Armstrong v. Saul, No. 2:2019cv00282 - Document 19 (E.D. Wash. 2020)

Court Description: ORDER Granting 17 Defendant's Motion for Summary Judgment. Signed by Magistrate Judge John T. Rodgers. (MO, Courtroom Deputy)

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Armstrong v. Saul Doc. 19 Case 2:19-cv-00282-JTR ECF No. 19 filed 08/31/20 PageID.384 Page 1 of 16 1 2 3 4 5 FI LED I N THE U.S. DI STRI CT COURT EASTERN DI STRI CT OF WASHI NGTON 6 Aug 31, 2020 7 UNITED STATES DISTRICT COURT 8 EASTERN DISTRICT OF WASHINGTON SEAN F. MCAVOY, CLERK 9 10 11 JAMES A., No. 2:19-CV-0282-JTR ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT Plaintiff, 12 13 14 15 16 17 v. ANDREW M. SAUL, COMMISSIONER OF SOCIAL SECURITY, Defendant. 18 19 BEFORE THE COURT are cross-motions for summary judgment. ECF 20 No. 15, 17. Attorney Chad L. Hatfield represents James A. (Plaintiff); Special 21 Assistant United States Attorney Shata Ling Stucky represents the Commissioner 22 of Social Security (Defendant). The parties have consented to proceed before a 23 magistrate judge. ECF No. 7. After reviewing the administrative record and the 24 briefs filed by the parties, the Court GRANTS Defendant’s Motion for Summary 25 Judgment and DENIES Plaintiff’s Motion for Summary Judgment. 26 JURISDICTION 27 Plaintiff filed an application for Supplemental Security Income in March 28 2014, alleging disability since June 15, 2011, due to chronic neck and shoulder ORDER GRANTING DEFENDANT’S MOTION . . . - 1 Dockets.Justia.com Case 2:19-cv-00282-JTR ECF No. 19 filed 08/31/20 PageID.385 Page 2 of 16 1 pain; loss of feeling in both arms; nerve damage in both hands; headaches; arthritis 2 in shoulder and spine; and torn rotator cuff of left shoulder. Tr. 159, 188. The 3 application was denied initially and upon reconsideration. Administrative Law 4 Judge (ALJ) Caroline Siderius held a hearing on May 9, 2016, Tr. 33-69, and 5 issued an unfavorable decision on June 7, 2016, Tr. 20-28. The Appeals Council 6 denied Plaintiff’s request for review on June 17, 2019. Tr. 1-6. The ALJ’s June 7 2016 decision thus became the final decision of the Commissioner, which is 8 appealable to the district court pursuant to 42 U.S.C. § 405(g). Plaintiff filed this 9 action for judicial review on August 15, 2019. ECF No. 1. STATEMENT OF FACTS 10 11 Plaintiff was born on October 29, 1964, and was 49 years old on the 12 disability application date, March 14, 2014. Tr. 159. He completed high school in 13 1982. Tr. 54, 189. Plaintiff testified at the administrative hearing on May 9, 2016, 14 that he last worked for a window manufacturing company in 2011. Tr. 41-42. 15 Plaintiff’s disability report indicates he worked for that window manufacturing 16 company starting in 2008 but stopped working altogether in June 2011 because of 17 his conditions. Tr. 188-190. 18 Plaintiff testified at the administrative hearing that he has had trouble with 19 his shoulders for about 10 years. Tr. 41. He indicated 90 percent of the time he 20 wears a sling for his left arm, which was recommended by his treating physician 21 Dr. Gaddy, and puts a pillow under his left arm while sitting on a couch to support 22 the weight of the arm. Tr. 43, 62. He stated he tries to not use his left arm at all. 23 Tr. 49. 24 Plaintiff testified he is only able to stand and/or walk a couple of hours at 25 one time before needing to sit. Tr. 44, 45. He stated that putting on his socks or 26 shoes can aggravate the left shoulder (making it pop or dislocate), so he has 27 modified the way he dresses by using only his right arm. Tr. 46-47. He indicated 28 he is able to dress, eat and drink and do some household tasks, but he no longer ORDER GRANTING DEFENDANT’S MOTION . . . - 2 Case 2:19-cv-00282-JTR ECF No. 19 filed 08/31/20 PageID.386 Page 3 of 16 1 mows the law, goes fishing, lifts heavy things, or works on his cars. Tr. 47, 50, 67. 2 He is able to use a computer, but he tries to only use his right arm and his right 3 hand will go to sleep and cramp up after about 10 minutes of use. Tr. 48, 49. He 4 is also able to drive, but he switches hands, back and forth, while driving. Tr. 52. 5 Plaintiff testified he has been prescribed hydrocodone, ibuprofen and a 6 muscle relaxer, and he indicated the medications did help. Tr. 51. He stated that 7 using a heating pad and a hot tub also helped his shoulder pain. Tr. 45. 8 9 STANDARD OF REVIEW The ALJ is responsible for determining credibility, resolving conflicts in 10 medical testimony, and resolving ambiguities. Andrews v. Shalala, 53 F.3d 1035, 11 1039 (9th Cir. 1995). The ALJ’s determinations of law are reviewed de novo, with 12 deference to a reasonable interpretation of the applicable statutes. McNatt v. Apfel, 13 201 F.3d 1084, 1087 (9th Cir. 2000). The decision of the ALJ may be reversed 14 only if it is not supported by substantial evidence or if it is based on legal error. 15 Tackett v. Apfel, 180 F.3d 1094, 1097 (9th Cir. 1999). Substantial evidence is 16 defined as being more than a mere scintilla, but less than a preponderance. Id. at 17 1098. Put another way, substantial evidence is such relevant evidence as a 18 reasonable mind might accept as adequate to support a conclusion. Richardson v. 19 Perales, 402 U.S. 389, 401 (1971). If the evidence is susceptible to more than one 20 rational interpretation, the Court may not substitute its judgment for that of the 21 ALJ. Tackett, 180 F.3d at 1097; Morgan v. Commissioner of Social Sec. Admin., 22 169 F.3d 595, 599 (9th Cir. 1999). If substantial evidence supports the 23 administrative findings, or if conflicting evidence supports a finding of either 24 disability or non-disability, the ALJ’s determination is conclusive. Sprague v. 25 Bowen, 812 F.2d 1226, 1229-1230 (9th Cir. 1987). Nevertheless, a decision 26 supported by substantial evidence will be set aside if the proper legal standards 27 were not applied in weighing the evidence and making the decision. Brawner v. 28 Secretary of Health and Human Services, 839 F.2d 432, 433 (9th Cir. 1988). ORDER GRANTING DEFENDANT’S MOTION . . . - 3 Case 2:19-cv-00282-JTR 1 2 ECF No. 19 filed 08/31/20 PageID.387 Page 4 of 16 SEQUENTIAL EVALUATION PROCESS The Commissioner has established a five-step sequential evaluation process 3 for determining whether a person is disabled. 20 C.F.R. § 416.920(a); Bowen v. 4 Yuckert, 482 U.S. 137, 140-142 (1987). In steps one through four, the burden of 5 proof rests upon the claimant to establish a prima facie case of entitlement to 6 disability benefits. Tackett, 180 F.3d at 1098-1099. This burden is met once a 7 claimant establishes that a physical or mental impairment prevents the claimant 8 from engaging in past relevant work. 20 C.F.R. § 416.920(a)(4). If a claimant 9 cannot perform past relevant work, the ALJ proceeds to step five, and the burden 10 shifts to the Commissioner to show (1) the claimant can make an adjustment to 11 other work; and (2) the claimant can perform specific jobs that exist in the national 12 economy. Batson v. Comm’r of Soc. Sec. Admin., 359 F.3d 1190, 1193-1194 (9th 13 Cir. 2004). If a claimant cannot make an adjustment to other work in the national 14 economy, the claimant will be found disabled. 20 C.F.R. § 416.920(a)(4)(v). 15 16 17 18 19 ADMINISTRATIVE DECISION On June 7, 2016, the ALJ issued a decision finding Plaintiff was not disabled as defined in the Social Security Act. At step one, the ALJ found Plaintiff had not engaged in substantial gainful activity since March 14, 2014, the disability application date. Tr. 22. 20 At step two, the ALJ determined Plaintiff had the following severe 21 impairments: osteoarthritis of the bilateral shoulders and asthma. Tr. 22. 22 At step three, the ALJ found Plaintiff did not have an impairment or 23 combination of impairments that meets or medically equals the severity of one of 24 the listed impairments. Tr. 22-23. 25 The ALJ assessed Plaintiff’s Residual Functional Capacity (RFC) and found 26 Plaintiff could perform light exertion level work with the following limitations: he 27 could lift or carry up to 20 pounds occasionally and 10 pounds frequently and had 28 no limitations in standing, walking or sitting; he could occasionally stoop, crouch, ORDER GRANTING DEFENDANT’S MOTION . . . - 4 Case 2:19-cv-00282-JTR ECF No. 19 filed 08/31/20 PageID.388 Page 5 of 16 1 and kneel, but could never climb ladders, ropes or scaffolds; he could not reach 2 overhead and could not push or pull with the left dominant arm; he could 3 occasionally reach in other directions with the left dominant arm; he could 4 occasionally handle and frequently finger and feel with the left hand; he could 5 occasionally reach overhead with the right arm, but frequently reach in all other 6 directions; he could frequently handle, finger and feel with the right hand; he could 7 have no exposure to unprotected heights or the operation of vibrating machinery; 8 and he must avoid uneven surfaces and concentrated exposure to odors, dusts, 9 gases and fumes. Tr. 23. 10 11 12 At step four, the ALJ found Plaintiff was not able to perform his past relevant work. Tr. 26. At step five, the ALJ determined that, based on the testimony of the 13 vocational expert, and considering Plaintiff’s age, education, work experience, and 14 RFC, Plaintiff was capable of making a successful adjustment to other work that 15 exists in significant numbers in the national economy, including the jobs of 16 sandwich board carrier, counter clerk and usher. Tr. 27-28. 17 The ALJ thus concluded Plaintiff was not under a disability within the 18 meaning of the Social Security Act at any time from March 14, 2014, the disability 19 application date, through the date of the ALJ’s decision, June 7, 2016. Tr. 28. ISSUES 20 21 The question presented is whether substantial evidence supports the ALJ’s 22 decision denying benefits and, if so, whether that decision is based on proper legal 23 standards. 24 Plaintiff raises the following issues of review: (1) Did the ALJ err in 25 improperly rejecting the opinions of Plaintiff’s medical providers; (2) Did the ALJ 26 err in failing to find Plaintiff’s impairments meet or equal a Listing at step three; 27 (3) Did the ALJ err in rejecting Plaintiff’s subjective complaints; and (4) Did the 28 ALJ err in failing to conduct an adequate analysis at step five? ECF No. 15 at 6. ORDER GRANTING DEFENDANT’S MOTION . . . - 5 Case 2:19-cv-00282-JTR 1 2 ECF No. 19 filed 08/31/20 PageID.389 Page 6 of 16 DISCUSSION A. 3 Medical Opinion Evidence Plaintiff contends the ALJ erred by failing to accord greater weight to the 4 medical opinions of examining physician W. Rex Stahly, M.D., and reviewing 5 physician J. Dalton, M.D. ECF No. 15 at 9-11. In a disability proceeding, the courts distinguish among the opinions of three 6 7 types of acceptable medical sources: treating physicians, physicians who examine 8 but do not treat the claimant (examining physicians) and those who neither 9 examine nor treat the claimant (nonexamining physicians). Lester, 81 F.3d at 830. 10 A treating physician’s opinion carries more weight than an examining physician’s 11 opinion, and an examining physician’s opinion is given more weight than that of a 12 nonexamining physician. Benecke v. Barnhart, 379 F.3d 587, 592 (9th Cir. 2004); 13 Lester, 81 F.3d at 830. In weighing the medical opinion evidence of record, the 14 ALJ must make findings setting forth specific, legitimate reasons for doing so that 15 are based on substantial evidence in the record. Magallanes v. Bowen, 881 F.2d 16 747, 751 (9th Cir. 1989). Dr. Stahly completed a Physical Functional Evaluation form report on 17 18 February 20, 2015. Tr. 241-245. Dr. Stahly wrote that Plaintiff had severe left 19 shoulder spasm and loss of motion and mild right shoulder rotator cuff syndrome. 20 Tr. 243. He opined the impairments caused Plaintiff to be “severely limited” or 21 unable to meet the demands of sedentary work. Tr. 242. On March 13, 2015, Dr. 22 Dalton reviewed the record, which included only the report of Dr. Stahly and a 23 2007 report of Dr. Gaddy, Tr. 246, and assessed “severe limitation” in gross or fine 24 motor skill restrictions based on internal derangement of the shoulder and 25 degenerative joint disease, Tr. 247, 248. He wrote that Plaintiff’s left shoulder was 26 “frozen” and the right shoulder was sore but usable. Tr. 248. Dr. Dalton checked 27 a box indicating Plaintiff was able to perform “less than sedentary” level work. Tr. 28 247. ORDER GRANTING DEFENDANT’S MOTION . . . - 6 Case 2:19-cv-00282-JTR 1 ECF No. 19 filed 08/31/20 PageID.390 Page 7 of 16 The ALJ accorded no weight to the reports of Drs. Stahly and Dalton. Tr. 2 26. The ALJ noted Dr. Stahly acknowledged he did not review any radiology 3 imaging and did not indicate any other objective medical evidence in support of his 4 assessed limitations and that Dr. Dalton based his opinion on Dr. Stahly’s report. 5 Tr. 26. The ALJ concluded the opinions of these medical professionals were 6 unsupported by objective medical evidence and the clinical findings documented 7 by other physicians of record. Id. 8 9 The Ninth Circuit has held that the Commissioner need not accept a physician’s opinion that is brief, conclusory, and inadequately supported by 10 clinical findings. See Batson v. Commissioner of Social Security Administration, 11 359 F.3d 1190, 1195 (9th Cir. 2004); Thomas v. Barnhart, 278 F.3d 947, 957 (9th 12 Cir. 2002) (“The ALJ need not accept the opinion of any physician, including a 13 treating physician, if that opinion is brief, conclusory, and inadequately supported 14 by clinical findings.”); Holohan v. Massanari, 246 F.3d 1195, 1202 n. 2 (9th Cir. 15 2001) (stating that a physician’s opinion may be “entitled to little if any weight” 16 where the physician “presents no support for her or his opinion”); Tonapetyan v. 17 Halter, 242 F.3d 1144, 1149 (9th Cir. 2001) (“When confronted with conflicting 18 medical opinions, an ALJ need not accept a treating physician’s opinion that is 19 conclusory and brief and unsupported by clinical findings.”); Magallanes v. 20 Bowen, 881 F.2d 747, 751 (9th Cir. 1989); Crane v. Shalala, 76 F.3d 251, 253 (9th 21 Cir. 1996) (holding that an ALJ may reject check-off forms that do not contain an 22 explanation of the bases for their conclusions). 23 As indicated by the ALJ, Dr. Stahly’s report lists no laboratory, imaging, 24 range of motion or other diagnostic test results that he reviewed, Tr. 243, yet he 25 concluded Plaintiff would be severely limited and unable to meet the demands of 26 even sedentary work for an unknown period of time, Tr. 242. Tr. 26. Although 27 Dr. Stahly recorded a restricted range of motion in Plaintiff’s shoulders, Tr. 245, 28 these findings do not support the significant restrictions assessed by Drs. Stahly ORDER GRANTING DEFENDANT’S MOTION . . . - 7 Case 2:19-cv-00282-JTR ECF No. 19 filed 08/31/20 PageID.391 Page 8 of 16 1 and Dalton regarding Plaintiff’s handling abilities, fine motor functioning and 2 abilities to stand, walk and sit. Tr. 26, 243, 247. Reviewer Dalton provided no 3 objective findings in support of his assessed limitations. The conclusory limitation 4 findings of Drs. Stahly and Dalton are unsupported. As determined by the ALJ, the reports of Drs. Stahly and Dalton, were 5 6 additionally inconsistent with the objective medical evidence of record and the 7 clinical findings documented by other physicians. See Tr. 229-231 (2006 8 evaluation with treating physician James Gaddy, M.D., revealed limited range of 9 motion in Plaintiff’s shoulders but a restriction to light exertion level work); 233 10 (Dr. Gaddy noted full range of motion in June 2014); 235-237 (Plaintiff reported to 11 Robert J. Rose, M.D., in June 2014 that he was able to walk, sit, and stand without 12 difficulty; Dr. Rose found Plaintiff’s motor strength was 4-5/5 in all elements 13 affecting the shoulders, elbows, wrists, hips, knees and ankles, overall dexterity 14 was adequate, and ability to handle, grasp and manipulate did not appear to be 15 affected); 240 (June 2014 imaging reveals only mild osteoarthritis of the bilateral 16 shoulders and acromioclavicular joints); 85-88 (state agency reviewing physician 17 Gordon Hale, M.D., opined in October 2014 that Plaintiff was capable of 18 performing light exertion level work with some postural, reaching and 19 environmental limitations); 267 (July 2015 examination revealed 5/5 strength in 20 upper and lower extremities); 257 & 280 (examination with Steven R. Goodman, 21 M.D., in April 2016 revealed restricted range of motion in the shoulders but 5/5 22 strength in upper extremities without focal deficit or hand atrophy; Dr. Goodman 23 noted Plaintiff was able to transfer on and off the exam table and remove his shoes 24 and clothing with no pain behaviors); and 37-40 (May 2016 testimony of medical 25 expert Robert C. Thompson, M.D., revealed a reduced range of motion in both 26 shoulders but no evidence of muscle atrophy in either hand, intact fine 27 manipulation and dexterity and no loss of fine or gross movement in the upper 28 /// ORDER GRANTING DEFENDANT’S MOTION . . . - 8 Case 2:19-cv-00282-JTR ECF No. 19 filed 08/31/20 PageID.392 Page 9 of 16 1 extremities). The opinions of Drs. Stahly and Dalton are not supported by the 2 weight of the record evidence. 3 The Court finds the reports of Drs. Stahly and Dalton are unsupported and 4 inconsistent with the weight of the record evidence. The ALJ thus provided 5 specific and legitimate reasons, supported by substantial evidence, for assigning no 6 weight to the opinions of Drs. Stahly and Dalton. 7 B. 8 9 10 11 Step Three Plaintiff next contends the ALJ erred at step three of the sequential evaluation process by failing to properly assess whether Plaintiff was disabled under Listing 1.02B. ECF No. 15 at 11-12. The Listings describe, for each of the major body systems, impairments that 12 are severe enough to prevent an individual from doing any gainful activity, 13 regardless of age, education, or work experience. 20 C.F.R. § 416.925(a). Each 14 Listing specifies the objective medical and other findings needed to satisfy the 15 criteria of that Listing. A diagnosis alone is insufficient; a medically-determinable 16 impairment must also satisfy all of the criteria of the Listing, 20 C.F.R. § 17 416.925(d), and Plaintiff bears the burden of establishing that an impairment 18 satisfies the requirements of a Listings impairment, Tackett, 180 F.3d at 1098- 19 1099; 20 C.F.R. §§ 404.1520(a)(4)(iii), 404.1520(d). A generalized assertion of 20 functional problems is not enough to establish disability at step three of the 21 sequential evaluation process. Tackett, 180 F.3d at 1100. 22 Plaintiff’s opening brief asserts he is disabled pursuant to Listing 1.02B, 23 ECF No. 15 at 12, but Plaintiff fails to address the specific requirements of Listing 24 1.02B or how the evidence of record satisfies the criteria of this Listing. Courts 25 will not consider matters on appeal that are not specifically and distinctly argued in 26 an opening brief. See Carmickle v. Comm’r Soc. Sec. Admin., 533 F.3d 1155, 1161 27 n.2 (9th Cir. 2008). The Ninth Circuit has repeatedly admonished that the Court 28 should not consider any claims that were not actually argued in an appellant’s ORDER GRANTING DEFENDANT’S MOTION . . . - 9 Case 2:19-cv-00282-JTR ECF No. 19 filed 08/31/20 PageID.393 Page 10 of 16 1 opening brief. Greenwood v. Fed. Aviation Admin., 28 F.3d 971, 977 (9th Cir. 2 1994). Rather, the Court should “review only issues which are argued specifically 3 and distinctly in a party’s opening brief.” Id.; Indep. Towers of Washington v. 4 Washington, 350 F.3d 925, 929 (9th Cir. 2003). In any event, the Court finds the ALJ committed no error at step three in this 5 6 case. 7 Listing 1.02B explains when a claimant with a major dysfunction of an 8 upper extremity joint has a condition so serious that it is per se disabling. 20 9 C.F.R. Part 404, Subpt. P, App. 1, § 1.02B (major dysfunction of an upper 10 extremity joint resulting in inability to perform fine and gross movements 11 effectively). Examples of inability to perform fine and gross movements 12 effectively include the inability to prepare a simple meal and feed oneself, the 13 inability to take care of personal hygiene, the inability to sort and handle papers or 14 files, and the inability to place files in a file cabinet at or above waist level. 20 15 C.F.R. Par 404, Subpt. P, App. 1, § 1.00B2c. The record contains no evidence of 16 Plaintiff being limited to such an extent.1 Plaintiff’s step three argument is without 17 merit. 18 C. 19 20 21 Plaintiff’s Symptom Testimony Plaintiff next contends the ALJ erred by rejecting his subjective complaints. ECF No. 15 at 12-17. It is the province of the ALJ to make credibility determinations. Andrews, 22 53 F.3d at 1039. However, the ALJ’s findings must be supported by specific 23 cogent reasons. Rashad v. Sullivan, 903 F.2d 1229, 1231 (9th Cir. 1990). Absent 24 25 1 While Plaintiff asserts the severe limitations assessed by Dr. Dalton support 26 a finding that he is disabled pursuant to Listing 1.02B, ECF No. 15 at 12, Dr. 27 Dalton’s opinion, as discussed above, was properly rejected by the ALJ in this 28 case. See supra. ORDER GRANTING DEFENDANT’S MOTION . . . - 10 Case 2:19-cv-00282-JTR ECF No. 19 filed 08/31/20 PageID.394 Page 11 of 16 1 affirmative evidence of malingering, the ALJ’s reasons for rejecting the claimant’s 2 testimony must be “specific, clear and convincing.” Lester v. Chater, 81 F.3d 821, 3 834 (9th Cir. 1996). “General findings are insufficient: rather the ALJ must 4 identify what testimony is not credible and what evidence undermines the 5 claimant’s complaints.” Lester, 81 F.3d at 834; Dodrill v. Shalala, 12 F.3d 915, 6 918 (9th Cir. 1993). 7 In this case, the ALJ found Plaintiff’s medically determinable impairments 8 could reasonably be expected to cause the alleged symptoms; however, Plaintiff’s 9 statements concerning the intensity, persistence and limiting effects of those 10 symptoms were not entirely consistent with the medical and other evidence of 11 record. Tr. 24. 12 13 14 The ALJ first determined the objective medical evidence did not support a finding that his RFC was less than assessed in the decision. Tr. 24. A lack of supporting objective medical evidence is a factor which may be 15 considered in evaluating an individual’s credibility, provided it is not the sole 16 factor. Bunnell v. Sullivan, 347 F.2d 341, 345 (9th Cir. 1991) (Once a claimant 17 produces objective medical evidence of an underlying impairment, an adjudicator 18 may not reject the claimant’s subjective complaints based solely on a lack of 19 objective medical evidence to fully corroborate the alleged severity of pain.); 20 Robbins v. Soc. Sec. Admin., 466 F3d 880, 883 (9th Cir. 2006) (An ALJ may not 21 make a negative credibility finding “solely because” the claimant’s symptom 22 testimony “is not substantiated affirmatively by objective medical evidence.”). 23 The ALJ noted June 2014 x-rays revealed mild osteoarthritis of the bilateral 24 shoulders and acromioclavicular joints. Tr. 24, 240. The ALJ further discussed 25 the medical opinion evidence, beginning with Plaintiff’s long-time primary care 26 physician, Dr. Gaddy, who found Plaintiff’s shoulder issues limited him to light 27 exertion level work in 2006, Tr. 229-231, but noted in June 2014 that Plaintiff had 28 a full range of motion in his shoulders, Tr. 233. Tr. 24. In June 2014, Plaintiff ORDER GRANTING DEFENDANT’S MOTION . . . - 11 Case 2:19-cv-00282-JTR ECF No. 19 filed 08/31/20 PageID.395 Page 12 of 16 1 reported to examining physician Rose that he was able to walk, sit, and stand 2 without difficulty. Tr. 25, 235. Dr. Rose determined Plaintiff’s motor strength 3 was 4-5/5 in all elements affecting the shoulders, elbows, wrists, hips, knees and 4 ankles, overall dexterity was adequate, and ability to handle, grasp and manipulate 5 did not appear to be affected. Tr. 25, 237. Dr. Hale, a state agency reviewing 6 physician, opined in October 2014 that Plaintiff was capable of performing light 7 exertion level work with some postural, reaching and environmental limitations. 8 Tr. 25-26, 85-88. In April 2016, examiner Goodman found that Plaintiff had 5/5 9 strength in his upper extremities without focal deficit or hand atrophy. Tr. 25, 257. 10 Dr. Goodman noted Plaintiff was able to transfer on and off the exam table and 11 remove his shoes and clothing with no pain behaviors. Tr. 25, 257. Finally, in 12 May 2016, medical expert Thompson opined that Plaintiff was capable of light 13 exertion level work with some restrictions. Tr. 25, 37-40. 14 Based on the foregoing, the credible medical evidence of record2 does not 15 align with Plaintiff’s allegations of completely disabling symptoms in this case. 16 Consequently, the ALJ’s finding that the objective medical evidence of record is 17 inconsistent with Plaintiff’s allegations is supported by substantial evidence. 18 19 20 The ALJ next indicated Plaintiff had largely undergone only conservative treatment measures. Tr. 24. Evidence of “conservative treatment” is sufficient to discount a claimant’s 21 testimony regarding severity of an impairment. Parra v. Astrue, 481 F.3d 742, 751 22 (9th Cir. 2007) (being treated with over-the-counter pain medication is an example 23 of “evidence of ‘conservative treatment’” that is “sufficient to discount a 24 claimant’s testimony regarding severity of an impairment.”); Johnson v. Shalala, 25 26 2 As discussed in Section A, above, the opinions of Drs. Stahly and Dalton 27 were properly rejected by the ALJ as unsupported and inconsistent with the weight 28 of the record evidence. See supra. ORDER GRANTING DEFENDANT’S MOTION . . . - 12 Case 2:19-cv-00282-JTR ECF No. 19 filed 08/31/20 PageID.396 Page 13 of 16 1 60 F.3d 1428, 1434 (9th Cir. 1995) (finding conservative treatment suggests a 2 lower level of both pain and functional limitation). 3 As indicated by the ALJ, Tr. 24, Plaintiff has undergone very sporadic 4 treatment with primarily conservative measures such as over-the-counter pain 5 medication and prescribed anti-inflammatory medications. Tr. 257-258 (physical 6 therapy referral), 262-263 (note of over-the-counter pain medication usage, 7 prescription for pain medications and referral to physical therapy), 281 (referral to 8 physical therapy). As noted by the Commissioner, ECF No. 17 at 12, Plaintiff did 9 not dispute the accuracy of the ALJ’s statement regarding Plaintiff’s conservative 10 treatment, he merely emphasized he did not have health insurance during much of 11 the relevant time period, see ECF No. 15 at 14-15. Nevertheless, when Plaintiff 12 was able to meet with doctors regarding his symptoms, he was in fact only treated 13 with conservative measures, including medication management and physical 14 therapy. 15 16 17 18 19 Plaintiff’s history of conservative treatment was a valid reason to discount his testimony regarding the severity of his impairments. The ALJ additionally noted inconsistencies within the record that detracted from Plaintiff’s reliability regarding his impairments. Tr. 26. In determining credibility, an ALJ may engage in ordinary techniques of 20 credibility evaluation, such as considering claimant’s reputation for truthfulness 21 and inconsistencies in claimant’s testimony. Burch v. Barnhart, 400 F.3d 676, 680 22 (9th Cir. 2005); Tonapetyan v. Halter, 242 F.3d 1144, 1148 (9th Cir. 2001). When 23 a claimant fails to be a reliable historian, “this lack of candor carries over” to other 24 portions of his testimony. Thomas v. Barnhart, 278 F.3d 947, 959 (9th Cir. 2002). 25 Contrary to Plaintiff’s testimony at the administrative hearing that he is only 26 able to stand and/or walk a couple of hours at one time before needing to sit, Tr. 27 44, 45, and that putting on his socks or shoes aggravates his left shoulder (making 28 it pop or dislocate), Tr. 46-47, Plaintiff reported to Dr. Rose in June 2014 that he ORDER GRANTING DEFENDANT’S MOTION . . . - 13 Case 2:19-cv-00282-JTR ECF No. 19 filed 08/31/20 PageID.397 Page 14 of 16 1 was able to walk, sit, and stand without difficulty, Tr. 235, and Dr. Goodman noted 2 in April 2016 that Plaintiff was able to transfer on and off the exam table and 3 remove his shoes and clothing with no pain behaviors, Tr. 257. Tr. 26. The ALJ 4 properly found the foregoing inconsistencies detracted from Plaintiff’s reliability 5 regarding his impairments. 6 The ALJ also concluded Plaintiff’s activities of daily living were 7 inconsistent with any greater limitations than those assessed by the ALJ. Tr. 24, 8 26. It is well-established that the nature of daily activities may be considered when 9 evaluating credibility. Fair, 885 F.2d at 603. The ALJ noted the record reflected 10 Plaintiff was able to perform minimal cooking, cleaning and shopping, Tr. 235, 11 and Plaintiff testified he was able to dress, do some household tasks (clean dishes 12 and vacuum), and drive a car, Tr. 47, 52, 67. Tr. 26. It appears it was proper for 13 the ALJ to note Plaintiff’s activities of daily living as contrary to his subjective 14 complaints. However, even if it were improper for the ALJ to find Plaintiff’s level 15 of activity inconsistent with his subjective complaints, see Fair, 885 F.2d at 603 16 (one does not need to be “utterly incapacitated” to be disabled); Vertigan v. Halter, 17 260 F.3d 1044, 1050 (9th Cir. 2001) (“[T]he mere fact that a plaintiff has carried 18 on certain daily activities, such as grocery shopping, driving a car, or limited 19 walking for exercise, does not in any way detract from her credibility as to her 20 overall disability.”), the Court would find this error harmless given the ALJ’s other 21 supported reasons for finding Plaintiff less than fully credible. See Carmickle v. 22 Comm’r, Soc. Sec. Admin., 533 F.3d 1160, 1163 (9th Cir. 2008) (upholding 23 adverse credibility finding where ALJ provided four reasons to discredit claimant, 24 two of which were invalid); Batson v. Comm’r, Soc. Sec. Admin., 359 F.3d 1190, 25 1197 (9th Cir. 2004) (affirming credibility finding where one of several reasons 26 was unsupported by the record). 27 28 The ALJ is responsible for reviewing the evidence and resolving conflicts or ambiguities in testimony. Magallanes v. Bowen, 881 F.2d 747, 751 (9th Cir. ORDER GRANTING DEFENDANT’S MOTION . . . - 14 Case 2:19-cv-00282-JTR ECF No. 19 filed 08/31/20 PageID.398 Page 15 of 16 1 1989). It is the role of the trier of fact, not this Court, to resolve conflicts in 2 evidence. Richardson, 402 U.S. at 400. The Court has a limited role in 3 determining whether the ALJ’s decision is supported by substantial evidence and 4 may not substitute its own judgment for that of the ALJ even if it might justifiably 5 have reached a different result upon de novo review. 42 U.S.C. § 405(g). After 6 reviewing the record, the Court finds the ALJ provided clear and convincing 7 reasons, supported by the record, for discounting Plaintiff’s symptom allegations in 8 this case. The ALJ did not err in this regard. 9 D. Step Five Plaintiff contends the ALJ erred at step five of the sequential evaluation 10 11 process by relying on the vocational expert’s testimony in response to an 12 incomplete hypothetical; a hypothetical that did not reflect all of Plaintiff’s 13 limitations. ECF No. 15 at 17-18. As determined above, the ALJ did not err by rejecting the reports of Drs. 14 15 Stahly and Dalton and by finding Plaintiff’s symptom allegations were not entirely 16 credible. As such, the ALJ’s ultimate RFC determination is supported by 17 substantial evidence and free of error. The ALJ’s RFC determination held that Plaintiff could perform light 18 19 exertion level work with certain postural, manipulative and environmental 20 limitations. Tr. 23. At the administrative hearing held on May 9, 2016, the 21 vocational expert testified that with the restrictions assessed by the ALJ, Plaintiff 22 retained the capacity to perform a significant number of jobs existing in the 23 national economy, including the positions of sandwich board carrier, counter clerk, 24 and usher. Tr. 27, 55-57. Since the vocational expert’s testimony was based on a 25 proper RFC determination by the ALJ, the ALJ did not err at step five of the 26 sequential evaluation process in this case. 27 /// 28 /// ORDER GRANTING DEFENDANT’S MOTION . . . - 15 Case 2:19-cv-00282-JTR ECF No. 19 filed 08/31/20 PageID.399 Page 16 of 16 1 CONCLUSION 2 Having reviewed the record and the ALJ’s findings, the Court finds the 3 ALJ’s decision should be affirmed. Therefore, IT IS HEREBY ORDERED: 4 5 1. Defendant’s Motion for Summary Judgment, ECF No. 17, is GRANTED. Plaintiff’s Motion for Summary Judgment, ECF No. 15, is DENIED. 6 2. 7 IT IS SO ORDERED. The District Court Executive is directed to file this 8 Order and provide a copy to counsel for Plaintiff and Defendant. Judgment shall 9 be entered for Defendant and the file shall be CLOSED. 10 DATED August 31, 2020. 11 12 13 _____________________________________ JOHN T. RODGERS UNITED STATES MAGISTRATE JUDGE 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 ORDER GRANTING DEFENDANT’S MOTION . . . - 16

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