Jensen v. Commissioner of Social Security, No. 4:2017cv05123 - Document 16 (E.D. Wash. 2018)

Court Description: ORDER GRANTING DEFENDANTS MOTION FOR SUMMARY JUDGMENT. Plaintiffs Motion for Summary Judgment ECF No. 10 is DENIED. Defendants Motion for Summary Judgment ECF No. 14 is GRANTED. The file is CLOSED. Signed by Chief Judge Thomas O. Rice. (LLH, Courtroom Deputy)

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Jensen v. Commissioner of Social Security Doc. 16 1 2 3 4 5 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF WASHINGTON 6 7 MARVIN J., NO: 4:17-CV-5123-TOR Plaintiff, 8 v. 9 10 ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT COMMISSIONER OF SOCIAL SECURITY, 11 Defendant. 12 13 14 BEFORE THE COURT are the parties’ cross motions for summary 15 judgment. ECF Nos. 10, 14. Chad Hatfield represents Plaintiff. Daphne Banay 16 represents Defendant. The Court has reviewed the administrative record and the 17 parties’ completed briefing and is fully informed. For the reasons discussed below, 18 the Court grants Defendant’s motion and denies Plaintiff’s motion. 19 // 20 // ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 1 Dockets.Justia.com 1 2 3 4 5 JURISDICTION The Court has jurisdiction over this case pursuant to 42 U.S.C. § 405(g), 1383(c)(3). STANDARD OF REVIEW A district court’s review of a final decision of the Commissioner of Social 6 Security is 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 not supported 8 by substantial evidence or is based on legal error.” Hill v. Astrue, 698 F.3d 1153, 9 1158-59 (9th Cir. 2012) (citing 42 U.S.C. § 405(g)). “Substantial evidence” means 10 relevant evidence that “a reasonable mind might accept as adequate to support a 11 conclusion.” Id. at 1159 (quotation and citation omitted). Stated differently, 12 substantial evidence equates to “more than a mere scintilla[,] but less than a 13 preponderance.” Id. (quotation and citation omitted). In determining whether this 14 standard has been satisfied, a reviewing court must consider the entire record as a 15 whole rather than searching for supporting evidence in isolation. Id. 16 In reviewing a denial of benefits, a district court may not substitute its 17 judgment for that of the Commissioner. If the evidence in the record “is 18 susceptible to more than one rational interpretation, [the court] must uphold the 19 ALJ’s findings if they are supported by inferences reasonably drawn from the 20 record.” Molina v. Astrue, 674 F.3d 1104, 1111 (9th Cir. 2012). Further, a district ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 2 1 court “may not reverse an ALJ’s decision on account of an error that is harmless.” 2 Id. at 1111. An error is harmless “where it is inconsequential to the [ALJ’s] 3 ultimate nondisability determination.” Id. at 1115 (quotation and citation omitted). 4 The party appealing the ALJ’s decision generally bears the burden of establishing 5 that it was harmed. Shinseki v. Sanders, 556 U.S. 396, 409-10 (2009). 6 7 FIVE-STEP SEQUENTIAL 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. §§ 19 404.1520(a)(4)(i)-(v); 416.920(a)(4)(i)-(v). At step one, the Commissioner 20 considers the claimant’s work activity. 20 C.F.R. §§ 404.1520(a)(4)(i); ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 3 1 416.920(a)(4)(i). If the claimant is engaged in “substantial gainful activity,” the 2 Commissioner must find that the claimant is not disabled. 20 C.F.R. §§ 3 404.1520(b); 416.920(b). 4 If the claimant is not engaged in substantial gainful activities, the analysis 5 proceeds to step two. At this step, the Commissioner considers the severity of the 6 claimant’s impairment. 20 C.F.R. §§ 404.1520(a)(4)(ii); 416.920(a)(4)(ii). If the 7 claimant suffers from “any impairment or combination of impairments which 8 significantly limits [his or her] physical or mental ability to do basic work 9 activities,” the analysis proceeds to step three. 20 C.F.R. §§ 404.1520(c); 10 416.920(c). If the claimant’s impairment does not satisfy this severity threshold, 11 however, the Commissioner must find that the claimant is not disabled. Id. 12 At step three, the Commissioner compares the claimant’s impairment to 13 several impairments recognized by the Commissioner to be so severe as to 14 preclude a person from engaging in substantial gainful activity. 20 C.F.R. §§ 15 404.1520(a)(4)(iii); 416.920(a)(4)(iii). If the impairment is as severe or more 16 severe than one of the enumerated impairments, the Commissioner must find the 17 claimant disabled and award benefits. 20 C.F.R. §§ 404.1520(d); 416.920(d). 18 If the severity of the claimant’s impairment does meet or exceed the severity 19 of the enumerated impairments, the Commissioner must pause to assess the 20 claimant’s “residual functional capacity.” Residual functional capacity (“RFC”), ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 4 1 defined generally as the claimant’s ability to perform physical and mental work 2 activities on a sustained basis despite his or her limitations (20 C.F.R. §§ 3 404.1545(a)(1); 416.945(a)(1)), is relevant to both the fourth and fifth steps of the 4 analysis. 5 At step four, the Commissioner considers whether, in view of the claimant’s 6 RFC, the claimant is capable of performing work that he or she has performed in 7 the past (“past relevant work”). 20 C.F.R. §§ 404.1520(a)(4)(iv); 8 416.920(a)(4)(iv). If the claimant is capable of performing past relevant work, the 9 Commissioner must find that the claimant is not disabled. 20 C.F.R. §§ 10 404.1520(f); 416.920(f). If the claimant is incapable of performing such work, the 11 analysis proceeds to step five. 12 At step five, the Commissioner considers whether, in view of the claimant’s 13 RFC, the claimant is capable of performing other work in the national economy. 14 20 C.F.R. §§ 404.1520(a)(4)(v); 416.920(a)(4)(v). In making this determination, 15 the Commissioner must also consider vocational factors such as the claimant’s age, 16 education, and work experience. Id. If the claimant is capable of adjusting to 17 other work, the Commissioner must find that the claimant is not disabled. 20 18 C.F.R. §§ 404.1520(g)(1); 416.920(g)(1). If the claimant is not capable of 19 adjusting to other work, the analysis concludes with a finding that the claimant is 20 disabled and is therefore entitled to benefits. Id. ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 5 1 The claimant bears the burden of proof at steps one through four above. See 2 Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999). If the analysis proceeds to 3 step five, the burden shifts to the Commissioner to establish that (1) the claimant is 4 capable of performing other work, and (2) such work “exists in significant numbers 5 in the national economy.” 20 C.F.R. §§ 404.1560(c); 416.960(c)(2); see Tackett, 6 180 F.3d at 1098-99. 7 8 9 ALJ’S FINDINGS Plaintiff filed applications for disability insurance benefits and supplemental security income disability benefits on August 29, 2013 and September 30, 2013, 10 respectively. Tr. 160-173. These applications were denied initially and upon 11 reconsideration, and a hearing was requested. Tr. 115-18, 121-22, 123-24, 125-26. 12 A hearing was held before an Administrative Law Judge on October 22, 2015. Tr. 13 39-72. The ALJ rendered a decision denying Plaintiff benefits on April 22, 2016. 14 Tr. 20-30. 15 The ALJ found that Plaintiff met the insured status requirements of Title II 16 of the Social Security Act through December 31, 2016. Tr. 22. At step one, the 17 ALJ found that Plaintiff had not engaged in substantial gainful activity since 18 March 1, 2013, the alleged onset date. Id. At step two, the ALJ found that 19 Plaintiff had the following severe impairments: asthma; chronic obstructive 20 pulmonary disease; history of lobectomy; loss of left eye; sleep apnea; and, hiatal ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 6 1 hernia. Id. At step three, the ALJ found that Plaintiff’s severe impairments did not 2 meet or medically equal a listed impairment. Tr. 23-24. The ALJ then determined 3 that Plaintiff had the RFC 4 5 6 7 8 to perform light work as defined in 20 CFR 404.1567(b) and 416.967(b) except he can occasionally climb stairs and should not climb ladders. He can frequently balance, kneel and crawl and occasionally stoop and crouch. The claimant should avoid concentrated exposure to extreme cold, heat and vibration. He should avoid even moderate exposure to fumes, odors, dusts, gases and poor ventilation. The claimant should avoid even moderate exposure to hazards such as moving machinery and unprotected heights. He can perform tasks requiring depth perception on an occasional basis and has limited field of vision on the left. 9 10 Tr. 24. At step four, the ALJ found that Plaintiff was unable to perform past 11 relevant work as a cement mason. Tr. 28. At step five, after considering Plaintiff’s 12 age, education, work experience, and residual functional capacity, the ALJ found 13 that Plaintiff was capable of performing in representative occupations, such as 14 small parts assembler, cafeteria attendant, and mailroom clerk, which exist in 15 significant numbers in the national economy. Tr. 29-30. On that basis, the ALJ 16 concluded that Plaintiff was not disabled as defined in the Social Security Act. Id. 17 The Appeals Council denied Plaintiff’s request for review on October 7, 18 2015, making the ALJ’s decision the Commissioner’s final decision for purposes 19 of judicial review. Tr. 1-3; 42 U.S.C. §§ 405(g), 1383(c)(3); 20 C.F.R. §§ 20 416.1481, 422.210. ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 7 1 2 ISSUES Plaintiff seeks judicial review of the Commissioner’s final decision denying 3 him disability insurance benefits and supplemental security income disability 4 benefits under Title II and Title XVI of the Social Security Act. Plaintiff raises 5 four issues for review: 6 7 8 9 (1) Whether the ALJ properly weighed the medical opinions of Plaintiff’s treating physician, Dr. Evan D. Schmitz; (2) Whether the ALJ properly evaluated Plaintiff’s alleged impairments at step two; 10 (3) Whether the ALJ properly evaluated Plaintiff’s subjective complaints; 11 (4) Whether the ALJ properly evaluated Plaintiff's capability to perform 12 13 14 work in the national economy at step five. ECF No. 10 at 5. The Court evaluates each issue in turn. DISCUSSION 15 A. Opinions of Dr. Evan D. Schmitz 16 Plaintiff faults the ALJ for improperly discounting the opinions of Dr. Evan 17 D. Schmitz. ECF Nos. 10 at 8-12; 15 at 1-4. Specifically, Plaintiff argues the ALJ 18 did not provide adequate reasons to reject Dr. Schmitz’s two separate opinions that 19 Plaintiff was more physically limited than the ALJ determined. ECF No. 10 at 12. 20 ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 8 1 In analyzing an ALJ’s weighing of medical evidence, a reviewing court 2 distinguishes between the opinions of three types of physicians: “(1) those who 3 treat the claimant (treating physicians); (2) those who examine but do not treat the 4 claimant (examining physicians); and (3) those who neither examine nor treat the 5 claimant [but who review the claimant's file] (nonexamining [or reviewing] 6 physicians).” Holohan v. Massanari, 246 F.3d 1195, 1201-02 (9th Cir. 2001) 7 (citations omitted). Generally, the opinion of a treating physician carries more 8 weight than the opinion of an examining physician, and the opinion of an 9 examining physician carries more weight than the opinion of a reviewing 10 physician. Id. In addition, the Commissioner’s regulations give more weight to 11 opinions that are explained than to opinions that are not, and to the opinions of 12 specialists on matters relating to their area of expertise over the opinions of non- 13 specialists. Id. (citations omitted). 14 If a treating or examining physician’s opinion is uncontradicted, an ALJ may 15 reject it only by offering “clear and convincing reasons that are supported by 16 substantial evidence.” Bayliss v. Barnhart, 427 F.3d 1211, 1216 (9th Cir. 2005). 17 “If a treating or examining doctor’s opinion is contradicted by another doctor’s 18 opinion, an ALJ may only reject it by providing specific and legitimate reasons 19 that are supported by substantial evidence.” Id. Regardless of the source, an ALJ 20 need not accept a physician’s opinion that is “brief, conclusory and inadequately ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 9 1 supported by clinical findings.” Bray v. Comm’r of Soc. Sec. Admin., 554 F.3d 2 1219, 1228 (9th Cir. 2009) (quotation and citation omitted). 3 On July 31, 2013, Dr. Schmitz completed a DSHS “Physical Functional 4 Evaluation” form. Tr. 262-64. In the “Subjective” section of the form, Dr. 5 Schmitz listed Plaintiff’s chief complaints and reported symptoms as shortness of 6 breath at rest, which worsened with minimal exertion; nocturnal dyspnea; history 7 of right upper lobectomy; coccidioidomycosis; and pulmonary disease. Tr. 262. In 8 the “Assessment” section, Dr. Schmitz described Plaintiff’s diagnosis as 9 uncontrolled asthma and history of lung resection, and estimated the severity of the 10 diagnosis as follows: no significant interference with Plaintiff’s ability to sit, 11 significant interference with his ability to walk and see, very significant 12 interference with his ability to lift, and the inability to carry. Tr. 263. In the 13 following section on the form, which consists of a number of check boxes next to 14 different categories of work capability, Dr. Schmitz checked the box next to 15 “severely limited,” defined as unable to meet the demands of sedentary work, and 16 jotted a question mark next to the question about duration. Tr. 264 (“How long do 17 you estimate the current limitation on work activities will persist with available 18 medical treatment?”). In the “Plan” section, Dr. Schmitz noted that full pulmonary 19 function testing and an HRCT scan of the chest was needed. Id. 20 ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 10 1 On August 21, 2013, Dr. Schmitz examined Plaintiff during another office 2 visit. Tr. 257-59. Dr. Schmitz noted that Plaintiff’s symptoms had not changed 3 since July 31, 2013. Tr. 257. Dr. Schmitz reported that the pulmonary function 4 test revealed mild airways obstruction with a significant response to 5 bronchodilator, lung volumes within normal limits, and normal diffusing capacity 6 of the lungs. Tr. 258. He opined that the large hiatal hernia “may be the cause of 7 most of [Plaintiff’s] problems” and “appears to be limiting [Plaintiff’s] ability to 8 lift anything remotely heavy.” Id. Dr. Schmitz concluded that “[e]xcessive strain 9 may push his abdominal contents further into his chest and therefore lifting should 10 be avoided.” Id. 11 The ALJ assigned little weight to Dr. Schmitz’s July 31, 2013 opinion that 12 Plaintiff was unable to meet the demands of sedentary work and to Dr. Schmitz’s 13 August 21, 2013 opinion that Plaintiff should avoid all lifting. Tr. 27-28. Dr. 14 Schmitz’s opinions are inconsistent with the opinions of Dr. Drew Stevick and Dr. 15 Charles Wolfe, both of whom found Plaintiff capable of performing light work. 16 Tr. 28, 75-90, 93-103. As a contradicted opinion, the Court must determine 17 whether the ALJ provided specific and legitimate reasons supported by substantial 18 evidence in assigning the opinion little weight. The Court concludes the ALJ did 19 provide specific and legitimate reasons. 20 ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 11 1 The ALJ assigned little weight to Dr. Schmitz’s July 31, 2013 opinion 2 because “[o]verall, the longitudinal medical record does not support the degree of 3 restriction Dr. Schmitz opined.” Tr. 27. The ALJ provided several reasons for 4 discounting Dr. Schmitz’s opinion, including the following: (1) the July 31 5 examination was Dr. Schmitz’s first time seeing Plaintiff and the office visit note 6 shows Dr. Schmitz was not certain of the etiology of Plaintiff’s complaints; (2) Dr. 7 Schmitz had not yet seen the results of the pulmonary function test results, which 8 showed only mild airway obstruction and normal lung volumes; (3) imaging 9 showed the claimant’s lungs were adequately expanded despite the hernia; and (4) 10 Plaintiff was not on any medication when he saw Dr. Schmitz on July 31, 2013, 11 and Plaintiff subsequently reported significant improvement in his breathing with 12 medication. Id. 13 It is the ALJ’s duty to resolve conflicting medical opinions. Thomas v. 14 Barnhart, 278 F.3d 947, 956 (9th Cir. 2002). Moreover, when evaluating 15 conflicting medical opinions, an ALJ need not accept the opinion of a doctor if that 16 opinion is brief, conclusory, and inadequately supported by clinical findings. 17 Bayliss, 427 F.3d at 1216. Here, the ALJ set out a detailed and thorough 18 examination of the record and conflicting opinions, stated his interpretation of the 19 evidence, and made specific findings. Tr. 27. The ALJ concluded that Dr. 20 Schmitz’s opinion was not adequately supported by clinical findings, it was ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 12 1 inconsistent with Plaintiff’s imaging results and pulmonary function testing, and it 2 was also in conflict with Plaintiff’s reported improvements in his breathing with 3 medication. Plaintiff disagrees with those conclusions and points to aspects of the 4 record he argues support Dr. Schmitz’s opinion. ECF Nos. 10 at 10-11; 15 at 2-3. 5 Nevertheless, the ALJ’s resolution of the conflicting opinions is reasonable and 6 must be upheld. See Batson v. Comm’r of Soc. Sec. Admin., 359 F.3d 1190, 1193 7 (9th Cir. 2004) (“[T]he Commissioner’s finding are upheld if supported by 8 inferences reasonably drawn from the record . . . and if evidence exists to support 9 more than one rationale interpretation, we must defer to the Commissioner’s 10 11 decision.”). Regarding Dr. Schmitz’s August 21, 2013 opinion, the ALJ agreed that 12 Plaintiff “should not engage in heavy lifting,” but concluded that “Dr. Schmitz’s 13 opinion that the claimant should avoid lifting altogether is not supported by other 14 medical opinion of record.” Tr. 27. The ALJ noted that Plaintiff “engages in 15 lifting in his daily life in addition to performing activities such as mowing the 16 lawn.” Tr. 28. Plaintiff argues that these are not specific and legitimate reasons to 17 reject Dr. Schmitz’s opinion. ECF No. 10 at 11-12. However, as discussed, an 18 ALJ need not accept a physician’s opinion that is inadequately supported by 19 clinical findings. Bayliss, 427 F.3d at 1216. And, in resolving conflicting medical 20 opinions, an ALJ may discount a doctor’s opinion when it is inconsistent with a ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 13 1 claimant’s activities. As the ALJ noted, Plaintiff reported that he did housework 2 and yardwork, such as cleaning, laundry, household repairs, as well as mowing. 3 Tr. 25. Because Dr. Schmitz’s opinion was unsupported by clinical evidence and 4 inconsistent with Plaintiff’s daily activities, the ALJ’s resolution of the conflicting 5 opinions is reasonable. 6 In sum, the ALJ provided specific and legitimate reasons that are supported 7 by substantial evidence to assign little weight to Dr. Schmitz’s two opinions in 8 favor of greater weight assigned to the conflicting opinions of Dr. Stevick and Dr. 9 Wolfe. 10 B. Step Two Analysis 11 Plaintiff asserts that the ALJ erred in failing to conclude at step two that he 12 had the following significant impairments: history of rib fracture; malformation of 13 the sternum; H. pylori, severe chronic active gastritis, GERD/uncontrolled reflux, 14 diverticulosis, ulcers, colon polyps, anemia, internal hemorrhoids, dyspepsia, and 15 cramping; osteoarthritis of multiple joints; allergic rhinitis; and 16 migraines/headaches. ECF No. 10 at 13. 17 At step two of the five-step analysis, a claimant bears the burden of 18 demonstrating that he has medically determinable physical impairments which (1) 19 have lasted or are expected to last for a continuous twelve-month period and (2) 20 significantly limit his ability to do basic work activities. 20 C.F.R. §§ ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 14 1 416.920(a)(4)(ii), 416.920(c), 416.909. An impairment does not limit an ability to 2 do basic work activities where it “would have no more than a minimum effect on 3 an individual’s ability to work.” Yuckert v. Bowen, 841 F.2d 303, 306 (9th Cir. 4 1988). The step-two analysis is “a de minimus screening devise to dispose of 5 groundless claims.” Smolen v. Chater, 80 F.3d 1273, 1290 (9th Cir. 1996) 6 (emphasis in original). 7 Here, the ALJ concluded that Plaintiff suffered from the following severe 8 impairments: asthma, chronic obstructive pulmonary disease, history of lobectomy, 9 loss of left eye, sleep apnea, and hiatal hernia. Tr. 22. Plaintiff argues that the 10 ALJ ignored substantial and undisputed evidence of Plaintiff’s other impairments, 11 and failed to consider how these impairments, alone or in combination, affected 12 Plaintiff’s ability to perform basic work activities. ECF No. 10 at 13. Based on 13 the relevant record, the Court concludes that the ALJ properly considered 14 Plaintiff’s other alleged impairments and relied on substantial evidence to support 15 his finding at step two that those impairments did not more than minimally affect 16 Plaintiff’s work abilities for a continuous twelve-month period. 17 First, the ALJ considered Plaintiff’s evidence of migraine headaches. Tr. 22. 18 The ALJ noted that Plaintiff’s medical records made little mention of headaches 19 and Plaintiff was not actively being treated for migraines. Id. The ALJ observed 20 that although Plaintiff reported some headaches on January 8, 2015, Plaintiff ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 15 1 reported that his headaches had improved since he started using a CPAP on August 2 6, 2015. Tr. 455, 452 (“The patient stated that his headache improved 3 tremendously since he started using the CPAP.”). The ALJ concluded that 4 Plaintiff’s migraine headaches did not have more than a minimal effect on his 5 ability to do basic work activities and was not a severe impairment. Tr. 22-23. 6 This conclusion is supported by medical evidence in the record. 7 Second, the ALJ analyzed Plaintiff’s history of gastroesophageal reflux 8 disease (GERD) and Plaintiff’s evidence of helicobacter pylori gastritis, duodenal 9 ulcers, and GERD/nonerosive reflux disease. Tr. 23. Based on the medical 10 evidence in the record, the ALJ concluded that these conditions did not 11 significantly limit Plaintiff’s functioning for twelve months and were therefore not 12 severe impairments. Id. At his hearing, Plaintiff testified that he experienced a 13 burning pain similar to heartburn, but located higher in his chest. Tr. 65. On 14 August 21, 2013, Plaintiff reported episodes of choking and uncontrolled reflux, 15 and was diagnosed with uncontrolled reflux. Tr. 259. However, a report dated 16 October 21, 2013 confirmed that “the GERD symptoms have now completely 17 resolved since [Plaintiff] tried lifestyle modification including dietary changes.” 18 Tr. 265. In that same report, Plaintiff stated that he had extremely rare heartburn 19 symptoms, but never had abdominal pain or discomfort. Id. But, on January 14, 20 2014, Plaintiff reported that he had only occasional heartburn that he controlled ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 16 1 with his diet. Tr. 276. While an EGD performed on February 27, 2015 showed 2 helicobacter pylori gastritis, duodenal ulcers, and GERD/nonerosive reflux disease, 3 a subsequent EGD on June 24, 2015 showed the ulcers had healed and the gastritis 4 was eradicated. Tr. 351, 394. On July 14, 2015, imaging showed only mild 5 GERD. Tr. 422. The ALJ’s finding that Plaintiff’s GERD and related conditions 6 did not significantly limit Plaintiff’s functioning for twelve months is supported by 7 substantial evidence. 8 Third, the ALJ considered Plaintiff’s evidence of colon polyps and internal 9 hemorrhoids. Tr. 23. At most, the medical evidence establishes that Plaintiff was 10 diagnosed with colon polyp disease and internal hemorrhoids, and Plaintiff had 11 colon polyps removed in December 2013 and June 2015. Tr. 324, 404. The 12 medical records do not discuss or even suggest that Plaintiff was physically limited 13 by either condition. The ALJ properly concluded that Plaintiff’s medical evidence 14 did not establish that these impairments “even minimally limit the claimant’s 15 ability to do basic work activities.” Tr. 23. 16 Finally, the ALJ analyzed Plaintiff’s claims of back, ankle, foot, and hand 17 pain, as well as Plaintiff’s evidence of osteoarthritis. Tr. 23. As the ALJ noted, 18 Plaintiff’s medical records make limited mention of back and joint paint. On 19 September 23, 2014, Plaintiff reported bilateral hand pain, lower back pain, 20 bilateral foot and ankle pain, and bilateral knee pain. Tr. 273. However, Plaintiff’s ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 17 1 physical examination confirmed that Plaintiff’s grip strength was normal and 2 Phalen’s and Tinel’s were negative. Id. Plaintiff was not limping, he was able to 3 perform heel and toe walks, straight leg raise was negative, there was no lumbar 4 tenderness, and Plaintiff had a normal knee exam with good range of motion. Id. 5 The record is absent of any imagining of Plaintiff’s back, feet, ankles, or hands 6 showing any skeletal problems. Imaging of Plaintiff’s knees showed “very mild 7 osteoarthritis,” which was described as “[v]ery mild age-appropriate osteoarthritic 8 changes in the knees.” Tr. 308. The ALJ concluded that Plaintiff had no 9 medically determinable impairment related to his complaints of back, ankle, foot, 10 and hand pain, and found that the “very mild knee osteoarthritis” was not a severe 11 impairment. Id. The ALJ’s conclusion is supported by substantial evidence. 12 In short, the Court finds that the ALJ properly consider Plaintiff’s other 13 impairments and relied on substantial evidence to support his finding at step-two 14 that those impairments did not more than minimally affect Plaintiff’s work abilities 15 for a continuous twelve-month period. 16 C. Adverse Credibility Determination 17 Plaintiff contends that the ALJ failed “to provide clear and convincing 18 reasons for making a negative credibility finding.” ECF Nos. 10 at 15; 15 at 7-8. 19 Plaintiff argues that the ALJ erred by (1) rejecting his testimony without 20 identifying what testimony is discredited or why, and (2) rejecting, ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 18 1 mischaracterizing, and overlooking substantial medical evidence of record 2 indicating disability. ECF No. 10 at 15. 3 In social security proceedings, a claimant must prove the existence of 4 physical or mental impairment with “medical evidence consisting of signs, 5 symptoms, and laboratory findings.” 20 C.F.R. § 404.1508. A claimant’s 6 statements about his or her symptoms alone will not suffice. 20 C.F.R. §§ 7 404.1508; 404.1527. Once an impairment has been proven to exist, the claimant 8 need not offer further medical evidence to substantiate the alleged severity of his or 9 her symptoms. Bunnell v. Sullivan, 947 F.2d 341, 345 (9th Cir. 1991). As long as 10 the impairment “could reasonably be expected to produce [the] symptoms,” 20 11 C.F.R. § 404.1529(b), the claimant may offer a subjective evaluation as to the 12 severity of the impairment. Id. This rule recognizes that the severity of a 13 claimant’s symptoms “cannot be objectively verified or measured.” Id. at 347 14 (quotation and citation omitted). 15 However, in the event an ALJ finds the claimant’s subjective assessment 16 unreliable, “the ALJ must make a credibility determination with findings 17 sufficiently specific to permit the court to conclude that the ALJ did not arbitrarily 18 discredit claimant's testimony.” Thomas, 278 F.3d at 958. In making such 19 determination, the ALJ may consider, inter alia: (1) the claimant’s reputation for 20 truthfulness; (2) inconsistencies in the claimant’s testimony or between his ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 19 1 testimony and his conduct; (3) the claimant’s daily living activities; (4) the 2 claimant’s work record; and (5) testimony from physicians or third parties 3 concerning the nature, severity, and effect of the claimant’s condition. See id. If 4 there is no evidence of malingering, the ALJ’s reasons for discrediting the 5 claimant’s testimony must be “specific, clear and convincing.” Chaudhry v. 6 Astrue, 688 F.3d 661, 672 (9th Cir. 2012) (quotation and citation omitted). The 7 ALJ “must specifically identify the testimony she or he finds not to be credible and 8 must explain what evidence undermines the testimony.” Holohan v. Massanari, 9 246 F.3d 1195, 1208 (9th Cir. 2001). 10 Here, the ALJ found that the medical evidence confirmed the existence of 11 medical impairments which could reasonably be expected to cause some of 12 Plaintiff’s alleged symptoms. Tr. 25. However, the ALJ did not credit Plaintiff’s 13 testimony about the intensity, persistence, and limiting effects of the symptoms. 14 Id. Rather, the ALJ concluded that “the objective evidence does not support the 15 severity of symptoms and limitations [Plaintiff] has alleged.” Id. There is no 16 evidence of malingering in this case, and therefore the Court must ultimately 17 determine whether the ALJ provided specific, clear and convincing reasons not to 18 credit Plaintiff’s testimony of the limiting effect of his symptoms. Chaudhry, 688 19 F.3d at 672. The Court concludes that the ALJ did provide specific, clear and 20 convincing reasons. ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 20 1 To support its adverse credibility determination, the ALJ consulted 2 Plaintiff’s medical records, summarized the relevant records, and cited to portions 3 of the record which were inconsistent with the severity of symptoms and 4 limitations Plaintiff alleged. First, the ALJ found that “[t]he medical records do 5 not support the degree of respiratory difficulty the claimant has alleged.” Tr. 25. 6 The ALJ noted the Plaintiff had a history of coccidioidomycosis, underwent a right 7 upper lobectomy and had a collapsed lung for three months, and was diagnosed 8 with asthma and chronic obstructive pulmonary disease. Tr. 25-26. The ALJ 9 further observed, however, that the results of pulmonary function testing in August 10 2013 and October 2014 showed only mild to moderate airway obstruction with 11 normal lung volumes and diffusing capacity. Tr. 26. The ALJ also discussed 12 Plaintiff’s large hiatal hernia and the possibility that the hernia was contributing to 13 Plaintiff’s breathing complaints, but noted that imagining on July 22, 2015 showed 14 that Plaintiff’s lungs were adequately expanded despite the presence of the hiatal 15 hernia. Id. The ALJ concluded that, “[r]egardless of whether the hernia is 16 contributing to the claimant’s breathing complaints, the medical records show he 17 reported significant improvement in his shortness of breath with medications,” 18 citing numerous medical records dating from November 2013 to August 2015 19 where Plaintiff either reported an improvement in his breathing with medication or 20 denied any shortness of breath. Id. According to a report from July 21, 2015, ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 21 1 Plaintiff was even encouraged to exercise the equivalent of a brisk 45-minute walk 2 four days a week. Tr. 26, 271. 3 These medical records are inconsistent with the degree of respiratory 4 difficulty claimed by Plaintiff. “While subjective pain testimony cannot be 5 rejected on the sole ground that it is not fully corroborated by objective medical 6 evidence, the medical evidence is still a relevant factor in determining the severity 7 of the claimant’s pain and its disabling effects.” Rollins v. Massanari, 261 F.3d 8 853, 857 (9th Cir. 2001) (citation omitted). Such inconsistencies between 9 Plaintiff’s alleged limitations and medical evidence provide a permissible reason 10 for discounting Plaintiff’s credibility. See Thomas, 278 F.3d at 958-59 (“If the 11 ALJ finds that the claimant’s testimony as to the severity of her pain and 12 impairments is unreliable, the ALJ must make a credibility determination . . . [t]he 13 ALJ may consider . . . testimony from physicians and third parties concerning the 14 nature, severity and effect of the symptoms of which the claimant complains.”) 15 (internal citations and modifications omitted). 16 Second, the ALJ discussed the degree of limitation caused by the loss of 17 Plaintiff’s left eye. Tr. 26. The ALJ observed that, although Plaintiff’s left eye 18 was surgically removed following an injury, Plaintiff was able to return to work 19 despite the impairment. Id. The ALJ noted that Plaintiff testified that he had 20 issues with depth perception, yet Plaintiff was able to drive, use a computer ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 22 1 keyboard, and read despite having only one eye. Tr. 26-27. The ALJ further 2 observed that Plaintiff’s right eye vision was apparently normal with correction. 3 Id. Finally, the ALJ noted that Plaintiff’s function report indicated that his 4 impairments affected his sight, but not his ability to use his hands. Tr. 205. Based 5 on this evidence, the ALJ concluded that Plaintiff “can perform tasks requiring 6 depth perception on an occasional basis and should avoid even moderate exposure 7 to hazards such as moving machinery and unprotected heights.” Tr. 27. 8 Evidence about daily activities is properly considered in making a credibility 9 determination. Fair v. Bowen, 885 F.2d 597, 603 (9th Cir. 1989). In evaluating 10 credibility, an ALJ may properly consider “whether the claimant engages in daily 11 activities inconsistent with the alleged symptoms.” Molina, 674 F.3d at 1113 12 (quoting Lingenfelter v. Astrue, 504 F.3d 1028, 1040 (9th Cir. 2007)). “Even 13 where those activities suggest some difficulty functioning, they may be grounds for 14 discrediting the claimant’s testimony to the extent that they contradict claims of a 15 totally debilitating impairment.” Id. The ALJ did not err in concluded that certain 16 activities Plaintiff engages in, such as driving, typing, and reading, demonstrate 17 greater exertional abilities than the severe limitations claimed by Plaintiff. 18 Finally, the ALJ considered Plaintiff’s subjective complaints relating to his 19 sleep apnea. Tr. 27. The ALJ noted that Plaintiff was diagnosed with mild 20 obstructive sleep apnea in October 2014. Id. Plaintiff testified that he suffered ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 23 1 from fatigue, causing him to take lots of breaks and naps. Tr. 25. However, the 2 ALJ noted a medical record from January 8, 2015, which reported Plaintiff was 3 feeling better with a CPAP, and a medical report on August 6, 2015 that showed 4 Plaintiff’s apnea hypopnea index was normal and Plaintiff was no longer 5 complaining of fatigue. Tr. 27. “Given the improvement with CPAP therapy and 6 the absence of objective evidence of concentration difficulties,” the ALJ concluded 7 that “the sleep apnea would not prevent claimant from performing light exertional 8 activity and does not limit his cognitive function.” Id. As discussed, the 9 inconsistencies between Plaintiff’s alleged limitations and medical evidence 10 provide a permissible reason for discounting Plaintiff’s credibility. Thomas, 278 11 F.3d at 958-59. 12 In sum, the ALJ recognized Plaintiff’s impairments in assigning a light work 13 RFC, but did not credit Plaintiff’s subjective claims to the full extent that Plaintiff 14 claimed he was severely limited in his functionality. Tr. 25. The ALJ’s decision 15 provides specific, clear and convincing reasons supported by substantial evidence 16 sufficient for this Court to conclude that the adverse credibility determination was 17 not arbitrary. 18 D. Step Five Analysis 19 Plaintiff contends that the ALJ erred by providing an incomplete 20 hypothetical to the vocational expert at Plaintiff’s hearing. ECF No. 10 at 16-17. ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 24 1 2 The ALJ provided the following hypothetical to the vocational expert: 9 We’re looking at an individual who would be limited to a light exertional as defined. As far as climbing, no ladders, occasional stairs, balancing at frequent, stooping at occasional, kneeling at occasional—I’m sorry—kneeling at frequently, crouching at occasional, crawling at frequently and as far as environmental, need to avoid concentrated exposure to extreme cold, would need to avoid concentrated exposure to heat, avoid concentrated exposure to vibration and avoid even moderate exposure to fumes, odors, dust and gases, poor ventilation, also avoid even moderate exposure to hazards such as machine—moving machinery or unprotected heights. The other issue that we would have for this hypothetical individual would refer to vision. Essentially, there is no vision in the left eye. This would affect depth perception to occasional. It would limit field of vision on the left. And let’s see. I think they didn’t limit any near or far. 10 Tr. 67-68. The expert relied on this hypothetical that Plaintiff was capable of 11 working as a small parts assembler, cafeteria attendant, or mailroom clerk. Tr. 68. 3 4 5 6 7 8 12 An ALJ need not include limitations in the hypothetical that the ALJ has 13 concluded are not supported by substantial evidence in the record. See Osenbrock 14 v. Apfel, 240 F.3d 1157, 1163-64 (9th Cir. 2001). Plaintiff contends that the ALJ 15 erroneously excluded the following limitations from the hypothetical, which he 16 argues are supported by substantial evidence: (1) Plaintiff is restricted to sedentary 17 work, as identified in Dr. Schmitz’s opinion; and (2) Plaintiff’s need for numerous 18 5-10 minute breaks throughout the day. ECF No. 10 at 16-17. 19 20 As discussed, the ALJ did not err in excluding these alleged limitations in formulating Plaintiff’s RFC. As such, the ALJ did not err in excluding them from ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 25 1 the hypothetical. The ALJ considered the medical evidence and Plaintiff’s 2 testimony regarding the asserted limitations. The ALJ ultimately concluded that 3 the evidence only established that Plaintiff had some, but not all, of the alleged 4 limitations. Tr. 25. These were the limitations the ALJ found supported by 5 substantial evidence in the record. The ALJ concluded further limitations were not 6 supported by the record and, as articulated above, this conclusion was not 7 erroneous. The hypothetical the ALJ used was “accurate, detailed, and supported 8 by the medical record,” and the ALJ was then permitted to rely on the vocational 9 expert’s testimony. See Tackett, 180 F.3d at 1101. 10 ACCORDINGLY, IT IS HEREBY ORDERED: 11 1. Plaintiff’s Motion for Summary Judgment (ECF No. 10) is DENIED. 12 2. Defendant’s Motion for Summary Judgment (ECF No. 14) is 13 14 15 16 GRANTED. The District Court Executive is hereby directed to file this Order, enter Judgment for Defendant, provide copies to counsel, and CLOSE this file DATED September 27, 2018. 17 18 THOMAS O. RICE Chief United States District Judge 19 20 ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 26

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