walk for about four hours. 6 ECF No. 15 at 8-9. Because Dr. Drenguis’ exertional limitations were contradicted 7 by the opinions of Dr. Staley, Tr. 118-19, and Dr. Rubio, Tr. 95-96, the ALJ was 8 required to provide specific and legitimate reasons for rejecting the opinion. 9 Bayliss, 427 F.3d at 1216. 10 First, the ALJ rejected Dr. Drenguis’ exertional limitations because it was 11 “not entirely consistent” with Dr. Drenguis’ examination findings. Tr. 31. An ALJ 12 may reject opinions that are internally inconsistent. Nguyen, 100 F.3d at 1464. An 13 ALJ is not obliged to credit medical opinions that are unsupported by the medical 14 source’s own data. Tommasetti, 533 F.3d at 1041. The ALJ found Dr. Drenguis’ 15 abnormal gait testing was “largely due to transient gout symptoms in the left ankle, 16 not a back impairment.” Tr. 31 (citing Tr. 351-52) (noting Plaintiff was favoring 17 his left ankle and diagnosing “gout with findings of inflammation of his left ankle 18 today.”). Plaintiff’s contention that the ALJ incorrectly attributed gait 19 abnormalities “solely” to gout is unsupported. ECF No. 17 at 2. The ALJ also 20 noted Dr. Drenguis’ examination findings that: Plaintiff had normal muscle 21 ORDER - 20 1 strength, Tr. 31 (citing Tr. 352); he was observed to walk from the parking lot to 2 the waiting room (20 feet) without assistance; Tr. 28 (citing Tr. 350); he did not 3 need an assistive device, Tr. 24 (citing Tr. 351); straight leg raising tests were 4 negative, Tr. 28 (citing Tr. 351); with percussion and palpation, Plaintiff’s lumbar 5 spine “proved to be only mildly tender,” Tr. 28 (citing Tr. 351); and Plaintiff’s 6 right knee was mildly tender, but stable with normal range of motion. Tr. 24 7 (citing Tr. 351). 8 Second, the ALJ found Dr. Drenguis’ opinion inconsistent with “most” of 9 the treatment notes which the ALJ found “do not show that the claimant had an 10 abnormal gait due to a back impairment” or “difficulty sitting.” Tr. 31 (generally 11 referring to family medicine office treatment notes at Tr. 339-47, 370-87, 430-64). 12 An ALJ may discredit physicians’ opinions that are unsupported by the record as a 13 whole. Batson, 359 F.3d at 1195. Moreover, the extent to which a medical source 14 is “familiar with the other information in [the claimant’s] case record” is relevant 15 in assessing the weight of that source’s medical opinion. See 20 C.F.R. § 16 416.927(c)(6). Plaintiff simply disagrees with the ALJ’s interpretation of the 17 evidence. ECF No. 15 at 8. To the extent the evidence could be interpreted 18 differently, it is the role of the ALJ to resolve conflicts and ambiguity in the 19 evidence. See Morgan, 169 F.3d at 599-600. Where evidence is subject to more 20 than one rational interpretation, the ALJ’s conclusion will be upheld. Burch, 400 21 ORDER - 21 1 F.3d at 679. The Court will only disturb the ALJ’s findings if they are not 2 supported by substantial evidence. Hill, 698 F.3d at 1158. 3 Finally, as discussed supra, the ALJ properly concluded the opinions of Dr. 4 Staley and Dr. Rubio, along with other consistent evidence in the record, 5 constitutes substantial evidence to reject Dr. Drenguis’ exertional limitations. Tr. 6 30. The consistent other evidence includes Plaintiff’s extensive medium exertion 7 work history, reason for stopping work, lack of evidence of worsening during the 8 period under review, and return to substantial gainful activity. As explained above, 9 working with an impairment supports a conclusion that the impairment is not 10 disabling. See Drouin, 966 F.2d at 1258; Bray, 554 F.3d at 1227 (upholding ALJ’s 11 adverse credibility determination in part because the claimant “recently worked as 12 a personal caregiver for two years, and has sought out other employment since 13 then”). This was a specific and legitimate reason to reject Dr. Drenguis’ opinion 14 regarding Plaintiff’s exertional limitations. 15 16 B. Lay Evidence Plaintiff challenges the ALJ’s treatment of statements provided by Sherri 17 Richmond, Plaintiff’s sister. ECF No. 15 at 9-12. 18 An ALJ must consider the statements of lay witnesses in determining 19 whether a claimant is disabled. Stout, 454 F.3d at 1053. Lay witness evidence 20 cannot establish the existence of medically determinable impairments, but lay 21 ORDER - 22 1 witness evidence is “competent evidence” as to “how an impairment affects [a 2 claimant’s] ability to work.” Id.; 20 C.F.R. § 416.913; see also Dodrill v. Shalala, 3 12 F.3d 915, 918-19 (9th Cir. 1993) (“[F]riends and family members in a position 4 to observe a claimant’s symptoms and daily activities are competent to testify as to 5 her condition.”). If lay witness statements are rejected, the ALJ “‘must give 6 reasons that are germane to each witness.’” Nguyen, 100 F.3d at 1467 (9th Cir. 7 1996) (citing Dodrill, 12 F.3d at 919). 8 The ALJ summarized Ms. Richmond’s Third Party Function Report, Tr. 9 292-99, generally describing Plaintiff’s symptoms including back pain and 10 numbness in his hands. Tr. 30. Ms. Richmond also described how Plaintiff cares 11 for his mother, performs chores, drives, handles finances, uses a computer, and 12 plays cards. Tr. 30. The ALJ found Ms. Richmond’s statements regarding 13 Plaintiff’s activities “generally credible,” but did not alter the RFC due to his 14 activities. Inconsistency with a claimant’s daily activities is a germane reason to 15 reject lay testimony. Carmickle v. Comm’r of Soc. Sec. Admin., 533 F.3d 1155, 16 1163-64 (9th Cir. 2008). 17 Plaintiff contends Ms. Richmond’s statements, if accepted as true, would 18 demonstrate Plaintiff is disabled because “a person who must frequently stop what 19 he is doing to shake out his hands is unlikely to be able to do manipulative tasks on 20 more than an occasional basis.” ECF No. 15 at 11. However, Plaintiff’s 21 ORDER - 23 1 contention goes beyond the scope of the lay witness testimony and does not find 2 support in the medical evidence in the record. Ms. Richmond indicated that when 3 Plaintiff uses the computer or is playing cards, “he will stop and shake hands” to 4 try to alleviate numbness. Tr. 296, 299. Ms. Richmond did not describe any 5 frequency or degree of interruption caused by the need to shake Plaintiff’s hands. 6 In fact, Plaintiff testified at the hearing that with a regular 10-minute break, he 7 could probably work four to five hours. Tr. 59. Plaintiff has not identified any 8 error in the ALJ’s evaluation of the lay evidence. 9 10 C. Plaintiff’s Symptom Claims Plaintiff’s contends the ALJ failed to rely upon clear and convincing reasons 11 in discrediting his symptom claims. ECF No. 15 at 13-19. 12 An ALJ engages in a two-step analysis to determine whether a claimant’s 13 testimony regarding subjective pain or symptoms is credible. “First, the ALJ must 14 determine whether there is objective medical evidence of an underlying 15 impairment which could reasonably be expected to produce the pain or other 16 symptoms alleged.” Molina, 674 F.3d at 1112 (internal quotation marks omitted). 17 “The claimant is not required to show that [his] impairment could reasonably be 18 expected to cause the severity of the symptom [he] has alleged; [he] need only 19 20 21 ORDER - 24 1 show that it could reasonably have caused some degree of the symptom.” Vasquez 2 v. Astrue, 572 F.3d 586, 591 (9th Cir. 2009) (internal quotation marks omitted). 3 Second, “[i]f the claimant meets the first test and there is no evidence of 4 malingering, the ALJ can only reject the claimant’s testimony about the severity of 5 the symptoms if [the ALJ] gives ‘specific, clear and convincing reasons’ for the 6 rejection.” Ghanim v. Colvin, 763 F.3d 1154, 1163 (9th Cir. 2014) (internal 7 citations and quotations omitted). “General findings are insufficient; rather, the 8 ALJ must identify what testimony is not credible and what evidence undermines 9 the claimant’s complaints.” Id. (quoting Lester, 81 F.3d at 834 (9th Cir. 1995); 10 Thomas, 278 F.3d at 958 (“[T]he ALJ must make a credibility determination with 11 findings sufficiently specific to permit the court to conclude that the ALJ did not 12 arbitrarily discredit claimant’s testimony.”). “The clear and convincing [evidence] 13 standard is the most demanding required in Social Security cases.” Garrison v. 14 Colvin, 759 F.3d 995, 1015 (9th Cir. 2014) (quoting Moore v. Comm’r Soc. Sec. 15 Admin., 278 F.3d 920, 924 (9th Cir. 2002)). 16 In assessing Plaintiff’s symptom claims, the ALJ may consider, inter alia, 17 (1) the claimant’s reputation for truthfulness; (2) inconsistencies in the claimant’s 18 testimony or between his testimony and his conduct; (3) the claimant’s daily living 19 activities; (4) the claimant’s work record; and (5) testimony from physicians or 20 21 ORDER - 25 1 third parties concerning the nature, severity, and effect of the claimant’s condition. 2 Thomas, 278 F.3d at 958-59. 3 The ALJ found that Plaintiff’s medically determinable impairments could 4 cause Plaintiff’s alleged symptoms, but that Plaintiff’s statements concerning the 5 intensity, persistence, and limiting effects of her symptoms were not entirely 6 credible. Tr. 28. The Court concludes the ALJ provided specific, clear, and 7 convincing reasons to support this finding. 8 1. Lack of Objective Medical Evidence 9 First, the ALJ found the Plaintiff’s allegations “are not entirely consistent 10 with the medical evidence of record.” Tr. 28. An ALJ may not discredit a 11 claimant’s symptom testimony and deny benefits solely because the degree of the 12 symptoms alleged is not supported by objective medical evidence. Rollins v. 13 Massanari, 261 F.3d 853, 857 (9th Cir. 2001); Bunnell v. Sullivan, 947 F.2d 341, 14 346-47 (9th Cir. 1991); Fair v. Bowen, 885 F.2d 597, 601 (9th Cir. 1989). 15 However, the medical evidence is a relevant factor in determining the severity of a 16 claimant’s pain and its disabling effects. Rollins, 261 F.3d at 857; 20 C.F.R. §§ 17 404.1529(c)(2), 416.929(c)(2). Minimal objective evidence is a factor which may 18 be relied upon in discrediting a claimant’s testimony, although it may not be the 19 only factor. See Burch, 400 F.3d at 680. 20 21 ORDER - 26 1 Regarding the medical evidence of back-related symptoms, the ALJ noted 2 that though Plaintiff reported back pain, there were “few abnormal clinical findings 3 pertaining to back pain during the relevant period.” Tr. 28. The ALJ relied on 4 objective evidence, for example, lumbar spine imaging showed moderate 5 degenerative disease, mild spondylosis without acute abnormality, and no 6 instability. Tr. 28 (citing 355, 400). The ALJ also noted that upon examination, 7 Plaintiff had normal strength in his lower extremities, a negative straight leg 8 raising test, mild tenderness with percussion and palpation, and no paravertebral 9 muscle spasms. Tr. 28 (citing Tr. 351-52). The ALJ also noted that at his doctor 10 visit on March 5, 2015, back pain was not listed as a chief complaint, though he 11 obtained a prescription for nine tablets of 7.5 mg hydrocodone/325 12 mgacetaminophen for his back pain. Tr. 28 (citing 438). Moreover, Plaintiff’s 13 hypertension, hyperlipidemia, and diabetes, were monitored, but his treatment 14 reflected good control. Tr. 29. Regarding Plaintiff’s carpal tunnel-related 15 symptoms, the ALJ found the medical evidence again showed both positive and 16 normal clinical findings. Tr. 29; see discussion supra, § A. For example, Dr. 17 Drenguis found Tinel’s test positive bilaterally, but Plaintiff had normal range of 18 motion in the upper extremity joints and no difficulty performing manipulative 19 activities on examination. Tr. 29 (citing Tr. 350-51). 20 21 ORDER - 27 1 The inconsistent medical evidence, coupled with the other reasons cited by 2 the ALJ, provided clear and convincing reasons to discredit Plaintiff’s symptom 3 claims. 4 2. Inconsistent with Functioning / Daily Activities 5 Next, the ALJ found activities performed by Plaintiff further belie the 6 alleged symptom and limitation severity. Tr. 29. Evidence about daily activities is 7 properly considered in evaluating symptom claims. Fair, 885 F.2d at 603. 8 However, a claimant need not be utterly incapacitated in order to be eligible for 9 benefits. See Orn v. Astrue, 495 F.3d 625, 639 (9th Cir. 2007) (“[T]he mere fact 10 that a plaintiff has carried on certain activities ... does not in any way detract from 11 her credibility as to her overall disability.”). However, as in this case, “[e]ven 12 where [Plaintiff's daily] activities suggest some difficulty functioning, they may be 13 grounds for discrediting the claimant's testimony to the extent that they contradict 14 claims of a totally debilitating impairment.” Molina, 674 F.3d at 1113. 15 Here, the ALJ cited, for example, Plaintiff’s reports that after alleged 16 disability onset, he continued caring for his elderly mother, which would “require 17 standing and walking to help the person with daily needs,” Tr. 28, such as laundry, 18 bathing, dispensing medications, and paying bills. Tr. 23, 25. Plaintiff’s Function 19 Report form also indicated that he drives a car, shops for groceries, pays bills, and 20 maintains a checking account. Tr. 25. Despite his claims of disabling carpal 21 ORDER - 28 1 tunnel symptoms, the ALJ noted Plaintiff’s “usual daily activities” included using 2 a computer, doing laundry, and mowing the lawn. Tr. 29. The range of activities 3 Plaintiff remained capable of provided a clear and convincing reason to discount 4 Plaintiff’s symptom claims. 5 3. Reason for Stopping Work 6 In addition, the ALJ noted Plaintiff stopped working as a restaurant manager 7 due to reasons other than his impairments. Tr. 29. When considering a claimant’s 8 contention that he cannot work because of his impairments, it is appropriate to 9 consider whether the claimant has not worked for reasons unrelated to his alleged 10 disability. See Tommasetti, 533 F.3d at 1040; Bruton, 268 F.3d at 828 (sufficient 11 reasons for disregarding subjective testimony include stopping work for 12 nonmedical reasons and failure to seek care for allegedly disabling condition at the 13 time claimant stopped work). Plaintiff indicated his last job as a manager of a 14 restaurant ended because he lost two bank deposits. Tr. 29 (citing Tr. 357). The 15 reason for stopping work cuts against Plaintiff’s claim his current pain and other 16 symptoms suddenly made it impossible for him to work at all. The ALJ 17 permissibly relied upon this reason to discredit Plaintiff’s symptom claims. 18 4. Ability to Work with Impairments 19 Next, the ALJ cited evidence that both before and after the alleged onset 20 date, Plaintiff was able to work at substantial gainful activity levels. Tr. 29. As 21 ORDER - 29 1 discussed above, working with an impairment supports a conclusion that the 2 impairment is not disabling. See Drouin, 966 F.2d at 1258; Bray, 554 F.3d at 1227 3 (upholding ALJ’s adverse credibility determination in part because the claimant 4 “recently worked as a personal caregiver for two years, and has sought out other 5 employment since then”); Gregory, 844 F.2d at 667 (finding that substantial 6 evidence supported determination that claimant’s back problems were not 7 disabling where her condition remained constant for several years and the 8 impairment had not prevented her from working during that time). The record 9 reflects Plaintiff has experienced symptoms of carpal tunnel while working for 10 many years as a manager of a fast food restaurant. Tr. 452, 461. As noted by the 11 ALJ, “even though [Plaintiff] has notable symptoms, particularly in his hands, they 12 did not stop him from working prior to September 2010 (his initial alleged 13 disability onset date).” Tr. 29. 14 In addition, the ALJ noted that during the period in question, Plaintiff was 15 paid to care for his elderly mother and then returned to full-time work in April 16 2014. Tr. 23, 29. The ALJ found this ability to work “suggests that his complaints 17 of limitations so severe that he could not work were not wholly credible.” Tr. 29. 18 Evidence of Plaintiff’s return to work was properly considered. See Vasquez, 2015 19 WL 5882891, *4 (C.D. Cal. Oct. 7, 2015) (substantial evidence supported ALJ’s 20 determination Plaintiff’s symptoms did not prevent him from work, given 21 ORDER - 30 1 Plaintiff’s impairments were present at the same level of severity that they had 2 been when Plaintiff had worked and Plaintiff returned to work); Plotts, 2009 WL 3 507486, *5 (D. Or. Feb. 26, 2009) (the absence of worsening medical findings at 4 the alleged date of onset, the absence of improving medical findings when she 5 returned to work, the nonmedical reasons for stopping work, and failure to seek 6 care at the time work stopped, provided clear and convincing reasons to reject 7 Plaintiff’s statements). Plaintiff’s ability work, along with the other reasons cited 8 by the ALJ, was a clear and convincing reason to discount Plaintiff’s symptom 9 claims. 10 In sum, the ALJ provided several clear and convincing reasons, supported by 11 substantial evidence, for discounting Plaintiff’s symptom claims. 12 13 D. Past Relevant Work Plaintiff contends the ALJ erred at step four by improperly considered 14 Plaintiff’s work as a pamphlet distributor as past relevant work. ECF No. 15 at 1215 13. The Court need not address this claim. Even assuming that the ALJ erred, the 16 error was harmless because the ALJ also found Plaintiff capable of performing his 17 past relevant work as a fast food manager and because of the ALJ’s alternative step 18 five finding that there were other jobs which existed in the national economy that 19 Plaintiff could perform. See, e.g., Berry v. Colvin, 657 Fed.Appx. 650, 651-52 (9th 20 Cir. 2016). 21 ORDER - 31 1 The ALJ’s step four and step five findings are supported by substantial 2 evidence. 3 4 CONCLUSION After review, the Court finds that the ALJ’s decision is supported by 5 substantial evidence and free of harmful error. IT IS ORDERED: 6 1. Plaintiff’s Motion for Summary Judgment, ECF No. 15, is DENIED. 7 2. Defendant’s Motion for Summary Judgment, ECF No. 16, is 8 GRANTED. 9 The District Court Executive is directed to file this Order, enter 10 JUDGMENT FOR THE DEFENDANT, provide copies to counsel, and CLOSE 11 THE FILE. 12 DATED September 4, 2018. 13 s/Mary K. Dimke MARY K. DIMKE UNITED STATES MAGISTRATE JUDGE 14 15 16 17 18 19 20 21 ORDER - 32
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