Morfin v. Commissioner of Social Security, No. 1:2017cv03205 - Document 21 (E.D. Wash. 2018)

Court Description: ORDER GRANTING 19 Defendant's Motion for Summary Judgment; denying 14 Motion for Summary Judgment. File closed. Signed by Senior Judge Robert H. Whaley. (SK, Case Administrator)

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Morfin v. Commissioner of Social Security Doc. 21 1 FI LED I N THE U.S. DI STRI CT COURT EASTERN DI STRI CT OF WASHI NGTON 2 Oct 16, 2018 SEAN F. MCAVOY, CLERK 3 4 5 6 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF WASHINGTON 7 MARTEL M., 8 Plaintiff, No. 1:17-CV-03205-RHW v. ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT 9 10 11 12 13 COMMISSIONER OF SOCIAL SECURITY, Defendant. Before the Court are the parties’ cross-motions for summary judgment, ECF 14 Nos. 14 & 19. Plaintiff brings this action seeking judicial review, pursuant to 42 15 U.S.C. § 405(g), of the Commissioner’s final decision, which denied his 16 application for Disability Insurance Benefits under Title II and his application for 17 Supplemental Security Income under Title XVI of the Social Security Act, 42 18 U.S.C §§ 401-434, 1381-1383F. After reviewing the administrative record and 19 briefs filed by the parties, the Court is now fully informed. For the reasons set forth 20 ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 1 Dockets.Justia.com 1 below, the Court GRANTS Defendant’s Motion for Summary Judgment and 2 DENIES Plaintiff’s Motion for Summary Judgment. 3 I. Jurisdiction 4 Plaintiff protectively filed his application for Disability Insurance Benefits 5 and his application for Supplemental Security Income on February 24, 2009. AR 6 228-37. His amended alleged onset date of disability is February 13, 2009. AR 7 603. Plaintiff’s applications were initially denied on April 7, 2009, AR 104-05, 8 134-37, and on reconsideration on July 29, 2009, AR 143-44. 9 On February 11, 2011, Administrative Law Judge (“ALJ”) Donna Shipps 10 found Plaintiff disabled. AR 111-17. The Appeals Council reversed and remanded 11 this decision on June 16, 2011. AR 118-25. A new hearing was held on October 12 18, 2011, and an unfavorable decision was issued by the same ALJ on November 13 3, 2011, finding Plaintiff ineligible for disability benefits. AR 16-28, 719-36, 821- 14 70. The Appeals Council denied Plaintiff’s request for review on June 21, 2013. 15 AR 1-3. The Federal District Court for the Eastern District of Washington granted 16 the parties’ stipulated motion for remand and remanded for further proceedings on 17 May 23, 2014. AR 765-66. The Appeals Council remanded the case, ordered a new 18 hearing, and determined that the remaining issues consisted of whether, based on 19 Plaintiff’s residual functional capacity, he had any past relevant work that he could 20 ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 2 1 perform and whether significant numbers of other jobs exist in the national 2 economy he could perform. AR 799-803. 3 A hearing with ALJ Tom L. Morris was scheduled for June 26, 2015, but 4 was cancelled to allow updated evidence to be added to the file. AR 604. On July 5 28, 2016, a hearing with the ALJ was held in Yakima, Washington. AR 653-702. 6 Approximately three months after this hearing, counsel for Plaintiff filed additional 7 medical evidence that was added to the record. AR 604. A subsequent hearing with 8 the ALJ was held on August 24, 2017. AR 703-17. On September 28, 2017, the 9 ALJ issued a decision finding Plaintiff ineligible for disability benefits. AR 603- 10 16. The ALJ also incorporated by reference the portions of the previous ALJ 11 decision that were not disturbed on appeal. Id. Plaintiff did not appeal this decision 12 to the Appeals Council, making the ALJ’s ruling the “final decision” of the 13 Commissioner. 14 Plaintiff timely filed the present action challenging the denial of benefits, on 15 December 12, 2017. ECF No. 3. Accordingly, Plaintiff’s claims are properly 16 before this Court pursuant to 42 U.S.C. § 405(g). 17 18 II. Sequential Evaluation Process The Social Security Act defines disability as the “inability to engage in any 19 substantial gainful activity by reason of any medically determinable physical or 20 mental impairment which can be expected to result in death or which has lasted or ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 3 1 can be expected to last for a continuous period of not less than twelve months.” 42 2 U.S.C. §§ 423(d)(1)(A), 1382c(a)(3)(A). A claimant shall be determined to be 3 under a disability only if the claimant’s impairments are of such severity that the 4 claimant is not only unable to do his previous work, but cannot, considering 5 claimant's age, education, and work experience, engage in any other substantial 6 gainful work that exists in the national economy. 42 U.S.C. § 1382c(a)(3)(B). 7 The Commissioner has established a five-step sequential evaluation process 8 for determining whether a claimant is disabled within the meaning of the Social 9 Security Act. 20 C.F.R. §§ 404.1520(a)(4) & 416.920(a)(4); Lounsburry v. 10 11 Barnhart, 468 F.3d 1111, 1114 (9th Cir. 2006). Step one inquires whether the claimant is presently engaged in “substantial 12 gainful activity.” 20 C.F.R. §§ 404.1520(b) & 416.920(b). Substantial gainful 13 activity is defined as significant physical or mental activities done or usually done 14 for profit. 20 C.F.R. §§ 404.1572 & 416.972. If the claimant is engaged in 15 substantial activity, he or he is not entitled to disability benefits. 20 C.F.R. §§ 16 404.1571 & 416.920(b). If not, the ALJ proceeds to step two. 17 Step two asks whether the claimant has a severe impairment, or combination 18 of impairments, that significantly limits the claimant’s physical or mental ability to 19 do basic work activities. 20 C.F.R. §§ 404.1520(c) & 416.920(c). A severe 20 impairment is one that has lasted or is expected to last for at least twelve months, ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 4 1 and must be proven by objective medical evidence. 20 C.F.R. §§ 404.1508-09 & 2 416.908-09. If the claimant does not have a severe impairment, or combination of 3 impairments, the disability claim is denied, and no further evaluative steps are 4 required. Otherwise, the evaluation proceeds to the third step. 5 Step three involves a determination of whether any of the claimant’s severe 6 impairments “meets or equals” one of the listed impairments acknowledged by the 7 Commissioner to be sufficiently severe as to preclude substantial gainful activity. 8 20 C.F.R. §§ 404.1520(d), 404.1525, 404.1526 & 416.920(d), 416.925, 416.926; 9 20 C.F.R. § 404 Subpt. P. App. 1 (“the Listings”). If the impairment meets or 10 equals one of the listed impairments, the claimant is per se disabled and qualifies 11 for benefits. Id. If the claimant is not per se disabled, the evaluation proceeds to the 12 fourth step. 13 Step four examines whether the claimant’s residual functional capacity 14 enables the claimant to perform past relevant work. 20 C.F.R. §§ 404.1520(e)-(f) & 15 416.920(e)-(f). If the claimant can still perform past relevant work, the claimant is 16 not entitled to disability benefits and the inquiry ends. Id. 17 Step five shifts the burden to the Commissioner to prove that the claimant is 18 able to perform other work in the national economy, taking into account the 19 claimant’s age, education, and work experience. See 20 C.F.R. §§ 404.1512(f), 20 404.1520(g), 404.1560(c) & 416.912(f), 416.920(g), 416.960(c). To meet this ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 5 1 burden, the Commissioner must establish that (1) the claimant is capable of 2 performing other work; and (2) such work exists in “significant numbers in the 3 national economy.” 20 C.F.R. §§ 404.1560(c)(2); 416.960(c)(2); Beltran v. Astrue, 4 676 F.3d 1203, 1206 (9th Cir. 2012). 5 6 III. Standard of Review A district court's review of a final decision of the Commissioner is governed 7 by 42 U.S.C. § 405(g). The scope of review under § 405(g) is limited, and the 8 Commissioner's decision will be disturbed “only if it is not supported by 9 substantial evidence or is based on legal error.” Hill v. Astrue, 698 F.3d 1144, 10 1158-59 (9th Cir. 2012) (citing § 405(g)). Substantial evidence means “more than a 11 mere scintilla but less than a preponderance; it is such relevant evidence as a 12 reasonable mind might accept as adequate to support a conclusion.” Sandgathe v. 13 Chater, 108 F.3d 978, 980 (9th Cir.1997) (quoting Andrews v. Shalala, 53 F.3d 14 1035, 1039 (9th Cir. 1995)) (internal quotation marks omitted). In determining 15 whether the Commissioner’s findings are supported by substantial evidence, “a 16 reviewing court must consider the entire record as a whole and may not affirm 17 simply by isolating a specific quantum of supporting evidence.” Robbins v. Soc. 18 Sec. Admin., 466 F.3d 880, 882 (9th Cir. 2006) (quoting Hammock v. Bowen, 879 19 F.2d 498, 501 (9th Cir. 1989)). 20 ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 6 1 In reviewing a denial of benefits, a district court may not substitute its 2 judgment for that of the ALJ. Matney v. Sullivan, 981 F.2d 1016, 1019 (9th Cir. 3 1992). If the evidence in the record “is susceptible to more than one rational 4 interpretation, [the court] must uphold the ALJ's findings if they are supported by 5 inferences reasonably drawn from the record.” Molina v. Astrue, 674 F.3d 1104, 6 1111 (9th Cir. 2012); see also Thomas v. Barnhart, 278 F.3d 947, 954 (9th Cir. 7 2002) (if the “evidence is susceptible to more than one rational interpretation, one 8 of which supports the ALJ’s decision, the conclusion must be upheld”). Moreover, 9 a district court “may not reverse an ALJ's decision on account of an error that is 10 harmless.” Molina, 674 F.3d at 1111. An error is harmless “where it is 11 inconsequential to the [ALJ's] ultimate nondisability determination.” Id. at 1115. 12 The burden of showing that an error is harmful generally falls upon the party 13 appealing the ALJ's decision. Shinseki v. Sanders, 556 U.S. 396, 409–10 (2009). 14 IV. 15 Statement of Facts The facts of the case are set forth in detail in the transcript of proceedings 16 and only briefly summarized here. Plaintiff was 25 years old at the amended 17 alleged date of onset. AR 228, 235, 613. He has a high school education and he is 18 able to communicate in English. AR 613, 706. Plaintiff has no past relevant work. 19 AR 613. 20 \\ ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 7 1 2 V. The ALJ’s Findings The ALJ determined that Plaintiff was not under a disability within the 3 meaning of the Act from February 13, 2009, through the date of the ALJ’s 4 decision. AR 605, 615-16. 5 At step one, the ALJ found that Plaintiff had not engaged in substantial 6 gainful activity since February 13, 2009 (citing 20 C.F.R. §§ 404.1571 et seq., and 7 416.971 et seq.). AR 607. 8 At step two, the ALJ found Plaintiff had the following severe impairments: 9 chronic left upper extremity radial head dislocation; status post right ankle fracture 10 and gunshot wound; and major joint dysfunction (citing 20 C.F.R. §§ 404.1520(c) 11 and 416.920(c)). AR 607. 12 At step three, the ALJ found that Plaintiff did not have an impairment or 13 combination of impairments that meets or medically equals the severity of one of 14 the listed impairments in 20 C.F.R. § 404, Subpt. P, App. 1. AR 607. 15 At step four, the ALJ found Plaintiff had the residual functional capacity to 16 perform light work, including: he can lift and/or carry 20 pounds occasionally and 17 10 pounds frequently; he can stand and/or walk with normal breaks for a total of 18 about six hours in an eight-hour workday; he can sit with normal breaks for a total 19 of about six hours in and eight-hour workday; he can occasionally push and/or pull 20 with the left upper extremity; he can occasionally climb ramps and stairs; he can ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 8 1 occasionally climb ladders, ropes and scaffolding; he can occasionally crawl; he 2 can occasionally reach overhead with the left upper extremity; he can occasionally 3 handle with the left hand; he should avoid concentrated exposure to hazards such 4 as dangerous machinery and unprotected heights, etc.; and he will be off-task 5 about 10% over the course of and eight-hour workday. 6 The ALJ found that Plaintiff is has no past relevant work. AR 613. 7 At step five, the ALJ found, in light of his age, education, work experience, 8 and residual functional capacity, there are jobs that exist in significant numbers in 9 the national economy that Plaintiff can perform. AR 614-15. These include parking 10 lot attendant, small products assembler, housekeeper, sales attendant, order clerk, 11 microfilm document preparer, and charge account clerk. Id. 12 VI. Issues for Review 13 Plaintiff argues that the Commissioner’s decision is not free of legal error 14 and not supported by substantial evidence. Specifically, he argues the ALJ erred 15 by: (1) improperly discrediting Plaintiff’s subjective complaint testimony; (2) 16 improperly evaluating the medical opinion evidence; and (3) failing to resolve 17 discrepancies between the Dictionary of Occupational Titles and the vocational 18 experts’ testimony at step 5 of the sequential evaluation process. 19 \\ 20 \\ ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 9 1 2 VII. Discussion A. The ALJ Properly Discounted Plaintiff’s Credibility. 3 An ALJ engages in a two-step analysis to determine whether a claimant’s 4 testimony regarding subjective symptoms is credible. Tommasetti v. Astrue, 533 5 F.3d 1035, 1039 (9th Cir. 2008). First, the claimant must produce objective 6 medical evidence of an underlying impairment or impairments that could 7 reasonably be expected to produce some degree of the symptoms alleged. Id. 8 Second, if the claimant meets this threshold, and there is no affirmative evidence 9 suggesting malingering, “the ALJ can reject the claimant’s testimony about the 10 severity of [her] symptoms only by offering specific, clear, and convincing reasons 11 for doing so.” Id. 12 In weighing a claimant's credibility, the ALJ may consider many factors, 13 including, “(1) ordinary techniques of credibility evaluation, such as the claimant's 14 reputation for lying, prior inconsistent statements concerning the symptoms, and 15 other testimony by the claimant that appears less than candid; (2) unexplained or 16 inadequately explained failure to seek treatment or to follow a prescribed course of 17 treatment; and (3) the claimant's daily activities.” Smolen, 80 F.3d at 1284. When 18 evidence reasonably supports either confirming or reversing the ALJ's decision, the 19 Court may not substitute its judgment for that of the ALJ. Tackett v. Apfel, 180 20 F.3d 1094, 1098 (9th Cir.1999). Here, the ALJ found that the medically ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 10 1 determinable impairments could reasonably be expected to produce the symptoms 2 Plaintiff alleges; however, the ALJ determined that Plaintiff’s statements of 3 intensity, persistence, and limiting effects of the symptoms were not entirely 4 credible. AR 609. The ALJ provided multiple clear and convincing reasons for 5 discrediting Plaintiff’s subjective complaint testimony. AR 608-11. 6 The ALJ found that Plaintiff’s allegations of disabling limitations are belied 7 by his actual level of activity. AR 609, 611. Activities inconsistent with the alleged 8 symptoms are proper grounds for questioning the credibility of an individual’s 9 subjective allegations. Molina, 674 F.3d at 1113 (“[e]ven where those activities 10 suggest some difficulty functioning, they may be grounds for discrediting the 11 claimant’s testimony to the extent that they contradict claims of a totally 12 debilitating impairment”); see also Rollins v. Massanari, 261 F.3d 853, 857 (9th 13 Cir. 2001). Despite Plaintiff’s allegations of completely debilitating physical 14 limitations, chronic pain, the inability to use his left arm, difficulty lifting, an 15 inability to walk, and that he must elevate his right leg most of the day, the ALJ 16 found multiple activities inconsistent with these allegations. See AR 609, 611. 17 These inconstant activities include Plaintiff’s ability to ride his bicycle for up to a 18 mile, his ability to walk up to half of a mile before needing to stop and rest, his 19 continuing to lift heavy objects, and his ability to go running in the prison yard. AR 20 609, 611, 1037, 1256, 1866. The ALJ reasonably found that Plaintiff’s actual ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 11 1 activities contradict his allegations of total disability and an inability to use his left 2 arm or walk. The record supports the ALJ’s determination that Plaintiff’s 3 conditions are not as limiting as he alleges. 4 The ALJ also noted multiple inconsistencies with the medical evidence. AR 5 609-11. This determination is supported by substantial evidence in the record. An 6 ALJ may discount a claimant’s subjective symptom testimony that is contradicted 7 by medical evidence. Carmickle v. Comm’r of Soc. Sec. Admin., 533 F.3d 1155, 8 1161 (9th Cir. 2008). Inconsistency between a claimant’s allegations and relevant 9 medical evidence is a legally sufficient reason to reject a claimant’s subjective 10 testimony. Tonapetyan v. Halter, 242 F.3d 1144, 1148 (9th Cir. 2001). Plaintiff 11 alleges completely debilitating pain and physical limitations; however, The ALJ 12 noted that there are some negative findings in the record, but that the record 13 generally shows normal and benign medical results such as Plaintiff has a normal 14 range of motion in his extremities, no issues with his dominant hand or arm, 15 Plaintiff consistently presented for medical treatment in no apparent or acute 16 distress, Plaintiff had intact sensation and only moderately reduced motor strength 17 in his ankle, and a normal gait. AR 609, 611, 1092, 1100, 1109, 1165, 1170, 1176, 18 1186, 1674, 2046. 19 20 The ALJ noted several inconsistent statements that undermined Plaintiff’s credibility. AR 609-11. An ALJ may rely on ordinary techniques of credibility ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 12 1 evaluation such as a witness’s prior inconsistent statements. Tommasetti, 533 F.3d 2 at 1039. As stated above, the ALJ noted that Plaintiff alleges an inability to walk 3 and that he must elevate his leg most of the day, but also states he rides his bicycle 4 around town for up to a mile, he walks half a mile without needed to stop and rest, 5 and he was able to play and go running in the prison yard. AR 609, 611, 1037, 6 1256, 1866. Additionally, the ALJ noted that Plaintiff made inconsistent statements 7 about the cause of his left arm impairment as he told medical professionals that it 8 occurred as a result of child abuse, AR 1090, 1286, but told an investigator that “he 9 hurt it on the job” seven years prior, AR 611, 1658. 10 When the ALJ presents a reasonable interpretation that is supported by the 11 evidence, it is not the role of the courts to second-guess it. Rollins, 261 F.3d at 857. 12 The Court “must uphold the ALJ's findings if they are supported by inferences 13 reasonably drawn from the record.” Molina, 674 F.3d 1104, 1111; see also 14 Thomas, 278 F.3d 947, 954 (if the “evidence is susceptible to more than one 15 rational interpretation, one of which supports the ALJ’s decision, the conclusion 16 must be upheld”). The Court does not find the ALJ erred when discounting 17 Plaintiff’s credibility because the ALJ properly provided multiple clear and 18 convincing reasons for doing so. 19 \\ 20 \\ ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 13 1 2 3 B. The ALJ Properly Weighed the Medical Opinion Evidence. a. Legal Standard. The Ninth Circuit has distinguished between three classes of medical 4 providers in defining the weight to be given to their opinions: (1) treating 5 providers, those who actually treat the claimant; (2) examining providers, those 6 who examine but do not treat the claimant; and (3) non-examining providers, those 7 who neither treat nor examine the claimant. Lester v. Chater, 81 F.3d 821, 830 (9th 8 Cir. 1996) (as amended). 9 A treating provider’s opinion is given the most weight, followed by an 10 examining provider, and finally a non-examining provider. Id. at 830-31. In the 11 absence of a contrary opinion, a treating or examining provider’s opinion may not 12 be rejected unless “clear and convincing” reasons are provided. Id. at 830. If a 13 treating or examining provider’s opinion is contradicted, it may only be discounted 14 for “specific and legitimate reasons that are supported by substantial evidence in 15 the record.” Id. at 830-31. 16 The ALJ may meet the specific and legitimate standard by “setting out a 17 detailed and thorough summary of the facts and conflicting clinical evidence, 18 stating his interpretation thereof, and making findings.” Magallanes v. Bowen, 881 19 F.2d 747, 751 (9th Cir. 1989) (internal citation omitted). When rejecting a treating 20 provider’s opinion on a psychological impairment, the ALJ must offer more than ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 14 1 his or her own conclusions and explain why he or she, as opposed to the provider, 2 is correct. Embrey v. Bowen, 849 F.2d 418, 421-22 (9th Cir. 1988). 3 4 b. Jeffery R. Merrill, M.D. Dr. Merrill is a treating doctor who filled out a physical functional 5 evaluation form in March 2013. AR 1085-89. Dr. Merrill opined that Plaintiff had 6 marked physical limitations stemming from chronic radial head subluxation and 7 that Plaintiff is limited to light work. AR 1086-87. 8 9 The ALJ assigned very little weight to Dr. Merrill’s opinion for multiple valid reasons. AR 612. First, the ALJ noted that the opinion is inconsistent with the 10 medical record. Id. Despite Dr. Merrill’s opinion of marked physical limitations 11 and mild depression, the ALJ pointed to the unremarkable examinations, including 12 findings that Plaintiff had a normal range of motion in his extremities, Plaintiff 13 consistently presented for medical treatment in no apparent or acute distress 14 despite complaints of chronic pain, Plaintiff had only moderately reduced motor 15 strength in his ankle, and a normal gait, and a plethora of mental health history 16 inconsistent with the opinion of mild depression. AR 609, 611, 612, 1092, 1100, 17 1109, 1165, 1170, 1176, 1186, 1674, 2046. An ALJ may reject a doctor’s opinion 18 when it is inconsistent with other evidence in the record. See Morgan v. Comm’r of 19 the Soc. Sec. Admin., 169 F.3d 595, 600 (9th Cir. 1999). 20 ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 15 1 The ALJ also found that Dr. Merrill’s opinion is internally inconsistent. AR 2 612. A discrepancy between a doctor’s recorded observations and opinions is a 3 clear and convincing reason for not relying on the doctor’s opinion. Bayliss v. 4 Barnhart, 427 F.3d 1211, 1216 (9th Cir. 2005). Dr. Merrill opines that Plaintiff has 5 marked physical limitations but also opines that Plaintiff can perform light work as 6 the ALJ has also determined. AR 1086-87. Despite Dr. Merrill’s opinion of marked 7 physical limitations, Dr. Merrill did not even provide a brief narrative to support 8 his opinion; rather, Dr. Merrill left many spaces blank, attached a blank range of 9 motion chart, and attached medical records without explanation that generally 10 demonstrate claims of pain and normal to mild examination findings. AR 612, 11 1085-1160. 12 Additionally, the ALJ assigned very little weight to Dr. Merrill’s opinion 13 because it consisted of an incomplete check-box form, with no explanation for the 14 opined limitations, no narrative statements at all, little information regarding what 15 Plaintiff can actually do, and blank sections of the form and blank charts. AR 612, 16 1085-89. “[A]n ALJ need not accept the opinion of a doctor if that opinion is brief, 17 conclusory, and inadequately supported by clinical findings.” Bayliss, 427 F.3d at 18 1216. Furthermore, check-box form statements may be given less weight when 19 they are conclusory in nature and lack substantive medical findings to support 20 them or they are inconsistent with the underlying medical records. Batson v. ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 16 1 Comm’r of Soc. Sec. Admin., 359 F.3d 1190, 1195 (9th Cir. 2004); Garrison v. 2 Colvin, 759 F.3d 995, 1014 (9th Cir. 2014). 3 When the ALJ presents a reasonable interpretation that is supported by the 4 evidence, it is not the role of the courts to second-guess it. Rollins, 261 F.3d 853, 5 857. The Court “must uphold the ALJ's findings if they are supported by inferences 6 reasonably drawn from the record.” Molina, 674 F.3d 1104, 1111; see also 7 Thomas, 278 F.3d 947, 954 (if the “evidence is susceptible to more than one 8 rational interpretation, one of which supports the ALJ’s decision, the conclusion 9 must be upheld”). Thus, the Court finds the ALJ did not err in his consideration of 10 11 12 Dr. Merrill’s opinion. c. Steven Foster, M.D. Dr. Foster is an examining doctor who completed a physical functional 13 evaluation form in December 2014. AR 1375-79. Dr. Foster opined that Plaintiff 14 was limited to sedentary work due to severe chronic left elbow pain. AR 1376-77. 15 The ALJ assigned very little weight to Dr. Foster’s opinion for multiple 16 valid reasons. AR 613. First, the ALJ noted that Dr. Foster’s opinion of severely 17 limiting elbow pain is inconsistent with the medical record demonstrating that 18 Plaintiff consistently presented for medical treatment in no apparent or acute 19 distress and Plaintiff has a normal range of motion and strength in his extremities. 20 See, e.g. AR 09, 611, 1092, 1100, 1109, 1165, 1170, 1176, 1186, 1674, 2046. An ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 17 1 ALJ may reject a doctor’s opinion when it is inconsistent with other evidence in 2 the record. See Morgan, 169 F.3d at 600. Next, the ALJ noted that Dr. Foster’s 3 opinion is inconsistent with Plaintiff’s actual functional ability. AR 613. While Dr. 4 Foster opines that Plaintiff cannot lift more than ten pounds and can only walk or 5 stand for brief periods, the record demonstrates that Plaintiff sought treatment 6 because he was lifting a heavy object, and Plaintiff has the ability to ride his 7 bicycle for up to a mile, walk up to half a mile, and go running. AR 613, 609, 611, 8 1037, 1256, 1866. An ALJ may reject a doctor’s opinion when it is inconsistent 9 with other evidence in the record. See Morgan, 169 F.3d at 600. And, an ALJ may 10 properly reject an opinion that provides restrictions that appear inconsistent with 11 the claimant’s level of activity. Rollins, 261 F.3d at 856. Lastly, the ALJ found Dr. 12 Foster’s opinion to be internally inconsistent, and the ALJ noted that the range of 13 motion charts that Dr. Foster attached to his opinion did not support the significant 14 functional limitations he assessed. AR 613. Despite Dr. Foster’s opinion of 15 extreme limitations, the attached range of motion examination charts found 16 Plaintiff had a normal range of motion in all but two categories, only one of which 17 was significantly less than normal. AR 1378-79. A discrepancy between a doctor’s 18 recorded observations and opinions is a clear and convincing reason for not relying 19 on the doctor’s opinion. Bayliss, 427 F.3d at 1216. 20 ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 18 1 When the ALJ presents a reasonable interpretation that is supported by the 2 evidence, it is not the role of the courts to second-guess it. Rollins, 261 F.3d 853, 3 857. The Court “must uphold the ALJ's findings if they are supported by inferences 4 reasonably drawn from the record.” Molina, 674 F.3d 1104, 1111; see also 5 Thomas, 278 F.3d 947, 954 (if the “evidence is susceptible to more than one 6 rational interpretation, one of which supports the ALJ’s decision, the conclusion 7 must be upheld”). Thus, the Court finds the ALJ did not err in his consideration of 8 Dr. Foster’s opinion. 9 10 d. J. Dalton, M.D., David Deutsch, M.D., Myrna Palasi, M.D. Doctors Dalton, Deutsch, and Palasi are reviewing doctors who completed 11 one page medical evidence review forms on December 2014, April 2013, and 12 January 2014 respectively. 1316, 1354, 1373. Each reviewing doctor briefly opines 13 that Plaintiff is disabled due to chronic left elbow pain. Id. 14 The ALJ did not completely reject these brief opinions but did assign only 15 very little weight to each of them. AR 612-13. The ALJ provided multiple valid 16 reasons for similarly rejecting these three opinions. Id. First, the ALJ noted that 17 each of these opinions consist of merely one page check-box forms with no 18 explanation for the remarkably brief opinions provided. “[A]n ALJ need not accept 19 the opinion of a doctor if that opinion is brief, conclusory, and inadequately 20 supported by clinical findings.” Bayliss, 427 F.3d at 1216. Furthermore, check-box ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 19 1 form statements may be given less weight when they are conclusory in nature and 2 lack substantive medical findings to support them or they are inconsistent with the 3 underlying medical records. Batson, 359 F.3d at 1195; Garrison, 759 F.3d at 1014. 4 Next, the ALJ found that the opinions of complete disability due only to 5 chronic left elbow pain are inconsistent with the medical record demonstrating that 6 Plaintiff consistently presented for medical treatment in no apparent or acute 7 distress and that Plaintiff retains a greater residual functional capacity based on the 8 medical record presenting generally normal or mild and benign examination 9 results. AR 609, 611, 612-13, 1092-93, 1100, 1109, 1124, 1165, 1170, 1176, 1186, 10 1191, 1200-01, 1205, 1209, 1216, 1233, 1235, 1244, 1245, 1314. ALJ may reject a 11 doctor’s opinion when it is inconsistent with other evidence in the record. See 12 Morgan, 169 F.3d at 600. 13 When the ALJ presents a reasonable interpretation that is supported by the 14 evidence, it is not the role of the courts to second-guess it. Rollins, 261 F.3d 853, 15 857. The Court “must uphold the ALJ's findings if they are supported by inferences 16 reasonably drawn from the record.” Molina, 674 F.3d 1104, 1111; see also 17 Thomas, 278 F.3d 947, 954 (if the “evidence is susceptible to more than one 18 rational interpretation, one of which supports the ALJ’s decision, the conclusion 19 must be upheld”). Thus, the Court finds the ALJ did not err in his consideration of 20 the opinions of Drs. Dalton, Deutsch, and Palasi. ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 20 1 2 C. The ALJ Met his Burden at Step Five. Step five shifts the burden to the Commissioner to prove that the claimant is 3 able to perform other work available in significant numbers in the national 4 economy, taking into account the claimant’s age, education, and work experience. 5 See 20 C.F.R. §§ 404.1512(f), 404.1520(g), 404.1560(c) & 416.912(f), 416.920(g), 6 416.960(c). To meet this burden, the Commissioner must establish that (1) the 7 claimant is capable of performing other work; and (2) such work exists in 8 “significant numbers in the national economy.” 20 C.F.R. §§ 404.1560(c)(2); 9 416.960(c)(2); Beltran, 676 F.3d at 1206. If the limitations are non-exertional and 10 not covered by the grids, a vocational expert is required to identify jobs that match 11 the abilities of the claimant, given [his] limitations.” Johnson v. Shalala, 60 F.3d 12 1428, 1432 (9th Cir. 1995). 13 Plaintiff contends the ALJ erred at step five of the sequential evaluation 14 process by failing to identify jobs available in significant numbers that Plaintiff can 15 perform despite his functional limitations. Specifically, Plaintiff states that the ALJ 16 erred by failing to resolve conflicts between the vocational expert testimony and 17 the Dictionary of Occupational Titles. 18 19 In this case, there were two separate hearings that each included the testimony of a vocational expert opining to the jobs available in the national 20 ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 21 1 economy that could be performed despite the limitations in Plaintiff’s assigned 2 residual functional capacity. 3 At the first hearing the ALJ presented the vocational expert, Mr. Duchesne, 4 with three hypotheticals with limitations similar to Plaintiff’s assessed residual 5 functional capacity. AR 653, 696-701. The first hypothetical included most of the 6 limitations in Plaintiff’s residual functional capacity but did not include imitations 7 to handling. AR 696-97. Mr. Duchesne identified four jobs that exist in the 8 national economy that could be performed. Id. The ALJ specifically asked if Mr. 9 Duchesne’s opinion deviated from the Dictionary of Occupational Titles. AR 696. 10 Mr. Duchesne testified that the Dictionary of Occupational Titles does not 11 distinguish between overhead reaching and different types of reaching, so his 12 opinion regarding the identified jobs and the necessity to reach overhead was based 13 on his knowledge of how these jobs are typically performed. AR 696-97. 14 Plaintiff presents no contention with this first hypothetical; however, the 15 next two hypotheticals included a limitation to handling with the left hand, more 16 specifically hypothetical three included a limitation of only occasional handling 17 with the left hand, and the Dictionary of Occupational Titles provides that the jobs 18 identified by the vocational expert require frequent handling rather than only 19 occasional handling. AR 698-99. Due to the conflict between the Dictionary of 20 Occupational Titles and the vocational expert testimony, the ALJ is required to ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 22 1 reconcile the inconsistency. Zavalin v. Colvin, 778 F.3d 842, 846 (9th Cir. 2015). 2 Defendant argues that the ALJ adequately reconciled the inconsistency when 3 previously asking the vocational expert if his opinion deviated from the Dictionary 4 of Occupational Titles and Mr. Duchesne’s response that there was a deviation and 5 his testimony in that regard was based on his knowledge and experience. 6 However, Mr. Duchesne limited his testimony regarding deviation from the 7 Dictionary of Occupational Titles only to reaching overhead. AR 696-97. While it 8 is certainly possible that Mr. Duchesne’s subsequent deviation regarding handling 9 is also based on his knowledge and experience, this is not in the record. Thus, the 10 Court finds that the ALJ erred by failing to resolve this conflict between the 11 Dictionary of Occupational Titles and Mr. Duchesne’s vocational expert testimony. 12 Nevertheless, this error is harmless, because the ALJ held a subsequent 13 hearing due to the receipt of new medical evidence that included the testimony of a 14 separate vocational expert. 15 At a supplemental hearing on August 24, 2017, the ALJ presented a 16 hypothetical to the vocational expert, Mr. Polsin, which matched and even 17 exceeded the limitations in Plaintiff’s assessed residual functional capacity. AR 18 705-717. When asked by the ALJ, Mr. Polsin testified that any deviation between 19 his testimony and the Dictionary of Occupational Titles was based on his 20 education, training, and experience. AR 706. Mr. Polsin then identified three ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 23 1 separate jobs that existed in significant numbers in the national economy that 2 Plaintiff could perform despite his limitations. AR 705-717. While the jobs 3 identified by the previous vocational expert were all at a light exertional level, 4 these three additional jobs are performed at only a lower sedentary level and Mr. 5 Polsin testified that these jobs could be performed even if the employee was off- 6 task 15% of the workday. AR 713-16. 7 Plaintiff argues that the ALJ erred by inquiring into any deviation between 8 the expert testimony and the Dictionary of Occupational Titles at the beginning of 9 the vocational expert’s testimony rather than at the end. There is no requirement 10 that the ALJ reconcile deviations at a specific time, only that there be a valid 11 reason for the deviation. The vocational expert testimony provided substantial 12 evidence to support the ALJ’s finding. See Bayliss, 427 F.3d at 1218 (“An ALJ 13 may take administrative notice of any reliable job information, including 14 information provided by a VE.”); Johnson v. Shalala, 60 F.3d 1428, 1435 (9th 15 Cir.1995). The ALJ’s reliance on the vocational expert’s testimony was warranted. 16 See Bayliss, 427 F.3d at 1218. The ALJ properly framed the hypothetical questions 17 addressed to the vocational expert, and the vocational expert - based on his 18 education, knowledge, and experience - properly identified jobs available in 19 significant numbers in the national economy that match the abilities of Plaintiff, 20 given his limitations. The ALJ reasonably relied on the sworn testimony of the ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 24 1 vocational expert. Thus, the Court finds the ALJ met his step five burden by 2 identifying jobs that exist in significant numbers in the national economy that 3 Plaintiff can perform despite his limitations. 4 VIII. Conclusion 5 Having reviewed the record and the ALJ’s findings, the Court finds the 6 ALJ’s decision is supported by substantial evidence and is free from legal error. 7 Accordingly, IT IS ORDERED: 8 1. Plaintiff’s Motion for Summary Judgment, ECF No. 14, is DENIED. 9 2. Defendant’s Motion for Summary Judgment, ECF No. 19, is 10 GRANTED. 11 3. Judgment shall be entered in favor of Defendant and the file shall be 12 CLOSED. 13 IT IS SO ORDERED. The District Court Executive is directed to enter this Order, 14 forward copies to counsel and close the file. 15 16 17 DATED this 16th day of October, 2018. s/Robert H. Whaley ROBERT H. WHALEY Senior United States District Judge 18 19 20 ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 25

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