Frogge v. Commissioner of Social Security, No. 2:2017cv00228 - Document 25 (E.D. Wash. 2018)

Court Description: ORDER GRANTING ECF No. 23 DEFENDANT'S MOTION FOR SUMMARY JUDGMENT; denying ECF No. 22 Plaintiff's Motion for Summary Judgment. FILE CLOSED. Signed by Magistrate Judge John T. Rodgers. (TR, Case Administrator)

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Frogge v. Commissioner of Social Security Doc. 25 1 2 3 FI LED I N THE U.S. DI STRI CT COURT EASTERN DI STRI CT OF WASHI NGTON 4 5 Jun 15, 2018 6 SEAN F. MCAVOY, CLERK 7 UNITED STATES DISTRICT COURT 8 EASTERN DISTRICT OF WASHINGTON 9 10 11 JASON F., No. 2:17-CV-00228-JTR Plaintiff, ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT 12 13 14 15 16 v. COMMISSIONER OF SOCIAL SECURITY, Defendant. 17 18 BEFORE THE COURT are cross-motions for summary judgment. ECF 19 Nos. 22, 23. Attorney Cathy M. Helman represents Jason F. (Plaintiff); Special 20 Assistant United States Attorney Justin L. Martin represents the Commissioner of 21 Social Security (Defendant). The parties have consented to proceed before a 22 magistrate judge. ECF No. 4. After reviewing the administrative record and briefs 23 filed by the parties, the Court GRANTS Defendant’s Motion for Summary 24 Judgment and DENIES Plaintiff’s Motion for Summary Judgment. 25 JURISDICTION 26 Plaintiff filed applications for Supplemental Security Income (SSI) and 27 Disability Insurance Benefits (DIB) on December 3, 2013, Tr. 144-45, alleging 28 disability since July 15, 2008, Tr. 310, 312, due to a ruptured disc, anxiety, and ORDER GRANTING DEFENDANT’S MOTION . . . - 1 Dockets.Justia.com 1 mental problems, Tr. 391. The applications were denied initially and upon 2 reconsideration. Tr. 204-07, 209-12. Administrative Law Judge (ALJ) Marie 3 Palachuk held a hearing on January 21, 2016 and heard testimony from Plaintiff, 4 psychological expert Nancy Lynn Winfrey, Ph.D., medical expert Allan N. Levine, 5 M.D., and vocational expert Daniel McKinney. Tr. 47-95. The ALJ issued an 6 unfavorable decision on February 17, 2016. Tr. 23-37. The Appeals Council 7 denied review on April 27, 2017. Tr. 1-6. The ALJ’s February 17, 2016 decision 8 became the final decision of the Commissioner, which is appealable to the district 9 court pursuant to 42 U.S.C. §§ 405(g), 1383(c). Plaintiff filed this action for 10 judicial review on June 20, 2017. ECF Nos. 1, 7. STATEMENT OF FACTS 11 The facts of the case are set forth in the administrative hearing transcript, the 12 13 ALJ’s decision, and the briefs of the parties. They are only briefly summarized 14 here. 15 Plaintiff was 31 years old at the alleged date of onset. Tr. 310. His highest 16 level of education was the tenth grade. Tr. 392, 645. He reported his work history 17 as cashier, cook, customer service representative, security guard, and test driver. 18 Tr. 392, 398. Plaintiff reported that he stopped working on September 15, 2012 19 due to his conditions. Tr. 391. 20 21 STANDARD OF REVIEW The ALJ is responsible for determining credibility, resolving conflicts in 22 medical testimony, and resolving ambiguities. Andrews v. Shalala, 53 F.3d 1035, 23 1039 (9th Cir. 1995). The Court reviews the ALJ’s determinations of law de novo, 24 deferring to a reasonable interpretation of the statutes. McNatt v. Apfel, 201 F.3d 25 1084, 1087 (9th Cir. 2000). The decision of the ALJ may be reversed only if it is 26 not supported by substantial evidence or if it is based on legal error. Tackett v. 27 Apfel, 180 F.3d 1094, 1097 (9th Cir. 1999). Substantial evidence is defined as 28 being more than a mere scintilla, but less than a preponderance. Id. at 1098. Put ORDER GRANTING DEFENDANT’S MOTION . . . - 2 1 another way, substantial evidence is such relevant evidence as a reasonable mind 2 might accept as adequate to support a conclusion. Richardson v. Perales, 402 3 U.S. 389, 401 (1971). If the evidence is susceptible to more than one rational 4 interpretation, the court may not substitute its judgment for that of the ALJ. 5 Tackett, 180 F.3d at 1097. 6 If substantial evidence supports the administrative findings, or if conflicting 7 evidence supports a finding of either disability or non-disability, the ALJ’s 8 determination is conclusive. Sprague v. Bowen, 812 F.2d 1226, 1229-30 (9th Cir. 9 1987). Nevertheless, a decision supported by substantial evidence will be set aside 10 if the proper legal standards were not applied in weighing the evidence and making 11 the decision. Brawner v. Secretary of Health and Human Services, 839 F.2d 432, 12 433 (9th Cir. 1988). 13 14 SEQUENTIAL EVALUATION PROCESS The Commissioner has established a five-step sequential evaluation process 15 for determining whether a person is disabled. 20 C.F.R. §§ 404.1520(a), 16 416.920(a); see Bowen v. Yuckert, 482 U.S. 137, 140-42 (1987). In steps one 17 through four, the burden of proof rests upon the claimant to establish a prima facie 18 case of entitlement to disability benefits. Tackett, 180 F.3d at 1098-99. This 19 burden is met once the claimant establishes that physical or mental impairments 20 prevent him from engaging in his previous occupations. 20 C.F.R. §§ 21 404.1520(a)(4), 416.920(a)(4). If the claimant cannot do his past relevant work, 22 the ALJ proceeds to step five, and the burden shifts to the Commissioner to show 23 that (1) the claimant can make an adjustment to other work, and (2) specific jobs 24 which the claimant can perform exist in the national economy. Batson v. Comm’r 25 of Soc. Sec. Admin., 359 F.3d 1190, 1193-94 (9th Cir. 2004). If the claimant 26 cannot make an adjustment to other work in the national economy, a finding of 27 “disabled” is made. 20 C.F.R. §§ 404.1520(a)(4)(v), 416.920(a)(4)(v). 28 ORDER GRANTING DEFENDANT’S MOTION . . . - 3 1 ADMINISTRATIVE DECISION On February 17, 2016, the ALJ issued a decision finding Plaintiff was not 2 3 disabled as defined in the Social Security Act. At step one, the ALJ found Plaintiff had not engaged in substantial gainful 4 5 activity since July 15, 2008, the alleged date of onset. Tr. 25. At step two, the ALJ determined Plaintiff had the following severe 6 7 impairments: chronic back pain secondary to multilevel degenerative disc disease; 8 morbid obesity; major depressive disorder; and generalized anxiety disorder. Tr. 9 26. 10 At step three, the ALJ found Plaintiff did not have an impairment or 11 combination of impairments that met or medically equaled the severity of one of 12 the listed impairments. Tr. 26. 13 14 15 16 17 18 19 20 21 22 23 At step four, the ALJ assessed Plaintiff’s residual function capacity and determined he could perform a range of light work with the following limitations: the claimant is limited to lifting/carrying a maximum of 15 pounds and standing/walking limited to 30 minutes at a time for a total of five hours per day (requiring the ability to alternate sitting/standing at 30 minute intervals). The claimant is limited to occasional postural activities with the exception of no climbing of ladders, ropes and scaffolds; avoid concentrated exposure to extreme cold and all exposure to hazards such as dangerous moving machinery and unprotected heights. The claimant is able to maintain attention/concentration for two-hour intervals during a regular 40-hour workweek; no production rate (fast-paced assemblytype work); no high pressure/confrontation type job (e.g., customer service/disputes, collection, etc.); no crowds; only occasional interaction with coworkers/supervisors. 24 25 Tr. 28. The ALJ identified Plaintiff’s past relevant work as store cashier, laborer 26 stores, electronics tester, cook helper, hand packager, and customer-service clerk 27 (CST) and concluded that Plaintiff was not able to perform this past relevant work. 28 Tr. 35. ORDER GRANTING DEFENDANT’S MOTION . . . - 4 1 At step five, the ALJ determined that, considering Plaintiff’s age, education, 2 work experience and residual functional capacity, and based on the testimony of 3 the vocational expert, there were other jobs that exist in significant numbers in the 4 national economy Plaintiff could perform, including the jobs of bagger, garment 5 sorter, and table worker. Tr. 36. The ALJ concluded Plaintiff was not under a 6 disability within the meaning of the Social Security Act at any time from July 15, 7 2008, through the date of the ALJ’s decision. Tr. 37. ISSUES 8 The question presented is whether substantial evidence supports the ALJ’s 9 10 decision denying benefits and, if so, whether that decision is based on proper legal 11 standards. Plaintiff contends the ALJ erred by (1) failing to properly weigh the 12 opinion evidence, (2) failing to properly address Plaintiff’s symptom statements, 13 and (3) failing to make a proper step five determination. DISCUSSION 14 15 16 1. Opinion Evidence Plaintiff argues that the ALJ failed to properly consider and weigh the 17 opinions expressed by William M. Shanks, M.D., Benjamin W. Simpson, M.D., 18 Wilfred Madarang, M.D., Mahlon Dalley, Ph.D., Frank Rosekrans, Ph.D., Jay M. 19 Toews, Ed.D., Nancy Lynn Winfrey, Ph.D., Allan N. Levine, M.D., and Helen 20 Franklin. ECF No. 14 at 22 at 12-20. 21 In weighing medical source opinions, the ALJ should distinguish between 22 three different types of physicians: (1) treating physicians, who actually treat the 23 claimant; (2) examining physicians, who examine but do not treat the claimant; 24 and, (3) nonexamining physicians who neither treat nor examine the claimant. 25 Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1995). The ALJ should give more 26 weight to the opinion of a treating physician than to the opinion of an examining 27 physician. Orn v. Astrue, 495 F.3d 625, 631 (9th Cir. 2007). Likewise, the ALJ 28 should give more weight to the opinion of an examining physician than to the ORDER GRANTING DEFENDANT’S MOTION . . . - 5 1 2 opinion of a nonexamining physician. Id. When a treating physician’s opinion is not contradicted by another 3 physician, the ALJ may reject the opinion only for “clear and convincing” reasons. 4 Baxter v. Sullivan, 923 F.2d 1391, 1396 (9th Cir. 1991). When a treating 5 physician’s opinion is contradicted by another physician, the ALJ is only required 6 to provide “specific and legitimate reasons” for rejecting the opinion. Murray v. 7 Heckler, 722 F.2d 499, 502 (9th Cir. 1983). Likewise, when an examining 8 physician’s opinion is not contradicted by another physician, the ALJ may reject 9 the opinion only for “clear and convincing” reasons, and when an examining 10 physician’s opinion is contradicted by another physician, the ALJ is only required 11 to provide “specific and legitimate reasons” to reject the opinion. Lester, 81 F.3d 12 at 830-31. 13 The specific and legitimate standard can be met by the ALJ setting out a 14 detailed and thorough summary of the facts and conflicting clinical evidence, 15 stating her interpretation thereof, and making findings. Magallanes v. Bowen, 881 16 F.2d 747, 751 (9th Cir. 1989). The ALJ is required to do more than offer her 17 conclusions, she “must set forth [her] interpretations and explain why they, rather 18 than the doctors’, are correct.” Embrey v. Bowen, 849 F.2d 418, 421-422 (9th Cir. 19 1988). 20 A. William M. Shanks, M.D. 21 On July 12, 2012, Dr. Shanks completed an examination of Plaintiff at the 22 request of the Washington Department of Social and Health Services (DSHS) and 23 diagnosed Plaintiff with widespread degenerative disk disease of the lumbar spine 24 with facet joint arthritis and a history of left lateral disc herniation at the LS level, 25 status post-op discectomy at this level. Tr. 582-85. Dr. Shanks completed his 26 evaluation with the following statement: 27 28 He has no training in a sedentary level occupation, except for that which he did in a call center several years ago. He would not be able to return ORDER GRANTING DEFENDANT’S MOTION . . . - 6 1 2 to the heavier types of work he has done in the past. He therefore does not appear capable of employment at this point. 3 Tr. 585. He also completed a form for DSHS opining that Plaintiff could sit for 4 most of the day, could lift a maximum of ten pounds, and could frequently lift two 5 pounds. Tr. 580-81. The ALJ gave the opinion “little weight” for three reasons: 6 (1) it was a DSHS evaluation, (2) Dr. Shanks is not a vocational expert, but his 7 opinion contained vocational matters, and (3) it was inconsistent with the 8 assessments of Dr. Levine, Dr. Madarang, and the State agency medical 9 consultants. Tr. 33-34. 10 The ALJ’s first reason for rejecting the opinion, that it was a DSHS 11 evaluation, is not legally sufficient. The ALJ stated that as a preliminary matter, 12 she “assigns less weight to DSHS evaluations because DSHS uses different 13 regulations to determine an applicant’s eligibility for benefits, and the evaluations 14 conducted for DSHS are largely based on the claimant’s self-reported symptoms 15 and complaints while the claimant is not fully credible in this case.” Tr. 33. This 16 is legally insufficient for two reasons: First, while the ALJ is accurate that DSHS 17 uses different rules to establish eligibility for benefits, she is not required to adopt 18 this agency’s conclusion. 20 C.F.R. §§ 404.1527(d), 416.927(d). However, she is 19 required to consider the underlying medical opinion that the agency’s conclusion is 20 based upon. 20 C.F.R. §§ 404.1527(c), 416.927(c). Although the two agencies’ 21 rules may be different, it is not always apparent that these differences affect a 22 particular physician’s report without further analysis by the ALJ. There may be 23 situations where less weight should be assigned to a DSHS medical opinion based 24 on the differences in the rules, but substantial evidence does not support that 25 finding here. Dr. Shanks’ opinion addressed discrete functional abilities that are 26 separate from the agency’s conclusions: Plaintiff could sit for most the day, could 27 lift a maximum of ten pounds, and could frequently lift two pounds. Tr. 580. The 28 different regulations used by the different agencies have no effect on the functional ORDER GRANTING DEFENDANT’S MOTION . . . - 7 1 limitations opined. Therefore, this is not a specific and legitimate reason for 2 rejecting DSHS medical reports. 3 Second, the blanket conclusion that DSHS evaluations are largely based on a 4 claimant’s self-reported symptoms, is not consistent with Ninth Circuit case law. 5 A doctor’s opinion may be discounted if it relies on a claimant’s unreliable self- 6 report. Bayliss v. Barnhart, 427 F.3d 1211, 1217 (9th Cir. 2005); Tommasetti v. 7 Astrue, 533 F.3d 1035, 1041 (9th Cir. 2008). But the ALJ must provide the basis 8 for her conclusion that the opinion was more heavily based on a claimant’s self- 9 reports than the medical evidence. Ghanim v. Colvin, 763 F.3d 1154, 1162 (9th 10 Cir. 2014). Here, the fact that an opinion was penned at the request of an agency is 11 not a sufficient basis for the ALJ’s conclusion that the opinion was based on 12 Plaintiff’s self-reports under Ghanim. Therefore, the mere fact that the opinion 13 was part of Plaintiff’s application for DSHS benefits is not a specific and 14 legitimate reason to reject it. 15 The second reason for rejecting Dr. Shanks’ opinion, that he opined on 16 vocational matter without expertise in that area, is not a specific or legitimate 17 reason to reject the opinion. The statement at the end of Dr. Shanks’ evaluation, 18 addressing Plaintiff’s past work and finding that Plaintiff did not appear capable of 19 work, Tr. 585, does address vocational issues and the ultimate issue of disability. 20 Whether or not a claimant is disabled is an issue reserved for the ALJ and is, 21 therefore, not a medical opinion and not due any special significance. 20 C.F.R. §§ 22 404.1527(d); 416.927(d). While Dr. Shanks’ conclusory statement at the end of 23 his evaluation may address vocational issues and the ultimate issue of disability, it 24 does not negate his functional opinion contained on the DSHS form, which 25 addressed Plaintiff’s ability to stand and lift. Tr. 580. Therefore, this is not a 26 legally sufficient reason to reject the functional portion of Dr. Shanks’ opinion. 27 The ALJ’s third reason for rejecting Dr. Shanks’ opinion, that it is 28 inconsistent with the assessments of Dr. Levine, Dr. Madarang, and the State ORDER GRANTING DEFENDANT’S MOTION . . . - 8 1 agency consultants, meets the specific and legitimate standard. An ALJ may reject 2 an opinion because it conflicts with another physician’s examination. Batson, 359 3 F.3d at 1195. Dr. Levine was the medical expert who testified at Plaintiff’s 4 hearing. Tr. 51-66. He and the State agency medical consultants are considered 5 nonexamining opinions. “The opinion of a nonexamining physician cannot by 6 itself constitute substantial evidence that justifies the rejection of the opinion of 7 either an examining physician or a treating physician.” Lester, 81 F.3d at 831 8 citing Pitzer v. Sullivan, 908 F.2d 502, 506 n.4 (9th Cir. 1990). However, the ALJ 9 also found that Dr. Shanks’ opinion was inconsistent with that of Dr. Madarang. 10 Tr. 34. Dr. Madarang was an examining physician who provided an opinion 11 limiting Plaintiff to light work. Tr. 552-56. Therefore, the ALJ did not rely on the 12 opinions of nonexamining physicians alone in rejecting Dr. Shanks’ opinion. As 13 such, this third reason meets the specific and legitimate standard. 14 B. Benjamin W. Simpson, M.D. 15 On November 25, 2015, Dr. Simpson completed a medical source statement 16 opining that Plaintiff could frequently lift up to ten pounds, occasionally lift and/or 17 carry eleven to twenty pounds. Tr. 815. Plaintiff could sit at one time for eight 18 hours, stand at one time for two hours, and walk at one time for three hours. Tr. 19 816. Plaintiff could bilaterally reach overhead and push/pull occasionally and 20 reach and finger continuously. Tr. 817. Plaintiff could continuously operate foot 21 controls bilaterally. Id. He could occasionally climb stairs, ramps, ladders, or 22 scaffolds and was precluded from stooping, kneeling, crouching, and crawling. Tr. 23 818. His exposure to unprotected heights was limited to occasional and all 24 remaining environmental considerations were without limitations. Tr. 819. Dr. 25 Simpson stated that these limitations have lasted or will last for twelve consecutive 26 months. Tr. 820. The ALJ gave “some weight” to the lift/carry limitations opined 27 by Dr. Simpson and “little weight” to the remainder of the opinion. Tr. 34. The 28 ALJ supported the weight provided with two reasons: (1) there was no evidence to ORDER GRANTING DEFENDANT’S MOTION . . . - 9 1 support any right upper extremity limitations and (2) the opinion was inconsistent 2 with that of Dr. Levine and Dr. Madarang. Tr. 35. 3 The ALJ’s first reason, that there were no objective findings to support any 4 ongoing right upper extremity limitations, meets the specific and legitimate 5 standard. Plaintiff concedes that the right sided limitations are unsupported, but 6 argues that this only affects the reliability of Dr. Simpson’s opinion as to the 7 limitations on Plaintiff’s right side. ECF No. 22 at 16. The Court disagrees. The 8 fact that a source would opine limitations that are unsupported by the record and 9 his own treatment notes calls the reliability of the entire opinion into question. See 10 Batson, 359 F.3d at 1195 (inconsistency with the majority of the objective 11 evidence is a specific and legitimate reason for rejecting an opinion). 12 The ALJ’s second reason for assigning Dr. Simpson’s opinion less weight, 13 that it was inconsistent with the opinions of Dr. Levine and Dr. Madarang, meets 14 the specific and legitimate standard. As discussed above, an opinion’s 15 inconsistency with other opinions in the record is a legally sufficient reason to 16 reject it. Furthermore, Plaintiff only challenges this reason by asserting that the 17 opinions of nonexamining providers do not constitute substantial evidence in 18 rejecting the opinion of examining providers. ECF No. 22 at 14 citing Lester, 81 19 F.3d at 831. However, Dr. Madarang was an examining provider. Therefore, 20 Plaintiff’s reliance on Lester is misplaced. 21 The ALJ did not error in his treatment of Dr. Simpson’s opinion. 22 C. 23 Dr. Madarang examined Plaintiff on February 27, 2013 and completed an Wilfred Madarang, M.D. 24 evaluation form for DSHS. Tr. 539-41, 552-56. He diagnosed Plaintiff with disc 25 degeneration in the lumbar spine, chronic knee pain, and arthralgia of the left hip. 26 Tr. 553. He limited Plaintiff to light work and estimated that this limitation would 27 persist with available medical treatment for six to nine months. Tr. 541, 554. The 28 ALJ gave the opinion “significant weight,” stating that Dr. Madarang had the ORDER GRANTING DEFENDANT’S MOTION . . . - 10 1 opportunity to examine Plaintiff, that his opinion was well supported by the 2 objective medical evidence, and that the opinion was consistent with the testimony 3 of Dr. Levine. Tr. 33. 4 Plaintiff challenges the ALJ’s determination giving controlling weight to Dr. 5 Madarang’s opinion. ECF No. 22 at 17-18. He argues that the ALJ was 6 inconsistent: First the ALJ rejected other opinions in the record because they were 7 generated in the pursuit of DSHS benefits, yet she accepted Dr. Madarang’s 8 opinion, which was also generated in the pursuit of DSHS benefits; second, the 9 ALJ rejected other examining physicians’ opinions because they were only 10 examining physicians, yet she accepted Dr. Madarang’s opinion citing his status as 11 an examining physician. Id. The ALJ is not required to provide “sufficient 12 reasons” for according weight to a medical professional, rather the Court reviews 13 whether the ALJ has provided legally sufficient reasons for rejecting evidence. See 14 Ramirez v. Shalala, 8 F.3d 1449, 1453 (9th Cir. 1993). Accordingly, Plaintiff’s 15 argument with respect to Dr. Madarang’s opinion is without merit. 16 D. Mahlon Dalley, Ph.D. 17 On March 25, 2013, Dr. Dalley completed a psychological evaluation of 18 Plaintiff at the request of DSHS. Tr. 532-37. He diagnosed Plaintiff with major 19 depressive disorder, recurrent and generalized anxiety disorder. Tr. 533. He 20 opined that Plaintiff had a severe limitation in three basic work activities and a 21 marked limitation in two additional basic work activities. Tr. 534. The ALJ gave 22 Dr. Dalley’s opinion “little weight” for four reasons: (1) it was a DSHS evaluation, 23 (2) it was a check-the-box form, (3) it was inconsistent with the record, and (4) it 24 was inconsistent with the opinions of Dr. Winfrey, Dr. Toews, and the State 25 agency medical consultants. Tr. 34. 26 The ALJ’s first reason for rejecting the opinion, that it was a DSHS 27 evaluation, fails to meet the specific and legitimate standard. The ALJ found that 28 DSHS evaluations are assigned less weight because DSHS uses different ORDER GRANTING DEFENDANT’S MOTION . . . - 11 1 regulations, the evaluations are largely based on the claimant’s self-reported 2 symptoms, and claimants have an incentive to overstate symptoms and complaints. 3 Tr. 34. The ALJ’s first two of these three assumptions regarding DSHS 4 evaluations, that they are premised on different regulations and based on the 5 claimant’s self-reports, were the same blanket reasons for rejecting Dr. Shanks’ 6 opinion, and are not specific and legitimate. See supra. The third assumption the 7 ALJ made about DSHS opinions, that claimants have an incentive to overstate their 8 limitations for the receipt of benefits, is not supported by substantial evidence. Dr. 9 Dalley specifically stated that Plaintiff’s “motivation appeared appropriate and the 10 test results are believed to be a good indication of his current cognitive and 11 psychological functioning.” Tr. 535. Dr. Dalley administered the Minnesota 12 Multiphasic Personality Inventory (MMPI-2) and concluded that the validity 13 indicators suggested that Plaintiff’s profile was valid. Tr. 537. Therefore, any 14 finding that Plaintiff was misrepresenting the severity of his impairments for the 15 receipt of benefits during Dr. Dalley’s evaluation is not supported by the record. 16 The fact that Dr. Dalley’s evaluation was a DSHS evaluation is not a legally 17 sufficient reason to reject it. 18 The ALJ’s second reason for rejecting Dr. Dalley’s opinion, that it was 19 contained on a check-the-box form, does not meet the specific and legitimate 20 standard. The Ninth Circuit has expressed a preference for narrative opinions over 21 opinions expressed on a check-the-box form. See Murray, 722 F.2d at 501. 22 However, check-the-box forms that do not stand alone, but are supported by 23 records should be “entitled to weight that an otherwise unsupported and 24 unexplained check-box form would not merit.” Garrison v. Colvin, 759 F.3d 995, 25 1013 (9th Cir. 2014). Here, there are not hundreds of pages of treatment records in 26 support of Dr. Dalley’s check-the-box form as there were in Garrison, however, 27 there is a mental status examination, a clinical interview, and psychological testing. 28 Tr. 532-37. The ALJ did not find Dr. Dalley’s report inconsistent with his opinion. ORDER GRANTING DEFENDANT’S MOTION . . . - 12 1 Therefore, the fact that the opinion was expressed on a check-the-box form is not a 2 sufficient reason to reject it. 3 The ALJ’s third and fourth reasons for rejecting the opinion, that it was 4 inconsistent with Plaintiff’s reports throughout the record and inconsistent with the 5 opinions of Dr. Winfrey, Dr. Toews, and the State agency medical consultants, 6 meet the specific and legitimate standard. An ALJ may reject an opinion because 7 it is inconsistent with other statements and assessments of the claimant’s medical 8 condition. Batson, 359 F.3d at 1195. The ALJ found that Plaintiff’s own reports 9 of mild mental health symptoms to other providers throughout the record were 10 inconsistent with the severity of impairments opined by Dr. Dalley. Tr. 34. She 11 cited five locations in the record in which Plaintiff reported improvement in his 12 psychiatric symptoms, Tr. 593-94, 682, a lack of symptoms, Tr. 678, or Depression 13 and Anxiety Scales showing minimal symptoms, Tr. 674, 676. It is reasonable for 14 the ALJ to question the reliability of Dr. Dalley’s evaluation considering Plaintiff 15 failed to consistently allege the level of severity of symptoms that Dr. Dalley 16 opined as present. Furthermore, Plaintiff does not challenge the ALJ’s finding that 17 his statements were inconsistent with Dr. Dalley’s evaluation. See Carmickle v. 18 Comm’r, Soc. Sec. Admin., 533 F.3d 1155, 1161 n.2 (9th Cir. 2008) (The Court 19 need not address issues not specifically raised in briefing). 20 Plaintiff challenges the ALJ’s finding that the opinions were inconsistent 21 with the opinions of Dr. Winfrey, Dr. Toews, and the State agency medical 22 consultants. ECF No. 22 at 14. However, his challenge only addresses the 23 opinion’s inconsistency with nonexamining providers. Id. Dr. Winfrey and the 24 State agency medical consultants are nonexamining providers. Plaintiff is accurate 25 that the opinion of a nonexamining physician cannot by itself constitute substantial 26 evidence that justifies the rejection of the opinion of either an examining or 27 treating physician. ECF No. 22 at 14 citing Lester, 81 F.3d at 831. However, Dr. 28 Toews is an examining source, and the ALJ relied upon his opinion when rejecting ORDER GRANTING DEFENDANT’S MOTION . . . - 13 1 Dr. Dalley’s opinion. Therefore, the ALJ is not relying on nonexamining sources 2 alone. The ALJ has provided a legally sufficient reason to reject Dr. Dalley’s 3 opinion. 4 E. 5 Dr. Rosekrans completed a psychological evaluation for DSHS on January Frank Rosekrans, Ph.D. 6 20, 2014. Tr. 645-53. He diagnosed Plaintiff with major depressive disorder, 7 single episode, mild and generalized anxiety disorder. Tr. 646. He opined that 8 Plaintiff had a marked limitation in four basic work activities and a moderate 9 limitation in two additional basic work activities. Tr. 647. He stated that Plaintiff 10 would be impaired with available treatment for sixty months. Id. The ALJ gave 11 Dr. Rosekrans’ opinion “little weight” for three reasons: (1) it was a DSHS 12 opinion; (2) it was inconsistent with the medical records; and (3) it was 13 inconsistent with the assessments of Dr. Winfrey, Dr. Toews, and State agency 14 medical consultants. Tr. 34. 15 The ALJ’s first reason for rejecting Dr. Rosekrans’ opinion, that it was a 16 DSHS evaluation, fails to meet the specific and legitimate standard. The ALJ 17 assigned less weight because DSHS uses different regulations, the evaluations are 18 largely based on the claimant’s self-reported symptoms, and claimants have an 19 incentive to overstate symptoms and complaints in DSHS evaluations. Tr. 34. 20 These three reasons are identical to those used to reject the opinion of Dr. Dalley, 21 and, as discussed at length above, are not sufficient to support the ALJ’s rejection 22 of the opinion. See supra. Here, like in the case of Dr. Dalley’s opinion, the 23 ALJ’s conclusion that Plaintiff was overstating his symptoms is not supported by 24 substantial evidence because Dr. Rosekrans found he had a valid score on the 25 Personality Assessment Inventory. Tr. 646. 26 The ALJ’s second and third reasons for rejecting Dr. Rosekrans’ opinion, 27 that it was inconsistent with the medical evidence and the opinions of Dr. Winfrey, 28 Dr. Toews, and State agency medical consultants, are legally sufficient. The ALJ ORDER GRANTING DEFENDANT’S MOTION . . . - 14 1 relies on the same reports of mild mental health symptoms relied upon in the 2 rejection of Dr. Dalley’s opinion and also cites to mild mental status findings 3 throughout the record. Tr. 34. An ALJ may reject an opinion because it is 4 inconsistent with the objective medical evidence, including other physicians’ 5 examinations. Batson, 359 F.3d at 1195. The ALJ relied on Dr. Madarang’s 6 observation that Plaintiff had “[n]o unusual anxiety or evidence of depression” at 7 the time of his February 27, 2013 evaluation. Tr. 34 (citing Tr. 540). The ALJ 8 also relied upon Dr. Madarang’s June 14, 2013 evaluation finding that Plaintiff 9 was “not anxious, and does not have suicidal ideation.” Tr. 34 (citing Tr. 594). 10 However, it appears the ALJ overlooked records from the same day showing that 11 Plaintiff had moderate depressive symptoms on the PHQ-9 Depression Scale. Tr. 12 591. The ALJ also relied upon Dr. Madarang’s normal observations on June 27, 13 2013, July 3, 2013, and September 13, 2013. Tr. 34 (citing Tr. 601, 608, 612). 14 However, at Plaintiff’s follow up with Shannon Dickens on June 27, 2013, 15 September 6, 2013, and September 27, 2013, he continued to have moderate and 16 severe scores on his PHQ-9 Depression Scale. Tr. 604, 609, 614. Plaintiff asserts 17 that the record supports Dr. Rosekrans’ opinion. ECF No. 22 at 17. The evidence 18 in the record is conflicting. The evidence cited by the ALJ supports her 19 determination, and the evidence cited by Plaintiff supports Dr. Rosekrans’ opinion. 20 If the evidence is susceptible to more than one rational interpretation, the court 21 may not substitute its judgment for that of the ALJ. Tackett, 180 F.3d at 1097. 22 Therefore, the Court will not disturb the ALJ’s determination that the medical 23 evidence in the file did not support Dr. Rosekrans’ opinion. 24 Plaintiff also challenges the ALJ’s finding that the opinion was inconsistent 25 with that of Dr. Winfrey, Dr. Toews, and the State agency medical consultants. 26 ECF No. 22 at 14. However, his challenge only addresses Dr. Rosekrans’ 27 opinion’s inconsistency with nonexamining providers. Here, Dr. Winfrey and the 28 State agency medical consultants are nonexamining providers. Plaintiff is correct ORDER GRANTING DEFENDANT’S MOTION . . . - 15 1 that the opinion of a nonexamining physician cannot by itself constitute substantial 2 evidence that justifies the rejection of the opinion of either an examining or 3 treating psychologist. ECF No. 22 at 14 citing Lester, 81 F.3d at 831. However, 4 Dr. Toews is an examining source who the ALJ relied upon when rejecting Dr. 5 Rosekrans’ opinion. See Tr. 34. The ALJ did not rely on nonexamining sources 6 alone. As such, the ALJ has provided a legally sufficient reasons to reject Dr. 7 Rosekrans’ opinion. 8 F. Jay M. Toews, Ed.D. 9 On February 27, 2014, Dr. Toews completed a consultative examination of 10 Plaintiff at the request of the Disability Determination Services (DDS). Tr. 633- 11 38. He diagnosed Plaintiff with a mood disorder and an anxiety disorder. Tr. 637. 12 He also found that Plaintiff had probable dependent traits. Id. In his summary, Dr. 13 Toews stated that Plaintiff “appears poorly motivated to consider employment or 14 employment training.” Id. He opined that Plaintiff functions in the low average to 15 average range of intelligence, had no mood or affective barriers to employability, 16 could remember multi-step instructions and detailed instructions, could have at 17 least superficial interactions with coworkers and supervisors, and may have 18 moderate difficulties interacting with the general public. Id. The ALJ gave this 19 opinion some weight, but gave controlling weight to the opinion of Dr. Winfrey. 20 Tr. 33. 21 Plaintiff challenges the weight the ALJ assigned to Dr. Toews’ opinion 22 based on his credentials. ECF No. 22 at 18-19. He argues that Dr. Toews is not 23 qualified to be a psychological consultant under 20 C.F.R. § 404.1616(d). Id. A 24 psychological consultant “is a member of a team that makes disability 25 determinations in a State agency (see § 404.1615), or who is a member of a team 26 that makes disability determinations for us when we make disability 27 determinations ourselves.” 20 C.F.R. § 404.1616(c). Disability determinations at 28 the initial and reconsideration levels are made by a State agency. See 20 C.F.R. §§ ORDER GRANTING DEFENDANT’S MOTION . . . - 16 1 404.930(a) (reconsideration denials can be appealed to an ALJ); 404.1503 (State 2 agencies make disability determinations for the Commissioner). Therefore, the 3 psychological consultants would have been Dan Donahue, Ph.D. and James Bailey, 4 Ph.D., who reviewed Plaintiff’s file at the initial and reconsideration levels, 5 respectively. Tr. 152, 163, 176, 188. 6 Dr. Toews completed a consultative examination of Plaintiff at the request 7 of the State agency. Tr. 633. “A consultative examination is a physical or mental 8 examination or test purchased for you at our request and expense from a treating 9 source or another medical source.” 20 C.F.R. §§ 404.1519, 416.919. Regulations 10 require that a consultative examiner be a “qualified medical source.” 20 C.F.R. §§ 11 404.1519g, 416.919g. Qualified is defined as licensed in the state at the time of the 12 exam. 20 C.F.R. §§ 404.1503a, 404.1519g, 416.903a, 416.919g. A medical 13 source is defined as “an individual who is licensed as a healthcare worker by a 14 State and working within the scope of practice permitted under State or Federal 15 law.” 20 C.F.R. §§ 404.1502(d), 416.902(d). 16 Plaintiff’s challenge of Dr. Toews’ opinion under 20 C.F.R. § 404.1616(d) 17 fails because Dr. Toews is not presented as a psychological consultant. Dr. Toews 18 is presented as a consultative examiner. Plaintiff did assert that “there [is] no 19 evidence that he possesses a doctorate degree in psychology or [is] listed in any 20 national register of health service providers in psychology.” ECF No. 22 at 18. As 21 a consultative examiner, Dr. Toews was required to be a “qualified medical 22 source.” However, Plaintiff failed to object to Dr. Toews’ evaluation at the ALJ 23 hearing. See Tr. 49 (Plaintiff presented no objections to the exhibits being entered 24 into the record). Additionally, Plaintiff did not raise the issue in any of his briefing 25 before the ALJ or before the Appeals Council. Tr. 260-64, 447-58. Therefore, 26 Plaintiff waived any challenge to Dr. Toews’ status as a consultative examiner. 27 See Meanel v. Apfel, 172 F.3d 1111, 1115 (9th Cir. 1999) (When a claimant is 28 represented by counsel, claimants must raise all issues and evidence at their ORDER GRANTING DEFENDANT’S MOTION . . . - 17 1 administrative hearings in order to preserve them on appeal.”). Therefore, the 2 Court will not disturb the weight the ALJ assigned to Dr. Toews’ opinion. 3 G. Nancy Lynn Winfrey, Ph.D. and Allan N. Levine, M.D. 4 Dr. Winfrey and Dr. Levine testified at Plaintiff’s hearing. Tr. 51-75. Each 5 provided a residual functional capacity opinion consistent with the ALJ’s residual 6 functional capacity determination. Id. The ALJ gave these opinions significant 7 weight because Dr. Winfrey and Dr. Levine had an awareness of all the medical 8 records, they had knowledge of the Social Security disability programs, they were 9 specialists in their fields, and their opinions were well supported. Tr. 32-33. 10 Plaintiff challenges the weight provided to these opinions asserting that the ALJ 11 used boilerplate language when assigning more weight to these opinions. ECF No. 12 22 at 19. There is no requirement that the ALJ provide “sufficient reasons” for 13 according weight to a medical professional, rather the Court reviews whether the 14 ALJ has provided legally sufficient reasons for rejecting evidence. Garrison, 759 15 F.3d at 1020. Plaintiff failed to show that the ALJ erred in weighing the opinions 16 of Dr. Shanks, Dr. Simpson, Dr. Dalley, and Dr. Rosekrans. See supra. The Court 17 will not disturb the weight provided to Dr. Winfrey’s and Dr. Levine’s opinions. 18 H. Helen Franklin 19 On January 20, 2016, Ms. Franklin, a Certified Peer Counselor, wrote a 20 letter addressing her friendship with Plaintiff and what she had witnessed regarding 21 his impairments and symptoms. Tr. 445. The ALJ rejected the statements made in 22 the letter because Ms. Franklin did not have a treating relationship with Plaintiff 23 and her statements were unsupported by the objective medical evidence. Tr. 35. 24 Ms. Franklin is a Certified Peer Counselor, which is not considered an 25 acceptable medical source. See 20 C.F.R. §§ 404.1502(a), 416.902(a). Therefore, 26 she is considered an “other source.” An ALJ is required to consider evidence from 27 “other sources,” 20 C.F.R. §§ 404.1527(f), 416.927(f), “as to how an impairment 28 affects a claimant’s ability to work,” Sprague, 812 F.2d at 1232. An ALJ must ORDER GRANTING DEFENDANT’S MOTION . . . - 18 1 give “germane” reasons to discount evidence from “other sources.” Dodrill v. 2 Shalala, 12 F.3d 915, 919 (9th Cir. 1993). Plaintiff challenges the ALJ’s rejection of Ms. Franklin’s statements by 3 4 asserting that “[t]he ALJ provided no reason other than she did not believe 5 [Plaintiff].” ECF No. 22 at 20. This assertion is inaccurate. The ALJ provided 6 two reasons specific to Ms. Franklin’s statements: (1) that Ms. Franklin did not 7 have a treating relationship with Plaintiff and (2) that the opinion was unsupported 8 by the objective medical evidence. Tr. 35. Plaintiff failed to challenge these 9 reasons. ECF No. 22 at 20. As such, the Court is not required to address them. 10 See Carmickle, 533 F.3d at 1161 n.2. 11 J. Harmless Errors 12 The ALJ provided at least one reason that meets the required standard for 13 rejecting each opinion from Dr. Shanks, Dr. Dalley, and Dr. Rosekrans. Therefore, 14 any error resulting from these legally insufficient reasons would be harmless. See 15 Tommasetti, 533 F.3d at 1038 (an error is harmless when “it is clear from the 16 record that the . . . error was inconsequential to the ultimate nondisability 17 determination”). The ALJ’s treatment of the opinion evidence did not amount to 18 harmful error. 19 2. 20 21 22 Plaintiff’s Symptom Statements Plaintiff contests the ALJ’s determination that Plaintiff’s symptom statements were less than fully credible. ECF No. 22 at 3-12. It is generally the province of the ALJ to make determinations regarding the 23 credibility of claimant’s statements, Andrews, 53 F.3d at 1039, but the ALJ’s 24 findings must be supported by specific cogent reasons, Rashad v. Sullivan, 903 25 F.2d 1229, 1231 (9th Cir. 1990). Absent affirmative evidence of malingering, the 26 ALJ’s reasons for rejecting the claimant’s testimony must be “specific, clear and 27 convincing.” Smolen v. Chater, 80 F.3d 1273, 1281 (9th Cir. 1996); Lester, 81 28 F.3d at 834. “General findings are insufficient: rather the ALJ must identify what ORDER GRANTING DEFENDANT’S MOTION . . . - 19 1 testimony is not credible and what evidence undermines the claimant’s 2 complaints.” Lester, 81 F.3d at 834. 3 The ALJ found Plaintiff’s statements to be less than fully credible 4 concerning the alleged intensity, persistence, and limiting effects of his symptoms. 5 Tr. 29. The ALJ reasoned that Plaintiff’s statements were less than fully credible 6 because (1) they were not supported by the medical evidence, (2) they were 7 inconsistent with his reported activities, (3) they were inconsistent with his 8 statements, (4) there was evidence of motivation for secondary gain, and (5) they 9 were inconsistent with his noncompliance with treatment. 10 1. Medical Evidence 11 The ALJ’s first reason for finding Plaintiff’s symptom statements less then 12 fully credible, that his reported symptoms were not supported by medical evidence, 13 meets the specific, clear, and convincing standard. 14 Although it cannot serve as the sole reason for rejecting a claimant’s 15 credibility, objective medical evidence is a “relevant factor in determining the 16 severity of the claimant’s pain and its disabling effects.” Rollins v. Massanari, 261 17 F.3d 853, 857 (9th Cir. 2001). 18 The ALJ provided citations to the record supporting her determination that 19 Plaintiff’s reported symptoms from physical and mental impairments were not 20 supported by the medical evidence. Tr. 29-30 (Finding that a totality of the record 21 does not support Plaintiff’s statements regarding physical symptoms, including 22 imaging reports and physical examinations); 30-31 (summarizing evidence that his 23 mental health impairments improved with medication and evaluations were within 24 normal limits). Plaintiff argues that the ALJ ignored evidence supporting the 25 severity of his reported symptoms. ECF No. 22 at 4-10. He cites to medical 26 records that support the severity of symptoms he alleges, and asserts that the 27 evidence the ALJ cited were are merely “scattered episodes where [Plaintiff] had 28 good days.” Id. Here, there is evidence to support the ALJ’s determination that ORDER GRANTING DEFENDANT’S MOTION . . . - 20 1 Plaintiff’s statements regarding the intensity, persistence, and limiting effects of 2 his symptoms were inconsistent with the medical evidence, and there is medical 3 evidence to support Plaintiff’s statements regarding the intensity, persistence, and 4 limiting effects of his symptoms. The ALJ’s interpretation of the evidence is a 5 reasonable one, and it is not the Court’s role to second-guess it. See Tackett, 180 6 F.3d at 1097; Sprague, 812 F.2d at 1230. 7 2. 8 The ALJ’s second reason for finding Plaintiff’s symptom statements less 9 than fully credible, that Plaintiff’s reported activities were inconsistent with his 10 11 Reported Activities alleged limitations, meets the specific, clear, and convincing standard. A claimant’s daily activities may support an adverse credibility finding if (1) 12 the claimant’s activities contradict his other testimony, or (2) “the claimant is able 13 to spend a substantial part of his day engaged in pursuits involving performance of 14 physical functions that are transferable to a work setting.” Orn, 495 F.3d at 639 15 (citing Fair v. Bowen, 885 F.2d 597, 603 (9th Cir. 1989)). “The ALJ must make 16 ‘specific findings relating to [the daily] activities’ and their transferability to 17 conclude that a claimant’s daily activities warrant an adverse credibility 18 determination.” Id. (quoting Burch v. Barnhart, 400 F.3d 676, 681 (9th Cir. 19 2005)). A claimant need not be “utterly incapacitated” to be eligible for benefits. 20 Fair, 885 F.2d at 603. 21 The ALJ found that Plaintiff “described daily activities that are not limited 22 to the extent one would expect, given his complaints of disabling symptoms and 23 limitations.” Tr. 32. More specifically, the ALJ found that Plaintiff’s “odd jobs” 24 and being paid “under the table” demonstrated he was more capable than alleged. 25 Id. She found Plaintiff’s reported severity of concentration and cognitive issues 26 was inconsistent with his reported ability to play card games on a daily basis, play 27 video games, watch movies, and tinker with fixing computers. Id. She found 28 Plaintiff’s reported severity of back pain was inconsistent with his reported walks, ORDER GRANTING DEFENDANT’S MOTION . . . - 21 1 exercise, bike riding, and working at the Union Gospel Mission unloading 2 boxes/accepting donations. Id. 3 Plaintiff argues that the ALJ failed to show transferability to work activity 4 under Orn. ECF No. 22 at 11. The Court in Orn provided two ways to show that a 5 claimant’s activities undermine his symptom statements: (1) showing that a 6 claimant’s activities contradict his other testimony; or (2) showing that a 7 claimant’s activities are transferable to a work setting. 495 F.3d at 639. Here the 8 ALJ specifically found that Plaintiff’s activities were inconsistent with his other 9 testimony. Tr. 32 (He “described daily activities that are not limited to the extent 10 one would expect, given his complaints of disabling symptoms and limitations.”). 11 Therefore, she was not required to make any findings as to the transferability to 12 work activity. 13 Here, the ALJ provided citations to specific activities the Plaintiff reported 14 performing and found them inconsistent with portions of Plaintiff’s testimony. Tr. 15 32. Therefore, this reason meets the specific, clear and convincing standard. 16 3. Inconsistent Statements 17 The ALJ’s third reason for finding Plaintiff’s symptoms statements less than 18 fully credible was that Plaintiff made inconsistent statements to his providers. Tr. 19 30, 32. 20 The ALJ may consider “ordinary techniques of credibility evaluation, such 21 as the claimant’s reputation for lying, prior inconsistent statements . . . and other 22 testimony by the claimant that appears less than candid.” Smolen, 80 F.3d at 1284. 23 Here, the ALJ found that Plaintiff’s reports to DSHS examiners regarding 24 the severity of his symptoms were inconsistent with his reports to his treating 25 providers. Tr. 30. Specifically, the ALJ provided repeated examples of Plaintiff 26 reporting mild mental health symptoms, but she failed to state how these 27 statements were inconsistent with Plaintiffs’ presentations to DSHS examiners. Id. 28 Therefore, these statements do not have the specificity required to meet the ORDER GRANTING DEFENDANT’S MOTION . . . - 22 1 2 specific, clear and convincing standard. Later in the decision, the ALJ found that Plaintiff’s testimony that he had not 3 worked at all since 2012, Tr. 77, was inconsistent with statements that he was 4 working at the back dock of the Union Gospel Mission accepting donations, Tr. 5 674, he was working the graveyard shift, Tr. 676, and that he was doing odd jobs 6 for a friend, Tr. 831. Tr. 32. This finding of inconsistent statements is specific 7 enough to meet the specific, clear and convincing standard. 8 4. 9 The ALJ’s fourth reason for finding Plaintiff’s symptoms statements 10 unreliable, that Plaintiff was motived by secondary gain, meets the specific, clear 11 and convincing standard. 12 Secondary Gain The Ninth Circuit has held that a claimant’s motivation and the issue of 13 secondary gain may be considered by an ALJ when rejecting symptom testimony. 14 See Tidwell v. Apfel, 161 F.3d 599, 602 (9th Cir. 1998). In Matney o/b/o Matney v. 15 Sullivan, the Ninth Circuit found that “set[ting]out specific findings which were 16 supported by the record, i.e. . . . [the claimant]’s testimony regarding his daily 17 activities, his demeanor and appearance at the hearing, as well as his well 18 documented motivation to obtain social security benefits,” was sufficient to 19 support a rejection of Plaintiff’s symptom statements. 981 F.2d 1016, 1020 (9th 20 Cir. 1992). 21 Here, the ALJ cited to four records which referenced motivation of 22 secondary gain, Tr. 31-32: (1) On March 1, 2014, Dr. Toews found that Plaintiff 23 “appears poorly motivated to consider employment or employment training.” Tr. 24 637; (2) On September 25, 2014, Plaintiff initiated services at Frontier Behavioral 25 Health (FBH) “because his attorney told him he needed to be seen at FBH in order 26 to get SSI.” Tr. 768; (3) On October 22, 2014 Plaintiff reported to his provider that 27 he “doesn’t want to do anything (work) that my hurt my Social Security case.” Tr. 28 766; and (4) On December 9, 2014, Plaintiff admitted to his provider at he “is ORDER GRANTING DEFENDANT’S MOTION . . . - 23 1 avoiding doing volunteer work as he feels it may effect his SSI outcome.” Tr. 758. 2 The ALJ provided repeated examples of Plaintiff being motivated by reasons 3 not related to improvement in his functional abilities. Therefore, this reason meets 4 the specific, clear and convincing standard. 5 5. Noncompliance with Treatment 6 The ALJ’s fifth reason for finding Plaintiff’s symptom statements less than 7 fully credible, that his alleged severity of symptoms was inconsistent with his 8 noncompliance with treatment, meets the specific, clear and convincing standard. 9 Noncompliance with medical care or unexplained or inadequately explained 10 reasons for failing to seek medical treatment casts doubt on a claimant’s subjective 11 complaints. 20 C.F.R. §§ 404.1530, 416.930; Fair, 885 F.2d at 603; Macri v. 12 Chater, 93 F.3d 540, 544 (9th Cir. 1996) (finding the ALJ’s decision to reject the 13 claimant’s subjective pain testimony was supported by the fact that claimant was 14 not taking pain medication). 15 Here, the ALJ found that Plaintiff refused to attend vocational rehabilitation 16 training and group therapy. Tr. 32. He canceled or failed to show up for five of 17 his physical therapy appointments. Id. Plaintiff alleges that he was not 18 noncompliant. ECF No. 22 at 10. He asserts that he experienced a lapse in 19 treatment between 2012 and 2013 due to financial constraints and that he took a 20 break in mental health counseling in March 2015 to focus on his physical issues. 21 Id. at 10-11. However, the ALJ’s findings do not pertain to these periods and are 22 not limited to his mental health treatment. The ALJ first referenced an October 23 2014 treatment note in which Plaintiff missed group therapy, referred to as “class,” 24 because he fell asleep and that he planned on missing another class because it was 25 his birthday and he was going to have lunch with his brother. Tr. 766. The 26 counselor stated that Plaintiff was “reluctant to attend classes since he does not 27 believe they will be helpful to him.” Id. She also suggested he attend vocational 28 rehabilitation to see if any employment would be available, and Plaintiff “stated ORDER GRANTING DEFENDANT’S MOTION . . . - 24 1 that he tried this ‘a long time ago’ but that he ‘doesn’t want to do anything (work) 2 that would hurt my Social Security case.’” Id. The ALJ’s second citation to the 3 record addresses Plaintiff’s noncompliance with physical therapy in May and June 4 of 2013. Tr. 32. An August 2013 Discharge Summary states the following: 5 Jason attended 6 appointments and cancelled of [sic.] no showed for 5 appointments. He did work hard during the appointments he attended. He cancelled or no showed for his last 3 appointments. At the time of his last scheduled appointment on 7/16/13, he stated he would call us to schedule further appointments. We have not heard from him, he will be considered discharged at this time. 6 7 8 9 10 Tr. 587. Plaintiff’s explanation for his lapse in treatment from 2012 to 2013 and 11 again in 2015 fails to account for the ALJ’s findings that he failed to follow the 12 recommendations of his counselor in October of 2014 and his failure to complete 13 physical therapy in May and June of 2013. The evidence the ALJ cited supports 14 her conclusion that Plaintiff was noncompliant with treatment. Therefore, this 15 reason meets the specific, clear and convincing standard. 16 In conclusion, the ALJ provided enough specific, clear and convincing 17 reasons to support her determination that Plaintiff’s symptoms statements were less 18 than fully credible. See Carmickle, 533 F.3d at 1163 (upholding an adverse 19 credibility finding where the ALJ provided four reasons to discredit the claimant, 20 two of which were invalid); Batson, 359 F.3d at 1197 (affirming a credibility 21 finding where one of several reasons was unsupported by the record); Tommasetti, 22 533 F.3d at 1038 (an error is harmless when “it is clear from the record that the . . . 23 error was inconsequential to the ultimate nondisability determination”). 24 3. 25 Step Five Plaintiff asserts that the ALJ’s finding that he could perform light work was 26 contrary to the evidence, including the opinions of the treating and examining 27 sources. ECF No. 22 at 20-21. 28 This step five argument is premised on Plaintiff raising successful ORDER GRANTING DEFENDANT’S MOTION . . . - 25 1 challenges to the ALJ’s treatment of the opinion evidence in the record. ECF No. 2 22 at 20-21. The Court has declined to disturb the weight the ALJ assigned the 3 opinion evidence. See supra. Therefore, Plaintiff’s step five challenge fails. 4 CONCLUSION 5 Having reviewed the record and the ALJ’s findings, the Court finds the 6 ALJ’s decision is supported by substantial evidence and free of harmful legal error. 7 Accordingly, IT IS ORDERED: 8 9 1. Defendant’s Motion for Summary Judgment, ECF No. 23, is GRANTED. 10 2. 11 The District Court Executive is directed to file this Order and provide a copy 12 to counsel for Plaintiff and Defendant. Judgment shall be entered for Defendant 13 and the file shall be CLOSED. 14 Plaintiff’s Motion for Summary Judgment, ECF No. 22, is DENIED. DATED June 15, 2018. 15 16 17 _____________________________________ JOHN T. RODGERS UNITED STATES MAGISTRATE JUDGE 18 19 20 21 22 23 24 25 26 27 28 ORDER GRANTING DEFENDANT’S MOTION . . . - 26

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