Prickett v. Saul, No. 1:2019cv03214 - Document 25 (E.D. Wash. 2020)

Court Description: ORDER DENYING 19 PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT AND GRANTING 23 DEFENDANT'S MOTION FOR SUMMARY JUDGMENT. FILE CLOSED. Signed by Magistrate Judge Mary K. Dimke. (AN, Courtroom Deputy)

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Prickett v. Saul Doc. 25 Case 1:19-cv-03214-MKD ECF No. 25 filed 05/12/20 PageID.743 Page 1 of 36 1 2 3 FILED IN THE U.S. DISTRICT COURT EASTERN DISTRICT OF WASHINGTON 4 May 12, 2020 5 UNITED STATES DISTRICT COURT 6 EASTERN DISTRICT OF WASHINGTON 7 DANIEL P.,1 No. 1:19-cv-03214-MKD Plaintiff, 8 vs. 9 ANDREW M. SAUL, 10 COMMISSIONER OF SOCIAL SECURITY, 11 Defendant. 12 13 14 SEAN F. MCAVOY, CLERK ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ECF Nos. 19, 23 Before the Court are the parties’ cross-motions for summary judgment. ECF Nos. 19, 23. The parties consented to proceed before a magistrate judge. ECF No. 11. The Court, having reviewed the administrative record and the parties’ briefing, 15 16 17 18 1 To protect the privacy of plaintiffs in social security cases, the undersigned 19 identifies them by only their first names and the initial of their last names. See 20 LCivR 5.2(c). ORDER - 1 Dockets.Justia.com Case 1:19-cv-03214-MKD ECF No. 25 filed 05/12/20 PageID.744 Page 2 of 36 1 is fully informed. For the reasons discussed below, the Court denies Plaintiff’s 2 motion, ECF No. 19, and grants Defendant’s motion, ECF No. 23. 3 4 JURISDICTION The Court has jurisdiction over this case pursuant to 42 U.S.C. § 405(g). 5 6 STANDARD OF REVIEW A district court’s review of a final decision of the Commissioner of Social 7 Security is governed by 42 U.S.C. § 405(g). The scope of review under § 405(g) is 8 limited; the Commissioner’s decision will be disturbed “only if it is not supported 9 by substantial evidence or is based on legal error.” Hill v. Astrue, 698 F.3d 1153, 10 1158 (9th Cir. 2012). “Substantial evidence” means “relevant evidence that a 11 reasonable mind might accept as adequate to support a conclusion.” Id. at 1159 12 (quotation and citation omitted). Stated differently, substantial evidence equates to 13 “more than a mere scintilla[,] but less than a preponderance.” Id. (quotation and 14 citation omitted). In determining whether the standard has been satisfied, a 15 reviewing court must consider the entire record as a whole rather than searching 16 for supporting evidence in isolation. Id. 17 In reviewing a denial of benefits, a district court may not substitute its 18 judgment for that of the Commissioner. Edlund v. Massanari, 253 F.3d 1152, 19 1156 (9th Cir. 2001). If the evidence in the record “is susceptible to more than one 20 rational interpretation, [the court] must uphold the ALJ’s findings if they are ORDER - 2 Case 1:19-cv-03214-MKD ECF No. 25 filed 05/12/20 PageID.745 Page 3 of 36 1 supported by inferences reasonably drawn from the record.” Molina v. Astrue, 674 2 F.3d 1104, 1111 (9th Cir. 2012). Further, a district court “may not reverse an 3 ALJ’s decision on account of an error that is harmless.” Id. An error is harmless 4 “where it is inconsequential to the [ALJ’s] ultimate nondisability determination.” 5 Id. at 1115 (quotation and citation omitted). The party appealing the ALJ’s 6 decision generally bears the burden of establishing that it was harmed. Shinseki v. 7 Sanders, 556 U.S. 396, 409-10 (2009). 8 9 FIVE-STEP EVALUATION PROCESS A claimant must satisfy two conditions to be considered “disabled” within 10 the meaning of the Social Security Act. First, the claimant must be “unable to 11 engage in any substantial gainful activity by reason of any medically determinable 12 physical or mental impairment which can be expected to result in death or which 13 has lasted or can be expected to last for a continuous period of not less than twelve 14 months.” 42 U.S.C. § 423(d)(1)(A). Second, the claimant’s impairment must be 15 “of such severity that he is not only unable to do his previous work[,] but cannot, 16 considering his age, education, and work experience, engage in any other kind of 17 substantial gainful work which exists in the national economy.” 42 U.S.C. § 18 423(d)(2)(A). 19 The Commissioner has established a five-step sequential analysis to 20 determine whether a claimant satisfies the above criteria. See 20 C.F.R. § ORDER - 3 Case 1:19-cv-03214-MKD ECF No. 25 filed 05/12/20 PageID.746 Page 4 of 36 1 404.1520(a)(4)(i)-(v). At step one, the Commissioner considers the claimant’s 2 work activity. 20 C.F.R. § 404.1520(a)(4)(i). If the claimant is engaged in 3 “substantial gainful activity,” the Commissioner must find that the claimant is not 4 disabled. 20 C.F.R. § 404.1520(b). 5 If the claimant is not engaged in substantial gainful activity, the analysis 6 proceeds to step two. At this step, the Commissioner considers the severity of the 7 claimant’s impairment. 20 C.F.R. § 404.1520(a)(4)(ii). If the claimant suffers 8 from “any impairment or combination of impairments which significantly limits 9 [his or her] physical or mental ability to do basic work activities,” the analysis 10 proceeds to step three. 20 C.F.R. § 404.1520(c). If the claimant’s impairment 11 does not satisfy this severity threshold, however, the Commissioner must find that 12 the claimant is not disabled. 20 C.F.R. § 404.1520(c). 13 At step three, the Commissioner compares the claimant’s impairment to 14 severe impairments recognized by the Commissioner to be so severe as to preclude 15 a person from engaging in substantial gainful activity. 20 C.F.R. § 16 404.1520(a)(4)(iii). If the impairment is as severe or more severe than one of the 17 enumerated impairments, the Commissioner must find the claimant disabled and 18 award benefits. 20 C.F.R. § 404.1520(d). 19 If the severity of the claimant’s impairment does not meet or exceed the 20 severity of the enumerated impairments, the Commissioner must pause to assess ORDER - 4 Case 1:19-cv-03214-MKD ECF No. 25 filed 05/12/20 PageID.747 Page 5 of 36 1 the claimant’s “residual functional capacity.” Residual functional capacity (RFC), 2 defined generally as the claimant’s ability to perform physical and mental work 3 activities on a sustained basis despite his or her limitations, 20 C.F.R. § 4 404.1545(a)(1), is relevant to both the fourth and fifth steps of the 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). If the claimant is 8 capable of performing past relevant work, the Commissioner must find that the 9 claimant is not disabled. 20 C.F.R. § 404.1520(f). If the claimant is incapable of 10 performing such work, the analysis proceeds to step five. 11 At step five, the Commissioner considers whether, in view of the claimant’s 12 RFC, the claimant is capable of performing other work in the national economy. 13 20 C.F.R. § 404.1520(a)(4)(v). In making this determination, the Commissioner 14 must also consider vocational factors such as the claimant’s age, education, and 15 past work experience. 20 C.F.R. § 404.1520(a)(4)(v). If the claimant is capable of 16 adjusting to other work, the Commissioner must find that the claimant is not 17 disabled. 20 C.F.R. § 404.1520(g)(1). If the claimant is not capable of adjusting to 18 other work, the analysis concludes with a finding that the claimant is disabled and 19 is therefore entitled to benefits. 20 C.F.R. § 404.1520(g)(1). 20 ORDER - 5 Case 1:19-cv-03214-MKD 1 ECF No. 25 filed 05/12/20 PageID.748 Page 6 of 36 The claimant bears the burden of proof at steps one through four above. 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)(2); Beltran v. Astrue, 700 F.3d 6 386, 389 (9th Cir. 2012). 7 8 ALJ’S FINDINGS On August 31, 2016, Plaintiff applied for Title II disability insurance 9 benefits alleging a disability onset date of May 30, 2016. Tr. 199-200. The 10 application was denied initially and on reconsideration. Tr. 105-11, 115-21. 11 Plaintiff appeared before an administrative law judge (ALJ) on March 16, 2018. 12 Tr. 35-72. Prior to the administrative hearing, Plaintiff amended his alleged 13 disability onset date to March 2, 2016, Tr. 304, and Plaintiff confirmed this change 14 during the hearing, Tr. 48. On August 21, 2018, the ALJ denied Plaintiff’s claim. 15 Tr. 12-31. 16 At step one of the sequential evaluation process, the ALJ found that Plaintiff 17 had not engaged in substantial gainful activity during the period from his amended 18 alleged onset date of March 2, 2016, through his date last insured of March 31, 19 2016. Tr. 18. At step two, the ALJ found that Plaintiff had the following severe 20 ORDER - 6 Case 1:19-cv-03214-MKD ECF No. 25 filed 05/12/20 PageID.749 Page 7 of 36 1 impairments: disorders of muscle, ligament, and fascia, including left shoulder 2 rotator cuff tear and right knee arthritis. Tr. 18. 3 At step three, the ALJ found that Plaintiff did not have an impairment or 4 combination of impairments that met or medically equaled the severity of a listed 5 impairment. Tr. 21. The ALJ then concluded that Plaintiff had the RFC to 6 perform light work with the following limitations: 7 8 9 10 [Plaintiff] was able to frequently push and/or pull with the upper extremities, frequently balance, and occasionally stoop, kneel, crouch, crawl, and climb ramps, stairs, ladders, ropes, or scaffolds. He could occasionally reach overhead bilaterally and needed to avoid concentrated exposure to hazards such as dangerous machinery and heights. [Plaintiff] would be off task for up to ten percent of the workday. 11 Tr. 21. 12 At step four, the ALJ found that Plaintiff was unable to perform any past 13 relevant work through his date last insured. Tr. 24-25. At step five, the ALJ found 14 that, considering Plaintiff’s age, education, work experience, RFC, and testimony 15 from the vocational expert, there were jobs that existed in significant numbers in 16 the national economy that Plaintiff could perform, such as estimator. Tr. 25-26. 17 Therefore, the ALJ concluded that Plaintiff was not under a disability, as defined in 18 19 20 ORDER - 7 Case 1:19-cv-03214-MKD ECF No. 25 filed 05/12/20 PageID.750 Page 8 of 36 1 the Social Security Act, at any time from March 2, 2016, the alleged onset date, 2 through March 31, 2016, the date last insured.2 Tr. 26. 3 On July 22, 2019, the Appeals Council denied review of the ALJ’s decision, 4 Tr. 1-6, making the ALJ’s decision the Commissioner’s final decision for purposes 5 of judicial review. See 42 U.S.C. § 1383(c)(3). 6 ISSUES 7 Plaintiff seeks judicial review of the Commissioner’s final decision denying 8 him disability insurance benefits under Title II of the Social Security Act. Plaintiff 9 raises the following issues for review: 10 1. Whether the ALJ properly evaluated Plaintiff’s symptom claims; 11 2. Whether the ALJ properly evaluated the medical opinion evidence; and 12 3. Whether the ALJ conducted a proper step-five analysis. 13 ECF No. 19 at 2. 14 15 16 17 2 Although the ALJ incorrectly noted that Plaintiff’s alleged onset date was May 18 30, 2016 in this part of the decision, Tr. 26, this appears to be a typographical error 19 as the ALJ previously acknowledged that Plaintiff had amended his alleged onset 20 date from May 30, 2016 to March 2, 2016. See Tr. 15-16, 18, 48, 304. ORDER - 8 Case 1:19-cv-03214-MKD 1 2 3 ECF No. 25 filed 05/12/20 PageID.751 Page 9 of 36 DISCUSSION A. Plaintiff’s Symptom Claims Plaintiff faults the ALJ for failing to rely on clear and convincing reasons in 4 discrediting his symptom claims. ECF No. 19 at 10-13. An ALJ engages in a two5 step analysis to determine whether to discount a claimant’s testimony regarding 6 subjective symptoms. Social Security Ruling (SSR) 16–3p, 2016 WL 1119029, at 7 *2. “First, the ALJ must determine whether there is objective medical evidence of 8 an underlying impairment which could reasonably be expected to produce the pain 9 or other symptoms alleged.” Molina, 674 F.3d at 1112 (quotation marks omitted). 10 “The claimant is not required to show that [the claimant’s] impairment could 11 reasonably be expected to cause the severity of the symptom [the claimant] has 12 alleged; [the claimant] need only show that it could reasonably have caused some 13 degree of the symptom.” Vasquez v. Astrue, 572 F.3d 586, 591 (9th Cir. 2009). 14 Second, “[i]f the claimant meets the first test and there is no evidence of 15 malingering, the ALJ can only reject the claimant’s testimony about the severity of 16 the symptoms if [the ALJ] gives ‘specific, clear and convincing reasons’ for the 17 rejection.” Ghanim v. Colvin, 763 F.3d 1154, 1163 (9th Cir. 2014) (citations 18 omitted). General findings are insufficient; rather, the ALJ must identify what 19 symptom claims are being discounted and what evidence undermines these claims. 20 Id. (quoting Lester v. Chater, 81 F.3d 821, 834 (9th 1996); Thomas v. Barnhart, ORDER - 9 Case 1:19-cv-03214-MKD ECF No. 25 filed 05/12/20 PageID.752 Page 10 of 36 1 278 F.3d 947, 958 (9th Cir. 2002) (requiring the ALJ to sufficiently explain why it 2 discounted claimant’s symptom claims)). “The clear and convincing [evidence] 3 standard is the most demanding required in Social Security cases.” Garrison v. 4 Colvin, 759 F.3d 995, 1015 (9th Cir. 2014) (quoting Moore v. Comm’r of Soc. Sec. 5 Admin., 278 F.3d 920, 924 (9th Cir. 2002)). 6 Factors to be considered in evaluating the intensity, persistence, and limiting 7 effects of a claimant’s symptoms include: 1) daily activities; 2) the location, 8 duration, frequency, and intensity of pain or other symptoms; 3) factors that 9 precipitate and aggravate the symptoms; 4) the type, dosage, effectiveness, and 10 side effects of any medication an individual takes or has taken to alleviate pain or 11 other symptoms; 5) treatment, other than medication, an individual receives or has 12 received for relief of pain or other symptoms; 6) any measures other than treatment 13 an individual uses or has used to relieve pain or other symptoms; and 7) any other 14 factors concerning an individual’s functional limitations and restrictions due to 15 pain or other symptoms. SSR 16-3p, 2016 WL 1119029, at *7; 20 C.F.R. § 16 404.1529(c). The ALJ is instructed to “consider all of the evidence in an 17 individual’s record,” to “determine how symptoms limit ability to perform work18 related activities.” SSR 16-3p, 2016 WL 1119029, at *2. 19 The ALJ found that Plaintiff’s medically determinable impairments could 20 reasonably be expected to cause some of the alleged symptoms, but that Plaintiff’s ORDER - 10 Case 1:19-cv-03214-MKD ECF No. 25 filed 05/12/20 PageID.753 Page 11 of 36 1 statements concerning the intensity, persistence, and limiting effects of his 2 symptoms were not entirely consistent with the evidence. Tr. 22. 3 1. Inconsistent with Objective Medical Evidence 4 The ALJ found that Plaintiff’s symptom complaints were inconsistent with 5 the objective medical evidence during the relevant period. Tr. 22-23. An ALJ may 6 not discredit a claimant’s symptom testimony and deny benefits solely because the 7 degree of the symptoms alleged is not supported by the objective medical 8 evidence. Rollins v. Massanari, 261 F.3d 853, 857 (9th Cir. 2001); Bunnell v. 9 Sullivan, 947 F.2d 341, 346-47 (9th Cir. 1991). However, the objective medical 10 evidence is a relevant factor, along with the medical source’s information about the 11 claimant’s pain or other symptoms, in determining the severity of a claimant’s 12 symptoms and their disabling effects. Rollins, 261 F.3d at 857; 20 C.F.R. § 13 404.1529(c)(2). 14 Here, the ALJ discussed Plaintiff’s alleged physical symptoms and 15 conditions that caused him to be unable to work, such as his shoulders that “don’t 16 last” because they “just rip right back out” and his worsening knee impairment. 17 Tr. 22. Plaintiff testified he had side effects from his medications that included 18 constipation and feeling tired, and described numerous problems that he was 19 experiencing as of the March 2018 hearing, almost two years after his date last 20 insured. Tr. 22. The ALJ noted that Plaintiff alleged he could not lift his arms to ORDER - 11 Case 1:19-cv-03214-MKD ECF No. 25 filed 05/12/20 PageID.754 Page 12 of 36 1 hammer, he could not carry any weight, and he described difficulty with lifting, 2 reaching, walking, and using his hands. Tr. 22 (citing (Tr. 228, 233). However, 3 the ALJ found that Plaintiff’s symptom complaints were inconsistent with the 4 objective medical evidence in the record during the relevant period between the 5 alleged onset date of March 2, 2016 and the date last insured of March 31, 2016. 6 Tr. 22-23; see, e.g., Tr. 321-26 (January-March 2016: Plaintiff complained of left 7 shoulder pain and sought out additional treatment; he previously had some success 8 with cortisone injections); Tr. 324, 361 (March 2 and March 3, 2016: Plaintiff 9 sought additional treatment indicating he had reinjured his shoulder lifting a heavy 10 beam a few days earlier); Tr. 373, 385 (May 20, 2016: Plaintiff underwent 11 arthroscopic surgery on his left shoulder); Tr. 373-74 (June 1, 2016: at a post12 operative visit for his left shoulder, Plaintiff reported that his pain level was a three 13 out of ten); Tr. 375-76 (July 1, 2016: at another post-operative visit for his left 14 shoulder, Plaintiff reported that his pain level was a two out of ten and his provider 15 noted that he was “doing quite well”); Tr. 380 (August 16, 2016: within three 16 months of his left shoulder surgery, Plaintiff’s treating orthopedic specialist 17 indicated that Plaintiff was making good progress and he could engage in light 18 work and activity; upon examination he had nearly full active and passive range of 19 motion in his left shoulder, negative empty can test, three over five external 20 rotation, and an intact neurovascular examination; Plaintiff was noted to be doing ORDER - 12 Case 1:19-cv-03214-MKD ECF No. 25 filed 05/12/20 PageID.755 Page 13 of 36 1 well with formal physical therapy, and had transitioned out of his abduction 2 pillow); Tr. 353 (August 18, 2016: physical examination findings of Plaintiff’s 3 upper extremities were normal, including normal range of motion); Tr. 614 4 (November 30, 2016: Plaintiff’s treating orthopedic surgeon indicated that Plaintiff 5 had good active range of motion in his left shoulder and was doing well; he noted 6 that Plaintiff could gradually increase active use of his left upper extremity as 7 tolerated); Tr. 617 (February 21, 2017: treatment notes showed that Plaintiff was 8 “doing quite well up until a few months ago when he began experiencing 9 increasing pain in the left shoulder”; Plaintiff reported doing “some light 10 construction”; provider noted that Plaintiff’s examination was consistent with a 11 possible recurrent rotator cuff tear). The ALJ concluded that the record showed 12 Plaintiff experienced improvement after his left shoulder surgery in May 2016, and 13 Plaintiff then reinjured his left shoulder several months after his shoulder surgery. 14 Tr. 23, 616-17. Further, the ALJ observed that on July 21, 2016, Plaintiff reported 15 injuring his right shoulder when trying to pull himself into his truck. Tr. 19 (citing 16 Tr. 377). On August 6, 2016, an MRI scan of Plaintiff’s right rotator cuff indicated 17 findings consistent with full and partial thickness tears of both the supra and 18 infraspinatus tendons with secondary muscle atrophy. Tr. 19 (citing Tr. 358). 19 However, as noted by the ALJ, Plaintiff’s right rotator cuff injury also occurred 20 after his date last insured. Tr. 19; see Tr. 377 (July 21, 2016: Plaintiff reported that ORDER - 13 Case 1:19-cv-03214-MKD ECF No. 25 filed 05/12/20 PageID.756 Page 14 of 36 1 his right shoulder pain began one to two weeks earlier). Moreover, the ALJ noted 2 that although Plaintiff reported some ankle pain in early 2016, he did not seek out 3 significant treatment prior to his date last insured. Tr. 23 (citing Tr. 321-34). The 4 ALJ found that the medical evidence of record indicated that Plaintiff did not 5 report serious problems with his right lower extremity until August 18, 2016, 6 nearly five months after his date last insured, when he described slipping off a 7 dock at a lake, and Plaintiff was only assessed with an ankle strain. Tr. 23 (citing 8 Tr. 351-53). 9 Plaintiff challenges the ALJ’s conclusion by asserting “the fact that the bulk 10 of the medical evidence occurred after [Plaintiff’s] date last insured is not a clear 11 and convincing reason for rejecting his symptom testimony because it is clear that 12 his problems began prior to that date.” ECF No. 19 at 11. However, evidence 13 from outside the relevant period in a case is of limited relevance. Carmickle v. 14 Comm’r of Soc. Sec., 533 F.3d 1155, 1165; see also Turner v. Comm’r of Soc. Sec., 15 613 F.3d 1217, 1223-24 (9th Cir. 2010) (date of social worker’s opinion, rendered 16 outside the relevant period between the alleged onset date and the date last insured, 17 was a germane reason to not address the opinion). As discussed supra, treatment 18 notes from February 21, 2017 show that Plaintiff was “doing quite well up until a 19 few months ago” when Plaintiff had a possible recurrent rotator cuff tear in his left 20 shoulder after doing some light construction, Tr. 617, and on July 21, 2016, he ORDER - 14 Case 1:19-cv-03214-MKD ECF No. 25 filed 05/12/20 PageID.757 Page 15 of 36 1 reported injuring his right shoulder one to two weeks earlier when trying to pull 2 himself into his truck, Tr. 377. Tr. 19. Where the ALJ’s interpretation of the 3 record is reasonable as it is here, it should not be second-guessed. Rollins, 261 4 F.3d at 857. Here, the ALJ reasonably concluded that the objective medical 5 evidence did not support the level of impairment Plaintiff alleged prior to his date 6 last insured of March 30, 2016. Tr. 27-28. 7 2. Improvement with Treatment 8 The ALJ found that Plaintiff’s symptom testimony was inconsistent with the 9 level of improvement he showed following his left shoulder surgery. Tr. 23. The 10 effectiveness of treatment is a relevant factor in determining the severity of a 11 claimant’s symptoms. 20 C.F.R. § 404.1529(c)(3); see Warre v. Comm’r of Soc. 12 Sec. Admin., 439 F.3d 1001, 1006 (9th Cir. 2006) (conditions effectively controlled 13 with medication are not disabling for purposes of determining eligibility for 14 benefits) (internal citations omitted); see also Tommasetti v. Astrue, 533 F.3d 1035, 15 1040 (9th Cir. 2008) (a favorable response to treatment can undermine a claimant’s 16 complaints of debilitating pain or other severe limitations). 17 Here, the ALJ concluded that the record demonstrated improvement in 18 Plaintiff’s left shoulder. Tr. 23. On March 2 and March 3, 2016, Plaintiff sought 19 treatment for his left shoulder, indicating he had reinjured his shoulder while lifting 20 a heavy beam a few days earlier. Tr. 324, 361. On May 20, 2016, Plaintiff ORDER - 15 Case 1:19-cv-03214-MKD ECF No. 25 filed 05/12/20 PageID.758 Page 16 of 36 1 underwent arthroscopic surgery on his left shoulder. Tr. 373, 385. At a post2 operative appointment on June 1, 2016, Plaintiff reported that his pain level was a 3 three out of ten. Tr. 373-74. At another follow-up appointment on July 1, 2016, 4 Plaintiff reported that his pain level was a two out of ten, his pain was intermittent, 5 his pain medication was effective and he was taking the pain medication less often 6 than prescribed, and his provider noted that he was “doing quite well.” Tr. 375-76. 7 Within three months of his left shoulder surgery, Plaintiff’s treating orthopedic 8 specialist indicated that Plaintiff was making good progress and he could engage in 9 light work and activity; upon examination he had nearly full active and passive 10 range of motion in his left shoulder, negative empty can test, three over five 11 external rotation, and an intact neurovascular examination. Tr. 380. Plaintiff had 12 normal upper extremity range of motion on August 18, 2016. Tr. 353. On this 13 record, the ALJ reasonably determined that Plaintiff’s allegations of extremely 14 limiting symptoms during the relevant time period were not consistent with the 15 evidence of record due to Plaintiff’s improvement after left shoulder surgery. Tr. 16 23. 17 Plaintiff challenges the ALJ’s conclusion by arguing that he achieved poor 18 results after numerous shoulder surgeries in 2016 and 2017. ECF No. 19 at 11. As 19 noted supra, evidence from outside the relevant period in a case is of limited 20 relevance. Carmickle, 533 F.3d at 1165; see also Turner, 613 F.3d at 1223-24. ORDER - 16 Case 1:19-cv-03214-MKD ECF No. 25 filed 05/12/20 PageID.759 Page 17 of 36 1 Where the ALJ’s interpretation of the record is reasonable as it is here, it should 2 not be second-guessed. Rollins, 261 F.3d at 857. Here, the ALJ reasonably 3 concluded that the record showed Plaintiff’s left shoulder impairment improved 4 after surgery in May 2016 and was inconsistent with the level of impairment 5 Plaintiff alleged. Tr. 23. This was a clear and convincing reason to discredit 6 Plaintiff’s subjective symptom complaints. 7 3. Inconsistent Statements 8 In discrediting Plaintiff’s symptom claims, the ALJ found that the record 9 contained inconsistent statements about when Plaintiff stopped working. Tr. 23. 10 In evaluating the credibility of symptom testimony, the ALJ may utilize ordinary 11 techniques of credibility evaluation, including prior inconsistent statements. See 12 Smolen v. Chater, 80 F.3d 1273, 1284 (9th Cir. 1996). 13 As an initial matter, Plaintiff argues that because he had a long and 14 successful work history, he is entitled to a finding of substantial credibility. ECF 15 No. 19 at 12 (citing Tr. 201-02). A claimant’s credibility may be enhanced where 16 they have demonstrated a “good work history over an extended time period.” See 17 Archer v. Apfel, 66 F. App’x 121, 122 (9th Cir. 2003); see also Rivera v. 18 Schweiker, 717 F.2d 719, 725 (2d Cir. 1983) (“A claimant with a good work record 19 is entitled to substantial credibility when claiming an inability to work because of a 20 disability.”); Cole v. Colvin, 831 F.3d 411, 415 (7th Cir. 2016) (“[W]e have said ORDER - 17 Case 1:19-cv-03214-MKD ECF No. 25 filed 05/12/20 PageID.760 Page 18 of 36 1 that ‘a claimant with a good work record is entitled to [a finding of] substantial 2 credibility when claiming an inability to work because of a disability’”). Here, 3 while Plaintiff worked continuously through 2002, he did not report any earnings 4 in 2003, 2004, 2008, 2009, 2010, or 2013. Tr. 201-04. Plaintiff has not 5 demonstrated that his credibility is enhanced by a long and successful work 6 history. 7 The ALJ identified inconsistencies with Plaintiff’s timeline for stopping 8 work. Tr. 23. The ALJ noted that in his original disability insurance benefits 9 application, Plaintiff alleged that he stopped working on May 30, 2016 because of 10 his conditions. Tr. 23 (citing Tr. 199, 210). The ALJ highlighted Plaintiff’s report 11 that he was the owner of a contracting business until 2016 and he worked 12 alongside his employees performing a variety of work and earning $40.00 per hour 13 doing full-time work. Tr. 23 (citing Tr. 238-39). However, the ALJ also observed 14 that Plaintiff’s earnings records did not demonstrate this level of income, 15 indicating that Plaintiff had not reported all of his earnings. Tr. 23 (citing Tr. 20116 04). Although Plaintiff testified that he worked at his own business until March 17 2016, Tr. 44, and his original application listed May 30, 2016 as the date he 18 stopped working because of his conditions, the ALJ acknowledged Plaintiff’s 19 testimony that he was no longer able to perform physical work by March 2016, and 20 that his contracting business closed shortly after that because he could not do the ORDER - 18 Case 1:19-cv-03214-MKD ECF No. 25 filed 05/12/20 PageID.761 Page 19 of 36 1 work anymore. Tr. 22. The ALJ accepted this explanation, as he found that 2 Plaintiff had not engaged in substantial gainful activity during the period from his 3 amended alleged onset date of March 2, 2016, through his date last insured of 4 March 31, 2016. Tr. 18. Moreover, while Plaintiff’s earnings records show that he 5 did not earn any income in 2016, Tr. 201-04, the ALJ does not explain how 6 Plaintiff’s apparent failure to report all of his earnings demonstrates an 7 inconsistency with the date he stopped working. The ALJ’s determination that 8 there were conflicting statements in the record about when he stopped working is 9 not supported by substantial evidence. Therefore, to the extent that this was a basis 10 for the ALJ to discount Plaintiff’s symptom claims, this was not a clear and 11 convincing reason to do so. 12 This error is harmless because the ALJ identified other specific, clear, and 13 convincing reasons to discount Plaintiff’s symptom claims. See Carmickle, 533 14 F.3d at 1162-63; Molina, 674 F.3d at 1115 (“[S]everal of our cases have held that 15 an ALJ’s error was harmless where the ALJ provided one or more invalid reasons 16 for disbelieving a claimant’s testimony, but also provided valid reasons that were 17 supported by the record.”); Batson v. Comm’r of Soc. Sec. Admin., 359 F.3d 1190, 18 1197 (9th Cir. 2004) (holding that any error the ALJ committed in asserting one 19 impermissible reason for claimant’s lack of credibility did not negate the validity 20 of the ALJ’s ultimate conclusion that the claimant’s testimony was not credible). ORDER - 19 Case 1:19-cv-03214-MKD 1 2 B. ECF No. 25 filed 05/12/20 PageID.762 Page 20 of 36 Medical Opinion Evidence Plaintiff challenges the ALJ’s evaluation of the medical opinions of Russell 3 Maier, M.D. and Shane Sigler, PA-C. ECF No. 19 at 13-15. 4 There are three types of physicians: “(1) those who treat the claimant 5 (treating physicians); (2) those who examine but do not treat the claimant 6 (examining physicians); and (3) those who neither examine nor treat the claimant 7 [but who review the claimant’s file] (nonexamining [or reviewing] physicians).” 8 Holohan v. Massanari, 246 F.3d 1195, 1201-02 (9th Cir. 2001) (citations omitted). 9 Generally, a treating physician’s opinion carries more weight than an examining 10 physician’s opinion, and an examining physician’s opinion carries more weight 11 than a reviewing physician’s opinion. Id. at 1202. “In addition, the regulations 12 give more weight to opinions that are explained than to those that are not, and to 13 the opinions of specialists concerning matters relating to their specialty over that of 14 nonspecialists.” Id. (citations omitted). 15 If a treating or examining physician’s opinion is uncontradicted, the ALJ 16 may reject it only by offering “clear and convincing reasons that are supported by 17 substantial evidence.” Bayliss v. Barnhart, 427 F.3d 1211, 1216 (9th Cir. 2005). 18 “However, the ALJ need not accept the opinion of any physician, including a 19 treating physician, if that opinion is brief, conclusory, and inadequately supported 20 by clinical findings.” Bray v. Comm’r of Soc. Sec. Admin., 554 F.3d 1219, 1228 ORDER - 20 Case 1:19-cv-03214-MKD ECF No. 25 filed 05/12/20 PageID.763 Page 21 of 36 1 (9th Cir. 2009) (internal quotation marks and brackets omitted). “If a treating or 2 examining doctor’s opinion is contradicted by another doctor’s opinion, an ALJ 3 may only reject it by providing specific and legitimate reasons that are supported 4 by substantial evidence.” Bayliss, 427 F.3d at 1216 (citing Lester, 81 F.3d at 830– 5 31. The opinion of a nonexamining physician may serve as substantial evidence if 6 it is supported by other independent evidence in the record. Andrews v. Shalala, 7 53 F.3d 1035, 1041 (9th Cir. 1995). 8 “Only physicians and certain other qualified specialists are considered 9 ‘[a]cceptable medical sources.’” Ghanim, 763 F.3d at 1161 (alteration in original); 10 see 20 C.F.R. § 404.1513(a) (2013).3 However, an ALJ is required to consider 11 evidence from non-acceptable medical sources. Sprague v. Bowen, 812 F.2d 1226, 12 1232 (9th Cir. 1987); 20 C.F.R. § 404.1527(f). “Other sources” include nurse 13 practitioners, physicians’ assistants, therapists, teachers, social workers, spouses, 14 15 16 17 3 This section was amended in 2017, effective March 27, 2017. 20 C.F.R. § 18 404.1502(a). The court applies the version in effect at the time Plaintiff filed his 19 claim. See 20 C.F.R. § 404.1502 (noting changes apply only for claims filed on or 20 after March 27, 2017). ORDER - 21 Case 1:19-cv-03214-MKD ECF No. 25 filed 05/12/20 PageID.764 Page 22 of 36 1 and other non-medical sources. 20 C.F.R. § 404.1513(d) (2013).4 An ALJ may 2 reject the opinion of a non-acceptable medical source by giving reasons germane to 3 the opinion. Ghanim, 763 F.3d at 1161. 4 1. Dr. Maier 5 Plaintiff’s primary treating physician, Russell Maier, M.D., completed a 6 medical report on April 10, 2017. Tr. 427-29. Dr. Maier noted that he had been 7 treating Plaintiff since May 28, 2013. Tr. 427. He diagnosed Plaintiff with a right 8 and left rotator cuff tear, “restore left post-operatively due for repeat surgery,” and 9 right knee replacement. Tr. 427. Dr. Maier reported that Plaintiff’s ability to stand 10 after kneeling was diminished, he was unable to lift or carry heavy loads, and he 11 was unable to use a hammer or other tools of his trade. Tr. 427. He noted that 12 Plaintiff’s rotator cuff repair and his knee were reasonably likely to cause pain, and 13 stated that Plaintiff’s prognosis was poor. Tr. 427-28. Dr. Maier opined that work 14 on a regular and continuous basis would cause Plaintiff’s condition to deteriorate 15 and he would miss an average of four or more days of work per month. Tr. 428. 16 17 4 This section was amended in 2017, effective March 27, 2017. 20 C.F.R. § 18 404.1502. The court applies the version in effect at the time Plaintiff filed his 19 claim. See 20 C.F.R. § 404.1502 (noting changes apply only for claims filed on or 20 after March 27, 2017). ORDER - 22 Case 1:19-cv-03214-MKD ECF No. 25 filed 05/12/20 PageID.765 Page 23 of 36 1 He opined that Plaintiff was severely limited, and that his limitations had existed 2 since at least December 2016. Tr. 428-29. 3 On January 19, 2018, Dr. Maier completed another medical report. Tr. 472- 4 74. In this report, Dr. Maier noted that he had been treating Plaintiff since before 5 2000. Tr. 472. He diagnosed Plaintiff with shoulder pain, a torn rotator cuff, knee 6 replacement, and arthritis in his back and left ankle. Tr. 472. Dr. Maier reported 7 that Plaintiff had limited range of motion in both of his shoulders, he was unable to 8 do squats or get up from his knees without difficulty or assistance, and he had pain 9 in several major joints including his knees, shoulders, and ankles. Tr. 472. He 10 opined that it was not safe for Plaintiff to do his contractor work while taking 11 opioids. Tr. 472. Dr. Maier noted that Plaintiff had mild underlying anxiety that 12 increased his pain, and his prognosis was poor. Tr. 472-73. He opined that work 13 on a regular and continuous basis would cause Plaintiff’s condition to deteriorate 14 because his joints were worn out and he could not take further manual labor at his 15 age. Tr. 473. He also opined that Plaintiff would miss an average of four or more 16 days of work per month, as he would be “unable to work more than a day.” Tr. 17 473. He opined that Plaintiff would be able to perform light work, he was able to 18 lift 20 pounds, although he could not bend to the ground to do so, and he was able 19 to lift and carry 10 pounds. Tr. 473. Dr. Maier opined that Plaintiff’s limitations 20 had existed since at least October 2016. Tr. 474. ORDER - 23 Case 1:19-cv-03214-MKD 1 ECF No. 25 filed 05/12/20 PageID.766 Page 24 of 36 The ALJ gave Dr. Maier’s opinion little to no weight. Tr. 24. Because Dr. 2 Maier’s opinion was contradicted by the nonexamining opinion of James Irwin, 3 M.D., Tr. 87-98, the ALJ was required to provide specific and legitimate reasons 4 for discounting Dr. Maier’s opinion. Bayliss, 427 F.3d at 1216. 5 The ALJ found that Dr. Maier’s opinion was outside the relevant time 6 period. Tr. 24. Evidence from outside the relevant period in a case is of limited 7 relevance. Carmickle, 533 F.3d at 1165; see also Turner, 613 F.3d at 1223-24 8 (date of social worker’s opinion, rendered outside the relevant period between the 9 alleged onset date and the date last insured, was a germane reason to not address 10 the opinion). Plaintiff’s date last insured was March 31, 2016. Tr. 15. The ALJ 11 noted that Dr. Maier indicated the limitations specified in his April 2017 report 12 existed as of December 2016, which was about eight months after Plaintiff’s date 13 last insured. Tr. 24 (citing Tr. 429). The ALJ also noted that in his later opinion, 14 Dr. Maier suggested that Plaintiff’s limitations had existed as of October 2016, 15 which was about six months after Plaintiff’s date last insured. Tr. 24 (citing Tr. 16 474). Plaintiff asserts that because Dr. Maier was assessing limitations that existed 17 prior to Plaintiff’s date last insured, the timing of his medical reports “was an 18 inadequate reason to reject his assessments.” ECF No. 19 at 15. As discussed 19 supra, the ALJ found that Plaintiff’s symptom complaints during the relevant 20 period resolved shortly after his date last insured, and his subsequent symptom ORDER - 24 Case 1:19-cv-03214-MKD ECF No. 25 filed 05/12/20 PageID.767 Page 25 of 36 1 complaints began after his date last insured. Tr. 19, 22-23; see, e.g., Tr. 324, 361, 2 373-76, 380, 385 (Plaintiff injured his left shoulder lifting a heavy beam in early 3 March 2016; but he had arthroscopic surgery on May 20, 2016, and Plaintiff 4 reported improvement at his post-operative appointments in early June and early 5 July 2016; within three months of his left shoulder surgery, Plaintiff’s treating 6 orthopedic specialist indicated that Plaintiff was making good progress and he 7 could engage in light work and activity; upon examination he had nearly full active 8 and passive range of motion in his left shoulder, negative empty can test, three 9 over five external rotation, and an intact neurovascular examination); Tr. 377 10 (nearly four months after Plaintiff’s date last insured, on July 21, 2016, Plaintiff 11 reported injuring his right shoulder one to two weeks earlier when trying to pull 12 himself into his truck); Tr. 618 (in March 2017, almost a full year after his date last 13 insured, Plaintiff reported pain in his right knee); Tr. 351-53 (Plaintiff did not 14 report serious problems with his right lower extremity until August 18, 2016, 15 nearly five months after his date last insured, when he described slipping off of a 16 dock at a lake, and Plaintiff was assessed with an ankle strain at that time). Based 17 on this record, the ALJ reasonably determined that Dr. Maier’s opinion was 18 entitled to little or no weight because it focused on Plaintiff’s limitations after the 19 20 ORDER - 25 Case 1:19-cv-03214-MKD ECF No. 25 filed 05/12/20 PageID.768 Page 26 of 36 1 date last insured. Tr. 24. This was a specific and legitimate reason to discredit Dr. 2 Maier’s opinion. 3 2. PA-C Sigler 4 The record includes treatment notes from a left shoulder post-operative visit 5 on August 16, 2016 with Plaintiff’s treating orthopedic specialist, Shane Sigler, 6 PA-C. Tr. 380-81. Mr. Sigler noted that Plaintiff’s activity level was “as 7 tolerated,” and his work status was reported as light work and activity. Tr. 380. 8 He reported that Plaintiff was improving, his pain level was five out of ten, and his 9 pain frequency was intermittent. Tr. 380. He noted that Plaintiff was having a 10 good response to his pain medication, he was healing well, and making good 11 progress. Tr. 380. Upon physical examination, Mr. Sigler found that Plaintiff’s 12 inspection of his left shoulder revealed well-healed surgical portals, no erythema or 13 signs of infection, nearly full passive and active range of motion, negative empty 14 can test, three out of five external rotation, and his neurovascular examination was 15 intact. Tr. 380. Mr. Sigler noted that Plaintiff had been doing well with formal 16 physical therapy, he had transitioned out of his abduction pillow, and he would 17 continue to avoid any heavy pulling or pushing. Tr. 381. The ALJ assigned 18 significant weight to Mr. Sigler’s August 2016 opinion indicating that Plaintiff 19 20 ORDER - 26 Case 1:19-cv-03214-MKD ECF No. 25 filed 05/12/20 PageID.769 Page 27 of 36 1 could tolerate light work with the need to avoid any heavy pulling or pushing.5 Tr. 2 24. 3 Plaintiff faults the ALJ for assigning significant weight to Mr. Sigler’s 4 opinion, arguing that while Mr. Sigler opined that Plaintiff was able to perform 5 light work, the record does not demonstrate that Mr. Sigler meant “light work” as 6 used by the Social Security Administration. ECF No. 19 at 15. The legal 7 conclusion of disability is reserved exclusively to the Commissioner. See 20 8 C.F.R. § 404.1527(d)(3) (“We will not give any special significance to the source 9 of an opinion on issues reserved to the Commissioner . . . ”); see also McLeod v. 10 Astrue, 640 F.3d 881, 884-85 (9th Cir. 2011) (“Although a treating physician’s 11 opinion is generally afforded the greatest weight in disability cases, it is not 12 13 5 The ALJ gave no weight to the short term limitations that Mr. Sigler assessed 14 following Plaintiff’s left shoulder surgery in May 2016, indicating Plaintiff could 15 not work. Tr. 24 (citing Tr. 373, 375). Plaintiff does not challenge this finding, 16 ECF No. 19 at 15, thus, any challenge is waived. See Carmickle, 533 F.3d at 1161 17 n.2 (determining Court may decline to address on the merits issues not argued with 18 specificity); Kim v. Kang, 154 F.3d 996, 1000 (9th Cir. 1998) (the Court may not 19 consider on appeal issues not “specifically and distinctly argued” in the party’s 20 opening brief). ORDER - 27 Case 1:19-cv-03214-MKD ECF No. 25 filed 05/12/20 PageID.770 Page 28 of 36 1 binding on an ALJ with respect to the existence of an impairment or the ultimate 2 issue of disability.”). Nevertheless, the ALJ is required to “carefully consider 3 medical source opinions about any issue, including opinions about issues that are 4 reserved to the Commissioner.” SSR 96-5p, 1996 WL 374183, at *2 (July 2, 5 1996); Holohan, 246 F.3d at 1203 (“If the treating physician’s opinion on the issue 6 of disability is controverted, the ALJ must still provide ‘specific and legitimate’ 7 reasons in order to reject the treating physician’s opinion.”). “In evaluating the 8 opinions of medical sources on issues reserved to the Commissioner, the 9 adjudicator must apply the applicable factors in 20 C.F.R. § 404.1527(d) … For 10 example, it would be appropriate to consider the supportability of the opinion and 11 its consistency with the record as a whole…” SSR 96-5p, 1996 WL 374183, at *3 12 (July 2, 1996). Although an ALJ must provide specific and legitimate reasons to 13 reject contradicted medical opinion evidence, the same standard does not apply 14 when the ALJ credits opinion evidence. See Orteza v. Shalala, 50 F.3d 748, 750 15 (9th Cir. 1995); Bayliss, 427 F.3d at 1216. 16 Although not required to provide specific and legitimate reasons to credit a 17 medical opinion, here the ALJ listed two reasons for assigning credit to Mr. 18 Sigler’s opinion. Tr. 24. First, the ALJ found that Mr. Sigler’s status as Plaintiff’s 19 treating specialist throughout the process of his left shoulder surgery lent greater 20 credibility to his medical opinion. Tr. 24. The number of times a claimant meets ORDER - 28 Case 1:19-cv-03214-MKD ECF No. 25 filed 05/12/20 PageID.771 Page 29 of 36 1 with a provider is a relevant factor in assigning weight to an opinion. 20 C.F.R. § 2 404.1527(c)(2)(i). Additionally, the extent to which a medical source is “familiar 3 with the other information in [the claimant’s] case record” is relevant in assessing 4 the weight of that source’s medical opinion. 20 C.F.R. § 404.1527(c)(6). Second, 5 the ALJ found that Mr. Sigler’s opinion was consistent with Mr. Sigler’s own 6 treatment records, including his physical examination findings. Tr. 24; see Tr. 380 7 (physical examination revealed Plaintiff had nearly full passive and active range of 8 motion, negative empty can test, three over five external rotation, and his 9 neurovascular examination was intact). Relevant factors to evaluating any medical 10 opinion include the amount of relevant evidence that supports the opinion, the 11 quality of the explanation provided in the opinion, and the consistency of the 12 medical opinion with the record as a whole. Lingenfelter v. Astrue, 504 F.3d 1028, 13 1042 (9th Cir. 2007); Orn v. Astrue, 495 F.3d 625, 631 (9th Cir. 2007). Plaintiff 14 does not challenge the ALJ’s findings that Mr. Sigler treated Plaintiff throughout 15 the process of his left shoulder surgery, or that his opinion was consistent with his 16 physical examination findings. ECF No. 19 at 15. The Court concludes that the 17 ALJ’s evaluation of Mr. Sigler’s opinion was based on legally sufficient reasons. 18 19 C. Step Five Plaintiff argues that the ALJ failed to meet his burden at step five. ECF No. 20 19 at 15-18. “[I]f a claimant establishes an inability to continue [his] past work, ORDER - 29 Case 1:19-cv-03214-MKD ECF No. 25 filed 05/12/20 PageID.772 Page 30 of 36 1 the burden shifts to the Commissioner in step five to show that the claimant can 2 perform other substantial gainful work.” Burch v. Barnhart, 400 F.3d 676, 679 3 (9th Cir. 2005) (citing Swenson v. Sullivan, 876 F.2d 683, 687 (9th Cir. 1989)). At 4 step five, “the ALJ ... examines whether the claimant has the [RFC] ... to perform 5 any other substantial gainful activity in the national economy.” Id. “If the 6 claimant is able to do other work, then the Commissioner must establish that there 7 are a significant number of jobs in the national economy that claimant can do.” 8 Tackett, 180 F.3d at 1099. “There are two ways for the Commissioner to meet the 9 burden of showing that there is other work in ‘significant numbers’ in the national 10 economy that claimant can perform: (1) by the testimony of a [VE], or (2) by 11 reference to the Medical-Vocational Guidelines…” Id. “If the Commissioner 12 meets this burden, the claimant is ‘not disabled’ and therefore not entitled to ... 13 benefits.” Id. (citation and emphasis omitted). “If the Commissioner cannot meet 14 this burden, then the claimant is ‘disabled’ and therefore entitled to ... benefits.” 15 Id. (citation and emphasis omitted). 16 First, Plaintiff argues that the ALJ’s identified job of estimator is 17 inconsistent with the assessed RFC. ECF No. 19 at 16-17. To ensure consistency, 18 an ALJ must inquire about “an apparent unresolved conflict between [the 19 vocational expert’s] evidence and the DOT.” SSR 00-4p, 2000 WL 1898704, at 20 *2. “For a difference between an expert’s testimony and the [DOT’s] listings to be ORDER - 30 Case 1:19-cv-03214-MKD ECF No. 25 filed 05/12/20 PageID.773 Page 31 of 36 1 fairly characterized as a conflict, it must be obvious or apparent.” Gutierrez v. 2 Colvin, 844 F.3d 804, 808 (9th Cir. 2016). Thus, failure to resolve a conflict is 3 only prejudicial if there is an actual conflict or if the vocational expert’s 4 explanation is deficient. Massachi v. Astrue, 486 F.3d 1149, 1154 n.19 (9th Cir. 5 2007). Here, the ALJ found that Plaintiff was able to perform the job of estimator, 6 which requires frequent reaching. Tr. 25-26. Plaintiff argues that he is precluded 7 from performing the estimator job because his RFC limits him to only occasional 8 overhead reaching with both arms. ECF No. 19 at 16-17. Although the estimator 9 job requires frequent reaching, “not every job that involves reaching requires the 10 ability to reach overhead.” Gutierrez, 844 F.3d at 808; Hulsey v. Saul, 794 Fed. 11 App’x. 659 (9th Cir. Feb. 19, 2020) (unpublished opinion) (citations omitted and 12 emphasis in the original) (“Although the [DOT] notes that both the phlebotomist 13 and gambling cashier occupations generally require frequent reaching, it does not 14 indicate that those occupations require frequent overhead reaching or overhead 15 reaching with the non-dominant arm … Thus, there is also no apparent conflict 16 with the [VE’s] testimony and the [DOT] with respect to [the plaintiff’s] non17 dominant-hand overhead reaching ability.”). The job description for the estimator 18 position is short and easy to comprehend. DOT #169.267-038, available at 1991 19 WL 647453. The description specifies that an estimator analyzes blueprints, 20 specifications, proposals, and other documents to prepare time, cost, and labor ORDER - 31 Case 1:19-cv-03214-MKD ECF No. 25 filed 05/12/20 PageID.774 Page 32 of 36 1 estimates for products, projects, and services, reviews data and prepares itemized 2 lists, computes cost factors, prepares estimates, or conducts “studies to develop and 3 establish standard hour and related cost data or effect cost reductions,” and 4 consults with clients and others. Id. The description of the sedentary estimator 5 position does not reflect a job that requires any overhead reaching work, and 6 nothing in the DOT description suggests that more than occasional overhead 7 reaching is “essential, integral, or expected.” Id; Gutierrez, 844 F.3d at 808; 8 Higgins v. Berryhill, 2017 WL 4037691, at *9 (W.D. Wash. Sept. 13, 2017) (“[a]s 9 in Gutierrez, none of the duties of this job appear to require overhead reaching 10 thereby making the conflict between the VE’s testimony and the DOT so apparent 11 or obvious that the ALJ was required to ask additional questions.”). Further, at the 12 administrative hearing, the ALJ requested that the vocational expert let him know 13 if her testimony was not consistent with the DOT in case the ALJ had a question. 14 Tr. 39. The ALJ also asked the vocational expert what her testimony was usually 15 based on if she did deviate from the DOT. Tr. 39. The vocational expert testified 16 that any testimony that deviated from the DOT was based on her “professional 17 experience as a vocational rehabilitation counselor for the past 25 years.” Tr. 39. 18 Based on this record, the ALJ was entitled to rely on the vocational expert’s 19 testimony that Plaintiff was capable of performing the job of estimator. 20 ORDER - 32 Case 1:19-cv-03214-MKD 1 ECF No. 25 filed 05/12/20 PageID.775 Page 33 of 36 Next, Plaintiff contends that the ALJ incorrectly found Plaintiff’s past 2 relevant work as a contractor resulted in transferrable skills to the estimator 3 position. ECF No. 19 at 17-18. A claimant has transferable skills “when the 4 skilled or semiskilled work activities [the claimant] did in past work can be used to 5 meet the requirements of skilled or semi-skilled work activities of other jobs.” 6 Renner v. Heckler, 786 F.2d 1421, 1423 (9th Cir. 1986) (quoting 20 C.F.R. § 7 404.1568(d)(1)). “A finding of transferability is most probable among jobs that 8 involve: (1) the same or lesser degree of skill; (2) a similarity of tools; and (3) a 9 similarity of services or products.” Id. (citing 20 C.F.R. § 404.1568(d)(2)). 10 However, “[c]omplete similarity of skills ... is not necessary.” Id. (citing 20 C.F.R. 11 § 404.1568(d)(3)). At the time of the ALJ’s decision, Plaintiff was over 55 years 12 old, rendering him “of advanced age” under the Social Security regulations. 20 13 C.F.R. § 404.1563(e). The Social Security regulations provide that, when a 14 claimant is of advanced age and has “a severe impairment(s) that limits you to no 15 more than sedentary work, we will find that you have skills that are transferable to 16 skilled or semiskilled sedentary work only if the sedentary work is so similar to 17 your previous work that you would need to make very little, if any, vocational 18 adjustment in terms of tools, work processes, work settings, or the industry.” 20 19 C.F.R. § 404.1568(d)(4). The Ninth Circuit has further elaborated that, to satisfy 20 ORDER - 33 Case 1:19-cv-03214-MKD ECF No. 25 filed 05/12/20 PageID.776 Page 34 of 36 1 the “very little, if any” standard, the skills at issue must be “directly transferable.” 2 Renner, 786 F.2d at 1423-24. 3 Plaintiff first argues that the ALJ erred in finding that he could work as an 4 estimator because Dr. Maier opined that contractor work would be excluded due to 5 Plaintiff’s use of prescription opioids. ECF No. 19 at 17 (citing Tr. 472). As 6 discussed supra, the ALJ reasonably gave Dr. Maier’s opinions little to no weight 7 because his opinions were outside the relevant time period. Tr. 24. Plaintiff also 8 argues that he had been his own employer since 2000 and it is not clear whether 9 working for someone else would be a significant vocational adjustment under 20 10 C.F.R. § 404.1568(d)(4). ECF No. 19 at 17-18. A vocational expert’s testimony is 11 itself substantial evidence sufficient to uphold the ALJ’s decision. Thomas, 278 12 F.3d at 960 (finding vocational expert’s testimony was substantial evidence on 13 which the ALJ could rely); Johnson v. Colvin, 31 F.Supp.3d 1262, 1272-73 (E.D. 14 Wash. 2014) (same); Ball v. Astrue, 2010 WL 3420166, *13 (D. Or. 2010) (“The 15 [vocational expert’s] testimony provided the ALJ with substantial evidence of the 16 skill level required in plaintiff’s past relevant work and the particular skills 17 acquired by his past relevant work activities.”). Here, as Plaintiff notes, when 18 asked if it would be a significant vocational adjustment to go from working for 19 oneself for 15 years to then working for someone else, the vocational expert 20 testified that half of individuals are successful at making that transition while the ORDER - 34 Case 1:19-cv-03214-MKD ECF No. 25 filed 05/12/20 PageID.777 Page 35 of 36 1 other half struggle with the change. ECF No. 19 at 17; Tr. 68. However, as 2 Defendant asserts, 20 C.F.R. § 404.1568(d)(4) addresses vocational adjustment “in 3 terms of tools, work processes, work settings, or the industry,” and those do not 4 differ depending on whether a person is performing the job duties as a self5 employed individual or performing those same duties working for someone else. 6 ECF No. 23 at 17. Further, as highlighted by Defendant, even if a change from 7 working for oneself to working for another person would be a vocational 8 adjustment, the record demonstrates that Plaintiff was good at following written 9 and spoken instructions, he had never been fired or laid off from a job because of 10 problems working with others, he got along “great” with authority figures, he did 11 not have any problems getting along with family, friends, neighbors, or others, and 12 he was great at handling stress and changes in routine. ECF No. 23 at 17 (citing 13 Tr. 233-34). The ALJ’s finding that Plaintiff’s ability to transfer his skills to the 14 job of estimator would have very little, if any, vocational adjustment in terms of 15 tools, work processes, work settings, or the industry, was supported by substantial 16 evidence. Tr. 26. 17 18 CONCLUSION Having reviewed the record and the ALJ’s findings, the Court concludes the 19 ALJ’s decision is supported by substantial evidence and free of harmful legal error. 20 Accordingly, IT IS HEREBY ORDERED: ORDER - 35 Case 1:19-cv-03214-MKD ECF No. 25 filed 05/12/20 PageID.778 Page 36 of 36 1 1. Plaintiff’s Motion for Summary Judgment, ECF No. 19, is DENIED. 2 2. Defendant’s Motion for Summary Judgment, ECF No. 23, is 3 GRANTED. 4 3. The Clerk’s Office shall enter JUDGMENT in favor of Defendant. 5 The District Court Executive is directed to file this Order, provide copies to 6 counsel, and CLOSE THE FILE. 7 DATED May 12, 2020. 8 s/Mary K. Dimke MARY K. DIMKE UNITED STATES MAGISTRATE JUDGE 9 10 11 12 13 14 15 16 17 18 19 20 ORDER - 36

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