Mullins v. Commissioner of Social Security, No. 2:2017cv00117 - Document 20 (E.D. Wash. 2018)

Court Description: ORDER GRANTING ECF No. 19 DEFENDANT'S MOTION FOR SUMMARY JUDGMENT; denying ECF No. 15 Plaintiff's Motion for Summary Judgment. FILE CLOSED. Signed by Magistrate Judge John T. Rodgers. (TR, Case Administrator)

Download PDF

Mullins v. Commissioner of Social Security Doc. 20 1 UNITED STATES DISTRICT COURT 2 EASTERN DISTRICT OF WASHINGTON FI LED I N THE U.S. DI STRI CT COURT EASTERN DI STRI CT OF WASHI NGTON Mar 20, 2018 3 4 5 6 SEAN F. MCAVOY, CLERK TERRY ALAN MULLINS, No. 2:17-CV-0117-JTR Plaintiff, v. 7 8 9 10 ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT COMMISSIONER OF SOCIAL SECURITY, Defendant. 11 12 BEFORE THE COURT are cross-motions for summary judgment. ECF 13 No. 15, 19. Attorney Jeffrey Schwab represents Terry Alan Mullins (Plaintiff); 14 Special Assistant United States Attorney Daphne Banay represents the 15 Commissioner of Social Security (Defendant). The parties have consented to 16 proceed before a magistrate judge. ECF No. 8. After reviewing the administrative 17 record and briefs filed by the parties, the Court GRANTS Defendant’s Motion for 18 Summary Judgment and DENIES Plaintiff’s Motion for Summary Judgment. 19 JURISDICTION 20 On October 1, 2012, Plaintiff filed applications for disability insurance 21 benefits and supplemental security income benefits, alleging disability since July 22 12, 2009, due to back condition, anxiety, depression, dysuria, hematuria, and joint 23 and muscle pain/weakness. Tr. 207, 209, 243. At the time of the administrative 24 hearing, Plaintiff amended the alleged onset date of disability to October 1, 2012, 25 the application date. Tr. 47. Plaintiff’s applications were denied initially and upon 26 reconsideration. 27 28 Administrative Law Judge (ALJ) Jesse K. Shumway held a hearing on June 26, 2015, Tr. 38-98, and issued an unfavorable decision on July 31, 2015, Tr. 12- ORDER GRANTING DEFENDANT’S MOTION . . . - 1 Dockets.Justia.com 1 28. The Appeals Council denied review on February 6, 2017. Tr. 1-7. The ALJ’s 2 July 2015 decision thus became the final decision of the Commissioner, which is 3 appealable to the district court pursuant to 42 U.S.C. § 405(g). Plaintiff filed this 4 action for judicial review on March 31, 2017. ECF No. 1, 3. STATEMENT OF FACTS 5 The facts of the case are set forth in the administrative hearing transcript, the 6 7 ALJ’s decision, and the briefs of the parties. They are only briefly summarized 8 here. 9 Plaintiff was born on November 11, 1965, and was 46 years old on the 10 amended alleged onset date, October 1, 2012. Tr. 47, 207, 209. He completed 11 high school and one year of college. Tr. 244. Plaintiff’s disability report indicates 12 he stopped working on June 1, 2011, because of his condition(s). Tr. 243. 13 Plaintiff testified at the June 26, 2015, administrative hearing that he applied for 14 work in late 2012 or 2013 at an auto parts store, in waste management, and for a 15 cleaning company, but he had not been successful in securing employment. Tr. 16 76-78. He stated he continued to look for work and believed he would be able to 17 work at an auto parts store. Tr. 78-79, 85. Plaintiff later clarified he felt he could 18 stand at a desk, answer phones, answer questions, and operate a point of sale 19 computer at an auto parts store, but would not be able to physically retrieve and 20 deliver heavy auto parts to customers. Tr. 85-87. 21 Plaintiff testified he suffered back pain “24 hours a day, seven days a week.” 22 Tr. 61. He indicated it is typical he will need to lie down two to three times during 23 the day, with an icepack, for 30 minutes to an hour each time due to his back pain. 24 Tr. 66-67. He stated he also has at least three or four “bad days” per month where 25 it is difficult to even get out of bed and do basic activities. Tr. 62-63. 26 Plaintiff also testified he has diabetes and has had difficulty controlling his 27 diabetes. Tr. 64. As a result, he had neuropathy in his feet and the occurrence of 28 six or seven sebaceous cysts that he has had to have drained. Tr. 65. He stated he ORDER GRANTING DEFENDANT’S MOTION . . . - 2 1 also experienced right arm/shoulder and bilateral knee pain as well as a loss of 2 sensation/feeling in his right hand. Tr. 74-75, 80, 81, 83. There was no mention or 3 discussion of any symptoms related to mental impairments at the time of the 4 administrative hearing. 5 6 STANDARD OF REVIEW The ALJ is responsible for determining credibility, resolving conflicts in 7 medical testimony, and resolving ambiguities. Andrews v. Shalala, 53 F.3d 1035, 8 1039 (9th Cir. 1995). The ALJ’s determinations of law are reviewed de novo, with 9 deference to a reasonable interpretation of the applicable statutes. McNatt v. Apfel, 10 201 F.3d 1084, 1087 (9th Cir. 2000). The decision of the ALJ may be reversed 11 only if it is not supported by substantial evidence or if it is based on legal error. 12 Tackett v. Apfel, 180 F.3d 1094, 1097 (9th Cir. 1999). Substantial evidence is 13 defined as being more than a mere scintilla, but less than a preponderance. Id. at 14 1098. Put another way, substantial evidence is such relevant evidence as a 15 reasonable mind might accept as adequate to support a conclusion. Richardson v. 16 Perales, 402 U.S. 389, 401 (1971). If the evidence is susceptible to more than one 17 rational interpretation, the Court may not substitute its judgment for that of the 18 ALJ. Tackett, 180 F.3d at 1097; Morgan v. Commissioner of Social Sec. Admin., 19 169 F.3d 595, 599 (9th Cir. 1999). If substantial evidence supports the 20 administrative findings, or if conflicting evidence supports a finding of either 21 disability or non-disability, the ALJ’s determination is conclusive. Sprague v. 22 Bowen, 812 F.2d 1226, 1229-1230 (9th Cir. 1987). Nevertheless, a decision 23 supported by substantial evidence will be set aside if the proper legal standards 24 were not applied in weighing the evidence and making the decision. Brawner v. 25 Secretary of Health and Human Services, 839 F.2d 432, 433 (9th Cir. 1988). 26 SEQUENTIAL EVALUATION PROCESS 27 The Commissioner has established a five-step sequential evaluation process 28 for determining whether a person is disabled. 20 C.F.R. § 416.920(a); see Bowen ORDER GRANTING DEFENDANT’S MOTION . . . - 3 1 v. Yuckert, 482 U.S. 137, 140-142 (1987). In steps one through four, the burden of 2 proof rests upon the claimant to establish a prima facie case of entitlement to 3 disability benefits. Tackett, 180 F.3d at 1098-1099. This burden is met once a 4 claimant establishes that physical or mental impairments prevent him from 5 engaging in his previous occupation. 20 C.F.R. § 416.920(a)(4). If a claimant 6 cannot do his past relevant work, the ALJ proceeds to step five, and the burden 7 shifts to the Commissioner to show that the claimant can perform other jobs 8 present in significant numbers in the national economy. Batson v. Commissioner 9 of Social Sec. Admin., 359 F.3d 1190, 1193-1194 (2004). If a claimant cannot 10 make an adjustment to other work in the national economy, a finding of “disabled” 11 is made. 20 C.F.R. § 416.920(a)(4)(v). 12 13 14 15 ADMINISTRATIVE DECISION On July 31, 2015, the ALJ issued a decision finding Plaintiff was not disabled as defined in the Social Security Act. At step one, the ALJ found Plaintiff had not engaged in substantial gainful 16 activity since the amended alleged onset date, October 1, 2012. Tr. 14. At step 17 two, the ALJ determined Plaintiff had the following severe impairments: 18 degenerative disc disease, obesity, bilateral knee degeneration, right shoulder 19 impairment, and right hand numbness. Tr. 15. At step three, the ALJ found 20 Plaintiff did not have an impairment or combination of impairments that meets or 21 medically equals the severity of one of the listed impairments. Tr. 19. 22 The ALJ assessed Plaintiff’s Residual Functional Capacity (RFC) and 23 determined he could perform light exertion level work with the following 24 limitations: he is able to stand and walk only four hours in an eight-hour workday; 25 he cannot use his right hand when walking because of his use of a cane; he is able 26 to sit only one hour at a time, followed by a minute or two of standing and 27 stretching; he can only occasionally reach overhead on the right and frequently 28 handle and finger with the right hand; he cannot climb ladders, ropes or scaffolds ORDER GRANTING DEFENDANT’S MOTION . . . - 4 1 and only occasionally perform other postural activities; he cannot have 2 concentrated exposure to extreme cold or heat or vibration and can have no 3 exposure to hazards such as unprotected heights and moving mechanical parts; and 4 he cannot operate a motor vehicle. Tr. 20. 5 At step four, the ALJ determined Plaintiff could not perform his past 6 relevant work as an automobile mechanic. Tr. 27. However, at step five, the ALJ 7 determined that based on the testimony of the vocational expert, and considering 8 Plaintiff’s age, education, work experience and RFC, Plaintiff could perform other 9 jobs present in significant numbers in the national economy, including the jobs of 10 mail sorter, production assembler and inspector, hand packager. Tr. 27-28. The 11 ALJ thus concluded Plaintiff was not under a disability within the meaning of the 12 Social Security Act at any time from October 1, 2012, the amended alleged onset 13 date, through the date of the ALJ’s decision, July 31, 2015. Tr. 28. ISSUES 14 The question presented is whether substantial evidence supports the ALJ’s 15 16 decision denying benefits and, if so, whether that decision is based on proper legal 17 standards. Plaintiff contends the ALJ erred in this case by (1) failing to find Plaintiff’s 18 19 diabetes and related skin conditions and mental health problems were severe 20 impairments at step two of the sequential evaluation process; (2) improperly 21 rejecting the medical opinion of Brent Packer, M.D.; (3) improperly rejecting 22 Plaintiff’s subjective complaints; and (4) relying on vocational expert testimony 23 that was based on an incomplete hypothetical. ECF No. 15 at 10-19. DISCUSSION 24 25 A. Brent Packer, M.D. Plaintiff asserts the ALJ erred by failing to accord proper weight to the 26 27 opinions of Dr. Packer. ECF No. 15 at 12-13. 28 /// ORDER GRANTING DEFENDANT’S MOTION . . . - 5 1 In a disability proceeding, the courts distinguish among the opinions of three 2 types of acceptable medical sources: treating physicians, physicians who examine 3 but do not treat the claimant (examining physicians) and those who neither 4 examine nor treat the claimant (nonexamining physicians). Lester v. Chater, 81 5 F.3d 821, 830 (9th Cir. 1996). A treating physician’s opinion carries more weight 6 than an examining physician’s opinion, and an examining physician’s opinion is 7 given more weight than that of a nonexamining physician. Benecke v. Barnhart, 8 379 F.3d 587, 592 (9th Cir. 2004); Lester, 81 F.3d at 830. In weighing the medical 9 opinion evidence of record, the ALJ must make findings setting forth specific, 10 legitimate reasons for doing so that are based on substantial evidence in the record. 11 Magallanes v. Bowen, 881 F.2d 747, 751 (9th Cir. 1989). Moreover, the ALJ is 12 required to set forth the reasoning behind his or her decisions in a way that allows 13 for meaningful review. Brown-Hunter v. Colvin, 806 F.3d 487, 492 (9th Cir. 2015) 14 (finding a clear statement of the agency’s reasoning is necessary because the Court 15 can affirm the ALJ’s decision to deny benefits only on the grounds invoked by the 16 ALJ). “Although the ALJ’s analysis need not be extensive, the ALJ must provide 17 some reasoning in order for us to meaningfully determine whether the ALJ’s 18 conclusions were supported by substantial evidence.” Treichler v. Comm’r of Soc. 19 Sec. Admin., 775 F.3d 1090, 1103 (9th Cir. 2014). 20 On January 13, 2013, Dr. Packer assessed Plaintiff’s functional abilities as 21 part of a review of the medical evidence for the Washington State Department of 22 Social and Health Services. Tr. 368-374. Dr. Packer was thus a reviewing, 23 nonexamining physician in this case. The ALJ accorded little weight to Dr. 24 Packer’s opinions regarding Plaintiff’s physical capacity. Tr. 22-23. 25 Dr. Packer opined that Plaintiff would be limited to “less than sedentary 26 overall activity,” Tr. 368, and noted it was reasonable to conclude that Plaintiff’s 27 combination of impairments would preclude a 40 hour sustained workweek, Tr. 28 369. However, Dr. Packer also found that Plaintiff had the ability to lift 20 pounds ORDER GRANTING DEFENDANT’S MOTION . . . - 6 1 maximum and frequently lift or carry up to 10 pounds, with no medical evidence 2 available to address Plaintiff’s ability to stand, walk or sit for periods of time. Tr. 3 372. When provided a check-box selection which included categories for “light” 4 and “less than sedentary,” Dr. Packer indicated Plaintiff was limited to “sedentary” 5 work. Tr. 372. 6 In according “little weight” to Dr. Packer’s opinions of Plaintiff’s physical 7 capacity, the ALJ first noted that Dr. Packer’s January 13, 2013 opinion was issued 8 only a few months before Plaintiff’s back surgery, when Plaintiff’s pain was at or 9 near its worst. Tr. 22. The record reflects that two months later, on March 12, 10 2013, Plaintiff underwent a left L5-S1 revision discectomy, Tr. 454, and, on April 11 5, 2013, reported “feeling significantly better,” Tr. 491. On April 18, 2013, 12 Plaintiff reported his back was doing well and he no longer had sciatica pain. Tr. 13 571. Several months later, on December 2, 2013, back pain was not mentioned in 14 a follow up appointment, nor was a back impairment diagnosed by the medical 15 provider. Tr. 625-627. 16 The ALJ next indicated Dr. Packer’s opinion was internally inconsistent. 17 Dr. Packer limited Plaintiff to sedentary exertion level work, Tr. 372, which limits 18 lifting to no more than 10 pounds at a time, 20 C.F.R. §§ 404.1567(b), 416.967(b). 19 This is an inconsistency because Dr. Packer also found Plaintiff capable of lifting 20 20 pounds at a time, Tr. 372, which characterizes the more strenuous “light” 21 exertion level work.1 Tr. 22-23. The ALJ correctly found Dr. Packer’s report was 22 internally inconsistent. 23 24 1 Light level work involves lifting no more than 20 pounds at a time with 25 frequent lifting or carrying of objects weighing up to 10 pounds. A job in the light 26 exertion level category requires a good deal of walking or standing or involves 27 sitting most of the time with some pushing and pulling of arm or leg controls. 20 28 C.F.R. §§ 404.1567(b), 416.967(b). ORDER GRANTING DEFENDANT’S MOTION . . . - 7 With regard to the weight of the evidence of record pertaining to Plaintiff’s 1 2 physical capacity, Lynne Jahnke, M.D., testified as a medical expert at the June 26, 3 2015 administrative hearing and was accorded “great weight” by the ALJ. Tr. 26, 4 45-59. Plaintiff has not contested the weight accorded to Dr. Jahnke. See 5 Carmickle v. Comm’r, Soc. Sec. Admin., 533 F.3d 1155, 1161 (9th Cir. 2008) (the 6 Court will not ordinarily consider matters on appeal that were not specifically and 7 distinctly argued in a party’s opening brief). Dr. Jahnke indicated Plaintiff had degenerative disc disease in the 8 9 lumbosacral spine, but he had done well following two back surgeries. Tr. 48. She 10 found that the assessed limitation to the light exertional level was consistent with 11 Plaintiff’s episodic, rather than chronic, back pain.2 Tr. 48. Dr. Jahnke opined that 12 Plaintiff did not meet or equal Listing 1.04 (disorders of the spine) because he did 13 not have continuous nerve root compression for twelve consecutive months; rather, 14 it was episodic. Tr. 49. Dr. Jahnke testified that Plaintiff would be limited to light 15 exertion level work: lifting up to 20 pounds occasionally and 10 pounds 16 frequently; no limitations on sitting, but a sit/stand option (every hour he would be 17 allowed to stand up and stretch his low back for a minute or so); no limitation on 18 standing and walking; and some postural and environmental limitations. Tr. 54-55. 19 Christine E. Bosa, ARNP, examined Plaintiff in October 2012, Tr. 402, and 20 completed a DSHS physical functional evaluation form in October 2012 which, 21 consistent with Dr. Jahnke, opined that Plaintiff was limited to light exertion level 22 work, Tr. 355. State agency medical consultant, Dale Thuline, M.D., also opined 23 that Plaintiff was limited to light exertional level work, but with the ability to stand 24 /// 25 26 2 It was noted that Plaintiff was doing well after his second back surgery, 27 reporting no sciatica, and that his recurrence of back pain occurred when he was 28 trimming hedges with a chainsaw. Tr. 48, 703. ORDER GRANTING DEFENDANT’S MOTION . . . - 8 1 and walk for only four hours and sit only six hours in an eight-hour workday. Tr. 2 26, 127, 137. 3 The record reflects that no medical professional, other than nonexamining 4 physician Packer, has assessed greater physical limitations than determined by the 5 ALJ in this case. The restriction to sedentary or less than sedentary work as opined 6 by Dr. Packer just prior to Plaintiff’s second back surgery is not supported by the 7 weight of the record evidence. 8 The Court finds that the ALJ provided specific and legitimate reasons, 9 supported by substantial record evidence, for discounting Dr. Packer’s report. The 10 ALJ did not err by rejecting Dr. Packer’s opinions pertaining to Plaintiff’s physical 11 functioning. 12 B. 13 14 15 Plaintiff’s Symptom Testimony Plaintiff also challenges the ALJ’s finding that Plaintiff was not entirely credible, Tr. 25. ECF No. 15 at 13-17. It is the province of the ALJ to make credibility determinations. Andrews, 16 53 F.3d at 1039. However, the ALJ’s findings must be supported by specific 17 cogent reasons. Rashad v. Sullivan, 903 F.2d 1229, 1231 (9th Cir. 1990). Absent 18 affirmative evidence of malingering, the ALJ’s reasons for rejecting the claimant’s 19 testimony must be “specific, clear and convincing.” Smolen, 80 F.3d at 1281; 20 Lester v. Chater, 81 F.3d 821, 834 (9th Cir. 1995). “General findings are 21 insufficient: rather the ALJ must identify what testimony is not credible and what 22 evidence undermines the claimant’s complaints.” Lester, 81 F.3d at 834; Dodrill v. 23 Shalala, 12 F.3d 915, 918 (9th Cir. 1993). 24 In this case, the ALJ found Plaintiff’s medically determinable impairments 25 could reasonably be expected to cause the alleged symptoms; however, although 26 Plaintiff was generally a sincere and believable witness, Plaintiff’s statements 27 concerning the intensity, persistence and limiting effects of these symptoms were 28 not entirely credible. Tr. 25. ORDER GRANTING DEFENDANT’S MOTION . . . - 9 1 The ALJ first indicated the medical evidence of record did not support 2 Plaintiff’s alleged three to four “bad days” a month, which he described as causing 3 a difficulty to even get out of bed and do basic activities, Tr. 62-63. Tr. 25. 4 A lack of supporting objective medical evidence is a factor which may be 5 considered in evaluating an individual’s credibility, provided that it is not the sole 6 factor. Bunnell v. Sullivan, 347 F.2d 341, 345 (9th Cir. 1991) (Once a claimant 7 produces objective medical evidence of an underlying impairment, an adjudicator 8 may not reject the claimant’s subjective complaints based solely on a lack of 9 objective medical evidence to fully corroborate the alleged severity of pain.); see 10 also Robbins v. Soc. Sec. Admin., 466 F3d 880, 883 (9th Cir. 2006) (An ALJ may 11 not make a negative credibility finding “solely because” the claimant’s symptom 12 testimony “is not substantiated affirmatively by objective medical evidence.”). 13 The Court has reviewed the medical record, and specifically the citations 14 identified in Plaintiff’s brief, ECF No. 15 at 14, and finds no support for Plaintiff’s 15 assertion that he experienced multiple days during a month where he found it 16 difficult to even get out of bed. The majority of the records cited by Plaintiff 17 discuss Plaintiff’s uncontrolled diabetes and related scalp cysts and 18 sores/abscesses. Included in the records cited by Plaintiff for his assertion that he 19 was “in severe pain and was trying everything he could to get rid of his pain,” ECF 20 No. 15 at 14, is a report which indicated Plaintiff “has been feeling pretty well,” 21 Tr. 587, and another report, the only one cited that specifically discussed Plaintiff’s 22 back pain complaints, that stated Plaintiff’s symptoms were relieved by pain 23 medications, Tr. 700. As indicated by the ALJ, the medical evidence of record 24 does not support Plaintiff’s allegation of suffering three to four “bad days” a 25 month, which resulted in difficulty to get out of bed and do basic activities. 26 The ALJ next noted Plaintiff has consistently been limited to light exertion 27 level work. Tr. 25. In assessing a Plaintiff’s subjective pain and symptom 28 testimony, an ALJ may consider whether the alleged symptoms are consistent with ORDER GRANTING DEFENDANT’S MOTION . . . - 10 1 the medical evidence. Lingenfelter, 504 F.3d at 1040. Here, as discussed in 2 Section A above, other than the properly rejected opinion of Dr. Packer, the 3 entirety of the medical evidence of record reflects that Plaintiff is limited to no 4 greater than a restricted range of light exertion level work. See supra. 5 Plaintiff contends that the limitation to light work does not account for the 6 electromyogram (EMG) study completed on June 12, 2015, Tr. 711, because it was 7 not considered by the medical expert. ECF No. 15 at 15. However, the ALJ did 8 take the EMG study into consideration, Tr. 25, and Plaintiff does not identify any 9 specific limitations based on the EMG results that the ALJ erroneously omitted or 10 failed to account for in the RFC determination. See Valentine v. Comm’r of Social 11 Sec. Admin., 574 F.3d 685, 692 n.2 (9th Cir. 2009) (“Valentine does not detail 12 what other physical limitations follow from the evidence of his knee and should[er] 13 injuries, besides the limitations already listed in the RFC. We reject any invitation 14 to find that the ALJ failed to account for Valentine’s injuries in some unspecified 15 way.”). 16 The ALJ next indicated Plaintiff’s reported activities such as fishing and 17 working on cars were inconsistent with his assertions of totally disabling 18 symptoms. Tr. 25. It is well-established that the nature of daily activities may be 19 considered when evaluating credibility. Fair v. Bowen, 885 F.2d 597, 603 (9th Cir. 20 1989). While one does not need to be “utterly incapacitated” to be disabled, id., it 21 was entirely proper for the ALJ to find Plaintiff’s reports of activities such as 22 working under and on a car, Tr. 548, 617, and fishing, Tr. 362, 651, were 23 inconsistent with Plaintiff’s alleged limitations and thus detracted from his overall 24 credibility. Tr. 24, 25. 25 Finally, the ALJ held that Plaintiff’s statements that he believed he was 26 capable of performing some work, Tr. 78-79, 361, diminished his credibility. See 27 Bruton v. Massanari, 268 F.3d 824, 828 (9th Cir. 2001), as amended (Nov. 9, 28 2001) (finding that an ALJ properly discredited a claimant’s testimony because he ORDER GRANTING DEFENDANT’S MOTION . . . - 11 1 “stated at the administrative hearing and to at least one of his doctors that he left 2 his job because he was laid off, rather than because he was injured”); Berry v. 3 Astrue, 622 F.3d 1228, 1235 (9th Cir. 2010) (ALJ properly considered fact that 4 claimant “claimed disability dating from his last day of employment even though 5 he admitted at the hearing that he left his job because his employer went out of 6 business and probably would have worked longer had his employer continued to 7 operate.”). An ALJ may, in general, discount a claimant’s testimony where it is 8 internally inconsistent or inconsistent with his other statements. Thomas v. 9 Barnhart, 278 F.3d 947, 958-959 (9th Cir. 2002). 10 Plaintiff testified at the administrative hearing that he continued to look for 11 work and believed he would be able to work at an auto parts store. Tr. 78-79, 85. 12 Plaintiff thereafter clarified he felt he could stand at a desk, answer phones, answer 13 questions, and operate a point of sale computer at an auto parts store, but would not 14 be able to physically retrieve and deliver heavy auto parts to customers. Tr. 85-87. 15 At a January 3, 2013 psychological evaluation, Plaintiff indicated he continued to 16 fill out job applications and search for jobs. Tr. 361. He mentioned the possibility 17 of performing work like a cashier’s job, front counter work, or as a customer 18 service agent at a Staples or Home Depot. Tr. 361. Plaintiff’s continued job 19 search and reported belief that he possessed the ability to perform some work is 20 inconsistent with his assertion of total disability. 21 The ALJ is responsible for reviewing the evidence and resolving conflicts or 22 ambiguities in testimony. Magallanes v. Bowen, 881 F.2d 747, 751 (9th Cir. 23 1989). It is the role of the trier of fact, not this Court, to resolve conflicts in 24 evidence. Richardson v. Perales, 402 U.S. 389, 400 (1971). The Court has a 25 limited role in determining whether the ALJ’s decision is supported by substantial 26 evidence and may not substitute its own judgment for that of the ALJ even if it 27 might justifiably have reached a different result upon de novo review. 42 U.S.C. § 28 405(g). After reviewing the record, the Court finds that the ALJ provided clear ORDER GRANTING DEFENDANT’S MOTION . . . - 12 1 and convincing reasons, which are fully supported by the record, for discounting 2 Plaintiff’s subjective complaints. Accordingly, the ALJ did not err by finding 3 Plaintiff’s symptom allegations were not entirely credible in this case. 4 C. 5 Severe Impairment Plaintiff contends the ALJ also erred by failing to find Plaintiff’s diabetes 6 and related skin conditions and mental impairment were severe impairments at step 7 two of the sequential evaluation process. ECF No. 15 at 10-12. 8 Plaintiff has the burden of proving he has a severe impairment. 20 C.F.R. §§ 9 423(d)(1)(A), 416.912. In order to meet this burden, Plaintiff must furnish medical 10 and other evidence that shows he is disabled. 20 C.F.R. § 416.912(a). The 11 regulations, 20 C.F.R. §§ 404.1520(c), 416.920(c), provide that an impairment is 12 severe if it significantly limits one’s ability to perform basic work activities. An 13 impairment is considered non-severe if it “does not significantly limit your 14 physical or mental ability to do basic work activities.” 20 C.F.R. §§ 404.1521, 15 416.921. In the absence of objective evidence to verify the existence of an 16 impairment, the ALJ must reject the alleged impairment at step two of the 17 sequential evaluation process. S.S.R. 96-4p. 18 The record reflects that Plaintiff has been treated on numerous occasions for 19 uncontrolled diabetes and related skin conditions (cysts and abscesses). However, 20 the mere existence of an impairment is insufficient proof of a severe impairment. 21 See Matthews v. Shalala, 10 F.3d 678, 680 (9th Cir. 1993). Here, Plaintiff has not 22 identified any specific limitations assessed by providers resulting from the 23 uncontrolled diabetes and related skin conditions, see Edlund v. Massanari, 253 24 F.3d 1152, 1159-1160 (9th Cir. 2001) (a claimant must prove an impairment 25 affects his ability to perform basic work activities), nor has he demonstrated that 26 the impairments meet the durational requirements of the Social Security Act, 42 27 U.S.C. §§ 423(d)(1)(A), 1382c(a)(3)(A) (an individual shall be considered disabled 28 if he has an impairment which can be expected to result in death or which has ORDER GRANTING DEFENDANT’S MOTION . . . - 13 1 lasted or can be expected to last for a continuous period of not less than 12 2 months). The medical evidence of record does not establish any specific work- 3 related limitations, lasting for a continuous period of not less than 12 months, 4 resulting from Plaintiff’s uncontrolled diabetes and related skin conditions. Tr. 16. 5 Therefore, the ALJ correctly found Plaintiff’s diabetes and related skin conditions 6 were not severe impairments. 7 With respect to Plaintiff’s mental health, Plaintiff claimed anxiety and 8 depression as conditions that limited his ability to work on his disability form. Tr. 9 243. However, at the administrative hearing, Plaintiff did not mention depression 10 or anxiety and did not discuss any symptoms related to any alleged mental 11 impairments. Tr. 59-89. Moreover, Plaintiff’s briefing fails to specify any 12 functional limitations stemming from any alleged mental health issue. See 13 Lockwood v. Comm’r of Soc. Sec. Admin., 616 F.3d 1068, 1071 (9th Cir. 2010). 14 Regarding the medical evidence of record, state agency psychological 15 consultants John F. Robinson, Ph.D., and Diane Fligstein, Ph.D., found Plaintiff’s 16 mental impairments to be non-severe. Tr. 104-105, 113-114, 125-126, 135-137. 17 Plaintiff was diagnosed by Ms. Bosa with bipolar affective disorder on May 21, 18 2014, Tr. 653; however, as correctly determined by the ALJ, Ms. Bosa, a nurse, is 19 not an “acceptable medical source” which is required to establish the existence of a 20 medically determinable impairment. Tr. 17. In any event, Ms. Bosa did not 21 attribute any functional limitations to the diagnosed disorder that would affect 22 Plaintiff’s ability to perform basic work activities. Plaintiff additionally underwent 23 a psychological evaluation with Steven J. Zimberoff, Ph.D., on January 3, 2013, 24 and was diagnosed with adjustment disorder, chronic, with mildly depressed mood. 25 Tr. 363. Dr. Zimberoff stated that while Plaintiff presented with mild depression, 26 he was able to function well cognitively. Tr. 363. He reported that Plaintiff 27 appeared to have no significant difficulties focusing on task, was very pleasant and 28 cooperative, and was able to communicate well. Tr. 364. Dr. Zimberoff opined ORDER GRANTING DEFENDANT’S MOTION . . . - 14 1 that Plaintiff was “easily able to understand, remember and follow one, two, or 2 more step instructions” and appeared to have no significant difficulties interacting 3 with the public, co-workers and supervisors. Tr. 364. Dr. Zimberoff did not assess 4 any functional limitations stemming from the diagnosed adjustment disorder. Based on the foregoing, the weight of the evidence of record shows that 5 6 Plaintiff’s mental impairment (affective disorder) did not significantly limit his 7 ability to perform basic mental work activities. Accordingly, the Court finds the 8 ALJ also correctly determined at step two of the sequential evaluation process that 9 Plaintiff’s mental health condition was not a severe impairment. Tr. 17-19. 10 D. Step Five 11 Plaintiff contends that the ALJ erred by relying on the vocational expert’s 12 testimony in response to a hypothetical that was not supported by the weight of the 13 record evidence. ECF No. 15 at 17-19. As determined above, the ALJ did not err by rejecting Dr. Packer’s opinions 14 15 pertaining to Plaintiff’s physical functioning, by finding Plaintiff’s symptom 16 allegations were not entirely credible, and by concluding at step two that Plaintiff’s 17 diabetes and related skin conditions and affective disorder were not severe 18 impairments. As such, the ALJ’s ultimate RFC determination is supported by 19 substantial evidence and free of error. The ALJ’s RFC determination held that Plaintiff could perform light 20 21 exertion level work with certain postural and environmental limitations. Tr. 20. 22 At the administrative hearing held on June 26, 2015, the vocational expert testified 23 that with the restrictions assessed by the ALJ, Plaintiff retained the capacity to 24 perform a significant number of jobs existing in the national economy, including 25 the positions of mail sorter, production assembler and inspector, hand packager. 26 Tr. 92-94. Since the vocational expert’s testimony was based on a proper RFC 27 determination by the ALJ, Plaintiff’s step five argument is without merit. 28 /// ORDER GRANTING DEFENDANT’S MOTION . . . - 15 1 CONCLUSION 2 Having reviewed the record and the ALJ’s findings, the Court finds the 3 ALJ’s decision is supported by substantial evidence and free of legal error. 4 Accordingly, IT IS ORDERED: 5 6 1. Defendant’s Motion for Summary Judgment, ECF No. 19, is GRANTED. Plaintiff’s Motion for Summary Judgment, ECF No. 15, is DENIED. 7 2. 8 The District Court Executive is directed to file this Order and provide a copy 9 10 11 to counsel for Plaintiff and Defendant. Judgment shall be entered for Defendant and the file shall be CLOSED. DATED March 20, 2018. 12 13 14 _____________________________________ JOHN T. RODGERS UNITED STATES MAGISTRATE JUDGE 15 16 17 18 19 20 21 22 23 24 25 26 27 28 ORDER GRANTING DEFENDANT’S MOTION . . . - 16

Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.

This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.