Fiander v. Commissioner of Social Security, No. 1:2018cv03114 - Document 15 (E.D. Wash. 2019)
Court Description: ORDER Granting 13 Defendant's Motion for Summary Judgment; denying 12 Plaintiff's Motion for Summary Judgment. Signed by Magistrate Judge John T. Rodgers. (PL, Case Administrator)
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Fiander v. Commissioner of Social Security Doc. 15 FI LED I N THE U.S. DI STRI CT COURT EASTERN DI STRI CT OF WASHI NGTON 1 Apr 10, 2019 2 3 UNITED STATES DISTRICT COURT 4 EASTERN DISTRICT OF WASHINGTON SEAN F. MCAVOY, CLERK 5 6 7 8 9 10 11 12 JOSHUA JAMES F., No. 1:18-CV-03114-JTR Plaintiff, ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT v. COMMISSIONER OF SOCIAL SECURITY, Defendant. 13 14 BEFORE THE COURT are cross-motions for summary judgment. ECF 15 No. 12, 13. Attorney D. James Tree represents Joshua James F. (Plaintiff); Special 16 Assistant United States Attorney Michael Sinclair Howard represents the 17 Commissioner of Social Security (Defendant). The parties have consented to 18 proceed before a magistrate judge. ECF No. 6. After reviewing the administrative 19 record and briefs filed by the parties, the Court GRANTS Defendant’s Motion for 20 Summary Judgment and DENIES Plaintiff’s Motion for Summary Judgment. 21 22 JURISDICTION On February 17, 2015, Plaintiff filed an application for a period of disability 23 and Disability Insurance Benefits, Tr. 15, 195-201, and an application for 24 Supplemental Security Income benefits, Tr. 15, 202-209. Plaintiff alleged a 25 disability onset date of August 31, 2013, Tr. 15, 202, 220, due to Anxiety, Bilateral 26 Hand and Finger Numbness, Herniated Discs Neck and Back, Spinal 27 Stenosis/Bone Spurs, Left Shoulder Pain, Sleep Disturbance, Depression, and 28 ORDER GRANTING DEFENDANT’S MOTION . . . - 1 Dockets.Justia.com 1 Memory Loss. Tr. 224. Plaintiff’s applications were denied initially and upon 2 reconsideration. 3 Administrative Law Judge (ALJ) M.J. Adams held a hearing on February 4 28, 2017, Tr. 37-57, and issued an unfavorable decision on May 17, 2017. Tr. 15- 5 25. The Appeals Council denied review on April 16, 2018. Tr. 1-6. The ALJ’s 6 May 17, 2017, decision thus became the final decision of the Commissioner, which 7 is appealable to the district court pursuant to 42 U.S.C. § 405(g). Plaintiff filed this 8 action for judicial review on June 29, 2018. ECF No. 1. 9 STATEMENT OF FACTS The facts of the case are set forth in the administrative hearing transcript, the 10 11 ALJ’s decision, and the briefs of the parties. They are only briefly summarized 12 here. 13 Plaintiff was born on November 16, 1977 and was 35 years old on the 14 alleged disability onset date, August 31, 2013. Tr. 40, 220. Plaintiff has a General 15 Education Diploma (GED). Tr. 40. He has worked as a bartender, deli manager, 16 and food sales clerk. Tr. 20, 41-42. 17 Plaintiff’s disability report indicates he stopped working because of his 18 conditions on August 31, 2013. Tr. 224. He testified that he is unable to do any of 19 his past jobs because of chronic pain, anxiety, and issues with his hands, shoulder, 20 and neck. Tr. 20, 42, 250. Plaintiff reported that his back pain began when he was 21 involved in a car accident in September 2005, and the pain has progressively 22 gotten worse. Tr. 42, 426, 535, 648, 657, 706, 762. Plaintiff reported having 23 upper and lower back pain since the car accident. Tr. 426. He reported a lot of 24 stiffness and spasm in his back, and numbness and tingling in both legs. Tr. 426. 25 At the hearing, Plaintiff testified that he is unable to carry a 20-pound 26 weight. Tr. 20, 43. He stated that doing so would exacerbate his pain and 27 radicular symptoms. Tr. 20, 43. Plaintiff testified that numbness and pain prevent 28 him from manipulating objects and closing his hands into a fist. Tr. 20, 43-44. He ORDER GRANTING DEFENDANT’S MOTION . . . - 2 1 stated that he has received injections in his neck but has not been referred for 2 surgery. Tr. 20, 45-46. 3 Plaintiff also alleges that he has anxiety issues, major depression, and audio 4 and visual hallucinations. Tr. 20, 47, 250. He testified that he has been battling 5 depression since he was a teenager. Tr. 48. Plaintiff testified that he began taking 6 medication a couple of years before the administrative hearing to help with pain 7 and depression, and it seemed to help a little bit. Tr. 49. He also testified that he 8 has anxiety attacks when around groups of people. Tr. 20, 49-50. 9 Plaintiff reported that he lives in a shelter or with friends when he can, and 10 he sometimes lives with friends outside in a tent. Tr. 250, 657. Plaintiff has two 11 children who are not in his custody. Tr. 426, 494, 516, 535, 653. He reported that 12 he goes outside every day and tries to walk and stretch. Tr. 253, 494. He travels 13 by walking, riding in a car, or using public transportation. Tr. 253. He reported 14 that his hobbies are watching television, using the internet, reading books, and 15 walking. Tr. 254, 494. Plaintiff reported that he attends church every week, but 16 often has to leave early, and he attends Alcoholics Anonymous meetings. Tr. 254, 17 666. Plaintiff reported being able to care for his hygiene needs, including taking 18 19 regular baths and/or showers, brushing his teeth and combing his hair. Tr. 494. He 20 generally takes his own medication and is able to renew his prescriptions as 21 needed. Tr. 494. He typically schedules his own appointments with doctors or 22 other offices. Tr. 494. Plaintiff reported that he prepares meals weekly with help. 23 Tr. 252, 494. He reported that he shops in stores once or twice a month and tries to 24 shop fast because it hurts and he has a lot of anxiety. Tr. 253, 494. He is able to 25 perform household chores independently and whenever necessary, including 26 washing dishes, doing laundry, vacuuming, and dusting. Tr. 494. 27 /// 28 /// ORDER GRANTING DEFENDANT’S MOTION . . . - 3 1 2 STANDARD OF REVIEW The ALJ is responsible for determining credibility, resolving conflicts in 3 medical testimony, and resolving ambiguities. Andrews v. Shalala, 53 F.3d 1035, 4 1039 (9th Cir. 1995). The ALJ’s determinations of law are reviewed de novo, with 5 deference to a reasonable interpretation of the applicable statutes. McNatt v. Apfel, 6 201 F.3d 1084, 1087 (9th Cir. 2000). The decision of the ALJ may be reversed 7 only if it is not supported by substantial evidence or if it is based on legal error. 8 Tackett v. Apfel, 180 F.3d 1094, 1097 (9th Cir. 1999). Substantial evidence is 9 defined as being more than a mere scintilla, but less than a preponderance. Id. at 10 1098. Put another way, substantial evidence is such relevant evidence as a 11 reasonable mind might accept as adequate to support a conclusion. Richardson v. 12 Perales, 402 U.S. 389, 401 (1971). If the evidence is susceptible to more than one 13 rational interpretation, the Court may not substitute its judgment for that of the 14 ALJ. Tackett, 180 F.3d at 1097; Morgan v. Commissioner of Soc. Sec. Admin., 169 15 F.3d 595, 599 (9th Cir. 1999). If substantial evidence supports the administrative 16 findings, or if conflicting evidence supports a finding of either disability or non- 17 disability, the ALJ’s determination is conclusive. Sprague v. Bowen, 812 F.2d 18 1226, 1229-1230 (9th Cir. 1987). Nevertheless, a decision supported by 19 substantial evidence will be set aside if the proper legal standards were not applied 20 in weighing the evidence and making the decision. Brawner v. Secretary of Health 21 and Human Services, 839 F.2d 432, 433 (9th Cir. 1988). 22 23 SEQUENTIAL EVALUATION PROCESS The Commissioner has established a five-step sequential evaluation process 24 for determining whether a person is disabled. 20 C.F.R. §§ 404.1520(a), 25 416.920(a); Bowen v. Yuckert, 482 U.S. 137, 140-142 (1987). In steps one through 26 four, the burden of proof rests upon the claimant to establish a prima facie case of 27 entitlement to disability benefits. Tackett, 180 F.3d at 1098-1099. This burden is 28 met once a claimant establishes that a physical or mental impairment prevents the ORDER GRANTING DEFENDANT’S MOTION . . . - 4 1 claimant from engaging in past relevant work. 20 C.F.R. §§ 404.1520(a)(4), 2 416.920(a)(4). If a claimant cannot perform past relevant work, the ALJ proceeds 3 to step five, and the burden shifts to the Commissioner to show that the claimant 4 can perform other jobs present in significant numbers in the national economy. 5 Batson v. Commissioner of Soc. Sec. Admin., 359 F.3d 1190, 1193-1194 (2004). If 6 a claimant cannot make an adjustment to other work in the national economy, a 7 finding of “disabled” is made. 20 C.F.R. §§ 404.1520(a)(4)(v), 416.920(a)(4)(v). 8 ADMINISTRATIVE DECISION 9 On May 17, 2017, the ALJ issued a decision finding Plaintiff was not 10 11 12 disabled as defined in the Social Security Act. At step one, the ALJ found Plaintiff had not engaged in substantial gainful activity since the alleged onset date, August 31, 2013. Tr. 17. 13 At step two, the ALJ determined Plaintiff had the following severe 14 impairments: degenerative disc disease, obesity, affective disorder, and anxiety 15 disorder. Tr. 17. 16 At step three, the ALJ found Plaintiff did not have an impairment or 17 combination of impairments that meets or medically equals the severity of one of 18 the listed impairments. Tr. 17. 19 The ALJ assessed Plaintiff’s Residual Functional Capacity (RFC) and 20 determined that he could perform light work with the following limitations: he can 21 lift and carry 20 pounds occasionally and 10 pounds frequently; can stand and/or 22 walk for six hours in an eight-hour workday and sit for six hours in an eight-hour 23 workday; can occasionally climb ladders, ropes, or scaffolds, crouch, and stoop, 24 and can frequently crawl; must avoid concentrated exposure to vibration, 25 hazardous machinery, and unprotected heights; can understand, remember, and 26 carry out simple instructions; can make judgments commensurate with the 27 functions of unskilled work, i.e., work that needs little or no judgment to do simple 28 duties and a person can usually learn to do in 30 days, and little specific vocational ORDER GRANTING DEFENDANT’S MOTION . . . - 5 1 preparation and judgment are needed; can respond appropriately to supervision, but 2 should not be required to work in close coordination with co-workers where 3 teamwork is required; can deal with occasional changes in the work environment; 4 and can do work that requires no contact with the general public to perform the 5 work tasks. Tr. 19. 6 7 8 9 At step four, the ALJ determined Plaintiff was not able to perform his past relevant work. Tr. 24. At step five, the ALJ determined that, considering Plaintiff’s age, education, work experience and RFC, and based on the testimony of the vocational expert 10 (VE), Plaintiff could perform other jobs present in significant numbers in the 11 national economy, including the light exertion level jobs of cleaner, housekeeping; 12 production assembler; and hand packager. Tr. 24-25. The ALJ thus concluded 13 that Plaintiff was not under a disability within the meaning of the Social Security 14 Act from August 31, 2013, through the date of the ALJ’s decision, May 17, 2017. 15 Tr. 25. ISSUES 16 17 The question presented is whether substantial evidence supports the ALJ’s 18 decision denying benefits and, if so, whether that decision is based on proper legal 19 standards. Plaintiff contends the ALJ erred by (1) improperly discrediting 20 Plaintiff’s symptom claims; and (2) failing to properly consider and weigh the 21 opinion evidence. ECF No. 12 at 2. DISCUSSION1 22 23 24 1 In Lucia v. S.E.C., 138 S.Ct. 2044 (2018), the Supreme Court recently held 25 that ALJs of the Securities and Exchange Commission are “Officers of the United 26 States” and thus subject to the Appointments Clause. To the extent Lucia applies 27 to Social Security ALJs, the parties have forfeited the issue by failing to raise it in 28 their briefing. See Carmickle v. Comm’r of Soc. Sec. Admin., 533 F.3d 1155, 1161 ORDER GRANTING DEFENDANT’S MOTION . . . - 6 1 A. 2 Plaintiff’s Symptom Testimony Plaintiff contends the ALJ erred by improperly discrediting his symptom 3 complaints. ECF No. 12 at 4-14. It is the province of the ALJ to make credibility 4 determinations. Andrews, 53 F.3d at 1039. In considering Plaintiff’s symptoms, 5 the ALJ must follow a two-step analysis. Lingerfelter v. Astrue, 504 F.3d 1028, 6 1035-36 (9th Cir. 2007). First, the ALJ must determine whether there is objective 7 evidence of an underlying impairment that could reasonably be expected to 8 produce Plaintiff’s pain or other symptoms. Id. at 1036 (quotation omitted). 9 “Second, if the claimant meets this first test, and there is no evidence of 10 malingering, ‘the ALJ can reject the claimant’s testimony about the severity of her 11 symptoms only by offering specific, clear and convincing reasons for doing so.’” 12 Id; citing Smolen v. Chater, 80 F.3d 1273, 1281 (9th Cir. 1996). “General findings 13 are insufficient: rather, the ALJ must identify what testimony is not credible and 14 what evidence undermines the claimant’s complaints.” Lester v. Chater, 81 F.3d 15 821, 834 (9th Cir. 1996); Dodrill v. Shalala, 12 F.3d 915, 918 (9th Cir. 1993). 16 In this case, the ALJ found that Plaintiff’s medically determinable 17 impairments could possibly produce the alleged symptoms, however, Plaintiff’s 18 statements concerning the intensity, persistence, and limiting effects of these 19 symptoms were not entirely consistent with the objective medical and other 20 evidence. Tr. 20. The ALJ recounted the following reasons for discrediting 21 Plaintiff’s symptom testimony: (i) inconsistencies with the medical evidence; (ii) 22 inconsistencies with Plaintiff’s activities of daily living; and (iii) Plaintiff engaged 23 in negative impression management during a benefits evaluation. Tr. 20-22. The 24 ALJ provided specific examples of each. Id. 25 /// 26 27 n.2 (9th Cir. 2008) (the Court will not consider matters on appeal that were not 28 specifically addressed in an appellant’s opening brief). ORDER GRANTING DEFENDANT’S MOTION . . . - 7 1 1. Inconsistent with Medical Evidence 2 The ALJ found that the medical evidence in the record did not substantiate 3 Plaintiff’s allegations of disabling symptoms. Tr. 20-21. An ALJ may, with clear 4 and convincing reasons, discount the claimant’s statements if not fully supported 5 by objective evidence. Carmickle, 533 F.3d at 1160. These reasons need only be 6 supported by substantial evidence. Rollins v. Massanari, 261 F.3d 853, 857 (9th 7 Cir. 2001). “While subjective pain testimony cannot be rejected on the sole ground 8 that it is not fully corroborated by objective medical evidence, the medical 9 evidence is still a relevant factor in determining the severity of the claimant’s pain 10 11 and its disabling effects.” Id., citing 20 C.F.R. 404.1529(c)(2). Plaintiff alleged that his ability to use his hands was severely limited. Tr. 12 21, 43-44. He testified that he could not reasonably lift or carry a 20-pound 13 weight. Tr. 43. However, the ALJ determined that the medical evidence in the 14 record did not support the level of impairment alleged. Tr. 20-21; see, e.g., Tr. 15 745-46 (Plaintiff reported in August 2015 that he could lift up to 20 to 30 pounds, 16 stand up to 60 minutes, sit for up to 60 minutes, and walk up to half a mile); Tr. 17 746 (examination found normal lumbar flexion but limited extension and lateral 18 flexion); Tr. 613, 620, 633; 711-12 (examinations in October 2015, July and 19 October 2016, and January 2017 found intact upper and lower extremity strength, 20 sensation, and reflexes). 21 Plaintiff reported severe back and neck pain. Tr. 21, 454-56. However, the 22 ALJ found that the record evidence conflicted with Plaintiff’s assertion that his 23 back and neck pain limited his ability to walk and move around. Tr. 21. 24 Examination showed that Plaintiff moved easily and had normal muscle bulk and 25 tone. Tr. 456. In April 2016, Plaintiff had limited lumbar range of motion, but 26 otherwise showed normal gait and good mobility. Tr. 728, 735. An examination 27 in January 2017 found that Plaintiff ambulated without assistance, had intact 28 shoulder range of motion, and no muscle atrophy. Tr. 711-12. ORDER GRANTING DEFENDANT’S MOTION . . . - 8 1 The ALJ acknowledged that the record included findings of tenderness to 2 palpation of Plaintiff’s cervical and lumbar spine, Tr. 21 (citing Tr. 613, 620. 633), 3 and a nerve conduction velocity (NCV) study in January 2016 revealed findings 4 consistent with mid-cervical spine nerve irritation and mild carpal tunnel 5 syndrome, Tr. 21 (citing Tr. 765-67). However, the ALJ found that these mild to 6 moderate findings did not outweigh the numerous findings in the record showing 7 that Plaintiff’s symptoms were not as limiting as he alleged. Tr. 21. The ALJ 8 noted that objective medical findings, including imaging studies, were inconsistent 9 with Plaintiff’s allegations of disability. Tr. 21; see, e.g., Tr. 531 (April 2015: MRI 10 scan showed a lumbar disc herniation and degeneration at two levels but no nerve 11 root impingement); Tr. 570 (April 2015: x-ray showed mild arthritic changes in 12 Plaintiff’s neck); Tr. 613 (October 2016: straight leg raising tests were negative); 13 Tr. 711-12 (November 2016: MRI scan showed mild to moderate degeneration and 14 stenosis of the cervical spine). 15 Plaintiff alleged that his depression and anxiety symptoms limited his ability 16 to concentrate and be around others. Tr. 21, 49, 254-55. However, the ALJ 17 determined that the record failed to show that Plaintiff’s symptoms would prevent 18 him from working within the parameters of the residual functional capacity. Tr. 19 21-22; see, e.g., Tr. 456 (November 2014: Plaintiff showed normal memory and 20 judgment and normal mood and affect); Tr. 516 (March 2015: Plaintiff reported 21 episodic anxiety and depression due to his living situation, and examination noted 22 mild symptoms); Tr. 653-55 (March 2016: Plaintiff reported problems with 23 impaired concentration, low interest, and low energy with racing thoughts, but 24 mental status examination was within normal limits, with adequate attention and 25 fair eye contact); Tr. 684, 687, 693, 698, 701, 704, 708 (records show that Plaintiff 26 was pleasant and cooperative, normal psychomotor activity, normal speech, 27 adequate attention in March, April, May, June, July, August, October 2016, despite 28 ORDER GRANTING DEFENDANT’S MOTION . . . - 9 1 his reports of irritability, paranoia, and hallucinations); Tr. 681 (December 2016: 2 Plaintiff showed adequate attention, fair eye contact, and normal speech). 3 Plaintiff reported that audio hallucinations interfered with his ability to 4 work. Tr. 250. However, as determined by the ALJ, the record contained only 5 sporadic reports of these symptoms and did not indicate that hallucinations 6 compromised his functioning. Tr. 22. In March 2014, Plaintiff denied disturbing 7 thoughts, memory loss, nervousness, hallucinations, psychiatric disorders, and 8 excessive stress. Tr. 479. In April 2015, Plaintiff did not report hallucinations 9 when seeking treatment for mental symptoms. Tr. 555. In a Patient Health 10 Questionnaire completed in April 2015, Plaintiff denied problems with 11 concentration, getting along with others, or difficulty working, Tr. 556, and he 12 showed appropriate mood and affect, as well as normal memory, Tr. 559. 13 The ALJ reasonably concluded, based on this record, that the medical 14 evidence did not support the level of impairment alleged by Plaintiff. Tr. 20-21. 15 This was a proper basis for the ALJ to discredit Plaintiff’s symptom testimony. 16 Parra v. Astrue, 481 F.3d 742, 750-51 (9th Cir. 2007); Rollins, 261 F.3d at 857. 17 2. Inconsistent with Activities of Daily Living 18 As determined by the ALJ, Plaintiff has shown that he is able to engage in a 19 variety of activities that are inconsistent with his alleged limitations. Tr. 22. It is 20 well-established that the nature of daily activities may be considered when 21 evaluating credibility. Fair v. Bowen, 885 F.2d 597, 603 (9th Cir. 1989). While 22 one does not need to be “utterly incapacitated” to be disabled, id., it was proper for 23 the ALJ to find Plaintiff’s reports of activities (ability to go on walks, use public 24 transportation, read “a lot,” attend church and Alcoholics Anonymous meetings, 25 wash dishes, do laundry, vacuum, clean, and grocery shop, Tr. 253-54, 494), were 26 inconsistent with the limitations Plaintiff alleged, and detracted from his overall 27 credibility. See Molina v. Astrue, 674 F.3d 1104, 1113 (9th Cir. 2012) (“Even 28 where [a claimant’s daily] activities suggest some difficulty functioning, they may ORDER GRANTING DEFENDANT’S MOTION . . . - 10 1 be grounds for discrediting the claimant’s testimony to the extent that they 2 contradict claims of a totally debilitating impairment.”); see also Morgan, 169 F.3d 3 at 599-600, 603 (affirming the ALJ’s adverse determination regarding symptom 4 testimony and noting that evidence of the claimant’s daily activities, such as the 5 ability to fix meals, do laundry, work in the yard, and occasionally care for his 6 friend’s child, served as evidence of his ability to work); Rollins, 261 F.3d at 857 7 (affirming the ALJ’s adverse determination regarding symptom testimony and 8 noting that the claimant’s allegation of disability was undermined by testimony 9 about her daily activities, such as attending to the needs of her two young children, 10 cooking, and shopping). 11 3. Negative Impression Management 12 The ALJ found that the evidence suggested Plaintiff engaged in negative 13 impression management during a benefits evaluation, which called into question 14 the veracity of his allegations. Tr. 22. The tendency to exaggerate provides a 15 permissible reason for discounting a claimant’s reported symptoms. See 16 Tonapetyan v. Halter, 242 F.3d 1144, 1148 (9th Cir. 2001) (the ALJ appropriately 17 considered the claimant’s tendency to exaggerate when assessing the claimant’s 18 credibility, which was shown in a doctor’s observation that Plaintiff was 19 uncooperative during cognitive testing but was “much better” when giving reasons 20 for being unable to work.). 21 During a February 2015 Department of Social and Health Services (DSHS) 22 benefits evaluation conducted by psychologist Dr. Genthe, Plaintiff showed “subtle 23 suggestions that [he] attempted to portray himself in a negative or pathological 24 manner in particular areas.” Tr. 499. Dr. Genthe also noted “[s]ome concern 25 about distortion of the clinical picture must be raised as a result; [Plaintiff] presents 26 with certain patterns or combinations of features that are unusual or atypical in 27 clinical populations but relatively common among individuals feigning mental 28 ORDER GRANTING DEFENDANT’S MOTION . . . - 11 1 disorder.” Tr. 499. The ALJ found that this observation diminished the 2 persuasiveness of Plaintiff’s allegations. Tr. 22. The ALJ is responsible for reviewing the evidence and resolving conflicts or 3 4 ambiguities in testimony. Magallanes v. Bowen, 881 F.2d 747, 750 (9th Cir. 5 1989). It is the role of the trier of fact, not this Court, to resolve conflicts in 6 evidence. Richardson, 402 U.S. at 399-400 (1971). The Court has a limited role 7 in determining whether the ALJ’s decision is supported by substantial evidence 8 and may not substitute its own judgment for that of the ALJ even if it might 9 justifiably have reached a different result upon de novo review. 42 U.S.C. § 10 405(g). After reviewing the record, the Court finds that the ALJ provided clear 11 and convincing reasons, which are fully supported by the record, for discounting 12 Plaintiff’s subjective complaints. Accordingly, the ALJ did not err by finding 13 Plaintiff’s symptom allegations were not entirely credible in this case. 14 B. 15 Medical Source Opinions Plaintiff argues that the ALJ erred by improperly according more weight to 16 the reviewing opinion of Dr. Ignacio than treating provider Dr. Crank regarding 17 Plaintiff’s physical limitations, and by assigning more weight to the psychological 18 reviewers than examining provider Dr. Genthe. ECF No. 12 at 14-21. 19 In weighing medical source opinions in a disability proceeding, the courts 20 distinguish among the opinions of three types of acceptable medical sources: (i) 21 treating physicians, who actually treat the claimant; (ii) examining physicians, who 22 examine but do not treat the claimant; and (iii) non-examining physicians, who 23 neither treat nor examine the claimant. Lester, 81 F.3d at 830. An opinion of a 24 treating physician is given more weight than the opinion of a non-treating 25 physician. Orn v. Astrue, 495 F.3d 625, 631 (9th Cir. 2007). An examining 26 physician’s opinion is given more weight than that of a non-examining physician’s 27 opinion. Benecke v. Barnhart, 379 F.3d 587, 592 (9th Cir. 2004); Lester, 81 F.3d 28 at 830. If the ALJ rejects a treating or examining physician’s opinion that is ORDER GRANTING DEFENDANT’S MOTION . . . - 12 1 contradicted by another doctor, he must provide specific, legitimate reasons based 2 on substantial evidence in the record. Valentine v. Comm’r of Soc. Sec. Admin., 3 574 F.3d 685, 692 (9th Cir. 2009). The ALJ is required to set forth the reasoning 4 behind his or her decisions in a way that allows for meaningful review. Brown- 5 Hunter v. Colvin, 806 F.3d 487, 492 (9th Cir. 2015) (finding a clear statement of 6 the agency’s reasoning is necessary because the Court can affirm the ALJ’s 7 decision to deny benefits only on the grounds invoked by the ALJ). “Although the 8 ALJ’s analysis need not be extensive, the ALJ must provide some reasoning in 9 order for us to meaningfully determine whether the ALJ’s conclusions were 10 supported by substantial evidence.” Treichler v. Comm’r of Soc. Sec. Admin., 775 11 F.3d 1090, 1103 (9th Cir. 2014). Plaintiff’s Physical Limitations 12 1. 13 On April 2, 2015, treating physician Jeremiah Crank, M.D. completed a 14 Physical Functional Evaluation and opined that Plaintiff was unable to meet the 15 demands of sedentary work. Tr. 507-511. Dr. Crank diagnosed neck and low back 16 pain, degenerative disc disease, concern about a herniated disc, and nerve 17 compression. Tr. 508. He estimated the limitation on Plaintiff’s work activities 18 would persist with available medical treatment for 12 months. Tr. 509. 19 The ALJ assigned little weight to Dr. Crank’s opinion. Tr. 23. The ALJ 20 determined that Dr. Crank’s own examination findings were out of proportion with 21 the severe limitations that he attributed to Plaintiff. Tr. 23. This was a specific and 22 legitimate reason to reject Dr. Crank’s opinion regarding Plaintiff’s limitations. 23 See Tommasetti v. Astrue, 533 F.3d 1035, 1041 (9th Cir. 2008) (holding that the 24 existence of internal inconsistencies within a physician’s opinion constitutes a 25 specific and legitimate reason for the ALJ to reject that physician’s opinion 26 concerning the claimant’s functional limitations). The ALJ specifically cited Dr. 27 Crank’s range of motion testing which showed essentially intact back mobility and 28 minor limitations of Plaintiff’s neck movement. Tr. 23 (citing Tr. 574-75). The ORDER GRANTING DEFENDANT’S MOTION . . . - 13 1 ALJ also cited Dr. Crank’s examination findings that Plaintiff exhibited normal 2 upper and lower extremity strength and sensation. Tr. 23 (citing Tr. 580). These 3 findings are inconsistent with Dr. Crank’s opinion that Plaintiff’s neck and back 4 pain would prevent him from performing even sedentary work. 5 Further, the ALJ found Dr Crank’s conclusion that Plaintiff had severe 6 limitations with walking conflicted with Plaintiff’s repeated reports that he spent 7 time going on walks. Tr. 23 (citing Tr. 253-54, 494, 572). See Morgan, 169 F.3d 8 at 600-02 (considering an inconsistency between a treating physician’s opinion and 9 a claimant’s reported daily activities is a specific and legitimate reason to discount 10 the treating physician’s opinion). A review of the record reveals several reports by 11 Plaintiff that he spends time going on walks, he walks as a method of 12 transportation, and he tries to incorporate walks into his daily routine. See Tr. 253 13 (Plaintiff reported that he goes outside “everyday [to] try to walk and stretch”); Tr. 14 253 (Plaintiff reported that he travels by walking, using public transportation, and 15 riding in a car); Tr. 494 (Plaintiff reported that his general activities include going 16 for walks); Tr. 50 (Plaintiff testified that he tries to get out everyday and “at least 17 try to walk a little bit”). These reports are inconsistent with Dr. Crank’s opinion 18 that Plaintiff has severe walking limitations. Tr. 572. 19 The Court finds the severe physical limitations assessed by Dr. Crank are 20 inconsistent with his own examination findings and Plaintiff’s reports that he spent 21 time going on walks, and the ALJ provided specific and legitimate reasons, 22 supported by substantial evidence, for according little weight to Dr. Crank’s 23 limitations. 24 On June 4, 2015, Olegario Ignacio, Jr., M.D. reviewed the record and opined 25 that Plaintiff could perform light work with the additional restrictions stated in the 26 residual functional capacity. Tr. 103-117. 27 28 The ALJ assigned great weight to Dr. Ignacio’s opinion. Tr. 23. The ALJ found that Dr. Ignacio’s assessment was consistent with the objective medical ORDER GRANTING DEFENDANT’S MOTION . . . - 14 1 evidence, the observations of treatment providers, and Plaintiff’s reported 2 activities. Tr. 23. The ALJ also noted that the evidence added to the record after 3 Dr. Ignacio’s review did not objectively establish the presence of more significant 4 functional limitations. Tr. 23. 5 It is the responsibility of the ALJ to determine credibility, resolve conflicts 6 in medical testimony, and resolve ambiguities, Saelee v. Chater, 94 F.3d 520, 522 7 (9th Cir. 1996), and this Court may not substitute its own judgment for that of the 8 ALJ. 42 U.S.C. § 405(g). Where, as here, the ALJ has made specific findings 9 justifying a decision, and those findings are supported by substantial evidence in 10 the record, this Court’s role is not to second-guess that decision. Fair, 885 F.2d at 11 604. Plaintiff’s Mental Limitations 12 2. 13 On February 25, 2015, examining psychologist Thomas Genthe, Ph.D., 14 completed a Psychological/Psychiatric Evaluation. Tr. 493-501. Dr. Genthe 15 concluded that Plaintiff presented with primary mental health claims as the reason 16 for his current unemployment. Tr. 496. He opined that Plaintiff’s psychological 17 symptoms appeared to have considerably impacted his daily activities and level of 18 functioning necessary to move forward and pursue gainful employment or continue 19 his education. Tr. 496. Dr. Genthe found that Plaintiff’s symptoms were not being 20 managed at the time of the evaluation. Tr. 496. He recommended that Plaintiff be 21 referred for a psychiatric consultation to review his regimen and dosages for 22 effectiveness. Tr. 496. He also recommended a referral for individual counseling 23 services in attempts to target recent familial issues and psychosocial stressors that 24 appeared to be contributing to Plaintiff’s current level of distress. Tr. 496. 25 Dr. Genthe assessed Plaintiff’s ability to interact appropriately with the 26 public in everyday situations as fair. Tr. 496. His ability to get along with 27 coworkers and/or peers was assessed as poor. Tr. 496. His ability to respond 28 appropriately to criticism from supervisors was assessed as poor. Tr. 496. ORDER GRANTING DEFENDANT’S MOTION . . . - 15 1 Plaintiff’s prognosis was viewed as guarded. Tr. 496. Dr. Genthe determined that, 2 at the time of the evaluation, Plaintiff was unlikely to function adequately in a 3 work setting until his psychological symptoms had been managed more effectively. 4 Tr. 496. He noted that, given Plaintiff’s response to treatment and willing 5 participation, a period of six to nine months may likely be sufficient to address his 6 treatment needs at least moderately well, and help him regain the necessary 7 emotional functioning to resume fulltime work-related activities. Tr. 496. 8 9 The ALJ gave little weight to Dr. Genthe’s opinion. Tr. 23. The ALJ determined that the limitations set forth by Dr. Genthe: (i) were inconsistent with 10 the medical evidence of record; (ii) were inconsistent with Dr Genthe’s own 11 observations; (iii) relied heavily on Plaintiff’s subjective reports; and (iv) were 12 contradicted by Plaintiff’s own allegations. Tr. 23. 13 In finding that Dr. Genthe’s opinion was inconsistent with the medical 14 evidence of record, the ALJ cited to the medical evidence discussed in the decision 15 which showed that Plaintiff’s symptoms were generally mild to moderate and did 16 not cause marked functional limitations. Tr. 23. An ALJ may discredit a 17 physician’s opinions that are unsupported by the record as a whole. Batson, 359 18 F.3d at 1195. As discussed supra, Plaintiff’s objective imaging and physical 19 examinations yielded results that were consistent with the ALJ’s RFC formulation. 20 See Tr. 456 (November 2014: Plaintiff showed normal memory and judgment and 21 normal mood and affect); Tr. 516 (March 2015: Plaintiff reported episodic anxiety 22 and depression due to his living situation, and examination noted mild symptoms); 23 Tr. 653-55 (March 2016: Plaintiff reported problems with impaired concentration, 24 low interest, and low energy with racing thoughts, but mental status examination 25 was within normal limits, with adequate attention and fair eye contact); Tr. 684, 26 687, 693, 698, 701, 704, 708 (records show that Plaintiff was pleasant and 27 cooperative, normal psychomotor activity, normal speech, adequate attention in 28 March, April, May, June, July, August, October 2016, despite his reports of ORDER GRANTING DEFENDANT’S MOTION . . . - 16 1 irritability, paranoia, and hallucinations); Tr. 681 (December 2016: Plaintiff 2 showed adequate attention, fair eye contact, and normal speech); Tr. 479 (March 3 2014: Plaintiff denied disturbing thoughts, memory loss, nervousness, 4 hallucinations, psychiatric disorders, and excessive stress). This inconsistency 5 with the medical evidence was a specific and legitimate reason to discredit Dr. 6 Genthe’s opinion. 7 Further, the ALJ found that Dr. Genthe’s opinion was inconsistent with his 8 own observations. Tr. 23 (citing Tr. 497-98). The existence of internal 9 inconsistencies within a physician’s opinion constitutes a specific and legitimate 10 reason for the ALJ to reject that physician’s opinion concerning the claimant’s 11 functional limitations. Tommasetti, 533 F.3d at 1041. The ALJ specifically cited 12 Dr. Genthe’s examination of Plaintiff, which showed normal mental status and 13 normal behavior. Tr. 23 (citing Tr. 497-98). Dr. Genthe’s assessed marked 14 difficulties with completing a normal work day and work week without 15 interruption and with maintaining appropriate workplace behavior were thus 16 inconsistent with his own examination findings. This was a specific and legitimate 17 reason to reject Dr. Genthe’s opinion regarding Plaintiff’s limitations. 18 The ALJ determined that Dr. Genthe relied heavily on Plaintiff’s subjective 19 reports, which Dr. Genthe noted were not entirely reliable. Tr. 23 (citing Tr. 499). 20 As discussed supra, the ALJ properly discounted Plaintiff’s symptom testimony. 21 “An ALJ may reject a treating physician’s opinion if it is based ‘to a large extent’ 22 on a claimant’s self-reports that have been properly discounted as incredible.” 23 Tommasetti, 533 F.3d at 1041. A review of Dr. Genthe’s 24 Psychological/Psychiatric Evaluation reveals that it largely reflects Plaintiff’s 25 reports of limitations, with little independent analysis or diagnosis. Tr. 493-501. 26 Reliance on Plaintiff’s self-reported symptoms rather than the doctor’s 27 examination findings constituted a specific and legitimate reason for the ALJ to 28 reject Dr. Genthe’s opinion regarding Plaintiff’s limitations. ORDER GRANTING DEFENDANT’S MOTION . . . - 17 1 Finally, the ALJ determined that some of Dr. Genthe’s opinions, including 2 his assertion that Plaintiff had poor ability to get along with co-workers and 3 supervisors, were contradicted by Plaintiff’s own allegations. Tr. 23 (citing Tr. 4 255, 496). As discussed supra, an ALJ may reject limitations “unsupported by the 5 record as a whole.” Batson, 359 F.3d at 1195. In his Adult Function Report, 6 Plaintiff reported that he had no problems getting along with family, friends, 7 neighbors, or others, Tr. 255, but Dr. Genthe opined that Plaintiff’s ability to get 8 along with coworkers, peers, and to respond appropriately to criticism from 9 supervisors was poor, Tr. 496. This constituted a specific and legitimate reason to 10 discount Dr. Genthe’s opinion about Plaintiff’s poor ability to get along with co- 11 workers and supervisors. 12 13 14 Overall, Dr. Genthe’s assessment of Plaintiff was inconsistent with the record evidence, and the ALJ gave his opinions little weight. Tr. 23. In April and June 2015, state agency mental health reviewers Thomas 15 Clifford, Ph.D., and Renee Eisenhauer, Ph.D. completed mental health 16 assessments. Tr. 23 (citing Tr. 60-72, 103-114). They found that Plaintiff could 17 perform simple and well-learned complex tasks and had moderate limitations of his 18 ability to interact with others. Tr. 23, 69, 112-13. 19 The ALJ accorded some weight to the opinions of the state agency mental 20 health assessors. Tr. 23. The ALJ found that their opinions were generally 21 consistent with the evidence of record, although the ALJ found that Plaintiff was 22 limited to simple tasks and unskilled work. Tr. 23. The ALJ also determined the 23 opinion that Plaintiff was “moderately limited” in various functional categories 24 was vague and did not provide a specific functional limitation. Tr. 23, 68-69, 113. 25 It is the responsibility of the ALJ to determine credibility, resolve conflicts 26 in medical testimony, and resolve ambiguities, Saelee, 94 F.3d at 522, and this 27 Court may not substitute its own judgment for that of the ALJ. 42 U.S.C. § 405(g). 28 Where, as here, the ALJ has made specific findings justifying a decision, and those ORDER GRANTING DEFENDANT’S MOTION . . . - 18 1 findings are supported by substantial evidence in the record, this Court’s role is not 2 to second-guess that decision. Fair, 885 F.2d at 604. 3 Having reviewed the ALJ’s evaluation of the medical evidence, the Court 4 finds the ALJ’s interpretation was based on substantial evidence, and the ALJ 5 supported the findings with specific and legitimate reasoning. 6 CONCLUSION 7 Having reviewed the record and the ALJ’s findings, the Court finds the 8 ALJ’s decision should be affirmed. Therefore, IT IS HEREBY ORDERED: 9 10 1. Defendant’s Motion for Summary Judgment, ECF No. 13, is GRANTED. Plaintiff’s Motion for Summary Judgment, ECF No. 12, is DENIED. 11 2. 12 The District Court Executive is directed to file this Order and provide a copy 13 to counsel for Plaintiff and Defendant. Judgment shall be entered for Defendant 14 and the file shall be CLOSED. 15 DATED April 10, 2019. 16 17 18 _____________________________________ JOHN T. RODGERS UNITED STATES MAGISTRATE JUDGE 19 20 21 22 23 24 25 26 27 28 ORDER GRANTING DEFENDANT’S MOTION . . . - 19
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