Dugas v. Colvin, No. 2:2015cv00317 - Document 18 (E.D. Wash. 2016)

Court Description: ORDER GRANTING DEFENDANTS MOTION FOR SUMMARY JUDGMENT. Plaintiffs Motion for Summary Judgment ECF No. 13 is DENIED. Defendants Motion for Summary Judgment ECF No. 16 is GRANTED. The file is CLOSED. Signed by Chief Judge Thomas O. Rice. (LLH, Courtroom Deputy)

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Dugas v. Colvin Doc. 18 1 2 3 4 5 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF WASHINGTON 6 7 KATHY DUGAS, NO: 2:15-CV-0317-TOR Plaintiff, 8 9 10 11 12 ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT v. CAROLYN W. COLVIN, Acting Commissioner of Social Security Administration, Defendant. 13 14 BEFORE THE COURT are the parties’ cross motions for summary 15 judgment. ECF Nos. 13, 16. Dana C. Madsen 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 JURISDICTION The Court has jurisdiction over this case pursuant to 42 U.S.C. § 405(g). ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 1 Dockets.Justia.com 1 2 STANDARD OF REVIEW A district court’s review of a final decision of the Commissioner of Social 3 Security is governed by 42 U.S.C. § 405(g). The scope of review under §405(g) is 4 limited: the Commissioner’s decision will be disturbed “only if it is not supported 5 by substantial evidence or is based on legal error.” Hill v. Astrue, 698 F.3d 1153, 6 1158 (9th Cir. 2012) (citing 42 U.S.C. § 405(g)). “Substantial evidence” means 7 relevant evidence that “a reasonable mind might accept as adequate to support a 8 conclusion.” Id. at 1159 (quotation and citation omitted). Stated differently, 9 substantial evidence equates to “more than a mere scintilla[,] but less than a 10 preponderance.” Id. (quotation and citation omitted). In determining whether this 11 standard has been satisfied, a reviewing court must consider the entire record as a 12 whole rather than searching for supporting evidence in isolation. Id. 13 In reviewing a denial of benefits, a district court may not substitute its 14 judgment for that of the Commissioner. If the evidence in the record “is 15 susceptible to more than one rational interpretation, [the court] must uphold the 16 ALJ’s findings if they are supported by inferences reasonably drawn from the 17 record.” Molina v. Astrue, 674 F.3d 1104, 1111 (9th Cir. 2012). Further, a district 18 court “may not reverse an ALJ’s decision on account of an error that is harmless.” 19 Id. at 1111. An error is harmless “where it is inconsequential to the [ALJ’s] 20 ultimate nondisability determination.” Id. at 1115 (quotation and citation omitted). ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 2 1 The party appealing the ALJ’s decision generally bears the burden of establishing 2 that it was harmed. Shinseki v. Sanders, 556 U.S. 396, 409-10 (2009). 3 4 FIVE-STEP SEQUENTIAL EVALUATION PROCESS A claimant must satisfy two conditions to be considered “disabled” within 5 the meaning of the Social Security Act. First, the claimant must be “unable to 6 engage in any substantial gainful activity by reason of any medically determinable 7 physical or mental impairment which can be expected to result in death or which 8 has lasted or can be expected to last for a continuous period of not less than twelve 9 months.” 42 U.S.C. § 423(d)(1)(A). Second, the claimant’s impairment must be 10 “of such severity that he is not only unable to do his previous work[,] but cannot, 11 considering his age, education, and work experience, engage in any other kind of 12 substantial gainful work which exists in the national economy.” 42 U.S.C. § 13 423(d)(2)(A). 14 The Commissioner has established a five-step sequential analysis to 15 determine whether a claimant satisfies the above criteria. See 20 C.F.R. § 16 404.1520(a)(4)(i)-(v). At step one, the Commissioner considers the claimant’s 17 work activity. 20 C.F.R. § 404.1520(a)(4)(i). If the claimant is engaged in 18 “substantial gainful activity,” the Commissioner must find that the claimant is not 19 disabled. 20 C.F.R. § 404.1520(b). 20 ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 3 1 If the claimant is not engaged in substantial gainful activities, the analysis 2 proceeds to step two. At this step, the Commissioner considers the severity of the 3 claimant’s impairment. 20 C.F.R. § 404.1520(a)(4)(ii). If the claimant suffers 4 from “any impairment or combination of impairments which significantly limits 5 [his or her] physical or mental ability to do basic work activities,” the analysis 6 proceeds to step three. 20 C.F.R. § 404.1520(c). If the claimant’s impairment 7 does not satisfy this severity threshold, however, the Commissioner must find that 8 the claimant is not disabled. Id. 9 At step three, the Commissioner compares the claimant’s impairment to 10 several impairments recognized by the Commissioner to be so severe as to 11 preclude a person from engaging in substantial gainful activity. 20 C.F.R. § 12 404.1520(a)(4)(iii). If the impairment is as severe or more severe than one of the 13 enumerated impairments, the Commissioner must find the claimant disabled and 14 award benefits. 20 C.F.R. § 404.1520(d). 15 If the severity of the claimant’s impairment does meet or exceed the severity 16 of the enumerated impairments, the Commissioner must pause to assess the 17 claimant’s “residual functional capacity.” Residual functional capacity (“RFC”), 18 defined generally as the claimant’s ability to perform physical and mental work 19 activities on a sustained basis despite his or her limitations (20 C.F.R. § 20 404.1545(a)(1)), is relevant to both the fourth and fifth steps of the analysis. ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 4 1 At step four, the Commissioner considers whether, in view of the claimant’s 2 RFC, the claimant is capable of performing work that he or she has performed in 3 the past (“past relevant work”). 20 C.F.R. § 404.1520(a)(4)(iv). If the claimant is 4 capable of performing past relevant work, the Commissioner must find that the 5 claimant is not disabled. 20 C.F.R. § 404.1520(f). If the claimant is incapable of 6 performing such work, the analysis proceeds to step five. 7 At step five, the Commissioner considers whether, in view of the claimant’s 8 RFC, the claimant is capable of performing other work in the national economy. 9 20 C.F.R. § 404.1520(a)(4)(v). In making this determination, the Commissioner 10 must also consider vocational factors such as the claimant’s age, education and 11 work experience. Id. If the claimant is capable of adjusting to other work, the 12 Commissioner must find that the claimant is not disabled. 20 C.F.R. § 13 404.1520(g)(1). If the claimant is not capable of adjusting to other work, the 14 analysis concludes with a finding that the claimant is disabled and is therefore 15 entitled to benefits. Id. 16 The claimant bears the burden of proof at steps one through four above. 17 Bray v. Comm’r of Soc. Sec. Admin., 554 F.3d 1219, 1228 (9th Cir. 2009). If the 18 analysis proceeds to step five, the burden shifts to the Commissioner to establish 19 that (1) the claimant is capable of performing other work; and (2) such work 20 ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 5 1 “exists in significant numbers in the national economy.” 20 C.F.R. § 404.1560(c); 2 Beltran v. Astrue, 700 F.3d 386, 389 (9th Cir. 2012). 3 4 ALJ’S FINDINGS Plaintiff applied for a period of disability and disability insurance benefits on 5 July 9, 2012. Tr. 136-56. Her application was denied initially and on 6 reconsideration. Tr. 64-74; 75-88. Plaintiff filed a timely request for hearing, Tr. 7 99, and appeared with an attorney at a hearing before an administrative law judge 8 (“ALJ”) on May 30, 2014. Tr. 32-62. 9 On June 27, 2014, the ALJ found that Plaintiff met the insured status 10 requirements of Title II of the Social Security Act through December 31, 2015. Tr. 11 14. At step one, the ALJ found that Plaintiff had not engaged in substantial gainful 12 activity since October 15, 2010, the alleged onset date. Id. At step two, the ALJ 13 found that Plaintiff had severe impairments, but at step three, the ALJ found that 14 Plaintiff’s severe impairments did not meet or medically equal a listed impairment. 15 Tr. 15. The ALJ then determined that Plaintiff had the residual functional capacity 16 to perform light work with certain specified limitations. Tr. 16. At step four, the 17 ALJ found that Plaintiff was able to perform past relevant work as a housekeeper, 18 supervisor. Tr. 24-25. In the alternative, after considering Plaintiff’s age, 19 education, work experience, and residual functional capacity, the ALJ found that 20 Plaintiff was capable of performing representative occupations, such as production ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 6 1 assembler, retail clerk, and mail clerk, which exist in significant numbers in the 2 national economy. Tr. 25. Because Plaintiff was capable of past relevant work 3 and other work in the national economy, the ALJ found that Plaintiff was not 4 disabled under the Social Security Act. Tr. 24-26. 5 On October 7, 2015, the Appeals Council denied Plaintiff’s request for 6 review, making the ALJ’s decision the Commissioner’s final decision that is 7 subject to judicial review. Tr. 1-7; 20 C.F.R. § 404.981. 8 ISSUES 9 Plaintiff seeks judicial review of the Commissioner’s final decision denying 10 her disability insurance benefits under Title II of the Social Security Act. Plaintiff 11 has raised two issues for review: 12 13 14 15 16 1. Whether the ALJ erred in making an adverse credibility determination; and 2. Whether the ALJ properly weighed the medical opinions of Dr. Arnold. ECF No. 13 at 12-19. The Court evaluates each issue in turn. DISCUSSION 17 A. Adverse Credibility Determination 18 In social security proceedings, a claimant must prove the existence of 19 physical or mental impairment with “medical evidence consisting of signs, 20 symptoms, and laboratory findings.” 20 C.F.R. § 404.1508. A claimant’s ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 7 1 statements about his or her symptoms alone will not suffice. 20 C.F.R. §§ 2 404.1508; 404.1527. Once an impairment has been proven to exist, the claimant 3 need not offer further medical evidence to substantiate the alleged severity of his or 4 her symptoms. Bunnell v. Sullivan, 947 F.2d 341, 345 (9th Cir. 1991) (en banc). 5 As long as the impairment “could reasonably be expected to produce [the] 6 symptoms,” 20 C.F.R. § 404.1529(b), the claimant may offer a subjective 7 evaluation as to the severity of the impairment. Id. This rule recognizes that the 8 severity of a claimant’s symptoms “cannot be objectively verified or measured.” 9 Id. at 347 (quotation and citation omitted). 10 In the event an ALJ finds the claimant’s subjective assessment unreliable, 11 however, “the ALJ must make a credibility determination with findings sufficiently 12 specific to permit the court to conclude that the ALJ did not arbitrarily discredit 13 claimant's testimony.” Thomas v. Barnhart, 278 F.3d 947, 958 (9th Cir. 2002). In 14 making such determination, the ALJ may consider, inter alia: (1) the claimant’s 15 reputation for truthfulness; (2) inconsistencies in the claimant’s testimony or 16 between his testimony and his conduct; (3) the claimant’s daily living activities; 17 (4) the claimant’s work record; and (5) testimony from physicians or third parties 18 concerning the nature, severity, and effect of the claimant’s condition. See id. The 19 ALJ may also consider a claimant’s “unexplained or inadequately explained failure 20 to seek treatment or to follow a prescribed course of treatment.” Tommasetti v. ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 8 1 Astrue, 533 F.3d 1035, 1039 (9th Cir. 2008). If there is no evidence of 2 malingering, the ALJ’s reasons for discrediting the claimant’s testimony must be 3 “specific, clear and convincing.” Chaudhry v. Astrue, 688 F.3d 661, 672 (9th Cir. 4 2012) (quotation and citation omitted). The ALJ “must specifically identify the 5 testimony she or he finds not to be credible and must explain what evidence 6 undermines the testimony.” Holohan v. Massanari, 246 F.3d 1195, 1208 (9th Cir. 7 2001). 8 9 Plaintiff contends the ALJ improperly discounted her credibility, citing each reason proffered by the ALJ as insufficient. ECF No. 13 at 12-16. In response, 10 Defendant asserts the ALJ offered several reasons, supported by substantial 11 evidence, for finding Plaintiff’s allegations not credible. ECF No. 16 at 5-10. 12 The Court finds the ALJ provided specific, clear, and convincing reasoning 13 supported by substantial evidence for finding Plaintiff’s subjective statements not 14 “entirely credible.” Tr. 21. First, the ALJ found “the objective evidence does not 15 document clinical findings of physical or mental status abnormality that 16 established total disability . . . or corroborate the degree of symptomology or 17 limitation the claimant has described.” Tr. 21. Specifically, the ALJ noted 18 multiple evaluations finding Plaintiff to be “well appearing,” “well-nourished in no 19 distress,” “oriented to person, place, and time,” “normal affect and mood,” “alert,” 20 “interactive,” and “[in] no distress.” Tr. 22 (citing Tr. 229, 233, 260). In addition, ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 9 1 as for Plaintiff’s physical impairments, while Plaintiff complained of disabling 2 back and neck pain, the ALJ noted a medical evaluation on June 24, 2013 showing 3 [Plaintiff’s] respiration rhythm and depth was normal and the lungs were clear to auscultation. She exhibited no tenderness on palpation to her back. The cervical spine had a normal appearance, motion was normal, the thoracic spine had a normal appearance, and the thoracic spine exhibited no tenderness on palpation. The lumbosacral spine exhibited a normal appearance, no muscle spasms, motion was normal, a straight-leg raising test was negative, and no tenderness on palpation of the sacroiliac joint. A motor exam demonstrated no dysfunction, gait and stance were normal, and the deep tendon reflexes were normal. 4 5 6 7 8 9 Tr. 22 (citing Tr. 305). Such inconsistencies between Plaintiff’s alleged limitations and medical 10 evidence provide a permissible reason for discounting Plaintiff’s credibility. See 11 Thomas, 278 F.3d at 958-59 (“If the ALJ finds that the claimant’s testimony as to 12 the severity of her pain and impairments is unreliable, the ALJ must make a 13 credibility determination . . . [t]he ALJ may consider . . . testimony from 14 physicians and third parties concerning the nature, severity and effect of the 15 symptoms of which the claimant complains.”) (internal citations and modifications 16 omitted); see also Rollins v. Massanari, 261 F.3d 853, 857 (9th Cir. 2001) (“While 17 subjective pain testimony cannot be rejected on the sole ground that it is not fully 18 corroborated by objective medical evidence, the medical evidence is still a relevant 19 factor in determining the severity of the claimant’s pain and its disabling effects.”) 20 (citation omitted). ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 10 1 Second, the ALJ observed that Plaintiff has not generally received the type 2 of medical treatment one would expect for a totally disabled individual. Tr. 22. 3 The ALJ found it significant that Plaintiff received no treatment for alleged mental 4 health problems Plaintiff claimed were disabling. Tr. 22. Further, the ALJ 5 observed that even given financial constraints, the degree of effort by Plaintiff to 6 alleviate her symptoms tended to undermine her testimony the symptoms were as 7 limiting as alleged. Importantly, the ALJ referenced documents indicating Plaintiff 8 could receive her appropriate medication for free through her research study. Tr. 9 20 (citing Tr. 336); see Tommasetti, 533 F.3d at 1039 (holding that ALJ may draw 10 adverse inference from a claimant’s failure to seek an aggressive treatment 11 program or failure to seek “an alternative or more-tailored treatment program” 12 after discontinuing prescription medication regimen). 13 Third, the ALJ observed inconsistencies between Plaintiff’s testimony and 14 her conduct. For instance, the ALJ noted that Plaintiff both failed a drug screen in 15 2013 and reported that she had never been terminated from a position, yet: (1) 16 sought treatment from another provider before review of the failed screen; (2) 17 reported to another doctor that she had passed drug screens as part of a pain 18 contract but lack of finances was the issue for her previous provider, and; (3) 19 reported in her application for benefits that she was let go from her job due to 20 ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 11 1 multiple sicknesses. Tr. 23. Such inconsistencies are other permissible reasons to 2 discredit Plaintiff’s testimony. See Thomas, 278 F.3d at 958-59. 3 Fourth, the ALJ found Plaintiff’s daily activities were inconsistent with her 4 symptom claims. Tr. 23. The ALJ observed that Plaintiff self-reported she “gets 5 the kids ready for school, takes them to school, does the dishes, cleans the house, 6 does the laundry, and will ‘sometimes’ lie down prior to picking the children up.” 7 Tr. 23 (citing Tr. 158). The ALJ also noted that Plaintiff “reported to Dr. Rose that 8 she cooks and does light housecleaning.” Tr. 23 (citing Tr. 282). The ALJ further 9 observed that Plaintiff “reported to Dr. Everhart that [Plaintiff] does not need help 10 to complete her activities of daily living. She is able to do her own cooking, 11 cleaning, laundry, and take care of her personal hygiene.” Tr. 23 (citing Tr. 295). 12 Based on these reports, the ALJ reasoned “this sampling of the [Plaintiff]’s own 13 reported activities of daily living and abilities suggests the [Plaintiff]’s alleged 14 impairments result in no significant functional limitation that precludes her from 15 engaging in basic work activity.” Tr. 23. “While a claimant need not vegetate in a 16 dark room in order to be eligible for benefits, the ALJ may discredit a claimant’s 17 testimony when the claimant reports participation in everyday activities indicating 18 capacities that are transferable to a work setting” or when activities “contradict 19 claims of a totally debilitating impairment.” Molina, 674 F.3d at 1112-13 (internal 20 ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 12 1 quotation marks and citations omitted). Thus, the ALJ provided yet another 2 permissible reason to discredit Plaintiff’s testimony. 3 In sum, despite Plaintiff’s arguments to the contrary, the ALJ provided 4 several specific, clear, and convincing reasons for rejecting Plaintiff’s testimony. 5 See Ghanim v. Colvin, 763 F.3d 1154, 1163 (9th Cir. 2014). Accordingly, no error 6 has been shown. 7 B. Opinion Evidence 8 Next, Plaintiff faults the ALJ for improperly discounting the opinion of Dr. 9 Arnold. ECF No. 13 at 17-19. Specifically, Plaintiff argues the ALJ provided 10 inadequate reasons, unsupported by substantial evidence, for assigning Dr. 11 Arnold’s opinion little weight. 12 There are three types of physicians: “(1) those who treat the claimant 13 (treating physicians); (2) those who examine but do not treat the claimant 14 (examining physicians); and (3) those who neither examine nor treat the claimant 15 but who review the claimant’s file (nonexamining or reviewing physicians).” 16 Holohan v. Massanari, 246 F.3d 1195, 1201-02 (9th Cir. 2001) (brackets omitted). 17 “Generally, a treating physician’s opinion carries more weight than an examining 18 physician’s, and an examining physician’s opinion carries more weight than a 19 reviewing physician’s.” Id. “In addition, the regulations give more weight to 20 opinions that are explained than to those that are not, and to the opinions of ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 13 1 specialists concerning matters relating to their specialty over that of 2 nonspecialists.” Id. (citations omitted). 3 If a treating or examining physician’s opinion is uncontradicted, an ALJ may 4 reject it only by offering “clear and convincing reasons that are supported by 5 substantial evidence.” Bayliss v. Barnhart, 427 F.3d 1211, 1216 (9th Cir. 2005). 6 “However, the ALJ need not accept the opinion of any physician, including a 7 treating physician, if that opinion is brief, conclusory, and inadequately supported 8 by clinical findings.” Bray v. Comm’r of Soc. Sec. Admin., 554 F.3d 1219, 1228 9 (9th Cir. 2009) (internal quotation marks and brackets omitted). Although the 10 contrary opinion of a non-examining medical expert does not alone constitute a 11 specific, legitimate reason for rejecting a treating or examining physician’s 12 opinion, it may constitute substantial evidence when it is consistent with other 13 independent evidence in the record. Tonapetyan v. Halter, 242 F.3d 1144, 1149 14 (9th Cir. 2001) (citing Magallanes v. Bowen, 881 F.2d 747, 752 (9th Cir. 1989). 15 The Court finds the ALJ properly discounted the opinion of Dr. Arnold. As 16 Plaintiff conceded, the ALJ need only provide “specific and legitimate” reasoning 17 for rejecting Dr. Arnold’s opinion as it was contradicted by other sources. See 18 ECF No. 13 at 18; See also Bayliss, 427 F.3d at 1216. Specifically, the ALJ found 19 an examining psychological evaluator evaluated Plaintiff as having 20 [t]he ability to listen, understand, remember, and follow simple directions. She has the ability to complete multistep tasks. Socially she ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 14 1 2 3 presents as depressed and tearful. She does not present as anxious or angry. Her gait and station appear to be within normal limits. .... She has the ability to interact with the public. She has the ability to participate as a member of a group. She has the ability to interact appropriately with supervisors and coworkers. 4 5 Tr. 20 (Citing Tr. 295). The ALJ further noted a nonexamining state agency 6 psychologist who found Plaintiff “retains the mental capacity to understand, 7 remember, and persist with simple (1-3 step, repetitive) tasks as well as slightly 8 more complex tasks that are well learned in nature” and “[d]iminished tolerance 9 for stress limits interaction with the public to events without sustained 10 11 consequence.” Tr. 24 (citing Tr. 85-86). The ALJ also observed the contradicting opinion of Dr. Vu, who testified as 12 an independent medical expert during the ALJ hearing. Dr. Vu reviewed the 13 medical evidence and concurred with an examining doctor’s opinion that 14 15 16 17 18 [Plaintiff] is capable of stand[ing] and walking 6 hours continuously and 8 hours cumulatively. She can lift and carry 20 pounds occasionally and 10 pounds frequently. She can push and pull 40 pounds occasionally and 20 pounds frequently. Reaching waist to shoulder and reaching above shoulder can be done 1 hour continuously and 4 hours cumulatively bilaterally. She can squat, kneel and balance 30 minutes continuously and 3 hours cumulatively. She can climb 1 hours continuously and 4 hours cumulatively. There is no restriction on gripping, handling, fingering, feeling, pushing and pulling or use of the feet bilaterally. 19 20 Tr. 19 (citing Tr. 237-38); 21, 39-40. Dr. Arnold conducted a psychological ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 15 1 evaluation of Plaintiff on May 2, 2014. Tr. 21. The ALJ observed Dr. Arnold’s 2 May 19, 2014 evaluation that Plaintiff had moderate (up to 1/3 of an 8-hour 3 workday) to marked (up to 2/3 of an 8-hour workday) limitations in understanding 4 and memory, sustained concentration and persistence, social interaction and 5 adaptation. Tr. 21 (citing Tr. 331-33). 6 Upon review of Dr. Arnold’s opinion, the ALJ found: 7 The undersigned assigns little weight in Dr. Arnold’s opinions as this was a one-time examination that was done at the request of the claimant’s attorney and not in an attempt to seek treatment for symptoms. He notes marked limitations in sustained concentration and persistence and in accepting instructions and responding appropriately to criticism yet, in his narrative he does not describe any difficulty in performing testing and notes that her mental status examination is within normal limits. 8 9 10 11 12 Tr. 24 (emphasis added). Here, the ALJ provided another specific and legitimate 13 reason to discount Dr. Arnold’s opinion. The ALJ explains that Dr. Arnold’s 14 opinions are internally inconsistent with his findings. Specifically, the ALJ found 15 Dr. Arnold’s findings of moderate to marked limitations were inconsistent with Dr. 16 Arnold’s assessment of Plaintiff’s mental examination results, which were within 17 normal limitations. See Tommasetti v. Astrue, 533 F.3d 1035, 1041 (9th Cir. 2008) 18 (explaining the incongruity between a physician’s opinions and medical records 19 provides a specific and legitimate reason to discount the physician’s opinion); see 20 also Molina v. Astrue, 674 F.3d 1104, 1111-12 (9th Cir. 2012) (explaining the ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 16 1 Ninth Circuit has consistently permitted ALJs to “reject check-off reports that do 2 not contain any explanation of the bases of [the physician’s] conclusions”) 3 (quotation, citation and modifications omitted). 4 Plaintiff contends the ALJ’s reasons are not supported by substantial 5 evidence. ECF No. 13 at 17. In support, Plaintiff cites to the rules that a non- 6 examining physician’s opinion alone does not constitute substantial evidence, and 7 that the purpose for which medical reports are prepared does not provide a 8 legitimate basis for rejecting them. ECF No. 13 at 18; see Lester v. Chater, 81 9 F.3d 821, 831, 832 (9th Cir. 1995). 10 However, the Court finds there is substantial evidence to support the ALJ’s 11 specific and legitimate reasons. Here, there is one nonexamining doctor, two 12 examining medical providers, one examining psychologist, and medical reports 13 that conflict with Dr. Arnold’s findings of moderate to marked limitations. For 14 instance, the ALJ provided significant weight to Dr. Vu’s review of the medical 15 records, who concurred with examining physician Dr. Lewis’ opinion that Plaintiff 16 is capable of “stand and walking 6 hours continuously and 8 hours cumulatively” 17 and individually opined “the [Plaintiff]’s impairments, either singly or in 18 combination, do not meet any listed impairment.” Tr. 19, 21, 23; see Tonapetyan, 19 242 F.3d at 1149. 20 ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 17 1 In addition, as discussed, Dr. Arnold’s own findings, contained within the 2 medical record, conflict with his opinion. See Tr. 24; see also Roberts v. Shalala, 3 66 F.3d 179, 184 (9th Cir. 1995) (upholding ALJ’s decision to reject examining 4 psychologist’s functional assessment that conflicted with his own written report 5 and tests results which were contained in the record and found to constitute 6 substantial evidence). The Court finds the above referenced evidence constitutes 7 substantial evidence. See Andrews v. Shalala, 53 F.3d 1035, 1042-43 (9th Cir. 8 1995) (where the Court found that the opinions of five nonexamining mental health 9 professionals, medical reports in the record, and Plaintiff’s own testimony 10 11 amounted to substantial evidence). Plaintiff contends the ALJ’s hypothetical question posed to the vocational 12 expert should have described her residual functioning capacity differently, as 13 opined by Dr. Arnold. ECF No. 13 at 18-19. If it had, according to Plaintiff, she 14 would have been deemed incapable of sustaining gainful employment. Id. at 18. 15 The Court finds the hypothetical question posed by the ALJ was legally sufficient, 16 given the ALJ properly rejected Dr. Arnold’s opinion. 17 Having thoroughly reviewed the record, the Court finds the ALJ supported 18 her adverse credibility findings with specific, clear and convincing findings which 19 are supported by substantial evidence; and supported her rejection of Dr. Arnold’s 20 opinion with specific and legitimate reasons supported by substantial evidence. As ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 18 1 such, the ALJ’s hypothetical included the extent of Plaintiff’s impairments 2 supported by the record. Accordingly, the Court finds no error has been shown. 3 ACCORDINGLY, IT IS HEREBY ORDERED: 4 1. Plaintiff’s Motion for Summary Judgment (ECF No. 13) is DENIED. 5 2. Defendant’s Motion for Summary Judgment (ECF No. 16) is 6 7 8 9 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 28, 2016. 10 11 THOMAS O. RICE Chief United States District Judge 12 13 14 15 16 17 18 19 20 ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 19

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