Hockman v. Commissioner of Social Security, No. 2:2017cv00158 - Document 21 (E.D. Wash. 2018)

Court Description: ORDER GRANTING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT 19 denying 18 Motion for Summary Judgment. Case Closed. Signed by Senior Judge Robert H. Whaley. (VR, Courtroom Deputy)

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Hockman v. Commissioner of Social Security 1 Doc. 21 FI LED I N THE U.S. DI STRI CT COURT EASTERN DI STRI CT OF WASHI NGTON 2 Jun 29, 2018 3 SEAN F. MCAVOY, CLERK 4 5 6 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF WASHINGTON 7 DAWN H., 8 Plaintiff, No. 2:17-CV-00158-RHW v. ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT 9 10 11 12 13 COMMISSIONER OF SOCIAL SECURITY, Defendant. Before the Court are the parties’ cross-motions for summary judgment, ECF 14 Nos. 18 & 19. Plaintiff brings this action seeking judicial review, pursuant to 42 15 U.S.C. § 405(g), of the Commissioner’s final decision, which denied her 16 application for Disability Insurance Benefits under Title II and her application for 17 Supplemental Security Income under Title XVI of the Social Security Act, 42 18 U.S.C §§ 401-434, 1381-1383F. After reviewing the administrative record and 19 briefs filed by the parties, the Court is now fully informed. For the reasons set forth 20 ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 1 Dockets.Justia.com 1 below, the Court GRANTS Defendant’s Motion for Summary Judgment and 2 DENIES Plaintiff’s Motion for Summary Judgment. 3 I. Jurisdiction 4 Plaintiff filed her application for Disability Insurance Benefits and her 5 application for Supplemental Security Income on September 15, 2011. AR 325-36. 6 Her alleged onset date of disability is June 24, 2010. AR 182, 325, 332. Plaintiff’s 7 applications were initially denied on March 5, 2012, AR 213-19, and on 8 reconsideration on August 14, 2012, AR 224-31. 9 A hearing with Administrative Law Judge (“ALJ”) Marie Palachuk occurred 10 on September 10, 2013. AR 61-93. On September 20, 2013, the ALJ issued a 11 decision finding Plaintiff ineligible for disability benefits. AR 182-94. Plaintiff 12 appealed the decision and submitted new information to the Appeals Council, 13 which remanded the case for further proceedings. AR 201-04. 14 A subsequent hearing with the ALJ occurred on July 9, 2015. AR 94-114. 15 On August 7, 2015, the ALJ issued a decision finding Plaintiff ineligible for 16 disability benefits. AR 22-40. Plaintiff appealed the decision and again submitted 17 1161 pages of new information to the Appeals Council, which determined 410 18 pages did not pertain to the time period and 751 pages did pertain to the time 19 period but do not provide a basis for changing the ALJ’s decision. AR 2. The 20 ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 2 1 Appeals Council denied Plaintiff’s request for review on March 16, 2017, AR 1-7, 2 making the ALJ’s ruling the “final decision” of the Commissioner. 3 Plaintiff timely filed the present action challenging the denial of benefits, on 4 May 15, 2017. ECF No. 5. Accordingly, Plaintiff’s claims are properly before this 5 Court pursuant to 42 U.S.C. § 405(g). 6 7 II. Sequential Evaluation Process The Social Security Act defines disability as the “inability to engage in any 8 substantial gainful activity by reason of any medically determinable physical or 9 mental impairment which can be expected to result in death or which has lasted or 10 can be expected to last for a continuous period of not less than twelve months.” 42 11 U.S.C. §§ 423(d)(1)(A), 1382c(a)(3)(A). A claimant shall be determined to be 12 under a disability only if the claimant’s impairments are of such severity that the 13 claimant is not only unable to do his previous work, but cannot, considering 14 claimant's age, education, and work experience, engage in any other substantial 15 gainful work that exists in the national economy. 42 U.S.C. § 1382c(a)(3)(B). 16 The Commissioner has established a five-step sequential evaluation process 17 for determining whether a claimant is disabled within the meaning of the Social 18 Security Act. 20 C.F.R. §§ 404.1520(a)(4) & 416.920(a)(4); Lounsburry v. 19 Barnhart, 468 F.3d 1111, 1114 (9th Cir. 2006). 20 ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 3 1 Step one inquires whether the claimant is presently engaged in “substantial 2 gainful activity.” 20 C.F.R. §§ 404.1520(b) & 416.920(b). Substantial gainful 3 activity is defined as significant physical or mental activities done or usually done 4 for profit. 20 C.F.R. §§ 404.1572 & 416.972. If the claimant is engaged in 5 substantial activity, he or she is not entitled to disability benefits. 20 C.F.R. §§ 6 404.1571 & 416.920(b). If not, the ALJ proceeds to step two. 7 Step two asks whether the claimant has a severe impairment, or combination 8 of impairments, that significantly limits the claimant’s physical or mental ability to 9 do basic work activities. 20 C.F.R. §§ 404.1520(c) & 416.920(c). A severe 10 impairment is one that has lasted or is expected to last for at least twelve months, 11 and must be proven by objective medical evidence. 20 C.F.R. §§ 404.1508-09 & 12 416.908-09. If the claimant does not have a severe impairment, or combination of 13 impairments, the disability claim is denied, and no further evaluative steps are 14 required. Otherwise, the evaluation proceeds to the third step. 15 Step three involves a determination of whether any of the claimant’s severe 16 impairments “meets or equals” one of the listed impairments acknowledged by the 17 Commissioner to be sufficiently severe as to preclude substantial gainful activity. 18 20 C.F.R. §§ 404.1520(d), 404.1525, 404.1526 & 416.920(d), 416.925, 416.926; 19 20 C.F.R. § 404 Subpt. P. App. 1 (“the Listings”). If the impairment meets or 20 equals one of the listed impairments, the claimant is per se disabled and qualifies ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 4 1 for benefits. Id. If the claimant is not per se disabled, the evaluation proceeds to the 2 fourth step. 3 Step four examines whether the claimant’s residual functional capacity 4 enables the claimant to perform past relevant work. 20 C.F.R. §§ 404.1520(e)-(f) & 5 416.920(e)-(f). If the claimant can still perform past relevant work, the claimant is 6 not entitled to disability benefits and the inquiry ends. Id. 7 Step five shifts the burden to the Commissioner to prove that the claimant is 8 able to perform other work in the national economy, taking into account the 9 claimant’s age, education, and work experience. See 20 C.F.R. §§ 404.1512(f), 10 404.1520(g), 404.1560(c) & 416.912(f), 416.920(g), 416.960(c). To meet this 11 burden, the Commissioner must establish that (1) the claimant is capable of 12 performing other work; and (2) such work exists in “significant numbers in the 13 national economy.” 20 C.F.R. §§ 404.1560(c)(2); 416.960(c)(2); Beltran v. Astrue, 14 676 F.3d 1203, 1206 (9th Cir. 2012). 15 16 III. Standard of Review A district court's review of a final decision of the Commissioner is governed 17 by 42 U.S.C. § 405(g). The scope of review under § 405(g) is limited, and the 18 Commissioner's decision will be disturbed “only if it is not supported by 19 substantial evidence or is based on legal error.” Hill v. Astrue, 698 F.3d 1144, 20 1158-59 (9th Cir. 2012) (citing § 405(g)). Substantial evidence means “more than a ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 5 1 mere scintilla but less than a preponderance; it is such relevant evidence as a 2 reasonable mind might accept as adequate to support a conclusion.” Sandgathe v. 3 Chater, 108 F.3d 978, 980 (9th Cir.1997) (quoting Andrews v. Shalala, 53 F.3d 4 1035, 1039 (9th Cir. 1995)) (internal quotation marks omitted). In determining 5 whether the Commissioner’s findings are supported by substantial evidence, “a 6 reviewing court must consider the entire record as a whole and may not affirm 7 simply by isolating a specific quantum of supporting evidence.” Robbins v. Soc. 8 Sec. Admin., 466 F.3d 880, 882 (9th Cir. 2006) (quoting Hammock v. Bowen, 879 9 F.2d 498, 501 (9th Cir. 1989)). 10 In reviewing a denial of benefits, a district court may not substitute its 11 judgment for that of the ALJ. Matney v. Sullivan, 981 F.2d 1016, 1019 (9th Cir. 12 1992). If the evidence in the record “is susceptible to more than one rational 13 interpretation, [the court] must uphold the ALJ's findings if they are supported by 14 inferences reasonably drawn from the record.” Molina v. Astrue, 674 F.3d 1104, 15 1111 (9th Cir. 2012); see also Thomas v. Barnhart, 278 F.3d 947, 954 (9th Cir. 16 2002) (if the “evidence is susceptible to more than one rational interpretation, one 17 of which supports the ALJ’s decision, the conclusion must be upheld”). Moreover, 18 a district court “may not reverse an ALJ's decision on account of an error that is 19 harmless.” Molina, 674 F.3d at 1111. An error is harmless “where it is 20 inconsequential to the [ALJ's] ultimate nondisability determination.” Id. at 1115. ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 6 1 The burden of showing that an error is harmful generally falls upon the party 2 appealing the ALJ's decision. Shinseki v. Sanders, 556 U.S. 396, 409–10 (2009). 3 4 IV. Statement of Facts The facts of the case are set forth in detail in the transcript of proceedings 5 and only briefly summarized here. Plaintiff was 43 years old at the alleged date of 6 onset. AR 34, 38, 325, 332. She has a high school education and some college. AR 7 34, 38, 1534. Plaintiff is able to communicate in English. AR 34, 38. Plaintiff has 8 past work as a hairstylist, barber, and cosmetologist. AR 34, 38, 340-42, 373. 9 10 V. The ALJ’s Findings The ALJ determined that Plaintiff was not under a disability within the 11 meaning of the Act from June 24, 2010, through the date of the ALJ’s decision. 12 AR 23, 40. 13 At step one, the ALJ found that Plaintiff had not engaged in substantial 14 gainful activity since June 24, 2010 (citing 20 C.F.R. §§ 404.1571 et seq., and 15 416.971 et seq.). AR 25. 16 At step two, the ALJ found Plaintiff had the following severe impairments: 17 atypical chest pain, obesity, recurrent Bells’ Palsy, fibromyalgia, mild degenerative 18 disc disease of the lumbar spine, pseudotumor cerebri, status post bask surgery 19 November 2013, and carpal tunnel syndrome diagnoses in 2013 (citing 20 C.F.R. 20 §§ 404.1520(c) and 416.920(c)). AR 25. ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 7 1 At step three, the ALJ found that Plaintiff did not have an impairment or 2 combination of impairments that meets or medically equals the severity of one of 3 the listed impairments in 20 C.F.R. § 404, Subpt. P, App. 1. AR 26. 4 At step four, the ALJ found, from the alleged onset date though September 5 2013, Plaintiff had the residual functional capacity to perform light work, except: 6 she could perform all postural activities on an occasional basis except never 7 climbing ladders, ropes, or scaffolds; frequently reach/handle/finger bilaterally; 8 and she needed to avoid even moderate exposure to hazards such as machinery and 9 heights. AR 27. 10 The ALJ found that after September 2013, Plaintiff had the residual 11 functional capacity to perform sedentary work, except: she could perform all 12 postural activities on an occasional basis except never climbing ladders, ropes, or 13 scaffolds; frequently reach/handle/finger bilaterally; and she needed to avoid even 14 moderate exposure to hazards such as machinery and heights. AR 36. 15 16 17 The ALJ found that Plaintiff is unable to perform her past relevant work. AR 34, 38. At step five, the ALJ found, in light of her age, education, work experience, 18 and residual functional capacity, there are jobs that exist in significant numbers in 19 the national economy that Plaintiff can perform. AR 35, 38. These include 20 ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 8 1 graders/sorters such as mail sorter and products inspector/checker such as a 2 warehouse checker. Id. 3 4 VI. Issues for Review Plaintiff argues that the Commissioner’s decision is not free of legal error 5 and not supported by substantial evidence. Specifically, she argues the ALJ erred 6 because: (1) new evidence submitted for the first time on appeal undermines the 7 ALJ’s decision; (2) the ALJ improperly discredited Plaintiff’s subjective complaint 8 testimony; (3) the ALJ improperly evaluated the medical opinion evidence; and (4) 9 the ALJ improperly evaluated the lay witness evidence. 10 11 12 VII. Discussion A. The New Evidence Does Not Undermine the ALJ’s Decision. Following the ALJ’s second determination finding Plaintiff ineligible for 13 disability benefits, Plaintiff filed a request for review and submitted 1161 pages of 14 new evidence to the Appeals Council in conjunction with her request for review of 15 the ALJ’s decision. AR 1-7. The Appeals Council rejected 410 pages of the new 16 evidence because it did not pertain to the applicable time period. AR 2. The 17 Appeals Council “considered” 751 pages of new evidence, entered the new 18 evidence into the record as Exhibits 30F-34F (AR 1523-2280), and determined that 19 this new evidence did not provide a basis for changing the ALJ’s decision. Id. 20 ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 9 1 Plaintiff does not contend that the Appeals Council or the Commissioner 2 improperly rejected new evidence, rather she asserts that the Appeals Council 3 undermined the evidentiary basis for the ALJ’s decision by admitting the new 4 evidence into the record without more discussion than that which the Appeals 5 Council provided. ECF No. 18 at 3-6. 6 While the Court may review the final decisions of the Commissioner of 7 Social Security, 42 U.S.C. § 405(g), the Court does “not have jurisdiction to 8 review a decision of the Appeals Council denying a request for review of an ALJ’s 9 decision, because the Appeals Council decision is a non-final agency action.” 10 Brewes v. Comm’r of Soc. Sec. Admin, 682 F.3d 1157, 1161 (9th Cir. 2012). 11 However, the Court reviews the administrative record, which “includes evidence 12 submitted to and considered by the Appeals Council.” Id. at 1162. “If new and 13 material evidence is submitted, the Appeals Council shall consider the additional 14 evidence only where it relates to the period on or before the date of the 15 administrative law judge hearing decision.” 20 C.F.R. § 404.970(b). Such 16 evidence, when considered by the Appeals Council, “becomes part of the 17 administrative record.” Brewes, 682 F.3d at 1163. New evidence considered by the 18 Appeals Council can negatively impact the ALJ’s decision if, taking the new 19 evidence into account, the ALJ’s decision denying disability benefits is no longer 20 supported by substantial evidence in the record. See id. at 1164. ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 10 1 As recognized by the Plaintiff, in the case at hand the new evidence only 2 potentially effects the ALJ’s decisions regarding Plaintiff’s credibility after 3 September 2013 and Dr. Atfeh’s April 2015 medical opinion because the new 4 evidence spans the gap between the September 2013 hearing and the August 2015 5 hearing and does not pertain to the period prior to September 2013. See AR 1523, 6 2164; ECF No. 18 at 4. 7 Of the 751 pages of new evidence, Plaintiff points to ten pages addressing 8 her limitations she contends supports her argument that the ALJ’s decision is not 9 supported by substantial evidence in the record. ECF No. 18 at 14-15. Specifically, 10 Plaintiff cites to examinations in January 2014 (AR 1614-15), February 2014 (AR 11 1666), and April 2014 (AR 1707-08), arguing that this evidence regarding her 12 lower extremity strength undermines the ALJ’s decision. However, apart from the 13 February 2014 exam and Plaintiff’s noted lack of effort, these records show that 14 Plaintiff’s lower extremity strength has improved since her surgery. Compare AR 15 1419 with AR 1405, 1614-15, 1707-08. Her latest exam in April 2014 documents 16 much improved lower extremity strength. AR 1707-08. The ALJ specifically noted 17 that Plaintiff was independent in her activities of daily living before the surgery 18 when her lower extremity strength was less than after the surgery. AR 37. 19 Additionally, the ALJ considered all of the Plaintiff’s symptoms in assigning her a 20 residual functional capacity of sedentary work with a sit/stand option. AR 36, 39. ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 11 1 Plaintiff also cites to records demonstrating some evidence of severe right side 2 carpal tunnel syndrome and mild to moderate left side carpal tunnel syndrome in 3 October 2014, and her decision to not have surgery for her carpal tunnel April 4 2015. AR 1770-72, 1954. However, the ALJ accounted for Plaintiff’s symptoms in 5 assigning a residual functional capacity of sedentary work with further limitations 6 on reaching, handling, and fingering. AR 36. The ALJ’s determination that the 7 record lacks objective evidence to support the degree of limitation asserted by the 8 Plaintiff is also supported by Plaintiff’s testimony that she only wears her carpal 9 tunnel brace at night and is likely not going to have carpal tunnel release, her 10 decision to not have surgery to alleviate the symptoms, new evidence that she was 11 able to pull weeds and pot plants, and her neurological examinations were normal, 12 including normal sensation, reflexes, coordination, muscle strength, and tone. AR 13 38, 1996, 2014, 2025, 2045. 14 Additionally, the new evidence submitted by the Plaintiff further supports 15 the ALJ’s decision. The new evidence is replete with objective tests and 16 observations of normal exams, full range of motion in all joints, no apparent 17 distress, intact foot strength, normal gait, and improved lower extremity strength. 18 See AR 1527, 1530, 1537, 1541, 1552, 1752, 1793, 1813, 1875, 2188, 2217. The 19 new evidence also includes statements by the Plaintiff that she is doing well and 20 able to move around more after surgery, her pain is well controlled most of the ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 12 1 time with medication, and in 2015 she denied loss of strength. AR 1606, 1628, 2 1776, 1938, 1986. 3 The Court finds that Plaintiff’s argument, that the Appeals Council did not 4 take appropriate action on the new evidence and thereby undermined the 5 evidentiary basis for the ALJ’s findings, fails. The Appeals Council admitted the 6 new evidence into the record and specifically found that it does not provide a basis 7 for changing the ALJ’s decision. AR 2. The new evidence submitted by the 8 Plaintiff provides additional support for the ALJ’s decision and does not 9 undermine it. 10 B. The ALJ Properly Discounted Plaintiff’s Credibility. 11 An ALJ engages in a two-step analysis to determine whether a claimant’s 12 testimony regarding subjective symptoms is credible. Tommasetti v. Astrue, 533 13 F.3d 1035, 1039 (9th Cir. 2008). First, the claimant must produce objective 14 medical evidence of an underlying impairment or impairments that could 15 reasonably be expected to produce some degree of the symptoms alleged. Id. 16 Second, if the claimant meets this threshold, and there is no affirmative evidence 17 suggesting malingering, “the ALJ can reject the claimant’s testimony about the 18 severity of [her] symptoms only by offering specific, clear, and convincing reasons 19 for doing so.” Id. 20 ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 13 1 In weighing a claimant's credibility, the ALJ may consider many factors, 2 including, “(1) ordinary techniques of credibility evaluation, such as the claimant's 3 reputation for lying, prior inconsistent statements concerning the symptoms, and 4 other testimony by the claimant that appears less than candid; (2) unexplained or 5 inadequately explained failure to seek treatment or to follow a prescribed course of 6 treatment; and (3) the claimant's daily activities.” Smolen, 80 F.3d at 1284. When 7 evidence reasonably supports either confirming or reversing the ALJ's decision, the 8 Court may not substitute its judgment for that of the ALJ. Tackett v. Apfel, 180 9 F.3d 1094, 1098 (9th Cir.1999). Here, the ALJ found that the medically 10 determinable impairments could reasonably be expected to produce the symptoms 11 Plaintiff alleges; however, the ALJ determined that Plaintiff’s statements of 12 intensity, persistence, and limiting effects of the symptoms were not entirely 13 credible. AR 30, 37. The ALJ provided multiple clear and convincing reasons for 14 discrediting Plaintiff’s subjective complaint testimony. AR 28-31, 36-37. 15 The ALJ found that Plaintiff’s allegations of disabling limitations are belied 16 by her daily activities. AR 30-31, 37. These include her ability to raise two 17 children, get the children to school, help with the children’s homework, care for 18 two dogs, perform all household chores daily, drive, shop weekly, pay attention 19 “all day”, manage personal care, cook meals, and she was a fulltime student online. 20 AR 30-31, 382-387. Activities inconsistent with the alleged symptoms are proper ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 14 1 grounds for questioning the credibility of an individual’s subjective allegations. 2 Molina, 674 F.3d at 1113 (“[e]ven where those activities suggest some difficulty 3 functioning, they may be grounds for discrediting the claimant’s testimony to the 4 extent that they contradict claims of a totally debilitating impairment”); see also 5 Rollins v. Massanari, 261 F.3d 853, 857 (9th Cir. 2001). The ALJ reasonably 6 found that Plaintiff’s daily activities contradict her allegations of total disability. 7 The record supports the ALJ’s determination that Plaintiff’s conditions are not as 8 limiting as she alleges. 9 The ALJ also noted multiple inconsistencies with the medical evidence. AR 10 28-31, 36-37. This determination is supported by substantial evidence in the 11 record. An ALJ may discount a claimant’s subjective symptom testimony that is 12 contradicted by medical evidence. Carmickle v. Comm’r of Soc. Sec. Admin., 533 13 F.3d 1155, 1161 (9th Cir. 2008). Inconsistency between a claimant’s allegations 14 and relevant medical evidence is a legally sufficient reason to reject a claimant’s 15 subjective testimony. Tonapetyan v. Halter, 242 F.3d 1144, 1148 (9th Cir. 2001). 16 Plaintiff alleges completely debilitating pain limitations. AR 28. However, 17 physical examinations generally suggested she was not as limited as she alleged, 18 including a plethora of notations demonstrating she was able to care for herself and 19 her mobility without assistance, normal gait and normal or improved strength. See 20 e.g., AR 28-31, 1210, 1258, 1527, 1537, 1541, 1552, 1813, 1875, 2188, 2217. ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 15 1 The ALJ noted several inconsistent statements, lack of following treatment 2 recommendations, and overstating her symptoms and diagnoses. AR 28-31. An 3 ALJ may rely on ordinary techniques of credibility evaluation such as a witness’s 4 prior inconsistent statements. Tommasetti, 533 F.3d at 1039. A claimant’s 5 statements may be less credible when treatment is inconsistent with the level of 6 complaints or a claimant is not following treatment prescribed without good 7 reason. Molina, 674 F.3d at 1114. If a claimant’s condition is not severe enough to 8 motivate them to follow the prescribed course of treatment this is “powerful 9 evidence” regarding the extent to which they are limited by the impairment. Burch 10 v. Barnhart, 400 F.3d 676, 681 (9th Cir. 2005). The ALJ noted several occasions in 11 which Plaintiff was noncompliant with her medication for months at a time, 12 inconsistent statement regarding her tobacco use, and overstated her cardiovascular 13 symptoms and diagnoses. See e.g., AR 31, 553, 557, 578, 580. 14 When the ALJ presents a reasonable interpretation that is supported by the 15 evidence, it is not the role of the courts to second-guess it. Rollins, 261 F.3d at 857. 16 The Court “must uphold the ALJ's findings if they are supported by inferences 17 reasonably drawn from the record.” Molina, 674 F.3d 1104, 1111; see also 18 Thomas, 278 F.3d 947, 954 (if the “evidence is susceptible to more than one 19 rational interpretation, one of which supports the ALJ’s decision, the conclusion 20 must be upheld”). The Court does not find the ALJ erred when discounting ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 16 1 Plaintiff’s credibility because the ALJ properly provided multiple clear and 2 convincing reasons for doing so. 3 4 5 C. The ALJ Properly Weighed the Medical Opinion Evidence. a. Legal Standard. The Ninth Circuit has distinguished between three classes of medical 6 providers in defining the weight to be given to their opinions: (1) treating 7 providers, those who actually treat the claimant; (2) examining providers, those 8 who examine but do not treat the claimant; and (3) non-examining providers, those 9 who neither treat nor examine the claimant. Lester v. Chater, 81 F.3d 821, 830 (9th 10 11 Cir. 1996) (as amended). A treating provider’s opinion is given the most weight, followed by an 12 examining provider, and finally a non-examining provider. Id. at 830-31. In the 13 absence of a contrary opinion, a treating or examining provider’s opinion may not 14 be rejected unless “clear and convincing” reasons are provided. Id. at 830. If a 15 treating or examining provider’s opinion is contradicted, it may only be discounted 16 for “specific and legitimate reasons that are supported by substantial evidence in 17 the record.” Id. at 830-31. 18 The ALJ may meet the specific and legitimate standard by “setting out a 19 detailed and thorough summary of the facts and conflicting clinical evidence, 20 stating his interpretation thereof, and making findings.” Magallanes v. Bowen, 881 ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 17 1 F.2d 747, 751 (9th Cir. 1989) (internal citation omitted). When rejecting a treating 2 provider’s opinion on a psychological impairment, the ALJ must offer more than 3 his or her own conclusions and explain why he or she, as opposed to the provider, 4 is correct. Embrey v. Bowen, 849 F.2d 418, 421-22 (9th Cir. 1988). 5 6 b. Joselyn Bailey, M.D. Dr. Bailey is a medical expert that testified at the September 2013 hearing. 7 AR 22, 68-78. Dr. Bailey testified that Plaintiff could perform light work with 8 additional exertional limitations. Id. 9 The ALJ assigned some weight to Dr. Bailey’s opinion. AR 32. Plaintiff 10 argues that this opinion should have been given less weight because Dr. Bailey did 11 not specifically mention some of the records and she could not immediately find a 12 few of the records Plaintiff’s counsel referenced at the hearing and instead she 13 agreed with Plaintiff’s counsel’s description of the records. ECF No. 18 at 8-10. 14 However, this Court cannot re-weigh the evidence. The ALJ is the trier of fact, and 15 “[t]he trier of fact and not the reviewing court must resolve conflicts in the 16 evidence, and if the evidence can support either outcome, the court may not 17 substitute its judgment for that of the ALJ.” Matney v. Sullivan, 981 F.2d 1016, 18 1019 (9th Cir. 1992). It is “the ALJ [who] is the final arbiter with respect to 19 resolving ambiguities in the medical evidence.” Tommasetti v. Astrue, 533 F.3d 20 1035, 1041 (9th Cir. 2008). Additionally, great weight may legitimately be given ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 18 1 to the opinion of a non-examining expert who testifies at a hearing, such as Dr. 2 Bailey. Andrews v. Shalala, 53 F.3d 1035, 1042 (9th Cir. 1995). Dr. Bailey’s 3 opinion is also consistent with the opinions of Dr. Perencevich and Dr. Long that 4 were assigned significant weight and are uncontested. AR 32. The ALJ’s decision 5 is supported by substantial evidence in the record. 6 When the ALJ presents a reasonable interpretation that is supported by the 7 evidence, it is not the role of the courts to second-guess it. Rollins, 261 F.3d 853, 8 857. The Court “must uphold the ALJ's findings if they are supported by inferences 9 reasonably drawn from the record.” Molina, 674 F.3d 1104, 1111; see also 10 Thomas, 278 F.3d 947, 954 (if the “evidence is susceptible to more than one 11 rational interpretation, one of which supports the ALJ’s decision, the conclusion 12 must be upheld”). Thus, the Court finds the ALJ did not err in her consideration of 13 Dr. Bailey’s opinion. 14 c. Bashard Elali, M.D. 15 Dr. Elali is a treating doctor who filled out a questionnaire regarding 16 Plaintiff’s residual functional capacity on June 20, 2013. AR 1198-1204. Dr. Elali 17 opined that Plaintiff could carry no more than 10 pounds occasionally and less than 18 10 pounds frequently, could stand or walk less than two hours in an eight-hour day, 19 could sit for five minutes at a time before needing to change positions, stand for 10 20 minutes at a time before needing to change positions, would need to walk for five ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 19 1 minutes for relief after sitting for 10 minutes, and could only stand and walk five to 2 15 minutes in an eight-hour workday. AR 33-34, 1198-1204. This opinion is 3 contradicted by the opinions of Dr. Perencevich, Dr. Long, and Dr. Bailey. 4 The ALJ assigned little weight to Dr. Elali’s opinion for multiple valid 5 reasons. AR 33-34. First, the ALJ noted that the opinion is inconsistent with the 6 medical record. Id. In support of his opinion, Dr. Elali stated Plaintiff had a 7 herniated cervical spine and lumbar spinal stenosis with herniated discs. AR 33, 8 1198. However, as the ALJ noted, “diagnostic imaging did not indicate that the 9 claimant had herniated discs or a herniated cervical spine.” AR 33, 757-758, 1193. 10 Dr. Elali’s extreme limitations are inconsistent with the medical records 11 demonstrating the Plaintiff had been doing well, she had no deformity of the 12 lumbar spine, she had a normal full range of motion in all joints, she could get in 13 and out of a chair without assistance, and she could ambulate without difficulty. 14 See e.g., AR 1228, 1244, 1253, 1258, 1270, 1267. The ALJ also noted that Plaintiff 15 was able to sit for the entire hearing that lasted much longer than five minutes. AR 16 33. An ALJ may reject a doctor’s opinion when it is inconsistent with other 17 evidence in the record. See Morgan v. Comm’r of the Soc. Sec. Admin., 169 F.3d 18 595, 600 (9th Cir. 1999). An ALJ may consider the claimant’s actions at the 19 hearing if they are inconsistent with her complaints. Nyman v. Heckler, 779 F.2d 20 528, 531 (9th Cir. 1985). ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 20 1 The ALJ also found that Dr. Elali’s opinion is internally inconsistent and too 2 extreme as to be implausible. AR 33-34. The ALJ noted that Dr. Elali’s restrictions 3 were “so extreme that it seems the claimant should have been living in a skilled 4 nursing facility,” given the extreme sitting and standing limitations. AR 33. An 5 ALJ may reject even a doctor’s opinion that is so extreme as to be implausible and 6 not supported by any findings made by any other doctor. See Rollins, 261 F.3d at 7 856. 8 9 Additionally, the ALJ noted that the severe limitations are inconsistent with Plaintiff’s statements of her limitations and her daily activities. AR 33-34. 10 Plaintiff’s function report she prepared during the time she was seen by Dr. Elali, 11 and Plaintiff’s testimony regarding her activities and limitations vastly exceed the 12 restrictions in Dr. Elali’s opinion. AR 33-34, 82-83, 382-86. An ALJ may reject a 13 doctor’s opinion when it is inconsistent with other evidence in the record. See 14 Morgan, 169 F.3d at 600. And, an ALJ may properly reject an opinion that 15 provides restrictions that appear inconsistent with the claimant’s level of activity. 16 Rollins, 261 F.3d at 856. 17 When the ALJ presents a reasonable interpretation that is supported by the 18 evidence, it is not the role of the courts to second-guess it. Rollins, 261 F.3d 853, 19 857. The Court “must uphold the ALJ's findings if they are supported by inferences 20 reasonably drawn from the record.” Molina, 674 F.3d 1104, 1111; see also ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 21 1 Thomas, 278 F.3d 947, 954 (if the “evidence is susceptible to more than one 2 rational interpretation, one of which supports the ALJ’s decision, the conclusion 3 must be upheld”). Thus, the Court finds the ALJ did not err in her consideration of 4 Dr. Elali’s opinion. 5 6 d. Alaa Atfeh, M.D. Dr. Atfeh is a treating doctor who completed a physical residual functional 7 capacity assessment in April 2015. AR 37, 1514-21. Dr. Atfeh opined, based on 8 Plaintiff’s limited range of lumbar motion, that Plaintiff needed to shift positions 9 and lie down twice per workday, she could lift/carry less than ten pounds, and sit 10 for less than two hours per workday. Id. The opinion states that Plaintiff could 11 occasionally perform postural activities, except never stooping or climbing ladders, 12 and she should avoid all exposure to hazards. Id. Dr. Atfeh also opined, based on 13 Plaintiff’s carpal tunnel syndrome, that Plaintiff could occasionally reach, handle, 14 and push/pull, but never finger or feel. Id. 15 The ALJ did not completely reject this opinion, but assigned it some weight 16 except for the limitations as to sitting, stooping, and manipulating. AR 37-38. The 17 ALJ properly supported this determination with multiple valid reasons supported 18 by the record. First, the ALJ noted that Dr. Atfeh has treated Plaintiff for less than 19 a year and did not relate his findings to any of the previous four years of alleged 20 disability, providing Dr. Atfeh with a limited window into Plaintiff’s functioning. ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 22 1 AR 37. The length of a treating relationship is a valid consideration when 2 evaluating what weight to give an opinion. 20 C.F.R. §§ 404.1527(c)(2), 3 416.927(c)(2). Plaintiff alleges that the new evidence submitted to the Appeals 4 Counsel better demonstrates the treating relationship, but recognizes that it is not 5 longer than that which was already known by the ALJ at the time of the ALJ’s 6 decision. 7 The ALJ also noted that the severe limitations in Dr. Atfeh’s opinion are 8 contradicted by medical evidence in the record and by Plaintiff’s own assertions. 9 AR 37-38. Dr. Atfeh opined that Plaintiff could only occasionally handle and 10 push/pull, and never finger, feel, or stoop; however, the ALJ noted that after her 11 surgery, Plaintiff improved greatly and had 5/5 strength in her upper extremities, 12 4/5 strength in her lower extremities, and intact sensation. AR 38, 1419. Plaintiff 13 also testified she only wore her hand brace at night and did not have plans to get 14 surgery for carpal tunnel, deflating the severity of the limitations asserted by Dr. 15 Atfeh. AR 38, 102-03. An ALJ may reject a doctor’s opinion when it is 16 inconsistent with other evidence in the record. See Morgan, 169 F.3d at 600. And, 17 an ALJ may properly reject an opinion that provides restrictions that appear 18 inconsistent with the claimant’s level of activity. Rollins, 261 F.3d at 856. Plaintiff 19 contends that ten pages of the 751 pages of new evidence submitted to the Appeals 20 Counsel, addressing her back pain and carpal tunnel syndrome, support Dr. Atfeh’s ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 23 1 determination. ECF No. 18 at 14-15. However, while the records cited to by the 2 Plaintiff show some functional difficulties, they support the ALJ’s determination 3 that her condition was better post-surgery, she had at least 4/5 strength in her lower 4 extremities, she had a grossly normal gait, and her own reports that her pain was 5 “well controlled most of the time” with medications, and the new evidence 6 supports the ALJ’s determination that she is not as limited as Dr. Atfeh opined. See 7 e.g., 1541, 1614-1615, 1707-1708, 1752, 1776, 1793, 1813, 1875, 1945-1946, 8 2188, 2217. 9 When the ALJ presents a reasonable interpretation that is supported by the 10 evidence, it is not the role of the courts to second-guess it. Rollins, 261 F.3d 853, 11 857. The Court “must uphold the ALJ's findings if they are supported by inferences 12 reasonably drawn from the record.” Molina, 674 F.3d 1104, 1111; see also 13 Thomas, 278 F.3d 947, 954 (if the “evidence is susceptible to more than one 14 rational interpretation, one of which supports the ALJ’s decision, the conclusion 15 must be upheld”). Thus, the Court finds the ALJ did not err in her consideration of 16 Dr. Atfeh’s opinion. 17 18 D. The ALJ Properly Evaluated the Lay Witness Evidence. The opinion testimony of Plaintiff’s daughter, Jessi Ann Haney, falls under 19 the category of “other sources.” “Other sources” for opinions include nurse 20 practitioners, physicians' assistants, therapists, teachers, social workers, spouses, ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 24 1 and other non-medical sources. 20 C.F.R. §§ 404.1513(d), 416.913(d). An ALJ is 2 required to “consider observations by non-medical sources as to how an 3 impairment affects a claimant's ability to work.” Sprague v. Bowen, 812 F.2d 1226, 4 1232 (9th Cir.1987). Non-medical testimony can never establish a diagnosis or 5 disability absent corroborating competent medical evidence. Nguyen v. Chater, 100 6 F.3d 1462, 1467 (9th Cir.1996). An ALJ is obligated to give reasons germane to 7 “other source” testimony before discounting it. Dodrill v. Shalala, 12 F.3d 915 (9th 8 Cir.1993). 9 Only July 23, 2013, Plaintiff’s daughter prepared a statement in support of 10 the disability claim. AR 34, 427-30. Plaintiff’s daughter states that Plaintiff’s 11 impairments are so significant that she can no longer complete housework. Id. The 12 ALJ found that this statement did not persuade her that Plaintiff’s residual 13 functional capacity prior to September 2013 was more restrictive. AR 34. The ALJ 14 noted that Plaintiff’s daughter’s statements were contradicted by Plaintiff’s own 15 testimony regarding her abilities and limitations. AR 34, 82, 427. An ALJ may 16 reject even a doctor’s opinion when it is inconsistent with other evidence in the 17 record. See Morgan, 169 F.3d at 602-03. An ALJ may properly reject an opinion 18 that provides restrictions that appear inconsistent with the claimant’s level of 19 activity. Rollins v. Massanari, 261 F.3d 853, 856 (9th Cir. 2001). Additionally, the 20 ALJ found that the statement is based on Plaintiff’s subjective complaints, that ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 25 1 were properly discredited, rather than objective medical evidence. AR 34. An ALJ 2 may discount even a treating provider’s opinion if it is based largely on the 3 claimant’s self-reports, and the ALJ finds the claimant not credible. Ghanim v. 4 Colvin, 763 F.3d 1154, 1162 (9th Cir. 2014). 5 6 The Court finds the ALJ properly provided germane reasons for rejecting Ms. Haney’s statements. 7 VIII. Conclusion 8 Having reviewed the record and the ALJ’s findings, the Court finds the 9 10 ALJ’s decision is supported by substantial evidence and is free from legal error. Accordingly, IT IS ORDERED: 11 1. Plaintiff’s Motion for Summary Judgment, ECF No. 18, is DENIED. 12 2. Defendant’s Motion for Summary Judgment, ECF No. 19, is 13 GRANTED. 14 3. Judgment shall be entered in favor of Defendant and the file shall be 15 CLOSED. 16 IT IS SO ORDERED. The District Court Executive is directed to enter this Order, 17 forward copies to counsel and close the file. 18 19 20 DATED this 29th day of June, 2018. s/Robert H. Whaley ROBERT H. WHALEY Senior United States District Judge ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 26

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