Andrews v. Commissioner of Social Security, No. 2:2017cv00038 - Document 26 (E.D. Wash. 2018)
Court Description: ORDER DENYING ECF No. 18 PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT AND GRANTING ECF No. 25 DEFENDANT'S MOTION FOR SUMMARY JUDGMENT. FILE CLOSED. Signed by Magistrate Judge Mary K. Dimke. (TR, Case Administrator)
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Andrews v. Commissioner of Social Security 1 Doc. 26 FI LED I N THE U.S. DI STRI CT COURT EASTERN DI STRI CT OF WASHI NGTON 2 Mar 28, 2018 3 SEAN F. MCAVOY, CLERK 4 5 UNITED STATES DISTRICT COURT 6 EASTERN DISTRICT OF WASHINGTON 7 GREG SCOTT ANDREWS, No. 2:17-cv-00038-MKD 8 ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT 9 Plaintiff, vs. 10 COMMISSIONER OF SOCIAL SECURITY, 11 Defendant. ECF Nos. 18, 25 12 13 BEFORE THE COURT are the parties’ cross-motions for summary 14 judgment. ECF Nos. 18, 25. The parties consented to proceed before a magistrate 15 judge. ECF No. 9. The Court, having reviewed the administrative record and the 16 parties’ briefing, is fully informed. For the reasons discussed below, the Court 17 18 19 20 21 ORDER - 1 Dockets.Justia.com 1 denies Plaintiff’s motion (ECF No. 18) and grants Defendant’s motion (ECF No. 2 25).1 3 JURISDICTION 4 The Court has jurisdiction over this case pursuant to 42 U.S.C. § 1383(c)(3). 5 STANDARD OF REVIEW A district court’s review of a final decision of the Commissioner of Social 6 7 Security is governed by 42 U.S.C. § 405(g). The scope of review under § 405(g) is 8 limited; the Commissioner’s decision will be disturbed “only if it is not supported 9 by substantial evidence or is based on legal error.” Hill v. Astrue, 698 F.3d 1153, 10 1158 (9th Cir. 2012). “Substantial evidence” means “relevant evidence that a 11 reasonable mind might accept as adequate to support a conclusion.” Id. at 1159 12 (quotation and citation omitted). Stated differently, substantial evidence equates to 13 “more than a mere scintilla[,] but less than a preponderance.” Id. (quotation and 14 citation omitted). In determining whether the standard has been satisfied, a 15 16 17 1 Defendant’s Motion fails to comply with Local Rule 10.1(a)(2) requiring double- 18 spaced footnotes, thereby circumventing the length restrictions set forth in Local 19 Rule 7.1. Defense counsel is to ensure that future filings comply with this rule as 20 this continued practice may result in subsequent filings being stricken. 21 ORDER - 2 1 reviewing court must consider the entire record as a whole rather than searching 2 for supporting evidence in isolation. Id. 3 In reviewing a denial of benefits, a district court may not substitute its 4 judgment for that of the Commissioner. Edlund v. Massanari, 253 F.3d 1152, 5 1156 (9th Cir. 2001). If the evidence in the record “is susceptible to more than one 6 rational interpretation, [the court] must uphold the ALJ’s findings if they are 7 supported by inferences reasonably drawn from the record.” Molina v. Astrue, 674 8 F.3d 1104, 1111 (9th Cir. 2012). Further, a district court “may not reverse an 9 ALJ’s decision on account of an error that is harmless.” Id. An error is harmless 10 “where it is inconsequential to the [ALJ’s] ultimate nondisability determination.” 11 Id. at 1115 (quotation and citation omitted). The party appealing the ALJ’s 12 decision generally bears the burden of establishing that it was harmed. Shinseki v. 13 Sanders, 556 U.S. 396, 409-10 (2009). 14 15 FIVE-STEP EVALUATION PROCESS A claimant must satisfy two conditions to be considered “disabled” within 16 the meaning of the Social Security Act. First, the claimant must be “unable to 17 engage in any substantial gainful activity by reason of any medically determinable 18 physical or mental impairment which can be expected to result in death or which 19 has lasted or can be expected to last for a continuous period of not less than twelve 20 months.” 42 U.S.C. § 1382c(a)(3)(A). Second, the claimant’s impairment must be 21 ORDER - 3 1 “of such severity that he is not only unable to do his previous work[,] but cannot, 2 considering his age, education, and work experience, engage in any other kind of 3 substantial gainful work which exists in the national economy.” 42 U.S.C. § 4 1382c(a)(3)(B). 5 The Commissioner has established a five-step sequential analysis to 6 determine whether a claimant satisfies the above criteria. See 20 C.F.R. § 7 416.920(a)(4)(i)-(v). At step one, the Commissioner considers the claimant’s work 8 activity. 20 C.F.R. § 416.920(a)(4)(i). If the claimant is engaged in “substantial 9 gainful activity,” the Commissioner must find that the claimant is not disabled. 20 10 C.F.R. § 416.920(b). 11 If the claimant is not engaged in substantial gainful activity, the analysis 12 proceeds to step two. At this step, the Commissioner considers the severity of the 13 claimant’s impairment. 20 C.F.R. § 416.920(a)(4)(ii). If the claimant suffers from 14 “any impairment or combination of impairments which significantly limits [his or 15 her] physical or mental ability to do basic work activities,” the analysis proceeds to 16 step three. 20 C.F.R. § 416.920(c). If the claimant’s impairment does not satisfy 17 this severity threshold, however, the Commissioner must find that the claimant is 18 not disabled. 20 C.F.R. § 416.920(c). 19 At step three, the Commissioner compares the claimant’s impairment to 20 severe impairments recognized by the Commissioner to be so severe as to preclude 21 ORDER - 4 1 a person from engaging in substantial gainful activity. 20 C.F.R. § 2 416.920(a)(4)(iii). If the impairment is as severe or more severe than one of the 3 enumerated impairments, the Commissioner must find the claimant disabled and 4 award benefits. 20 C.F.R. § 416.920(d). 5 If the severity of the claimant’s impairment does not meet or exceed the 6 severity of the enumerated impairments, the Commissioner must pause to assess 7 the claimant’s “residual functional capacity.” Residual functional capacity (RFC), 8 defined generally as the claimant’s ability to perform physical and mental work 9 activities on a sustained basis despite his or her limitations, 20 C.F.R. § 10 416.945(a)(1), is relevant to both the fourth and fifth steps of the analysis. 11 At step four, the Commissioner considers whether, in view of the claimant’s 12 RFC, the claimant is capable of performing work that he or she has performed in 13 the past (past relevant work). 20 C.F.R. § 416.920(a)(4)(iv). If the claimant is 14 capable of performing past relevant work, the Commissioner must find that the 15 claimant is not disabled. 20 C.F.R. § 416.920(f). If the claimant is incapable of 16 performing such work, the analysis proceeds to step five. 17 At step five, the Commissioner considers whether, in view of the claimant’s 18 RFC, the claimant is capable of performing other work in the national economy. 19 20 C.F.R. § 416.920(a)(4)(v). In making this determination, the Commissioner 20 must also consider vocational factors such as the claimant’s age, education and 21 ORDER - 5 1 past work experience. 20 C.F.R. § 416.920(a)(4)(v). If the claimant is capable of 2 adjusting to other work, the Commissioner must find that the claimant is not 3 disabled. 20 C.F.R. § 416.920(g)(1). If the claimant is not capable of adjusting to 4 other work, analysis concludes with a finding that the claimant is disabled and is 5 therefore entitled to benefits. 20 C.F.R. § 416.920(g)(1). 6 The claimant bears the burden of proof at steps one through four above. 7 Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999). If the analysis proceeds to 8 step five, the burden shifts to the Commissioner to establish that (1) the claimant is 9 capable of performing other work; and (2) such work “exists in significant 10 numbers in the national economy.” 20 C.F.R. § 416.960(c)(2); Beltran v. Astrue, 11 700 F.3d 386, 389 (9th Cir. 2012). ALJ’S FINDINGS 12 13 Plaintiff filed an application for Title XVI supplemental security income 14 benefits on September 5, 2012, alleging an amended onset date of September 15, 15 2012. Tr. 277-82. The application was denied initially, Tr. 175-82, and on 16 reconsideration, Tr. 184-90. Plaintiff appeared pro se at a hearing before an 17 administrative law judge (ALJ) on January 30, 2015. Tr. 49-63. Plaintiff appeared 18 with counsel at supplemental hearings on June 12, 2015, Tr. 64-98, and September 19 11, 2015, Tr. 99-149. On October 8, 2015, the ALJ denied Plaintiff’s claim. Tr. 20 27-42. 21 ORDER - 6 1 At step one of the sequential evaluation process, the ALJ found Plaintiff had 2 not engaged in substantial gainful activity since September 5, 2012. Tr. 29. At 3 step two, the ALJ found Plaintiff has the following severe impairments: obesity; 4 coronary artery disease back problems described as degenerative arthritis and 5 degenerative disc disease of the cervical spine, lumbar spine degenerative disc 6 disease, and thoracic spondylosis; and mental impairments described as 7 generalized anxiety disorder without agoraphobia, cannabis use, and polysubstance 8 use. Tr. 29. At step three, the ALJ found Plaintiff does not have an impairment or 9 combination of impairments that meets or medically equals the severity of a listed 10 impairment. Tr. 30. The ALJ then concluded that Plaintiff has the RFC to perform 11 light work with the following limitations: 12 13 14 15 16 17 18 19 [T]he claimant can sit for six hours in an eight-hour workday; stand and walk six hours total in any combination in an eight-hour workday with normal breaks; can lift and carry 20 pounds occasionally and 10 pounds frequently. He can occasionally push or pull arm or leg controls within the weight limitations given; can occasionally stoop, crouch, kneel, crawl, and balance; can occasionally climb ramps or stairs; cannot climb ladders, ropes, or scaffolds. He should avoid concentrated exposure to heavy industrial vibrations; no unprotected heights; should avoid concentrated exposure to hazardous machinery, and extreme cold or heat. He can occasionally reach overhead with the right upper extremity; can frequently reach in all other directions within 18 inches of the body with the right upper extremity; and can occasionally reach in all other directions outside of 18 inches of the body with the right upper extremity. The claimant would need a job where he is around co-workers and the general public; no job where he would be completely isolated; and no job that would be considered claustrophobic in nature. 20 Tr. 32. 21 ORDER - 7 1 At step four, the ALJ found Plaintiff is able to perform past relevant work as 2 a fast foods worker. Tr. 40. Alternatively, at step five, the ALJ found there are 3 jobs that exist in significant numbers in the national economy that Plaintiff can 4 perform, such as barista, cashier, and ticket seller. Tr. 41. On November 25, 2016, 5 the Appeals Council denied review of the ALJ’s decision, Tr. 1-6, making the 6 ALJ’s decision the Commissioner’s final decision for purposes of judicial review. 7 See 42 U.S.C. § 1383(c)(3). 8 ISSUES Plaintiff seeks judicial review of the Commissioner’s final decision denying 9 10 him supplemental security income benefits under Title XVI of the Social Security 11 Act. Plaintiff raises the following issues for review: 12 1. Whether the ALJ properly evaluated Plaintiff’s symptom complaints; 13 2. Whether the ALJ properly evaluated the medical opinion evidence; 14 3. Whether the ALJ’s RFC finding is supported by substantial evidence; 4. Whether the ALJ properly considered the Medical Vocational 15 and 16 17 Guidelines at step five. 18 ECF No. 18 at 1-2. 19 20 21 ORDER - 8 1 2 3 DISCUSSION A. Plaintiff’s Symptom Testimony Plaintiff faults the ALJ for failing to rely on reasons that were clear and 4 convincing in discrediting his symptom claims. ECF No. 18 at 10-14. An ALJ 5 engages in a two-step analysis to determine whether a claimant’s testimony 6 regarding subjective pain or symptoms is credible. “First, the ALJ must determine 7 whether there is objective medical evidence of an underlying impairment which 8 could reasonably be expected to produce the pain or other symptoms alleged.” 9 Molina, 674 F.3d at 1112 (internal quotation marks omitted). “The claimant is not 10 required to show that his impairment could reasonably be expected to cause the 11 severity of the symptom he has alleged; he need only show that it could reasonably 12 have caused some degree of the symptom.” Vasquez v. Astrue, 572 F.3d 586, 13 591(9th Cir. 2009) (internal quotation marks omitted). 14 Second, “[i]f the claimant meets the first test and there is no evidence of 15 malingering, the ALJ can only reject the claimant’s testimony about the severity of 16 the symptoms if [the ALJ] gives ‘specific, clear and convincing reasons’ for the 17 rejection.” Ghanim v. Colvin, 763 F.3d 1154, 1163 (9th Cir. 2014) (quoting 18 Lingenfelter v. Astrue, 504 F.3d 1028, 1036 (9th Cir. 2007)). “General findings are 19 insufficient; rather, the ALJ must identify what testimony is not credible and what 20 evidence undermines the claimant’s complaints.” Id. (quoting Lester v. Chater, 81 21 ORDER - 9 1 F.3d 821, 834 (9th Cir. 1995)); Thomas v. Barnhart, 278 F.3d 947, 958 (9th Cir. 2 2002) (“[T]he ALJ must make a credibility determination with findings sufficiently 3 specific to permit the court to conclude that the ALJ did not arbitrarily discredit 4 claimant’s testimony.”). “The clear and convincing [evidence] standard is the most 5 demanding required in Social Security cases.” Garrison v. Colvin, 759 F.3d 995, 6 1015 (9th Cir. 2014) (quoting Moore v. Comm’r of Soc. Sec. Admin., 278 F.3d 920, 7 924 (9th Cir. 2002)). 8 In making an adverse credibility determination, the ALJ may consider, inter 9 alia, (1) the claimant’s reputation for truthfulness; (2) inconsistencies in the 10 claimant’s testimony or between his testimony and his conduct; (3) the claimant’s 11 daily living activities; (4) the claimant’s work record; and (5) testimony from 12 physicians or third parties concerning the nature, severity, and effect of the 13 claimant’s condition. Thomas, 278 F.3d at 958-59. 14 The ALJ found that Plaintiff’s medically determinable impairments could 15 cause Plaintiff’s alleged symptoms, but that Plaintiff’s testimony about the severity 16 of his symptoms was not entirely credible. Tr. 33. 17 1. Improvement with Treatment 18 First, the ALJ found that Plaintiff’s symptom complaints were inconsistent 19 with Plaintiff’s improvement with treatment. Tr. 34. The effectiveness of 20 medication and treatment is a relevant factor in determining the severity of a 21 ORDER - 10 1 claimant’s symptoms. 20 C.F.R. § 416.929(c)(3) (2011); see Warre v. Comm’r of 2 Soc. Sec. Admin., 439 F.3d 1001, 1006 (9th Cir. 2006) (conditions effectively 3 controlled with medication are not disabling for purposes of determining eligibility 4 for benefits) (internal citations omitted); see also Tommasetti v. Astrue, 533 F.3d 5 1035, 1040 (9th Cir. 2008) (a favorable response to treatment can undermine a 6 claimant’s complaints of debilitating pain or other severe limitations). 7 Plaintiff testified to severe limitations from chest pain due to his December 8 2011 heart attack. Tr. 127, 132. However, the ALJ noted Plaintiff’s heart 9 condition had improved significantly since his urgent care in 2011 and subsequent 10 treatment. Tr. 34. Plaintiff’s December 2011 cardiac surgery was successful. Tr. 11 449-50. After the surgery, Plaintiff showed significant improvement in cardiac 12 function. Tr. 501, 504. Dr. Panek also testified that Plaintiff’s cardiac impairment 13 had resolved by September 2012. Tr. 55-56. The ALJ reasonably concluded that 14 Plaintiff’s improvement following surgery indicated Plaintiff’s symptoms were not 15 as severe as alleged. Tr. 34. This was a clear and convincing reason to discredit 16 Plaintiff’s symptom testimony. 17 2. Conservative Treatment 18 Second, the ALJ found Plaintiff’s record of conservative treatment for his 19 symptoms was inconsistent with the level of impairment alleged. Tr. 34, 36-37. 20 When a claimant receives only conservative or minimal treatment, it supports an 21 ORDER - 11 1 adverse inference as to the claimant’s credibility regarding the severity of his 2 subjective symptoms. Parra v. Astrue, 481 F.3d 742, 750-51 (9th Cir. 2007); 3 Meanal v. Apfel, 172 F.3d 1111, 1114 (9th Cir. 1999). Additionally, unexplained, 4 or inadequately explained, failure to seek treatment or follow a prescribed course 5 of treatment may be the basis for an adverse credibility finding unless there is a 6 showing of a good reason for the failure. See Orn v. Astrue, 495 F.3d 625, 638 7 (9th Cir. 2007). Here, the ALJ noted that Plaintiff’s medical conditions did not 8 require significant medical treatment, and the medical record does not show an 9 increased frequency of treatment, epidural injections, medical branch blocks, use 10 of a TENS unit, physical therapy, brace usage, walker usage, wheelchair usage, 11 pain management, frequent emergency room visits, recent inpatient hospitalization, 12 specialist care, or surgery, the type of treatment recommendations one expects for 13 a person who is suffering from disabling medical conditions. Tr. 36. Moreover, 14 the ALJ noted instances where Plaintiff followed a conservative treatment plan. 15 Tr. 34, 36-37. For example, Plaintiff testified to disabling chest, back, hip, and 16 arm pain on a daily basis. Tr. 127-32. However, Plaintiff testified that he takes no 17 prescription pain medication. Tr. 129. Plaintiff then clarified that he takes an 18 expired prescription for Motrin 800s. Id. The ALJ reasonably concluded that 19 Plaintiff’s conservative treatment and failure to seek active prescription medication 20 management indicated Plaintiff’s pain was not as severe as alleged. Tr. 34. 21 ORDER - 12 1 Of the potential aggressive treatments identified by the ALJ, Plaintiff’s 2 medical providers only referred him to physical therapy. See Tr. 610-11, 765-86. 3 Plaintiff argues he did not pursue more aggressive care because his insurer would 4 not cover further treatment. ECF No. 18 at 12. Disability benefits may not be 5 denied because of the claimant’s failure to obtain treatment he cannot obtain for 6 lack of funds. Gamble v. Chater, 68 F.3d 319, 321 (9th Cir. 1995); see Tr. 140-41, 7 505-06, 588. However, “[w]here evidence is subject to more than one rational 8 interpretation, it is the ALJ’s conclusion that must be upheld.” Burch v. Barnhart, 9 400 F.3d 676, 679 (9th Cir. 2005). Plaintiff testified that he did not take 10 prescription pain medication because he did not “like to do pills.” Tr. 129. 11 Plaintiff also testified that he did not continue physical therapy due to pain and 12 because he felt he took no benefit from physical therapy. Tr. 141. Additionally, 13 Plaintiff was offered and agreed to an alternative home therapy program when his 14 insurance would not cover certain treatments. Tr. 615. Plaintiff’s own description 15 of his daily activities does not reflect that he followed the recommended home 16 therapy. Tr. 132, 135-36, 308. The ALJ’s conclusion that Plaintiff’s conservative 17 treatment adequately controlled his symptoms is a rational interpretation of the 18 evidence in the record, so the Court must uphold the ALJ’s conclusion. Burch, 400 19 F.3d at 679. Moreover, the ALJ’s conclusion that Plaintiff failed to seek more 20 21 ORDER - 13 1 aggressive treatment was adequately supported by the record. There were clear 2 and convincing reasons to discount Plaintiff’s symptom testimony. 3 3. Inconsistent with Medical Evidence 4 Third, the ALJ found Plaintiff’s symptom testimony was inconsistent with 5 the longitudinal medical record. Tr. 34-37. An ALJ may not discredit a claimant’s 6 pain testimony and deny benefits solely because the degree of pain alleged is not 7 supported by objective medical evidence. Rollins v. Massanari, 261 F.3d 853, 856 8 (9th Cir. 2001); Bunnell v. Sullivan, 947 F.2d 341, 346-47 (9th Cir. 1991); Fair v. 9 Bowen, 885 F.2d 597, 601 (9th Cir. 1989). Medical evidence is a relevant factor, 10 however, in determining the severity of a claimant’s pain and its disabling effects. 11 Rollins, 261 F.3d at 857; 20 C.F.R. § 416.929(c)(2). Minimal objective evidence is 12 a factor which may be relied upon in discrediting a claimant’s testimony, although 13 it may not be the only factor. See Burch, 400 F.3d at 680. 14 Here, the ALJ found Plaintiff’s complaints of disabling back pain were 15 inconsistent with the objective imaging in the record, which showed mild findings 16 at most. Tr. 34-35; see Tr. 667 (negative shoulder impression), Tr. 668 (mild disc 17 degeneration). The ALJ also noted the record did not reveal evidence of “a 18 significant degree of nerve root compression, cord compression, muscle atrophy, 19 paravertebral muscle spasm, sensory or motor loss, reflex abnormality, gait 20 disturbance, or significant reduced range of motion of the spine or joints,” nor 21 ORDER - 14 1 “significant radiculopathy, scoliosis, lordosis, disc bulging, herniation, disc 2 protrusion, neural foraminal narrowing, spinal stenosis, spondylosis, arachnoiditis, 3 spondylolisthesis, or other indications of a disabling spine disorder.” Tr. 35. Dr. 4 Weeks’ examination showed Plaintiff’s range of motion was mostly within normal 5 limits, with some limitation in the neck, back, and shoulder; trigger point and 6 swelling in the right shoulder and tenderness in the left spine, but no obvious signs 7 of atrophy or carpal tunnel; and full muscle strength, tone, and bulk. Tr. 760. 8 Plaintiff counters the ALJ’s conclusion by offering evidence of Plaintiff’s 9 diagnosis of spinal conditions. ECF No. 18 at 12-13. However, “[t]he mere 10 diagnosis of an impairment … is not sufficient to sustain a finding of disability.” 11 Key v. Heckler, 754 F.2d 1545, 1549 (9th Cir. 1985). Plaintiff does not establish 12 how these diagnoses indicate Plaintiff is capable of less than light work, as the ALJ 13 concluded. Additionally, Plaintiff notes Dr. Goodman and Mr. Wills also found 14 some decreased range of motion and observed some swelling and tenderness. ECF 15 No. 18 at 12. However, Plaintiff similarly fails to establish how this relatively 16 mild evidence undermines the ALJ’s finding. The ALJ’s conclusion that the mild 17 objective evidence did not support Plaintiff’s severe subjective symptom 18 complaints is a rational interpretation of the evidence, so the Court must uphold the 19 ALJ’s finding. Burch, 400 F.3d at 679. 20 21 ORDER - 15 1 The ALJ also found the psychiatric evidence of record did not support a 2 finding of disabling psychiatric impairments. Tr. 36-37. Plaintiff described being 3 limited in his functioning by depression, anxiety, and claustrophobia. Tr. 308, 311, 4 313. However, the ALJ observed that the two consultative psychological 5 examiners observed mild findings. Tr. 36-37; see Tr. 533-37, 648-53. The ALJ 6 reasonably determined that the medical record did not support Plaintiff’s claim of 7 disabling symptoms. 8 4. Activities of Daily Living 9 Finally, the ALJ concluded Plaintiff’s daily activities were inconsistent with 10 the level of impairment alleged. Tr. 36. A claimant’s reported daily activities can 11 form the basis for an adverse credibility determination if they consist of activities 12 that contradict the claimant’s “other testimony” or if those activities are 13 transferable to a work setting. Orn, 495 F.3d at 639; see also Fair, 885 F.2d at 603 14 (daily activities may be grounds for an adverse credibility finding “if a claimant is 15 able to spend a substantial part of his day engaged in pursuits involving the 16 performance of physical functions that are transferable to a work setting.”). 17 “While a claimant need not vegetate in a dark room in order to be eligible for 18 benefits, the ALJ may discredit a claimant’s testimony when the claimant reports 19 participation in everyday activities indicating capacities that are transferable to a 20 work setting” or when activities “contradict claims of a totally debilitating 21 ORDER - 16 1 impairment.” Molina, 674 F.3d at 1112-13 (internal quotation marks and citations 2 omitted). 3 Here, the ALJ identified several of Plaintiff’s daily activities that were 4 inconsistent with his alleged impairments. Tr. 33, 36. Plaintiff reported being able 5 to prepare his own meals and do light housework, including laundry, cleaning 6 dishes, and cleaning his bedroom and bathroom. Tr. 36 (citing Tr. 135, 309, 651). 7 Plaintiff reported walking to the store, Tr. 36 (citing Tr. 130). He reported being 8 fully independent in self-care activities and described doing them daily. Tr. 36 9 (citing Tr. 534, 650-51). Plaintiff testified that he takes daily walks with his dog, 10 stops to visit his sister and three different neighbors on his daily walks, and would 11 spend six to eight hours per month fishing with his father-in-law. Tr. 33, 36 (citing 12 Tr. 135-37, Tr. 311). Plaintiff also reported sitting and watching television for ten 13 hours per day. Tr. 33 (citing Tr. 132, 135). These activities are inconsistent with 14 Plaintiff’s testimony that he was unable to stand or walk for more than fifteen 15 minutes at a time, was unable to sit for more than thirty minutes at a time, and 16 spent only thirteen waking hours a day doing his daily activities. Tr. 129-31. The 17 ALJ reasonably concluded that this testimony was inconsistent with the level of 18 impairment Plaintiff alleged. Tr. 36. This was a clear and convincing reason to 19 discredit Plaintiff’s symptom testimony. The ALJ’s credibility finding is 20 supported by substantial evidence. 21 ORDER - 17 1 2 B. Medical Opinion Evidence Plaintiff challenges the ALJ’s consideration of the medical opinions of Judy 3 Panek, M.D.; Steven Goodman, M.D.; Kevin Weeks, D.O.; Myrna Palasi, M.D.; 4 Minh Vu, M.D.; and Jeffrey Wills, P.T. 5 There are three types of physicians: “(1) those who treat the claimant 6 (treating physicians); (2) those who examine but do not treat the claimant 7 (examining physicians); and (3) those who neither examine nor treat the claimant 8 [but who review the claimant’s file] (nonexamining [or reviewing] physicians).” 9 Holohan v. Massanari, 246 F.3d 1195, 1201-02 (9th Cir. 2001) (citations omitted). 10 Generally, a treating physician’s opinion carries more weight than an examining 11 physician’s, and an examining physician’s opinion carries more weight than a 12 reviewing physician’s. Id. at 1202. “In addition, the regulations give more weight 13 to opinions that are explained than to those that are not, and to the opinions of 14 specialists concerning matters relating to their specialty over that of 15 nonspecialists.” Id. (citations omitted). 16 If a treating or examining physician’s opinion is uncontradicted, the ALJ 17 may reject it only by offering “clear and convincing reasons that are supported by 18 substantial evidence.” Bayliss v. Barnhart, 427 F.3d 1211, 1216 (9th Cir. 2005). 19 “However, the ALJ need not accept the opinion of any physician, including a 20 treating physician, if that opinion is brief, conclusory and inadequately supported 21 ORDER - 18 1 by clinical findings.” Bray v. Comm’r of Soc. Sec. Admin., 554 F.3d 1219, 1228 2 (9th Cir. 2009) (internal quotation marks and brackets omitted). “If a treating or 3 examining doctor’s opinion is contradicted by another doctor’s opinion, an ALJ 4 may only reject it by providing specific and legitimate reasons that are supported 5 by substantial evidence.” Bayliss, 427 F.3d at 1216 (citing Lester, 81 F.3d at 8306 831). 7 1. Dr. Panek 8 Dr. Panek examined the record and testified at the first and second 9 administrative hearings. Tr. 54-61, 69-88. Dr. Panek opined Plaintiff was limited 10 to lifting and carrying twenty pounds occasionally and ten pounds frequently; 11 could stand or walk for a total of up to six hours; could sit for up to six hours per 12 day, could occasionally use arm and leg controls; could occasionally climb ladders, 13 ramps, and stairs; could not climb ladders, ropes, or scaffolds; could occasionally 14 stoop, crouch, kneel, crawl, and balance; could occasionally reach bilaterally; and 15 needed to avoid concentrated exposure to extreme cold, extreme heat, hazardous 16 machinery, unprotected heights, and heavy industrial vibration. The ALJ gave this 17 opinion great weight. Tr. 38. 18 Plaintiff contends the ALJ erred by giving significant weight to Dr. Panek, a 19 non-examining physician, and partial or little weight to all other medical sources 20 who gave opinions as to Plaintiff’s physical limitations. ECF No. 18 at 15. An 21 ORDER - 19 1 ALJ may credit the opinion of nonexamining expert who testifies at hearing and is 2 subject to cross-examination. See Andrews v. Shalala, 53 F.3d 1035, 1042 (9th 3 Cir. 1995) (citing Torres v. Sec’y of H.H.S., 870 F.2d 742, 744 (1st Cir. 1989)). 4 The opinion of a nonexamining physician may serve as substantial evidence if it is 5 supported by other evidence in the record and are consistent with it. Andrews, 53 6 F.3d at 1041. Other cases have upheld the rejection of an examining or treating 7 physician based in part on the testimony of a non-examining medical advisor when 8 other reasons to reject the opinions of examining and treating physicians exist 9 independent of the non-examining doctor’s opinion. Lester, 81 F.3d at 831 (citing 10 Magallanes v. Bowen, 881 F.2d 747, 751-55 (9th Cir. 1989) (reliance on laboratory 11 test results, contrary reports from examining physicians and testimony from 12 claimant that conflicted with treating physician’s opinion); Roberts v. Shalala, 66 13 F.3d 179, 184 (9th Cir. 1995) (rejection of examining psychologist’s functional 14 assessment which conflicted with his own written report and test results). Thus, 15 case law requires not only an opinion from the consulting physician but also 16 substantial evidence (more than a mere scintilla but less than a preponderance), 17 independent of that opinion which supports the rejection of contrary conclusions 18 by examining or treating physicians. Andrews, 53 F.3d at 1039. 19 The ALJ found Dr. Panek had reviewed the longitudinal record, which was 20 not available to other sources in the record. Tr. 38. Additionally, the ALJ noted 21 ORDER - 20 1 that Dr. Panek was subject to cross-examination, lending more weight to her 2 opinion. Id. Plaintiff contends Dr. Panek did not have the benefit of reviewing the 3 entire record, as the record was supplemented with Dr. Weeks’ examination 4 findings and Plaintiff’s physical therapy notes prior to the third hearing. ECF No. 5 18 at 16; see Tr. 67, 101-02. However, Dr. Weeks reviewed many of the same 6 exhibits Dr. Panek reviewed, and Dr. Weeks also did not review Plaintiff’s 7 physical therapy notes. Tr. 755-57. Dr. Panek also reviewed medical evidence in 8 the record the Dr. Weeks did not review, including Plaintiff’s treatment notes from 9 Spokane Cardiology, Tr. 673-99, and Plaintiff’s treatment notes from Community 10 Health Association of Spokane between 2012 and 2014, Tr. 558-635. See Tr. 70, 11 755-57. The ALJ reasonably concluded Dr. Panek’s review of the record was 12 more comprehensive than other providers. 13 Furthermore, the ALJ found Dr. Panek’s opinions were supported by 14 evidence in the record. Tr. 38; see, e.g., Tr. 504 (acute cardiac problems resolved), 15 667-68 (negative and mild objective imaging results), 758-61 (mild physical 16 examination findings). Plaintiff argues the ALJ’s conclusion was not supported 17 because Dr. Panek’s opinion was “incomplete,” as a subsequent consultative 18 examination was ordered. ECF No. 18 at 16. Plaintiff’s argument 19 mischaracterizes Dr. Panek’s testimony about the need for a consultative 20 examination. At the second administrative hearing, Dr. Panek testified to an RFC 21 ORDER - 21 1 she formulated based on her own review of the record. When asked by Plaintiff’s 2 counsel whether Dr. Panek thought Mr. Wills’ opined limitation to sedentary work 3 was a “reasonable” opinion, Dr. Panek replied that she would need to see an 4 internist consultative examination before she could give an opinion as to Mr. 5 Wills’ opinion. Tr. 84-88. Dr. Panek’s testimony about Plaintiff’s limitations was 6 not “incomplete,” as Plaintiff claims. The ALJ reasonably concluded that Dr. 7 Panek’s opinions were supported by evidence in the record. 8 Plaintiff suggests the ALJ should have credited the opinions of other medical 9 sources over Dr. Panek’s opinions. ECF No. 18 at 15-16. However, as discussed 10 supra and infra, the ALJ provided legally sufficient reasons for giving less weight 11 to the other medical source opinions and for giving more weight to Dr. Panek’s 12 opinions. 13 2. Dr. Goodman 14 Dr. Goodman examined Plaintiff on May 13, 2014, and opined Plaintiff 15 showed no evidence of a cervical radiculopathy and that it was likely Plaintiff’s 16 dynamic positional hand paresthesias was secondary to his postural deviation and 17 associated scalene myofascial findings. Tr. 613-15. The ALJ assigned great 18 weight to Dr. Goodman’s objective examination findings, but less weight to Dr. 19 Goodman’s subjective observations. Tr. 39. The ALJ found Dr. Goodman’s 20 subjective findings were entitled to less weight because they were based on a one21 ORDER - 22 1 time examination and were inconsistent with the medical evidence as a whole. Tr. 2 39. An ALJ may not discredit a medical opinion solely because the provider 3 examined the claimant only once. See 20 C.F.R. § 416.927(c). However, where a 4 physician’s report does not assign any specific limitations or opinions in relation to 5 an ability to work, the ALJ need not provide reasons for rejecting the opinion 6 because “the ALJ did not reject any of [the report’s] conclusions.” Turner v. 7 Comm’r of Soc. Sec., 613 F.3d 1217, 1223 (9th Cir. 2010); see also Key, 754 F.2d 8 at 1549 (the “mere diagnosis of an impairment ... is not sufficient to sustain a 9 finding of disability.”). Here, Dr. Goodman’s subjective findings concern only 10 medical diagnoses and do not address any functional limitations or opinions 11 regarding Plaintiff’s ability to work. Tr. 615. Therefore, the ALJ did not need to 12 provide reasons to reject Dr. Goodman’s subjective findings. Turner, 613 F.3d at 13 1223. 14 3. Dr. Weeks 15 Dr. Weeks examined Plaintiff on July 25, 2015, and opined Plaintiff is 16 limited to six hours of standing or walking in an eight-hour workday; six hours of 17 sitting in an eight-hour workday; could frequently climb steps and stairs; could 18 occasionally climb ladders, scaffolds, and ropes; could occasionally stoop, crouch, 19 kneel, and crawl; and could occasionally reach overhead or forward. Tr. 755-62. 20 The ALJ gave this opinion partial weight. Tr. 38. Because Dr. Weeks’ opinion 21 ORDER - 23 1 was contradicted by Dr. Panek, Tr. 54-61, 69-88, the ALJ was required to provide 2 specific and legitimate reasons for rejecting the opinion. Bayliss, 427 F.3d at 1216. 3 First, the ALJ discredited Dr. Weeks’ opinions on the ground that Dr. Weeks 4 did not have a treatment relationship with Plaintiff and only examined Plaintiff 5 once. Tr. 38. An ALJ may consider the length and nature of a treatment 6 relationship in evaluating a medical opinion, but the ALJ may not discredit a 7 medical opinion solely because the provider examined the claimant only once. See 8 20 C.F.R. § 416.927(c). The Court notes the ALJ’s rationale is inconsistent with 9 the ALJ giving great weight to Dr. Panek, who had no treatment relationship with 10 Plaintiff. This was not a specific and legitimate reason to discount the opinion. 11 Second, the ALJ discredited Dr. Weeks’ opinions as being inconsistent with 12 the longitudinal medical evidence. Tr. 38. Relevant factors to evaluating any 13 medical opinion include the amount of relevant evidence that supports the opinion, 14 the quality of the explanation provided in the opinion, and the consistency of the 15 medical opinion with the record as a whole. Lingenfelter, 504 F.3d at 1042; Orn, 16 495 F.3d at 631. The ALJ identified substantial evidence in the record that 17 supports the ALJ’s conclusion that Dr. Weeks’ opined limitations were more 18 restrictive than what was supported in the record. Tr. 34-36; see, e.g., Tr. 612 19 (negative shoulder imaging), Tr. 760 (swollen shoulder shows no signs of atrophy 20 or carpal tunnel syndrome). Plaintiff fails to identify any evidence in the record 21 ORDER - 24 1 that undermines the ALJ’s conclusion. ECF No. 18 at 16; see Shinseki, 556 U.S. at 2 409-10 (the party challenging the ALJ’s decision bears the burden of showing 3 harm). 4 Additionally, as discussed supra, the ALJ noted Dr. Weeks reviewed less of 5 the record than Dr. Panek, and Dr. Weeks was not subject to cross-examination. 6 Tr. 38. 7 Even if the ALJ did err in evaluating Dr. Weeks’ opinions, the ALJ’s error is 8 harmless. A district court “may not reverse an ALJ’s decision on account of an 9 error that is harmless.” Molina, 674 F.3d at 1111. An error is harmless “where it 10 is inconsequential to the [ALJ’s] ultimate nondisability determination.” Id. at 1115 11 (quotation and citation omitted). Here, although the ALJ erred in rejecting Dr. 12 Weeks’ opinions on the grounds of his lack of a treating relationship with Plaintiff, 13 the ALJ identified other specific and legitimate reasons to discredit Dr. Weeks’ 14 opinions. Consequently, the ALJ’s error is harmless and not grounds for reversal. 15 Id. at 1111. 16 4. Dr. Palasi 17 Dr. Palasi reviewed the record on August 12, 2012, and opined Plaintiff was 18 limited to sedentary work. Tr. 522. The ALJ gave this opinion little weight. Tr. 19 39. Because Dr. Palasi’s opinion was contradicted by Dr. Panek, Tr. 54-61, 69-88, 20 21 ORDER - 25 1 the ALJ was required to provide specific and legitimate reasons for rejecting the 2 opinion. Bayliss, 427 F.3d at 1216. 3 The ALJ found Dr. Palasi’s opinion was inconsistent with the medical 4 evidence, both at the time Dr. Palasi rendered the opinion and with Plaintiff’s 5 record of subsequent medical treatment. Tr. 39. The consistency of a medical 6 opinion with the record as a whole is a relevant factor in evaluating a medical 7 opinion. Lingenfelter, 504 F.3d at 1042; Orn, 495 F.3d at 631. Dr. Palasi opined 8 in August 2011 that Plaintiff was limited to sedentary work, based on Plaintiff’s 9 history of diverticulitis and heart attack. Tr. 52. However, the ALJ found these 10 impairments did not meet the twelve-month durational requirement for Social 11 Security claims. Tr. 56. Indeed, the ALJ noted the medical evidence showed that 12 these impairments had resolved by September 2012, after Plaintiff’s urgent care 13 treatment. See Tr. 55, 450, 504. 14 Furthermore, unlike Dr. Panek’s review, Dr. Palasi’s review of the record 15 was limited to treatment notes through August 2012, and Dr. Palasi was not subject 16 to cross-examination. Tr. 522. The Court also notes Dr. Palasi’s opinion was 17 rendered prior to the alleged onset date, and is thus of limited relevance to the 18 ALJ’s disability determination. Carmickle v. Comm’r, Soc. Sec. Admin., 533 F.3d 19 1155, 1165 (9th Cir. 2008). Plaintiff fails to identify any medical evidence in the 20 record that undermines the ALJ’s conclusion. ECF No. 18 at 17-18. See Shinseki, 21 ORDER - 26 1 556 U.S. at 409-10 (the party challenging the ALJ’s decision bears the burden of 2 showing harm). Upon reviewing the evidence as a whole, the Court finds 3 substantial evidence supports the ALJ’s finding. 4 The ALJ rejected Dr. Palasi’s opinion for not being adequately supported. 5 Tr. 39. A medical opinion may be rejected by the ALJ if it is conclusory or 6 inadequately supported. Bray, 554 F.3d at 1228; Thomas, 278 F.3d at 957. 7 Individual medical opinions are preferred over check-box reports. See Crane v. 8 Shalala, 76 F.3d 251, 253 (9th Cir. 1996); Murray v. Heckler, 722 F.2d 499, 501 9 (9th Cir. 1983). An ALJ may permissibly reject check-box reports that do not 10 contain any explanation of the bases for their conclusions. Crane, 76 F.3d at 253. 11 However, if treatment notes are consistent with the opinion, a check-box form may 12 not automatically be rejected. See Garrison, 759 F.3d at 1014 n.17. Here, the ALJ 13 noted Dr. Palasi’s opinion consisted of a one-page checkbox form. Tr. 39. There 14 are no treatment notes to support Dr. Palasi’s opinion. Furthermore, there is no 15 narrative explanation for the limitations assessed, nor did Dr. Palasi perform any 16 kind of physical examination of Plaintiff to support her opinions. Tr. 522. This 17 was a specific and legitimate reason to discredit Dr. Palasi’s opinions. 18 5. Dr. Vu 19 Dr. Vu reviewed the record and opined on September 11, 2015, that Plaintiff 20 could lift twenty pounds occasionally and ten pounds frequently; could stand and 21 ORDER - 27 1 walk for six hours in an eight-hour workday; could sit for six hours in an eight2 hour workday; could push and pull within the lifting weight limits; could not climb 3 ladders, ropes, or scaffolds; could frequently stoop, crouch, kneel, crawl, and 4 balance; should not be exposed to unprotected heights and hazardous equipment; 5 and could frequently reach bilaterally. Tr. 113-18. The ALJ gave this opinion 6 partial weight, rejecting in particular Dr. Vu’s opinion that Plaintiff was not limited 7 in reaching. Tr. 38. Here, Plaintiff contends the ALJ assigned too much weight to Dr. Vu’s 8 9 opinion. An ALJ need not provide reasons for crediting a medical opinion. See 10 Turner, 613 F.3d at 1223. Plaintiff argues Dr. Vu’s opinion should have been 11 rejected because Dr. Vu did not examine Plaintiff. ECF No. 18 at 17. However, 12 this argument is inconsistent with the Social Security regulations, which consider 13 the opinions of non-examining physicians. Holohan, 246 F.3d at 1201-02; see also 14 20 C.F.R. §416.927(c).2 Plaintiff also argues Dr. Vu’s opinion is inconsistent with 15 the medical evidence, but offers no supporting evidence. Plaintiff fails to show 16 17 2 The Court also notes the inconsistency in Plaintiff’s argument that Dr. Vu’s 18 opinion should be rejected because Dr. Vu did not examine Plaintiff, while arguing 19 that the opinion of Dr. Palasi, a non-examining physician, should have been given 20 more weight. ECF No. 18 at 17. 21 ORDER - 28 1 error in the ALJ’s evaluation of Dr. Vu’s opinion. See Shinseki, 556 U.S. at 4092 10. 3 6. Mr. Wills 4 Mr. Wills treated Plaintiff on March 12, 2014, and from May 26, 2015 5 through August 12, 2015. Tr. 610-11, 765-86. On May 26, 2015, Mr. Wills 6 opined Plaintiff was unable to bend forward, rotate sitting, rotate standing, stoop, 7 kneel, crouch, balance, or climb a step ladder; could tolerate only five percent of a 8 workday crawling, squatting, walking, climbing stairs, or balancing; could sit or 9 stand for up to one-third of a workday; could lift or carry up to ten pounds 10 occasionally; could occasionally reach overhead or push/pull with his hands; could 11 occasionally operate foot controls; and could have no exposure to occupational 12 hazards. Tr. 703-08, 766. The ALJ gave this opinion little weight. Tr. 39. 13 Mr. Wills does not qualify as an acceptable medical source. 20 C.F.R. § 14 416.9023 (Acceptable medical sources are licensed physicians, licensed or certified 15 psychologists, licensed optometrists, licensed podiatrists, qualified speech16 language pathologists, licensed audiologists, licensed advanced practice registered 17 nurses, and licensed physician assistants). An ALJ is required to consider evidence 18 19 3 Prior to March 27, 2017, the definition of an acceptable medical source was 20 located at 20 C.F.R. § 416.913. 21 ORDER - 29 1 from non-acceptable medical sources. 20 C.F.R. § 416.927(f).4 An ALJ must give 2 reasons “germane” to each source in order to discount evidence from non3 acceptable medical sources. Ghanim, 763 F.3d at 1161. Here, the ALJ found Mr. Wills’ opinions were inconsistent with the medical 4 5 evidence. Tr. 39. Inconsistency with the medical evidence is a germane reason for 6 rejecting lay witness testimony. See Bayliss, 427 F.3d at 1218; Lewis v. Apfel, 236 7 F.3d 503, 511 (9th Cir. 2001). The ALJ identified substantial medical evidence in 8 the record that supports a less restrictive finding than Mr. Wills opined. Tr. 34-36; 9 see, e.g., Tr. 612 (negative shoulder imaging), Tr. 668 (imaging shows only mild 10 disc degeneration), Tr. 760 (swollen shoulder shows no signs of atrophy or carpal 11 tunnel syndrome). Furthermore, Plaintiff fails to identify evidence in the record, 12 other than properly-discredited medical opinion evidence, that undermines the 13 ALJ’s conclusion. ECF No. 18 at 17. This was a germane reason to discredit Mr. 14 Wills’ opinions. 15 7. Other Assignments of Error 16 Finally, Plaintiff challenges the ALJ’s consideration of state agency 17 consultants Thomas Clifford, Ph.D., Tr. 158-59; Dan Donahue, Ph.D., Tr. 167-68; 18 19 4 Prior to March 27, 2017, the requirement that an ALJ consider evidence from 20 non-acceptable medical sources was located at 20 C.F.R. § 416.913(d). 21 ORDER - 30 1 Dennis Koukol, M.D., Tr. 169-70. ECF No. 18 at 17-18. Plaintiff argues these 2 providers’ opinions were entitled to no weight, claiming vaguely that these 3 opinions are “outdated.” Id. at 17. Plaintiff fails to develop this argument with 4 more specificity. See Carmickle, 533 F.3d at 1161 n.2 (the Court may decline to 5 address on the merits issues not argued with specificity). As discussed supra, an 6 ALJ need not provide reasons for crediting a medical opinion. See Turner, 613 7 F.3d at 1223.5 Plaintiff fails to establish error. 8 C. RFC Formulation and Step Five Plaintiff contends the ALJ’s step four and step five findings were based on 9 10 an improper RFC formulation and that Plaintiff should have been limited to 11 sedentary work at most. ECF No. 18 at 18-20. Based on this premise, Plaintiff 12 also argues the ALJ should have found Plaintiff disabled under the Medical13 Vocational Guidelines at step five of the sequential evaluation. Id. at 20. 14 However, Plaintiff’s argument is based entirely on the assumption that the ALJ 15 erred in considering the medical opinion evidence and Plaintiff’s symptom claims. 16 17 5 Additionally, the Court notes the inconsistency in Plaintiff’s argument that the 18 agency reviewers’ opinions, which were rendered after the alleged onset date, are 19 “outdated,” while arguing Dr. Palasi’s opinion, which was rendered before the 20 alleged onset date, should have been given more weight. 21 ORDER - 31 1 Id. For reasons discussed throughout this decision, the ALJ’s adverse credibility 2 finding and consideration of the medical opinion evidence are legally sufficient 3 and supported by substantial evidence. Thus, the ALJ did not err in assessing the 4 RFC or finding Plaintiff capable of performing past relevant work at step four. 5 Because the ALJ properly found Plaintiff was capable of light work with additional 6 functional limitations, the ALJ also did not err in failing to find Plaintiff disabled 7 under the Medical-Vocational Guidelines at step five. 8 9 CONCLUSION After review, the Court finds that the ALJ’s decision is supported by 10 substantial evidence and free of harmful legal error. 11 IT IS ORDERED: 12 1. Plaintiff’s motion for summary judgment (ECF No. 18) is DENIED. 13 2. Defendant’s motion for summary judgment (ECF No. 25) is GRANTED. 14 The District Court Executive is directed to file this Order, enter JUDGMENT 15 FOR THE DEFENDANT, provide copies to counsel, and CLOSE THE FILE. 16 DATED March 28, 2018. 17 s/Mary K. Dimke MARY K. DIMKE UNITED STATES MAGISTRATE JUDGE 18 19 20 21 ORDER - 32
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