Amaya v. Commissioner of Social Security, No. 4:2017cv05029 - Document 16 (E.D. Wash. 2018)
Court Description: ORDER GRANTING 15 DEFENDANT'S SUMMARY-JUDGMENT MOTION AND DENYING 13 PLAINTIFF'S SUMMARY-JUDGMENT MOTION. Case is CLOSED. Signed by Senior Judge Edward F. Shea. (LR, Case Administrator)
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Amaya v. Commissioner of Social Security Doc. 16 1 FI LED I N THE U.S. DI STRI CT COURT EASTERN DI STRI CT OF WASHI NGTON 2 Mar 23, 2018 3 SEAN F. MCAVOY, CLERK 4 5 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF WASHINGTON 6 7 No. TIM AMAYA, 4:17-CV-05029-EFS 8 Plaintiff, ORDER GRANTING DEFENDANT’S SUMMARY-JUDGMENT MOTION AND DENYING PLAINTIFF’S SUMMARYJUDGMENT MOTION 9 v. 10 COMMISSIONER OF SOCIAL SECURITY, 11 CLERK’S OFFICE ACTION REQUIRED Defendant. 12 13 Before the Court, without oral argument, are the parties’ cross- 14 summary-judgment motions. ECF Nos. 13 & 15. Plaintiff Tim Amaya appeals 15 the Administrative Law Judge’s (ALJ) denial of benefits. See ECF No. 13. 16 Mr. Amaya asks the Court to reverse the ALJ’s decision and remand for 17 an 18 Commissioner of Social Security (Commissioner) asks the Court to affirm 19 the 20 administrative record and the parties’ briefing and is fully informed. 21 Because 22 Commissioner’s Motion for Summary Judgment and denies Plaintiff’s Motion 23 for Summary Judgment. 24 /// 25 // 26 / evidentiary ALJ’s hearing decision. the ALJ did or See the ECF not immediate No. 15. reversibly The err, award Court the of benefits. has reviewed Court grants The the the ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT - 1 Dockets.Justia.com I. 1 Factual Summary1 2 Plaintiff Tim Amaya was born on May 12, 1965, and is 52 years old. 3 ECF No. 9, (AR) 116. His highest level of formal education is at the 4 twelfth grade, and he is able to communicate in English. AR 52. He 5 stands 5’10” tall and weighs approximately 215 pounds. AR 69. Mr. Amaya has been diagnosed with a number of physical conditions, 6 7 including 8 radiculopathy. AR 193, 200–01. As a result of these conditions, which 9 exist primarily as a result of an on-the-job injury, he experiences 10 chronic back pain that impacts his daily life. AR 54–58, 163–71. 11 Mr. Amaya resides with his significant other and two children, and he 12 spends his days mostly at home. AR 165–68. Mr. 13 lumbar Amaya spinal has a stenosis, significant lumbar work spondylosis, history as and a lumbar furniture 14 mover/driver (very heavy work, semi-skilled, DOT Code: 905.688-018), 15 tractor-trailer truck driver (medium work, semi-skilled, DOT Code: 16 904.383-010), and material handler (heavy work, semi-skilled, DOT Code: 17 929.687-030). AR 28. Mr. Amaya has not been employed since 2009. 18 AR 43, 126. II. 19 Standard of Review 20 A district court’s review of the Commissioner’s final decision is 21 governed by 42 U.S.C. § 405(g). The scope of review under § 405(g) is 22 limited; the Commissioner’s decision will be disturbed “only if it is 23 not supported by substantial evidence or is based on legal error.” Hill 24 v. Astrue, 698 F.3d 1153, 1158 (9th Cir. 2012). “Substantial evidence” 25 1 26 The facts are only briefly summarized. Detailed facts are contained in the administrative hearing transcript, the ALJ’s decision, and the parties’ briefs. ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT - 2 1 means relevant evidence that “a reasonable mind might accept as adequate 2 to support a conclusion.” Id. at 1159 (quotation and citation omitted). 3 Stated differently, substantial evidence equates to “more than a mere 4 scintilla but less than a preponderance.” Id. (quotation and citation 5 omitted). In determining whether this standard has been satisfied, a 6 reviewing court must consider the entire record as a whole rather than 7 searching for supporting evidence in isolation. Id. 8 In reviewing a denial of benefits, a district court may not 9 substitute its judgment for that of the Commissioner. If the evidence 10 in the record “is susceptible to more than one rational interpretation, 11 [the court] must uphold the ALJ’s findings if they are supported by 12 inferences reasonably drawn from the record.” Molina v. Astrue, 674 F.3d 13 1104, 1111 (9th Cir. 2012). Further, a district court “may not reverse 14 an ALJ’s decision on account of an error that is harmless.” Id. An error 15 is 16 nondisability 17 omitted). The party appealing the ALJ’s decision generally bears the 18 burden of establishing that it was harmed. Shinseki v. Sanders, 556 U.S. 19 396, 409-10 (2009). 20 harmless “where it is inconsequential determination.” Id. at 1115 to the [ALJ’s] (quotation and ultimate citation III. Disability Determination 21 A claimant is considered “disabled” for the purposes of the Social 22 Security Act if two conditions are satisfied. First, the claimant must 23 be “unable to engage in any substantial gainful activity by reason of 24 any medically determinable physical or mental impairment which can be 25 expected to result in death or which has lasted or can be expected to 26 last for a continuous period of not less than twelve months.” 42 U.S.C. ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT - 3 1 § 1382c(a)(3)(A). Second, the claimant’s impairment must be of such 2 severity that he “is not only unable to do his previous work but cannot, 3 considering his age, education, and work experience, engage in any 4 other kind of substantial gainful work which exists in the national 5 economy.” Id. § 1382c(a)(3)(B). The decision-maker uses a five-step 6 sequential 7 disabled. 20 C.F.R. §§ 404.1520, 416.920. process to determine whether a claimant is Step one assesses whether the claimant is currently engaged in a 8 9 evaluation substantial gainful activity. Id. § 416.920(a)(4)(i). If he is, 10 benefits are denied. 20 C.F.R. §§ 404.1520(b), 416.920(b). If he is 11 not, the decision-maker proceeds to step two. 12 Step two assesses whether the claimant has a medically severe 13 impairment or combination of impairments that significantly limit the 14 claimant’s physical or mental ability to do basic work activities. 20 15 C.F.R. §§ 404.1520(c), 416.920(c). If he does not, the disability claim 16 is denied. If he does, the evaluation proceeds to step three. Step 17 three compares the claimant’s impairment to several 18 impairments recognized by the Commissioner to be so severe as to 19 preclude substantial gainful activity. 20 C.F.R. §§ 404.1520(d), 404 20 Subpt. P App. 1, 416.920(d). If the impairment meets or equals one of 21 the listed impairments, the claimant is conclusively presumed to be 22 disabled. If the impairment does not, the evaluation proceeds to step 23 four. 24 Step four assesses whether the impairment prevents the claimant 25 from performing work he has performed in the past by determining the 26 claimant’s residual functional capacity (RFC). Id. §§ 404.1520(e), ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT - 4 1 416.920(e). If the claimant is able to perform his previous work, the 2 claimant is not disabled. If the claimant cannot perform this work, 3 the evaluation proceeds to step five. 4 Step five, the final step, assesses whether the claimant can 5 perform other work in the national economy in view of the claimant’s 6 age, 7 416.920(f); see Bowen v. Yuckert, 482 U.S. 137 (1987). If he can, the 8 disability claim is denied. If he cannot, the claim is granted. education, and work experience. 20 C.F.R. §§ 404.1520(f), 9 The burden of proof shifts during this analysis. The claimant has 10 the initial burden of establishing entitlement to disability benefits 11 under steps one through four. Rhinehart v. Finch, 438 F.2d 920, 921 (9th 12 Cir. 1971). At step five, the burden shifts to the Commissioner to show 13 (1) that the claimant can perform other substantial gainful activity 14 and (2) that a “significant number of jobs exist in the national economy” 15 that the claimant can perform. Kail v. Heckler, 722 F.2d 1496, 1498 (9th 16 Cir. 1984). IV. 17 Procedural History and ALJ Findings 18 On February 21, 2013, Mr. Amaya filed an application for disability 19 insurance benefits, alleging a disability onset date of December 18, 20 2009. AR 21. His claim was denied initially and upon reconsideration. 21 Mr. Amaya subsequently requested a hearing before an ALJ, which took 22 place before ALJ Marie Palachuk on June 11, 2015. The ALJ presided over 23 the hearing from Spokane, Washington, while Mr. Amaya appeared pro se 24 by video from Kennewick, Washington. AR 21. Medical expert Darius Ghazi, 25 MD, 26 telephonically. AR 21. and vocational expert Daniel R. McKinney, Sr., ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT - 5 appeared 1 On June 25, 2015, the ALJ issued a decision denying Mr. Amaya’s 2 claim. AR 21–29. At step one, the ALJ determined Mr. Amaya did not 3 engage in substantial gainful activity during the relevant period. 4 AR 23. At step 5 impairments of degenerative disc disease of the lumbar spine, status 6 post left ankle fracture with open reduction and internal fixation, and 7 mild obesity. Id. At step three, the ALJ determined Mr. Amaya did not 8 have an impairment or combination of impairments that met or medically 9 equaled the severity of a listed impairment. Id. two, the ALJ determined Mr. Amaya had the severe 10 At step four, the ALJ determined Mr. Amaya had the RFC to perform 11 light work, except that he may occasionally climb ramps and stairs; 12 occasionally balance, stoop, kneel, crouch, and crawl; never climb 13 ladders, 14 bilaterally; 15 including walking on uneven ground. AR 24. Accordingly, the ALJ found 16 Mr. Amaya was unable to perform any past relevant work. AR 28. ropes and or scaffolds; have no more occasionally than moderate perform foot exposure to pedals hazards, 17 Finally, at step five, the ALJ determined Mr. Amaya could have 18 performed other jobs existing in significant numbers in the national 19 economy, such as a products assembler (light work, unskilled, DOT Code: 20 706.687-010), inspector and hand packager (light work, unskilled, DOT 21 Code: 559.687-074), or packing-line worker (light work, unskilled, DOT 22 Code: 753.687-038). AR 28–29. As a result, the ALJ concluded Mr. Amaya 23 was not disabled under sections 216(i) and 223(d) of the Social Security 24 Act at any time from December 18, 2009, the alleged onset date, through 25 December 31, 2014, the date last insured. AR 29. 26 ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT - 6 1 The Appeals Council denied Mr. Amaya’s request for review, AR 1- 2 3, making the ALJ’s decision the final agency action for purposes of 3 judicial review. 42 U.S.C. § 1383(c)(3); 20 C.F.R. §§ 416.1481, 422.210. 4 Mr. Amaya filed this suit on March 10, 2017, appealing the ALJ’s 5 decision. ECF No. 1. The parties then filed the present summary-judgment 6 motions. ECF Nos. 13 & 15. V. 7 Discussion 8 Mr. Amaya contends the ALJ erred because she (1) improperly 9 rejected the opinions of Mr. Amaya’s medical providers; (2) improperly 10 discredited Mr. Amaya’s subjective symptom testimony; and (3) failed to 11 meet her burden at step five to identify specific jobs, available in 12 significant numbers, that were consistent with Mr. Amaya’s specific 13 functional limitations. See ECF No. 13 at 5. The Court evaluates each 14 challenge to the ALJ’s decision in turn. 15 A. Medical opinions 16 Mr. Amaya first argues that the ALJ erred by improperly rejecting 17 the opinions of State agency consultant Charles Wolfe, MD, AR 69–76, 18 and physical therapist Rodney Scrimsher, MPT, AR 392–410. ECF No. 13 at 19 8. The Commissioner responds that the ALJ provided sufficient reasoning 20 in assigning some weight to Dr. Wolfe’s opinion and that physical 21 therapists such as Mr. Scrimsher are “other sources” whose opinions may 22 be rejected by germane reasons, which the ALJ gave. ECF No. 15 at 9. 23 “In disability benefits cases, physicians may render medical, 24 clinical opinions, or they may render opinions on the ultimate issue 25 of disability — the claimant’s ability to perform work.” Garrison v. 26 Colvin, 759 F.3d 995, 1012 (9th Cir. 2014) (quotation omitted). There ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT - 7 1 are three types of physicians: treating physicians, examining 2 physicians, and nonexamining physicians. Lester v. Chater, 81 F.3d 821, 3 830 (9th Cir. 1995). “As a general rule, more weight should be given 4 to the opinion of a treating source than to the opinion of doctors who 5 do not treat the claimant.” Id. The ALJ must provide “clear and 6 convincing” reasons for rejecting the un-contradicted opinion of a 7 treating examining physician. Id. 8 If the opinion of a treating physician is contradicted by another 9 physician, the ALJ may only reject it if she provides “specific and 10 legitimate reasons” supported by “substantial evidence” in the record. 11 Id. In other words, an ALJ errs when she rejects a medical opinion or 12 assigns it little weight while doing nothing more than ignoring it, 13 asserting without explanation that another medical opinion is more 14 persuasive, or criticizing it with boilerplate language that fails to 15 offer a substantive basis for his conclusion. Garrison, 759 F.3d at 16 1012. The ALJ can satisfy the substantial-evidence requirement by 17 “setting 18 conflicting clinical evidence, stating [her] interpretation thereof, 19 and making findings." Id. (internal quotations omitted). out a detailed and thorough summary of the facts and 20 1. Charles Wolfe, MD 21 Dr. Charles Wolfe, a State agency medical consultant who reviewed 22 Mr. Amaya’s initial claim, opined that Mr. Amaya “could only lift ten 23 pounds frequently and could only stand or walk for a total of two hours 24 in 25 limitations.” AR 69–75. The ALJ gave Dr. Wolfe’s opinion only some 26 weight, explaining that it was “inconsistent with the clear majority of an eight-hour day, with other postural and environmental ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT - 8 1 the medical opinions in the record” and that such a severe activity 2 restriction was not supported by the medical evidence. AR 27. 3 Mr. Amaya takes issue with the ALJ’s reasoning but provides no 4 authority in doing so, only making the conclusory statement that it was 5 not a “valid reason for rejecting the opinion of Dr. Wolfe.” ECF No. 13 6 at 10. The Court disagrees. The opinions of nonexamining physicians may 7 serve as substantial evidence only “when the opinions are consistent 8 with independent clinical findings or other evidence in the record.” 9 Thomas v. Barnhart, 278 F.3d 947, 957 (9th Cir. 2002). 10 Here, the ALJ correctly identified that Dr. Wolfe’s opinion was 11 contradicted by the opinions of examining and treating physicians. For 12 example, examining physicians Toomas Eisler, MD, and Michael Gillespie, 13 MD, determined “there [was] no objective evidence of any pathology that 14 would preclude [Mr. Amaya] from returning to any form of gainful 15 employment he chooses.” AR 444. In fact, because the opinion of a 16 nonexamining physician cannot “constitute evidence that justifies the 17 rejection of the opinion of either an examining physician or a treating 18 physician,” the ALJ likely would have erred had she given more weight 19 to Dr. Wolfe’s opinion. Lester, 81 F.3d at 831. 20 Mr. Amaya further alleges the ALJ erred by “not discuss[ing] a 21 single piece of specific evidence or cit[ing] a specific report that 22 contradict[ed] Dr. Wolfe’s opinion.” ECF No. 13 at 10. While it is true 23 that the ALJ did not cite to a contradictory report in the paragraph 24 discussing Dr. Wolfe’s opinion, she spent nearly four single-spaced 25 pages “setting out a detailed and thorough summary of the facts and 26 conflicting clinical evidence.” See AR 24–28; Garrison, 759 F.3d at ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT - 9 1 1012. As noted above, the opinions of examining and treating physicians 2 are entitled to greater weight than those of nonexamining physicians. 3 Lester, 81 F.3d at 830. Dr. Wolfe’s opinion itself is contradicted by 4 that of another State agency consultant and nonexamining physician, Drew 5 Stevick, MD, who reviewed Mr. Amaya’s claim on reconsideration only a 6 few months after Dr. Wolfe gave his opinion. See AR 26. Accordingly, the ALJ did not err by discrediting Dr. Wolfe’s 7 8 opinion without listing specific instances of contradiction. She 9 properly found that the opinion was contradicted by the objective 10 medical evidence and the weight of the medical opinions in the record, 11 which she discussed in detail in other areas of her decision. Moreover, 12 even if rejecting Dr. Wolfe’s opinion in this manner did constitute 13 error, that error was harmless. See Molina, 674 F.3d at 1115. 14 2. Rodney Scrimsher, MPT 15 The ALJ gave little weight to the opinion of Rodney Scrimsher, 16 MPT2, that Mr. Amaya “could lift up to forty pounds frequently, that he 17 could walk for no more than two and a half hours each day, and that he 18 could stand for no more than one hour in an eight-hour day. See AR 27, 19 391. The ALJ explained that Mr. Scrimsher “came to his conclusions based 20 on a single examination of the claimant,” and that it contradicted “the 21 plethora of opinions from examining and treating physicians” that found 22 less limiting restrictions. AR 27. 23 24 25 26 2 Mr. Amaya refers to Mr. Scrimsher as both “Dr. Scrimsher” and “Therapist Scrimsher.” See, e.g., ECF No. 13 at 9. However, the record indicates Mr. Scrimsher has earned a Master’s degree in Physical Therapy and is not a physician. AR 404, 412. ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT - 10 Mr. 1 Amaya and argues points the out ALJ that rejected Mr. Mr. Scrimsher Scrimsher’s “performed opinion 2 improperly the most 3 comprehensive work evaluation in the record,” which consisted of four 4 hours of physical testing. ECF No. 13 at 9 (citing AR 391, 394–401). He 5 further complains that the ALJ failed to recognize that Mr. Scrimsher 6 performed the evaluation at the recommendation of a treating physician, 7 Michael Turner, MD. AR 192. 8 Generally, the opinion of a physical therapist is considered a 9 nonmedical “other source” that is entitled to less weight — and less 10 deference — than that of a physician. Huff v. Astrue, 275 F. App'x 713, 11 716 (9th Cir. 2008), SSR 06-03p. Accordingly, although an ALJ must 12 consider such an opinion, she need only give “germane reasons” to 13 discredit it. Molina, 674 F.3d at 1111.3 When considering how much weight 14 to give to “other source” opinions, the Social Security Administration 15 directs ALJs to consider the following: (1) how long the source has 16 known and how frequently the source has seen the claimant; (2) how 17 consistent the opinion is with other evidence; (3) the degree to which 18 the source presents relevant evidence to support an opinion; (4) how 19 well the source explains the opinion; (5) whether the source has a 20 specialty or area of expertise related to the claimant’s impairments; 21 and (6) any other factors that tend to support or refute the opinion. 22 SSR 06-03p.4 23 3 24 25 26 4 C.f. Haagenson v. Colvin, 656 Fed. Appx. 800, 802 (9th Cir. 2016) (holding that ALJ’s dismissal of opinions of nurse and counselor solely because they were “other sources” was reversible error). SSR 06-03p was rescinded effective March 27, 2017. 82 Fed. Reg. 58444 (March 27, 2017). However, it was in effect when the ALJ rendered her decision on June 25, 2015, and it governs the ALJ’s consideration of Mr. Amaya’s claim. See AR 29; 20 C.F.R. § 404.1527(f). ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT - 11 Although 1 the ALJ’s reasoning for dismissing Mr. Scrimsher’s 2 opinion is somewhat brief, it is sufficiently germane. Further, both 3 reasons 4 consistency with the other evidence — are expressly mentioned in SSR 5 06-03p as factors the ALJ should consider. As with Dr. Wolfe’s opinion, 6 although the paragraph discrediting Mr. Scrimsher’s opinion does not 7 detail what medical evidence specifically contradicts it, the ALJ spent 8 a total of nearly four single-spaced pages “setting out a detailed and 9 thorough summary of the facts and conflicting clinical evidence.” See 10 AR 24–28; Garrison, 759 F.3d at 1012. The ALJ was not required to provide 11 additional reasons for assigning little weight to Mr. Scrimsher’s 12 opinion. And even if she erred by not providing additional reasons, that 13 error was harmless. 14 B. articulated by the ALJ — frequency of examinations and Mr. Amaya’s subjective symptom testimony 15 Mr. Amaya also contends the ALJ erred by improperly rejecting his 16 subjective complaints. ECF No. 13 at 10. The Commissioner responds that 17 the 18 credibility determination. ECF No. 15 at 4. ALJ properly made numerous specific findings to support her 19 If a claimant’s impairment could reasonably be expected to produce 20 the symptoms alleged in the testimony and there is no evidence that a 21 claimant is malingering, an ALJ may only reject a claimant’s testimony 22 about the severity of her symptoms by offering “specific, clear, and 23 convincing reasons.” Smolen v. Chater, 80 F.3d 1273, 1281 (9th Cir. 24 1996). “This is not an easy requirement to meet: ‘[t]he clear and 25 convincing standard is the most demanding required in Social Security 26 cases.’” Garrison, 759 F.3d at 1014 (9th Cir. 2014) (quoting Moore v. ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT - 12 1 Comm’r of Soc. Sec. Admin., 278 F.3d 920, 924 (9th Cir. 2002)). “It’s 2 not sufficient for the ALJ to make only general findings; [s]he must 3 state which pain testimony is not credible and what evidence suggests 4 the complaints are not credible.” Dodrill v. Shalala, 12 F.3d 915, 918 5 (9th Cir. 1993). Examples of legitimate bases to discredit a claimant’s 6 testimony 7 inconsistencies in testimony or between testimony and conduct,” and 8 other “ordinary techniques of credibility evaluation.” Orn v. Astrue, 9 495 F.3d 625, 636 (9th Cir. 2007); Fair v. Bowen, 885 F.2d 597, 604 n.5 10 (9th Cir. 1989). When reviewing an ALJ’s decision, the Court is not a 11 “trier of fact”; issues of fact are to be decided by the ALJ. Fair, 885 12 F.2d at 604. Indeed, the Court of Appeals for the Ninth Circuit has 13 explained that “credibility determinations are the province of the ALJ.” 14 Id. include the claimant’s “reputation for truthfulness, 15 Here, the ALJ found Mr. Amaya’s impairments could reasonably be 16 expected to cause the alleged symptoms. AR 25. Although the ALJ believed 17 he had been “honest and forthright,” she found that his testimony 18 concerning the symptoms’ intensity, persistence, and limiting effects 19 were 20 activities of cleaning and yard work show that he is not at a level of 21 impairment that would prevent him from working”; (2) “the objective 22 medical 23 disabling”; (3) “[m]ost importantly, the opinions of a number of medical 24 sources who found that the claimant’s condition ha[d] become stable, 25 and that he would be able to return to work in some capacity”; and (4) only partially evidence credible shows an for four impairment reasons: that, (1) “his while severe, 26 ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT - 13 admitted is not 1 “there is evidence in the record that some of the claimant’s reported 2 pain may come from psychological factors . . . .” AR 25. 3 As to the first reason, the Court acknowledges that the Ninth 4 Circuit has repeatedly cautioned ALJs from failing to distinguish 5 between the activities of daily living and activities of full-time 6 employment. See Garrison, 759 F.3d at 1014, 1016 (“The Social Security 7 Act does not require that claimants be utterly incapacitated to be 8 eligible 9 claimant’s testimony may only be discredited for this reason if his 10 activity level is inconsistent with his claimed limitations. Id. at 11 1016. Here, the ALJ discredited Mr. Amaya’s testimony in part because 12 of his “admitted activities of cleaning and yard work.” AR 25. However, 13 the record indicates these activities are consistent with his claimed 14 limitations. Mr. Amaya admitted to wiping counter tops, using a riding 15 lawn mower — because he can no longer push a manual mower — and spraying 16 weeds. AR 166. He alleged it takes him around 20 minutes to mow his 17 front and back yard and about 10 minutes to spray for weeds, after which 18 he must rest his back and ankle for 20-30 minutes. AR 166. Accordingly, 19 the ALJ erred by citing Mr. Amaya’s activities as a reason for rejecting 20 his subjective complaints. See Garrison, 759 F.3d at 1016 (holding 21 claimant’s admitted activities — with heavy assistance — of doing 22 laundry, pickup daughter, and carrying bags did not warrant discrediting 23 her testimony). for benefits . . . .” (citation omitted)). Indeed, a 24 As to the second reason, the Court agrees with Mr. Amaya that a 25 general reference to the objective medical evidence is insufficient to 26 reject his testimony. See Dodrill, 12 F.3d at 918. However, the ALJ ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT - 14 1 spent the next two paragraphs discussing the objective medical evidence 2 of both his back and ankle impairments in detail. See AR 25. This 3 discussion is hardly the “hackneyed language” or “vague allegation” 4 criticized by the Court of Appeals — it is a detailed and thoughtful 5 review of the record. See Treichler v. Comm’r of Soc. Sec. Admin, 775 6 F.3d 1090, 1103 (9th Cir. 2014). Accordingly, the ALJ did not err by 7 rejecting his testimony for this reason. As to the third reason, although the ALJ did not name the providers 8 9 of the medical opinions that she asserted undermined Mr. Amaya’s 10 complaints, she referenced them by the content of their opinions: “the 11 opinions of a number of medical sources who found that the claimant’s 12 condition ha[d] become stable, and that he would be able to return to 13 work in some capacity.” AR 25. Given the ALJ’s subsequent, lengthy 14 discussion of the various medical opinions in the record, it is apparent 15 that the ALJ was referring to the numerous medical opinions that 16 indicated Mr. Amaya’s condition was stable and that he was able to work. 17 Multiple treating and examining physicians expressed this opinion, 18 including William Stump, MD; Chester McLaughlin, MD; Toomas Eisler, MD; 19 Michael Gillespie, MD; and Wing Chau, MD. AR 26–27.5 Accordingly, the 20 ALJ did not err by rejecting Mr. Amaya’s testimony for this reason. 21 22 23 24 25 26 5 The ALJ discussed these and other opinions in detail. Drs. Stump and McLaughlin both opined, after examining Mr. Amaya, that his condition was “fixed and stable” and that he was able “capable of returning to work without restrictions.” AR 26 (citing AR 315–62). Drs. Eisler and Gillespie opined, after examining Mr. Amaya, that “there [was] no objective evidence of any pathology that would preclude him from returning to any form of gainful employment he chooses.” AR 26 (citing AR 444). Dr. Chau, after examining Mr. Amaya, opined that he could return to work after five days. AR 27 (citing AR 294). ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT - 15 1 As to the fourth reason, a physician’s report that an injury was 2 “likely amplified by psychological factors” could certainly cause the 3 ALJ to doubt that a claimant’s impairments could reasonably be expected 4 to cause the alleged symptoms. However, the ALJ had already determined 5 that Mr. Amaya’s impairments could have reasonably caused the alleged 6 symptoms when she gave this reason for rejecting his testimony. AR 25. 7 Because 8 irrelevant whether his pain was also amplified by psychological factors. 9 Further, the ALJ expressly acknowledged that Mr. Amaya had been honest 10 and forthright about his perception of his symptoms. Id. Accordingly, 11 the ALJ erred by rejecting Mr. Amaya’s testimony for this reason. she had already made this determination, it is largely 12 Although the ALJ erred by citing Mr. Amaya’s daily activities and 13 the possibility that his pain was amplified by psychological factors as 14 reasons for discrediting his subjective symptom testimony, that error 15 was harmless because of the other sufficiently clear and convincing 16 reasons stated by the ALJ. See Molina, 674 F.3d at 1115 (explaining an 17 error is harmless “where it is inconsequential to the [ALJ’s] ultimate 18 nondisability determination”). 19 C. Step five 20 Finally, Mr. Amaya argues the ALJ “failed to meet her burden at 21 step five to identify specific jobs, available in significant numbers, 22 consistent with Mr. Amaya’s specific functional limitations.” ECF No. 13 23 at 14. Because the ALJ improperly weighed the opinions of Dr. Wolfe and 24 Mr. Scrimsher, Mr. Amaya argues, her hypothetical questions to the 25 vocational expert were incomplete and thus in error. Mr. Amaya also 26 argues the ALJ failed to account for the side effects of Mr. Amaya’s ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT - 16 1 medications, including hydrocodone, amrix, trazodone, and naproxen. ECF 2 No. 13 at 15 (citing AR 171). The Court disagrees. Because the ALJ properly weighed Dr. Wolfe’s 3 4 and Mr. Scrimsher’s opinions, her hypothetical questions to the 5 vocational expert considered all of Mr. Amaya’s limitations. Therefore, 6 the vocational expert’s testimony retains its evidentiary value. See 7 DeLorme v. Sullivan, 924 F.2d 841, 850 (9th Cir. 1991) (citation 8 omitted). Further, Mr. Amaya has provided no authority to support his 9 contention that his side effects are relevant to the ALJ’s questioning 10 of the vocational expert or that the side effects caused an impairment 11 that the ALJ should have considered. Accordingly, the ALJ did not err 12 in this regard. 13 D. Credit-as-true rule 14 Mr. Amaya requests that the Court remand to the Commissioner for 15 an immediate award of benefits. ECF No. 13 at 15–16; see also Garrison, 16 759 F.3d at 1020 (9th Cir. 2014). However, because the Court holds that 17 the ALJ did not reversibly err, this request is denied. VI. 18 Conclusion 19 In summary, the Court holds the ALJ did not err in evaluating the 20 opinions of Dr. Wolfe or Mr. Scrimsher, did not reversibly err in 21 discrediting Mr. Amaya’s subjective symptom testimony, and did not err 22 in her questioning of the vocational expert. 23 //// 24 /// 25 // 26 / ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT - 17 1 Accordingly, IT IS HEREBY ORDERED: 2 1. DENIED. 3 4 2. The Commissioner’s Motion for Summary Judgment, ECF No. 15, is GRANTED. 5 6 Plaintiff’s Motion for Summary Judgment, ECF No. 13, is 3. The Clerk’s Office is directed to enter JUDGMENT in favor of Defendant. 7 8 4. 9 IT IS SO ORDERED. 10 11 The case shall be CLOSED. The Clerk’s Office is directed to enter this Order and provide copies to all counsel. DATED this 23rd _ day of March 2018. 12 13 _s/Edward F. Shea_____ EDWARD F. SHEA Senior United States District Judge 14 15 16 17 18 19 20 21 22 23 24 25 26 Q:\EFS\Civil\2017\17-CV-5029.Amaya.SS.Ord.Rul.Cross.Mots.SJ.lc02.docx ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT - 18
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