Patterson v. Colvin, No. 2:2014cv00182 - Document 18 (E.D. Wash. 2015)

Court Description: ORDER Granting 16 Defendant's Motion for Summary Judgment. Signed by Magistrate Judge John T. Rodgers. (MO, Courtroom Deputy)

Download PDF

1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 EASTERN DISTRICT OF WASHINGTON 8 9 SHAWN D. PATTERSON, 10 No. 2:14-CV-0182-JTR Plaintiff, ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT 11 12 v. 13 CAROLYN W. COLVIN, 14 Commissioner of Social Security, 15 Defendant. 16 17 BEFORE THE COURT are cross-Motions for Summary Judgment. ECF 18 No. 14, 16. Attorney Joseph Linehan represents Shawn D. Patterson (Plaintiff); 19 Special Assistant United States Attorney Daphne Banay represents the 20 Commissioner of Social Security (Defendant). The parties have consented to 21 proceed before a magistrate judge. ECF No. 7. After reviewing the administrative 22 record and briefs filed by the parties, the Court GRANTS Defendant’s Motion for 23 Summary Judgment and DENIES Plaintiff’s Motion for Summary Judgment. 24 JURISDICTION 25 Plaintiff filed an application for a period of disability and Disability 26 Insurance Benefits (DIB) on June 8, 2010, alleging disability since October 30, 27 2004, due to depression, anxiety, chronic pain and insomnia. Tr. 165-168, 181. 28 Plaintiff indicates, however, that he stopped working because of his condition on ORDER GRANTING DEFENDANT’S MOTION . . . - 1 1 April 26, 2008. Tr. 181. Nevertheless, the relevant period in question begins 2 March 17, 2010, one day after Plaintiff’s previously filed claim for disability 3 benefits was denied at the hearing level. Tr. 18. 4 The DIB application was denied initially and upon reconsideration. 5 Administrative Law Judge (ALJ) Caroline Siderius held a hearing on October 11, 6 2012, Tr. 34-81, and issued an unfavorable decision on October 22, 2012, Tr. 18- 7 29. The Appeals Council denied review on April 23, 2014. Tr. 1-6. The ALJ’s 8 October 2012 decision became the final decision of the Commissioner, which is 9 appealable to the district court pursuant to 42 U.S.C. § 405(g). Plaintiff filed this 10 action for judicial review on June 12, 2014. ECF No. 1, 4. 11 STATEMENT OF FACTS 12 The facts of the case are set forth in the administrative hearing transcript, the 13 ALJ’s decision, and the briefs of the parties. They are only briefly summarized 14 here. 15 Plaintiff was born on October 2, 1972, and was 37 years old on the March 16 17, 2010, relevant period start date. Tr. 40. Plaintiff is a high school graduate and 17 completed one year of college in 1999. Tr. 182. He last worked in 2008. Tr. 40. 18 Plaintiff reported he stopped working because of his condition. Tr. 181. 19 At the administrative hearing, Plaintiff described his bilateral thoracic outlet 20 syndrome as affecting the nerves in his arms: running down the back of his neck, 21 through his shoulders, into his arms and ending in the pinky and ring fingers in 22 both of his hands. Tr. 42. He testified the syndrome made it difficult to squeeze 23 with his hands and lift, Tr. 43, and that, since 2005, using vibrating machinery 24 causes his hands to swell and throb, Tr. 45. Plaintiff indicated his grip strength has 25 gotten considerably worse over time. Tr. 46. He stated he is able to lift his arms 26 overhead, but it will quickly cause his fingers to go numb. Tr. 55. He also stated 27 that symptoms from the syndrome made sleep difficult, and he was only able to 28 sleep maybe three or four hours each night. Tr. 43. ORDER GRANTING DEFENDANT’S MOTION . . . - 2 1 Plaintiff testified he also experiences migraine headaches “at least three days 2 a week” which can last all day. Tr. 53-54. He indicated he also has problems with 3 concentration and short and long term memory. Tr. 58. 4 Plaintiff testified his two grandchildren, ages two and one, currently lived 5 with him, and he was able to pick them up and have them sit on his lap for a few 6 minutes. Tr. 60, 64. However, he was not able to get down on the ground and play 7 with the grandchildren. Tr. 60. Plaintiff stated he spends his days picking up after 8 the children, keeping an eye on the children and paying the bills. Tr. 48. He 9 indicated he would also mow the lawn, vacuum, sweep the floor, and cook with the 10 help of his teenage children, and would putter in his shop. Tr. 50-51, 59. He 11 stated he can sit in a chair for 10 to 15 minutes before needing to change positions, 12 stand in one place for only five minutes at a time, and walk about half a mile in one 13 stretch. Tr. 56, 60. 14 With respect to medication, Plaintiff stated he is “anti-drugs” and did not 15 want to take hydrocodone because of the side effects. Tr. 53. He was taking 16 medical marijuana in pill form at the time of the administrative hearing. Tr. 52-53. 17 STANDARD OF REVIEW 18 The ALJ is responsible for determining credibility, resolving conflicts in 19 medical testimony, and resolving ambiguities. Andrews v. Shalala, 53 F.3d 1035, 20 1039 (9th Cir. 1995). The Court reviews the ALJ’s determinations of law de novo, 21 deferring to a reasonable interpretation of the statutes. McNatt v. Apfel, 201 F.3d 22 1084, 1087 (9th Cir. 2000). The decision of the ALJ may be reversed only if it is 23 not supported by substantial evidence or if it is based on legal error. Tackett v. 24 Apfel, 180 F.3d 1094, 1097 (9th Cir. 1999). Substantial evidence is defined as 25 being more than a mere scintilla, but less than a preponderance. Id. at 1098. Put 26 another way, substantial evidence is such relevant evidence as a reasonable mind 27 might accept as adequate to support a conclusion. Richardson v. Perales, 402 28 U.S. 389, 401 (1971). If the evidence is susceptible to more than one rational ORDER GRANTING DEFENDANT’S MOTION . . . - 3 1 interpretation, the court may not substitute its judgment for that of the ALJ. 2 Tackett, 180 F.3d at 1097; Morgan v. Commissioner of Social Sec. Admin., 169 3 F.3d 595, 599 (9th Cir. 1999). Nevertheless, a decision supported by substantial 4 evidence will still be set aside if the proper legal standards were not applied in 5 weighing the evidence and making the decision. Brawner v. Secretary of Health 6 and Human Services, 839 F.2d 432, 433 (9th Cir. 1988). If substantial evidence 7 supports the administrative findings, or if substantial conflicting evidence supports 8 a finding of either disability or non-disability, the ALJ’s determination is 9 conclusive. Sprague v. Bowen, 812 F.2d 1226, 1229-1230 (9th Cir. 1987). 10 11 SEQUENTIAL EVALUATION PROCESS The Commissioner has established a five-step sequential evaluation process 12 for determining whether a person is disabled. 20 C.F.R. §§ 404.1520(a), 13 416.920(a); see, Bowen v. Yuckert, 482 U.S. 137, 140-142 (1987). In steps one 14 through four, the burden of proof rests upon the claimant to establish a prima facie 15 case of entitlement to disability benefits. Tackett, 180 F.3d at 1098-1099. This 16 burden is met once a claimant establishes that a physical or mental impairment 17 prevents him from engaging in his previous occupation. 20 C.F.R. §§ 18 404.1520(a)(4), 416.920(a)(4). If a claimant cannot do his past relevant work, the 19 ALJ proceeds to step five, and the burden shifts to the Commissioner to show that 20 (1) the claimant can make an adjustment to other work; and (2) specific jobs exist 21 in the national economy which claimant can perform. Batson v. Commissioner of 22 Social Sec. Admin., 359 F.3d 1190, 1193-1194 (2004). If a claimant cannot make 23 an adjustment to other work in the national economy, a finding of “disabled” is 24 made. 20 C.F.R. §§ 404.1520(a)(4)(i-v), 416.920(a)(4)(i-v). 25 26 ADMINISTRATIVE DECISION On October 22, 2012, the ALJ issued a decision finding Plaintiff was not 27 disabled as defined in the Social Security Act. At step one, the ALJ found Plaintiff 28 had not engaged in substantial gainful activity since March 17, 2010, the relevant ORDER GRANTING DEFENDANT’S MOTION . . . - 4 1 period beginning date. Tr. 20. At step two, the ALJ determined Plaintiff had the 2 severe impairment of bilateral thoracic outlet syndrome. Tr. 20. At step three, the 3 ALJ found Plaintiff did not have an impairment or combination of impairments 4 that met or medically equaled the severity of one of the listed impairments. Tr. 22. 5 The ALJ assessed Plaintiff’s residual function capacity (RFC) and 6 determined he could perform a range of light exertion level work (lift and carry 20 7 pounds occasionally and 10 pounds frequently, stand and/or walk up to 6 hours a 8 day, and sit for 6 hours a day, with the option of changing positions once an hour), 9 except that he can only frequently climb ramps or stairs; can never climb ladders, 10 ropes, or scaffolds; can frequently kneel, crawl, stoop, crouch, and balance; can 11 frequently, but not constantly, finger, feel and handle; can perform simple, routine 12 and repetitive tasks; is not able to perform fast-paced production requirements; can 13 have frequent, but not constant, contact with the general public; can cope with 14 occasional changes in the work setting; can occasionally push/pull with both arms; 15 and can occasionally overheard reach with both arms. Tr. 23. The ALJ concluded 16 at step four that Plaintiff was not able to perform his past relevant work. Tr. 28. 17 However, at step five, the ALJ determined that, considering Plaintiff’s age, 18 education, work experience and RFC, and based on the testimony of the vocational 19 expert, there were other jobs that exist in significant numbers in the national 20 economy Plaintiff could perform, including the jobs of mailroom sorter/worker and 21 routine office worker. Tr. 28-29. The ALJ thus concluded Plaintiff was not under 22 a disability within the meaning of the Social Security Act at any time from March 23 17, 2010, through the date of the ALJ’s decision, October 22, 2012. Tr. 29. 24 25 ISSUES The question presented is whether substantial evidence supports the ALJ’s 26 decision denying benefits and, if so, whether that decision is based on proper legal 27 standards. Plaintiff contends the ALJ erred by (1) failing to accord weight to the 28 October 21, 2010, opinion of treating physician Jeffrey J. Emery, DO; and ORDER GRANTING DEFENDANT’S MOTION . . . - 5 1 (2) failing to properly consider Plaintiff’s testimony about the severity of his 2 symptoms. 3 4 5 6 DISCUSSION A. Plaintiff’s Credibility Plaintiff contests the ALJ’s adverse credibility determination in this case. ECF No. 14 at 13-14. 7 It is the province of the ALJ to make credibility determinations. Andrews v. 8 Shalala, 53 F.3d 1035, 1039 (9th Cir. 1995). However, the ALJ’s findings must be 9 supported by specific cogent reasons. Rashad v. Sullivan, 903 F.2d 1229, 1231 10 (9th Cir. 1990). Once the claimant produces medical evidence of an underlying 11 medical impairment, the ALJ may not discredit testimony as to the severity of an 12 impairment because it is unsupported by medical evidence. Reddick v. Chater, 157 13 F.3d 715, 722 (9th Cir. 1998). Absent affirmative evidence of malingering, the 14 ALJ’s reasons for rejecting the claimant’s testimony must be “specific, clear and 15 convincing.” Smolen v. Chater, 80 F.3d 1273, 1281 (9th Cir. 1996); Lester v. 16 Chater, 81 F.3d 821, 834 (9th Cir. 1995). “General findings are insufficient: 17 rather the ALJ must identify what testimony is not credible and what evidence 18 undermines the claimant’s complaints.” Lester, 81 F.3d at 834; Dodrill v. Shalala, 19 12 F.3d 915, 918 (9th Cir. 1993). 20 In this case, the ALJ found Plaintiff’s medically determinable impairments 21 could reasonably be expected to cause the alleged symptoms; however, Plaintiff’s 22 statements concerning the intensity, persistence and limiting effects of these 23 symptoms were not credible to the extent they were inconsistent with the ALJ’s 24 RFC determination. Tr. 25. 25 Although Plaintiff asserts “the ALJ failed to properly consider his testimony 26 regarding the severity of his symptoms,” ECF No. 14 at 13, Plaintiff has not 27 specifically and distinctly challenged the ALJ’s finding that Plaintiff is not fully 28 credible. See Greenwood v. FAA, 28 F.3d 971, 977 (9th Cir. 1994) (“We review ORDER GRANTING DEFENDANT’S MOTION . . . - 6 1 only issues which are argued specifically and distinctly in a party’s opening brief. 2 We will not manufacture arguments for an appellant, and a bare assertion does not 3 preserve a claim.” (citations omitted)); Brownfield v. City of Yakima, 612 F.3d 4 1140, 1149 (9th Cir. 2010) (refusing to address claims that were only “argue[d] in 5 passing”); Carmickle v. Comm’r, Soc. Sec. Admin., 533 F.3d 1155, 1161 n.2 (9th 6 Cir. 2008) (“issues not argued with specificity in briefing will not be addressed”). 7 Plaintiff’s opening brief does not raise specific legal arguments which specifically 8 address the rationale provided by the ALJ for finding Plaintiff less than fully 9 credible. ECF No. 14 at 13-14. Nevertheless, the rationale provided by the ALJ 10 for finding Plaintiff’s subjective complaints were not entirely credible, Tr. 25-27, 11 is fully supported by the record. See infra. 12 The ALJ first determined that while Plaintiff has physical impairments, the 13 evidence fails to demonstrate he is totally disabled as a result. Tr. 25. The ALJ 14 stated that the objective medical evidence did not support the level of impairment 15 Plaintiff has alleged, Tr. 25-26, and a lack of supporting objective medical 16 evidence is a factor which may be considered in evaluating a claimant’s credibility, 17 provided it is not the sole factor, Bunnell v. Sullivan, 347 F.2d 341, 345 (9th Cir. 18 1991). 19 The ALJ noted that Plaintiff presented to Jeffrey J. Emery, D.O., on January 20 5, 2009, complaining of exacerbation of left shoulder pain after shoveling snow. 21 Tr. 25, 319. X-rays at that time revealed a normal shoulder. Tr. 25, 323. A 22 November 4, 2009, examination with Dr. Emery revealed Plaintiff was 23 neurologically intact with no edema, and Plaintiff was described as alert and 24 cooperative with mild dysthymic mood with appropriate affect and normal 25 attention and concentration. Tr. 25, 309-310. Dr. Emery noted that Plaintiff was 26 well developed, well-nourished and in no acute distress. Tr. 309. The ALJ 27 indicated that Dr. Emery recommended regular exercise at that time. Tr. 25, 310. 28 The ALJ further noted an April 28, 2011, emergency room evaluation found ORDER GRANTING DEFENDANT’S MOTION . . . - 7 1 Plaintiff’s motor examination at 5/5, normal sensory exam, normal finger to nose 2 testing, no pronator drift, and good grips and pedal pushes. Tr. 25, 347. The ALJ 3 also noted Jonathan D. Carlson, M.D., examined Plaintiff on January 10, 2011, and 4 found Plaintiff had intact cognition and full strength in grasp, biceps, triceps, 5 brachioradialis, hip flexors, quadriceps, and dorsal plantar flexion. Tr. 25, 296. 6 Finally, the ALJ indicated Plaintiff had x-ray and MRI scans of the cervical spine 7 in January 2010 that were found to be normal and underwent a brain MRI/MRA in 8 April 2011 which revealed no acute intracranial findings and was an unremarkable 9 scan. Tr. 26, 375-380. It was appropriate for the ALJ to conclude that the 10 objective medical evidence did not support allegations by Plaintiff that he was 11 limited to a greater extent than determined by the ALJ in this case. 12 The ALJ also indicated Plaintiff has failed to follow up with 13 recommendations made by his treating doctor, which suggests his symptoms may 14 not have been as serious as he has alleged. Tr. 25. Noncompliance with medical 15 care or unexplained or inadequately explained reasons for failing to seek medical 16 treatment cast doubt on a claimant’s subjective complaints. 20 C.F.R. §§ 17 404.1530, 426.930; Fair v. Bowen, 885 F.2d 597, 603 (9th Cir. 1989); Macri v. 18 Chater, 93 F.3d 540, 544 (9th Cir. 1996) (finding the ALJ’s decision to reject the 19 claimant’s subjective pain testimony was supported by the fact that claimant was 20 not taking pain medication). 21 On November 18, 2008, Dr. Emery offered Plaintiff a neuropsychology 22 consultation due to Plaintiff’s complaints of memory loss, but Plaintiff declined. 23 Tr. 25, 326. On January 5, 2009, a physiatry consult with Dr. Goodman was 24 recommended by Dr. Emery. Tr. 25, 321. On June 1, 2009, Dr. Emery stated that 25 Plaintiff did not follow up with Dr. Goodman as planned. Tr. 25, 315. On July 14, 26 2009, Dr. Emery recommended Plaintiff increase his medication dosage and return 27 in one month. Tr. 25, 314. Plaintiff did not follow up with Dr. Emery until nearly 28 four months later, on November 4, 2009. Tr. 25, 308-311. The ALJ additionally ORDER GRANTING DEFENDANT’S MOTION . . . - 8 1 noted Plaintiff has been reported to be “not terribly compliant with medical 2 management [due to] his aversion to taking daily medication.” Tr. 25-26, 354. It 3 was proper for the ALJ to find that Plaintiff’s failure to follow up and comply with 4 his treating doctor’s recommendations suggest his symptoms may not have been as 5 serious as he has alleged. 6 The ALJ next determined that inconsistences between Plaintiff’s statements 7 and the objective medical evidence undermined Plaintiff’s credibility. Tr. 26. 8 Inconsistencies in a disability claimant’s testimony support a decision by the ALJ 9 that a claimant lacks credibility. Nyman v. Heckler, 779 F.2d 528, 531 (9th Cir. 10 11 1986). The ALJ noted that despite Plaintiff’s complaints to his primary care 12 physician regarding depression and chronic insomnia, he reported to Spokane 13 Mental Health that “it’s going ok today” and reported his sleep was fine and his 14 appetite was ok. Tr. 26, 396. The ALJ further noted that although Plaintiff 15 indicates he has daily headaches, Dr. Emery’s May 2, 2012, report revealed 16 Plaintiff only had intermittent migraines. Tr. 26, 333. Plaintiff also denied any 17 incoordination, numbness, seizures, syncope, depression, disorientation and 18 hallucinations to Dr. Carlson, Tr. 295, which is inconsistent with his reports to his 19 primary care physician. Tr. 26. The ALJ additionally noted Samantha Chandler, 20 Psy.D., referenced in her Psychological Diagnostic Evaluation report that “there 21 were some inconsistencies noted between the claimant’s and his wife’s Function 22 Report as well as between his current reported information and the information he 23 noted on his Function Report.” Tr. 26, 271. Lastly, the ALJ indicated Plaintiff 24 testified at the October 11, 2012, administrative hearing that he had not worked as 25 a volunteer firefighter in over three years; yet in the Job Performance and 26 Productivity Questionnaire completed on March 28, 2011, by Randy Johnson, 27 Deputy Chief of Spokane County Fire District 4, Plaintiff is reported to be 28 employed as a volunteer firefighter from May 22, 2003, to present. Tr. 26, 215. ORDER GRANTING DEFENDANT’S MOTION . . . - 9 1 Consequently, there are several inconsistencies in the record which are properly 2 noted by the ALJ. 3 The ALJ also held that the daily activities described by Plaintiff were not 4 limited to the extent one would expect, given the complaints of disabling 5 symptoms and limitations. Tr. 26. It is well-established that the nature of daily 6 activities may be considered when evaluating credibility. Fair, 885 F.2d at 603. 7 The ALJ indicated Plaintiff testified he spends time in his garage and 8 picking up after his kids and spends his day looking after the kids and paying bills 9 online; Dr. Chandler reported Plaintiff cares for his youngest daughter, prepares 10 meals, runs errands, helps the kids with homework, and tries to do the chores, 11 doing the dishes once or twice a week, vacuuming twice a week and doing the 12 laundry three times a week; Plaintiff was reported to have painted “almost the 13 entire inside” of the house; Plaintiff testified he is tired all day, yet he states he 14 does not take any naps and tries to keep active; Plaintiff’s wife testified Plaintiff is 15 currently working on a remote control car; and there is indication in the record that 16 Plaintiff has continued to volunteer as a firefighter. Tr. 26. While one does not 17 need to be “utterly incapacitated” to be disabled, Fair, 885 F.2d at 603, the ALJ 18 appropriately determined Plaintiff’s level of activity has been somewhat greater 19 than he has alleged in this case. 20 The rationale provided by the ALJ for finding Plaintiff not entirely credible 21 is fully supported by the evidence of record, and the ALJ’s determination that 22 Plaintiff’s statements were not fully credible is not adequately contested by 23 Plaintiff. See Paladin Assocs., Inc. v. Mont. Power Co., 328 F.3d 1145, 1164 (9th 24 Cir. 2003) (issues not specifically and distinctly contested in a party’s opening 25 brief are considered waived). The ALJ’s adverse credibility determination is not 26 erroneous. Moreover, since Plaintiff was properly found by the ALJ to be not 27 entirely credible, it was appropriate for the ALJ to accord little weight to any 28 medical reports based primarily on Plaintiff’s subjective complaints. See ORDER GRANTING DEFENDANT’S MOTION . . . - 10 1 Tonapetyan v. Halter, 242 F.3d 1144, 1149 (9th Cir. 2001) (a physician’s opinion 2 premised primarily on a claimant’s subjective complaints may be discounted where 3 the record supports the ALJ’s discounting of the claimant’s credibility). 4 B. 5 Dr. Emery’s Letter Plaintiff argues the ALJ failed to properly consider and weigh the medical 6 opinion expressed by treating physician Emery in a letter dated October 21, 2010. 7 ECF No. 14 at 10-13. 8 In disability proceedings, a treating physician’s opinion carries more weight 9 than an examining physician’s opinion, and an examining physician’s opinion is 10 given more weight than that of a non-examining physician. Benecke v. Barnhart, 11 379 F.3d 587, 592 (9th Cir. 2004); Lester, 81 F.3d at 830. The Ninth Circuit has 12 held that “[t]he opinion of a nonexamining physician cannot by itself constitute 13 substantial evidence that justifies the rejection of the opinion of either an 14 examining physician or a treating physician.” Lester, 81 F.3d at 830 (citations 15 omitted). Rather, an ALJ’s decision to reject the opinion of a treating or 16 examining physician, may be based in part on the testimony of a non-examining 17 medical advisor. Magallanes v. Bowen, 881 F.2d 747, 751-755 (9th Cir. 1989); 18 Andrews v. Shalala, 53 F.3d 1035, 1043 (9th Cir. 1995); Roberts v. Shalala, 66 19 F.3d 179 (9th Cir. 1995). The ALJ must also have other evidence to support the 20 decision. Magallanes, 881 F.2d at 751-752; Andrews, 53 F.3d 1042-1043. 21 Historically, the courts have recognized conflicting medical evidence, the absence 22 of regular medical treatment during the alleged period of disability, and the lack of 23 medical support for doctors’ reports based substantially on a claimant’s subjective 24 complaints of pain as specific, legitimate reasons for disregarding a treating or 25 examining physician’s opinion. Flaten v. Secretary of Health and Human Servs., 26 44 F.3d 1453, 1463-1464 (9th Cir. 1995); Fair, 885 F.2d at 604. 27 28 On October 21, 2010, Dr. Emery provided a letter on Plaintiff’s behalf which stated that Plaintiff suffered from “a number of medical conditions which ORDER GRANTING DEFENDANT’S MOTION . . . - 11 1 have left him physically unable to maintain any degree of gainful employment.” 2 Tr. 267. The Court finds the ALJ appropriately accorded “little weight” to this 3 October 2010 opinion of Dr. Emery. See infra. 4 First, Dr. Emery’s October 2010 letter is contradicted by the opinion of 5 nonexamining state agency physician Norman Staley, M.D. Tr. 27, 125-127. On 6 August 24, 2011, Dr. Staley reviewed the record and opined that Plaintiff could lift 7 and carry 20 pounds occasionally and 10 pounds frequently; stand or walk for 8 about six hours in an eight-hour workday; sit for about six hours in an eight-hour 9 workday; was limited to occasionally in his ability to push and/or pull with his 10 bilateral upper extremities; could frequently climb ramps and stairs balance and 11 stoop; could occasionally climb ladders, ropes, and scaffolds, crawl, and reach in 12 any direction, including overhead; and was unlimited in handling, fingering and 13 feeling. Tr. 27, 125-127. Dr. Emery’s October 2010 opinion that Plaintiff was 14 unable to perform any degree of gainful employment is not consistent with Dr. 15 Staley’s August 2011 report. 16 Next, the ALJ indicated Dr. Emery only listed Plaintiff’s diagnosis in the 17 letter and did not indicate shoulder limitations other than “with limited mobility,” 18 Tr. 267, which contradicts Dr. Emery’s office notes, Tr. 341-342, 361, 372, that 19 describe Plaintiff “with no focal deficits observed or elicited, well developed, well 20 nourished, in no acute distress, alert and cooperative, mild dysthymic mood with 21 appropriate affect, normal attention span and concentration.” Tr. 27. An ALJ may 22 discredit a treating physician’s opinion that is unsupported by objective medical 23 findings. Tonapetyan, 242 F.3d at 1149. Here, Dr. Emery’s opinion in the letter is 24 unsupported by objective evidence and inconsistent with his own notes. 25 The ALJ also noted Dr. Emery appears to have “relied heavily on the 26 subjective report of symptoms and limitations provided by the claimant, and 27 seemed to uncritically accept as true most, if not all, of what the claimant reported, 28 as he even indicated ‘would really need to do more objective testing in order to ORDER GRANTING DEFENDANT’S MOTION . . . - 12 1 quantify objective worsening’ regarding his thoracic outlet syndrome.” Tr. 27, 2 354. As discussed above, the ALJ’s credibility finding is supported by the 3 evidence of record and free of error, and a physician’s opinion may be disregarded 4 when it is premised on the properly rejected subjective complaints of a claimant. 5 Tonapetyan, 242 F.3d at 1149; see also Morgan v. Comm’r. of Soc. Sec. Admin., 6 169 F.3d 595, 602 (9th Cir. 1999) (the opinion of a physician premised to a large 7 extent on a claimant’s own account of symptoms and limitations may be 8 disregarded where they have been properly discounted). Since Plaintiff was 9 properly found by the ALJ to be not entirely credible, see supra, the ALJ 10 appropriately accorded little weight to Dr. Emery’s October 2010 letter which 11 appears to have been based primarily on Plaintiff’s subjective complaints. 12 Based on the foregoing, the Court finds the ALJ provided specific, 13 legitimate reasons for giving little weight to Dr. Emery’s October 2010 letter, and 14 those reasons are supported by substantial record evidence. The Court finds it 15 significant to note that Dr. Emery’s statement that Plaintiff is “unable to maintain 16 any degree of gainful employment” is, in any event, not the equivalent to a finding 17 of “disability” under the Social Security Act. See 42 U.S.C. §§ 423(d)(1)(A), 18 1382c(a)(3)(A). It is the role of the ALJ to determine whether a claimant is 19 “disabled” within the meaning of the Social Security Act, and that determination is 20 based on both medical and vocational components. Edlund v. Massanari, 253 F.3d 21 1152, 1156 (9th Cir. 2001). The ALJ did not err by according Dr. Emery’s 22 October 21, 2010, letter little weight. 23 CONCLUSION 24 Having reviewed the record and the ALJ’s findings, the Court finds the 25 ALJ’s decision is supported by substantial evidence and free of legal error. 26 Accordingly, IT IS ORDERED: 27 28 1. Defendant’s Motion for Summary Judgment, ECF No. 16, is GRANTED. ORDER GRANTING DEFENDANT’S MOTION . . . - 13 Plaintiff’s Motion for Summary Judgment, ECF No. 14, is DENIED. 1 2. 2 The District Court Executive is directed to file this Order and provide a copy 3 to counsel for Plaintiff and Defendant. Judgment shall be entered for Defendant 4 and the file shall be CLOSED. 5 DATED April 27, 2015. 6 7 8 _____________________________________ JOHN T. RODGERS UNITED STATES MAGISTRATE JUDGE 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 ORDER GRANTING DEFENDANT’S MOTION . . . - 14

Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.

This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.