Linebeck v. Kijakazi, No. 1:2022cv03084 - Document 13 (E.D. Wash. 2023)
Court Description: ORDER AFFIRMING DECISION OF COMMISSIONER; denying 10 Plaintiff's Opening Brief; granting 11 Commissioner's Brief. File is closed. Signed by Judge Mary K. Dimke. (REM, Case Administrator)
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Linebeck v. Kijakazi Doc. 13 Case 1:22-cv-03084-MKD ECF No. 13 filed 08/14/23 PageID.700 Page 1 of 23 1 FI LED I N THE U.S. DI STRI CT COURT EASTERN DI STRI CT OF WASHI NGTON 2 Aug 14, 2023 3 SEAN F. MCAVOY, CLERK 4 5 UNITED STATES DISTRICT COURT 6 EASTERN DISTRICT OF WASHINGTON 7 MYSTICAL L.,1 8 No. 1:22-cv-03084-MKD Plaintiff, 9 ORDER AFFIRMING DECISION OF COMMISSIONER v. ECF Nos. 10, 11 10 11 KILOLO KIJAKAZI, ACTING COMMISSIONER OF SOCIAL SECURITY, 12 Defendant. Before the Court are the parties’ briefs. ECF Nos. 10, 11. The Court, 13 14 having reviewed the administrative record and the parties’ briefing, is fully 15 informed. For the reasons discussed below, the Court affirms the Commissioner’s 16 decision. 17 18 1 To protect the privacy of plaintiffs in social security cases, the undersigned 19 identifies them by only their first names and the initial of their last names. See 20 LCivR 5.2(c). ORDER - 1 Dockets.Justia.com Case 1:22-cv-03084-MKD 1 2 filed 08/14/23 PageID.701 Page 2 of 23 JURISDICTION The Court has jurisdiction over this case pursuant to 42 U.S.C. § 405(g). 3 4 ECF No. 13 STANDARD OF REVIEW A district court’s review of a final decision of the Commissioner of Social 5 Security is governed by 42 U.S.C. § 405(g). The scope of review under § 405(g) is 6 limited; the Commissioner’s decision will be disturbed “only if it is not supported 7 by substantial evidence or is based on legal error.” Hill v. Astrue, 698 F.3d 1153, 8 1158 (9th Cir. 2012). “Substantial evidence” means “relevant evidence that a 9 reasonable mind might accept as adequate to support a conclusion.” Id. at 1159 10 (quotation and citation omitted). Stated differently, substantial evidence equates to 11 “more than a mere scintilla[,] but less than a preponderance.” Id. (quotation and 12 citation omitted). In determining whether the standard has been satisfied, a 13 reviewing court must consider the entire record as a whole rather than searching 14 for supporting evidence in isolation. Id. 15 In reviewing a denial of benefits, a district court may not substitute its 16 judgment for that of the Commissioner. Edlund v. Massanari, 253 F.3d 1152, 17 1156 (9th Cir. 2001). If the evidence in the record “is susceptible to more than one 18 rational interpretation, [the court] must uphold the ALJ’s findings if they are 19 supported by inferences reasonably drawn from the record.” Molina v. Astrue, 674 20 F.3d 1104, 1111 (9th Cir. 2012), superseded on other grounds by 20 C.F.R. § ORDER - 2 Case 1:22-cv-03084-MKD ECF No. 13 filed 08/14/23 PageID.702 Page 3 of 23 1 404.1502(a). Further, a district court “may not reverse an ALJ’s decision on 2 account of an error that is harmless.” Id. An error is harmless “where it is 3 inconsequential to the [ALJ’s] ultimate nondisability determination.” Id. at 1115 4 (quotation and citation omitted). The party appealing the ALJ’s decision generally 5 bears the burden of establishing that it was harmed. Shinseki v. Sanders, 556 U.S. 6 396, 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 ORDER - 3 Case 1:22-cv-03084-MKD ECF No. 13 filed 08/14/23 PageID.703 Page 4 of 23 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. Id. 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), ORDER - 4 Case 1:22-cv-03084-MKD ECF No. 13 filed 08/14/23 PageID.704 Page 5 of 23 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. Id. If the claimant is capable of adjusting to other work, the 15 Commissioner must find that the claimant is not disabled. 20 C.F.R. § 16 404.1520(g)(1). If the claimant is not capable of adjusting to other work, the 17 analysis concludes with a finding that the claimant is disabled and is therefore 18 entitled to benefits. Id. 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 ORDER - 5 Case 1:22-cv-03084-MKD ECF No. 13 filed 08/14/23 PageID.705 Page 6 of 23 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 numbers 3 in the national economy.” 20 C.F.R. § 404.1560(c)(2); Beltran v. Astrue, 700 F.3d 4 386, 389 (9th Cir. 2012). 5 ALJ’S FINDINGS 6 On August 15, 2017, Plaintiff applied for Title II disability insurance 7 benefits alleging a disability onset date of July 25, 2016.2 Tr. 82, 86. The claim 8 was denied, and Plaintiff did not timely file a request for reconsideration. Tr. 86. 9 Plaintiff filed a new application for Title II benefits on October 11, 2018. 3 Id. An 10 11 12 2 Plaintiff previously applied for Title II and Title XVI benefits on July 11, 2014, 13 with an alleged onset date of November 1, 2009; the claim was denied initially and 14 on reconsideration, and the denial was upheld by an ALJ on May 26, 2016. Tr. 74, 15 89. Plaintiff appealed the decision, and the Appeals Council declined review and 16 this Court denied Plaintiff’s Motion for Summary Judgment. Tr. 12, 74; Mystical 17 L. v. Andrew Saul, No. 1:17-cv-3166-MKD (E.D. Wash. Nov. 21, 2018). 18 3 The administrative record appears to be incomplete as several items typically 19 found in a record are not present in this case. For example, Plaintiff’s applications 20 for benefits and this Court’s prior Order are not contained in the record. However, ORDER - 6 Case 1:22-cv-03084-MKD ECF No. 13 filed 08/14/23 PageID.706 Page 7 of 23 1 ALJ dismissed the case, finding res judicata applied. Tr. 85-87. The Appeals 2 Council remanded the case on February 27, 2021. Tr. 88-90. The Appeals 3 Council noted that on October 16, 2018, Plaintiff was found to have good cause for 4 the untimely reconsideration request, and thus the request for reconsideration for 5 the 2017 application was processed and the October 2018 application was not 6 processed. Tr. 90. Therefore, there was a period of time that was unadjudicated 7 and the case was remanded to adjudicate the two-month relevant period. Id. 8 Plaintiff appeared before an administrative law judge (ALJ) on October 28, 2021. 9 Tr. 25-46. On November 5, 2021, the ALJ denied Plaintiff’s claim. Tr. 8-24. 10 At step one of the sequential evaluation process, the ALJ found Plaintiff, 11 who met the insured status requirements through September 30, 2016, has not 12 engaged in substantial gainful activity since July 25, 2016. Tr. 15. At step two, 13 the ALJ found that Plaintiff had the following severe impairments at the date last 14 insured: degenerative disc disease, sacroiliitis, coccydnia, and obesity. Id. 15 At step three, the ALJ found Plaintiff did not have an impairment or 16 combination of impairments that met or medically equaled the severity of a listed 17 18 19 Plaintiff has not argued any error regarding the incomplete record, and the Court 20 finds it is able to make an informed decision with the current record. ORDER - 7 Case 1:22-cv-03084-MKD ECF No. 13 filed 08/14/23 PageID.707 Page 8 of 23 1 impairment. Tr. 17. The ALJ then concluded that Plaintiff had the RFC to 2 perform light work with the following limitations: 3 [Plaintiff] must be permitted to change position from sit to stand or stand to sit approximately every 30 minutes at the work station (such that approximately half of the workday is standing and half is sitting); can occasionally climb ramps and stairs; should not climb ladders, ropes or scaffolds; can occasionally stoop, kneel and crouch; should not crawl; and should have no more than frequent exposure to vibration. 4 5 6 Id. 7 At step four, the ALJ found Plaintiff was unable to perform any of her past 8 relevant work. Tr. 19. At step five, the ALJ found that, considering Plaintiff’s 9 age, education, work experience, RFC, and testimony from the vocational expert, 10 there were jobs that existed in significant numbers in the national economy that 11 Plaintiff could perform, such as cashier, router, and assembler of small products II. 12 Tr. 20. Therefore, the ALJ concluded Plaintiff was not under a disability, as 13 defined in the Social Security Act, from the alleged onset date of July 25, 2016, 14 through the date last insured. Tr. 21. 15 On April 22, 2022, the Appeals Council denied review of the claim, Tr. 1-6, 16 making the ALJ’s decision the Commissioner’s final decision for purposes of 17 judicial review. See 42 U.S.C. § 1383(c)(3). 18 19 20 ORDER - 8 Case 1:22-cv-03084-MKD 1 2 ECF No. 13 filed 08/14/23 PageID.708 Page 9 of 23 ISSUES Plaintiff seeks judicial review of the Commissioner’s final decision denying 3 her disability insurance benefits under Title II of the Social Security Act. Plaintiff 4 raises the following issues for review: 5 1. Whether the ALJ conducted a proper step-two analysis; 6 2. Whether the ALJ properly evaluated Plaintiff’s symptom claims; and 7 3. Whether the ALJ properly evaluated the medical opinion evidence. 8 ECF No. 10 at 2. 9 10 11 DISCUSSION A. Step Two Plaintiff contends the ALJ erred at step two by failing to identify her somatic 12 symptom disorder as a severe impairment. ECF No. 10 at 4-6. At step two of the 13 sequential process, the ALJ must determine whether the claimant suffers from a 14 “severe” impairment, i.e., one that significantly limits her physical or mental 15 ability to do basic work activities. 20 C.F.R. § 404.1520(c). When a claimant 16 alleges a severe mental impairment, the ALJ must follow a two-step “special 17 technique” at steps two and three. 20 C.F.R. § 404.1520a. First, the ALJ must 18 evaluate the claimant’s “pertinent symptoms, signs, and laboratory findings to 19 determine whether [he or she has] a medically determinable impairment.” 20 20 C.F.R. § 404.1520a(b)(1). Second, the ALJ must assess and rate the “degree of ORDER - 9 Case 1:22-cv-03084-MKD ECF No. 13 filed 08/14/23 PageID.709 Page 10 of 23 1 functional limitation resulting from [the claimant’s] impairments” in four broad 2 areas of functioning: understand, remember, or apply information; interact with 3 others; concentrate, persist, or maintain pace; and adapt or manage oneself. 20 4 C.F.R. § 404.1520a(b)(2)-(c)(4). Functional limitation is measured as “none, mild, 5 moderate, marked, and extreme.” 20 C.F.R. § 404.1520a(c)(4). If limitation is 6 found to be “none” or “mild,” the impairment is generally considered not severe. 7 20 C.F.R. § 404.1520a(d)(1). If the impairment is severe, the ALJ proceeds to 8 determine whether the impairment meets or is equivalent in severity to a listed 9 mental disorder. 20 C.F.R. § 404.1520a(d)(2)-(3). 10 Step two is “a de minimus screening device [used] to dispose of groundless 11 claims.” Smolen v. Chater, 80 F.3d 1273, 1290 (9th Cir. 1996). “Thus, applying 12 our normal standard of review to the requirements of step two, [the Court] must 13 determine whether the ALJ had substantial evidence to find that the medical 14 evidence clearly established that [Plaintiff] did not have a medically severe 15 impairment or combination of impairments.” Webb v. Barnhart, 433 F.3d 683, 687 16 (9th Cir. 2005). 17 Plaintiff contends the ALJ erred in failing to find her somatic symptom 18 disorder to be a severe impairment. ECF No. 10 at 3-6. In 2020, Dr. Teal stated 19 Plaintiff had a provisional diagnosis of somatic symptom disorder. Tr. 512. 20 Plaintiff concedes the provisional diagnosis was given in 2020 but contends “there ORDER - 10 Case 1:22-cv-03084-MKD ECF No. 13 filed 08/14/23 PageID.710 Page 11 of 23 1 is no evidence to indicate this was a new impairment” and thus contends the 2 diagnosis existed during the relevant period. ECF No. 10 at 3-6. However, 3 Plaintiff was not diagnosed with somatic symptom disorder but rather given a 4 provisional diagnosis. Plaintiff does not cite to any evidence she was diagnosed 5 with somatic symptom disorder prior to her date last insured. Additionally, even if 6 Plaintiff was diagnosed with somatic symptom disorder, Plaintiff does not cite to 7 any evidence that indicates the disorder caused more than mild limitations during 8 the relevant adjudicative period. Plaintiff has not met her burden in demonstrating 9 the ALJ erred at step two. Plaintiff is not entitled to remand on these grounds. 10 11 B. Plaintiff’s Symptom Claims Plaintiff faults the ALJ for failing to rely on reasons that were clear and 12 convincing in discrediting her symptom claims. ECF No. 10 at 6-13. An ALJ 13 engages in a two-step analysis to determine whether to discount a claimant’s 14 testimony regarding subjective symptoms. SSR 16-3p, 2016 WL 1119029, at *2. 15 “First, the ALJ must determine whether there is objective medical evidence of an 16 underlying impairment which could reasonably be expected to produce the pain or 17 other symptoms alleged.” Molina, 674 F.3d at 1112 (quotation marks omitted). 18 “The claimant is not required to show that [the claimant’s] impairment could 19 reasonably be expected to cause the severity of the symptom [the claimant] has 20 ORDER - 11 Case 1:22-cv-03084-MKD ECF No. 13 filed 08/14/23 PageID.711 Page 12 of 23 1 alleged; [the claimant] need only show that it could reasonably have caused some 2 degree of the symptom.” Vasquez v. Astrue, 572 F.3d 586, 591 (9th Cir. 2009). 3 Second, “[i]f the claimant meets the first test and there is no evidence of 4 malingering, the ALJ can only reject the claimant’s testimony about the severity of 5 the symptoms if [the ALJ] gives ‘specific, clear and convincing reasons’ for the 6 rejection.” Ghanim v. Colvin, 763 F.3d 1154, 1163 (9th Cir. 2014) (citations 7 omitted). General findings are insufficient; rather, the ALJ must identify what 8 symptom claims are being discounted and what evidence undermines these claims. 9 Id. (quoting Lester v. Chater, 81 F.3d 821, 834 (9th Cir. 1995); Thomas v. 10 Barnhart, 278 F.3d 947, 958 (9th Cir. 2002) (requiring the ALJ to sufficiently 11 explain why it discounted claimant’s symptom claims)). “The clear and 12 convincing [evidence] standard is the most demanding required in Social Security 13 cases.” Garrison v. Colvin, 759 F.3d 995, 1015 (9th Cir. 2014) (quoting Moore v. 14 Comm’r of Soc. Sec. Admin., 278 F.3d 920, 924 (9th Cir. 2002)). 15 Factors to be considered in evaluating the intensity, persistence, and limiting 16 effects of a claimant’s symptoms include: 1) daily activities; 2) the location, 17 duration, frequency, and intensity of pain or other symptoms; 3) factors that 18 precipitate and aggravate the symptoms; 4) the type, dosage, effectiveness, and 19 side effects of any medication an individual takes or has taken to alleviate pain or 20 other symptoms; 5) treatment, other than medication, an individual receives or has ORDER - 12 Case 1:22-cv-03084-MKD ECF No. 13 filed 08/14/23 PageID.712 Page 13 of 23 1 received for relief of pain or other symptoms; 6) any measures other than treatment 2 an individual uses or has used to relieve pain or other symptoms; and 7) any other 3 factors concerning an individual’s functional limitations and restrictions due to 4 pain or other symptoms. SSR 16-3p, 2016 WL 1119029, at *7; 20 C.F.R. § 5 404.1529(c). The ALJ is instructed to “consider all of the evidence in an 6 individual’s record,” to “determine how symptoms limit ability to perform work7 related activities.” SSR 16-3p, 2016 WL 1119029, at *2. 8 The ALJ found that Plaintiff’s medically determinable impairments could 9 reasonably be expected to cause some of the alleged symptoms, but that Plaintiff’s 10 statements concerning the intensity, persistence, and limiting effects of her 11 symptoms were not entirely consistent with the evidence. Tr. 18. 12 1. Res Judicata 13 The ALJ gave effect to the prior ALJ determination that Plaintiff’s 14 symptoms resulted in the determined RFC. Tr. 18. While a previous ALJ’s 15 findings concerning a claimant’s RFC are entitled to some res judicata 16 consideration, the findings can be reconsidered by a subsequent judge upon 17 showing of new information that was not presented to the first judge. Stubbs18 Danielson v. Astrue, 539 F.3d 1169, 1173 (9th Cir. 2008) (citing Chavez v. Bowen, 19 844 F.2d 691,694 (9th Cir. 1988)). 20 ORDER - 13 Case 1:22-cv-03084-MKD 1 ECF No. 13 filed 08/14/23 PageID.713 Page 14 of 23 The prior ALJ rendered his decision on May 26, 2016. Tr. 47-71. In the 2 2016 decision, the ALJ determined Plaintiff’s severe impairments were 3 degenerative disc disease, obesity, sacroiliitis, and coccydynia. Tr. 53. In the 4 current decision, the ALJ again found Plaintiff’s severe impairments were 5 degenerative disc disease, obesity, sacroiliitis, and coccydynia. Tr. 15. The ALJ 6 found there was no evidence of worsening in Plaintiff’s symptoms between the 7 prior decision and the July 2016 date last insured. Tr. 18. Plaintiff contends her 8 symptoms worsened during the two-month period, and she began suffering from 9 left hip pain, which was a new symptom. ECF No. 10 at 7-8. However, Plaintiff 10 does not contend that she had a new severe impairment that caused the hip pain 11 that the ALJ failed to address, and does not cite to evidence that the hip pain 12 caused functional limitations not accounted for in the RFC. Plaintiff cites to two 13 July 2016 visits as evidence of worsening symptoms, due to her complaints at the 14 appointments and a new medication prescribed at an appointment. Id. Plaintiff 15 was treated with osteopathic manipulation and prescribed Norco. Tr. 588-92. 16 While Plaintiff reported the hip pain began April 2016, she did not report any 17 limitations caused by the pain. Id. Plaintiff does not cite to any evidence of her 18 reporting more severe symptoms and limitations than accounted for in the prior 19 decision. The ALJ reasonably gave effect to the ALJ’s prior determination 20 regarding Plaintiff’s symptom claims. ORDER - 14 Case 1:22-cv-03084-MKD ECF No. 13 filed 08/14/23 PageID.714 Page 15 of 23 1 2. Inconsistent Objective Medical Evidence 2 The ALJ found Plaintiff’s symptom claims were inconsistent with the 3 objective medical evidence. Tr. 18-19. An ALJ may not discredit a claimant’s 4 symptom testimony and deny benefits solely because the degree of the symptoms 5 alleged is not supported by objective medical evidence. Rollins v. Massanari, 261 6 F.3d 853, 857 (9th Cir. 2001); Bunnell v. Sullivan, 947 F.2d 341, 346-47 (9th Cir. 7 1991); Fair v. Bowen, 885 F.2d 597, 601 (9th Cir. 1989); Burch v. Barnhart, 400 8 F.3d 676, 680 (9th Cir. 2005). However, the objective medical evidence is a 9 relevant factor, along with the medical source’s information about the claimant’s 10 pain or other symptoms, in determining the severity of a claimant’s symptoms and 11 their disabling effects. Rollins, 261 F.3d at 857; 20 C.F.R. § 404.1529(c)(2). 12 While Plaintiff alleged worsening of her symptoms during the two-month 13 adjudicative period, the ALJ found the claim was inconsistent with the objective 14 evidence at the date last insured. Tr. 18. Although Plaintiff complained of hip 15 pain, she was treated with osteopathic manipulation and instructed to stretch and 16 apply heat. Tr. 591-92. Plaintiff reported her osteopathic treatment helped with 17 her pelvic pain but not her back pain. Tr. 589. She was started on Norco. Tr. 588. 18 There are no records documenting impaired gait, range of motion, nor any other 19 significant limitations caused by her impairments during the relevant period. 20 ORDER - 15 Case 1:22-cv-03084-MKD 1 ECF No. 13 filed 08/14/23 PageID.715 Page 16 of 23 Later records also support the ALJ’s finding that Plaintiff’s symptoms are 2 not as severe as alleged. In February 2017, Plaintiff had “perhaps some mild 3 tenderness” in her back, Plaintiff reported using Norco “very sparingly” and she 4 was instructed to continue to use Norco only sparingly as needed for pain. Tr. 587. 5 Plaintiff was later referred for facet blocks and other treatment, see, e.g., Tr. 585, 6 but this treatment all took place more than six months after the date last insured. In 7 June 2017, her provider noted Plaintiff “doesn’t seem to have too much problem 8 with her back” and Plaintiff planned to use Tylenol for her pain. Tr. 323. Even 9 after the date last insured, she had a normal range of motion, and strength/tone 10 despite tenderness. Tr. 584. In 2020, Plaintiff reported no pain or discomfort for 11 two weeks, and she had normal range of motion and strength during occupational 12 therapy. Tr. 575. By 2021, she was using over the counter medication for her 13 pain, and she had full range of motion, a negative straight leg raises, and 14 tenderness/pain at the left SI joint but none along the spine. Tr. 578-79. In 2021, 15 Plaintiff reported osteopathic manipulation resolved her back pain. Tr. 577. On 16 multiple occasions, Plaintiff reported being too busy to attend appointments and 17 complete exercises. Tr. 467, 493, 563, 568, 577. 18 On this record, the ALJ reasonably found Plaintiff’s allegations were 19 inconsistent with the objective medical evidence. This was a clear and convincing 20 reason, along with the other reasons offered, to reject Plaintiff’s claims. ORDER - 16 Case 1:22-cv-03084-MKD ECF No. 13 filed 08/14/23 PageID.716 Page 17 of 23 1 3. Conservative Treatment 2 The ALJ found Plaintiff’s symptom claims were inconsistent with Plaintiff’s 3 conservative treatment. Tr. 18-19. Evidence of “conservative treatment” is 4 sufficient to discount a claimant’s testimony regarding the severity of an 5 impairment. Parra v. Astrue, 481 F.3d 742 (9th Cir. 2007) (citing Johnson v. 6 Shalala, 60 F.3d 1428, 1434 (9th Cir. 1995) (treating ailments with an over-the7 counter pain medication is evidence of conservative treatment sufficient to 8 discount a claimant’s testimony regarding the severity of an impairment)); see also 9 Tommasetti v. Astrue, 533 F.3d 1035, 1039 (9th Cir. 2008) (holding that the ALJ 10 permissibly inferred that the claimant’s “pain was not as all-disabling as he 11 reported in light of the fact that he did not seek an aggressive treatment program” 12 and “responded favorably to conservative treatment including physical therapy and 13 the use of anti-inflammatory medication, a transcutaneous electrical nerve 14 stimulation unit, and a lumbosacral corset”). 15 During the relevant period, Plaintiff’s pain was treated with osteopathic 16 manipulation and medication. Tr. 18, 588-92. Plaintiff contends she had nerve 17 blocks and other treatment; however, this treatment did not occur during the 18 relevant period. Tr. 18; ECF No. 10 at 8 (citing Tr. 301). At her appointments 19 during the relevant period, her provider did not recommend any additional 20 treatment beyond stretching and using a heat pack. Tr. 588-92. The ALJ ORDER - 17 Case 1:22-cv-03084-MKD ECF No. 13 filed 08/14/23 PageID.717 Page 18 of 23 1 reasonably found Plaintiff’s allegations were inconsistent with her conservative 2 treatment during the relevant period. This was a clear and convincing reason to 3 reject Plaintiff’s symptom claims. Plaintiff is not entitled to remand on these 4 grounds. 5 6 C. Medical Opinion Evidence Plaintiff contends the ALJ erred in her consideration of the opinion of 7 William Bothamley, M.D. ECF No. 10 at 13-19. 8 As an initial matter, for claims filed on or after March 27, 2017, new 9 regulations apply that change the framework for how an ALJ must evaluate 10 medical opinion evidence. Revisions to Rules Regarding the Evaluation of 11 Medical Evidence, 2017 WL 168819, 82 Fed. Reg. 5844-01 (Jan. 18, 2017); 20 12 C.F.R. § 404.1520c. The new regulations provide that the ALJ will no longer 13 “give any specific evidentiary weight . . . to any medical opinion(s) . . .” Revisions 14 to Rules, 2017 WL 168819, 82 Fed. Reg. 5844, at 5867-68; see 20 C.F.R. § 15 404.1520c(a). Instead, an ALJ must consider and evaluate the persuasiveness of 16 all medical opinions or prior administrative medical findings from medical sources. 17 20 C.F.R. § 404.1520c(a)-(b). The factors for evaluating the persuasiveness of 18 medical opinions and prior administrative medical findings include supportability, 19 consistency, relationship with the claimant (including length of the treatment, 20 frequency of examinations, purpose of the treatment, extent of the treatment, and ORDER - 18 Case 1:22-cv-03084-MKD ECF No. 13 filed 08/14/23 PageID.718 Page 19 of 23 1 the existence of an examination), specialization, and “other factors that tend to 2 support or contradict a medical opinion or prior administrative medical finding” 3 (including, but not limited to, “evidence showing a medical source has familiarity 4 with the other evidence in the claim or an understanding of our disability 5 program’s policies and evidentiary requirements”). 20 C.F.R. § 404.1520c(c)(1)6 (5). 7 Supportability and consistency are the most important factors, and therefore 8 the ALJ is required to explain how both factors were considered. 20 C.F.R. § 9 404.1520c(b)(2). Supportability and consistency are explained in the regulations: 10 11 12 13 14 15 (1) Supportability. The more relevant the objective medical evidence and supporting explanations presented by a medical source are to support his or her medical opinion(s) or prior administrative medical finding(s), the more persuasive the medical opinions or prior administrative medical finding(s) will be. (2) Consistency. The more consistent a medical opinion(s) or prior administrative medical finding(s) is with the evidence from other medical sources and nonmedical sources in the claim, the more persuasive the medical opinion(s) or prior administrative medical finding(s) will be. 16 20 C.F.R. § 404.1520c(c)(1)-(2). The ALJ may, but is not required to, explain how 17 the other factors were considered. 20 C.F.R. § 404.1520c(b)(2). However, when 18 two or more medical opinions or prior administrative findings “about the same 19 issue are both equally well-supported . . . and consistent with the record . . . but are 20 not exactly the same,” the ALJ is required to explain how “the other most ORDER - 19 Case 1:22-cv-03084-MKD ECF No. 13 filed 08/14/23 PageID.719 Page 20 of 23 1 persuasive factors in paragraphs (c)(3) through (c)(5)” were considered. 20 C.F.R. 2 § 404.1520c(b)(3). 3 The Ninth Circuit addressed the issue of whether the changes to the 4 regulations displace the longstanding case law requiring an ALJ to provide specific 5 and legitimate reasons to reject an examining provider’s opinion. Woods v. 6 Kijakazi, 32 F.4th 785, 787 (9th Cir. 2022). The Court held that the new 7 regulations eliminate any hierarchy of medical opinions, and the specific and 8 legitimate standard no longer applies. Id. The Court reasoned the “relationship 9 factors” remain relevant under the new regulations, and thus the ALJ can still 10 consider the length and purpose of the treatment relationship, the frequency of 11 examinations, the kinds and extent of examinations that the medical source has 12 performed or ordered from specialists, and whether the medical source has 13 examined the claimant or merely reviewed the claimant’s records. Id. at 792. 14 However, the ALJ is not required to make specific findings regarding the 15 relationship factors. Id. Even under the new regulations, an ALJ must provide an 16 explanation supported by substantial evidence when rejecting an examining or 17 treating doctor’s opinion as unsupported or inconsistent. Id. 18 On June 10, 2019, Dr. Bothamley, a treating provider, rendered an opinion 19 on Plaintiff’s functioning. Tr. 437-38. Dr. Bothamley diagnosed Plaintiff with 20 chronic low back pain/pelvic pain, with recent pain into right leg consistent with ORDER - 20 Case 1:22-cv-03084-MKD ECF No. 13 filed 08/14/23 PageID.720 Page 21 of 23 1 sciatica. Tr. 437. He opined that Plaintiff needs to lie down six to eight hours in a 2 day; working on a regular/continuous basis would cause Plaintiff’s condition to 3 deteriorate; Plaintiff would miss four or more days per month if she worked full4 time; and her limitations have existed since April 2008. Tr. 437-38. The ALJ 5 found Dr. Bothamley’s opinion was not persuasive. Tr. 19. 6 First, the ALJ found Dr. Bothamley’s opinion was not supported by his own 7 treatment records. Id. Supportability is one of the most important factors an ALJ 8 must consider when determining how persuasive a medical opinion is. 20 C.F.R. § 9 404.1520c(b)(2). The more relevant objective evidence and supporting 10 explanations that support a medical opinion, the more persuasive the medical 11 opinion is. 20 C.F.R. § 404.1520c(c)(1). The ALJ noted that Dr. Bothamley’s 12 treatment records from an appointment close to the date last insured do not support 13 his opinion. Tr. 19 (citing Tr. 299-300). Dr. Bothamley’s February 2017 record 14 says Plaintiff’s back “does show perhaps some mild tenderness,” and he noted 15 Plaintiff was only “very sparingly” using her pain medication. Tr. 299-300. In 16 2018, Dr. Bothamley noted Plaintiff had normal ambulation. Tr. 352, 354. In 17 2019, at the time he completed the disability questionnaire, Dr. Bothamley noted 18 there was no specific tenderness in the lumbar region. Tr. 19 (citing Tr. 442). The 19 ALJ reasonably found Dr. Bothamley’s records to be inconsistent with his 20 disabling opinion. ORDER - 21 Case 1:22-cv-03084-MKD 1 ECF No. 13 filed 08/14/23 PageID.721 Page 22 of 23 Second, the ALJ found Dr. Bothamley’s opinion was inconsistent with the 2 record as a whole. Tr. 19. Consistency is one of the most important factors an 3 ALJ must consider when determining how persuasive a medical opinion is. 20 4 C.F.R. § 404.1520c(b)(2). The more consistent an opinion is with the evidence 5 from other sources, the more persuasive the opinion is. 20 C.F.R. § 6 404.1520c(c)(2). The ALJ found Dr. Bothamley’s disabling opinion was 7 inconsistent with Plaintiff’s normal lumbar and pelvis x-rays. Tr. 19 (citing Tr. 8 348, 350). As discussed supra, examinations in 2016 and 2017 also documented 9 only mild spinal tenderness, and normal range of motion, strength, and ambulation. 10 Tr. 19. The ALJ reasonably found Dr. Bothamley’s opinion was inconsistent with 11 the record as a whole. Plaintiff is not entitled to remand on these grounds. 12 13 CONCLUSION Having reviewed the record and the ALJ’s findings, the Court concludes the 14 ALJ’s decision is supported by substantial evidence and free of harmful legal error. 15 Accordingly, IT IS HEREBY ORDERED: 16 1. Plaintiff’s Opening Brief, ECF No. 10, is DENIED. 17 2. Defendant’s Brief, ECF No. 11, is GRANTED. 18 3. The Clerk’s Office shall enter JUDGMENT in favor of Defendant. 19 20 ORDER - 22 Case 1:22-cv-03084-MKD 1 ECF No. 13 filed 08/14/23 PageID.722 Page 23 of 23 The District Court Executive is directed to file this Order, provide copies to 2 counsel, and CLOSE THE FILE. 3 DATED August 14, 2023. 4 s/Mary K. Dimke MARY K. DIMKE UNITED STATES DISTRICT JUDGE 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 ORDER - 23
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