Combs v. Commissioner of Social Security, No. 4:2017cv05016 - Document 18 (E.D. Wash. 2018)
Court Description: ORDER DENYING PLAINTIFFS MOTION FOR SUMMARY JUDGMENT 15 AND GRANTING DEFENDANTS MOTION FOR SUMMARY JUDGMENT 16 . FILE CLOSED. Signed by Magistrate Judge Mary K. Dimke. (AN, Courtroom Deputy)
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Combs v. Commissioner of Social Security Doc. 18 1 2 FI LED I N THE U.S. DI STRI CT COURT EASTERN DI STRI CT OF WASHI NGTON 3 Mar 30, 2018 SEAN F. MCAVOY, CLERK 4 5 UNITED STATES DISTRICT COURT 6 EASTERN DISTRICT OF WASHINGTON 7 CHEREE COLLETTE COMBS, No. 4:17-cv-05016-MKD 8 ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT Plaintiff, 9 vs. 10 COMMISSIONER OF SOCIAL SECURITY, 11 Defendant. ECF Nos. 15, 16 12 BEFORE THE COURT are the parties’ cross-motions for summary 13 14 judgment. ECF Nos. 15, 16. The parties consented to proceed before a magistrate 15 judge. ECF No. 7. The Court, having reviewed the administrative record and the 16 parties’ briefing, is fully informed. For the reasons discussed below, the Court 17 denies Plaintiff’s motion (ECF No. 15) and grants Defendant’s motion (ECF No. 18 16). 19 20 21 ORDER - 1 Dockets.Justia.com 1 2 JURISDICTION The Court has jurisdiction over this case pursuant to 42 U.S.C. § 1383(c)(3). 3 4 STANDARD OF REVIEW A district court’s review of a final decision of the Commissioner of Social 5 Security is governed by 42 U.S.C. § 405(g). The scope of review under § 405(g) is 6 limited; the Commissioner’s decision will be disturbed “only if it is not supported 7 by substantial evidence or is based on legal error.” Hill v. Astrue, 698 F.3d 1153, 8 1158 (9th Cir. 2012). “Substantial evidence” means “relevant evidence that a 9 reasonable mind might accept as adequate to support a conclusion.” Id. at 1159 10 (quotation and citation omitted). Stated differently, substantial evidence equates to 11 “more than a mere scintilla[,] but less than a preponderance.” Id. (quotation and 12 citation omitted). In determining whether the standard has been satisfied, a 13 reviewing court must consider the entire record as a whole rather than searching 14 for supporting evidence in isolation. Id. 15 In reviewing a denial of benefits, a district court may not substitute its 16 judgment for that of the Commissioner. Edlund v. Massanari, 253 F.3d 1152, 17 1156 (9th Cir. 2001). If the evidence in the record “is susceptible to more than one 18 rational interpretation, [the court] must uphold the ALJ’s findings if they are 19 supported by inferences reasonably drawn from the record.” Molina v. Astrue, 674 20 F.3d 1104, 1111 (9th Cir. 2012). Further, a district court “may not reverse an 21 ORDER - 2 1 ALJ’s decision on account of an error that is harmless.” Id. An error is harmless 2 “where it is inconsequential to the [ALJ’s] ultimate nondisability determination.” 3 Id. at 1115 (quotation and citation omitted). The party appealing the ALJ’s 4 decision generally bears the burden of establishing that it was harmed. Shinseki v. 5 Sanders, 556 U.S. 396, 409-10 (2009). 6 7 FIVE-STEP EVALUATION PROCESS A claimant must satisfy two conditions to be considered “disabled” within 8 the meaning of the Social Security Act. First, the claimant must be “unable to 9 engage in any substantial gainful activity by reason of any medically determinable 10 physical or mental impairment which can be expected to result in death or which 11 has lasted or can be expected to last for a continuous period of not less than twelve 12 months.” 42 U.S.C. § 1382c(a)(3)(A). Second, the claimant’s impairment must be 13 “of such severity that he is not only unable to do his previous work[,] but cannot, 14 considering his age, education, and work experience, engage in any other kind of 15 substantial gainful work which exists in the national economy.” 42 U.S.C. § 16 1382c(a)(3)(B). 17 The Commissioner has established a five-step sequential analysis to 18 determine whether a claimant satisfies the above criteria. See 20 C.F.R. § 19 416.920(a)(4)(i)-(v). At step one, the Commissioner considers the claimant’s work 20 activity. 20 C.F.R. § 416.920(a)(4)(i). If the claimant is engaged in “substantial 21 ORDER - 3 1 gainful activity,” the Commissioner must find that the claimant is not disabled. 20 2 C.F.R. § 416.920(b). 3 If the claimant is not engaged in substantial gainful activity, the analysis 4 proceeds to step two. At this step, the Commissioner considers the severity of the 5 claimant’s impairment. 20 C.F.R. § 416.920(a)(4)(ii). If the claimant suffers from 6 “any impairment or combination of impairments which significantly limits [his or 7 her] physical or mental ability to do basic work activities,” the analysis proceeds to 8 step three. 20 C.F.R. § 416.920(c). If the claimant’s impairment does not satisfy 9 this severity threshold, however, the Commissioner must find that the claimant is 10 not disabled. 20 C.F.R. § 416.920(c). 11 At step three, the Commissioner compares the claimant’s impairment to 12 severe impairments recognized by the Commissioner to be so severe as to preclude 13 a person from engaging in substantial gainful activity. 20 C.F.R. § 14 416.920(a)(4)(iii). If the impairment is as severe or more severe than one of the 15 enumerated impairments, the Commissioner must find the claimant disabled and 16 award benefits. 20 C.F.R. § 416.920(d). 17 If the severity of the claimant’s impairment does not meet or exceed the 18 severity of the enumerated impairments, the Commissioner must pause to assess 19 the claimant’s “residual functional capacity.” Residual functional capacity (RFC), 20 defined generally as the claimant’s ability to perform physical and mental work 21 ORDER - 4 1 activities on a sustained basis despite his or her limitations, 20 C.F.R. § 2 416.945(a)(1), is relevant to both the fourth and fifth steps of the analysis. 3 At step four, the Commissioner considers whether, in view of the claimant’s 4 RFC, the claimant is capable of performing work that he or she has performed in 5 the past (past relevant work). 20 C.F.R. § 416.920(a)(4)(iv). If the claimant is 6 capable of performing past relevant work, the Commissioner must find that the 7 claimant is not disabled. 20 C.F.R. § 416.920(f). If the claimant is incapable of 8 performing such work, the analysis proceeds to step five. 9 At step five, the Commissioner considers whether, in view of the claimant’s 10 RFC, the claimant is capable of performing other work in the national economy. 11 20 C.F.R. § 416.920(a)(4)(v). In making this determination, the Commissioner 12 must also consider vocational factors such as the claimant’s age, education and 13 past work experience. 20 C.F.R. § 416.920(a)(4)(v). If the claimant is capable of 14 adjusting to other work, the Commissioner must find that the claimant is not 15 disabled. 20 C.F.R. § 416.920(g)(1). If the claimant is not capable of adjusting to 16 other work, analysis concludes with a finding that the claimant is disabled and is 17 therefore entitled to benefits. 20 C.F.R. § 416.920(g)(1). 18 The claimant bears the burden of proof at steps one through four above. 19 Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999). If the analysis proceeds to 20 step five, the burden shifts to the Commissioner to establish that (1) the claimant is 21 ORDER - 5 1 capable of performing other work; and (2) such work “exists in significant 2 numbers in the national economy.” 20 C.F.R. § 416.960(c)(2); Beltran v. Astrue, 3 700 F.3d 386, 389 (9th Cir. 2012). ALJ’S FINDINGS 4 5 Plaintiff protectively filed an application for Title XVI supplemental security 6 income benefits on March 27, 2013, alleging a disability onset date of November 7 21, 2011. Tr. 280-89. The application was denied initially, Tr. 155-58, and on 8 reconsideration, Tr. 161-72. Plaintiff appeared at a hearing before an 9 administrative law judge (ALJ) on September 4, 2014, Tr. 43-74, and again on July 10 17, 2015. Tr. 75-123. On January 19, 2016, the ALJ denied Plaintiff’s claim. Tr. 11 18-33. 12 At step one of the sequential evaluation analysis, the ALJ found Plaintiff has 13 not engaged in substantial gainful activity since March 27, 2013. Tr. 20. At step 14 two, the ALJ found Plaintiff has the following severe impairments: obesity, gastro 15 esophageal reflux disease (GERD), irritable bowel syndrome (IBS), delayed sleep 16 disorder, headaches, and fibromyalgia versus pain disorder. Tr. 20. At step three, 17 the ALJ found Plaintiff does not have an impairment or combination of 18 impairments that meets or medically equals the severity of a listed impairment. Tr. 19 25. The ALJ then concluded Plaintiff has the RFC to perform light work with the 20 following limitations: 21 ORDER - 6 1 The claimant can occasionally balance, stoop, kneel, and crouch, and cannot crawl or climb ramps, stairs, ladders, ropes, or scaffolds, and must avoid concentrated exposure to extreme cold, to pulmonary irritants such as fumes, odors, dusts, gases, and poor ventilation, and to hazards. 2 3 Tr. 25-26. 4 At step four, the ALJ found Plaintiff is able to perform past relevant work as 5 a social services aide. Tr. 31. Alternatively, at step five, the ALJ found there are 6 jobs that exist in significant numbers in the national economy that Plaintiff can 7 perform, such as cashier II, fast food worker, production assembler, telephone 8 quotation clerk, assembler, and hand bander. Tr. 32. Thus, the ALJ concluded 9 Plaintiff has not been under a disability since March 27, 2013. Tr. 33. On January 10 11 3, 2017, the Appeals Council denied review of the ALJ’s decision, Tr. 1-4, making the ALJ’s decision the Commissioner’s final decision for purposes of judicial 12 review. See 42 U.S.C. § 1383(c)(3). 13 ISSUES 14 Plaintiff seeks judicial review of the Commissioner’s final decision denying 15 her supplemental security income benefits under Title XVI of the Social Security 16 Act. Plaintiff raises the following issues for review: 17 1. Whether the ALJ properly identified all of Plaintiff’s severe 18 impairments at step two; 19 2. 20 and 21 ORDER - 7 Whether the ALJ properly evaluated the medical opinion evidence; 1 3. Whether the ALJ’s findings at steps four and five are supported by 2 substantial evidence. 3 ECF No. 15 at 6-20. 4 DISCUSSION 5 A. Step Two Plaintiff contends that the ALJ improperly failed to identify Plaintiff’s 6 7 mental impairments as severe impairments at step two. ECF No. 15 at 8-9. 8 At step two of the sequential process, the ALJ must determine whether 9 claimant suffers from a “severe” impairment, i.e., one that significantly limits her 10 physical or mental ability to do basic work activities. 20 C.F.R. § 416.920(c). To 11 show a severe impairment, the claimant must first prove the existence of a physical 12 or mental impairment by providing medical evidence consisting of signs, 13 symptoms, and laboratory findings; the claimant’s own statement of symptoms 14 alone will not suffice. 20 C.F.R. § 416.908 (2010).1 An impairment may be found to be not severe when “medical evidence 15 16 establishes only a slight abnormality or a combination of slight abnormalities 17 18 1 As of March 27, 2017, 20 C.F.R. § 416.908 was removed and reserved and 20 19 C.F.R. § 416.921 was revised. The Court applies the version that was in effect at 20 the time of the ALJ’s decision. 21 ORDER - 8 1 which would have no more than a minimal effect on an individual’s ability to 2 work….” S.S.R. 85-28 at *3. Similarly, an impairment is not severe if it does not 3 significantly limit a claimant’s physical or mental ability to do basic work 4 activities; which include walking, standing, sitting, lifting, pushing, pulling, 5 reaching, carrying, or handling; seeing, hearing, and speaking; understanding, 6 carrying out and remembering simple instructions; responding appropriately to 7 supervision, coworkers and usual work situations; and dealing with changes in a 8 routine work setting. 20 C.F.R. § 416.921(a) (2010);2 S.S.R. 85-28. Step two is “a de minimus screening device [used] to dispose of groundless 9 10 claims.” Smolen v. Chater, 80 F.3d 1273, 1290 (9th Cir. 1996). “Thus, applying 11 our normal standard of review to the requirements of step two, [the Court] must 12 determine whether the ALJ had substantial evidence to find that the medical 13 evidence clearly established that [Plaintiff] did not have a medically severe 14 impairment or combination of impairments.” Webb v. Barnhart, 433 F.3d 683, 687 15 (9th Cir. 2005). 16 17 2 The Supreme Court upheld the validity of the Commissioner’s severity 18 regulation, as clarified in S.S.R. 85-28, in Bowen v. Yuckert, 482 U.S. 137, 153-54 19 (1987). As of March 27, 2017, 20 C.F.R. §§ 416.921 and 416.922 were amended. 20 The Court applies the version that was in effect at the time of the ALJ’s decision. 21 ORDER - 9 Here, the ALJ considered Plaintiff’s mental impairments at step two. Tr. 21- 1 2 24. The ALJ considered the medical evidence and found that observations from 3 Plaintiff’s medical providers did not show severely limiting mental health 4 symptoms, that Plaintiff’s performance on objective examinations was inconsistent 5 with severely limiting mental health symptoms, and that Plaintiff’s minimal mental 6 health treatment was inconsistent with the level of impairment she alleged. Tr. 217 22. The ALJ also considered the medical opinions of Dr. Haney, Dr. Kraft, and 8 Dr. Scholtz, and, as discussed infra, properly discredited their opinions.3 Tr. 229 23. The ALJ then considered the Paragraph B criteria, see 20 C.F.R., Part 404, 10 Subpart P, Appendix I, and concluded that Plaintiff had only mild restrictions in 11 activities of daily living, social functioning, and concentration, persistence, or 12 pace, and no episodes of decompensation. Tr. 24. Based on this analysis, the ALJ 13 concluded Plaintiff had the medically determinable impairments of affective 14 disorder and/or anxiety disorder, but concluded that these impairments did not 15 16 17 3 Dr. Ortolano also opined Plaintiff was limited by depression. Tr. 823. Although 18 the ALJ did not discuss Dr. Ortolano’s opinion at step two, Dr. Ortolano’s opinion 19 does not change the step two analysis because the ALJ properly rejected Dr. 20 Ortolano’s opinion. See infra. 21 ORDER - 10 1 cause more than minimal limitation in Plaintiff’s ability to perform basic mental 2 work activities, and were therefore not severe impairments. Tr. 23. Plaintiff challenges the ALJ’s conclusion by citing evidence in the record 3 4 that shows Plaintiff had mental health impairments. ECF No. 15 at 8-9; see, e.g., 5 Tr. 555 (initial diagnosis: consider major depressive disorder);4 Tr. 633 (diagnosis: 6 adjustment disorder with mixed anxiety and depressed mood); Tr. 724, 737 7 (elevated PHQ-9 and GAD-7 scores); Tr. 828 (diagnosis: major depression); Tr. 8 679, 736, 838 (Plaintiff observed as depressed). However, “[t]he mere diagnosis 9 of an impairment … is not sufficient to sustain a finding of disability.” Key v. 10 Heckler, 754 F.2d 1545, 1549 (9th Cir. 1985). A severe impairment is one that 11 significantly limits a claimant’s physical or mental ability to do basic work 12 activities. 20 C.F.R. § 416.920(c). Although Plaintiff challenges the ALJ’s 13 conclusion, Plaintiff fails to show her mental health diagnoses had more than a 14 minimal effect on her ability to work. As discussed infra, the only medical 15 providers who opined mental functional impairments were properly discredited by 16 the ALJ. Additionally, Plaintiff failed to challenge the ALJ’s credibility 17 determination of Plaintiff’s symptom complaints. ECF No. 15 at 6-20. The ALJ’s 18 19 4 Plaintiff inaccurately characterizes this as a diagnosis of major depressive 20 disorder. ECF No. 15 at 8, 16. 21 ORDER - 11 1 conclusion that Plaintiff’s mental health impairments were not severe impairments 2 is supported by substantial evidence. Furthermore, even if the ALJ should have determined that Plaintiff’s mental 3 4 impairments were severe impairments, any error would be harmless because step 5 two was resolved in Plaintiff’s favor. Stout v. Comm’r of Soc. Sec. Admin., 454 6 F.3d 1050, 1055 (9th Cir. 2006); Burch v. Barnhart, 400 F.3d 676, 682 (9th Cir. 7 2005). Plaintiff makes no showing that any of the conditions mentioned created 8 limitations that should be accounted for in the RFC. See Shinseki, 556 U.S. at 4099 10 (the party challenging the ALJ’s decision bears the burden of showing harm). 10 Thus, the ALJ’s step two finding is legally sufficient. 11 B. Medical Opinion Evidence Plaintiff challenges the ALJ’s consideration of the medical opinions of 12 13 Shannon Dramis, D.O.; Marlon Balauag, M.D.; Alex Ortolano, M.D.; Brendon 14 Scholtz, Ph.D.; Steven Haney, M.D.; and Patricia Kraft, Ph.D. ECF No. 15 at 915 17. 16 There are three types of physicians: “(1) those who treat the claimant 17 (treating physicians); (2) those who examine but do not treat the claimant 18 (examining physicians); and (3) those who neither examine nor treat the claimant 19 [but who review the claimant’s file] (nonexamining [or reviewing] physicians).” 20 Holohan v. Massanari, 246 F.3d 1195, 1201-02 (9th Cir. 2001) (citations omitted). 21 ORDER - 12 1 Generally, a treating physician’s opinion carries more weight than an examining 2 physician’s, and an examining physician’s opinion carries more weight than a 3 reviewing physician’s. Id. at 1202. “In addition, the regulations give more weight 4 to opinions that are explained than to those that are not, and to the opinions of 5 specialists concerning matters relating to their specialty over that of 6 nonspecialists.” Id. (citations omitted). 7 If a treating or examining physician’s opinion is uncontradicted, the ALJ 8 may reject it only by offering “clear and convincing reasons that are supported by 9 substantial evidence.” Bayliss v. Barnhart, 427 F.3d 1211, 1216 (9th Cir. 2005). 10 “However, the ALJ need not accept the opinion of any physician, including a 11 treating physician, if that opinion is brief, conclusory and inadequately supported 12 by clinical findings.” Bray v. Comm’r of Soc. Sec. Admin., 554 F.3d 1219, 1228 13 (9th Cir. 2009) (internal quotation marks and brackets omitted). “If a treating or 14 examining doctor’s opinion is contradicted by another doctor’s opinion, an ALJ 15 may only reject it by providing specific and legitimate reasons that are supported 16 by substantial evidence.” Bayliss, 427 F.3d at 1216 (citing Lester v. Chater, 81 17 F.3d 821, 830-831 (9th Cir. 1995)). 18 1. Shannon Dramis, D.O. 19 Dr. Dramis began treating Plaintiff in 2010, and opined on August 4, 2015, 20 and September 28, 2015, that due to migraines and fibromyalgia Plaintiff had to lie 21 ORDER - 13 1 down for up to three hours per day and that Plaintiff would miss four or more days 2 of work per month. Tr. 939-42. The ALJ gave little weight to Dr. Dramis’ 3 opinion. Tr. 29. Because Dr. Dramis’ opinions were contradicted by Dr. Koukol, 4 Tr. 149-50, and Dr. Alexander, Tr. 93-94, the ALJ was required to provide specific 5 and legitimate reasons for rejecting the opinions. Bayliss, 427 F.3d at 1216. 6 First, the ALJ found Dr. Dramis’ opinions were inconsistent with physical 7 examination findings. Tr. 30. Relevant factors to evaluating any medical opinion 8 include the amount of relevant evidence that supports the opinion, the quality of 9 the explanation provided in the opinion, and the consistency of the medical opinion 10 with the record as a whole. Lingenfelter v. Astrue, 504 F.3d 1028, 1042 (9th Cir. 11 2007); Orn v. Astrue, 495 F.3d 625, 631 (9th Cir. 2007). Moreover, a physician’s 12 opinion may be rejected if it is unsupported by the physician’s treatment notes. 13 See Connett v. Barnhart, 340 F.3d 871, 875 (9th Cir. 2003). However, “[i]n 14 evaluating whether a claimant’s residual functional capacity renders them disabled 15 because of fibromyalgia, the medical evidence must be construed in light of 16 fibromyalgia’s unique symptoms and diagnostic methods.” Revels v. Berryhill, 17 874 F.3d 648, 662 (9th Cir. 2017). Fibromyalgia “is diagnosed ‘entirely on the 18 basis of patients’ reports of pain and other symptoms,’ and ‘there are no laboratory 19 test to confirm the diagnosis.’” Id. at 666 (citing Benecke v. Barnhart, 379 F.3d 20 21 ORDER - 14 1 587, 590 (9th Cir. 2004)). “[T]he symptoms of fibromyalgia ‘wax and wane,’ and 2 a person may have ‘bad days and good days.’” Id. 3 Although it is unclear whether the ALJ refers specifically to Dr. Dramis’ 4 own examinations of Plaintiff or the physical examinations reflected in the record 5 as a whole, the record supports both. Dr. Dramis’ physical examination findings 6 yielded generally normal results. Tr. 482-95, 845-48, 860-921. Other physical 7 examinations in the record yield similar findings, including normal range of 8 motion and muscle strength. See, e.g., Tr. 458, 463, 468, 548-41. The ALJ also 9 noted that objective imaging failed to corroborate severe pain. Tr. 27. However, 10 fibromyalgia is a disease that eludes objective measurement. Benecke, 379 F.3d at 11 594. “[A] person with fibromyalgia may have ‘muscle strength, sensory functions, 12 and reflexes [that] are normal.’” Revels, 874 F.3d at 663. Normal objective 13 examination results can be “perfectly consistent with debilitating fibromyalgia.” 14 Id. at 666. The ALJ failed to consider the unique nature of fibromyalgia in 15 evaluating the physical examination evidence. Id. at 662. 16 The ALJ noted that Dr. Dramis failed to conduct a tender point examination. 17 Tr. 30. However, the ALJ failed to consider the tender point evidence in the 18 record. “[T]ender-point examinations themselves constitute ‘objective medical 19 evidence’ of fibromyalgia.” Revels, 874 F.3d at 663. Although Dr. Dramis did not 20 perform a fibromyalgia tender point examination, she noted that she was aware 21 ORDER - 15 1 other medical providers had done so. Tr. 940; see Tr. 459, 464, 468. The ALJ 2 concluded that “apart from fibromyalgia tender points the claimant had normal 3 physical examinations throughout the relevant period.” Tr. 27. However, this 4 observation is not inconsistent with disabling fibromyalgia. Revels, 874 F.3d at 5 666. 6 To the extent the ALJ may have erred when he relied on a lack of objective 7 examination findings without giving significant consideration to the tender point 8 evidence, any error is harmless. An error is harmless “where it is inconsequential 9 to the [ALJ’s] ultimate nondisability determination.” Molina, 674 F.3d at 1115. 10 Here, the ALJ gave other specific, legitimate reasons for assigning less weight to 11 Dr. Dramis’ opinion. See, e.g., Morgan v. Comm’r of Soc. Sec Admin., 169 F.3d 12 595, 601-02 (9th Cir. 1999). Therefore, the outcome is the same despite the 13 improper reasoning. Errors that do not affect the ultimate result are harmless. See 14 Parra v. Astrue, 481 F.3d 742, 747 (9th Cir. 2007); Curry v. Sullivan, 925 F.2d 15 1127, 1131 (9th Cir. 1990); Booz v. Sec’y of Health and Human Servs., 734 F.2d 16 1378, 1380 (9th Cir. 1984). 17 Second, the ALJ found Dr. Dramis’ opinions were inconsistent with the 18 record showing Plaintiff was generally not in distress. Tr. 30. An ALJ may 19 discredit physicians’ opinions that are unsupported by the record as a whole. 20 Batson v. Comm’r of Soc. Sec. Admin., 359 F.3d 1190, 1195 (9th Cir. 2004). Dr. 21 ORDER - 16 1 Dramis’ opined limitations stemmed from Plaintiff’s migraine headaches and 2 fibromyalgia pain. Tr. 939-42. “[T]he symptoms of fibromyalgia ‘wax and wane,’ 3 and a person may have ‘bad days and good days.’” Revels, 874 F.3d at 666. 4 However, on reviewing the record as a whole, the ALJ observed that Plaintiff’s 5 medical providers frequently observed Plaintiff was in no apparent distress. Tr. 6 30; see Tr. 419, 483, 487-88, 647, 650, 664, 677, 681, 719, 721, 756, 783, 788, 7 817, 845, 846, 848, 860, 864, 868, 872, 875, 878, 880, 883, 887, 890, 891, 894, 8 896, 901, 905, 908, 910, 912, 914, 918, 920, 924. The ALJ reasonably concluded 9 that Plaintiff would have been more frequently observed to be in distress were her 10 pain as severe and persistent as Dr. Dramis’ opinions indicated. Tr. 30. This was a 11 specific and legitimate reason to discredit Dr. Dramis’ opinions. 12 Third, the ALJ found Dr. Dramis’ opinions were inconsistent with Plaintiff’s 13 daily activities. Tr. 30. An ALJ may discount an opinion that is inconsistent with 14 a claimant’s reported functioning. Morgan, 169 F.3d at 601-02. The ALJ 15 observed Plaintiff reported she was able to prepare meals, perform household 16 chores, sell Mary Kay cosmetics, shop at the grocery store, start an early childhood 17 education program, and care for her newborn son. Tr. 28; see Tr. 314-25, 482, 18 922. Although Plaintiff reported additional symptom-based limitations in 19 performing these activities, the ALJ found Plaintiff’s symptom complaints were 20 “not entirely credible,” and Plaintiff does not challenge this finding. Tr. 26; ECF 21 ORDER - 17 1 No. 15 at 6-20. The ALJ reasonably concluded Plaintiff’s daily activities were 2 inconsistent with the level of limitation Dr. Dramis opined. Tr. 30. This was a 3 specific and legitimate reason to discredit Dr. Dramis’ opinions. Fourth, the ALJ found Dr. Dramis’ opinions were inconsistent with 4 5 Plaintiff’s failure to follow treatment recommendations. Tr. 30. An ALJ may 6 discredit a claimant’s symptom complaints if the claimant fails to show good 7 reason for failing to follow treatment recommendations. Smolen, 80 F.3d at 1284. 8 However, the fact that a claimant fails to follow recommended treatment is not 9 directly relevant to the weight of a medical provider’s opinion. See 20 C.F.R. § 10 416.927(c). Without further explanation of how Plaintiff’s failure to follow 11 treatment recommendations specifically undermined Dr. Dramis’ medical 12 opinions, this is not a specific and legitimate reason to discredit Dr. Dramis’ 13 opinions. However, this error is harmless because the ALJ provided other specific 14 and legitimate reasons to discredit Dr. Dramis’ opinions. See Parra, 481 F.3d at 15 747. 16 Fifth, the ALJ discredited Dr. Dramis’ opinions because he concluded she 17 “failed to carefully consider the questions in these forms.” Tr. 30. The quality of 18 the explanation provided for a medical opinion is relevant to evaluating the 19 medical opinion. Lingenfelter, 504 F.3d at 1042. The ALJ noted that Dr. Dramis’ 20 first report indicated the “first and last date of treatment” was “8/4/15” and failed 21 ORDER - 18 1 to indicate the duration of Plaintiff’s limitations in her first report. Tr. 939-40. 2 However, Dr. Dramis’ second report indicated the first date of treatment was in 3 2010. Tr. 941. The ALJ reasonably concluded that these inconsistencies indicated 4 Dr. Dramis did not complete the forms with care. This was a specific and 5 legitimate reason to discredit Dr. Dramis’ opinions. 6 Finally, the ALJ found Dr. Dramis’ opinions were based on Plaintiff’s 7 subjective symptom complaints. Tr. 30. An ALJ may discredit medical opinions 8 that are based on a properly-discredited Plaintiff’s symptom complaints. 9 Tonapetyan v. Halter, 242 F.3d 1144, 1149 (9th Cir. 2001); Morgan, 169 F.3d at 10 602; Fair v. Bowen, 885 F.2d 597, 604 (9th Cir. 1989). The ALJ noted Plaintiff 11 inconsistently reported medication side effects, fatigue, and constipation to 12 different medical providers, including Dr. Dramis, which reports Dr. Dramis relied 13 on in formulating her opinions. Tr. 30; see Tr. 922-23, 939. Plaintiff argues 14 Plaintiff’s inconsistent symptom reporting reflects Plaintiff’s evolving symptoms, 15 rather than a lack of credibility. ECF No. 15 at 15. However, in evaluating the 16 credibility of symptom testimony, the ALJ may utilize ordinary techniques of 17 credibility evaluation, including considering prior inconsistent statements. Smolen, 18 80 F.3d at 1284. The ALJ reasonably concluded that Plaintiff’s symptom 19 complaints were less credible based on these inconsistent reports. 20 21 ORDER - 19 1 Additionally, Plaintiff disputes the ALJ’s determination that Dr. Dramis 2 relied on Plaintiff’s subjective complaints. Id. at 15. “[W]hen an opinion is not 3 more heavily based on a patient’s self-reports than on clinical observations, [this] 4 is no evidentiary basis for rejecting the opinion.” Ghanim v. Colvin, 763 F.3d 5 1154, 1162 (9th Cir. 2014). Here, the ALJ noted Dr. Dramis relied on Plaintiff’s 6 reports of fatigue, pain, and constipation, which are symptoms that have to be 7 based on Plaintiff’s subjective statements. Tr. 30. This was a specific and 8 legitimate reason to discredit Dr. Dramis’ opinions. 9 10 2. Marlon Balauag, M.D. Dr. Balauag examined Plaintiff on March 1, 2013, and opined Plaintiff’s 11 fibromyalgia caused moderate interference with sitting and reaching; marked 12 interference with standing, walking, lifting, carrying, pushing, pulling, stooping, 13 and crouching; that Plaintiff was limited to sedentary work, defined as the ability 14 lift ten pounds maximum, frequently lift or carry lightweight articles, and walk or 15 stand only for brief periods; and that Plaintiff’s limitations were expected to persist 16 with treatment for six months. Tr. 820-22. The ALJ gave this opinion little 17 weight. Tr. 30. Because Dr. Balauag’s opinions were contradicted by Dr. Koukol, 18 Tr. 149-50, and Dr. Alexander, Tr. 93-94, the ALJ was required to provide specific 19 and legitimate reasons for rejecting the opinions. Bayliss, 427 F.3d at 1216. 20 21 ORDER - 20 1 First, the ALJ found Dr. Balauag failed to provide any support for his 2 opinions other than a general reference to his treatment notes. Tr. 30. Relevant 3 factors to evaluating any medical opinion include the amount of relevant evidence 4 that supports the opinion, the quality of the explanation provided in the opinion, 5 and the consistency of the medical opinion with the record as a whole. 6 Lingenfelter, 504 F.3d at 1042; Orn, 495 F.3d at 631. Moreover, a physician’s 7 opinion may be rejected if it is unsupported by the physician’s treatment notes. 8 See Connett, 340 F.3d at 875. However, “[i]n evaluating whether a claimant's 9 residual functional capacity renders them disabled because of fibromyalgia, the 10 medical evidence must be construed in light of fibromyalgia’s unique symptoms 11 and diagnostic methods.” Revels, 874 F.3d at 662. 12 Here, Dr. Balauag offers his own treatment notes in support of his opinion. 13 Tr. 821, see Tr. 548-52. Dr. Balauag examined Plaintiff once and found mostly 14 normal physical examination results, including normal range of motion 15 examination results. Tr. 551-52. The ALJ concluded that Dr. Balauag’s normal 16 physical findings were inconsistent with Dr. Balauag’s opinion that Plaintiff is 17 limited to sedentary work. Tr. 30. However, fibromyalgia is a disease that eludes 18 objective measurement. Benecke, 379 F.3d at 594. “[A] person with fibromyalgia 19 may have ‘muscle strength, sensory functions, and reflexes [that] are normal.’” 20 Revels, 874 F.3d at 663. Normal objective examination results can be “perfectly 21 ORDER - 21 1 consistent with debilitating fibromyalgia.” Id. at 666. That Plaintiff’s physical 2 examination, including range of motion testing, showed normal findings was not 3 necessarily inconsistent with disabling fibromyalgia. 4 Second, the ALJ found Dr. Balauag’s opinion was not supported by the 5 record as a whole. Tr. 30. An ALJ may discredit physicians’ opinions that are 6 unsupported by the record as a whole. Batson, 359 F.3d at 1195. The ALJ 7 observed Dr. Balauag’s opined limitations stemmed from Plaintiff’s fibromyalgia 8 pain. Tr. 30. However, on reviewing the record as a whole, the ALJ observed that 9 Plaintiff’s medical providers frequently observed Plaintiff was in no apparent 10 distress, discomfort, or pain. Tr. 30; see Tr. 419, 483, 487-88, 647, 650, 664, 677, 11 681, 719, 721, 756, 783, 788, 817, 845, 846, 848, 860, 864, 868, 872, 875, 878, 12 880, 883, 887, 890, 891, 894, 896, 901, 905, 908, 910, 912, 914, 918, 920, 924. 13 The ALJ reasonably concluded that Plaintiff would have been more frequently 14 observed to be in distress were her pain as severe as Dr. Balauag’s opinion 15 indicated. Tr. 30. This was a specific and legitimate reason to discredit Dr. 16 Balauag’s opinion. 17 Third, the ALJ found Dr. Balauag’s opinion was inconsistent with Plaintiff’s 18 daily activities. Tr. 30. An ALJ may discount an opinion that is inconsistent with 19 a claimant’s reported functioning. Morgan, 169 F.3d at 601-02. The ALJ 20 observed Plaintiff reported she was able to prepare meals, perform household 21 ORDER - 22 1 chores, sell Mary Kay cosmetics, shop at the grocery store, start an early childhood 2 education program, and care for her newborn son. Tr. 28, 30; see Tr. 314-25, 482, 3 922. The ALJ reasonably concluded these activities were inconsistent with a 4 limitation to sedentary work. Tr. 30. This was a specific and legitimate reason to 5 discredit Dr. Balauag’s opinion. 6 Finally, the ALJ found Dr. Balauag’s opinion was inconsistent with 7 Plaintiff’s failure to follow through with treatment recommendations. The ALJ 8 may discredit a claimant’s symptom complaints if the claimant fails to show good 9 reason for failing to follow treatment recommendations. Smolen, 80 F.3d at 1284. 10 However, the fact that a claimant fails to follow recommended treatment is not 11 directly relevant to the weight of a medical provider’s opinion. See 20 C.F.R. § 12 416.927(c). Without further explanation of how Plaintiff’s failure to follow 13 treatment recommendations undermined Dr. Balauag’s opinion, this was not a 14 specific and legitimate reason to discredit Dr. Balauag. However, this error is 15 harmless because the ALJ provided several other specific and legitimate reasons to 16 discredit Dr. Balauag’s opinions. See Parra, 481 F.3d at 747. 17 Although the ALJ committed some error in his evaluation of Dr. Balauag’s 18 opinion, the error is harmless because the ALJ made alternative findings at step 19 five. An error is harmless “where it is inconsequential to the [ALJ’s] ultimate 20 nondisability determination.” Molina, 674 F.3d at 1115. Dr. Balauag opined 21 ORDER - 23 1 Plaintiff was limited to sedentary work.5 Tr. 822. In the ALJ’s alternative finding 2 at step five, the ALJ identified jobs at the sedentary level that the vocational expert 3 testified Plaintiff would be capable of performing, including telephone quotation 4 clerk, assembler, and hand bander. Tr. 32. Even if the ALJ had fully credited Dr. 5 Balauag’s opinion and found Plaintiff was limited to sedentary work, the ALJ’s 6 disability determination would remain unchanged. Tr. 32-33. Therefore, this error 7 is harmless and not grounds for reversal. 8 3. Alex Ortolano, M.D. 9 Dr. Ortolano treated Plaintiff and opined on January 9, 2015, that Plaintiff’s 10 fibromyalgia, depression, and migraines made her unable to stand or sit for 11 extended periods of time; that Plaintiff was limited to sedentary work, defined as 12 able to lift ten pounds frequently and sitting, walking, and standing for brief 13 periods; and that Plaintiff’s symptoms would limit her ability to work for twelve 14 15 5 Plaintiff notes Dr. Balauag opined additional limitations in handling, pushing, and 16 pulling that were not incorporated into the ALJ’s RFC formulation. ECF No. 17 at 17 4. However, any error in failing to incorporate these limitations into the RFC is 18 harmless because Dr. Balauag opined these limitations would persist for only six 19 months, which falls short of the twelve-month durational requirement for Social 20 Security claims. Tr. 822; see 20 C.F.R. § 416.905. 21 ORDER - 24 1 months. Tr. 823-25. The ALJ gave this opinion little weight. Tr. 30. Because Dr. 2 Ortolano’s opinions were contradicted by Dr. Koukol, Tr. 149-50, and Dr. 3 Alexander, Tr. 93-94, the ALJ was required to provide specific and legitimate 4 reasons for rejecting the opinions. Bayliss, 427 F.3d at 1216. 5 First, the ALJ found Dr. Ortolano’s opinion was unsupported by objective 6 evidence. Tr. 30. Relevant factors to evaluating any medical opinion include the 7 amount of relevant evidence that supports the opinion, the quality of the 8 explanation provided in the opinion, and the consistency of the medical opinion 9 with the record as a whole. Lingenfelter, 504 F.3d at 1042; Orn, 495 F.3d at 631. 10 Moreover, a physician’s opinion may be rejected if it is unsupported by the 11 physician’s treatment notes. See Connett, 340 F.3d at 875. Here, Dr. Ortolano 12 provided no medical evidence, including treatment notes, or other explanation for 13 the basis of his opinion. Tr. 823-25. Furthermore, the record as a whole contains 14 no treatment notes from Dr. Ortolano. Identifying the lack of supporting evidence 15 was a specific and legitimate reason to discredit Dr. Ortolano’s opinion. 16 Second, the ALJ discredited Dr. Ortolano’s opinion because it was based in 17 part on Plaintiff’s depression, and the ALJ found no evidence of severe mental 18 impairments at step two. Tr. 30. The ALJ must consider all of a claimant’s 19 impairments in formulating the RFC, including impairments are not severe. 20 20 C.F.R. §§ 416.920(e), 416.945. The ALJ rejected mental health impairments at 21 ORDER - 25 1 step two because he found no credible medical evidence to support a finding of 2 severe impairment, but the ALJ also rejected Dr. Ortolano’s opinion regarding 3 depression because the ALJ had already rejected mental health conditions at step 4 two. Tr. 21-22, 30. The ALJ’s finding is circular and fails to consider all of 5 Plaintiff’s impairments. This is not a specific and legitimate reason to reject the 6 medical opinion. Given the other reasons, supported by substantial evidence, 7 offered by the ALJ, any error is harmless. See Molina, 674 F.3d at 1115. 8 Third, the ALJ found Dr. Ortolano’s opinion was internally inconsistent and 9 unexplained. A medical opinion may be rejected by the ALJ if it is conclusory, 10 contains inconsistencies, or is inadequately supported. Bray, 554 F.3d at 1228; 11 Thomas v. Barnhart, 278 F.3d 947, 957 (9th Cir. 2002). Dr. Ortolano noted that 12 due to Plaintiff’s pregnancy, Plaintiff was unable to take medications to manage 13 her fibromyalgia, depression, and migraines. Tr. 823. However, Dr. Ortolano also 14 opined Plaintiff’s condition would likely limit her ability to work for twelve 15 months. Tr. 824. The ALJ concluded that these findings were inconsistent and 16 questioned why Plaintiff’s impairments would not improve after her pregnancy, 17 when she would be able to resume taking medication to manage her symptoms. 18 This was a specific and legitimate reason to discredit Dr. Ortolano’s opinion. 19 Fourth, the ALJ found Dr. Ortolano’s opinion was inconsistent with physical 20 examination findings in the record. The ALJ concluded that the normal physical 21 ORDER - 26 1 findings in the record were inconsistent with Dr. Balauag’s opinion that Plaintiff is 2 limited to sedentary work. Tr. 30. However, fibromyalgia is a disease that eludes 3 objective measurement. Benecke, 379 F.3d at 594. “[A] person with fibromyalgia 4 may have ‘muscle strength, sensory functions, and reflexes [that] are normal.’” 5 Revels, 874 F.3d at 663. Normal objective examination results can be “perfectly 6 consistent with debilitating fibromyalgia.” Id. at 666. Plaintiff’s normal physical 7 examination findings are not necessarily inconsistent with disabling fibromyalgia. 8 To the extent any error occurred in analyzing the physical examination findings, it 9 is harmless given the other reasons offered by the ALJ. See Molina, 674 F.3d at 10 1115. 11 Fifth, the ALJ found Dr. Ortolano’s opinion was not supported by the record 12 of Plaintiff not appearing in distress. Tr. 30. An ALJ may discredit physicians’ 13 opinions that are unsupported by the record as a whole. Batson, 359 F.3d at 1195. 14 The ALJ observed Dr. Ortolano’s opined limitations stemmed from Plaintiff’s 15 fibromyalgia pain. Tr. 30. However, in reviewing the record as a whole, the ALJ 16 observed that Plaintiff’s medical providers frequently observed Plaintiff was in no 17 apparent distress, discomfort, or pain. Tr. 30; see Tr. 419, 483, 487-88, 647, 650, 18 664, 677, 681, 719, 721, 756, 783, 788, 817, 845, 846, 848, 860, 864, 868, 872, 19 875, 878, 880, 883, 887, 890, 891, 894, 896, 901, 905, 908, 910, 912, 914, 918, 20 920, 924. The ALJ reasonably concluded that Plaintiff would have been more 21 ORDER - 27 1 frequently observed to be in distress were her pain as severe as Dr. Ortolano’s 2 opinion indicated. Tr. 30. This was a specific and legitimate reason to discredit 3 Dr. Ortolano’s opinion. 4 Sixth, the ALJ found Dr. Ortolano’s opinion was inconsistent with 5 Plaintiff’s daily activities. An ALJ may discount an opinion that is inconsistent 6 with a claimant’s reported functioning. Morgan, 169 F.3d at 601-02. The ALJ 7 observed Plaintiff reported she was able to prepare meals, perform household 8 chores, sell Mary Kay cosmetics, shop at the grocery store, start an early childhood 9 education program, and care for her newborn son. Tr. 28; see Tr. 314-25, 482, 10 922. The ALJ reasonably concluded these activities were inconsistent with a 11 limitation to sedentary work. Tr. 30. This was a specific and legitimate reason to 12 discredit Dr. Ortolano’s opinion. 13 Although the ALJ committed some error in his evaluation of Dr. Ortolano’s 14 opinion, the error is harmless. An error is harmless “where it is inconsequential to 15 the [ALJ’s] ultimate nondisability determination.” Molina, 674 F.3d at 1115. Dr. 16 Ortolano opined Plaintiff was limited to sedentary work. Tr. 822. In the ALJ’s 17 alternative finding at step five, the ALJ identified jobs at the sedentary level that 18 the vocational expert testified Plaintiff would be capable of performing, including 19 telephone quotation clerk, assembler, and hand bander. Tr. 32. Even if the ALJ 20 had fully credited Dr. Ortolano’s opinion and found Plaintiff was limited to 21 ORDER - 28 1 sedentary work, the ALJ’s disability determination would remain unchanged. Tr. 2 32-33. 3 4. Brendon Scholtz, M.D. 4 Dr. Scholtz conducted a consultative examination on June 26, 2013, and 5 opined Plaintiff was significantly impaired by a combination of adjustment 6 disorder and her medical issues, including fibromyalgia; that Plaintiff was unable 7 to maintain full-time employment based on her functional limitations attributable 8 to her physical and psychological distress; that Plaintiff would have little to no 9 trouble understanding, remembering, and carrying out complex instructions; that 10 Plaintiff would have little to no trouble making complex decisions; that Plaintiff’s 11 thinking and reasoning ability were not significantly impaired; that Plaintiff was 12 unable to persist for a normal work week; that Plaintiff’s prognosis was guarded; 13 and that Plaintiff’s impairments would improve significantly or remit within 360 14 days. Tr. 630-34. The ALJ gave Dr. Scholtz’s opinions little weight. Tr. 23. 15 Because these opinions were contradicted by Dr. Haney, Tr. 135-36, and Dr. Kraft, 16 Tr. 151-52, the ALJ was required to provide specific and legitimate reasons for 17 rejecting the opinions. Bayliss, 427 F.3d at 1216. 18 First, the ALJ found Dr. Scholtz’s opinion was based on Plaintiff’s physical 19 symptom complaints, which Dr. Scholtz was not qualified to assess as a 20 psychologist. Tr. 23. A medical provider’s specialization is a relevant 21 ORDER - 29 1 consideration in weighing medical opinion evidence. 20 C.F.R. § 416.927. 2 Additionally, opinions regarding physical limitations are beyond a psychologist’s 3 scope of expertise. See Brosnahan v. Barnhart, 336 F.3d 671, 676 (8th Cir. 2003); 4 Bollinger v. Barnhart, 178 F. App’x 745, 746 n.1 (9th Cir. 2006); Williams v. 5 Colvin, No. 2:14-CV-00213-FVS, 2015 WL 5039911, at *8 (E.D. Wash. Aug. 26, 6 2015). Dr. Scholtz found Plaintiff was “significantly impaired by the combination 7 of her Adjustment Disorder and her Medical issues including Fibromyalgia.” Tr. 8 634. The ALJ accurately noted that Plaintiff’s physical conditions, including 9 fibromyalgia, are outside the scope of Dr. Scholtz’s expertise. Tr. 23. 10 Additionally, the ALJ noted Dr. Scholtz did not conduct a physical examination of 11 Plaintiff. Tr. 23; see Tr. 632-33. Dr. Scholtz’s opinions about Plaintiff’s 12 functional limitations address both Plaintiff’s mental and physical symptoms. This 13 was a specific and legitimate reason to discredit Dr. Scholtz’s opinion. 14 Second, the ALJ noted that Dr. Scholtz’s opinion that Plaintiff is unable to 15 maintain full time employment is an issue reserved to the Commissioner. Tr. 23. 16 A statement by a medical source that a claimant is “unable to work” is not a 17 medical opinion and is not due any special significance. 20 C.F.R. § 416.927(d). 18 Nevertheless, the ALJ is required to “carefully consider medical source opinions 19 about any issue, including opinion about issues that are reserved to the 20 Commissioner.” S.S.R. 96-5p at *2. “If the case record contains an opinion from 21 ORDER - 30 1 a medical source on an issue reserved to the Commissioner, the adjudicator must 2 evaluate all the evidence in the case record to determine the extent to which the 3 opinion is supported by the record.” Id. at *3. Here, although the ALJ rejected this 4 opinion because it was on an issue reserved to the commissioner, the ALJ 5 evaluated the opinion but also identified other reasons for rejecting the opinion 6 discussed supra. Tr. 23. 7 However, any error in the ALJ’s evaluation of Dr. Scholtz’s opinion is 8 harmless. Dr. Scholtz’s opinions were qualified with the limitation that Plaintiff’s 9 impairments “would be expected to improve significantly or remit within 360 10 days.” Tr. 634. Therefore, Dr. Scholtz’s opined limitations fall short of the 11 twelve-month durational requirement for Social Security claims. See 20 C.F.R. § 12 416.905. Even if the ALJ had fully credited Dr. Scholtz’s opinion, the ALJ’s 13 disability determination would remain unchanged. Tr. 32-33. Therefore, this error 14 is harmless and not grounds for reversal. 15 5. Steven Haney, M.D. and Patricia Kraft, Ph.D. 16 Dr. Haney and Dr. Kraft reviewed the record and both opined Plaintiff was 17 moderately limited in her ability to maintain attention and concentration for 18 extended periods; moderately limited in her ability to complete a normal workday 19 and workweek without interruptions from psychologically based symptoms and to 20 perform at a consistent pace without an unreasonable number and length of rest 21 ORDER - 31 1 periods; and that Plaintiff’s concentration, persistence, and pace would wax and 2 wane throughout a workday, but she can maintain concentration, persistence, and 3 pace to persist throughout a workweek. Tr. 135-36, 151-52. The ALJ assigned 4 these opinions little weight. Tr. 22. Because Dr. Haney and Dr. Kraft were 5 contradicted by Dr. Scholtz, Tr. 630-34, the ALJ was required to provide specific 6 and legitimate reasons for rejecting their opinions. Bayliss, 427 F.3d at 1216. 7 First, the ALJ found these opinions were inconsistent with the psychiatric 8 observations in the record. Tr. 22. An ALJ may discredit physicians’ opinions that 9 are unsupported by the record as a whole. Batson, 359 F.3d at 1195. Here, the 10 ALJ identified several instances in the medical record where Plaintiff’s treatment 11 providers made normal psychiatric observations. Tr. 22; see Tr. 463 (normal 12 mental status examination, normal mood and affect); Tr. 468 (normal mental status 13 examination, no anxiety or depression symptoms observed); Tr. 556 (no anxiety or 14 depression symptoms observed); Tr. 561 (normal mental status examination); Tr. 15 724 (normal affect, normal psychiatric observations); Tr. 845 (normal mood, 16 affect, behavior, judgment, and thought content); Tr. 847 (same); Tr. 848 (same); 17 Tr. 899 (normal psychiatric observations); Tr. 924 (appropriate affect and insight 18 intact); Tr. 928 (same); Tr. 932 (appropriate affect and line of thought, insight 19 intact); Tr. 936 (same). The ALJ reasonably concluded that these observations 20 21 ORDER - 32 1 were inconsistent with the moderate limitations Dr. Haney and Dr. Kraft opined. 2 Tr. 22. This was a specific and legitimate reason to discredit their opinions. 3 Second, the ALJ found these opinions were inconsistent with Plaintiff’s 4 performance on mental status examinations. Tr. 22. An ALJ may discredit a 5 physician’s opinions that are unsupported by objective medical findings. See 6 Batson, 359 F.3d at 1195 (noting that “an ALJ may discredit treating physicians’ 7 opinions that are conclusory, brief, and unsupported by the record as a whole, . . . 8 or by objective medical findings”). The ALJ noted Plaintiff’s performance on 9 mental status examinations showed normal findings. Tr. 22; see Tr. 463 (normal 10 mental status examination); Tr. 468 (normal mental status examination); Tr. 561 11 (normal mental status examination); Tr. 632-33 (mostly normal mental status 12 examination with mild impairment in recent memory and fair insight into own 13 condition); Tr. 688 (normal mental status examination); Tr. 724 (normal 14 psychiatric observations) Tr. 845 (normal mood, affect, behavior, judgment, and 15 thought content); Tr. 847 (same); Tr. 848 (same). The ALJ reasonably concluded 16 that this record showed a lack of objective evidence to support Dr. Haney and Dr. 17 Kraft’s conclusions. Tr. 22. This was a specific and legitimate reason to discredit 18 their opinions. 19 Third, the ALJ found these opinions were undercut by Plaintiff’s lack of 20 mental health treatment. Tr. 22. An ALJ may discredit a claimant’s symptom 21 ORDER - 33 1 complaints if the claimant fails to show good reason for failing to follow treatment 2 recommendations. Smolen, 80 F.3d at 1284. However, the fact that a claimant 3 fails to follow recommended treatment is not directly relevant to the weight of a 4 medical provider’s opinion. See 20 C.F.R. § 416.927(c). Without further 5 explanation of how Plaintiff’s failure to seek or pursue treatment specifically 6 undermined the medical opinions of Dr. Haney and Dr. Kraft, this is not a specific 7 and legitimate reason to discredit these opinions. However, this error is harmless 8 because the ALJ provided other specific and legitimate reasons to discredit these 9 opinions. See Parra, 481 F.3d at 747. 10 Finally, the ALJ found these opinions were inconsistent with Plaintiff’s daily 11 activities. Tr. 22. An ALJ may discount an opinion that is inconsistent with a 12 claimant’s reported functioning. Morgan, 169 F.3d at 601-02. The ALJ observed 13 Plaintiff reported she was able to prepare meals, perform household chores, sell 14 Mary Kay cosmetics, shop at the grocery store, start an early childhood education 15 program, and care for her newborn son. Tr. 28; see Tr. 314-25, 482, 922. The ALJ 16 reasonably concluded that these activities were inconsistent with Dr. Haney and 17 Dr. Kraft’s opinions that Plaintiff’s concentration, persistence, and pace would wax 18 and wane with her symptoms. Tr. 22. This was a specific and legitimate reason to 19 discredit these opinions. 20 21 ORDER - 34 1 2 C. Steps Four and Five Plaintiff contends the ALJ’s step four and step five findings regarding 3 Plaintiff’s ability to perform work are not supported by substantial evidence 4 because the testimony from the vocational expert was based on an improper 5 hypothetical. ECF No. 15 at 18-20. The ALJ’s hypothetical must be based on 6 medical assumptions supported by substantial evidence in the record that reflects 7 all of the claimant’s limitations. Osenbrook v. Apfel, 240 F.3d 1157, 1165 (9th Cir. 8 2001). The hypothetical should be “accurate, detailed, and supported by the 9 medical record.” Tackett, 180 F.3d at 1101. The ALJ is not bound to accept as 10 true the restrictions presented in a hypothetical question propounded by a 11 claimant’s counsel. Magallanes v. Bowen, 881 F.2d 747, 756-57 (9th Cir. 1989); 12 Martinez v. Heckler, 807 F.2d 771, 773 (9th Cir. 1986). The ALJ is free to accept 13 or reject these restrictions as long as they are supported by substantial evidence, 14 even when there is conflicting medical evidence. Id. Plaintiff’s argument assumes 15 the ALJ erred in evaluating the medical evidence. ECF No. 15 at 18-20. For 16 reasons discussed throughout this decision, the ALJ’s hypothetical to the 17 vocational expert was based on the evidence and reasonably reflects Plaintiff’s 18 limitations. 19 Plaintiff also contends the ALJ erred at step four by failing to identify the 20 specific demands of Plaintiff’s past relevant work and failing to properly compare 21 ORDER - 35 1 the specific demands of Plaintiff’s past work and her functional limitations. ECF 2 No. 15 at 19. At step four of the sequential evaluation, the ALJ must determine 3 whether the claimant has the RFC to perform past relevant work. 20 C.F.R. § 4 416.920(f). To make this determination, the ALJ must make the following specific 5 findings of fact: (1) a finding of fact as to the individual’s RFC; (2) a finding of 6 fact as to the physical and mental demands of the past job/occupation; and (3) a 7 finding of fact that the individual’s RFC would permit a return to his or her past 8 job or occupation. S.S.R. 82-62 at *4 (January 1, 1982). Social Security 9 regulations classify work by physical exertion requirements and skill requirements. 10 20 C.F.R. §§ 416.967, 416.968. 11 Here, the ALJ first found Plaintiff had the RFC to perform light work, with 12 exceptions that Plaintiff can occasionally balance, stoop, kneel, and crouch, cannot 13 crawl or climb ramps, stairs, ladders, ropes, or scaffolds, and must avoid 14 concentrated exposure to extreme cold, to pulmonary irritants such as fumes, 15 odors, dusts, gases, and poor ventilation, and to hazards. Tr. 25-26. Second, based 16 on the testimony of the vocational expert, the ALJ made the finding of fact that 17 Plaintiff’s past relevant work as a social services aide was classified as light and 18 skilled under the relevant regulations. Tr. 31; see 20 C.F.R. §§ 416.967(b), 19 416.968(c). Third, based on the vocational expert’s testimony, the ALJ made the 20 finding of fact that Plaintiff’s RFC allowed her to perform her past relevant work 21 ORDER - 36 1 as a social services aide, both as it was actually performed and as that work is 2 customarily performed in the national economy. Tr. 31. The ALJ’s findings were 3 therefore consistent with the requirements of S.S.R. 82-62.6 The ALJ’s findings 4 are supported by substantial evidence and are legally sufficient. 5 CONCLUSION Having reviewed the record and the ALJ’s findings, the Court concludes the 6 7 ALJ’s decision is supported by substantial evidence and free of harmful legal error. 8 IT IS ORDERED: 9 1. Plaintiff’s motion for summary judgment (ECF No. 15) is DENIED. 2. Defendant’s motion for summary judgment (ECF No. 16) is GRANTED. 10 11 The District Court Executive is directed to file this Order, enter JUDGMENT 12 FOR THE DEFENDANT, provide copies to counsel, and CLOSE THE FILE. 13 14 15 16 6 Plaintiff’s reliance on Pinto, wherein the ALJ deviated from the Dictionary of 17 Occupational Titles without explanation and failed to make specific findings of 18 fact about the claimant’s abilities, is misplaced. Pinto v. Massanari, 249 F.3d 840, 19 846-47 (9th Cir. 2001). Here, the ALJ made the requisite findings of fact with 20 sufficient specificity for the Court to review. 21 ORDER - 37 1 DATED March 30, 2018. 2 s/Mary K. Dimke MARY K. DIMKE UNITED STATES MAGISTRATE JUDGE 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 ORDER - 38
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