Merry v. Commissioner of Social Security, No. 1:2018cv03091 - Document 19 (E.D. Wash. 2019)
Court Description: ORDER Denying 16 Plaintiff's Motion for Summary Judgment and Granting 17 Defendant's Motion for Summary Judgment. Signed by Magistrate Judge Mary K. Dimke. (MO, Courtroom Deputy)
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Merry v. Commissioner of Social Security Doc. 19 1 2 FI LED I N THE U.S. DI STRI CT COURT EASTERN DI STRI CT OF WASHI NGTON 3 Apr 29, 2019 4 SEAN F. MCAVOY, CLERK 5 UNITED STATES DISTRICT COURT 6 EASTERN DISTRICT OF WASHINGTON 7 JOSEPH M.,1 8 Plaintiff, vs. 9 COMMISSIONER OF SOCIAL 10 SECURITY, Defendant. 11 No. 1:18-cv-03091-MKD ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ECF Nos. 16, 17 12 13 Before the Court are the parties’ cross-motions for summary judgment. ECF 14 Nos. 16, 17. The parties consented to proceed before a magistrate judge. ECF No. 15 6. The Court, having reviewed the administrative record and the parties’ briefing, 16 is fully informed. For the reasons discussed below, the Court denies Plaintiff’s 17 Motion, ECF No. 16, and grants Defendant’s Motion, ECF No. 17. 18 19 1 To protect the privacy of plaintiffs in social security cases, the undersigned 20 identifies them only by their first names and the initial of their last names. 2 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 2 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). Second, the claimant’s impairment must be 14 “of such severity that he is not only unable to do his previous work[,] but cannot, 15 considering his age, education, and work experience, engage in any other kind of 16 substantial gainful work which exists in the national economy.” 42 U.S.C. § 17 423(d)(2)(A). 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). At step one, the Commissioner considers the claimant’s 2 ORDER - 3 1 work activity. 20 C.F.R. § 404.1520(a)(4)(i). If the claimant is engaged in 2 “substantial gainful activity,” the Commissioner must find that the claimant is not 3 disabled. 20 C.F.R. § 404.1520(b). 4 If the claimant is not engaged in substantial gainful activity, the analysis 5 proceeds to step two. At this step, the Commissioner considers the severity of the 6 claimant’s impairment. 20 C.F.R. § 404.1520(a)(4)(ii). If the claimant suffers 7 from “any impairment or combination of impairments which significantly limits 8 [his or her] physical or mental ability to do basic work activities,” the analysis 9 proceeds to step three. 20 C.F.R. § 404.1520(c). If the claimant’s impairment 10 does not satisfy this severity threshold, however, the Commissioner must find that 11 the claimant is not disabled. 20 C.F.R. § 404.1520(c). 12 At step three, the Commissioner compares the claimant’s impairment to 13 severe impairments recognized by the Commissioner to be so severe as to preclude 14 a person from engaging in substantial gainful activity. 20 C.F.R. § 15 404.1520(a)(4)(iii). If the impairment is as severe or more severe than one of the 16 enumerated impairments, the Commissioner must find the claimant disabled and 17 award benefits. 20 C.F.R. § 404.1520(d). 18 If the severity of the claimant’s impairment does not meet or exceed the 19 severity of the enumerated impairments, the Commissioner must pause to assess 20 the claimant’s “residual functional capacity.” Residual functional capacity (RFC), 2 ORDER - 4 1 defined generally as the claimant’s ability to perform physical and mental work 2 activities on a sustained basis despite his or her limitations, 20 C.F.R. § 3 404.1545(a)(1), is relevant to both the fourth and fifth steps of the analysis. 4 At step four, the Commissioner considers whether, in view of the claimant’s 5 RFC, the claimant is capable of performing work that he or she has performed in 6 the past (past relevant work). 20 C.F.R. § 404.1520(a)(4)(iv). If the claimant is 7 capable of performing past relevant work, the Commissioner must find that the 8 claimant is not disabled. 20 C.F.R. § 404.1520(f). If the claimant is incapable of 9 performing such work, the analysis proceeds to step five. 10 At step five, the Commissioner considers whether, in view of the claimant’s 11 RFC, the claimant is capable of performing other work in the national economy. 12 20 C.F.R. § 404.1520(a)(4)(v). In making this determination, the Commissioner 13 must also consider vocational factors such as the claimant’s age, education and 14 past work experience. 20 C.F.R. § 404.1520(a)(4)(v). If the claimant is capable of 15 adjusting to other work, the Commissioner must find that the claimant is not 16 disabled. 20 C.F.R. § 404.1520(g)(1). If the claimant is not capable of adjusting to 17 other work, the analysis concludes with a finding that the claimant is disabled and 18 is therefore entitled to benefits. 20 C.F.R. § 404.1520(g)(1). 19 The claimant bears the burden of proof at steps one through four above. 20 Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999). If the analysis proceeds to 2 ORDER - 5 1 step five, the burden shifts to the Commissioner to establish that (1) the claimant is 2 capable of performing other work; and (2) such work “exists in significant 3 numbers in the national economy.” 20 C.F.R. § 404.1560(c)(2); Beltran v. Astrue, 4 700 F.3d 386, 389 (9th Cir. 2012). 5 ALJ’S FINDINGS 6 On November 5, 2014, Plaintiff applied for Title II disability insurance 7 benefits, alleging a disability onset date of January 12, 2014. Tr. 167-73. The 8 application was denied initially, Tr. 102-08, and on reconsideration, Tr. 110-15. 9 Plaintiff appeared at a hearing before an administrative law judge (ALJ) on March 10 29, 2017. Tr. 42-68. On May 19, 2017, the ALJ denied Plaintiff’s claim. Tr. 1211 38. 12 At step one, the ALJ found that Plaintiff had not engaged in substantial 13 gainful activity during the period from his alleged onset date of January 12, 2014, 14 through his date last insured of September 30, 2015. Tr. 17. At step two, the ALJ 15 found Plaintiff had the following severe impairments: spinal impairment, obesity, 16 and affective disorder. Tr. 17. At step three, the ALJ found Plaintiff did not have 17 an impairment or combination of impairments that meets or medically equals the 18 severity of a listed impairment. Tr. 17. The ALJ then concluded that Plaintiff had 19 the RFC to perform sedentary work with the following limitations: 20 2 [Plaintiff] had the residual functional capacity to lift and carry ten pounds frequently and twenty pounds occasionally. He could stand and/or walk for ORDER - 6 1 2 3 4 5 two hours in an eight-hour workday. He could sit for six hours in the same period. He could occasionally stoop, kneel, crouch, crawl, and climb ramps and stairs. He could not climb ladders, rope, and scaffolding. He needed to avoid concentrated exposure to hazards. He could understand, remember, and carry out simple instructions. He could make judgments commensurate with the functions of unskilled work (i.e., work which needs little or no judgment to do simple duties that can be learned in thirty days or less). He could respond appropriately to supervision and coworkers. He could tolerate occasional changes in the work environment. 6 Tr. 21, 31. 7 At step four, the ALJ found Plaintiff was unable to perform any past relevant 8 work. Tr. 30. At step five, the ALJ found that, considering Plaintiff’s age, 9 education, work experience, RFC, and testimony from a vocational expert, there 10 were other jobs that existed in significant numbers in the national economy that 11 Plaintiff could perform, such as document preparer, final assembler, and escort 12 vehicle driver. Tr. 30-31. The ALJ concluded Plaintiff was not under a disability, 13 as defined in the Social Security Act, from January 12, 2014, the alleged onset 14 date, through September 30, 2015, the date last insured. Tr. 31. 15 On April 23, 2018, the Appeals Council denied review, Tr. 1-6, making the 16 ALJ’s decision the Commissioner’s final decision for purposes of judicial review. 17 See 42 U.S.C. § 1383(c)(3). 18 19 20 2 ORDER - 7 1 2 ISSUES Plaintiff seeks judicial review of the Commissioner’s final decision denying 3 him disability income benefits under Title II of the Social Security Act. Plaintiff 4 raises the following issues for this Court’s review: 5 1. Whether the ALJ properly weighed Plaintiff’s symptom claims; 6 2. Whether the ALJ properly weighed the medical opinion evidence; and 7 3. Whether the ALJ properly determined that Plaintiff could perform other 8 work in the national economy at step five. 9 ECF No. 16 at 4. 10 11 12 DISCUSSION A. Plaintiff’s Symptom Claims Plaintiff faults the ALJ for failing to rely on reasons that were clear and 13 convincing in discrediting his subjective symptom claims. ECF No. 16 at 7-10. 14 An ALJ engages in a two-step analysis to determine whether to discount a 15 claimant’s testimony regarding subjective symptoms. SSR 16-3p, 2016 WL 16 1119029, at *2. “First, the ALJ must determine whether there is objective medical 17 evidence of an underlying impairment which could reasonably be expected to 18 produce the pain or other symptoms alleged.” Molina, 674 F.3d at 1112 (quotation 19 marks omitted). “The claimant is not required to show that [the claimant’s] 20 impairment could reasonably be expected to cause the severity of the symptom [the 2 ORDER - 8 1 claimant] has alleged; [the claimant] need only show that it could reasonably have 2 caused some degree of the symptom.” Vasquez v. Astrue, 572 F.3d 586, 591 (9th 3 Cir. 2009). 4 Second, “[i]f the claimant meets the first test and there is no evidence of 5 malingering, the ALJ can only reject the claimant’s testimony about the severity of 6 the symptoms if [the ALJ] gives ‘specific, clear and convincing reasons’ for the 7 rejection.” Ghanim v. Colvin, 763 F.3d 1154, 1163 (9th Cir. 2014) (citations 8 omitted). General findings are insufficient; rather, the ALJ must identify what 9 symptom claims are being discounted and what evidence undermines these claims. 10 Id. (quoting Lester v. Chater, 81 F.3d 821, 834 (9th Cir. 1995)); Thomas v. 11 Barnhart, 278 F.3d 947, 958 (9th Cir. 2002) (requiring the ALJ to sufficiently 12 explain why it discounted claimant’s symptom claims). “The clear and convincing 13 [evidence] standard is the most demanding required in Social Security cases.” 14 Garrison v. Colvin, 759 F.3d 995, 1015 (9th Cir. 2014) (quoting Moore v. Comm’r 15 of Soc. Sec. Admin., 278 F.3d 920, 924 (9th Cir. 2002)). 16 Factors to be considered in evaluating the intensity, persistence, and limiting 17 effects of an individual’s symptoms include: 1) daily activities; 2) the location, 18 duration, frequency, and intensity of pain or other symptoms; 3) factors that 19 precipitate and aggravate the symptoms; 4) the type, dosage, effectiveness, and 20 side effects of any medication an individual takes or has taken to alleviate pain or 2 ORDER - 9 1 other symptoms; 5) treatment, other than medication, an individual receives or has 2 received for relief of pain or other symptoms; 6) any measures other than treatment 3 an individual uses or has used to relieve pain or other symptoms; and 7) any other 4 factors concerning an individual’s functional limitations and restrictions due to 5 pain or other symptoms. SSR 16-3p, 2016 WL 1119029, at *7; 20 C.F.R. § 6 404.1529 (2011). The ALJ is instructed to “consider all of the evidence in an 7 individual’s record,” “to determine how symptoms limit ability to perform work8 related activities.” SSR 16-3p, 2016 WL 1119029, at *2. 9 The ALJ found that Plaintiff’s medically determinable impairments could 10 reasonably be expected to cause the alleged symptoms, but that Plaintiff’s 11 statements concerning the intensity, persistence, and limiting effects of his 12 symptoms were not entirely consistent with the evidence. Tr. 22. 13 1. Ability to Work with Impairments 14 The ALJ found Plaintiff’s allegations were inconsistent with his past ability 15 to work with his impairments. Tr. 22. Working with an impairment supports a 16 conclusion that the impairment is not disabling. See Drouin v. Sullivan, 966 F.2d 17 1255, 1258 (9th Cir. 1992); see also Bray v. Comm’r of Soc. Sec. Admin., 554 F.3d 18 1219, 1227 (9th Cir. 2009) (seeking work despite impairment supports inference 19 that impairment is not disabling). The ALJ noted that Plaintiff reported his spinal 20 impairment resulted from an injury that occurred in approximately September 2 ORDER - 10 1 2013. Tr. 22; see Tr. 271 (Plaintiff reported that he was lifting heavy boxes in a 2 back room at Walmart on September 28, 2013 and afterwards he began getting 3 progressive low back pain, severe burning, aching pain, and numbness along the 4 left lower extremity); Tr. 326 (Plaintiff reported that he was involved in a work 5 accident at Walmart on September 26, 2013). The ALJ indicated that Plaintiff 6 reported a history of depression since his time in the military in 2011 and 2012, 7 and treatment records from April 2012 refer to Plaintiff having previously been on 8 antidepressants. Tr. 22 (citing Tr. 270, 470). The ALJ noted that Plaintiff reported 9 he experienced back pain that prohibited him from working by limiting his ability 10 to sit, stand, or bend, and required him to rest in bed most of the time. Tr. 22, 4911 51. However, the ALJ observed that Plaintiff was able to work following his back 12 injury and despite his depression. Tr. 22; see Tr. 197-98 (Plaintiff’s work history 13 report indicated that Plaintiff’s position at Walmart between August 2013 and 14 January 2014 required him to stand and/or walk eight hours per day and frequently 15 lift 30 to 40 pounds); Tr. 48 (Plaintiff testified that he worked for Walmart in 16 Texas until early 2014). The ALJ reasonably concluded that Plaintiff’s ability to 17 work with both his spinal impairment from a 2013 injury and his depression from 18 2011 or 2012, indicated that Plaintiff’s impairments were not as severe as he 19 alleged. Tr. 22. 20 2 ORDER - 11 1 2. Stopped Work for Reasons Unrelated to Impairments 2 The ALJ found Plaintiff’s symptom complaints were less reliable because he 3 stopped working for reasons other than his impairments. Tr. 22. An ALJ may 4 consider that a claimant stopped working for reasons unrelated to the allegedly 5 disabling condition in making a credibility determination. See Bruton v. 6 Massanari, 268 F.3d 824, 828 (9th Cir. 2001). The ALJ noted that Plaintiff 7 testified he experienced back pain that prohibited him from working by limiting his 8 ability to sit, stand, or bend, and required him to rest in bed most of the time. Tr. 9 49-51. However, the ALJ also noted that Plaintiff testified he stopped working in 10 January 2014 because he mistakenly believed that he had been terminated from his 11 job as an unloader at Walmart. Tr. 22, 48-49. He testified that his Walmart work 12 schedule in January 2014 conflicted with a required meeting with a flight chief, 13 and he had accordingly been told not to come into work at Walmart because of this 14 scheduling conflict. Tr. 48. Plaintiff testified he had mistakenly believed this to be 15 his notice of termination, and by the time this misunderstanding about his 16 termination was revealed, he had already arranged to move to Washington. Tr. 48. 17 The ALJ reasonably concluded that this reason for stopping work undermines 18 Plaintiff’s claim that his back pain and depression suddenly made it impossible for 19 him to work at all. Tr. 22. The ALJ permissibly relied upon this reason to 20 discredit Plaintiff’s symptom claims. Furthermore, Plaintiff fails to challenge this 2 ORDER - 12 1 finding, so argument on this issue is waived. See Carmickle v. Comm’r Soc. Sec. 2 Admin., 533 F.3d 1155, 1161 n.2 (9th Cir. 2008) (determining Court may decline 3 to address on the merits issues not argued with specificity); Kim v. Kang, 154 F.3d 4 996, 1000 (9th Cir. 1998) (the Court may not consider on appeal issues not 5 “specifically and distinctly argued” in the party’s opening brief). This finding is 6 supported by substantial evidence. 7 3. Lack of Supporting Medical Evidence 8 The ALJ found Plaintiff’s symptom allegations were not consistent with the 9 medical evidence. Tr. 22-26. An ALJ may not discredit a claimant’s symptom 10 testimony and deny benefits solely because the degree of the symptoms alleged is 11 not supported by objective medical evidence. Rollins v. Massanari, 261 F.3d 853, 12 857 (9th Cir. 2001); Bunnell v. Sullivan, 947 F.2d 341, 346-47 (9th Cir. 1991); 13 Fair v. Bowen, 885 F.2d 597, 601 (9th Cir. 1989); Burch v. Barnhart, 400 F.3d 14 676, 680 (9th Cir. 2005). However, the medical evidence is a relevant factor in 15 determining the severity of a claimant’s symptoms and their disabling effects. 16 Rollins, 261 F.3d at 857; 20 C.F.R. § 404.1529(c)(2). Minimal objective evidence 17 is a factor which may be relied upon in discrediting a claimant’s testimony, 18 although it may not be the only factor. See Burch, 400 F.3d at 680. 19 First, the ALJ found the medical evidence was not consistent with Plaintiff’s 20 allegations of severe physical limitations. Tr. 22; see Tr. 49-51. The ALJ 2 ORDER - 13 1 acknowledged that Plaintiff’s examinations and test results showed nerve root 2 impairment in his lumbar spine. Tr. 22; see Tr. 272, 307 (January 2014: MRI of 3 Plaintiff’s lumbar spine showed a herniated disc that compromised the left S1 4 nerve root). However, the ALJ determined that Plaintiff’s treatment records 5 approximate to his disability onset date were inconsistent with the severity of his 6 alleged physical limitations. Tr. 22; see, e.g., Tr. 538 (Plaintiff did not receive 7 treatment for his back injury until two or three months after its alleged onset in 8 September 2013); Tr. 445-47 (January 11, 2014 (day before disability onset date): 9 Plaintiff visited an urgent care facility and reported mild pain in his lower back, 10 denied any weakness in his lower extremities, exhibited normal gait and station 11 with point tenderness in his lower back, and was given Flexeril for his lower back 12 pain); Tr. 285-89 (January 11, 2014 (day before disability onset date): Plaintiff 13 visited an emergency room and gave the same complaints as at the urgent care 14 facility earlier that day, examination of Plaintiff’s back was normal except for left 15 lumbar tenderness, and he was given Morphine and Lorazepam); Tr. 297-99 16 (January 12, 2014 (alleged onset date): Plaintiff returned to the emergency room 17 and reported his symptoms had initially improved but then had worsened, denied 18 having abnormal sensations (paresthesia), inspection of his back was normal with 19 no tenderness and normal gait, and he was again given Morphine and Lorazepam); 20 Tr. 308 (January 16, 2014: when initiating a workers’ compensation claim a few 2 ORDER - 14 1 days after his urgent care and emergency room visits, Plaintiff needed assistance 2 throughout his examination due to alleged symptoms that prevented him from 3 walking without assistance2); Tr. 271-73 (February 3, 2014: Plaintiff’s back pain 4 had improved from a 10 at its onset to a five on a 10-point scale with conservative 5 treatment measures, he affirmed his back pain had progressively improved with 6 these measures with decreased but continued symptoms in his left leg, he displayed 7 full strength in his right leg and his left knee with 4/5 strength in his left ankle, he 8 exhibited decreased sensation in the left L5-S1 distribution, and due to his ongoing 9 improvement Plaintiff declined decompression/microdiscectomy surgery and 10 instead chose to proceed with conservative treatment, was referred to physical 11 therapy and prescribed ibuprofen and Flexeril); Tr. 274-75 (February 24, 2014: 12 Plaintiff described “mild back pain” at a three on a 10-point scale, his left leg 13 symptoms had improved, he reported his symptoms had “improved tremendously” 14 with his conservative treatment regimen, he demonstrated full strength in all 15 16 2 This treatment note appears to show an incorrect date. Tr. 308. The treatment 17 note is dated January 16, 2013, which was prior to Plaintiff’s injury in September 18 2013. Tr. 308. The ALJ states that this treatment note was dated “four days” after 19 Plaintiff’s emergency room visit, and neither party objects to this characterization 20 of the date. Tr. 23. The Court reads this note as dated “January 16, 2014.” 2 ORDER - 15 1 muscle groups of all four extremities with intact sensation, and his neurosurgeon 2 consultant predicted his symptoms would continue to improve with conservative 3 treatment). 4 Based on this record, the ALJ reasonably concluded that Plaintiff’s 5 subjective symptom testimony was not supported by the medical evidence. Tr. 226 25. Plaintiff challenges the ALJ’s conclusion by offering evidence that Plaintiff 7 argues supports his symptom claims. ECF No. 16 at 8-10; see, e.g., Tr. 272, 307 8 (January 2014: MRI of Plaintiff’s lumbar spine showed Plaintiff had a herniated 9 disc that compromised the left S1 nerve root); Tr. 326 (July 21, 2014: examination 10 by ARNP Dennis Ang showed positive left-sided straight leg raise on the left 11 starting at 15 degrees with severe weakness over his left plantar flexion and 12 dorsiflexion at 3/5 with severely diminished rapid toe raises as well on the left, 13 noticeable atrophy of the left calf more than the right, right side was completely 14 unremarkable at 5/5). Where evidence is subject to more than one rational 15 interpretation, the ALJ’s conclusion will be upheld. Burch, 400 F.3d at 679. The 16 Court will only disturb the ALJ’s findings if they are not supported by substantial 17 evidence. Hill, 698 F.3d at 1158. Here, the ALJ’s conclusion remains supported 18 by substantial evidence despite the additional evidence identified by Plaintiff. 19 Because the ALJ’s finding is based on a rational interpretation of the evidence, the 20 Court defers to the ALJ’s interpretation. Furthermore, even if the ALJ did err in 2 ORDER - 16 1 this analysis, the ALJ accounted for Plaintiff’s subjective pain symptoms in the 2 RFC by limiting him to sedentary work with additional functional limitations. Tr. 3 21. Accordingly, Plaintiff is not entitled to relief on these grounds. 4 5 6 4. Improvement After Surgery and Medication Effective in Controlling Symptoms The ALJ found Plaintiff’s symptom testimony was inconsistent with the 7 significant level of improvement he showed following his spinal surgery, and with 8 documented pain relief from daily use of pain medication. Tr. 23. The 9 effectiveness of treatment is a relevant factor in determining the severity of a 10 claimant’s symptoms. 20 C.F.R. § 404.1529(c)(3); see Warre v. Comm’r of Soc. 11 Sec. Admin., 439 F.3d 1001, 1006 (9th Cir. 2006) (conditions effectively controlled 12 with medication are not disabling for purposes of determining eligibility for 13 benefits) (internal citations omitted); see also Tommasetti v. Astrue, 533 F.3d 1035, 14 1040 (9th Cir. 2008) (a favorable response to treatment can undermine a claimant’s 15 complaints of debilitating pain or other severe limitations). 16 Here, the ALJ observed that while Plaintiff’s surgery on July 21, 2014 did 17 not resolve his spinal impairment, his treatment records and examination findings 18 were consistent with the ability to tolerate sedentary work activity through the date 19 last insured of September 30, 2015. Tr. 23. The ALJ also noted that Plaintiff’s 20 allegations of debilitating pain symptoms were inconsistent with his treatment 2 ORDER - 17 1 records through his date last insured, which documented adequate pain relief with 2 daily use of pain medication. Tr. 23; see, e.g., Tr. 343-44 (July 21, 2014: Plaintiff 3 proceeded with spinal surgery); Tr. 349-50 (August 5, 2014: Plaintiff reported 4 “significant improvement” in his symptoms, with reduced back pain and increased 5 activity level, exhibited full strength in his lower extremities, intact sensation in all 6 lower extremity dermatomes, steady and non-antalgic gait, negative straight leg 7 raises, was given instructions to begin weaning off of a back brace in two to three 8 weeks, and was referred to additional physical therapy); Tr. 347-48 (September 9 2014: Plaintiff was given tapered dosages of Valium and Percocet); Tr. 345-46 10 (December 2014: Plaintiff reported some degree of continued symptoms in his left 11 leg which were “not as apparent at this point,” made no documented references to 12 severe pain symptoms, reported he had not used Valium or Percocet in several 13 days, exhibited full strength, straight leg raise revealed some tightness in his lower 14 back but otherwise no neurological deficit, and pain medication was again tapered 15 with the expectation that he would be completely off pain medication within two 16 months). 17 The ALJ also discussed Plaintiff’s documented adequate pain relief, despite 18 a January 2015 MRI of Plaintiff’s lumbar spine which found bulging disks that 19 appeared to cause some nerve root compression at L5-S1, and an August 2015 CT 20 scan of Plaintiff’s lumbar spine which was similar to the January 2015 imaging. 2 ORDER - 18 1 Tr.24, 372-73, Tr. 464-67; see, e.g., Tr. 377-78 (January 2015: during an 2 orthopedic appointment, the provider noted that Plaintiff had been “doing 3 extremely well,” his leg pain had improved, although he exhibited antalgic gait in 4 his left leg, concurrent with reports of pain symptoms in his left leg); Tr. 379-80 5 (February 2015: Plaintiff reported some improvement in his pain symptoms, which 6 were a five on a 10-point scale, displayed slight weakness in his left ankle, and had 7 stopped his pain medication); Tr. 387-88 (May 2015: Plaintiff had a normal 8 examination of his lower extremities, moved without difficulty, did not rise to 9 stand during conversation, was taking no medication, and was told to use ice and 10 heat for his spinal impairment); Tr. 389-91 (May 2015: Plaintiff reported pain as a 11 three on a 10-point scale, reported infrequent use of Percocet, “slightly positive” 12 left straight leg raise, and examination found no significant neurological deficit); 13 Tr. 479-84 (July and August 2015: Plaintiff reported that his pain symptoms were 14 manageable with daily use of pain medication, he could tandem walk without 15 difficulty on the right and with a little difficulty on the left, and he exhibited 16 “excellent” bilateral strength throughout both of his legs); Tr. 494-501 (July 2015 17 through September 2015: Plaintiff could rise from a chair without difficulty, 18 appeared comfortable when seated, and exhibited normal gait). The ALJ 19 reasonably concluded that the improvement Plaintiff reported in his symptoms 20 after his July 2014 surgery, along with pain medication, supported a finding that 2 ORDER - 19 1 Plaintiff was capable of sedentary work with additional functional limitations, 2 which was inconsistent with Plaintiff’s subjective symptom claims. Furthermore, 3 Plaintiff fails to challenge the ALJ’s conclusion, so argument on this issue is 4 waived. See Carmickle, 533 F.3d at 1161 n.2; Kim, 154 F.3d at 1000. This was a 5 clear and convincing reason to discredit Plaintiff’s symptom testimony. 6 5. Inconsistent Statements and Exaggeration 7 The ALJ found Plaintiff’s physical symptom claims were undermined by 8 evidence of Plaintiff exaggerating his symptoms, and his mental claims were 9 undermined by Plaintiff’s inconsistent reports regarding his depression. Tr. 22-25. 10 The ALJ may appropriately consider a claimant’s tendency to exaggerate. See 11 Tonapetyan v. Halter, 242 F.3d 1144, 1148 (9th Cir. 2001) (the ALJ appropriately 12 considered Plaintiff’s tendency to exaggerate when assessing Plaintiff’s credibility, 13 which was shown in a doctor’s observation that Plaintiff was uncooperative during 14 cognitive testing but was “much better” when giving reasons for being unable to 15 work.). In evaluating a claimant’s symptom claims, an ALJ may consider the 16 consistency of an individual’s own statements made in connection with the 17 disability review process with any other existing statements or conduct made under 18 other circumstances. Smolen v. Chater, 80 F.3d 1273, 1284 (9th Cir. 1996) (The 19 ALJ may consider “ordinary techniques of credibility evaluation,” such as 20 2 ORDER - 20 1 reputation for lying, prior inconsistent statements concerning symptoms, and other 2 testimony that “appears less than candid.”). 3 First, the ALJ found Plaintiff’s physical symptom claims were undermined 4 by evidence of Plaintiff exaggerating his symptoms. Tr. 22-25. Plaintiff argues 5 that the ALJ failed to explain what statements Plaintiff made that suggested 6 exaggeration or how this undermines Plaintiff’s complaints. ECF No. 16 at 8. 7 Despite Plaintiff’s contentions, the ALJ referenced two instances of physical 8 symptom exaggeration in the record. Tr. 22-25. The ALJ compared Plaintiff’s 9 treatment notes from three visits to an urgent care facility and the emergency room 10 the day before and the day of Plaintiff’s alleged disability onset date, with 11 examination notes from just four days later when Plaintiff was initiating a workers’ 12 compensation claim. Tr. 22-23, see Tr. 285-89, 297-99, 308, 445-47. At the 13 urgent care and emergency room visits on January 11 and 12, 2014, Plaintiff 14 reported mild pain in his lower back, denied any weakness in his lower extremities, 15 denied having abnormal sensations (paresthesia), exhibited normal gait and station 16 with point tenderness, examination of his back was normal except for left lumbar 17 tenderness, and then he had a wholly normal inspection of his back with no 18 tenderness. Tr. 285-89, 297-99, 445-47. The examination notes from four days 19 later revealed significantly different results, as Plaintiff required assistance 20 2 ORDER - 21 1 throughout his examination due to alleged symptoms that prevented him from 2 walking without assistance. Tr. 308. 3 The ALJ also cited to evidence after Plaintiff’s date last insured that 4 indicated exaggeration of his spinal impairment in pursuit of state assistance. Tr. 5 24. During an independent medical evaluation in February 2016, examining 6 physician Dr. Seltzer noted Plaintiff was able to sit without any apparent 7 discomfort, but his gait was “grossly abnormal and non-physiologic.” Tr. 545. 8 According to Dr. Seltzer, Plaintiff “almost stomps as he is walking and catches 9 himself holding on to [sic] furniture. He demonstrated nothing like that as he was 10 walking into the exam room.” Tr. 545. Plaintiff had other non-physiologic 11 examination findings at this time, such as pain with block rotation or light shoulder 12 pressure, he had markedly self-limiting examination of his lumbar spine with 13 global complaints of pain with any movement. Tr. 546. Plaintiff also had 14 inconsistent straight leg raise testing, which was completely negative in the seated 15 position, and when supine his reports of pain with straight leg raise testing were 16 deemed to be internally contradictory. Tr. 546. The ALJ noted that, contrary to 17 Plaintiff’s display of slight weakness in treatment settings, he now exhibited “give 18 way collapsing” weakness in his left ankle, in a manner deemed non-physiologic 19 by Dr. Seltzer. Tr. 546. Dr. Seltzer also a deemed a display of decreased sensation 20 in Plaintiff’s left leg to be non-physiologic and non-dermatomal. Tr. 546. Dr. 2 ORDER - 22 1 Seltzer reported “[t]his is deemed to be in all probability willful misrepresentation 2 as this examiner knows of no neurological, orthopedic condition that would permit 3 [this finding].” Tr. 547. On this record, the ALJ reasonably concluded that 4 Plaintiff exaggerated his symptoms. This finding is supported by substantial 5 evidence and was a clear and convincing reason to discount Plaintiff's symptom 6 complaints. 7 Second, the ALJ found Plaintiff’s allegations of inability to work due to his 8 mental impairment were undermined by Plaintiff’s inconsistent reports regarding 9 his depression. Tr. 25. The ALJ’s decision to discount Plaintiff’s symptom claims 10 because of inconsistencies in statements about depression is not supported by 11 substantial evidence. Plaintiff reported that he is unable to work due to depression 12 and lack of desire to be around other people. Tr. 54, 56-57, 209. The record cited 13 by the ALJ, Tr. 288, 347-48, 387-88, 395-401, does not contain inconsistent 14 statements by Plaintiff about his depression. Read in chronological order, the 15 statements cited by the ALJ indicate that Plaintiff’s depression may have been 16 escalating, but do not reveal inconsistencies with other statements made by 17 Plaintiff. Tr. 25-26, see, e.g., Tr. 288 (January 2014: Plaintiff displayed 18 appropriate affect during examination); Tr. 347-48 (September 2014: Plaintiff 19 reported having “some degree of depression” during medical care, with no signs of 20 suicidal ideation at that time or in the past); Tr. 387-88 (May 2015: Plaintiff 2 ORDER - 23 1 reported withdrawing from activities and relationships due to anxiety and 2 depression and he was again referred to a psychiatric evaluation); Tr. 395-401 3 (April 2017: Plaintiff reported having depression that included frequent suicidal 4 ideation and alleged he had lost his ability to concentrate). The ALJ noted that 5 despite these allegations and his regular ongoing medical care, Plaintiff had no 6 documented or reported mental health care. Tr. 25-26. As discussed infra, while 7 the ALJ may consider an unexplained, or inadequately explained, failure to seek 8 treatment when evaluating a claimant’s subjective symptoms, this does not support 9 a finding that Plaintiff made inconsistent statements about his depression. See Orn 10 v. Astrue, 495 F.3d 625, 638 (9th Cir. 2007). The ALJ’s finding is not supported 11 by substantial evidence. However, such an error is harmless where the ALJ lists 12 additional reasons, supported by substantial evidence, for discrediting Plaintiff’s 13 symptom complaints. See Carmickle, 533 F.3d at 1162-63; Molina, 674 F.3d at 14 1115 (“[S]everal of our cases have held that an ALJ’s error was harmless where 15 the ALJ provided one or more invalid reasons for disbelieving a claimant’s 16 testimony, but also provided valid reasons that were supported by the record.”); 17 Batson v. Comm’r of Soc. Sec. Admin., 359 F.3d 1190, 1197 (9th Cir. 2004) 18 (holding that any error the ALJ committed in asserting one impermissible reason 19 for claimant’s lack of credibility did not negate the validity of the ALJ’s ultimate 20 conclusion that the claimant’s testimony was not credible). Here, as discussed 2 ORDER - 24 1 supra, the ALJ identified several other reasons, supported by substantial evidence, 2 to find Plaintiff’s symptom testimony not credible. The Court “may not reverse an 3 ALJ’s decision on account of an error that is harmless.” Molina, 674 F.3d at 1111. 4 Plaintiff is not entitled to relief on these grounds. 5 6. Lack of Mental Health Treatment 6 The ALJ found that Plaintiff’s lack of treatment for his longstanding 7 depression further indicates that his mental impairment does not cause any 8 significant limitations in his functioning. Tr. 26. An unexplained, or inadequately 9 explained, failure to seek treatment or follow a prescribed course of treatment may 10 be considered when evaluating the claimant’s subjective symptoms. Orn, 495 F.3d 11 at 638. Evidence of a claimant’s self-limitation and lack of motivation to seek 12 treatment are appropriate considerations in determining the credibility of a 13 claimant’s subjective symptom reports. Osenbrock v. Apfel, 240 F.3d 1157, 116514 66 (9th Cir. 2001); Bell-Shier v. Astrue, 312 Fed. App’x 45, *2 (9th Cir. 2009) 15 (unpublished opinion) (considering why plaintiff was not seeking treatment). 16 When there is no evidence suggesting that the failure to seek or participate in 17 treatment is attributable to a mental impairment rather than a personal preference, 18 it is reasonable for the ALJ to conclude that the level or frequency of treatment is 19 inconsistent with the alleged severity of complaints. Molina, 674 F.3d at 1113-14. 20 But when the evidence suggests lack of mental health treatment is partly due to a 2 ORDER - 25 1 claimant’s mental health condition, it may be inappropriate to consider a 2 claimant’s lack of mental health treatment when evaluating the claimant’s failure 3 to participate in treatment. Nguyen v. Chater, 100 F.3d 1462, 1465 (9th Cir. 1996). 4 The ALJ determined that Plaintiff’s lack of treatment for depression 5 detracted from the reliability of his statements about his mental state, particularly 6 given his history of working despite his longstanding depressive disorder. Tr. 26. 7 Plaintiff reported that he is unable to work due to depression and lack of desire to 8 be around other people. Tr. 54, 56-57, 209. However, the ALJ noted that Plaintiff 9 had no documented mental health care during the relevant period or after the date 10 last insured. Tr. 26. During an independent psychiatric examination in September 11 2015, Plaintiff affirmed he had no mental health care since the spring of 2014. Tr. 12 470, 475. Plaintiff also reported a history of using antidepressants in 2011 and 13 2012, which he then refused to take because of his belief that “they were just 14 masking the problem rather than curing it.” Tr. 470. In September 2015, Plaintiff 15 explained that “my attitude before was that it was pathetic to take pills to be happy, 16 but since I’m not progressing now I guess I’d be willing to try them again.” Tr. 17 471. The ALJ noted that Plaintiff’s persistent use of benzodiazepines and opiates 18 for pain symptoms indicated that he was not opposed to using psychotropic 19 medication to mitigate impairments. Tr. 26. Further, there is no evidence to 20 suggest that Plaintiff’s failure to seek treatment is attributable to his mental 2 ORDER - 26 1 impairment rather than a personal preference. The ALJ reasonably relied on this 2 evidence in evaluating Plaintiff’s symptom claims. Furthermore, Plaintiff fails to 3 challenge the ALJ’s conclusion, so argument on this issue is waived. See 4 Carmickle, 533 F.3d at 1161 n.2; Kim, 154 F.3d at 1000. This was a clear and 5 convincing reason to discredit Plaintiff’s symptom testimony. 6 7 B. Medical Opinion Evidence Plaintiff challenges the ALJ’s evaluation of the medical opinions of Jory 8 Anderson, DC, Eric Rudd, M.D., Paul Furan, PA-C, Dennis Ang, ARNP, Norman 9 Staley, M.D., S. Daniel Seltzer, M.D., John Robinson, Ph.D., Renee Eisenhauer, 10 Ph.D, and Richard Schneider, M.D. ECF No. 16 at 10-13. 11 There are three types of physicians: “(1) those who treat the claimant 12 (treating physicians); (2) those who examine but do not treat the claimant 13 (examining physicians); and (3) those who neither examine nor treat the claimant 14 [but who review the claimant’s file] (nonexamining [or reviewing] physicians).” 15 Holohan v. Massanari, 246 F.3d 1195, 1201-02 (9th Cir. 2001) (citations omitted). 16 Generally, a treating physician’s opinion carries more weight than an examining 17 physician’s, and an examining physician’s opinion carries more weight than a 18 reviewing physician’s. Id. at 1202. “In addition, the regulations give more weight 19 to opinions that are explained than to those that are not, and to the opinions of 20 2 ORDER - 27 1 specialists concerning matters relating to their specialty over that of 2 nonspecialists.” Id. (citations omitted). 3 If a treating or examining physician’s opinion is uncontradicted, the ALJ 4 may reject it only by offering “clear and convincing reasons that are supported by 5 substantial evidence.” Bayliss v. Barnhart, 427 F.3d 1211, 1216 (9th Cir. 2005). 6 “However, the ALJ need not accept the opinion of any physician, including a 7 treating physician, if that opinion is brief, conclusory and inadequately supported 8 by clinical findings.” Bray, 554 F.3d at 1228 (internal quotation marks and 9 brackets omitted). “If a treating or examining doctor’s opinion is contradicted by 10 another doctor’s opinion, an ALJ may only reject it by providing specific and 11 legitimate reasons that are supported by substantial evidence.” Bayliss, 427 F.3d at 12 1216 (citing Lester, 81 F.3d at 830-831). 13 The opinion of an acceptable medical source such as a physician or 14 psychologist is given more weight than that of an “other source.” 20 C.F.R. § 15 404.1527 (2012); Gomez v. Chater, 74 F.3d 967, 970-71 (9th Cir. 1996). “Other 16 sources” include nurse practitioners, physicians’ assistants, therapists, teachers, 17 social workers, spouses and other non-medical sources. 20 C.F.R. § 404.1513(d) 18 19 20 2 ORDER - 28 1 (2013).3 However, the ALJ is required to “consider observations by non-medical 2 sources as to how an impairment affects a claimant’s ability to work.” Sprague v. 3 Bowen, 812 F.2d 1226, 1232 (9th Cir. 1987). Non-medical testimony can never 4 establish a diagnosis or disability absent corroborating competent medical 5 evidence. Nguyen, 100 F.3d at 1467. An ALJ is obligated to give reasons germane 6 to “other source” testimony before discounting it. Dodrill v. Shalala, 12 F.3d 915, 7 918 (9th Cir. 1993). 8 Plaintiff argues that the ALJ distributed weight to the opinions of the 9 providers in the record based on whether their conclusions aligned with the work 10 Plaintiff performed from August 2013 through January 2014. ECF No. 16 at 11. 11 Yet, ignoring that the ALJ did provide other reasons when discounting the opinions 12 of the treating, examining, and nonexamining sources, Plaintiff failed to identify 13 with any specificity why certain providers should have been credited over others, 14 or how the ALJ erred in weighing the opinion evidence. There were two 15 examining opinions from acceptable medical sources about Plaintiff’s physical 16 conditions: Dr. S. Daniel Seltzer, Tr. 587-95, and Dr. Eric Rudd, Tr. 455-63; one 17 18 3 Prior to March 27, 2017, the definition of a medical source, as well as the 19 requirement that an ALJ consider evidence from non-acceptable medical sources, 20 were located at 20 C.F.R. § 404.1513(d). 2 ORDER - 29 1 nonexamining opinion from an acceptable medical source: Dr. Norman Staley, Tr. 2 102-08; and two medical opinions from “other sources”: treating chiropractor Jory 3 Anderson, Tr. 457-58, and treating advanced registered nurse practitioner Dennis 4 Ang, Tr. 481-82. There was one examining opinion from an acceptable medical 5 source about Plaintiff’s mental conditions: Dr. Richard Schneider, Tr. 468-78; and 6 two nonexamining opinions from acceptable medical sources: Dr. John Robinson, 7 Tr. 70-83, and Dr. Renee Eisenhauer, Tr. 85-99. 8 Plaintiff fails to argue or establish any specific error as to the ALJ’s 9 consideration of these opinions, focusing instead on the general argument that “the 10 ALJ summarily determined that any treating or examining physician who opined 11 that [Plaintiff] could not work due to his work injury was inconsistent with the 12 work record.” ECF No. 16 at 13. Plaintiff also argues that the ALJ does not 13 indicate whether or not Plaintiff’s spinal impairment or mental health impairment 14 remained the same from the date of his injury through his alleged disability onset 15 date, nor does the ALJ cite to medical records that outline any changes in 16 Plaintiff’s condition. ECF No. 16 at 13. Although Plaintiff is correct that the ALJ 17 does not make findings as to whether Plaintiff’s impairments remained the same or 18 worsened during the period of time that he was working before his alleged 19 disability onset date, as discussed supra, the ALJ cited to medical records 20 approximate to his disability onset date that were inconsistent with the severity of 2 ORDER - 30 1 his alleged physical limitations. Tr. 22; see, e.g., Tr. 271-75, 285-89, 297-99, 4452 47. Further, as discussed supra, the ALJ found that Plaintiff’s mental impairments 3 were not as severe as alleged during the relevant time period, as Plaintiff had no 4 documented mental health care. Tr. 26. 5 Because Plaintiff only contests the ALJ’s weighing of the opinion evidence 6 with respect to his work history, Plaintiff has waived any argument as to the 7 evaluation of any of the medical source opinions in regard to reasons other than 8 inconsistency with Plaintiff’s work activity. See Carmickle, 533 F.3d at 1161 n.2; 9 Kim, 154 F.3d at 1000. Despite Plaintiff’s waiver, the Court reviewed the record 10 and finds the ALJ’s weighing of the medical opinions is supported by specific and 11 legitimate reasons supported by substantial evidence. 12 1. Dr. Staley – Physical Opinion 13 In July 2015, state agency medical consultant Norman Staley, M.D. 14 reviewed the medical record and opined that Plaintiff could lift and carry 10 15 pounds frequently and 20 pounds occasionally. Tr. 92-93. He opined that Plaintiff 16 could stand and/or walk for two hours in an eight-hour workday, sit for six hours in 17 the same period, occasionally stoop, kneel, crouch, crawl, and climb ramps and 18 stairs, and never climb ladders, rope, or scaffolding. Tr. 93. He opined that 19 Plaintiff needed to avoid concentrated exposure to vibration and hazards. Tr 94. 20 2 ORDER - 31 1 Dr. Staley concluded that Plaintiff would be limited to sedentary exertional level 2 work. Tr. 97. The ALJ gave Dr. Staley’s opinion significant weight. Tr. 28. 3 Plaintiff contends the ALJ erred by giving significant weight to the opinion 4 of Dr. Staley, a reviewing physician, and little weight to Plaintiff’s treating and 5 examining providers. ECF No. 16 at 13. The opinion of a nonexamining 6 physician may serve as substantial evidence if it is supported by other evidence in 7 the record and is consistent with it. Andrews v. Shalala, 53 F.3d 1035, 1041 (9th 8 Cir. 1995). Other cases have upheld the rejection of an examining or treating 9 physician based in part on the testimony of a nonexamining medical advisor when 10 other reasons to reject the opinions of examining and treating physicians exist 11 independent of the nonexamining doctor’s opinion. Lester, 81 F.3d at 831 (citing 12 Magallanes v. Bowen, 881 F.2d 747, 751-55 (9th Cir. 1989) (reliance on laboratory 13 test results, contrary reports from examining physicians and testimony from 14 claimant that conflicted with treating physician’s opinion)); Roberts v. Shalala, 66 15 F.3d 179, 184 (9th Cir. 1995) (rejection of examining psychologist’s functional 16 assessment which conflicted with his own written report and test results). Thus, 17 case law requires not only an opinion from the consulting physician but also 18 substantial evidence (more than a mere scintilla but less than a preponderance), 19 independent of that opinion which supports the rejection of contrary conclusions 20 by examining or treating physicians. Andrews, 53 F.3d at 1039. 2 ORDER - 32 1 The ALJ found that the opinion of Dr. Staley was consistent with Plaintiff’s 2 work history, longitudinal examination findings during the relevant period, and 3 longitudinal treatment records during the relevant period. Tr. 28. Plaintiff 4 suggests the ALJ should have credited the opinions of Plaintiff’s treating and 5 examining providers over the opinion of the reviewing doctor. However, as 6 discussed infra, the ALJ provided legally sufficient reasons for giving less weight 7 to the opinions of the treating and examining providers and for giving more weight 8 to Dr. Staley’s opinion. 9 10 2. Dr. Seltzer – Physical Opinion Plaintiff’s examining orthopedic surgeon, S. Daniel Seltzer, M.D., 11 completed a report in November 2016. Tr. 587-95. Dr. Seltzer opined that 12 Plaintiff was capable of full-time work at a light level, with no lifting or carrying 13 over 10 to 15 pounds and avoidance of twisting, bending, and stooping. Tr. 595. 14 The ALJ gave significant weight to Dr. Seltzer’s assessment with respect to 15 Plaintiff’s functioning through his date last insured, however the ALJ gave greater 16 weight to the nonexamining physician’s assessment of the ability to lift and carry 17 10 pounds frequently and 20 pounds occasionally. Tr. 29. Because Dr. Seltzer’s 18 opinion as to Plaintiff’s lift and carry limitations was contradicted by the 19 nonexamining opinion of Dr. Staley, Tr. 92-93, the ALJ was required to provide 20 2 ORDER - 33 1 specific and legitimate reasons for discounting this aspect of Dr. Seltzer’s opinion. 2 Bayliss, 427 F.3d at 1216. 3 The ALJ found that Dr. Seltzer’s opinion was consistent with Plaintiff’s 4 work history, longitudinal examination findings during the relevant period, and 5 longitudinal treatment records during the relevant period. Tr. 29. However, given 6 Plaintiff’s history of working at a medium to heavy exertional level after the onset 7 of his spinal impairment, the ALJ gave greater weight to the nonexamining 8 physician’s opinion as to Plaintiff’s lift and carry limitations. Tr. 29. “The ALJ 9 may reject a medical opinion that is inconsistent with the claimant’s work 10 activity.” Schultz v. Berryhill, No. 3:16-cv-00757-JR, 2017 WL 2312951, at *4 11 (D. Or. Apr. 21, 2017) (citing Valentine v. Comm’r Soc. Sec. Admin., 574 F.3d 12 685, 692-93 (9th Cir. 2009)). Here, the ALJ observed that Plaintiff continued 13 working at a medium/heavy exertional level for several months after his back 14 injury in September 2013, Tr. 26 (citing Tr. 197-98), and his work ended for 15 reasons unrelated to Plaintiff’s functional capacity, Tr. 26 (citing Tr. 48-49). The 16 ALJ reasonably concluded that the record documented work activity that was more 17 consistent with Dr. Staley’s assessment that Plaintiff was able to lift and carry 10 18 pounds frequently and 20 pounds occasionally. Tr. 29; see, e.g., Tr. 197-98 19 (Plaintiff reported that he was working full-time as an unloader at Walmart through 20 January 2014, where he walked for seven hours each day, stood for one hour each 2 ORDER - 34 1 day, unloaded up to 80 to 90 pounds from trucks, frequently lifted 30 to 40 pounds, 2 and spent “a little more than [half a] day” carrying things). Even if the ALJ erred 3 in rejecting the lift and carry limitations opined by Dr. Seltzer, the error would be 4 harmless as the vocational expert identified three sedentary level jobs that Plaintiff 5 was capable of performing. Tr. 60-61. This finding was a specific and legitimate 6 reason, supported by substantial evidence, for the ALJ to discount the lifting and 7 carrying aspect of Dr. Seltzer’s opinion. 8 3. Mr. Anderson – Physical Opinion 9 Between January 2014 and March 2014, treating chiropractor Jory 10 Anderson, DC, opined that Plaintiff could seldom sit, stand, or walk, and could 11 never lift over 10 pounds. Tr. 26 (citing Tr. 309-12). Dr. Anderson reported that 12 Plaintiff was not released to work due to his spinal impairment. Tr. 309-12. The 13 ALJ gave Mr. Anderson’s opinion minimal weight. Tr. 26. Because Mr. 14 Anderson was an “other source,” the ALJ was required to provide germane reasons 15 to discount his opinion.4 Dodrill, 12 F.3d at 918. 16 First, the ALJ determined that Mr. Anderson’s assessments were 17 incompatible with Plaintiff’s ability to work at a medium/heavy exertional level for 18 19 4 As a chiropractor, Mr. Anderson is considered an “other source” under 20 C.F.R. 20 § 404.1513(d)(1) (2013). 2 ORDER - 35 1 several months after his back injury in September 2013. “The ALJ may reject a 2 medical opinion that is inconsistent with the claimant’s work activity.” Schultz, 3 2017 WL 2312951, at *4 (citing Valentine, 574 F.3d at 692-93). Working with an 4 impairment supports a conclusion that the impairment is not disabling. See 5 Drouin, 966 F.2d at 1258. Here, the ALJ observed that Plaintiff continued 6 working at a medium/heavy exertional level until January 2014 and ended his work 7 for reasons unrelated to his functional capacity. Tr. 26, 48-49, 197-98. The ALJ 8 reasonably concluded that the record documented work activity that was 9 inconsistent with Mr. Anderson’s opinion that Plaintiff could seldom sit, stand, or 10 walk, and could never lift over 10 pounds. Tr. 26; see, e.g., Tr. 197-98 (April 11 2010: Plaintiff reported that he was working full-time as an unloader at Walmart 12 through January 2014, where he walked for seven hours each day, stood for one 13 hour each day, unloaded up to 80 to 90 pounds from trucks, frequently lifted 30 to 14 40 pounds, and spent “a little more than [half a] day” carrying things). This was a 15 germane reason to discredit Mr. Anderson’s opinion. 16 Second, the ALJ found that Mr. Anderson’s opinion was inconsistent with 17 other medical evidence in the record. Relevant factors to evaluating any medical 18 opinion include the amount of relevant evidence that supports the opinion, the 19 quality of the explanation provided in the opinion, and the consistency of the 20 medical opinion with the record as a whole. Lingenfelter v. Astrue, 504 F.3d 1028, 2 ORDER - 36 1 1042 (9th Cir. 2007); Orn, 495 F.3d at 631. Here, the ALJ determined that 2 Plaintiff’s presentation during his initial visit with Mr. Anderson in January 2014 3 was notably inconsistent with medical care that Plaintiff had received just a few 4 days earlier, and other examination findings and treatment records severely 5 undermined the reliability of Mr. Anderson’s assessment. Tr. 26; see Tr. 308 6 (January 16, 2014: at his initial visit with Mr. Anderson, Plaintiff needed assistance 7 throughout his examination due to alleged symptoms that prevented him from 8 walking without assistance); Tr. 285-89 (January 11, 2014: Plaintiff had generally 9 normal inspections of his back); Tr. 445-47 (January 11, 2014: Plaintiff had mild 10 pain, denied weakness to the lower extremities, had pain from a seated to standing 11 position, point tenderness was localized to the lower lumbar mid spine, positive 12 straight leg raise test, gait was unremarkable); Tr. 297-99 (January 12, 2014: 13 Plaintiff denied paresthesia, exhibited normal gait and normal inspection of his 14 back); Tr. 274-75 (February 2014: Plaintiff reported his symptoms had “improved 15 tremendously” with his conservative treatment regimen, demonstrated full strength 16 in all muscle groups of all four extremities, with intact sensation). The ALJ 17 therefore gave greater weight to other assessments that were consistent with the 18 record as a whole, and which came from acceptable medical sources. Tr. 26. This 19 was a germane reason to discredit Mr. Anderson’s opinion. Further, Plaintiff fails 20 2 ORDER - 37 1 to challenge the ALJ’s finding, and therefore, argument on this issue is waived. 2 See Carmickle, 533 F.3d at 1161 n.2; Kim, 154 F.3d at 1000. 3 4. Dr. Rudd – Physical Opinion 4 Plaintiff’s examining physician, Eric Rudd, M.D., completed an independent 5 orthopedic evaluation in January 2015. Tr. 455-63. Dr. Rudd concluded that 6 Plaintiff was not at a point of maximum medical improvement and that it was 7 premature to rate his degree of impairment. Tr. 462. When asked about Plaintiff’s 8 physical limitations and capability for gainful employment, Dr. Rudd stated that 9 Plaintiff would remain off work pending reevaluation by his neurosurgeon, Dr. 10 Wahl. Tr. 462. Dr. Rudd noted, “[h]opefully treatment measures will increase 11 [Plaintiff’s] functionality and get him back to the workforce.” Tr. 462. Dr. Rudd 12 did not give any other assessment of Plaintiff’s abilities or limitations. Tr. 455-63. 13 The ALJ found that Dr. Rudd’s evaluation did not appear to contain any 14 opinions about Plaintiff’s occupational functioning, and instead deferred such a 15 determination. Tr. 27. An ALJ may reject an opinion that does “not show how [a 16 claimant’s] symptoms translate into specific functional deficits which preclude 17 work activity.” See Morgan v. Comm’r Soc. Sec. Admin., 169 F.3d 595, 601 (9th 18 Cir. 1999). Dr. Rudd did not offer an opinion about Plaintiff’s physical limitations 19 or capability for gainful employment, rather, he reported that Plaintiff would 20 remain off work pending reevaluation by his neurosurgeon. Tr. 462. This was a 2 ORDER - 38 1 specific and legitimate reason for the ALJ to discount Dr. Rudd’s opinion. 2 Plaintiff fails to challenge the ALJ’s finding, and therefore, argument on this issue 3 is waived. See Carmickle, 533 F.3d at 1161 n.2; Kim, 154 F.3d at 1000. 4 5. ARNP Ang – Physical Opinion 5 Plaintiff’s treating ARNP, Dennis Ang, completed a medical report in 6 August 2015. Tr. 393-94. ARNP Ang opined that Plaintiff could sit for 30 7 minutes at a time for a total of about four hours in an eight-hour workday, stand for 8 30 minutes at a time, and stand and/or walk for a total of about two hours in the 9 same period. Tr. 393. He opined that Plaintiff could occasionally lift and carry 20 10 pounds, had an unspecified degree of difficulty with stooping, crouching, kneeling, 11 and pulling, could rarely reach to the floor, could frequently reach above his 12 shoulders and to waist level, and could consistently handle objects. Tr. 393-94. 13 He opined that Plaintiff would likely be absent from work more than four days per 14 month but added it “depends on the type of work.” Tr. 393. In May 2016, ARNP 15 Ang opined that the limitations described in his assessment from August 2015 had 16 been ongoing since the original date of Plaintiff’s injury in September 2013. Tr. 17 537. 18 In June 2016, ARNP Ang opined that Plaintiff could stand and/or walk 19 between one and three hours per workday and needed to change position after 45 20 minutes of sitting. Tr. 557. He opined that Plaintiff could never climb ladders and 2 ORDER - 39 1 could seldom reach, crawl, kneel, or stoop, could seldom lift 25 pounds, could 2 occasionally lift 15 pounds, and could frequently lift 10 pounds. Tr. 557. ARNP 3 Ang gave this same assessment in October 2016 and November 2016. Tr. 614, 4 619. The ALJ gave ARNP Ang’s opinion minimal weight. Tr. 28. Because 5 ARNP Ang was an “other source,” the ALJ was required to provide germane 6 reasons to discount his opinion.5 Dodrill, 12 F.3d at 918. 7 First, the ALJ determined that ARNP Ang’s assessments were incompatible 8 with Plaintiff’s work history. Tr. 28. “The ALJ may reject a medical opinion that 9 is inconsistent with the claimant’s work activity.” Schultz, 2017 WL 2312951, at 10 *4 (citing Valentine, 574 F.3d at 692-93). Working with an impairment supports a 11 conclusion that the impairment is not disabling. See Drouin, 966 F.2d at 1258. 12 Here, the ALJ observed that Plaintiff continued working on a full-time basis at a 13 medium/heavy exertional level for several months after his back injury in 14 15 5 ARNP Ang is not considered an “acceptable medical source[]” under the 16 regulations. 20 C.F.R. § 404.1513(d)(3). Although the regulations were amended 17 on March 27, 2017 to include advanced registered nurse practitioners as acceptable 18 medical sources, the amendment applies to claims filed on or after March 27, 2017. 19 20 C.F.R. § 404.1502(a)(7). Plaintiff’s claim was filed on November 5, 2014, and 20 thus, ARNP Ang is considered an “other source.” 2 ORDER - 40 1 September 2013, and his employment ended for reasons unrelated to Plaintiff’s 2 symptoms, impairments, or limitations. Tr. 26, 48-49, 197-98. The ALJ 3 reasonably concluded that the record documented work activity that was 4 inconsistent with ARNP Ang’s opinion that since September 2013, Plaintiff was 5 limited to standing for 30 minutes at a time, standing and/or walking for a total of 6 about two hours in an eight-hour workday, and occasionally lifting and carrying 20 7 pounds. Tr. 28, 393; see, e.g., Tr. 197-98 (April 2010: Plaintiff reported that he 8 was working full-time as an unloader at Walmart through January 2014, where he 9 walked for seven hours each day, stood for one hour each day, unloaded up to 80 10 to 90 pounds from trucks, frequently lifted 30 to 40 pounds, and spent “a little 11 more than [half a] day” carrying things). This was a germane reason to discredit 12 ARNP Ang’s opinion. 13 Second, the ALJ found that ARNP Ang’s assessments were inconsistent 14 with Plaintiff’s longitudinal treatment history. Tr. 28. An ALJ may discredit 15 physicians’ opinions that are unsupported by the record as a whole. Batson, 359 16 F.3d at 1195. As discussed supra, Plaintiff’s physical symptoms showed an 17 improvement with surgical and pharmaceutical treatment. See Tr. 349-50 (August 18 5, 2014: after his July 2014 surgery, Plaintiff reported “significant improvement” 19 in his symptoms, with reduced back pain and increased activity level, exhibited full 20 strength in his lower extremities, intact sensation in all lower extremity 2 ORDER - 41 1 dermatomes, steady and non-antalgic gait, and negative straight leg raises, was 2 given instructions to begin weaning off of a back brace in two to three weeks, and 3 was referred to additional physical therapy); Tr. 377-78 (January 2015: during an 4 orthopedic appointment, the provider noted that Plaintiff had been “doing 5 extremely well,” his leg pain had improved, although he exhibited antalgic gait in 6 his left leg, concurrent with reports of pain symptoms in his left leg); Tr. 479-84 7 (July and August 2015: Plaintiff reported that his pain symptoms were manageable 8 with daily use of pain medication, he could tandem walk without difficulty on the 9 right and with a little difficulty on the left, and he exhibited “excellent” bilateral 10 strength throughout both of his legs). The ALJ reasonably concluded that this 11 record of improvement with treatment was inconsistent with ARNP Ang’s opinion 12 that Plaintiff was incapable of meeting the demands of sedentary work. Tr. 28. 13 This was a germane reason to discredit ARNP Ang’s opinions. Furthermore, 14 Plaintiff fails to challenge the ALJ’s determination as to this aspect of the decision, 15 and therefore, argument on this issue is waived. See Carmickle, 533 F.3d at 1161 16 n.2; Kim, 154 F.3d at 1000. 17 Third, the ALJ found ARNP Ang’s opinion was not supported by the 18 longitudinal examination findings. Tr. 28. A medical opinion may be rejected if it 19 is unsupported by medical findings. Bray, 554 F.3d at 1228; Batson, 359 F.3d at 20 1195; Thomas, 278 F.3d at 957; Tonapetyan, 242 F.3d at 1149. Here, the ALJ 2 ORDER - 42 1 observed that ARNP Ang’s opined limitations were inconsistent with the 2 longitudinal examination findings, as treatment in 2015 through his date last 3 insured in September 2015 documented only slight neurological deficits and 4 manageable pain symptoms. Tr. 28; see Tr. 387-88 (May 2015: Plaintiff had a 5 normal examination of his lower extremities, moved without difficulty, did not rise 6 to stand during conversation, was taking no medication, and was told to use ice and 7 heat for his spinal impairment); Tr. 389-91 (May 2015: Plaintiff reported pain as a 8 three on a 10-point scale, reported infrequent use of Percocet, “slightly positive” 9 left straight leg raise, and examination found no significant neurological deficit). 10 The ALJ reasonably concluded, based on this record, that ARNP Ang’s opined 11 limitations were inconsistent with the examination record. Tr. 28. This was a 12 germane reason to discredit ARNP Ang’s opinion. Furthermore, Plaintiff fails to 13 challenge the ALJ’s determination as to this aspect of the decision, and therefore, 14 argument on this issue is waived. See Carmickle, 533 F.3d at 1161 n.2; Kim, 154 15 F.3d at 1000. 16 Finally, the ALJ found that ARNP Ang’s assessment from August 2015 was 17 equivocal as to Plaintiff’s ability to maintain attendance. Tr. 28, 393. “[T]he ALJ 18 is the final arbiter with respect to resolving ambiguities in the medical evidence.” 19 Tommasetti, 533 F.3d at 1041. ARNP Ang opined that Plaintiff would likely be 20 absent from work more than four days per month but added it “depends on the type 2 ORDER - 43 1 of work.” Tr. 393. As noted by the ALJ, this assessment is equivocal, suggesting 2 that Plaintiff may be able to maintain attendance with less strenuous work. Tr. 28. 3 Moreover, ARNP Ang opined that this limitation had been ongoing since 4 Plaintiff’s injury in September 2013, but there was no evidence in the record to 5 suggest that Plaintiff was absent from his job at Walmart for more than four days 6 per month. This was a germane reason to reject ARNP Ang’s opinion as to 7 Plaintiff’s ability to maintain attendance. Furthermore, Plaintiff fails to challenge 8 the ALJ’s determination as to this aspect of the decision, and therefore, argument 9 on this issue is waived. See Carmickle, 533 F.3d at 1161 n.2; Kim, 154 F.3d at 10 1000. 11 6. Dr. Schneider, Dr. Robinson, and Dr. Eisenhauer – Mental Opinions 12 Plaintiff’s examining psychiatrist, Richard Schneider, M.D., completed an 13 independent medical examination report in September 2015. Tr. 468-78. Dr. 14 Schneider diagnosed Plaintiff with a depressive disorder that pre-dated Plaintiff’s 15 back injury in September 2013. Tr. 473, 475. He opined that there was no 16 evidence of a causal relationship between Plaintiff’s depressive disorder and his 17 back injury. Tr. 475. He also noted that there was no objective evidence to 18 support a diagnosis of a depressive disorder, but that the diagnosis could be 19 justified by Plaintiff’s subjective reports. Tr. 475. He opined that Plaintiff did not 20 require any psychiatric accommodations or restrictions in the workplace. Tr. 477. 2 ORDER - 44 1 State agency psychological consultant John Robinson, Ph.D. reviewed the 2 record in May 2015. Tr. 70-83. Dr. Robinson opined that Plaintiff had no 3 limitations in his understanding and memory, he could learn and perform detailed 4 tasks, and he might have difficulty performing fast-paced work or sustained 5 multitasking due to impaired concentration, but he could learn and complete other 6 tasks for regular work periods. Tr. 79. He opined that Plaintiff could work in the 7 presence of the general public, could manage simple task cooperation with known 8 coworkers, and had moderate limitations in his ability to respond appropriately to 9 changes in a work setting. Tr. 80. In July 2015, another state agency 10 psychological consultant, Renee Eisenhauer, Ph.D, affirmed this opinion. Tr. 8511 99. 12 The ALJ gave significant weight to Dr. Schneider’s assessment of a general 13 lack of mental limitations, which the ALJ determined to be consistent with 14 Plaintiff’s history of full-time employment despite his longstanding and untreated 15 depressive disorder, as well as examination findings and lack of objective evidence 16 of psychological limitations during the relevant period. Tr. 30. However, due to 17 Plaintiff’s combination of impairments and substance use during the relevant 18 period, the ALJ incorporated mental limitations opined by Dr. Robinson into 19 Plaintiff’s RFC, including the ability to understand, remember, and carry out 20 2 ORDER - 45 1 simple instructions, make judgments commensurate with the functions of unskilled 2 work, and to tolerate occasional changes in the work environment. Tr. 21, 29-30. 3 Plaintiff fails to assert any challenge to the ALJ’s evaluation of the mental 4 opinion evidence. Therefore, argument on this issue is waived. See Carmickle, 5 533 F.3d at 1161 n.2; Kim, 154 F.3d at 1000. 6 7 C. Step Five Plaintiff contends the ALJ erred at step five because the ALJ relied upon an 8 RFC and hypothetical that failed to include all of Plaintiff’s limitations, including 9 his inability to sit for long periods of time. ECF No. 16 at 13-16. However, the 10 ALJ’s RFC need only include those limitations found credible and supported by 11 substantial evidence. Bayliss, 427 F.3d at 1217 (“The hypothetical that the ALJ 12 posed to the VE contained all of the limitations that the ALJ found credible and 13 supported by substantial evidence in the record.”). The hypothetical that ultimately 14 serves as the basis for the ALJ’s determination, i.e., the hypothetical that is 15 predicated on the ALJ’s final RFC assessment, must account for all of the 16 limitations and restrictions of the particular claimant. Bray, 554 F.3d at 1228. “If 17 an ALJ’s hypothetical does not reflect all of the claimant’s limitations, then the 18 expert’s testimony has no evidentiary value to support a finding that the claimant 19 can perform jobs in the national economy.” Id. However, the ALJ “is free to 20 accept or reject restrictions in a hypothetical question that are not supported by 2 ORDER - 46 1 substantial evidence.” Greger v. Barnhart, 464 F.3d 968, 973 (9th Cir. 2006). A 2 claimant fails to establish that a step five determination is flawed by simply 3 restating an argument that the ALJ improperly discounted certain evidence, when 4 the record demonstrates the evidence was properly rejected. Stubbs-Danielson v. 5 Astrue, 539 F.3d 1169, 1175–76 (9th Cir. 2008). 6 Plaintiff asserts that his inability to sit for long periods of time make him 7 unable to perform sedentary work, which is supported by Mr. Anderson’s opinion 8 that Plaintiff could only seldomly sit and stand/walk, and ARNP Ang’s opinion 9 that Plaintiff could sit for only 30 minutes at a time for a total of about four hours 10 in an eight-hour workday. ECF No. 16 at 15-16. Plaintiff’s argument is based 11 entirely on the assumption that the ALJ erred in considering the medical opinion 12 evidence and Plaintiff’s symptom claims. See Stubbs-Danielson, 539 F.3d at 1175 13 (challenge to ALJ’s step five findings was unavailing where it “simply restates 14 [claimant’s] argument that the ALJ’s RFC finding did not account for all her 15 limitations”). For reasons discussed throughout this decision, the ALJ’s adverse 16 findings in regards to Plaintiff’s subjective symptom claims and consideration of 17 the medical opinion evidence are legally sufficient and supported by substantial 18 evidence. Thus, the ALJ did not err in assessing the RFC and posed a hypothetical 19 to the vocational expert that incorporated all of the limitations in the ALJ’s RFC 20 determination, to which the expert responded that jobs within the national 2 ORDER - 47 1 economy exist that Plaintiff could perform. The ALJ properly relied upon this 2 testimony to support the step five determination. Therefore, the ALJ’s step five 3 determination that Plaintiff was not disabled within the meaning of the Social 4 Security Act was proper and supported by substantial evidence. 5 6 CONCLUSION After review, the Court finds that the ALJ’s decision is supported by 7 substantial evidence and free of harmful error. IT IS ORDERED: 8 1. Plaintiff’s Motion for Summary Judgment, ECF No. 16, is DENIED. 9 2. Defendant’s Motion for Summary Judgment, ECF No. 17, is 10 GRANTED. 11 The District Court Executive is directed to file this Order, enter 12 JUDGMENT FOR THE DEFENDANT, provide copies to counsel, and CLOSE 13 THE FILE. 14 DATED April 29, 2019. 15 s/Mary K. Dimke MARY K. DIMKE UNITED STATES MAGISTRATE JUDGE 16 17 18 19 20 2 ORDER - 48
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