Rocha v. Colvin, No. 2:2015cv00003 - Document 21 (E.D. Wash. 2015)

Court Description: ORDER GRANTING ECF No. 20 DEFENDANT'S Motion for Summary Judgment; denying ECF No. 12 Plaintiff's Motion for Summary Judgment. FILE CLOSED. Signed by Magistrate Judge John T. Rodgers. (TR, Case Administrator)

Download PDF

1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 EASTERN DISTRICT OF WASHINGTON 8 9 10 KATHERINE ROCHA, No. 2:15-CV-00003-JTR Plaintiff, ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT 11 12 13 14 15 v. CAROLYN W. COLVIN, Commissioner of Social Security, Defendant. 16 17 BEFORE THE COURT are cross-Motions for Summary Judgment. ECF 18 Nos. 12, 20. Attorney Cory J. Brandt represents Katherine Rocha (Plaintiff); 19 Special Assistant United States Attorney Alexis L. Toma represents the 20 Commissioner of Social Security (Defendant). The parties have consented to 21 proceed before a magistrate judge. ECF No. 19. After reviewing the 22 administrative record and briefs filed by the parties, the Court GRANTS 23 Defendant’s Motion for Summary Judgment and DENIES Plaintiff’s Motion for 24 Summary Judgment. 25 JURISDICTION 26 Plaintiff applied for Disability Insurance Benefits (DIB) on February 5, 27 2012, alleging disability since March 19, 2011. Tr. 12. The application was 28 denied initially and upon reconsideration. Administrative Law Judge (ALJ) James ORDER GRANTING DEFENDANT’S MOTION . . . - 1 1 Sherry held a hearing on October 22, 2013, at which Plaintiff, represented by 2 counsel, testified as did vocational expert (VE) Trevor Duncan. Tr. 34-69. The 3 ALJ issued an unfavorable decision on December 2, 2013. Tr. 9-27. The Appeals 4 Council denied review. Tr. 1-5. The ALJ’s December 2013 decision became the 5 final decision of the Commissioner, which is appealable to the district court 6 pursuant to 42 U.S.C. § 405(g). Plaintiff filed this action for judicial review on 7 January 5, 2015. ECF Nos. 1, 3. 8 STATEMENT OF FACTS 9 The facts of the case are set forth in the administrative hearing transcript, the 10 ALJ’s decision, and the briefs of the parties. They are only briefly summarized 11 here. 12 Plaintiff was 51 years old at the time of the hearing. Tr. 42. Plaintiff did not 13 graduate from high school, but obtained a general equivalency diploma (GED). Tr. 14 43. Plaintiff previously worked in preschools and a daycare; Plaintiff also worked 15 for a time as a school bus driver, a potato packager, and as an overnight stocker at 16 Walmart. Tr. 43, 47-50, 63. Plaintiff last worked as an in-home caretaker part- 17 time for six months, but had to stop working because she did not take a required 18 test. Tr. 45-46. 19 Plaintiff testified that she was unable to work because of knee pain, anxiety, 20 and depression. Tr. 51. Plaintiff testified that she gets anxious when she goes out 21 in public and when she is around other people. Tr. 51. Plaintiff testified that her 22 depression makes her feel like she’s “stuck in a dark hole,” makes it difficult for 23 her to sleep or concentrate, and leaves her without energy, motivation, or appetite. 24 Tr. 53-55. Plaintiff testified that she has feelings of worthlessness and she has lost 25 interest in things she used to enjoy, including crocheting, cross-stitching, and 26 reading. Tr. 55. Plaintiff rarely leaves the house by herself. Tr. 56. Plaintiff 27 testified that, for about twenty days each month, her anxiety and depression are so 28 bad that she cannot leave her house. Tr. 59. Plaintiff testified that depression ORDER GRANTING DEFENDANT’S MOTION . . . - 2 1 2 drove her to make one suicide attempt. Tr. 60. Regarding her knee pain, Plaintiff testified that she had right knee 3 replacement surgery, and, after physical therapy, her knee “felt 100 percent better 4 than it did [prior to surgery].” Tr. 57. But Plaintiff’s knee still hurts, swells, and 5 feels hot, and she has to elevate her leg a couple times a day. Tr. 57. 6 Plaintiff testified that she can only stand for about fifteen minutes at a time. 7 Tr. 58. After standing, Plaintiff testified that she needs to sit for ten or fifteen 8 minutes. Tr. 58. Plaintiff testified that she would only be able to stand for half an 9 hour in an eight-hour workday. Tr. 58. Plaintiff stated that it was easier for her to 10 walk than to stand in one place and she can walk for about half an hour or forty 11 five minutes. Tr. 59-60. 12 13 STANDARD OF REVIEW The ALJ is responsible for determining credibility, resolving conflicts in 14 medical testimony, and resolving ambiguities. Andrews v. Shalala, 53 F.3d 1035, 15 1039 (9th Cir. 1995). The Court reviews the ALJ’s determinations of law de novo, 16 deferring to a reasonable interpretation of the statutes. McNatt v. Apfel, 201 F.3d 17 1084, 1087 (9th Cir. 2000). The decision of the ALJ may be reversed only if it is 18 not supported by substantial evidence or if it is based on legal error. Tackett v. 19 Apfel, 180 F.3d 1094, 1097 (9th Cir. 1999). Substantial evidence is defined as 20 being more than a mere scintilla, but less than a preponderance. Id. at 1098. Put 21 another way, substantial evidence is such relevant evidence as a reasonable mind 22 might accept as adequate to support a conclusion. Richardson v. Perales, 402 23 U.S. 389, 401 (1971). If the evidence is susceptible to more than one rational 24 interpretation, the court may not substitute its judgment for that of the ALJ. 25 Tackett, 180 F.3d at 1097. Nevertheless, a decision supported by substantial 26 evidence will still be set aside if the proper legal standards were not applied in 27 weighing the evidence and making the decision. Brawner v. Secretary of Health 28 and Human Services, 839 F.2d 432, 433 (9th Cir. 1988). If substantial evidence ORDER GRANTING DEFENDANT’S MOTION . . . - 3 1 supports the administrative findings, or if conflicting evidence supports a finding 2 of either disability or non-disability, the ALJ’s determination is conclusive. 3 Sprague v. Bowen, 812 F.2d 1226, 1229-1230 (9th Cir. 1987). 4 SEQUENTIAL EVALUATION PROCESS 5 The Commissioner has established a five-step sequential evaluation process 6 for determining whether a person is disabled. 20 C.F.R. § 404.1520(a); see Bowen 7 v. Yuckert, 482 U.S. 137, 140-142 (1987). In steps one through four, the burden of 8 proof rests upon claimants to establish a prima facie case of entitlement to 9 disability benefits. Tackett, 180 F.3d at 1098-1099. This burden is met once 10 claimants establish that physical or mental impairments prevent them from 11 engaging in their previous occupations. 20 C.F.R. § 404.1520(a)(4). If claimants 12 cannot do their past relevant work, the ALJ proceeds to step five, and the burden 13 shifts to the Commissioner to show that (1) the claimants can make an adjustment 14 to other work, and (2) specific jobs exist in the national economy which claimants 15 can perform. Batson v. Comm’r of Soc. Sec. Admin., 359 F.3d 1190, 1193-1194 16 (2004). If claimants cannot make an adjustment to other work in the national 17 economy, a finding of “disabled” is made. 20 C.F.R. § 404.1520(a)(i-v). 18 19 ADMINISTRATIVE DECISION On December 2, 2013, the ALJ issued a decision finding Plaintiff was not 20 disabled as defined in the Social Security Act. Preliminarily, the ALJ found 21 Plaintiff met the insured status requirements of the Social Security Act through 22 December 31, 2015. 23 At step one, the ALJ found Plaintiff had engaged in substantial gainful 24 activity from January 2012 to June 2012, but there was a continuous 12-month 25 period during which Plaintiff did not engage in substantial gainful activity. Tr. 14. 26 At step two, the ALJ determined Plaintiff had the following severe 27 impairments: severe osteoarthritis, right knee, status post total knee replacement in 28 March 2011; left knee osteoarthritis, mostly asymptomatic; obesity; major ORDER GRANTING DEFENDANT’S MOTION . . . - 4 1 depressive disorder; and, panic disorder with agoraphobia. Tr. 14. 2 At step three, the ALJ found Plaintiff did not have an impairment or 3 combination of impairments that met or medically equaled the severity of one of 4 the listed impairments. Tr. 15. 5 6 7 8 9 10 11 12 13 14 15 16 At step four, the ALJ assessed Plaintiff’s residual function capacity (RFC) and determined she could perform a range of light work except: [L]ift no more than 20 pounds at a time; frequently lift and carry 10 pounds; sit, stand and walk 6 hours out of an 8-hour workday; unlimited push/pull within lifting restrictions; never climb ladders, ropes, and scaffolds and crouch; occasionally climb ramps or stairs, kneel, and crawl; frequently balance, and stoop; avoid concentrated exposure to extreme cold and excessive vibration; avoid moderate exposure to unprotected heights and use of moving machinery; capable of simple, routine and repetitive tasks, some well learned detailed tasks; can maintain attention and concentration for 2 hour segments for simple and well learned tasks without more than normally expected brief interruptions; is capable of superficial contact with the general public; can interact with coworkers on specific work related tasks. 17 Tr. 17. The ALJ concluded that Plaintiff was not able to perform her past relevant 18 work. Tr. 22. 19 At step five, the ALJ determined that, considering Plaintiff’s age, education, 20 work experience and RFC, and based on the testimony of the vocational expert, 21 there were other jobs that exist in significant numbers in the national economy 22 Plaintiff could perform, including the jobs of production assembler, cashier II, and 23 fast food worker. Tr. 24. The ALJ thus concluded Plaintiff was not under a 24 disability within the meaning of the Social Security Act at any time from March 25 19, 2011, through the date of the ALJ’s decision. Tr. 24. 26 27 28 ISSUES The question presented is whether substantial evidence supports the ALJ’s decision denying benefits, and, if so, whether that decision is based on proper legal ORDER GRANTING DEFENDANT’S MOTION . . . - 5 1 standards. Plaintiff contends the ALJ erred by (1) improperly rejecting the 2 opinions of Plaintiff’s treating and examining medical providers; (2) improperly 3 rejecting Plaintiff’s testimony about the severity of her symptoms; and, (3) failing 4 make adequate findings at step five. 5 6 7 8 DISCUSSION A. Credibility Plaintiff contests the ALJ’s adverse credibility determination. ECF No. 12 at 12-17. 9 It is generally the province of the ALJ to make credibility determinations, 10 Andrews, 53 F.3d at 1039, but the ALJ’s findings must be supported by specific 11 cogent reasons, Rashad v. Sullivan, 903 F.2d 1229, 1231 (9th Cir. 1990). Absent 12 affirmative evidence of malingering, the ALJ’s reasons for rejecting the claimant’s 13 testimony must be “specific, clear and convincing.” Smolen v. Chater, 80 F.3d 14 1273, 1281 (9th Cir. 1996). “General findings are insufficient: rather the ALJ 15 must identify what testimony is not credible and what evidence undermines the 16 claimant’s complaints.” Lester v. Chater, 81 F.3d 821, 834 (9th Cir. 1995). 17 The ALJ found Plaintiff not fully credible concerning the intensity, 18 persistence, and limiting effects of her symptoms. Tr. 21. The ALJ reasoned that 19 Plaintiff was less than credible because her symptom reporting was inconsistent 20 with (1) objective medical evidence and the fact that her impairments could be 21 controlled with medication, (2) her history of conservative treatment, (3) her 22 normal presentation at medical appointments, (4) her lack of regular mental health 23 treatment, and (5) her activities of daily living. 24 1. Objective evidence and improvement with medication 25 The ALJ noted that medical evidence did not demonstrate Plaintiff’s 26 impairments caused total disability and that medications generally controlled her 27 mental impairments. Tr. 21 (citing Tr. 368, 369, 370-71, 376). 28 Objective medical evidence is a “relevant factor in determining the severity ORDER GRANTING DEFENDANT’S MOTION . . . - 6 1 of the claimant’s pain and its disabling effects,” but it cannot serve as the sole 2 ground for rejecting a claimant’s credibility. Rollins v. Massanari, 261 F.3d 853, 3 857 (9th Cir. 2001). Furthermore, the fact that a condition can be remedied by 4 medication is a legitimate reason for discrediting an opinion. Warre v. Comm’r of 5 Soc. Sec. Admin., 439 F.3d 1001, 1006 (9th Cir. 2006). 6 The ALJ’s reasoning that Plaintiff’s alleged disability is unsupported by 7 objective medical evidence and that her impairments have improved with 8 medication are clear and convincing reasons to discredit Plaintiff. As noted by the 9 ALJ, x-rays of Plaintiff’s right knee showed that her knee was stable after surgery. 10 Tr. 376. The ALJ also noted Dr. Wheaton’s opinion that Plaintiff was capable of 11 working with some restrictions that would last for less than a year. Tr. 21 (citing 12 Tr. 326). And although Plaintiff historically had problems with her medication, in 13 Plaintiff’s most recent treatment notes, she reported that Effexor and Lorazepam 14 effectively controlled her depression and anxiety. Tr. 368, 370. These are clear 15 and convincing reasons to discredit Plaintiff. 16 2. Conservative treatment 17 The ALJ noted that Plaintiff’s treatment was mostly routine and/or 18 19 conservative in nature. Tr. 21. Conservative treatment can be “sufficient to discount a claimant’s testimony 20 regarding [the] severity of an impairment.” Parra v. Astrue, 481 F.3d 742, 751 21 (9th Cir. 2007). 22 The Court finds the ALJ partially erred in concluding that Plaintiff’s 23 treatment was mostly routine and/or conservative. As discussed infra, Plaintiff 24 received limited treatment for her depression and anxiety, and this treatment was 25 limited to medication management and two counseling sessions. Much of the 26 record regarding Plaintiff’s physical impairments, however, involves treatment 27 Plaintiff received after her total right knee replacement, a surgery which cannot be 28 classified as conservative or routine treatment. Thus, the ALJ did not err in ORDER GRANTING DEFENDANT’S MOTION . . . - 7 1 discrediting Plaintiff based on conservative treatment for her mental impairments, 2 but this reasoning is inapplicable to her physical impairments. 3 3. Normal presentations 4 The ALJ found Plaintiff’s reporting of depression and suicidal thoughts 5 inconsistent with treatment notes indicating that Plaintiff presented normally to her 6 health care providers. Tr. 21 (citing Tr. 298). 7 In determining a claimant’s credibility, the ALJ may consider “ordinary 8 techniques of credibility evaluation, such as the claimant’s reputation for lying, 9 prior inconsistent statements . . . and other testimony by the claimant that appears 10 11 less than candid.” Smolen, 80 F.3d at 1284. The ALJ did not err in using Plaintiff’s normal presentations at her medical 12 appointments to discredit Plaintiff. As noted by the ALJ, some of Plaintiff’s 13 treatment notes, especially Plaintiff’s most recent treatment notes, indicate that 14 Plaintiff presented to her medical appointments without signs of depression. See 15 Tr. 298, 366, 368, 369, 370. These observations are inconsistent with Plaintiff’s 16 allegations of disabling depressive symptoms and suggest that Plaintiff’s 17 depression is substantially controlled. Plaintiff is accurate in arguing that, for a 18 period of time, between approximately May 2011 and November 2011, treatment 19 notes reflect that Plaintiff did present with a depressed mood and blunted affect. 20 ECF No. 12 at 15 (citing Tr. 288, 291, 293, 298, 300, 330, 332, 356). These 21 observations corroborate Plaintiff’s allegations. But given the inconsistent 22 evidence, the Court must defer to the ALJ’s interpretation, which is substantially 23 supported. Tackett, 180 F.3d at 1097. 24 4. Lack of regular mental health treatment 25 The ALJ noted that Plaintiff only sought mental health treatment on “a very 26 infrequent basis” and reasoned, “If [Plaintiff’s] health problems were not severe 27 enough to motivate her to follow through with treatment, it is difficult to accept 28 that they are disabling.” Tr. 21. ORDER GRANTING DEFENDANT’S MOTION . . . - 8 1 Unexplained or inadequately explained reasons for failing to seek medical 2 treatment cast doubt on a claimant’s subjective complaints. 20 C.F.R. § 404.1530; 3 Fair v. Bowen, 885 F.2d 597, 603 (9th Cir. 1989). 4 The ALJ did not err in reasoning that Plaintiff’s lack of regular mental health 5 treatment suggested that Plaintiff’s impairments were not as severe as she alleged. 6 Treatment notes indicate Plaintiff has a history of depression. See, e.g., Tr. 303 7 (treatment note dated March 11, 2011, noting Plaintiff’s depression “stable”). In 8 the time period relevant to this case, the record reflects that Plaintiff sought 9 treatment for depression from her primary care provider on six occasions: May 19, 10 2011, July 18, 2011, October 6, 2011, October 21, 2011, October 26, 2011, and 11 November 9, 2011. Tr. 288, 290, 292, 295 297, 299. Plaintiff attended counseling 12 sessions on October 27, 2011, and November 4, 2011, Tr. 327-332, but apparently 13 discontinued counseling because she was not sure “what [she was] supposed to get 14 out of [it],” Tr. 331. After November 2011, Plaintiff apparently did not seek 15 mental health treatment for over a year. Plaintiff again alleged depressive 16 symptoms at approximately five appointments between April 16, 2013, and July 17 22, 2013. Tr. 365-71. These appointments were primarily related to treatment 18 involving a lipoma on Plaintiff’s back, but Plaintiff’s treating source also made 19 adjustments to Plaintiff’s medication for her depression and anxiety. Given the 20 significant gap in treatment between November 2011 and April 2013, and the fact 21 that Plaintiff declined to pursue counseling, the ALJ did not err in discrediting 22 Plaintiff based on her lack of mental health treatment. 23 Plaintiff argues that her failure to seek treatment can be excused given the 24 fact that her suicidal thoughts increased when she started taking anti-depressants, 25 causing her “to develop an aversion to treatment through prescription drugs and 26 counseling.” ECF No. 12 at 16. While this may have been Plaintiff’s subjective 27 rationale for not seeking treatment, it is not supported by the administrative record. 28 Rather, the record indicates, although Plaintiff’s treatment providers stopped ORDER GRANTING DEFENDANT’S MOTION . . . - 9 1 prescribing her Wellbutrin, Plaintiff continued to take other medications until her 2 treating sources eventually found the right combination and dosage of medications 3 to effectively control Plaintiff’s depression and anxiety. See Tr. 368-71. 4 Plaintiff’s rationale further does not seem to excuse her failure to seek counseling. 5 Counseling does not appear to have played a role in Plaintiff’s overdose and 6 Plaintiff apparently found counseling unnecessary. See Tr. 331 (at Plaintiff’s 7 second, and final, counseling session she stated that she was not sure “what [she 8 was] supposed to get out of [counseling]”). 9 5. Activities of daily living 10 The ALJ found Plaintiff’s activities inconsistent with her reports of disabling 11 limitations and symptoms. Tr. 21. The ALJ noted Plaintiff was able to go on daily 12 twenty minute walks and care for her grandchildren and her son’s girlfriend’s son. 13 Tr. 21 (citing Tr. 320, 331). The ALJ also noted that Plaintiff worked for six 14 months as a home health aide, and such employment ended because Plaintiff did 15 not take a test within the required timeframe. Tr. 22. 16 A claimant’s daily activities may support an adverse credibility finding if (1) 17 the claimant’s activities contradict his or her other testimony, or (2) “the claimant 18 is able to spend a substantial part of his day engaged in pursuits involving 19 performance of physical functions that are transferable to a work setting.” Orn v. 20 Astrue, 495 F.3d 625, 639 (9th Cir. 2007) (citing Fair, 885 F.2d at 603). “The ALJ 21 must make ‘specific findings relating to [the daily] activities’ and their 22 transferability to conclude that a claimant’s daily activities warrant an adverse 23 credibility determination.” Id. (quoting Burch v. Barnhart, 400 F.3d 676, 681 (9th 24 Cir. 2005)). A claimant need not be “utterly incapacitated” to be eligible for 25 benefits. Fair, 885 F.2d at 603. 26 The ALJ partially erred in finding Plaintiff’s activities inconsistent with her 27 symptom reporting. The ALJ erred in finding Plaintiff’s daily walks were 28 inconsistent with her symptom reporting. At the hearing, Plaintiff testified that she ORDER GRANTING DEFENDANT’S MOTION . . . - 10 1 can walk for about half an hour or forty five minutes. Tr. 59-60. Plaintiff 2 consistently reported her ability to walk and the ALJ made no finding that being 3 able to walk for twenty to forty five minutes was a task transferable to a work 4 setting. Furthermore, the ALJ made no specific findings about how Plaintiff’s care 5 of her grandchildren was inconsistent with her testimony or involved tasks 6 transferrable to a work setting. Simply because the children were difficult and the 7 babysitting schedule was somewhat unpredictable does not necessarily mean that 8 Plaintiff engaged in activity inconsistent with her testimony or which involved 9 tasks transferable to a work setting. See Fair, 885 F.2d at 603 (claimant need not 10 11 be “utterly incapacitated” to be eligible for benefits). The ALJ’s finding that Plaintiff was able to work during her alleged 12 disability is a specific, clear, and convincing reason for discrediting Plaintiff. 13 Plaintiff testified that she worked as an in-home caretaker part-time for six months, 14 but had to stop working because she did not take a required test. Tr. 45-46. Even 15 though this was not full time work, the ALJ was still allowed to consider it in 16 evaluating Plaintiff’s credibility and did not err in finding that such work was 17 inconsistent with Plaintiff’s reporting of disabling symptoms. See Bray v. 18 Comm’r, Soc. Sec. Admin., 554 F.3d 1219, 1227 (9th Cir. 2009) (claimant’s ability 19 to work can be considered in assessing credibility). The ALJ’s finding is bolstered 20 by the fact that Plaintiff stopped this work for reasons other than her alleged 21 disability. See Bruton v. Massanari, 268 F.3d 824, 828 (9th Cir. 2001) (ALJ 22 properly relied on the fact that claimant left his job because he was laid off, rather 23 than because he was injured, in finding the claimant not entirely credible). The 24 fact that Plaintiff worked part time for six months during her alleged disability is a 25 specific, clear, and convincing reason to discredit Plaintiff. 26 6. Conclusion 27 Some of the reasons provided by the ALJ were not specific, clear, and 28 convincing reasons to discredit Plaintiff. Specifically, the ALJ erred in finding ORDER GRANTING DEFENDANT’S MOTION . . . - 11 1 Plaintiff underwent only conservative treatment and by failing to provide specific 2 reasons for how Plaintiff’s ability to go on walks and care for her grandchildren 3 was inconsistent with her symptom reporting or involved tasks transferrable to a 4 work setting. These errors are harmless, however, given the number of other 5 specific, clear, and convincing reasons provided by the ALJ to discredit Plaintiff. 6 See Tommasetti v. Astrue, 533 F.3d 1035, 1038 (9th Cir. 2008) (an error is 7 harmless when “it is clear from the record that the . . . error was inconsequential to 8 the ultimate nondisability determination”); Carmickle v. Comm’r, Soc. Sec. 9 Admin., 533 F.3d 1160, 1163 (9th Cir. 2008) (upholding adverse credibility finding 10 where ALJ provided four reasons to discredit claimant, two of which were invalid). 11 B. 12 Evaluation of Medical Evidence Plaintiff argues the ALJ failed to give adequate weight to the limitations 13 assessed by John Wheaton, M.D., one of Plaintiff’s treating physicians, and 14 Thomas Genthe, Ph.D., an examining psychologist. ECF No. 12 at 10-12. 15 “In making a determination of disability, the ALJ must develop the record 16 and interpret the medical evidence.” Howard ex. rel. Wolff v. Barnhart, 341 F.3d 17 1006, 1012 (9th Cir. 2003). 18 In weighing medical source opinions, the ALJ should distinguish between 19 three different types of physicians: (1) treating physicians, who actually treat the 20 claimant; (2) examining physicians, who examine but do not treat the claimant; 21 and, (3) nonexamining physicians who neither treat nor examine the claimant. 22 Lester, 81 F.3d at 830. The ALJ should give more weight to the opinion of a 23 treating physician than to the opinion of an examining physician. Orn, 495 F.3d at 24 631. The ALJ should give more weight to the opinion of an examining physician 25 than to the opinion of a nonexamining physician. Id. 26 When a physician’s opinion is not contradicted by another physician, the 27 ALJ may reject the opinion only for “clear and convincing” reasons. Baxter v. 28 Sullivan, 923 F.2d 1391, 1396 (9th Cir. 1991). When a physician’s opinion is ORDER GRANTING DEFENDANT’S MOTION . . . - 12 1 contradicted by another physician, the ALJ is only required to provide “specific 2 and legitimate reasons” for rejecting the opinion of the first physician. Murray v. 3 Heckler, 722 F.2d 499, 502 (9th Cir. 1983). 4 1. John Wheaton, M.D. 5 Dr. Wheaton is an orthopedic specialist who performed Plaintiff’s right total 6 knee arthroplasty and treated Plaintiff on a number of occasions post-surgery. See 7 Tr. 320-26, 333. In May 2011, Dr. Wheaton opined that Plaintiff could return to 8 work with the following limitations: “No ladders or kneeling,” “No squatting more 9 than 1 hour per shift,” and “No pushing, pulling, or lifting greater than 30 pounds.” 10 Tr. 326. Dr. Wheaton stated that these limitations would “all be enforced until 11 September 1, 2011.” Tr. 326. In April 2012, Dr. Wheaton opined that Plaintiff 12 was “unable to kneel.” Tr. 333. 13 Plaintiff argues that the ALJ ignored the limitations assessed by Dr. 14 Wheaton, including her need to avoid ladders and kneeling. ECF No. 12 at 11. 15 Defendant notes that the ALJ discussed Dr. Wheaton’s assessments, but Defendant 16 concedes that the ALJ failed to weigh them. ECF No. 20 at 13 (citing Tr. 19). 17 Defendant argues that any error made by the ALJ was harmless, however, as Dr. 18 Wheaton opined that the limitations would only last for about four months, the 19 ALJ accounted for most of the limitations assessed by Dr. Wheaton, and because 20 the jobs identified by the ALJ at step five do not involve kneeling. Id. at 14. 21 The Court finds any error made by the ALJ to be harmless for the reasons 22 argued by Defendant. While the opinions of a treating physician are generally 23 entitled to deference, even if the ALJ had given controlling weight to the 24 limitations assessed by Dr. Wheaton, the ALJ’s ultimate nondisability 25 determination would not be affected. Therefore, the error was harmless. 26 First, Dr. Wheaton estimated the limitations he assessed in May 2011 would 27 need to be enforced only until September 2011. Plaintiff’s surgery was in April 28 2011 and it is reasonable to presume that these limitations began immediately after ORDER GRANTING DEFENDANT’S MOTION . . . - 13 1 her surgery. If, as estimated by Dr. Wheaton, these limitations lasted into 2 September 2011, the record supports that Plaintiff’s limitations assessed by Dr. 3 Wheaton at Tr. 326 lasted for five to six months. This is not long enough to 4 establish disability. See 42 U.S.C. § 1382c(a)(3)(A) (disability must be premised 5 on medically determinable physical or mental impairments that have “lasted or can 6 be expected to last for a continuous period of not less than twelve months”). 7 Second, the ALJ’s RFC determination generally accounted for Plaintiff’s 8 lifting, pushing, pulling limitations, and Dr. Wheaton’s opinion that Plaintiff 9 should never climb ladders. Compare Tr. 17 with Tr. 326. 10 Finally, even if the ALJ had credited Dr. Wheaton’s April 2012 opinion that 11 Plaintiff “is unable to kneel,” Tr. 333, this limitation would not preclude Plaintiff 12 from performing the jobs identified by the VE, Tr. 64-65, because none of these 13 jobs involve kneeling. See Dictionary of Occupational Titles 706.687-010, 1991 14 WL 679074 (production assembler), 211.462-010, 1991 WL 671840 (cashier II), 15 311.472-010, 1991 WL 672682 (fast food worker). 16 17 In conclusion, the error made by the ALJ in failing to give weight to Dr. Wheaton’s opinions is harmless. 18 2. Thomas Genthe, Ph.D. 19 Dr. Genthe completed a psychological evaluation of Plaintiff in August 20 2012. Tr. 353-57. Dr. Genthe diagnosed Plaintiff with major depressive disorder 21 and panic disorder with agoraphobia. Tr. 356. Dr. Genthe concluded 22 23 24 25 26 27 28 [Plaintiff’s] ability to understand and remember short, simple instructions was assessed as good. Her ability to understand and remember detailed instructions was assessed as fair. Her ability to carry out short, simple instructions was assessed as good. Her ability to carry out detailed instructions was assessed as fair. Her ability to sustain an ordinary routine without supervision was assessed as good to fair. Her ability to work with or near others without being distracted by them was assessed as fair. Her ability to respond appropriately to changes in the work setting was assessed as fair. ORDER GRANTING DEFENDANT’S MOTION . . . - 14 1 2 3 4 5 6 7 8 9 10 11 From a social perspective, [Plaintiff’s] ability to interact appropriately with the public was assessed as fair. Her ability to get along with coworkers and/or peers was assessed as fair, and her ability to respond appropriately to criticism from supervisors as fair. [Plaintiff’s] prognosis is viewed as fair. At this time, she is unlikely to function adequately in a work setting until her psychological symptoms have been managed more effectively. Given her response to treatment, and willing participation, a period of 3-6 months may likely be sufficient to address her treatment needs at least moderately well, and help her regain the necessary emotional functioning to resume fulltime work related activities. Tr. 357. The ALJ gave some weight to Dr. Genthe’s opinions. Tr. 22. The ALJ 12 rejected Dr. Genthe’s conclusion that Plaintiff is unlikely able to function 13 adequately until she receives treatment. Tr. 22. The ALJ found this conclusion 14 inconsistent with Dr. Genthe’s normal mental status examination and the fact that 15 Plaintiff reported that her physical condition was the primary reason why she was 16 unable to work. Tr. 22. The ALJ further found that other records indicated that 17 Plaintiff’s depression and anxiety were improved and controlled. Tr. 22. 18 Plaintiff argues that the ALJ ignored Dr. Genthe’s conclusion that Plaintiff 19 was unable to work without treatment and erred in reasoning that Dr. Genthe relied 20 on Plaintiff’s self-reported symptoms. ECF No. 12 at 11-12. Defendant concedes 21 that the ALJ erred in reasoning that Plaintiff reported primarily physical 22 impairments and not mental impairments, ECF No. 20 at 15 (citing Tr. 353), but 23 argues that the error was harmless in light of the ALJ’s other reasons, id. 24 The Court finds that the ALJ did not err in evaluating Dr. Genthe’s opinions 25 and provided specific and legitimate reasons for rejecting Dr. Genthe’s conclusion 26 that Plaintiff was unable to work without further treatment. Plaintiff appears to be 27 mistaken when she argues that the ALJ rejected Dr. Genthe’s opinion on account 28 of Plaintiff’s unreliable reporting; the ALJ did not cite this as a reason to reject Dr. ORDER GRANTING DEFENDANT’S MOTION . . . - 15 1 Genthe’s opinion. The ALJ did not err in noting inconsistencies between the 2 results of Dr. Genthe’s “fairly normal” mental status exam and his ultimate 3 conclusion. Tr. 22, 355-57; see Bayliss v. Barnhart, 427 F.3d 1211, 1216 (9th Cir. 4 2005) (finding that an ALJ may cite internal inconsistencies in evaluating a 5 physician’s report). The ALJ also did not err in reasoning that, contrary to Dr. 6 Genthe’s opinion, Plaintiff reported that her depression and anxiety were improved 7 and controlled. Tr. 22; see also Tr. 366-71. The fact that a condition can be 8 remedied by medication is a legitimate reason for discrediting an opinion. Warre, 9 439 F.3d at 1006. The ALJ provided specific and legitimate reasons for rejecting 10 Dr. Genthe’s opinion that Plaintiff would be likely be unable to work without 11 treatment. 12 C. 13 RFC and Hypothetical Question Plaintiff argues that the ALJ did not account for all of Plaintiff’s limitations 14 in the ALJ’s RFC determination and inquiries to the VE. ECF No. 12 at 17-18. 15 Plaintiff argues that ALJ should have included limitations regarding kneeling, 16 standing, and psychological symptoms. Id. Plaintiff also argues that ALJ should 17 have found her limited to sedentary work. Id. at 18. 18 A claimant’s RFC is “the most [a claimant] can still do despite [her] 19 limitations.” 20 C.F.R. § 416.945(a); see also 20 C.F.R. Part 404, Subpart P, 20 Appendix 2, § 200.00(c) (defining RFC as the “maximum degree to which the 21 individual retains the capacity for sustained performance of the physical-mental 22 requirements of jobs.”). In formulating a RFC, the ALJ weighs medical and other 23 source opinions and also considers the claimant’s credibility and ability to perform 24 daily activities. See, e.g., Bray, 554 F.3d at 1226. 25 26 In this case, the ALJ found Plaintiff had the RFC to perform a range of light work except: 27 28 [L]ift no more than 20 pounds at a time; frequently lift and carry 10 ORDER GRANTING DEFENDANT’S MOTION . . . - 16 1 2 3 4 5 6 7 8 9 pounds; sit, stand and walk 6 hours out of an 8-hour workday; unlimited push/pull within lifting restrictions; never climb ladders, ropes, and scaffolds and crouch; occasionally climb ramps or stairs, kneel, and crawl; frequently balance, and stoop; avoid concentrated exposure to extreme cold and excessive vibration; avoid moderate exposure to unprotected heights and use of moving machinery; capable of simple, routine and repetitive tasks, some well learned detailed tasks; can maintain attention and concentration for 2 hour segments for simple and well learned tasks without more than normally expected brief interruptions; is capable of superficial contact with the general public; can interact with coworkers on specific work related tasks. 10 Tr. 17. When the ALJ asked the VE if someone with Plaintiff’s background and 11 these limitations was capable of working, the VE testified that such a person could 12 work as a production assembler, cashier II, or a fast food worker. Tr. 64-65. 13 The Court concludes that the ALJ’s RFC determination is supported by 14 substantial evidence and not based on legal error. The nonexertional social and 15 cognitive limitations contained in Plaintiff’s RFC are essentially the same as those 16 assessed by Dr. Genthe. Cf. Tr. 357. And as discussed supra, any error the ALJ 17 made in not giving weight to Dr. Wheaton’s opinions concerning Plaintiff’s ability 18 to kneel, and other (temporary) limitations, Tr. 327, 333, is harmless. Finally, 19 although Plaintiff testified that she can only stand for about fifteen minutes at a 20 time or for half an hour in an eight-hour workday, Tr. 58, such a severe limitation 21 is not supported by the record and the ALJ did not err in finding Plaintiff’s 22 symptom reporting less than credible. Likewise, Plaintiff fails to point to any 23 evidence—other than her own testimony—supporting her argument that she is 24 limited to sedentary work. As the ALJ’s hypothetical question to the VE mirrored 25 the ALJ’s RFC determination, the Court further finds that the ALJ’s inquiries to 26 the VE were also proper. See Osenbrock v. Apfel, 240 F.3d 1157, 1165-66 (9th 27 Cir. 2001) (ALJ is only required to present the VE with those limitations the ALJ 28 finds to be credible and supported by the evidence). ORDER GRANTING DEFENDANT’S MOTION . . . - 17 1 CONCLUSION 2 Having reviewed the record and the ALJ’s findings, the Court finds the 3 ALJ’s decision is supported by substantial evidence and free of legal error. 4 Accordingly, IT IS ORDERED: 5 6 1. Defendant’s Motion for Summary Judgment, ECF No. 20, is GRANTED. Plaintiff’s Motion for Summary Judgment, ECF No. 12, is DENIED. 7 2. 8 The District Court Executive is directed to file this Order and provide a copy 9 to counsel for Plaintiff and Defendant. Judgment shall be entered for Defendant 10 11 and the file shall be CLOSED. DATED September 28, 2015. 12 13 14 _____________________________________ JOHN T. RODGERS UNITED STATES MAGISTRATE JUDGE 15 16 17 18 19 20 21 22 23 24 25 26 27 28 ORDER GRANTING DEFENDANT’S MOTION . . . - 18

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.