Marsengill v. Commissioner of Social Security, No. 2:2017cv00283 - Document 18 (E.D. Wash. 2018)
Court Description: ORDER Granting 16 Defendant's Motion for Summary Judgment; denying 13 Plaintiff's Motion for Summary Judgment. Signed by Magistrate Judge John T. Rodgers. (PL, Case Administrator)
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Marsengill v. Commissioner of Social Security Doc. 18 1 FI LED I N THE U.S. DI STRI CT COURT EASTERN DI STRI CT OF WASHI NGTON 2 3 Sep 25, 2018 4 UNITED STATES DISTRICT COURT 5 EASTERN DISTRICT OF WASHINGTON SEAN F. MCAVOY, CLERK 6 7 RICK M., 8 No. 2:17-CV-00283-JTR Plaintiff, ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT 9 v. 10 11 12 COMMISSIONER OF SOCIAL SECURITY, 13 Defendant. 14 15 BEFORE THE COURT are cross-motions for summary judgment. ECF 16 Nos. 13, 16. Attorney Dana C. Madsen represents Rick M. (Plaintiff); Special 17 Assistant United States Attorney Leisa A. Wolf represents the Commissioner of 18 Social Security (Defendant). The parties have consented to proceed before a 19 magistrate judge. ECF No. 15. After reviewing the administrative record and 20 briefs filed by the parties, the Court GRANTS Defendant’s Motion for Summary 21 Judgment and DENIES Plaintiff’s Motion for Summary Judgment. 22 JURISDICTION 23 Plaintiff filed applications for Supplemental Security Income (SSI) and 24 Disability Insurance Benefits (DIB) on October 16, 2012, Tr. 202-03, 374, alleging 25 disability since April 28, 2004, Tr. 373, due to his neck, shoulder, and lower back, 26 degenerative disk disease, arthritis, high blood pressure, and depression, Tr. 378. 1 27 28 1 The Court notes that there are no applications in the record. ORDER GRANTING DEFENDANT’S MOTION . . . - 1 Dockets.Justia.com 1 The applications were denied initially and upon reconsideration. Tr. 258-61, 262- 2 74. Administrative Law Judge (ALJ) Lori L. Freund held a hearing on February 3 20, 2015 and heard testimony from Plaintiff. Tr. 107-148. Vocational expert 4 Jinnie Lawson appeared, but did not testify. Id. Plaintiff amended his onset date 5 to July 21, 2012. Tr. 111-12. The ALJ held a second hearing on February 10, 6 2016 and heard testimony from Plaintiff and vocational expert Kimberly S. 7 Mullinax. Tr. 149-83. The ALJ issued an unfavorable decision on April 19, 2016. 8 Tr. 33-43. The Appeals Council denied review on June 20, 2017. Tr. 1-6. The 9 ALJ’s April 19, 2016 decision became the final decision of the Commissioner, 10 which is appealable to the district court pursuant to 42 U.S.C. §§ 405(g), 1383(c). 11 Plaintiff filed this action for judicial review on August 16, 2017. ECF Nos. 1, 4. STATEMENT OF FACTS 12 The facts of the case are set forth in the administrative hearing transcript, the 13 14 ALJ’s decision, and the briefs of the parties. They are only briefly summarized 15 here. 16 Plaintiff was 50 years old at the amended date of onset. Tr. 204. The 17 highest grade in school he reported completing was the eighth and he did not 18 receive his GED. Tr. 379. He reported that his past jobs include aircraft detailing, 19 assembly, auto detailing, customer service, dismantling cars, and stacking 20 newspapers. Tr. 379, 434-38. Plaintiff reported that he stopped working on 21 August 20, 2008 due to his conditions. Tr. 378. 22 23 STANDARD OF REVIEW The ALJ is responsible for determining credibility, resolving conflicts in 24 medical testimony, and resolving ambiguities. Andrews v. Shalala, 53 F.3d 1035, 25 1039 (9th Cir. 1995). The Court reviews the ALJ’s determinations of law de novo, 26 deferring to a reasonable interpretation of the statutes. McNatt v. Apfel, 201 F.3d 27 1084, 1087 (9th Cir. 2000). The decision of the ALJ may be reversed only if it is 28 not supported by substantial evidence or if it is based on legal error. Tackett v. ORDER GRANTING DEFENDANT’S MOTION . . . - 2 1 Apfel, 180 F.3d 1094, 1097 (9th Cir. 1999). Substantial evidence is defined as 2 being more than a mere scintilla, but less than a preponderance. Id. at 1098. Put 3 another way, substantial evidence is such relevant evidence as a reasonable mind 4 might accept as adequate to support a conclusion. Richardson v. Perales, 402 5 U.S. 389, 401 (1971). If the evidence is susceptible to more than one rational 6 interpretation, the court may not substitute its judgment for that of the ALJ. 7 Tackett, 180 F.3d at 1097. If substantial evidence supports the administrative 8 findings, or if conflicting evidence supports a finding of either disability or non- 9 disability, the ALJ’s determination is conclusive. Sprague v. Bowen, 812 F.2d 10 1226, 1229-30 (9th Cir. 1987). Nevertheless, a decision supported by substantial 11 evidence will be set aside if the proper legal standards were not applied in 12 weighing the evidence and making the decision. Brawner v. Secretary of Health 13 and Human Services, 839 F.2d 432, 433 (9th Cir. 1988). 14 15 SEQUENTIAL EVALUATION PROCESS The Commissioner has established a five-step sequential evaluation process 16 for determining whether a person is disabled. 20 C.F.R. §§ 404.1520(a), 17 416.920(a); see Bowen v. Yuckert, 482 U.S. 137, 140-42 (1987). In steps one 18 through four, the burden of proof rests upon the claimant to establish a prima facie 19 case of entitlement to disability benefits. Tackett, 180 F.3d at 1098-99. This 20 burden is met once the claimant establishes that physical or mental impairments 21 prevent him from engaging in his previous occupations. 20 C.F.R. §§ 22 404.1520(a)(4), 416.920(a)(4). If the claimant cannot do his past relevant work, 23 the ALJ proceeds to step five, and the burden shifts to the Commissioner to show 24 that (1) the claimant can make an adjustment to other work, and (2) specific jobs 25 which the claimant can perform exist in the national economy. Batson v. Comm’r 26 of Soc. Sec. Admin., 359 F.3d 1190, 1193-94 (9th Cir. 2004). If the claimant 27 cannot make an adjustment to other work in the national economy, a finding of 28 “disabled” is made. 20 C.F.R. §§ 404.1520(a)(4)(v), 416.920(a)(4)(v). ORDER GRANTING DEFENDANT’S MOTION . . . - 3 1 ADMINISTRATIVE DECISION 2 On April 19, 2016, the ALJ issued a decision finding Plaintiff was not 3 4 5 6 disabled as defined in the Social Security Act. At step one, the ALJ found Plaintiff had not engaged in substantial gainful activity since July 21, 2012, the amended date of onset. Tr. 28. At step two, the ALJ determined Plaintiff had the following severe 7 impairments: right shoulder impingement syndrome; degenerative disc disease of 8 the cervical and lumbar spine; alcohol dependence; polysubstance dependence in 9 various stages of remission; depressive disorder not otherwise specific; and 10 personality disorder traits. Tr. 28. 11 At step three, the ALJ found Plaintiff did not have an impairment or 12 combination of impairments that met or medically equaled the severity of one of 13 the listed impairments. Tr. 30. 14 15 16 17 18 19 20 21 22 23 24 25 26 27 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: except he could sit, stand, and/or walk up to six hours in an eight-hour day with normal breaks; he could push or pull with the right upper extremity on a frequent, rather than constant, basis; he could occasionally use foot controls bilaterally; he could frequently balance, kneel, crouch, and climb ramps or stairs; he could occasionally stoop and crawl but could never climb ladders, ropes or scaffolds; he could reach overhead occasionally with both upper extremities; he would need to avoid concentrated exposure to extreme cold, excessive vibration, and the operational control of moving machinery; he should avoid even moderate exposure to unprotected heights; he would be limited to simple, repetitive tasks of reasoning level 2; he could only engage in occasional decision-making and tolerate occasional changes in a work setting; he should avoid production rate or timed, pace work; he could have no interaction with the public; and he could tolerate superficial contact with co-workers and supervisors but could not perform tandem tasks with others. 28 ORDER GRANTING DEFENDANT’S MOTION . . . - 4 1 Tr. 34. The ALJ identified Plaintiff’s past relevant work as a painter of 2 transportation equipment, mailer, automobile detailer, cashier, salvage laborer, and 3 automobile body repair helper and concluded that Plaintiff was not able to perform 4 this past relevant work. Tr. 42. At step five, the ALJ determined that, considering Plaintiff’s age, education, 5 6 work experience and residual functional capacity, and based on the testimony of 7 the vocational expert, there were other jobs that exist in significant numbers in the 8 national economy Plaintiff could perform, including the jobs of cleaner 9 housekeeping and mail clerk. Tr. 43. The ALJ concluded Plaintiff was not under a 10 disability within the meaning of the Social Security Act at any time from July 21, 11 2012, through the date of the ALJ’s decision. Id. ISSUES 12 The question presented is whether substantial evidence supports the ALJ’s 13 14 decision denying benefits and, if so, whether that decision is based on proper legal 15 standards. Plaintiff contends the ALJ harmfully erred by (1) failing to properly 16 weigh the medical source opinions and (2) failing to properly address Plaintiff’s 17 symptom statements. DISCUSSION 2 18 19 20 1. Opinion Evidence Plaintiff argues the ALJ failed to properly consider and weigh the opinions 21 22 2 In Lucia v. S.E.C., 138 S.Ct. 2044 (2018), the Supreme Court recently held 23 that ALJs of the Securities and Exchange Commission are “Officers of the United 24 States” and thus subject to the Appointments Clause. To the extent Lucia applies 25 to Social Security ALJs, the parties have forfeited the issue by failing to raise it in 26 their briefing. See Carmickle v. Comm’r of Soc. Sec. Admin., 533 F.3d 1155, 1161 27 n.2 (9th Cir. 2008) (the Court will not consider matters on appeal that were not 28 specifically addressed in an appellant’s opening brief). ORDER GRANTING DEFENDANT’S MOTION . . . - 5 1 expressed by Dennis R. Pollack, Ph.D., Stacy Jarvis, PA-C, Donna Henry, ARNP, 2 and nonexamining reviewing physicians. ECF No. 13 at 13-17. 3 In weighing medical source opinions, the ALJ should distinguish between 4 three different types of physicians: (1) treating physicians, who actually treat the 5 claimant; (2) examining physicians, who examine but do not treat the claimant; 6 and, (3) nonexamining physicians who neither treat nor examine the claimant. 7 Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1995). The ALJ should give more 8 weight to the opinion of a treating physician than to the opinion of an examining 9 physician. Orn v. Astrue, 495 F.3d 625, 631 (9th Cir. 2007). Likewise, the ALJ 10 should give more weight to the opinion of an examining physician than to the 11 opinion of a nonexamining physician. Id. 12 When an examining physician’s opinion is not contradicted by another 13 physician, the ALJ may reject the opinion only for “clear and convincing” reasons, 14 and when an examining physician’s opinion is contradicted by another physician, 15 the ALJ is only required to provide “specific and legitimate reasons” to reject the 16 opinion. Lester, 81 F.3d at 830-31. The specific and legitimate standard can be 17 met by the ALJ setting out a detailed and thorough summary of the facts and 18 conflicting clinical evidence, stating her interpretation thereof, and making 19 findings. Magallanes v. Bowen, 881 F.2d 747, 751 (9th Cir. 1989). The ALJ is 20 required to do more than offer her conclusions, she “must set forth [her] 21 interpretations and explain why they, rather than the doctors’, are correct.” 22 Embrey v. Bowen, 849 F.2d 418, 421-22 (9th Cir. 1988). 23 A. 24 Dr. Pollack evaluated Plaintiff on February 14, 2014. Tr. 654-59. He 25 administered the Clark-Beck Obsessive-Compulsive Inventory, Trail Making Test, 26 Wechsler Adult Intelligence Scale – IV, and Minnesota Multiphasic Personality 27 Inventory – 2, and reviewed “[e]xtensive medical reports.” Tr. 654, 657-58. He 28 diagnosed Plaintiff with major depressive disorder, pain disorder associated with Dennis R. Pollack, Ph.D. ORDER GRANTING DEFENDANT’S MOTION . . . - 6 1 both psychological factors and general medical condition, alcohol abuse in 2 remission, polysubstance abuse in remission, and antisocial personality traits. Tr. 3 659. He completed a Mental Medical Source Statement finding that Plaintiff had a 4 marked3 limitation in the abilities “to perform activities within a schedule, 5 maintain regular attendance, and be punctual within customary tolerances,” and “to 6 complete a normal workday and workweek without interruptions from 7 psychologically based symptoms and to perform at a consistent pace without an 8 unreasonable number and length of rest periods.” Tr. 661. He also found that 9 Plaintiff had a moderate limitation in the ability “to accept instructions and respond 10 appropriately to criticism from supervisors.” Id. He found that Plaintiff had no 11 limitation or a mild limitation in the remaining seventeen functional abilities. Tr. 12 660-62. 13 The ALJ discussed Dr. Pollack’s opinion throughout her decision. She 14 found that Dr. Pollack’s diagnosis of pain disorder to be inconsistent with the 15 objective medical evidence. Tr. 30. As for the Mental Medical Source Statement 16 form, the ALJ gave Dr. Pollack’s test results and findings of none to moderate 17 limitations “significant weight,” but rejected the two marked limitations for three 18 reasons: First, the marked limitations were “wholly inconsistent with Dr. Pollack’s 19 own objective findings and the other ratings,” and “inconsistent with Dr. Pollack’s 20 notes of the claimant’s presentation and test results.” Tr. 33, 41. Second, “Dr. 21 Pollack appeared to base his marked ratings solely on the claimant’s self-reports, 22 as his objective tests do not support the level of severity. The claimant’ self- 23 reports are inconsistent with the medical findings, and any ratings based only on 24 those reports merits little weight.” Tr. 33. Third, Plaintiff provided inconsistent 25 statements regarding his substance abuse. Tr. 40. The parties agree that the 26 27 28 3 A marked limitation is defined as “[s]eriously affects ability to perform basic work functions on a regular basis.” Tr. 660. ORDER GRANTING DEFENDANT’S MOTION . . . - 7 1 specific and legitimate standard is applicable to the ALJ’s treatment of Dr. 2 Pollack’s opinion. ECF No. 13 at 15, 16 at 9. 3 The ALJ’s first reason for rejecting Dr. Pollack’s opined marked limitations, 4 that they were inconsistent with his own findings and test results expressed in his 5 report, meets the specific and legitimate standard. The ALJ found that Dr. Pollack 6 opined that Plaintiff was markedly limited in being punctual yet he appeared on 7 time at his evaluation. Tr. 33. Likewise, the ALJ found that Dr. Pollack stated that 8 Plaintiff was only mildly limited in his ability to sustain an ordinary routine, but he 9 gave him a marked limitation in the ability to complete a normal workday and 10 workweek or perform at a consistent pace. Id. Additionally, the ALJ summarized 11 Dr. Pollack’s rather normal findings and found that they supported his none to mild 12 limitations opined. Tr. 41. In doing so, she found the marked limitations out of 13 step with these normal test results and observations made during the evaluation. 14 Tr. 41. An ALJ may cite internal inconsistencies in evaluating a physician’s report 15 in giving the doctor less weight. Bayliss v. Barnhart, 427 F.3d 1211, 1216 (9th 16 Cir. 2005). The specific and legitimate standard can be met by the ALJ setting out 17 a detailed and thorough summary of the facts and conflicting clinical evidence, 18 stating her interpretation thereof, and making findings. Magallanes, 881 F.2d at 19 751. Here, the ALJ summarized Dr. Pollack’s observations and test results and 20 gave specific references to how and why they were inconsistent with the marked 21 limitations opined. As such, the ALJ met the specific and legitimate standard. 22 The ALJ’s second reason for rejecting Dr. Pollack’s opined marked 23 limitations, that they were based on Plaintiff’s symptom reports instead of 24 objective evidence, also meets the specific and legitimate standard. A doctor’s 25 opinion may be discounted if it relies on a claimant’s unreliable self-report. 26 Bayliss, 427 F.3d at 1217; Tommasetti v. Astrue, 533 F.3d 1035, 1041 (9th Cir. 27 2008). But the ALJ must provide the basis for her conclusion that the opinion was 28 more heavily based on a claimant’s self-reports rather than objective evidence. ORDER GRANTING DEFENDANT’S MOTION . . . - 8 1 Ghanim v. Colvin, 763 F.3d 1154, 1162 (9th Cir. 2014). 2 Here, the ALJ has provided a reason for her conclusion that Dr. Pollack 3 relied more heavily on Plaintiff’s self-reports than the objective evidence: “Dr. 4 Pollack appeared to base his marked ratings solely on the claimant’s self-reports, 5 as his objective test results do not support that level of severity.” Tr. 33. As 6 addressed above, the ALJ provided sufficient rationale that the normal test results 7 supported the none to mild limitations but not the marked limitations. Therefore, 8 this reason also meets the necessary standard to uphold the ALJ’s treatment of Dr. 9 Pollack’s opinion. 10 The ALJ’s third reason for rejecting Dr. Pollack’s opinion, that Plaintiff 11 inconsistently reported his substance use “suggest[ing] that Dr. Pollack reached his 12 conclusions without all relevant information,” Tr. 40, meets the specific and 13 legitimate standard. An ALJ may properly reject a medical opinion that is 14 rendered without knowledge of a claimant’s substance abuse. See Coffman v. 15 Astrue, 469 Fed.Appx. 609, 611 (9th Cir. 2012); Serpa v. Colvin, No. 11-cv-121- 16 RHW, 2013 WL 4480016, *8 (E.D. Wa., Aug. 19, 2013). Plaintiff argues that Dr. 17 Pollack was aware of Plaintiff’s substance use and his opinion took Plaintiff’s 18 discrepancy in reporting his substance use into account. ECF No. 13 at 15. 19 20 21 22 23 24 25 26 27 28 Dr. Pollock summarized the records he reviewed as follows: Medical records indicate that he was continuing to drink as late as 927-12. He was diagnosed on 11-18-2010 with a substance abuse induced mood disorder by a Montana evaluator. Records from [K]alispell Regional Medical Center indicate that he has a long history of alcohol abuse, prescription drug abuse, IV drug abuse as well as cocaine and methamphetamine abuse. Tr. 654. Plaintiff reported to Dr. Pollack that he had not drank anything since 2011 and did not report any history of drug abuse. Tr. 656. Dr. Pollock noted these inconsistencies in his report: ORDER GRANTING DEFENDANT’S MOTION . . . - 9 He states that he stopped drinking in 2011 which is not consistent with the medical records. They [sic] records indicate that he was still using alcohol in late 2012. . . Medical records indicate that he was an intravenous drug user, and abused cocaine and methamphetamine. He did not report his history of drug abuse. 1 2 3 4 5 6 Id. On February 17, 2015, Plaintiff’s attorney submitted records from CHAS 7 Clinic which included a July 11, 2013 report from Stacy Jarvis, PAC stating “He 8 tells me that he has made some really bad decisions and his uncle has helped him 9 get back into using heroin. He is scared and unsure of how to stop using. He has 10 tried to purchase suboxone or methadone off the street but it is too expensive for 11 him.” Tr. 683. This reference to heroin use in 2013 is repeated in a July 2014 12 evaluation. Tr. 668. These records were associated with the administrative record 13 after Dr. Pollack’s February 14, 2014 opinion was rendered and nothing in Dr. 14 Pollack’s report indicates he reviewed these statements. Therefore, Defendant’s 15 argument that Dr. Pollock was aware of the substance use at the time of rendering 16 his opinion is not accurate. The ALJ’s rejection of Dr. Pollock’s opinion 17 references the 2013 heroin usage, Tr. 40, and substantial evidence supports the 18 notion that Dr. Pollock was likely not aware of the recent heroin use. The Court 19 will not disturb the weight assigned to Dr. Pollack’s opinion. 20 B. 21 Plaintiff challenges the ALJ’s determination discounting Ms. Jarvis’ August 22 23 24 Stacy Jarvis, PA-C 21, 2012 opinion.4 ECF No. 13 at 15-16. As a physician’s assistant, Ms. Jarvis does not qualify as an acceptable medical source. 20 C.F.R. §§ 404.1502(a); 416.902(a). As such, the ALJ is only 25 26 4 The Court notes that Ms. Jarvis provided two opinions. The First on June 5, 27 2012, Tr. 573-78, and the second on August 21, 2012, Tr. 579-81. Plaintiff only 28 challenged the second opinion. ECF No. 13 at 15. ORDER GRANTING DEFENDANT’S MOTION . . . - 10 1 required to pervade “germane” reasons to reject her opinion. Molina v. Astrue, 674 2 F.3d 1104, 1111 (9th Cir. 2012). 3 On August 21, 2012, Ms. Jarvis evaluated Plaintiff, Tr. 582-86, and opined 4 that Plaintiff was limited to sedentary work, Tr. 581. At the bottom of the opinion 5 page, there is a signature from a reviewing and adopting professional which 6 appears to be an M.D. Id. The ALJ found no support for this opinion citing that 7 just two months earlier Ms. Jarvis found Plaintiff capable of light to medium work 8 and there was no justification for the reduction in functional capacity. Tr. 37. 9 Additionally, the ALJ rejected the unknown M.D. signature, stating that “the 10 undersigned does not consider this an acceptable medical opinion. None of the 11 claimant’s prior evaluations included a medical doctor’s name or suggested that he 12 was treated by an acceptable medical source.” Id. 13 First, Plaintiff failed to raise any challenges to the ALJ’s reasons for 14 rejecting the opinion. ECF No. 13 at 15-16. Instead, he asserts that the August 21, 15 2012 opinion should be given more weight than the June 5, 2012 opinion because 16 it was endorsed by a physician and that based on the medical evidence “it would be 17 probable that [Plaintiff] would be limited to sedentary work.” Id. Despite 18 Plaintiff’s assertions, the ALJ’s rationale is sufficient to meet the lessor standard of 19 germane reasons. The ALJ is accurate that Ms. Jarvis’ June 5, 2012 opinion 20 stating that Plaintiff was capable of light to medium work is inconsistent with the 21 August 21, 2012 opinion limiting him to sedentary work. Tr. 573-74. There does 22 not appear to be any significant change in the two months between the opinions to 23 justify such a difference. The imaging results Ms. Jarvis discussed in her August 24 21, 2012 evaluation predate the June 5, 2012 opinion. Tr. 582, 588-93. The 25 Electrodiagnostic Study submitted with the August 21, 2012 opinion was 26 completed after the June 5, 2012 opinion, but it showed normal results. Tr. 587. 27 Therefore, the ALJ’s first reason is supported by substantial evidence and meets 28 the germane standard. ORDER GRANTING DEFENDANT’S MOTION . . . - 11 1 The ALJ’s decision to reject the signature of an unknown M.D. is supported 2 by substantial evidence. A signature appears on the opinion, but it is unclear if it is 3 a provider who actually examined Plaintiff. Tr. 581. Furthermore, the evaluation 4 report fails to state whether another provider was present for the exam. Tr. 582-86. 5 Even if the unknown physician had examined Plaintiff, the ALJ’s reason for 6 rejecting the opinion would meet the specific and legitimate standard. See Bayliss, 7 427 F.3d at 1216 (finding that an ALJ may cite internal inconsistencies in 8 evaluating a physician’s report). Therefore, the Court will not disturb the weight 9 provided to the August 21, 2012 opinion. 10 C. 11 Plaintiff challenges the ALJ’s rejection of Nurse Henry’s opinion. ECF No. Donna Henry, ARNP 12 13 at 16. Nurse Henry completed a Physical Functional Evaluation form on 13 August 1, 2014 limiting Plaintiff to sedentary work. Tr. 664-66. The ALJ rejected 14 the opinion finding that it was inconsistent with the concurrent treatment and 15 Nurse Henry’s own findings. Tr. 38. 16 Plaintiff’s challenge consists of a single sentence and fails to address the 17 reasons the ALJ provided for rejecting Nurse Henry’s opinion. Id. Instead it 18 presents an alternative evaluation of the evidence: “CHAS ARNP Henry made the 19 same limitations opinion in July 2014 as PA-C Jarvis in August 2012. (See TR 20 579-81, 664-67) ARNP Henry’s opinion is supported by the findings of the earlier 21 opinion that a CHAS physician endorsed, reviewed and adopted the opinion.” 22 ECF No. 13 at 16. It is not this Court’s role to reweigh the evidence, but rather to 23 determine if the ALJ’s determination is supported by substantial evidence or based 24 on legal error. Sprague, 812 F.2d at 1229-30; Tackett, 180 F.3d at 1097. Since 25 Plaintiff failed to challenge the reasons the ALJ provided for rejecting Nurse 26 Henry’s opinion, the Court need not address them. See Carmickle, 533 F.3d at 27 1161 n.2 (The Court is not required to consider arguments that are not expressly 28 raised in Plaintiff’s briefing.). This Court will not disturb the weight provided to ORDER GRANTING DEFENDANT’S MOTION . . . - 12 1 Nurse Henry’s opinion. 2 D. 3 Plaintiff argues the ALJ erred by relying on nonexamining physicians to Nonexamining Reviewing Physicians 4 reject the opinions of examining physicians. ECF No. 13 at 16 (citing Lester, 81 5 F.3d at 830). 6 The Court in Lester held that a nonexamining physician’s opinion could not, 7 by itself, constitute substantial evidence that justifies the rejection of the opinion of 8 an examining or a treating physician. 81 F.3d at 830. However, that is not what 9 the ALJ has done here. As discussed at length above, the ALJ provided reasons 10 other than the opinions of nonexamining physicians as support for the weight 11 provided to the examining providers discussed above. Therefore, Plaintiff’s 12 reliance on Lester in this instance is misplaced. 13 2. 14 15 Plaintiff’s Symptom Statements Plaintiff argues the ALJ erred by discounting Plaintiff symptoms statements. ECF No. 13 at 12-13. 16 The ALJ found Plaintiff’s “statements concerning the intensity, persistence 17 and limiting effect of these symptoms are not entirely consistent with the medical 18 evidence and other evidence in the record.” Tr. 35. The ALJ reasoned that 19 Plaintiff’s statements were less than fully credible because the level of limitation 20 claimed was not supported by objective evidence, Tr. 35, and because Plaintiff 21 provided misinformation under oath at the hearing, Tr. 29. 22 It is generally the province of the ALJ to make determinations regarding the 23 credibility of a claimant’s symptom statements, Andrews, 53 F.3d at 1039, but the 24 ALJ’s findings must be supported by specific cogent reasons, Rashad v. Sullivan, 25 903 F.2d 1229, 1231 (9th Cir. 1990). Absent affirmative evidence of malingering, 26 the ALJ’s reasons for rejecting the claimant’s testimony must be “specific, clear 27 and 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 . . . - 13 1 testimony is not credible and what evidence undermines the claimant’s 2 complaints.” Lester, 81 F.3d at 834. 3 Plaintiff argues that the only reason the ALJ provided for rejecting his 4 symptom statements were because they were inconsistent with objective medical 5 evidence. ECF No. 13 at 13-14. He relies upon the Ninth Circuit’s holding in 6 Robbins v. Soc. Sec., Admin. that an ALJ cannot make an adverse credibility 7 determination “solely because” a claimant statements are “not substantiated 8 affirmative by objective medical evidence.” 466 F .3d 880, 883 (9th Cir. 2006). 9 In contrast, Defendant argues that in addition to the inconsistencies with the 10 medical evidence, the ALJ relied on inconsistent statements by Plaintiff regarding 11 his ability to walk and on the reported severity of symptoms being inconsistent 12 with Plaintiff’s reported activities. ECF No. 16 at 4-5. Defendant asserts that the 13 ALJ is not required to use “magic words” to achieve her analysis, as long as the 14 Court can draw specific and legitimate inferences from her findings. ECF No. 16 15 at 4 (citing Magallanes, 881 F.2d at 755). 16 The Court disagrees with Defendant’s reliance on Magallanes in this 17 situation. The Ninth Circuit in Magallanes was discussing what was necessary to 18 meet the specific and legitimate standard in order to reject a provider’s opinion. 19 Magallanes, 881 F.2d at 755. When it comes to the crediting or rejecting 20 Plaintiff’s symptom statements, the Circuit Court has held that the standard is 21 “specific, clear and convincing.” Smolen, 80 F.3d at 1281. Recent Circuit 22 decisions have highlighted this standard and identified it as the most demanding 23 standard to meet. See Garrison v. Colvin, 759 F.3d 1014, 1021 (9th Cir. 2014) 24 (quoting Moore v. Comm’r of Soc. Sec. Admin., 278 F.3d 920, 924 (9th Cir. 2002) 25 (“The clear and convincing standard is the most demanding required in Social 26 Security cases.”)). 27 Therefore, the Court reviews the ALJ’s decision carefully and finds that the 28 ALJ only specifically references the reliability of Plaintiff’s statements twice. The ORDER GRANTING DEFENDANT’S MOTION . . . - 14 1 most obvious location is in the residual functional capacity determination finding 2 his statements inconsistent with the objective medical evidence: “In terms of the 3 claimant’s alleged physical impairments and their corresponding symptoms, the 4 objective medical evidence does not fully support the level of limitation claimed.” 5 Tr. 35. The second time is during the step two determination in which the ALJ 6 specifically found that Plaintiff had likely been untruthful at the hearing: 7 8 9 10 11 12 At the second hearing in February 2016, the claimant denied that he used any street drugs in the previous five years, but he admitted to Stacy Jarvis, PA-C, in July 2013 that he had started using heroin again and wanted to stop (Ex. C10F, p5). He reported in July 2014 that he was “drug-free,” although the reliability of his statement is questionable given the misinformation he provided under oath at the hearing. Tr. 29. 13 In support of the first reason, that Plaintiff’s symptom statements were not 14 supported by objective evidence, the ALJ summarized Plaintiff’s allegations and 15 provided repeated citations to imaging reports and a lack of abnormal examinations 16 demonstrating a lack of support for the reported severity of symptoms. Tr. 35-36. 17 Plaintiff’s challenge was simply to provide an alternative interpretation of the 18 evidence and assert that the medical evidence does support his alleged severity of 19 statements. ECF No. 13 at 12. As discussed above, this is Court is not a trier of 20 fact, but reviews whether the ALJ’s determination was supported by substantial 21 evidence or based on legal error. See Sprague, 812 F.2d at 1229-30; Tackett, 180 22 F.3d at 1097. In situations where there is evidence to support both the ALJ’s 23 determination and Plaintiff’s arguments, the Court gives deference to the ALJ’s 24 interpretation of the evidence. Id. Therefore, the Court will not disturb the ALJ’s 25 determination that Plaintiff’s allegations were not supported by objective medical 26 evidence. 27 28 The ALJ’s second reason, that Plaintiff provided “misinformation” while under oath at the hearing, went unchallenged by Plaintiff. As such, the Court is not ORDER GRANTING DEFENDANT’S MOTION . . . - 15 1 required to address it. See Carmickle, 533 F.3d 1155, 1161 n.2. However, both 2 parties failed to identify this as a reason the ALJ provided for finding Plaintiff’s 3 statements unreliable, so this Court will address it in full. 4 In determining the reliability of Plaintiff’s statements, the ALJ may consider 5 “ordinary techniques of credibility evaluation, such as the claimant’s reputation for 6 lying, prior inconsistent statements . . . and other testimony by the claimant that 7 appears less than candid.” Smolen, 80 F.3d at 1284. Here, the ALJ found that 8 Plaintiff was untruthful during his testimony under oath. Her finding is supported 9 by substantial evidence. In a July 11, 2013 report Stacy Jarvis, PAC states “He 10 tells me that he has made some really bad decisions and his uncle has helped him 11 get back into using heroin. He is scared and unsure of how to stop using. He has 12 tried to purchase suboxone or methadone off the street but it is too expensive for 13 him.” Tr. 683. This heroin usage in 2013 is referenced again in a July 2014 14 evaluation. Tr. 668. At the February 2016 hearing, the ALJ questioned Plaintiff 15 about his use of street drugs in the last five years, and he denied any usage. Tr. 16 158. In fact, when the ALJ questioned Plaintiff at the February 2015 hearing about 17 the May and July 2013 references to heroin, Plaintiff denied the use of any street 18 drugs, asserting that he was only referred to drug treatment for his use of pain pills. 19 Tr. 143-44. Therefore, the ALJ’s determination that Plaintiff provided 20 “misinformation” while under oath is supported by substantial evidence and is 21 legally sufficient to support a determination that Plaintiff’s symptoms statements 22 are unreliable. 23 CONCLUSION 24 Having reviewed the record and the ALJ’s findings, the Court finds the 25 ALJ’s decision is supported by substantial evidence and free of harmful legal error. 26 Accordingly, IT IS ORDERED: 27 28 1. Defendant’s Motion for Summary Judgment, ECF No. 16, is GRANTED. ORDER GRANTING DEFENDANT’S MOTION . . . - 16 1 2. 2 The District Court Executive is directed to file this Order and provide a copy 3 to counsel for Plaintiff and Defendant. Judgment shall be entered for Defendant 4 and the file shall be CLOSED. 5 Plaintiff’s Motion for Summary Judgment, ECF No. 13, is DENIED. DATED September 25, 2018. 6 7 8 _____________________________________ JOHN T. RODGERS UNITED STATES MAGISTRATE JUDGE 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 ORDER GRANTING DEFENDANT’S MOTION . . . - 17
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