Conner v. Colvin, No. 4:2015cv05051 - Document 18 (E.D. Wash. 2016)
Court Description: ORDER GRANTING DEFENDANT'S SUMMARY JUDGMENT MOTION AND DENYING PLAINTIFF'S SUMMARY JUDGMENT MOTION Re: denying 13 Motion for Summary Judgment; granting 15 Motion for Summary Judgment. Signed by Senior Judge Edward F. Shea. (AY, Case Administrator)
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Conner v. Colvin Doc. 18 1 2 3 4 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF WASHINGTON 5 6 7 No. FRANCES CONNER, 8 Plaintiff, 9 10 4:15-CV-5051-EFS ORDER GRANTING DEFENDANT'S SUMMARY-JUDGMENT MOTION AND DENYING PLAINTIFF'S SUMMARYJUDGMENT MOTION v. CAROLYN W. COLVIN, Commissioner of Social Security, 11 Defendant. 12 13 Before the Court, without oral argument, are cross-summary- 14 judgment motions. ECF Nos. 13 & 15. Plaintiff Frances Conner appeals 15 the Administrative Law Judge’s (ALJ) denial of benefits. 16 Ms. Conner contends the ALJ committed reversible error by finding her 17 testimony—as well 18 Stringer—not credible. 19 remand this case with an instruction to grant her an immediate award 20 of 21 (“Commissioner”) asks the Court to affirm the ALJ’s decision. ECF No. 22 15. The Court has reviewed the administrative record and the parties’ 23 briefing. For the reasons set forth below, the Court affirms the ALJ’s 24 decision, denies Plaintiff’s motion, and grants the Commissioner’s 25 motion. 26 / benefits. ECF as No. that of ECF No. 13. Dr. The 13. Cheryl Ms. Hipolito Conner Commissioner ECF No. 3. and Dr. Penny requests the Court of Social Security ORDER GRANTING DEFENDANT'S SUMMARY-JUDGMENT MOTION AND DENYING PLAINTIFF'S SUMMARY-JUDGMENT MOTION - 1 Dockets.Justia.com 1 A. Jurisdiction The Court has jurisdiction over this case pursuant to 42 U.S.C. 2 3 § 1383(c)(3). 4 B. Standard of Review 5 A district court's review of a Commissioner’s final decision is 6 governed by 42 U.S.C. § 405(g). The scope of review under § 405(g) is 7 limited: the Commissioner's decision will be disturbed “only if it is 8 not supported by substantial evidence or is based on legal error.” 9 Hill v. Astrue, 698 F.3d 1153, 1158 (9th Cir. 2012). “Substantial 10 evidence” means relevant evidence that “a reasonable mind might accept 11 as adequate to support a conclusion.” Id. at 1159 (quotation and 12 citation omitted). Stated differently, substantial evidence equates to 13 “more 14 (quotation and citation omitted). In determining whether this standard 15 has been satisfied, a reviewing court must consider the entire record 16 as a whole rather than searching for supporting evidence in isolation. 17 Id. than a mere scintilla but less than a preponderance.” Id. 18 In reviewing a denial of benefits, a district court may not 19 substitute its judgment for that of the Commissioner. If the evidence 20 in 21 interpretation, [the court] must uphold the ALJ's findings if they are 22 supported by inferences reasonably drawn from the record.” Molina v. 23 Astrue, 674 F.3d 1104, 1111 (9th Cir. 2012). Further, a district court 24 “may not reverse an ALJ's decision on account of an error that is 25 harmless.” Id. An error is harmless “where it is inconsequential to 26 the the record [ALJ's] “is ultimate susceptible nondisability to more than determination.” one Id. ORDER GRANTING DEFENDANT'S SUMMARY-JUDGMENT MOTION AND DENYING PLAINTIFF'S SUMMARY-JUDGMENT MOTION - 2 rational at 1115 1 (quotation and citation 2 decision 3 harmed. Shinseki v. Sanders, 556 U.S. 396, 409-10 (2009). 4 C. generally omitted). bears the The burden Disability Process Determination: A must party of appealing establishing Five-Step the that Sequential ALJ's it was Evaluation 5 claimant satisfy two conditions to be considered 6 “disabled” within the meaning of the Social Security Act. 42 U.S.C. § 7 1382c(a)(3). First, the claimant must be “unable to engage in any 8 substantial gainful activity by reason of any medically determinable 9 physical or mental impairment which can be expected to result in 10 death or which has lasted or can be expected to last for a continuous 11 period of not less than twelve months.” Id. § 1382c(a)(3)(A). Second, 12 the claimant's impairment must be “of such severity that he is not 13 only unable to do his previous work but cannot, considering his age, 14 education, and work experience, engage in any other kind of 15 substantial gainful work which exists in the national economy.” Id. § 16 1382c(a)(3)(B). The decision-maker uses a five-step sequential 17 evaluation process to determine whether a claimant is disabled. 20 18 C.F.R. §§ 404.1520, 416.920. 19 Step one assesses whether the claimant is engaged in substantial 20 gainful activities. engaged in Id. § 416.920(a)(4)(i). If the claimant is 21 substantial gainful activities, the claimant is not 22 disabled and benefits are denied. Id. §§ 404.1520(b), 416.920(b). If 23 the claimant is not engaged in substantial gainful employment, the 24 decision-maker proceeds to step two. 25 Step two assesses whether the claimant has a medically severe 26 ORDER GRANTING DEFENDANT'S SUMMARY-JUDGMENT MOTION AND DENYING PLAINTIFF'S SUMMARY-JUDGMENT MOTION - 3 1 impairment, or combination of impairments, which significantly limits 2 the 3 activities. 20 C.F.R. §§ 404.1520(c), 416.920(c). If the claimant 4 does not, the disability claim is denied. If the claimant does, the 5 evaluation proceeds to the third step. claimant’s Step 6 physical three or compares mental the ability claimant's to do basic impairment to work several 7 impairments recognized by the Commissioner to be so severe as to 8 preclude a person from engaging in substantial gainful activity. 20 9 C.F.R. §§ 404.1520(d), meets or 404 Subpt. equals one P of App. the 1, 416.920(d). listed If the impairments, the 10 impairment 11 claimant is conclusively presumed to be disabled. If the impairment 12 does not, the evaluation proceeds to the fourth step. 13 Step four assesses whether the impairment prevents the claimant 14 from performing work he has performed in the past by examining the 15 claimant’s residual 16 416.920(e). If 17 previous work, the claimant is not disabled. If the claimant cannot 18 perform this work, the evaluation proceeds to the fifth step. the functional claimant is capacity. able to Id. perform §§ 404.1520(e), the claimant’s 19 Step five, the final step, assesses whether the claimant can 20 perform other work in the national economy in view of the claimant’s 21 age, 22 416.920(f); 23 claimant can, the disability claim is denied. If the claimant cannot, 24 the disability claim is granted. 25 26 education, see and work Bowen v. experience. Yuckert, 482 20 C.F.R. U.S. 137 §§ 404.1520(f), (1987). If the The burden of proof shifts during this sequential disability analysis. The claimant has the initial burden of establishing ORDER GRANTING DEFENDANT'S SUMMARY-JUDGMENT MOTION AND DENYING PLAINTIFF'S SUMMARY-JUDGMENT MOTION - 4 1 entitlement 2 Rhinehart v. Finch, 438 F.2d 920, 921 (9th Cir. 1971). The burden then 3 shifts to the Commissioner to show 1) the claimant can perform other 4 substantial gainful activity, and 2) that a “significant number of 5 jobs exist in the national economy,” which the claimant can perform. 6 Kail v. Heckler, 722 F.2d 1496, 1498 (9th Cir. 1984). 7 D. disability benefits under steps one through four. Procedural History and ALJ Findings1 On 8 to February 22, 2010, Ms. Conner filed an application for 9 supplemental security income, alleging a disability onset of the same 10 date. Transcript of Record (Tr.) at 21 & 71. Ms. Conner’s claim was 11 denied initially and upon reconsideration. Tr. at 73 & 82. Ms. Conner 12 requested a hearing before an ALJ, which was held on November 17, 13 2011. Tr. at 38 & 84. On November 28, 2011, the ALJ rendered a 14 decision denying Ms. Conner’s claim. Tr. at 18–31. On April 16, 2013, 15 after the Appeals Council denied a review of the ALJ’s decision, Ms. 16 Conner appealed the ALJ’s decision to this Court. Tr. at 1 & 290. On 17 May 20, 2014, the U.S. District Court for the Eastern District of 18 Washington overturned the ALJ’s decision and remanded for further 19 proceedings. Tr. at 300–332. Upon remand, the ALJ held two additional 20 hearings on January 7, 2015, and March 19, 2015. Tr. at 240 & 277. On 21 April 16, 2015, the ALJ rendered a decision again denying Ms. Conner’s 22 claim. Tr. at 215–233. At 23 step one, the ALJ found Ms. Conner had not engaged in 24 1 25 The facts contained 26 in are the only briefly summarized. administrative hearing Detailed transcript, facts the decision, and the parties’ briefs. ORDER GRANTING DEFENDANT'S SUMMARY-JUDGMENT MOTION AND DENYING PLAINTIFF'S SUMMARY-JUDGMENT MOTION - 5 are ALJ’s 1 substantial gainful activity since February 22, 2010. Tr. at 220. At 2 step two, the ALJ found Ms. Conner had medically severe 3 impairments, including diabetes mellitus, degenerative disc disease, 4 and obesity. Tr. at 220. The ALJ found Ms. Conner’s hypertension, 5 hyperlipidemia, and polycystic ovarian syndrome caused only a minimal 6 effect on her basic work-related activities. Tr. at 221. 7 At step three, the ALJ found none of Ms. Conner’s severe medical 8 impairments meet or equal listed impairments, and that the Ms. Conner 9 is not presumed disabled. Tr. at 222. At step four, the ALJ found Ms. Conner could not return to her 10 11 previous work as a fast-food cashier. Tr. at 228. 12 At step five, the ALJ found Ms. Conner could perform other work 13 in the national economy as long as the work was sedentary. Tr. at 228– 14 229 & 285–287. Based on Ms. Conner’s age, education, work experience, 15 and residual functional capacity, the ALJ found Ms. Conner could work 16 as a Production Assembler, Electronics Worker, Hand Bander, Ticket 17 Seller, and Telephone Quotations Clerk. Tr. at 229. Ms. Conner did not request a review from the Appeals Council, 18 19 making 20 purposes of judicial review. 42 U.S.C. § 1383(c)(3); 20 C.F.R. §§ 21 416.1481, 422.210. On June 18, 2015, Ms. Conner filed this lawsuit 22 appealing the ALJ’s decision. ECF No. 3. 23 E. 24 25 26 the ALJ’s decision the Commissioner’s final decision for Analysis Plaintiff raises the following issues for this Court’s review of the Commissioner’s final decision: 1) Whether the ALJ improperly discredited Ms. Conner’s testimony ORDER GRANTING DEFENDANT'S SUMMARY-JUDGMENT MOTION AND DENYING PLAINTIFF'S SUMMARY-JUDGMENT MOTION - 6 1 regarding 2 symptoms. 3 4 5 the intensity, persistence and limiting effects of her 2) Whether the ALJ improperly discredited the testimony of Ms. Conner’s treating physicians. 3) Whether the Court should remand with instructions to grant 6 Ms. Conner immediate award. 7 The Court evaluates each issue in turn. 8 1. Ms. Conner’s Testimony 9 Before discrediting a claimant’s testimony, the “ALJ must engage 10 in a two-step analysis.” Lingenfelter v. Astrue, 504 F.3d 1028, 1036 11 (9th Cir. 2007). First, the ALJ must determine whether the claimant 12 has presented objective medical evidence of an underlying impairment 13 “which could reasonably be expected to produce the pain or other 14 symptoms alleged.” Id. (quoting Bunnell v. Sullivan, 947 F.2d 341, 344 15 (9th Cir. 1991)). The claimant need not provide “objective medical 16 evidence of the pain or fatigue itself, or the severity thereof” to 17 the ALJ. 18 (quoting 19 Second, if there is no evidence of malingering, the ALJ must accept 20 the claimant’s testimony about the severity of the symptoms, unless it 21 offers 22 testimony. Smolen, 80 F.3d at 1282. When discrediting a claimant’s 23 testimony, the ALJ “must be sufficiently specific to allow a reviewing 24 court to conclude the adjudicator rejected the claimant’s testimony on 25 permissible grounds and did not arbitrarily discredit a claimant’s 26 testimony regarding pain.” Brown-Hunter v. Colvin, 806 F.3d 487, 493 Garrison v. Colvin, 759 F.3d Smolen v. “specific, Chater, clear 80 and F.3d 995, 1014 (9th 1273, convincing 1282 (9th reasons” to Cir. 2014) Cir. 1996)). reject ORDER GRANTING DEFENDANT'S SUMMARY-JUDGMENT MOTION AND DENYING PLAINTIFF'S SUMMARY-JUDGMENT MOTION - 7 the 1 (9th Cir. 2015) (quoting Bunnell, 947 F.2d at 345–346.) An ALJ is “not 2 required 3 impairments. Orn v. Astrue, 495 F.3d 625, 635 (9th Cir. 2007) (quoting 4 Fair v. Bowen, 885 F.2d 597, 603 (9th Cir. 1989)). An ALJ may consider 5 the 6 testimony or between testimony and conduct, daily activities, and 7 inadequately 8 prescribed course of treatment. Id. to believe claimant’s every allegation reputation explained for of disabling truthfulness, failure to seek pain” or other inconsistencies treatment or follow in a 9 Defendant argues that an ALJ only needs substantial evidence to 10 discredit a claimant’s testimony, but this argument is in error. ECF 11 No. 12 rejected by the Ninth Circuit. Brown-Hunter, 806 F.3d at 493. However, 13 Defendant’s 14 claimant’s testimony does not require automatic reversal. 15. In 15 As a Plaintiff argument argues, for response to Defendant’s the incorrect Defendant’s reasoning standard motion for was to expressly discredit summary a judgment, 16 Plaintiff argued that the ALJ, by Defendant’s admission, incorrectly 17 applied the law to Plaintiff’s case, which would require automatic 18 reversal. ECF No. 16, see also Gutierrez v. Comm’r of Soc. Sec., 740 19 F.3d 519, 523 (9th Cir. 2014) (holding a district court must reverse 20 an ALJ’s decision if the ALJ improperly applied the law, even if the 21 ALJ’s 22 misinterprets the ALJ’s function. The ALJ serves as both finder of 23 fact 24 decision on the preponderance of the evidence. 20 C.F.R. § 404.953(a). 25 The 26 witness decision and is supported adjudicator ALJ’s for decision-making credibility, by social substantial security process especially claim, requires when there evidence). the are basing ALJ to Plaintiff its final determine “conflicts ORDER GRANTING DEFENDANT'S SUMMARY-JUDGMENT MOTION AND DENYING PLAINTIFF'S SUMMARY-JUDGMENT MOTION - 8 in the 1 testimony” which need resolution. Treichler v. Comm’r Of Soc. Sec., 2 775 F.3d 1090, 1098 (9th Cir. 2014) (citing 42 U.S.C. § 405(g)). If an 3 ALJ 4 specifically and clearly explain its reasons for doing so to avoid 5 arbitrarily 6 district court an ample record to review on appeal. Brown-Hunter, 806 7 F.3d at 493. Then, the district court reviews whether or not the ALJ 8 gave 9 testimony, affirming the ALJ’s decision if it is backed by substantial 10 evidence. Hill, 698 F.3d at 1158. Nothing in the record indicates the 11 ALJ 12 discrediting Ms. Conner’s testimony. The Court will not reverse the 13 ALJ’s 14 improperly applied legal standards. 15 gives a claimant’s discrediting clear and Turning used to the to ALJ’s on the decision, to record the indicates Ms. ALJ Conner’s complained, satisfying 18 However, the ALJ found Ms. Conner’s testimony “not entirely credible” 19 concerning the intensity, persistence and limiting effects of her 20 symptoms. Tr. at 223. The ALJ specifically found issues with the 21 contradictions between Ms. Conner’s subjective pain assessments and 22 her daily activities, as well as the objective medical evidence from 23 her treating physicians. Tr. at 223–229. Furthermore, the ALJ found 24 Ms. Conner unwilling to seek additional treatment for her conditions. 25 Tr. at 223–229. of of the when 17 prong symptoms the claimant’s standard found must could first the ALJ provide the evidence it conditions the cause and weight, 16 26 reasonably no discredit substantial nothing or testimony evidence the because little claimant’s convincing improperly decision testimony analysis. which Tr. at she 223. As to the inconsistencies between her alleged symptoms and daily ORDER GRANTING DEFENDANT'S SUMMARY-JUDGMENT MOTION AND DENYING PLAINTIFF'S SUMMARY-JUDGMENT MOTION - 9 1 activities, Ms. Conner first claimed in 2010 that her pain was a 2 “10/10, but worse with walking.” Tr. at 193. In January 2015, Ms. 3 Conner saw Dr. Timothy Baldwin, and again rated her pain a 10/10. Tr. 4 at 463. Two days later, at the ALJ hearing, the ALJ asked her to rate 5 her 6 immediately go to the emergency room. You don’t think twice about it. 7 That’s 8 testified her pain was a 5 or 6 on average, and an 8 or 9 at its 9 worst. Tr. at 256. However, Ms. Conner maintained that she experienced pain again where on you a go. scale out That’s 10 10, level.” where Tr. a 10/10 at Conner 11 Despite that assessment, Ms. Conner reported to Dr. Wing Chau that she 12 did basic household chores every day, including meal preparation and 13 cleanup, driving the kids to school, and walking the dogs. Tr. at 193. 14 In 15 vacuums, washes dishes, does laundry, cares for her children, and has 16 no issues with her personal care. Tr. at 145–153. Ms. Conner later 17 testified at the January 2014 hearing that she lifts an 11-pound 18 barbell and has the television on for four hours a day while she does 19 chores. Tr. at 263 & 265. Report” dated March 2010, Ms. Tr. at Ms. “you sharp, excruciating pain “Function all the time. 256. means 10 a almost of 227 & Conner stated 255. she 20 As to contradictions with the objective medical evidence, the 21 ALJ found multiple instances in which treating physicians found no 22 impaired movement in Ms. Conner’s lower extremities, where her pain 23 occurs. In her 2010 visit with Dr. Chau, he noted Ms. Conner was able 24 to touch her toes, exhibited full knee extension, 5/5 strength in all 25 joints, no limp in her gait, and was able to stoop and squat, with 26 only his finding of “very limited” internal right hip ORDER GRANTING DEFENDANT'S SUMMARY-JUDGMENT MOTION AND DENYING PLAINTIFF'S SUMMARY-JUDGMENT MOTION - 10 rotation 1 supporting Ms. Conner’s pain assessments. Tr. at 193–196. Four years 2 later, Dr. Cheryl Hipolito, another treating physician, reported Ms. 3 Conner had 5/5 motor strength in her lower extremities, a full range 4 of 5 bending, and no limiting factors in her active range of motion. Tr. at 6 226–227, 428, & 437. Ms. Conner stated at both the first and second 7 administrative hearings that standing too long makes her leg stiff, 8 keeping her from being mobile and active. Tr. at 55 (“I couldn’t stand 9 there . . . my leg gets stiff.”); & 257 (“When I start walking . . . 10 hip motion, no restrictions in flexion, extension, or lateral my knees start to lock up.”). 11 As to Ms. Conner’s unwillingness to seek treatment, The ALJ 12 noted that Ms. Conner denied seeking treatment several times, citing 13 financial 14 insurance in 2010); 225 (ALJ’s decision); 423 (citing finances as 15 barrier 16 insufficient means to seek treatment from pain specialist in late 17 2010). In January 2014, Ms. Conner received medical insurance through 18 the Affordable Care Act, which allowed her to see a pain specialist in 19 February 2014. Tr. at 226 & 270. The ALJ found that Ms. Conner saw 20 several different care providers, used diabetic and pain medications, 21 and 22 insurance in January 2014. Tr. at 225. 23 inability. to treatment participated in Tr. at goals physical 59 in (testifying late therapy to 2013); prior lack & to of 495 medical (reporting receiving health The ALJ found Ms. Conner’s testimony regarding the intensity, 24 persistence, and limiting effect of her symptoms “not 25 credible.” Tr. at 223. The ALJ discussed at length the contradictions 26 between Ms. Conner’s testimony and her daily activities, the objective ORDER GRANTING DEFENDANT'S SUMMARY-JUDGMENT MOTION AND DENYING PLAINTIFF'S SUMMARY-JUDGMENT MOTION - 11 entirely 1 medical evidence, and unwillingness to seek treatment. Therefore, the 2 Court finds that the ALJ provided clear and convincing reasons to 3 discredit 4 regarding the intensity, persistence, and limiting effects of her 5 symptoms “not entirely credible.” Tr. at 223. Ms. 6 2. 7 There Conner, and did not err in finding her testimony Ms. Conner’s Treating Physicians’ Opinions are three types of physicians: treating physicians, 8 examining physicians, and nonexamining physicians. Lester v. Chater, 9 81 F.3d 821, 830 (9th Cir. 1995). Usually, treating physicians’ 10 opinions are given more weight than opinions from physicians who do 11 not 12 convincing” reasons for rejecting a treating or examining physician’s 13 opinion, and may not reject the opinion without providing “specific 14 and 15 record. Id. Ms. Conner argues the ALJ improperly gave little weight to 16 the opinions of her two treating physicians, Dr. Cheryl Hipolito and 17 Dr. Penny Stringer. The Court analyzes the ALJ’s decision as to each 18 medical expert. 19 treat the legitimate a. claimant. reasons” Id. The supported ALJ by must provide substantial “clear evidence in and the Dr. Cheryl Hipolito, M.D. 20 Ms. Conner argues the ALJ improperly gave little weight to Dr. 21 Hipolito's opinion regarding the number of work days per month Ms. 22 Conner would have to miss due to her impairments. Dr. Hipolito is one 23 of Ms. Conner’s treating physicians, meaning the ALJ should give her 24 opinion great weight. Lester, 81 F.3d at 830. Before giving less 25 weight to Dr. Hipolito’s assessment, the ALJ needed to provide clear 26 and convincing reasons supported by substantial evidence. Id. For the ORDER GRANTING DEFENDANT'S SUMMARY-JUDGMENT MOTION AND DENYING PLAINTIFF'S SUMMARY-JUDGMENT MOTION - 12 1 following reasons, the Court holds the ALJ assigned a proper amount of 2 weight to Dr. Hipolito’s opinion. 3 Dr. Hipolito began treating Ms. Conner in September of 2013. Tr. 4 at 225. Dr. Hipolito discussed Ms. Conner’s weight and diabetes with 5 her, and recommended she maintain a healthy diet and exercise every 6 day 7 reported to Dr. Hipolito for a full examination. Tr. at 434. Dr. 8 Hipolito found Ms. Conner had a normal range of motion, normal muscle 9 strength, and regular stability in all extremities and no pain on 10 inspection, even in her hips. Tr. at 436. In August 2014, Dr. Hipolito 11 filled out a physical capacity questionnaire for Ms. Conner. Tr. at 12 413–414. In this questionnaire, Dr. Hipolito claimed Ms. Conner would 13 miss four or more work days per month due to her decreased range of 14 motion and chronic back pain. Tr. at 413–414. The ALJ found this 15 opinion “wholly inconsistent” with Dr. Hipolito’s findings at the July 16 2014 examination, in which she noted Ms. Conner had no restrictions in 17 her 18 Hipolito cited Ms. Conner’s walker as evidence of her inability to 19 work, but the walker was never prescribed by Dr. Hipolito, or any 20 physician. Tr. at 267 & 413. Lastly, Dr. Hipolito stated Ms. Conner’s 21 limitations 22 Hipolito did not begin treating Ms. Conner until September 2013. Tr. 23 at 413. 24 to reduce active her range had weight. of Tr. motion. existed at Tr. since 421. at In 227 January of & July 436. 2011, 2014, Ms. Conner Furthermore, even though Dr. Dr. After reviewing the ALJ’s decisions, Dr. Hipolito’s records, and 25 the parties’ briefs, the Court holds the ALJ met its burden and 26 properly gave clear and convincing reasons to reject Dr. Hipolito’s ORDER GRANTING DEFENDANT'S SUMMARY-JUDGMENT MOTION AND DENYING PLAINTIFF'S SUMMARY-JUDGMENT MOTION - 13 1 testimony. While Dr. Hipolito did find Ms. Conner’s obesity to be an 2 issue in her mobility, she noted rather mild findings in her July 2014 3 examination, including a full range of motion in her lower extremities 4 “without pain, crepitus, or evident instability.” Tr. at 437. Citing 5 “chronic back pain” as the issue that would keep Ms. Conner from 6 working, Dr. Hipolito stated she based her opinion on the use of a 7 walker and a decreased range of motion in her spine. Tr. at 413. In 8 light of the fact that no doctor ever prescribed Ms. Conner a walker 9 and the full range of motion Dr. Hipolito found just one month prior, 10 Dr. Hipolito’s opinion did not match her own objective medical 11 evidence. Tr. at 267. Ms. Conner argues that Dr. Hipolito rightfully 12 came to those conclusions by taking her subjective self-reports into 13 account, but Ms. Conner’s self-reports hold little weight due to her 14 pattern of overstatement throughout the record, as explained earlier. 15 Tr. at 227. Contradictions between a physician’s clinical notes and opinion 16 17 is a clear and convincing reason to discredit that physician’s 18 opinion. Bayliss v. Barnhart, 427 F.3d 1211, 1216 (9th Cir. 2005). 19 Furthermore, “[a]n ALJ may reject a treat physician’s opinion if it is 20 based ‘to a large extent’ on claimant’s self-reports that have been 21 properly discounted as incredible.” Tommasetti v. Astrue, 533 F.3d 22 1035, 1041 (9th Cir. 2008) (quoting Morgan v. Comm’r Soc. Sec. Admin., 23 169 F.3d 595, 602 (9th Cir. 1999)). Therefore, the ALJ met its burden 24 by providing clear and convincing reasons supported by substantial 25 evidence to give little weight to Dr. Hipolito’s opinion. Accordingly, 26 the ALJ did not improperly give the opinion insufficient weight. ORDER GRANTING DEFENDANT'S SUMMARY-JUDGMENT MOTION AND DENYING PLAINTIFF'S SUMMARY-JUDGMENT MOTION - 14 b. 1 2 Ms. Dr. Penny Stringer, M.D. Conner argues the ALJ also improperly rejected Dr. 3 Stringer’s opinion regarding the number of work days Ms. Conner would 4 miss per month. The ALJ found there was no evidence Dr. Stringer ever 5 treated Ms. Conner, but she did fill out a questionnaire following a 6 2011 appointment, similar to the one submitted by Dr. Hipolito in 7 2014. Tr. at 209–210 & 225. For the following reasons, the Court finds 8 the ALJ properly rejected Dr. Stringer’s opinion. 9 In Ms. Conner’s first appeal to this Court, she made the same 10 claim: The ALJ improperly rejected Dr. Stringer’s opinion. Tr. at 311. 11 The Honorable Fred Van Sickle ruled that Dr. Stringer’s opinion was 12 rightfully rejected by the ALJ because of the lack of citation to any 13 medical evidence to support her conclusion, as well as contradictions 14 to Ms. Conner’s other treating physicians’ opinions. Conner v. Colvin, 15 No. CV–13–5033–FVS, 2015 WL 2094345, at *5–6 (E.D. Wash. May 20, 2014) 16 (citing Bayliss, 427 F.3d at 1216; & 20 C.F.R. § 404.1527(c)(4)). No 17 evidence 18 following 19 conclusions or amended her previous findings or opinions. in the her record appeal, suggests Ms. and Stringer Dr. Conner visited has not Dr. Stringer provided new 20 Generally, a court is “precluded from reconsidering an issue 21 that has already been decided by the same court” in the same case. 22 Thomas v. Bible, 983 F.2d 152, 154 (9th Cir. 1993) (citing Milgard 23 Tempering Inc. v. Selas Corp. of America, 902 f.2d 703, 715 (9th Cir. 24 1990)). Because nothing about Dr. Stringer’s opinion has changed since 25 the ALJ first rightfully rejected it, the Court finds the ALJ properly 26 rejected Dr. Stringer’s opinion. ORDER GRANTING DEFENDANT'S SUMMARY-JUDGMENT MOTION AND DENYING PLAINTIFF'S SUMMARY-JUDGMENT MOTION - 15 1 3. Remand for Immediate Award 2 The Court did not find any reversible error committed by the 3 ALJ. Therefore, remand with instructions to grant immediate award to 4 Ms. Conner would be improper. 5 F. Conclusion 6 In summary, the Court affirms the ALJ’s decision that Ms. Conner 7 is not disabled defined under the Social Security Act. Therefore, the 8 Court 9 Plaintiff’s summary-judgment motion. grants Defendant’s summary-judgment 10 1. and denies Accordingly, IT IS HEREBY ORDERED: 11 motion DENIED. 12 13 Plaintiff’s Motion for Summary Judgment, ECF No. 13, is 2. The Commissioner’s Motion for Summary Judgment, ECF No. 15, is GRANTED. 14 15 3. JUDGMENT is to be entered in the Commissioner’s favor. 16 4. The case shall be CLOSED. 17 IT IS SO ORDERED. 18 19 The Clerk’s Office is directed to enter this Order and provide copies to all counsel. DATED this 28th day of July 2016. 20 21 s/Edward F. Shea EDWARD F. SHEA Senior United States District Judge 22 23 24 25 26 Q:\EFS\Civil\2015\5051.socsec.lc2.docx ORDER GRANTING DEFENDANT'S SUMMARY-JUDGMENT MOTION AND DENYING PLAINTIFF'S SUMMARY-JUDGMENT MOTION - 16
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