Clements v. Commissioner of Social Security, No. 1:2017cv03167 - Document 18 (E.D. Wash. 2018)

Court Description: ORDER GRANTING ECF No. 16 DEFENDANT'S MOTION FOR SUMMARY JUDGMENT; denying ECF No. 12 Plaintiff's Motion for Summary Judgment. FILE CLOSED. Signed by Magistrate Judge John T. Rodgers. (TR, Case Administrator)

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Clements v. Commissioner of Social Security Doc. 18 1 FI LED I N THE U.S. DI STRI CT COURT EASTERN DI STRI CT OF WASHI NGTON 2 UNITED STATES DISTRICT COURT 3 Nov 06, 2018 SEAN F. MCAVOY, CLERK EASTERN DISTRICT OF WASHINGTON 4 5 6 7 8 9 10 11 12 KYLE C., No. 1:17-CV-3167-JTR Plaintiff, ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT v. COMMISSIONER OF SOCIAL SECURITY, Defendant. 13 14 BEFORE THE COURT are cross-motions for summary judgment. ECF 15 No. 12, 16. Attorney D. James Tree represents Kyle C. (Plaintiff); Special 16 Assistant United States Attorney Daphne Banay represents the Commissioner of 17 Social Security (Defendant). The parties have consented to proceed before a 18 magistrate judge. ECF No. 5. After reviewing the administrative record and briefs 19 filed by the parties, the Court GRANTS Defendant’s Motion for Summary 20 Judgment and DENIES Plaintiff’s Motion for Summary Judgment. 21 22 JURISDICTION On June 19, 2013, Plaintiff filed an application for a period of disability and 23 Disability Insurance Benefits, alleging disability since July 26, 2013, due to 24 chronic pancreatitis. Tr. 160, 253. Plaintiff’s application was denied initially and 25 upon reconsideration. 26 Administrative Law Judge (ALJ) Virginia M. Robinson held a hearing on 27 August 6, 2015, Tr. 36-83, and issued an unfavorable decision on June 29, 2016, 28 Tr. 20-30. The Appeals Council denied review on July 31, 2017. Tr. 1-5. The ORDER GRANTING DEFENDANT’S MOTION . . . - 1 Dockets.Justia.com 1 ALJ’s June 2016 decision thus became the final decision of the Commissioner, 2 which is appealable to the district court pursuant to 42 U.S.C. § 405(g). Plaintiff 3 filed this action for judicial review on September 29, 2017. ECF No. 1. 4 STATEMENT OF FACTS The facts of the case are set forth in the administrative hearing transcript, the 5 6 ALJ’s decision, and the briefs of the parties. They are only briefly summarized 7 here. 8 Plaintiff was born on December 25, 1980, and was 32 years old on the 9 disability application date, June 19, 2013. Tr. 160. He completed high school in 10 1999. Tr. 254. Plaintiff’s disability report indicates he stopped working because 11 of his condition(s) on August 30, 2013. Tr. 253. At the administrative hearing, 12 Plaintiff testified he had, however, continued to work small odd jobs for cash. Tr. 13 70-71. These jobs were in metal fabrication, which involved cutting and welding 14 parts, grinding, sweeping, and picking up scrap metal and garbage, and mechanical 15 work on a race truck. Tr. 70-71. 16 Plaintiff applied for and received unemployment benefits from September 17 2013 to February 2014. Tr. 48. He testified he reported each week during that 18 time period that he was ready, able and willing to work and was actively looking 19 for work. Tr. 49. He applied for mechanic jobs but had failed pre-employment 20 drug screens for any potential positions. Tr. 48-49. 21 Plaintiff stated he first used marijuana recreationally at age 15 and stopped 22 at age 18. Tr. 47. He then began using marijuana for medical purposes in 2011 or 23 2012. Tr. 48. He indicated the first thing he does every morning is smoke 24 marijuana, Tr. 60, and he currently will use a half ounce of marijuana per week, on 25 average, to alleviate his pain, Tr. 47. 26 Plaintiff stated he began to experience stomach pain in November of 2010, 27 but the pain did not interfere with his ability to work until 2011. Tr. 53. He 28 described an episode of stomach pain as extreme pain in his right, mid-abdominal ORDER GRANTING DEFENDANT’S MOTION . . . - 2 1 area that resulted in nausea, diarrhea, chills and hot flashes. Tr. 56. When he 2 experiences an episode of stomach pain, it can cause him to drop to the ground and 3 ball up in the fetal position. Tr. 53-55. If he is unable to control his stomach pain 4 by lying down and taking his medications, he will go to the emergency room to 5 receive additional pain medication. Tr. 56-57. 6 Plaintiff testified the pain has progressively gotten worse and the flare ups 7 occur more frequently. Tr. 54. He indicated he now has pain every day. Tr. 57. 8 However, Plaintiff did state he does “pretty well” if he sticks to a low to non-fat 9 diet, and his pain level is also helped by using medical marijuana and taking 10 11 12 Viokase enzyme pills. Tr. 55, 66. STANDARD OF REVIEW The ALJ is responsible for determining credibility, resolving conflicts in 13 medical testimony, and resolving ambiguities. Andrews v. Shalala, 53 F.3d 1035, 14 1039 (9th Cir. 1995). The ALJ’s determinations of law are reviewed de novo, with 15 deference to a reasonable interpretation of the applicable statutes. McNatt v. Apfel, 16 201 F.3d 1084, 1087 (9th Cir. 2000). The decision of the ALJ may be reversed 17 only if it is not supported by substantial evidence or if it is based on legal error. 18 Tackett v. Apfel, 180 F.3d 1094, 1097 (9th Cir. 1999). Substantial evidence is 19 defined as being more than a mere scintilla, but less than a preponderance. Id. at 20 1098. Put another way, substantial evidence is such relevant evidence as a 21 reasonable mind might accept as adequate to support a conclusion. Richardson v. 22 Perales, 402 U.S. 389, 401 (1971). If the evidence is susceptible to more than one 23 rational interpretation, the Court may not substitute its judgment for that of the 24 ALJ. Tackett, 180 F.3d at 1097; Morgan v. Commissioner of Social Sec. Admin., 25 169 F.3d 595, 599 (9th Cir. 1999). If substantial evidence supports the 26 administrative findings, or if conflicting evidence supports a finding of either 27 disability or non-disability, the ALJ’s determination is conclusive. Sprague v. 28 Bowen, 812 F.2d 1226, 1229-1230 (9th Cir. 1987). Nevertheless, a decision ORDER GRANTING DEFENDANT’S MOTION . . . - 3 1 supported by substantial evidence will be set aside if the proper legal standards 2 were not applied in weighing the evidence and making the decision. Brawner v. 3 Secretary of Health and Human Services, 839 F.2d 432, 433 (9th Cir. 1988). 4 5 SEQUENTIAL EVALUATION PROCESS The Commissioner has established a five-step sequential evaluation process 6 for determining whether a person is disabled. 20 C.F.R. §§ 404.1520(a), 7 416.920(a); Bowen v. Yuckert, 482 U.S. 137, 140-142 (1987). In steps one through 8 four, the burden of proof rests upon the claimant to establish a prima facie case of 9 entitlement to disability benefits. Tackett, 180 F.3d at 1098-1099. This burden is 10 met once a claimant establishes that a physical or mental impairment prevents the 11 claimant from engaging in past relevant work. 20 C.F.R. §§ 404.1520(a)(4), 12 416.920(a)(4). If a claimant cannot perform past relevant work, the ALJ proceeds 13 to step five, and the burden shifts to the Commissioner to show that the claimant 14 can perform other jobs present in significant numbers in the national economy. 15 Batson v. Commissioner of Social Sec. Admin., 359 F.3d 1190, 1193-1194 (2004). 16 If a claimant cannot make an adjustment to other work in the national economy, a 17 finding of “disabled” is made. 20 C.F.R. §§ 404.1520(a)(4)(v), 416.920(a)(4)(v). 18 ADMINISTRATIVE DECISION 19 On June 29, 2016, the ALJ issued a decision finding Plaintiff was not 20 21 22 23 disabled as defined in the Social Security Act. At step one, the ALJ found Plaintiff had not engaged in substantial gainful activity since the alleged onset date. Tr. 22. At step two, the ALJ determined Plaintiff had the following severe 24 impairment: gastrointestinal disorder/pain disorder associated with psychological 25 and physical factors. Tr. 23. 26 At step three, the ALJ found Plaintiff did not have an impairment or 27 combination of impairments that meets or medically equals the severity of one of 28 the listed impairments. Tr. 24. ORDER GRANTING DEFENDANT’S MOTION . . . - 4 The ALJ assessed Plaintiff’s Residual Functional Capacity (RFC) and 1 2 determined he could perform light exertion level work with the following 3 limitations: he could lift or carry up to 20 pounds occasionally and up to 10 4 pounds frequently; he could stand or walk for approximately six hours and sit for 5 approximately six hours per eight-hour work day with normal breaks; he could 6 frequently climb ramps, stairs, ladders, ropes or scaffolds; he could frequently 7 stoop, crouch and crawl; and he must avoid workplace hazards such as dangerous 8 machinery or working at unprotected heights. Tr. 24. At step four, the ALJ determined Plaintiff was not able to perform any of his 9 10 past relevant work. Tr. 28-29. At step five, the ALJ determined that based on the testimony of the 11 12 vocational expert, and considering Plaintiff’s age, education, work experience and 13 RFC, Plaintiff could perform other jobs present in significant numbers in the 14 national economy, including the jobs of Cashier II; Assembler, Production; and 15 Cleaner, Hospital. Tr. 29-30. The ALJ thus concluded Plaintiff was not under a 16 disability within the meaning of the Social Security Act at any time from June 19, 17 2013, through the date of the ALJ’s decision, June 29, 2016. Tr. 30. ISSUES 18 The question presented is whether substantial evidence supports the ALJ’s 19 20 decision denying benefits and, if so, whether that decision is based on proper legal 21 standards. Plaintiff contends the ALJ erred in this case by (1) failing to properly assess 22 23 the medical evidence from Leslie Schneider, Ph.D., and Thomas B. Curtis, M.D.; 24 (2) failing to find Plaintiff’s chronic pancreatitis was a severe, medically- 25 determinable impairment; (3) failing to properly assess whether Plaintiff was 26 disabled under Listing 5.06; and (4) improperly discrediting Plaintiff without a 27 specific, clear and convincing reason to do so. ECF No. 12 at 3-4. 28 /// ORDER GRANTING DEFENDANT’S MOTION . . . - 5 DISCUSSION1 1 2 3 4 5 A. Step Two Plaintiff contends the ALJ erred at step two by failing to find Plaintiff’s chronic pancreatitis was a severe, medically-determinable impairment. Plaintiff has the burden of proving he has a severe impairment at step two of 6 the sequential evaluation process. 42 U.S.C. § 423(d)(1)(A); 20 C.F.R. § 7 423(d)(1)(A), 416.912. In order to meet this burden, Plaintiff must furnish medical 8 and other evidence that shows he has a severe impairment. 20 C.F.R. § 9 416.912(a). Step two is “a de minimis screening device [used] to dispose of 10 groundless claims,” Smolen v. Chater, 80 F.3d 1273, 1290 (9th Cir. 1996), and an 11 ALJ may find that a claimant lacks a medically severe impairment or combination 12 of impairments only when this conclusion is “clearly established by medical 13 evidence.” S.S.R. 85-28; see Webb v. Barnhart, 433 F.3d 683, 686-687 (9th Cir. 14 2005). Applying the normal standard of review to the requirements of step two, 15 the Court must determine whether the ALJ had substantial evidence to find that the 16 medical evidence clearly established that Plaintiff did not have a severe 17 impairment. Yuckert v. Bowen, 841 F.2d 303, 306 (9th Cir. 1988) (“Despite the 18 deference usually accorded to the Secretary’s application of regulations, numerous 19 appellate courts have imposed a narrow construction upon the severity regulation 20 applied here.”); Webb, 433 F.3d at 687. 21 22 1 In Lucia v. S.E.C., 138 S.Ct. 2044 (2018), the Supreme Court recently held 23 that ALJs of the Securities and Exchange Commission are “Officers of the United 24 States” and thus subject to the Appointments Clause. To the extent Lucia applies 25 to Social Security ALJs, the parties have forfeited the issue by failing to raise it in 26 their briefing. See Carmickle v. Comm’r of Soc. Sec. Admin., 533 F.3d 1155, 1161 27 n.2 (9th Cir. 2008) (the Court will not consider matters on appeal that were not 28 specifically addressed in an appellant’s opening brief). ORDER GRANTING DEFENDANT’S MOTION . . . - 6 1 In this case, the ALJ concluded Plaintiff had the severe impairment of 2 gastrointestinal disorder/pain disorder associated with psychological and physical 3 factors. Tr. 23. The ALJ noted the comments of reviewing physician Gordon 4 Hale, M.D., that although Plaintiff complained of sudden, severe abdominal pain 5 throughout the record, “there is very little objective evidence of acute illness or 6 specific etiology.” Tr. 27-28. The ALJ did not specifically assess chronic 7 pancreatitis as a severe, medically-determinable impairment in this case. 8 Plaintiff provides multiple record citations for his argument that his chronic 9 pancreatitis is a severe, medically determinable impairment. ECF No. 12 at 2, 12. 10 However, an examination of the citations provided by Plaintiff does not fully 11 support this assertion. See Tr. 346-347 (March 13, 2013 notation by Gilbert Ong, 12 M.D., that “Pancreatic EUS shows no definitive chronic pancreatitis.”); Tr. 360 13 (April 11, 2013 assessment by Bryan Wernick, M.D., of questionable abdominal 14 wall pain and questionable history of chronic pancreatitis); Tr. 374-375 (July 4, 15 2013 Yakima Valley Memorial Hospital report diagnosing only “abdominal pain”); 16 Tr. 393 (December 17, 2012 report of Shayan Irani, M.D., noting the results of 17 examination “could represent mild chronic pancreatitis, or could just be a normal 18 variation.”); Tr. 395 (August 19, 2013 report of Dr. Irani assessing only “mild 19 maybe early chronic pancreatitis.”); Tr. 402 (July 15, 2013 assessment of Dr. Irani 20 of “chronic abdominal pain with fluctuating pattern to it . . . . He has had episodes 21 of elevated lipases but no documented episodes of acute pancreatitis. Endoscopic 22 ultrasound demonstrated some nonspecific findings, which certainly could 23 represent mild early chronic pancreatitis, but no definitive evidence for the 24 same.”);2 Tr. 421 (August 24, 2013 Yakima Valley Memorial Hospital report 25 26 2 The foregoing reports of Dr. Irani, Tr. 393, 395, 402, contradict Dr. Irani’s 27 June 17, 2015 letter, also cited by Plaintiff, which states Dr. Irani had treated 28 Plaintiff from August 2012 to October 2014 for chronic pancreatitis, Tr. 544. ORDER GRANTING DEFENDANT’S MOTION . . . - 7 1 diagnosing Chronic Pain); Tr. 435 (June 12, 2013 Yakima Valley Memorial 2 Hospital report diagnosing Abdominal Pain, Unspecified); Tr. 452-453, 456-458, 3 464-466, 468-469 (April, 5, 2013, June 18, 2013, and July 29, 2013 reports of 4 Craig Whittlesey, M.D., diagnosing only “Abdominal Pain, Unspecified Site” 5 following initial diagnosis (January 10, 2013) of chronic pancreatitis); Tr. 481-483 6 (April 28, 2014 diagnosis by Henry Y. Kim, M.D., of chronic abdominal pain, 7 probable abdominal wall pain, and “questionable history of chronic pancreatitis.”); 8 and Tr. 511-513, 516-520, 529-531 (July 8, 2015, June 11, 2015, and August 27, 9 2014 Yakima Valley Memorial Hospital reports diagnosing only abdominal pain). Although chronic pancreatitis has been mentioned in the record, there is no 10 11 evidence clearly establishing Plaintiff suffered from chronic pancreatitis. See 12 Webb, 433 F.3d at 686-687. Even if the Court determined the ALJ erred in failing 13 to find Plaintiff’s chronic pancreatitis was a separate severe impairment, the record 14 does not indicate Plaintiff had unique functional limitations from “chronic 15 pancreatitis” as distinct from the limitations caused by the severe gastrointestinal 16 disorder/pain disorder found by the ALJ in this case. Accordingly, any error in this 17 regard would be harmless. See Johnson v. Shalala, 60 F.3d 1428, 1436 n. 9 (9th 18 Cir. 1995) (an error is harmless when the correction of that error would not alter 19 the result); Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005) (an ALJ’s 20 decision will not be reversed for errors that are harmless). 21 B. 22 Listing 5.06 Plaintiff further contends the ALJ erred at step three of the sequential 23 evaluation process by failing to properly assess whether Plaintiff was disabled 24 under Listing 5.06. ECF No. 12 at 13-15. 25 The Listings describe, for each of the major body systems, impairments that 26 are severe enough to prevent an individual from doing any gainful activity, 27 regardless of age, education, or work experience. 20 C.F.R. § 416.925(a). Each 28 Listing specifies the objective medical and other findings needed to satisfy the ORDER GRANTING DEFENDANT’S MOTION . . . - 8 1 criteria of that Listing. A diagnosis alone is insufficient; a medically-determinable 2 impairment must also satisfy all of the criteria of the Listing, 20 C.F.R. § 3 416.925(d), and Plaintiff bears the burden of establishing that an impairment 4 satisfies the requirements of a Listings impairment, Tackett, 180 F.3d at 1098- 5 1099; 20 C.F.R. §§ 404.1520(a)(4)(iii), 404.1520(d). A generalized assertion of 6 functional problems is not enough to establish disability at step three of the 7 sequential evaluation process. Tackett, 180 F.3d at 1100. 8 Plaintiff asserts he equals Listing 5.06. ECF No. 12 at 14. Listing 5.06 9 explains when a claimant with “inflammatory bowel disease” has a condition so 10 serious that it is per se disabling. 20 C.F.R. Part 404, Subpt. P, App. 1, § 5.06. 11 The Listing sets forth a number of specific factors, two of which must be present 12 within the same consecutive six-month period to qualify for a per se disability 13 finding. Among the listed factors are (3) “[c]linically documented tender 14 abdominal mass palpable on physical examination with abdominal pain or 15 cramping that is not completely controlled by prescribed narcotic medication, 16 present on at least two evaluations at least 60 days apart” and (5) an “[i]nvoluntary 17 weight loss of at least 10 percent from baseline . . . present on at least two 18 evaluations at least 60 days apart.” 20 C.F.R. Part 404, Subpt. P, App. 1, § 19 5.06(B). Plaintiff argues the record reflects these two factors were present; 20 therefore, he is disabled under Listing 5.06(B). The Court does not agree. 21 As noted above, a claimant establishes a disability pursuant to Listing 5.06B 22 if at least two of the subsections are satisfied. Even assuming Plaintiff met the 23 requirements of subsection 5,3 Plaintiff has not established that the ALJ erred in 24 finding that none of the other subsections were satisfied. 25 26 3 Plaintiff argues there is evidence in the record showing weight loss of at 27 least 10 percent from baseline. ECF No. 12 at 15. However, Plaintiff fails to 28 adequately establish his baseline weight, demonstrate whether any alleged weight ORDER GRANTING DEFENDANT’S MOTION . . . - 9 1 Listing 5.06B(3) is satisfied by the existence of a clinically documented 2 tender abdominal mass palpable on physical examination. Plaintiff concedes he 3 did not have a palpable abdominal mass. ECF No. 12 at 14 (acknowledging 4 Plaintiff “did not have a palpable abdominal mass under a form of inflammatory 5 bowel disease”). This alone defeats Plaintiff’s position, as Listing 5.06B(3) 6 requires such a condition to be “clinically documented.” Nonetheless, Plaintiff 7 points to evidence in the record of Plaintiff’s abdominal pain for which he self- 8 medicated with marijuana because his narcotic medications were reportedly 9 insufficient to control the pain. Id. Listing 5.06B(3) is not satisfied by mere 10 abdominal pain and cramping; the existence of a clinically documented tender 11 abdominal mass palpable on examination is necessary. The ALJ did not err in 12 finding Listing 5.06B(3) unsatisfied. Based on the foregoing, even assuming the record adequately reflected that 13 14 Plaintiff had a 10 percent weight loss from baseline within a consecutive six-month 15 period, Plaintiff’s condition did not medically equal two stated factors as required 16 by the Listing. For this reason, the Court concludes the ALJ did not err at step 17 three of the sequential evaluation process in finding Plaintiff did not meet Listing 18 5.06B. Tr. 24. 19 C. 20 Medical Opinion Testimony Plaintiff also asserts the ALJ erred by failing to provide legally sufficient 21 reasons for discounting the examining medical opinions of Leslie Schneider, 22 Ph.D., and Thomas B. Curtis, M.D. ECF No. 12 at 6-14. 23 24 In a disability proceeding, the courts distinguish among the opinions of three types of acceptable medical sources: treating physicians, physicians who examine 25 26 loss was voluntary or involuntary, or show whether the weight loss occurred within 27 a consecutive six-month period as required by the subsection. It was not error for 28 the ALJ to determine that listing 5.06B(5) was unsatisfied. ORDER GRANTING DEFENDANT’S MOTION . . . - 10 1 but do not treat the claimant (examining physicians) and those who neither 2 examine nor treat the claimant (nonexamining physicians). Lester v. Chater, 81 3 F.3d 821, 830 (9th Cir. 1996). A treating physician’s opinion carries more weight 4 than an examining physician’s opinion, and an examining physician’s opinion is 5 given more weight than that of a nonexamining physician. Benecke v. Barnhart, 6 379 F.3d 587, 592 (9th Cir. 2004); Lester, 81 F.3d at 830. In weighing the medical 7 opinion evidence of record, the ALJ must make findings setting forth specific, 8 legitimate reasons for doing so that are based on substantial evidence in the record. 9 Magallanes v. Bowen, 881 F.2d 747, 751 (9th Cir. 1989). Moreover, the ALJ is 10 required to set forth the reasoning behind his or her decisions in a way that allows 11 for meaningful review. Brown-Hunter v. Colvin, 806 F.3d 487, 492 (9th Cir. 2015) 12 (finding a clear statement of the agency’s reasoning is necessary because the Court 13 can affirm the ALJ’s decision to deny benefits only on the grounds invoked by the 14 ALJ). “Although the ALJ’s analysis need not be extensive, the ALJ must provide 15 some reasoning in order for us to meaningfully determine whether the ALJ’s 16 conclusions were supported by substantial evidence.” Treichler v. Comm’r of Soc. 17 Sec. Admin., 775 F.3d 1090, 1103 (9th Cir. 2014). 18 1. Leslie Schneider, Ph.D. 19 Dr. Schneider performed a psychological evaluation of Plaintiff on January 20 9, 2014. Tr. 484-490. Dr. Schneider diagnosed a pain disorder associated with 21 psychological and physical factors and indicated a belief that Plaintiff had 22 unpredictable, severe chronic pain issues. Tr. 489. Dr. Schneider encouraged 23 Plaintiff to pursue disability benefits and opined he would qualify. Tr. 489. Dr. 24 Schneider additionally suggested Plaintiff check into Division of Vocational 25 Rehabilitation because “he does want to do some of his own private business 26 things.” Tr. 489. 27 28 The ALJ gave some weight to Dr. Schneider’s report, finding Plaintiff had severe impairments which caused limitations in his ability work and prevented him ORDER GRANTING DEFENDANT’S MOTION . . . - 11 1 from performing the heavy or very heavy work he had done in the past. Tr. 28. 2 The ALJ agreed with Dr. Schneider’s suggestion that Plaintiff contact the Division 3 of Vocational Rehabilitation to explore employment options. Tr. 28. However, 4 the ALJ found Dr. Schneider’s opinion that Plaintiff would qualify for disability 5 benefits was not supported by Plaintiff’s broad range of activities and the objective 6 medical evidence or record. Tr. 28. 7 Although Dr. Schneider suspected Plaintiff would qualify for disability 8 benefits, Tr. 489, the evaluation report fails to identify specific functional 9 limitations to support this opinion. Instead, Dr. Schneider noted Plaintiff’s 10 activities of daily living consisted of such activities as riding horses, riding bulls, 11 fishing, camping, going on drives, dancing and doing things with his children. Tr. 12 488; see Tommasetti v. Astrue, 533 F.3d 1035, 1041 (9th Cir. 2008) (holding that 13 the existence of internal inconsistencies within a physician’s opinion constitutes a 14 specific and legitimate reason for the ALJ to reject that physician’s opinion 15 concerning the claimant’s functional limitations); Johnson, 60 F.3d at 1432-1433 16 (holding that the ALJ may disregard a physician’s opinion when it is internally 17 inconsistent). Furthermore, Plaintiff testified at the August 2015 administrative 18 hearing that he had continued to work jobs in metal fabrication and doing 19 mechanical work on a race truck, Tr. 70-71, and Plaintiff’s disability function 20 report indicates he was able to do all household chores, cleaning, laundry, 21 household repairs, mowing, chopping wood, and feeding and watering of animals, 22 Tr. 276. Tr. 27. As determined by the ALJ, Dr. Schneider’s opinion that Plaintiff 23 would qualify for disability benefits was inconsistent with Plaintiff’s “wide range 24 of daily activities.” 25 Furthermore, the objective medical evidence does not support Dr. 26 Schneider’s opinion that Plaintiff would qualify for disability benefits. As stated 27 by the ALJ, Plaintiff consistently has, at most, moderate tenderness on palpation in 28 the upper right abdominal area, which has been reported as managed with diet, ORDER GRANTING DEFENDANT’S MOTION . . . - 12 1 prescription medications, pancreatic enzyme replacement therapy and medical 2 marijuana. Tr. 27, 55, 66, 371, 544. 3 Finally, it is the role of the ALJ to determine whether a claimant is 4 “disabled” within the meaning of the Social Security Act, and that determination is 5 based on both medical and vocational components. Edlund v. Massanari, 253 F.3d 6 1152, 1156-1157 (9th Cir. 2001). Whether a claimant is “disabled” under the 7 medical and vocational standards of the Social Security Act is a legal 8 determination reserved for the ALJ, not a medical professional. Harman v. Apfel, 9 211 F.3d 1172, 1180 (9th Cir. 2000). The Court finds the ALJ’s analysis with respect to Dr. Schneider’s opinions 10 11 is supported. See Magallanes, 881 F.2d at 753 (“It is not necessary to agree with 12 everything an expert witness says in order to hold that his testimony contains 13 ‘substantial evidence.’” (quoting Russell v. Bowen, 856 F.2d 81, 83 (9th Cir. 14 1988))). The ALJ’s interpretation was based on substantial evidence, and she 15 supported her findings with specific and legitimate reasoning. 16 2. Thomas B. Curtis, M.D. 17 On October 30, 2014, Dr. Curtis examined Plaintiff with respect to his 18 abdominal pain issue. Tr. 477-480. Dr. Curtis diagnosed Plaintiff with chronic 19 abdominal pain and pancreas divisum (a congenital irregularity of the ducts in the 20 pancreas) and reported “[h]e is unable to work.” Tr. 26, 479. 21 The ALJ did not specify the weight accorded to Dr. Curtis’ report. Tr. 26. 22 Nevertheless, the Court notes the conclusory statement in the report that Plaintiff 23 was “unable to work” is not explained by Dr. Curtis,4 nor is it supported by the 24 /// 25 26 4 The ALJ indicated, inconsistent with an opinion that Plaintiff was “unable 27 to work,” Dr. Curtis advised Plaintiff to become more active and to start physical 28 therapy. Tr. 26, 480. ORDER GRANTING DEFENDANT’S MOTION . . . - 13 1 doctor’s objective examination findings.5 Dr. Curtis’ report does not identify any 2 specific functional limitations or examination results which would support an 3 opinion that Plaintiff was not able to work. See Johnson, 60 F.3d at 1432-1433 4 (holding that the ALJ may disregard a physician’s opinion when it is internally 5 inconsistent). Furthermore, as with Dr. Schneider, whether a claimant is “unable 6 to work” or disabled is a legal determination reserved for the ALJ, not a medical 7 professional. Harman, 211 F.3d at 1180. Based on the foregoing, the Court finds the ALJ adequately discussed the 8 9 report of Dr. Curtis in this case. Tr. 26. Any error with respect to the ALJ’s 10 failure to specifically address the weight accorded to Dr. Curtis’ opinions would be 11 harmless. Johnson, 60 F.3d at 1436 n. 9; Burch, 400 F.3d at 679. 12 D. Plaintiff also challenges the ALJ’s finding that Plaintiff was not entirely 13 14 Plaintiff’s Symptom Testimony credible, Tr. 27. ECF No. 12 at 15-20. It is the province of the ALJ to make credibility determinations. Andrews, 15 16 53 F.3d at 1039. However, the ALJ’s findings must be supported by specific 17 cogent reasons. Rashad v. Sullivan, 903 F.2d 1229, 1231 (9th Cir. 1990). Absent 18 affirmative evidence of malingering, the ALJ’s reasons for rejecting the claimant’s 19 testimony must be “specific, clear and convincing.” Lester, 81 F.3d at 834. 20 “General findings are insufficient: rather the ALJ must identify what testimony is 21 not credible and what evidence undermines the claimant’s complaints.” Lester, 81 22 F.3d at 834; Dodrill v. Shalala, 12 F.3d 915, 918 (9th Cir. 1993). 23 /// 24 25 5 Other than the general observation of Plaintiff sitting curled forward with 26 his head near his knees, then later in a flexed posture position and a finding of 27 tenderness in the right lateral belly, all physical examination results were noted by 28 Dr. Curtis as either “not painful” or “normal.” Tr. 479. ORDER GRANTING DEFENDANT’S MOTION . . . - 14 , the ALJ found Plaintiff’s medically determinable impairments Plaintiff’s statements concerning the intensity, persistence and limiting effects of Plaintiff’s evaluating an individual’s credibility, provided it is not the sole factor. claimant’s subjective complaints based solely on a lack of objective medical credibility finding “solely because” the claimant’s symptom testimony “is not substantiated affirmatively by objective medical evidence.”). date, stated that the cause of Plaintiff’s gastrointestinal ’S 1 exhibiting discomfort and a finding of tenderness in the right lateral belly, all 2 physical examination results were noted as either “not painful” or “normal,” Tr. 3 477-480. State agency reviewers, Wayne Hurley, M.D., and Gordon Hale, M.D., 4 dated October 2013 and January 2014 respectively, opined Plaintiff could perform 5 a range of light work6 related tasks. Tr. 27, 90-91, 100-101. The foregoing medical evidence demonstrates Plaintiff did not have greater 6 7 functional limitations as a result of his abdominal issues than as assessed by the 8 ALJ in the RFC determination. The ALJ next indicated Plaintiff’s statements to medical providers suggested 9 10 symptom magnification and non-compliance with medical advice. Tr. 26. An 11 ALJ’s decision to discredit a claimant’s statements may be supported by a 12 claimant’s tendency to exaggerate, Tonapetyan v. Halter, 242 F.3d 1144, 1148 (9th 13 Cir. 2001), as well as a claimant’s noncompliance with medical care, Fair v. 14 Bowen, 885 F.2d 597, 603 (9th Cir. 1989). On August 24, 2013, Plaintiff walked in to the Yakima Regional Medical 15 16 and Cardiac Center and reported he had just undergone an endoscopic retrograde 17 cholangiopancreatography (ERCP) in Seattle, had chronic pancreatitis, and had run 18 out of his pain medications (Dilaudid). Tr. 26, 421. However, as noted by the 19 ALJ, the ERCP showed, at most, mild, early pancreatitis, not chronic pancreatitis, 20 Tr. 295, and the abdominal examination performed on that same date, August 24, 21 2013, was normal, Tr. 422. Tr. 26. The Court agrees that the foregoing medical 22 evidence, coupled with the fact that Plaintiff had again run out of his pain 23 /// 24 25 6 Light level work involves lifting no more than 20 pounds at a time with 26 frequent lifting or carrying of objects weighing up to 10 pounds and requires a 27 good deal of walking or standing, or involves sitting most of the time with some 28 pushing and pulling of arm or leg controls. 20 C.F.R. §§ 404.1567(b), 416.967(b). ORDER GRANTING DEFENDANT’S MOTION . . . - 16 1 medications early,7 suggests Plaintiff was engaged in symptom magnification and 2 not taking his medications as prescribed. The ALJ properly discounted Plaintiff’s 3 credibility on the basis of symptom magnification and medical noncompliance. 4 The ALJ next held that Plaintiff’s activities of daily living showed greater 5 functional abilities than as alleged by Plaintiff. Tr. 27. It is well-established that 6 the nature of daily activities may be considered when evaluating credibility. Fair, 7 885 F.2d at 603. The ALJ noted that, in addition to completing personal care, household 8 9 chores and shopping, Tr. 275-277, Plaintiff occasionally worked for a friend 10 polishing/grinding metal parts as well as restoring antique trucks and/or repairing 11 race cars, Tr. 70-71. Tr. 27. Moreover, as previously indicated, Plaintiff reported 12 to Dr. Schneider that he performed leisure activities such as riding horses, riding 13 bulls, fishing, camping, going on drives, dancing and doing things with his 14 children. Tr. 488. While one does not need to be “utterly incapacitated” to be 15 disabled, Fair, 885 F.2d at 603, it was proper for the ALJ to find Plaintiff’s 16 reported activities were inconsistent with his allegations of disability and thus 17 detracted from his overall credibility. See Molina v. Astrue, 674 F.3d 1104, 1113 18 (9th Cir. 2012) (“Even where [a claimant’s daily] activities suggest some difficulty 19 functioning, they may be grounds for discrediting the claimant’s testimony to the 20 extent that they contradict claims of a totally debilitating impairment.”). 21 /// 22 23 7 The ALJ further stated Dr. Ong commented that while Plaintiff was 24 supposed to be taking Percocet in March 2013, he “ran out” and instead was taking 25 “some [D]ilaudid from his cousin which he states acts faster [and] longer than 26 Percocet,” Tr. 347, and, in July 2013 and April 2014, Plaintiff became angry when 27 Henry Y. Kim, M.D., refused to prescribe narcotics, Tr. 482. Tr. 27. Dr. Kim 28 noted Plaintiff had a history of running out of prescription narcotics. Tr. 27, 482. ORDER GRANTING DEFENDANT’S MOTION . . . - 17 1 While the ALJ additionally mentioned Plaintiff’s marijuana usage, which 2 made his providers reluctant about prescription opioids, Tr. 26, and Plaintiff’s 3 suspended driver’s license as a non-disability barrier to finding a job, Tr. 27, the 4 Court is not convinced these were factors the ALJ specifically weighed in 5 considering Plaintiff’s symptom testimony. Given the ALJ’s other supported 6 reasons for finding Plaintiff less than fully credible, the Court finds any error with 7 respect to these two accounts was harmless. See Carmickle v. Comm’r, Soc. Sec. 8 Admin., 533 F.3d 1160, 1163 (9th Cir. 2008) (upholding adverse credibility finding 9 where ALJ provided four reasons to discredit claimant, two of which were invalid); 10 Batson, 359 F.3d at 1197 (affirming credibility finding where one of several 11 reasons was unsupported by the record); Tommasetti, 533 F.3d at 1038 (An error is 12 harmless when “it is clear from the record that the . . . error was inconsequential to 13 the ultimate nondisability determination.”). 14 The ALJ is responsible for reviewing the evidence and resolving conflicts or 15 ambiguities in testimony. Magallanes, 881 F.2d at 751. It is the role of the trier of 16 fact, not this Court, to resolve conflicts in evidence. Richardson v. Perales, 402 17 U.S. 389, 400 (1971). The Court has a limited role in determining whether the 18 ALJ’s decision is supported by substantial evidence and may not substitute its own 19 judgment for that of the ALJ even if it might justifiably have reached a different 20 result upon de novo review. 42 U.S.C. § 405(g). After reviewing the record, the 21 Court finds that the ALJ provided clear and convincing reasons, which are fully 22 supported by the record, for discounting Plaintiff’s subjective complaints. 23 Accordingly, the ALJ did not err by finding Plaintiff’s symptom allegations were 24 not entirely credible in this case. 25 CONCLUSION 26 Having reviewed the record and the ALJ’s findings, the Court finds the 27 ALJ’s decision is supported by substantial evidence and free of legal error. 28 Accordingly, IT IS ORDERED: ORDER GRANTING DEFENDANT’S MOTION . . . - 18 1 2 1. Defendant’s Motion for Summary Judgment, ECF No. 16, is GRANTED. Plaintiff’s Motion for Summary Judgment, ECF No. 12, is DENIED. 3 2. 4 The District Court Executive is directed to file this Order and provide a copy 5 to counsel for Plaintiff and Defendant. Judgment shall be entered for Defendant 6 and the file shall be CLOSED. 7 DATED November 6, 2018. 8 9 10 _____________________________________ JOHN T. RODGERS UNITED STATES MAGISTRATE JUDGE 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 ORDER GRANTING DEFENDANT’S MOTION . . . - 19

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