Winkel v. Commissioner of Social Security, No. 2:2017cv00247 - Document 16 (E.D. Wash. 2018)

Court Description: ORDER DENYING PLAINTIFF'S MOTION FOR SUMMARY JUIDGMENT 12 AND GRANTING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT 13 . Signed by Judge Rosanna Malouf Peterson. (VR, Courtroom Deputy)

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Winkel v. Commissioner of Social Security Doc. 16 1 FI LED I N THE U.S. DI STRI CT COURT EASTERN DI STRI CT OF WASHI NGTON 2 Oct 12, 2018 SEAN F. MCAVOY, CLERK 3 4 5 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF WASHINGTON 6 7 JAMES W., NO: 2:17-CV-247-FVS 8 Plaintiff, v. 9 10 COMMISSIONER OF SOCIAL SECURITY, ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT 11 Defendant. 12 BEFORE THE COURT are the parties’ cross-motions for summary 13 14 judgment. ECF Nos. 12, 13. This matter was submitted for consideration without 15 oral argument. Plaintiff is represented by attorney Dana C. Madsen. Defendant is 16 represented by Special Assistant United States Attorney Jeffrey E. Staples. The 17 Court, having reviewed the administrative record and the parties’ briefing, is fully 18 informed. For the reasons discussed below, Plaintiff’s Motion, ECF No. 12, is 19 denied and Defendant’s Motion, ECF No. 13, is granted. 20 / / / 21 ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~1 Dockets.Justia.com 1 JURISDICTION 2 Plaintiff James W. 1 (“Plaintiff”) filed for supplemental security income 3 (“SSI”) on April 28, 2014, alleging an onset date of September 1, 2007. Tr. 245-48, 4 274. Benefits were denied initially, Tr. 186-89, and upon reconsideration, Tr. 194- 5 96. Plaintiff appeared at a hearing before an administrative law judge (ALJ) on 6 March 17, 2016. Tr. 41-69. On March 30, 2016, the ALJ denied Plaintiff’s claim, 7 Tr. 21-33, and on May 10, 2017, the Appeals Council denied review. Tr. 1-6. The 8 matter is now before this Court pursuant to 42 U.S.C. § 1383(c)(3). 9 BACKGROUND 10 The facts of the case are set forth in the administrative hearing and 11 transcripts, the ALJ’s decision, and the briefs of Plaintiff and the Commissioner, 12 and are therefore only summarized here. 13 Plaintiff was born in June 1962, and was 54 years old at the time of the 14 hearing. Tr. 47. He went to school through the tenth grade and later earned a 15 GED. Tr. 47, 51. He also attended some college but did not graduate. Tr. 51. He 16 testified that he has worked at “a lot of different jobs” over the years. Tr. 48. He 17 worked at a hotel, did landscaping, built pallets, served as a caregiver, and his 18 19 1 20 name and last initial, and, subsequently, Plaintiff’s first name only, throughout this 21 decision. In the interest of protecting Plaintiff’s privacy, the Court will use Plaintiff’s first ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~2 1 longest job was at a lumber mill. Tr. 48-50. His last job was working for 2 Goodwill in 2009. Tr. 49. 3 In 2004, Plaintiff had neck surgery. Tr. 51. He testified that his pain has 4 gotten worse. Tr. 51. He experiences severe pain in his neck, shoulders, and down 5 his arms, and he has limited strength in his arms, particularly his right arm. Tr. 6 261. He gets migraines several times a week and they last for days. Tr. 54-55. He 7 has had carpal tunnel surgery in the past which helped for a while, but now his 8 wrist twinges and he has sharp pain in his right hand. Tr. 52-53. 9 In February 2015, Plaintiff was assaulted. Tr. 57. He had a broken rib 10 which still causes problems. Tr. 57. He had counseling for stress, anxiety, and 11 depression. Tr. 58. He also has a gastric problem which causes pain. Tr. 59. 12 13 STANDARD OF REVIEW A district court’s review of a final decision of the Commissioner of Social 14 Security is governed by 42 U.S.C. § 405(g). The scope of review under § 405(g) is 15 limited; the Commissioner’s decision will be disturbed “only if it is not supported 16 by substantial evidence or is based on legal error.” Hill v. Astrue, 698 F.3d 1153, 17 1158 (9th Cir. 2012). “Substantial evidence” means “relevant evidence that a 18 reasonable mind might accept as adequate to support a conclusion.” Id. at 1159 19 (quotation and citation omitted). Stated differently, substantial evidence equates to 20 “more than a mere scintilla[,] but less than a preponderance.” Id. (quotation and 21 citation omitted). In determining whether the standard has been satisfied, a ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~3 1 reviewing court must consider the entire record as a whole rather than searching 2 for supporting evidence in isolation. Id. 3 In reviewing a denial of benefits, a district court may not substitute its 4 judgment for that of the Commissioner. Edlund v. Massanari, 253 F.3d 1152, 5 1156 (9th Cir. 2001). If the evidence in the record “is susceptible to more than one 6 rational interpretation, [the court] must uphold the ALJ’s findings if they are 7 supported by inferences reasonably drawn from the record.” Molina v. Astrue, 674 8 F.3d 1104, 1111 (9th Cir. 2012). Further, a district court “may not reverse an 9 ALJ’s decision on account of an error that is harmless.” Id. An error is harmless 10 “where it is inconsequential to the [ALJ’s] ultimate nondisability determination.” 11 Id. at 1115 (quotation and citation omitted). The party appealing the ALJ’s 12 decision generally bears the burden of establishing that it was harmed. Shinseki v. 13 Sanders, 556 U.S. 396, 409-10 (2009). 14 15 FIVE-STEP EVALUATION PROCESS A claimant must satisfy two conditions to be considered “disabled” within 16 the meaning of the Social Security Act. First, the claimant must be “unable to 17 engage in any substantial gainful activity by reason of any medically determinable 18 physical or mental impairment which can be expected to result in death or which 19 has lasted or can be expected to last for a continuous period of not less than twelve 20 months.” 42 U.S.C. § 1382c(a)(3)(A). Second, the claimant’s impairment must be 21 “of such severity that he is not only unable to do his previous work[,] but cannot, ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~4 1 considering his age, education, and work experience, engage in any other kind of 2 substantial gainful work which exists in the national economy.” 42 U.S.C. § 3 1382c(a)(3)(B). 4 The Commissioner has established a five-step sequential analysis to 5 determine whether a claimant satisfies the above criteria. See 20 C.F.R. § 6 416.920(a)(4)(i)-(v). At step one, the Commissioner considers the claimant’s work 7 activity. 20 C.F.R. § 416.920(a)(4)(i). If the claimant is engaged in “substantial 8 gainful activity,” the Commissioner must find that the claimant is not disabled. 20 9 C.F.R. § 416.920(b). 10 If the claimant is not engaged in substantial gainful activity, the analysis 11 proceeds to step two. At this step, the Commissioner considers the severity of the 12 claimant’s impairment. 20 C.F.R. § 416.920(a)(4)(ii). If the claimant suffers from 13 “any impairment or combination of impairments which significantly limits [his or 14 her] physical or mental ability to do basic work activities,” the analysis proceeds to 15 step three. 20 C.F.R. § 416.920(c). If the claimant’s impairment does not satisfy 16 this severity threshold, however, the Commissioner must find that the claimant is 17 not disabled. 20 C.F.R. § 416.920(c). 18 At step three, the Commissioner compares the claimant’s impairment to 19 severe impairments recognized by the Commissioner to be so severe as to preclude 20 a person from engaging in substantial gainful activity. 20 C.F.R. § 21 416.920(a)(4)(iii). If the impairment is as severe, or more severe than one of the ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~5 1 enumerated impairments, the Commissioner must find the claimant disabled and 2 award benefits. 20 C.F.R. § 416.920(d). 3 If the severity of the claimant’s impairment does not meet or exceed the 4 severity of the enumerated impairments, the Commissioner must pause to assess 5 the claimant’s “residual functional capacity.” Residual functional capacity (RFC), 6 defined generally as the claimant’s ability to perform physical and mental work 7 activities on a sustained basis despite his or her limitations, 20 C.F.R. § 8 416.945(a)(1), is relevant to both the fourth and fifth steps of the analysis. 9 At step four, the Commissioner considers whether, in view of the claimant’s 10 RFC, the claimant is capable of performing work that he or she has performed in 11 the past (past relevant work). 20 C.F.R. § 416.920(a)(4)(iv). If the claimant is 12 capable of performing past relevant work, the Commissioner must find that the 13 claimant is not disabled. 20 C.F.R. § 416.920(f). If the claimant is incapable of 14 performing such work, the analysis proceeds to step five. 15 At step five, the Commissioner considers whether, in view of the claimant’s 16 RFC, the claimant is capable of performing other work in the national economy. 17 20 C.F.R. § 416.920(a)(4)(v). In making this determination, the Commissioner 18 must also consider vocational factors such as the claimant’s age, education and 19 past work experience. 20 C.F.R. § 416.920(a)(4)(v). If the claimant is capable of 20 adjusting to other work, the Commissioner must find that the claimant is not 21 disabled. 20 C.F.R. § 416.920(g)(1). If the claimant is not capable of adjusting to ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~6 1 other work, analysis concludes with a finding that the claimant is disabled and is 2 therefore entitled to benefits. 20 C.F.R. § 416.920(g)(1). 3 The claimant bears the burden of proof at steps one through four above. 4 Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999). If the analysis proceeds to 5 step five, the burden shifts to the Commissioner to establish that (1) the claimant is 6 capable of performing other work; and (2) such work “exists in significant 7 numbers in the national economy.” 20 C.F.R. § 416.960(c)(2); Beltran v. Astrue, 8 700 F.3d 386, 389 (9th Cir. 2012). 9 ALJ’S FINDINGS 10 At step one, the ALJ found Plaintiff has not engaged in substantial gainful 11 activity since April 28, 2104, the application date. Tr. 24. At step two, the ALJ 12 found Plaintiff has the following severe impairments: degenerative disk disease of 13 the cervical spine status post fusion; cognitive disorder; anxiety disorder; 14 somatoform disorder; and personality disorder. Tr. 24. At step three, the ALJ 15 found that Plaintiff does not have an impairment or combination of impairments 16 that meets or medically equals the severity of a listed impairment. Tr. 24. The 17 ALJ then found Plaintiff has the residual functional capacity to perform light work 18 with the following additional limitations: 19 20 21 he has the ability to lift and/or carry 10 pounds occasionally (1/3 of the work day) or 20 frequently (2/3 of the work day); unlimited ability to sit; unlimited ability to stand and/or walk; unlimited ability to push or pull (other than as stated for lift/carry); bilateral overhead reaching limited to frequent; unlimited ability to balance, climb ramps or stairs; frequently stoop (including bending at the waist), crouch (including ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~7 1 bending at the knees) or crawl; but no ladders, ropes or scaffolds; unlimited visual and communicative abilities; unlimited ability to be exposed to wetness, humidity, noise, fumes, odors, dust, gases, and poor ventilation; but should avoid concentrated exposure to extreme cold, extreme heat, vibration, or hazards, such as heights; and should avoid jobs that require constant turning of the neck either left or right. He has the ability to perform simple work-related tasks and some more detailed tasks; remember locations and work-like procedures; remember short and simple instructions; sustain an ordinary routine without special supervision; maintain attendance within a schedule and be punctual within customary tolerances; complete a normal work-day and work-week without interruptions from psychologically based symptoms; would work best with superficial public contact; work best in proximity to, but not close cooperation with co-workers and supervisors; and has the ability to use public transportation, get rides from others, or walk; and would work best in an environment with practical hands on tasks as opposed to use of academic skills. 2 3 4 5 6 7 8 9 10 Tr. 26. 11 At step four, the ALJ found Plaintiff is unable to perform any past relevant 12 work. Tr. 31. After considering the testimony of a vocational expert and 13 Plaintiff’s age, education, work experience, and residual functional capacity, the 14 ALJ found there are other jobs that exist in significant numbers in the national 15 economy that Plaintiff can perform, such as production assembler, electronics 16 worker, or housekeeping cleaner. Tr. 32. Therefore, at step five, the ALJ 17 concluded that Plaintiff has not been under a disability, as defined in the Social 18 Security Act, since April 28, 2014, the date the application was filed. Tr. 33. 19 / / / 20 / / / 21 / / / ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~8 1 ISSUES 2 Plaintiff seeks judicial review of the Commissioner’s final decision denying 3 supplemental security income benefits under Title XVI of the Social Security Act. 4 ECF No. 12. Plaintiff raises the following issues for review: 5 1. 6 and 7 2. 8 evidence. 9 Whether the ALJ improperly discredited Plaintiff’s symptom claims; Whether the ALJ failed to properly consider the medical opinion ECF No. 12 at 9. 10 11 DISCUSSION A. Symptom Claims 12 Plaintiff contends the ALJ improperly rejected his symptom claims. ECF 13 No. 12 at 10-13. An ALJ engages in a two-step analysis to determine whether a 14 claimant’s testimony regarding subjective pain or symptoms is credible. “First, the 15 ALJ must determine whether there is objective medical evidence of an underlying 16 impairment which could reasonably be expected to produce the pain or other 17 symptoms alleged.” Molina, 674 F.3d at 1112 (internal quotation marks omitted). 18 “The claimant is not required to show that her impairment could reasonably be 19 expected to cause the severity of the symptom she has alleged; she need only show 20 that it could reasonably have caused some degree of the symptom.” Vasquez v. 21 Astrue, 572 F.3d 586, 591 (9th Cir. 2009) (internal quotation marks omitted). ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~9 1 Second, “[i]f the claimant meets the first test and there is no evidence of 2 malingering, the ALJ can only reject the claimant’s testimony about the severity of 3 the symptoms if [the ALJ] gives ‘specific, clear and convincing reasons’ for the 4 rejection.” Ghanim v. Colvin, 763 F.3d 1154, 1163 (9th Cir. 2014) (internal 5 citations and quotations omitted). “General findings are insufficient; rather, the 6 ALJ must identify what testimony is not credible and what evidence undermines 7 the claimant’s complaints.” Id. (quoting Lester v. Chater, 81 F.3d 821, 834 (9th 8 Cir. 1995); see also Thomas v. Barnhart, 278 F.3d 947, 958 (9th Cir. 2002) (“[T]he 9 ALJ must make a credibility determination with findings sufficiently specific to 10 permit the court to conclude that the ALJ did not arbitrarily discredit claimant’s 11 testimony.”). “The clear and convincing [evidence] standard is the most 12 demanding required in Social Security cases.” Garrison v. Colvin, 759 F.3d 995, 13 1015 (9th Cir. 2014) (quoting Moore v. Comm’r of Soc. Sec. Admin., 278 F.3d 920, 14 924 (9th Cir. 2002)). 15 In assessing a claimant’s symptom complaints, the ALJ may consider, inter 16 alia, (1) the claimant’s reputation for truthfulness; (2) inconsistencies in the 17 claimant’s testimony or between his testimony and his conduct; (3) the claimant’s 18 daily living activities; (4) the claimant’s work record; and (5) testimony from 19 physicians or third parties concerning the nature, severity, and effect of the 20 claimant’s condition. Thomas, 278 F.3d at 958-59. 21 ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~10 1 Here, the ALJ found Plaintiff’s medically determinable impairments could 2 reasonably be expected to produce the symptoms alleged, but Plaintiff’s statements 3 concerning the intensity, persistence, and limiting effects of these symptoms are 4 not entirely credible. Tr. 27. 5 First, the ALJ found Plaintiff’s activities do not indicate a complete inability 6 to work. Tr. 27. It is reasonable for an ALJ to consider a claimant’s activities 7 which undermine claims of totally disabling pain in assessing a claimant’s 8 symptom complaints. See Rollins v. Massanari, 261 F.3d 853, 857 (9th Cir. 2001). 9 However, it is well-established that a claimant need not “vegetate in a dark room” 10 in order to be deemed eligible for benefits. Cooper v. Bowen, 815 F.2d 557, 561 11 (9th Cir. 1987). Notwithstanding, if a claimant is able to spend a substantial part 12 of the day engaged in pursuits involving the performance of physical functions that 13 are transferable to a work setting, a specific finding as to this fact may be sufficient 14 to discredit an allegation of disabling excess pain. Fair v. Bowen, 885 F.2d 597, 15 603 (9th Cir. 1989). Furthermore, "[e]ven where [Plaintiff’s daily] activities 16 suggest some difficulty functioning, they may be grounds for discrediting the 17 claimant’s testimony to the extent that they contradict claims of a totally 18 debilitating impairment.” Molina, 674 F.3d at 1113. 19 The ALJ noted Plaintiff lives alone and performs all his own activities of 20 daily living, as well as odd jobs such as shoveling snow, painting, and yard work. 21 Tr. 27, 381, 392, 416-17, 467. Plaintiff reported he helps take care of his mother, ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~11 1 does her yard work, and packed her belongings to move. Tr. 27, 415, 417, 441. 2 The ALJ observed that Plaintiff does quite a bit of walking, rides a bike, and 3 walked 20 minutes to an appointment. Tr. 27, 392, 393, 403, 484. The ALJ 4 reasonably found these activities undermine Plaintiff’s allegations regarding 5 limited physical exertion. Tr. 27. Similarly, the ALJ noted Plaintiff alleges 6 limitations in his hands, but treatment notes in April and May 2014 indicated 7 Plaintiff denied numbness, tingling, weakness, or pain into his arms and hands. Tr. 8 27, 381, 383, 386. 9 Plaintiff suggests that detail about the “nature and extent” of the activities 10 mentioned was not adequately explored by the ALJ. ECF No. 12 at 11. However, 11 it was reasonable for the ALJ to conclude that painting, yard work, and packing a 12 home for a move involve physical exertion inconsistent with Plaintiff’s allegations 13 of a disabling cervical condition. This is a clear and convincing reason supported 14 by substantial evidence. 15 Second, the ALJ found the frequency of mental health treatment received is 16 not consistent with the mental health problems alleged. Tr. 28. Where the 17 evidence suggests lack of mental health treatment is part of a claimant’s mental 18 health condition, it may be inappropriate to consider a claimant’s lack of mental 19 health treatment as evidence of a lack of credibility. See Nguyen v. Chater, 100 20 F.3d 1462, 1465 (9th Cir. 1996). However, when there is no evidence suggesting a 21 failure to seek treatment is attributable to a mental impairment rather than personal ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~12 1 preference, it is reasonable for the ALJ to conclude that the level or frequency of 2 treatment is inconsistent with the level of complaints. Molina, 674 F.3d at 1113- 3 14. 4 The ALJ noted Plaintiff received very little mental health treatment, which 5 included counseling at Frontier Behavioral Health from January to May and 6 August to November of 2015. Tr. 28, 432-65, 493-98. A counseling note from 7 October 2015 indicates Plaintiff “talked about his health problems the entire 8 session which is what he does.” Tr. 28, 496. He was discharged “as he does not 9 need mental health,” and Plaintiff agreed. Tr. 28, 496. Plaintiff contends he “had 10 as much counseling as his insurance would cover,” citing his testimony that 11 counseling ended because it was a six-month program, and that he had exhausted 12 his insurance benefit. ECF No. 12 at 12 (citing Tr. 57-58). However, the record 13 supports the conclusion that counseling ended because Plaintiff had no mental 14 health problems to work on. The ALJ reasoned that if Plaintiff’s mental health 15 issues did not motivate him to seek more treatment, or if he did not actually need 16 treatment, Plaintiff’s claims about his symptoms are undermined. Tr. 28. This is a 17 reasonable conclusion based on substantial evidence in the record, and this is a 18 clear and convincing reason. 19 Third, the ALJ found “the objective medical evidence does not support the 20 level of impairment claimed.” Tr. 27. An ALJ may not discredit a claimant’s pain 21 testimony and deny benefits solely because the degree of pain alleged is not ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~13 1 supported by objective medical evidence. Rollins, 261 F.3d at 857; Bunnell v. 2 Sullivan, 947 F.2d 341, 346-47 (9th Cir. 1991); Fair, 885 F.2d at 601. However, 3 the medical evidence is a relevant factor in determining the severity of a claimant’s 4 pain and its disabling effects. Rollins, 261 F.3d at 857; 20 C.F.R. § 416.929(c)(2) 5 (2011).2 Minimal objective evidence is a factor which may be relied upon in 6 discrediting a claimant’s testimony, although it may not be the only factor. See 7 Burch v. Barnhart, 400 F.3d 676, 680 (9th Cir. 2005). Plaintiff contends the ALJ’s 8 discussion of this factor is impermissibly vague. ECF No. 12 at 10. Defendant 9 does not address the reason, and the Court concludes that while the objective 10 medical evidence is a permissible consideration, the ALJ’s general discussion of 11 the objective evidence is insufficient to constitute a clear and convincing reason. 12 General findings are an insufficient basis for a credibility finding. Holohan v. 13 Massanari, 246 F.3d 1195, 1208 (9th Cir. 2001). Notwithstanding, the ALJ gave 14 other legally sufficient reasons for finding Plaintiff’s symptom complaints less 15 16 2 17 E.g., Revisions to Rules Regarding the Evaluation of Medical Evidence, 18 Fed. 18 Reg. 5882 (January 18, 2017) (revising 20 C.F.R. § 416.929). Since the revisions 19 were not effective at the time of the ALJ’s decision, they does not apply to this 20 case. For revised regulations, the version effective at the time of the ALJ’s 21 decision is noted. Some of the regulations cited in this decision were revised effective March 2017. ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~14 1 than fully credible, so any error is harmless. As long as there is substantial 2 evidence supporting the ALJ’s decision and the error does not affect the ultimate 3 nondisability determination, the error is harmless. See Carmickle v. Comm’r of 4 Soc. Sec. Admin, 533 F.3d 1155, 1162 (9th Cir. 2008); Stout v. Comm’r of Soc. 5 Sec. Admin., 454 F.3d 1050, 1055 (9th Cir. 2006); Batson v. Comm’r of Soc. Sec. 6 Admin, 359 F.3d 1190, 1195-97 (9th Cir. 2004). 7 Fourth, the ALJ found Plaintiff was able to work in spite of an impairment 8 which existed before the alleged onset date. Tr. 28. In assessing a claimant’s 9 symptom complaints, the ALJ may rely on ordinary techniques of credibility 10 evaluation. Smolen v. Chater, 80 F.3d 1273, 1284 (9th Cir. 1996). The ALJ noted 11 Plaintiff’s neck impairment existed before the alleged onset of disability in 2007. 12 Tr. 28. Plaintiff underwent cervical spine surgery in 2004, but engaged in 13 substantial gainful activity until 2007. Tr. 48, 260. Without citing any supporting 14 evidence in the record, Plaintiff contends the ALJ did not take into account that the 15 “rigorous labor” Plaintiff did took a toll on his post-surgical condition, suggesting 16 his condition declined as a result of work. ECF No. 14 at 4. Although Plaintiff’s 17 argument is not well-supported, it is noted that the ALJ indicated she would 18 “presume an implied case of worsening” after a prior nondisability finding in 2012. 19 Tr. 21-22. Because of the ALJ’s finding that there is an implied case of worsening 20 after 2012, this is not a clear and convincing reason supported by substantial 21 evidence. Notwithstanding, the ALJ cited other legally sufficient reasons for ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~15 1 finding Plaintiff’s symptoms complaints unpersuasive, and any error is harmless. 2 See Carmickle, 533 F.3d at 1162. 3 Lastly, Plaintiff contends that because the ALJ did not specifically discredit 4 Plaintiff’s allegations of headaches and fatigue, “[t]hese symptoms should 5 therefore be credited and included as severe impairments.” ECF No. 12 at 12-13. 6 At step two of the sequential process, the ALJ must determine whether Plaintiff 7 suffers from a “severe” impairment, i.e., one that significantly limits his or her 8 physical or mental ability to do basic work activities. 20 C.F.R. § 416.920(c). To 9 show a severe impairment, the claimant must first prove the existence of medically 10 determinable physical or mental impairment by providing medical evidence 11 consisting of signs, symptoms, and laboratory findings; the claimant’s own 12 statement of symptoms alone will not suffice. 20 C.F.R. § 416.908 (1991). 13 First, it is noted that fatigue is a subjective symptom and is not itself an 14 impairment. See 20 C.F.R. § 416.929(b) (2011) (“Your symptoms, such as pain, 15 fatigue, shortness of breath, weakness, or nervousness, will not be found to affect 16 your ability to do basic work activities unless medical signs or laboratory findings 17 show that a medically determinable impairment(s) is present.”). With regard to 18 headaches, the ALJ found that migraine headaches are not a severe impairment as 19 they cause minimal limitations in Plaintiff’s ability to perform work activity. Tr. 20 24. Plaintiff cites his own complaints about headaches, but identifies no evidence 21 indicating they cause functional limitations. ECF No. 12 at 12-13 (citing Tr. 321, ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~16 1 373, 401-02, 478, 500). Based on the foregoing, the ALJ’s consideration of 2 Plaintiff’s allegations of fatigue and headaches was adequate. 3 B. 4 Medical Opinion Evidence Plaintiff contends the ALJ improperly rejected the medical opinions of W. 5 Scott Mabee, Ph.D., an examining psychologist; John Arnold, Ph.D., an examining 6 psychologist; Robert R. Cornell, M.S., C.V.E., a vocational specialist; and John 7 Craw, M.D., a treating physician. ECF No. 12 at 13-19. 8 9 There are three types of physicians: “(1) those who treat the claimant (treating physicians); (2) those who examine but do not treat the claimant 10 (examining physicians); and (3) those who neither examine nor treat the claimant 11 but who review the claimant’s file (nonexamining or reviewing physicians).” 12 Holohan, 246 F.3d at 1201-02 (brackets omitted). “Generally, a treating 13 physician’s opinion carries more weight than an examining physician’s, and an 14 examining physician’s opinion carries more weight than a reviewing physician’s.” 15 Id. “In addition, the regulations give more weight to opinions that are explained 16 than to those that are not, and to the opinions of specialists concerning matters 17 relating to their specialty over that of nonspecialists.” Id. (citations omitted). 18 If a treating or examining physician’s opinion is uncontradicted, an ALJ may 19 reject it only by offering “clear and convincing reasons that are supported by 20 substantial evidence.” Bayliss v. Barnhart, 427 F.3d 1211, 1216 (9th Cir. 2005). 21 “However, the ALJ need not accept the opinion of any physician, including a ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~17 1 treating physician, if that opinion is brief, conclusory and inadequately supported 2 by clinical findings.” Bray v. Comm’r of Soc. Sec. Admin., 554 F.3d 1219, 1228 3 (9th Cir. 2009) (internal quotation marks and brackets omitted). “If a treating or 4 examining doctor’s opinion is contradicted by another doctor’s opinion, an ALJ 5 may only reject it by providing specific and legitimate reasons that are supported 6 by substantial evidence.” Bayliss, 427 F.3d at 1216 (citing Lester, 81 F.3d at 830- 7 31 (9th Cir. 1995)). 8 1. 9 Dr. Mabee completed a DSHS Psychological/Psychiatric Evaluation form in W. Scott Mabee, Ph.D. 10 January 2014. Tr. 467-71. He diagnosed pain disorder associated with both 11 general medical condition and psychological factors; dysthymia; and personality 12 disorder not otherwise specified with histrionic and passivity features. Tr. 468. 13 Dr. Mabee assessed marked limitations, defined as “very significant limitation on 14 the ability to perform one or more basic work activity,” in two functional areas: 15 (1) the ability to perform activities within a schedule, maintain regular attendance, 16 and be punctual within customary tolerances without special supervision; and (2) 17 the ability to complete a normal work day and work week without interruptions 18 from psychologically based symptoms. Tr. 469. In addition, Dr. Mabee assessed 19 moderate limitations in five functional areas. Tr. 469. The ALJ gave little weight 20 to Dr. Mabee’s assessment. Tr. 29. 21 ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~18 1 Because Dr. Mabee’s opinion was contradicted by the opinion of Dr. 2 Bostwick, Tr. 414-21, the ALJ was required to provide specific and legitimate 3 reasons for rejecting Dr. Mabee’s opinion. Bayliss, 427 F.3d at 1216. 4 First, the ALJ found Dr. Mabee’s opinion is not consistent with evidence 5 that Plaintiff had few mental complaints. Tr. 29. The consistency of a medical 6 opinion with the record as a whole is a relevant factor in evaluating a medical 7 opinion. Lingenfelter v. Astrue, 504 F.3d 1028, 1042 (9th Cir. 2007); Orn v. 8 Astrue, 495 F.3d 625, 631 (9th Cir. 2007). Plaintiff points to counseling records 9 indicating complaints of anxiety, stress, depression, low self-esteem, and poor 10 motivation and concentration. ECF No. 12 at 14 (citing Tr. 415, 419, 441, 453, 11 455, 457, 459, 461, 442, 446-49, 451). However, the counselor who heard these 12 complaints found he is a “we[ll] adjusted guy and gets along with people so well.” 13 Tr. 27, 459. As noted supra, Plaintiff’s counselor discharged him from services 14 because he did not need them, and he agreed. Tr. 496. Plaintiff also complained 15 of depression, anxiety, and stress to Dr. Bostwick, who found no signs or 16 symptoms of depressive disorder and only a few mild limitations associated with 17 stress and anxiety. Tr. 29, 415, 420. Notably, Dr. Mabee did not document any 18 specific mental health complaints. Tr. 467-68. The ALJ’s finding is based on a 19 reasonable interpretation of the record, and this is a specific, legitimate reason 20 supported by substantial evidence. 21 ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~19 1 Second, the ALJ found Dr. Mabee’s opinion is internally inconsistent 2 because Dr. Mabee found Plaintiff’s mental health status was almost normal. Tr. 3 29. An ALJ may reject opinions that are internally inconsistent. Nguyen, 100 F.3d 4 at 1464. An ALJ is not obliged to credit medical opinions that are unsupported by 5 the medical source’s own data or contradicted by the opinions of other examining 6 medical sources. Tommasetti v. Astrue, 533 F.3d 1035, 1041 (9th Cir. 2008). The 7 ALJ found that Dr. Mabee’s assessment of marked and moderate limitations is 8 inconsistent with his mental status exam findings which are largely normal. Tr. 29. 9 Indeed, Plaintiff’s mental status was within normal limits with regard to thought 10 process and content, orientation, perception, memory, and fund of knowledge. Tr. 11 470. Abstract thought had both normal and abnormal findings, but Dr. Mabee 12 concluded Plaintiff’s functioning in that area is low average to average. Tr. 470. 13 Dr. Mabee found Plaintiff’s insight is reasonable, but judgment is marginal. Tr. 14 471. Although Dr. Mabee indicated Plaintiff’s concentration was not within 15 normal limits because he was not able to perform backward serial counting by 16 sevens from 100, the other measures of concentration on the mental status exam 17 were noted to be within normal limits. Tr. 470. Thus, the ALJ reasonably 18 determined that a few partially abnormal mental status exam findings are not 19 consistent with Dr. Mabee’s assessment of marked limitation in the abilities to 20 perform activities within a schedule, maintain regular attendance, and be punctual, 21 and in the ability to complete a normal work day and work week. Tr. 29. ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~20 1 Plaintiff notes, “Dr. Mabee remarked on [Plaintiff’s] atypical speech, mood 2 and affect,” and contends the ALJ’s conclusions regarding Dr. Mabee’s report is 3 erroneous. ECF No. 12 at 14. However, Dr. Mabee observed only that Plaintiff’s 4 speech is “generally adequate,” Plaintiff reported he was “stressed,” and his affect 5 was “edgy.” Tr. 470. The ALJ reasonably found these observations in the mental 6 status exam do not support the marked and moderate limitations assessed. Tr. 29. 7 This is a specific, legitimate reason supported by substantial evidence. 8 The ALJ also gave four additional reasons for generally disregarding DSHS 9 psychological evaluations: (1) they are largely based on the claimant’s self-report; 10 (2); they were conducted for the purpose of determining the claimant’s eligibility 11 for state assistance which give the claimant an incentive to overstate his symptoms; 12 (3) they were made on a check-box form with few objective findings; and (4) the 13 definitions of limitations on the DSHS form differ from the definitions in the 14 Social Security regulations. Tr. 30. Defendant concedes the ALJ’s discussion of 15 these reasons did not pertain to the opinions of Dr. Mabee or Dr. Arnold (discussed 16 infra), so they are not specific, legitimate reasons for rejecting either opinion. ECF 17 No. 13 at 8. However, because the ALJ gave other legally sufficient reasons for 18 giving little weight to Dr. Mabee’s opinion, to the extent the ALJ erred in 19 considering DSHS opinions generally, any error is harmless. See e.g., Morgan v. 20 Comm’r of Soc. Sec. Admin., 169 F.3d 595, 601-02 (9th Cir. 1999). 21 ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~21 1 2. 2 Dr. Arnold completed a DSHS Psychological/Psychiatric Evaluation form in 3 December 2015. Tr. 500-04. He diagnosed cannabis use disorder (severe) in self- 4 reported early full remission; persistent depressive disorder, late onset; and 5 unspecified anxiety disorder. Tr. 501. Dr. Arnold also noted rule out somatic 6 symptom disorder, rule out borderline personality disorder, and rule out borderline 7 intellectual functioning. Tr. 501. Dr. Arnold assessed a severe limitation, or 8 “inability to perform,” in the ability to adapt to changes in a routine work setting, 9 four marked limitations, and seven moderate limitations. Tr. 502. The ALJ gave 10 11 John Arnold, Ph.D. little weight to Dr. Arnold’s opinion. Tr. 29-30. The ALJ gave little weight to Dr. Arnold’s opinion because it is inconsistent 12 with evidence that Plaintiff is independent with his activities of daily living and is 13 living fine on his own. Tr. 30. An ALJ may discount a medical source opinion to 14 the extent it conflicts with the claimant’s daily activities. Morgan, 169 F.3d at 15 601-02. As discussed supra, the ALJ Plaintiff lives by himself and performs all 16 activities of daily living. Tr. 27, 392, 416-17, 467. Indeed, Dr. Arnold noted 17 Plaintiff had been living in his own apartment for the past five years. Tr. 501. 18 Plaintiff’s only complaints about daily living were that “it’s hard to get going 19 before noon” and he needed to get help with cleaning due to his physical problems. 20 Tr. 501. The ALJ reasonably determined Plaintiff’s ability to live independently is 21 inconsistent with marked and severe limitations assessed by Dr. Arnold. ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~22 1 Plaintiff’ contends the ALJ “does not explain how the work-related 2 limitations Dr. Arnold found correlate to [Plaintiff’s] daily activities nor is there 3 any apparent relationship.” ECF No. 12 at 16. Dr. Arnold opined Plaintiff has a 4 marked limitation in the ability to adapt to changes in a work setting, meaning 5 Plaintiff is unable to adapt to changes. Tr. 502. However, on their face, 6 independent living and travel by public transportation require a level of 7 adaptability, which contradicts Dr. Arnold’s assessment. Another example of 8 inconsistency is that Dr. Arnold assessed a moderate limitation in the ability to be 9 aware of normal hazards and take appropriate precautions, yet Plaintiff’s long-term 10 ability to live on his own and navigate public transportation is plainly counter to 11 that limitation. While the ALJ did not specifically note those obvious 12 contradictions, the Court may make inferences from the ALJ’s discussion of the 13 evidence, if the inferences are there to be drawn. Magallanes v. Bowen, 881 F.2d 14 747, 755 (9th Cir. 1989). The ALJ could perhaps have explained this finding in 15 more detail, but the Court concludes this does not rise to the level of error, and this 16 is a specific, legitimate reason supported by substantial evidence for giving little 17 weight to Dr. Arnold’s opinion. 18 3. 19 In March 2016, Mr. Cornell, a certified vocational evaluator, examined 20 Plaintiff and prepared a Vocational Evaluation Report regarding Plaintiff’s level of 21 dexterity and manual manipulation. Tr. 318-22. According to Mr. Cornell, Robert R. Cornell, M.S., C.V.E. ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~23 1 psychometric testing indicated below average performance for dexterity and 2 manual manipulation. Tr. 321. Mr. Cornell noted pain and cramping of Plaintiff’s 3 right thumb, tiredness, tightness and pain in Plaintiff’s right shoulder, and cervical 4 tightness. Tr. 322. Mr. Cornell opined that Plaintiff will have difficulty 5 functioning in jobs requiring the use of the upper extremities for reaching, 6 handling, and fingering activities. Tr. 322. Mr. Cornell also found that Plaintiff is 7 unable to return to past work, and that he is not gainfully employable in unskilled 8 or semiskilled jobs in the national labor market. Tr. 322. The ALJ gave Mr. 9 Cornell’s opinion little weight. Tr. 30. 10 The opinion of an acceptable medical source, such as a physician or 11 psychologist, is given more weight than that of an “other source.” 20 C.F.R. § 12 416.927 (2012); Gomez v. Chater, 74 F.3d 967, 970-71 (9th Cir. 1996). “Other 13 sources” include nurse practitioners, physicians’ assistants, therapists, teachers, 14 social workers, spouses and other non-medical sources. 20 C.F.R. § 416.913(d) 15 (2013). Notwithstanding, the ALJ is required to “consider observations by non- 16 medical sources as to how an impairment affects a claimant’s ability to work.” 17 Sprague v. Bowen, 812 F.2d 1226, 1232 (9th Cir. 1987). Non-medical testimony 18 can never establish a diagnosis or disability absent corroborating competent 19 medical evidence. Nguyen, 100 F.3d at 1467. Pursuant to Dodrill v. Shalala, 12 20 F.3d 915, 919 (9th Cir. 1993), an ALJ is obligated to give reasons germane to 21 “other source” testimony before discounting it. ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~24 1 As a vocational evaluator, Mr. Cornell is a non-medical “other source” under 2 the regulations. 20 C.F.R. § 416.913(d) (2013). Thus, the ALJ was required to 3 cite germane reasons for rejecting the opinion. See Dodrill, 12 F.3d at 919. 4 First, the ALJ found Mr. Cornell’s evaluation was done for a specific area of 5 functioning and is not an indication of Plaintiff’s overall work functioning. Tr. 30. 6 The ALJ is correct that Mr. Cornell conducted testing for dexterity and manual 7 manipulation and did not independently assess his other impairments. Tr. 321-22. 8 However, the regulations require an ALJ consider observations by non-medical 9 sources as to how an impairment affects a claimant’s ability to work. 20 C.F.R. § 10 416.913(e)(2) (2013). Even though Mr. Cornell’s opinion may not address every 11 area of functioning, it could potentially support findings regarding Plaintiff’s 12 functioning in one or more areas, which could impact his ability to work. Under 13 the ALJ’s reasoning, the opinions of some medical specialists would be rejected 14 for failure to address every area of functioning, yet specialists often provide 15 valuable insight into a specific condition. Thus, this is not a legally sufficient 16 reason to reject Mr. Cornell’s opinion. Notwithstanding, the ALJ provided other 17 germane reasons for giving little weight to Mr. Cornell’s opinion, so this error is 18 “inconsequential to the ultimate nondisability determination in the context of the 19 record as a whole,” and was therefore harmless. E.g., Molina, 674 F.3d at 1122 20 (internal quotation marks omitted). 21 ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~25 1 Second, the ALJ found Mr. Cornell was not qualified to assess Plaintiff’s 2 level of physical and mental impairment. Tr. 30. As noted supra, the ALJ is 3 required to consider the observations of non-medical sources as to how an 4 impairment affects claimant’s ability to work. Sprague, 812 F.3d at 1232. Mr. 5 Cornell’s status as a certified vocational evaluator is therefore not a sufficient basis 6 for the ALJ to reject his opinion However, the ALJ may ascribe less weight to the 7 opinion of a non-medical source than that of a medical source. 20 C.F.R. § 8 416.927 (2012). Here, other acceptable medical sources opined that Plaintiff had 9 no hand or dexterity limitations (Dr. Weir, Tr.395; Dr. Jahnke, Tr.45). Thus, the 10 ALJ was entitled to ascribe less weight to a conflicting non-medical source opinion 11 that Plaintiff has disabling hand and dexterity limitations. Tr. 322 This is 12 therefore a germane reason supported by substantial evidence. 13 Third, the ALJ found there is little evidence to support manual dexterity 14 limitations. Tr. 30. Inconsistency with medical evidence is a germane reason for 15 rejecting lay witness evidence. Bayliss, 427 F.3d at 1218; Lewis v. Apfel, 236 F.3d 16 503, 511 (9th Cir. 2001); Vincent v. Heckler, 739 F.2d 1393, 1395 (9th Cir. 1984). 17 Plaintiff contends the ALJ failed to consider an August 2013 nerve conduction 18 study. ECF No. 12 at 18. That study was “suggestive although nondiagnostic for 19 Right carpal tunnel syndrome” and “nondiagnostic for, although suggests the 20 possibility of an evolving ulnar nerve entrapment.” Tr. 375. However, 21 notwithstanding, the ALJ noted that in April 2014, Plaintiff specifically denied ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~26 1 numbness, tingling, weakness, or pain in the hands and fingers. Tr. 30, 381. 2 Plaintiff asserts that, “in light of his symptoms, [he] was not using his hands to any 3 degree of measure” at the time he denied hand symptoms. ECF No. 12 at 18. This 4 argument is without basis in the record. Plaintiff also notes the April 2014 record 5 indicates he endorsed loss of dexterity and strength in his upper extremities. ECF 6 No. 12 at 18. However, it is clear from the record that this complaint pertained to 7 “the upper arm over the lateral aspect especially on the left side but bilaterally,” 8 and not to his hands or wrists. Tr. 381. 9 Additionally, in June 2014, Peter Weir, M.D., an examining physician, noted 10 an unremarkable physical exam and opined Plaintiff has no functional limitations. 11 Tr. 29, 395. The medical expert, Lynne Jahnke, M.D., reviewed the entire record 12 and testified that although Plaintiff previously had carpal tunnel syndrome in his 13 right wrist, it was improved with a carpal tunnel release in 2010. Tr. 28, 45. Dr. 14 Jahnke considered the August 2013 nerve conduction study, found it much 15 improved from a 2010 study, noted no other complaints about hand or wrist pain, 16 and concluded there are no ongoing issues in Plaintiff’s hands and wrists. Tr. 28, 17 45. Based on the foregoing, the ALJ’s determination that there is little evidence to 18 support dexterity limitations is supported by substantial evidence, and this is 19 germane reason for rejecting Mr. Cornell’s opinion. 20 / / / 21 / / / ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~27 1 4. 2 Plaintiff asks the Court to consider records from Dr. Craw which were first 3 submitted to the Appeals Council and were not part of the record before the ALJ. 4 ECF No. 12 at 18-19. The Appeals Council found that evidence from OSC 5 Premier Bone and Joint Surgeons dated March 22, 2016, which is Dr. Craw’s 6 office visit note from that date, “does not show a reasonable probability that it 7 would change the outcome of the decision.” Tr. 2. The Appeals Council therefore 8 did not consider the evidence and did not include it as an exhibit in the record. Tr. 9 2. Plaintiff attached the five-page record from Dr. Craw to his summary judgment 10 11 John Craw, M.D. brief. ECF No. 12-1 at 1-5. When the Appeals Council “declines review, ‘the ALJ’s decision becomes 12 the final decision of the Commissioner,’ and the district court reviews that decision 13 for substantial evidence, based on the record as a whole.” Brewes v. Comm’r of 14 Soc. Sec. Admin., 682 F.3d 1157, 1161-62 (9th Cir. 2012) (citation omitted). The 15 “record as a whole” includes any new evidence made part of the record by the 16 Appeals Council, and “the district court must consider [that new evidence] when 17 reviewing the Commissioner’s final decision for substantial evidence.” Id. at 18 1163. Here, the Appeals Council specifically declined to make the new evidence 19 part of the record. Tr. 2. As such, Dr. Craw’s notes are not before the Court for 20 review as part of the administrative record. 21 ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~28 1 When new evidence which is not part of the record is submitted for the first 2 time to the Court, remand may be appropriate under “sentence six” of 42 U.S.C. § 3 405(g). Sentence six provides, “[t]he Court may . . . at any time order additional 4 evidence to be taken before the Commissioner of Social Security, but only upon a 5 showing that there is new evidence which is material and there is good cause for 6 the failure to incorporate such evidence into the record in a prior proceeding.” 7 Thus, remand for review of records submitted to the Court is appropriate only if (1) 8 the new evidence is “material” and (2) there was “good cause” for the failure to 9 incorporate such evidence into the record in prior administrative proceedings. 10 However, the Court ordinarily will not consider matters on appeal that are 11 not specifically and distinctly argued in an appellant’s opening brief. See 12 Carmickle, 533 F.3d at 1161 n.2. The Ninth Circuit “has repeatedly admonished 13 that [it] cannot ‘manufacture arguments for an appellant.’” Independent Towers v. 14 Washington, 350 F.3d 925, 929 (9th Cir.2003) (quoting Greenwood v. Fed. 15 Aviation Admin., 28 F.3d 971, 977 (9th Cir.1994)). Rather, the Court will “review 16 only issues with are argued specifically and distinctly.” Independent Towers, 350 17 F.3d at 929. As Defendant observes, Plaintiff has not requested relief under 18 sentence six, so the issue is not properly before the Court. ECF No. 13 at 11. 19 Additionally, even if a request for relief under sentence six could be 20 inferred, Plaintiff’s scant briefing of the issue makes no showing of materiality or 21 good cause. ECF No. 12 at 6, 18-19. For the new evidence to be material, ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~29 1 Plaintiff must show the matter bears directly on the dispute and that there is a 2 “reasonable possibility” that the new evidence would change the outcome of the 3 hearing. Mayes v. Massanari, 276 F.3d 453, 462 (9th Cir. 2001). Plaintiff’s sole 4 assertion is that the evidence from Dr. Shaw “shows that the ALJ’s decision 5 regarding [Plaintiff’s] physical impairments are not based on substantial evidence.” 6 ECF No. 12 at 18. This is insufficient to establish a reasonable possibility that the 7 evidence would change the outcome of the case. For a good cause showing, 8 Plaintiff must establish that the new evidence was not available earlier. Id. at 463 9 (citing Key v. Heckler, 754 F.2d 1545, 1551 (9th Cir. 1985)). Dr. Craw’s notes are 10 dated before the date of the ALJ’s decision, 3 yet Plaintiff offered no explanation 11 for not submitting the notes to the ALJ. Based on all of the foregoing, the Court 12 declines to remand on the basis of the evidence from Dr. Craw. 13 CONCLUSION 14 15 After reviewing the record and the ALJ’s findings, the Court concludes the ALJ’s decision is supported by substantial evidence and free of harmful legal error. 16 17 3 18 decision is dated March 30, 2016, so perhaps the note did not become available to 19 Plaintiff until after the ALJ’s decision. Nonetheless, the Court declines to 20 speculate as it is Plaintiff’s duty to assert the appropriate basis for the Court’s 21 review, which has not been established here. It is noted that Dr. Craw’s office visit note is dated March 22, 2016, and the ALJ’s ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~30 1 The ALJ’s interpretation of the evidence was reasonable and supported by 2 substantial evidence in the record. Therefore, the ALJ’s decision is affirmed. 3 Accordingly, IT IS HEREBY ORDERED: 4 1. Plaintiff’s Motion for Summary Judgment, ECF No. 12, is DENIED. 5 2. Defendant’s Motion for Summary Judgment, ECF No. 13, is 6 7 GRANTED. IT IS SO ORDERED. The District Court Clerk is directed to enter this 8 Order and provide copies to counsel. Judgment shall be entered for Defendant and 9 the file shall be CLOSED. 10 DATED October 12, 2018. 11 12 s/ Rosanna Malouf Peterson ROSANNA MALOUF PETERSON United States District Judge 13 14 15 16 17 18 19 20 21 ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~31

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