Merritt v. Commissioner of Social Security, No. 2:2017cv00290 - Document 19 (E.D. Wash. 2018)
Court Description: ORDER DENYING PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT (ECF No. 14 ) AND GRANTING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT (ECF No. 18 ). FILE CLOSED. Signed by Magistrate Judge Mary K. Dimke. (PH, Case Administrator)
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Merritt v. Commissioner of Social Security Doc. 19 1 FI LED I N THE U.S. DI STRI CT COURT EASTERN DI STRI CT OF WASHI NGTON 2 Aug 20, 2018 SEAN F. MCAVOY, CLERK 3 4 5 UNITED STATES DISTRICT COURT 6 EASTERN DISTRICT OF WASHINGTON 7 MATTHEW M., 8 No. 2:17-CV-00290-MKD Plaintiff, 9 vs. 10 COMMISSIONER OF SOCIAL SECURITY, 11 Defendant. ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ECF Nos. 14, 18 12 BEFORE THE COURT are the parties’ cross-motions for summary 13 14 judgment. ECF Nos. 14, 18. The parties consented to proceed before a magistrate 15 judge. ECF No. 6. The Court, having reviewed the administrative record and the 16 parties’ briefing, is fully informed. For the reasons discussed below, the Court 17 denies Plaintiff’s motion (ECF No. 14) and grants Defendant’s motion (ECF No. 18 18). 19 20 21 ORDER - 1 Dockets.Justia.com 1 2 JURISDICTION The Court has jurisdiction over this case pursuant to 42 U.S.C. § 1383(c)(3). 3 4 STANDARD OF REVIEW A district court’s review of a final decision of the Commissioner of Social 5 Security is governed by 42 U.S.C. § 405(g). The scope of review under § 405(g) is 6 limited; the Commissioner’s decision will be disturbed “only if it is not supported 7 by substantial evidence or is based on legal error.” Hill v. Astrue, 698 F.3d 1153, 8 1158 (9th Cir. 2012). “Substantial evidence” means “relevant evidence that a 9 reasonable mind might accept as adequate to support a conclusion.” Id. at 1159 10 (quotation and citation omitted). Stated differently, substantial evidence equates to 11 “more than a mere scintilla[,] but less than a preponderance.” Id. (quotation and 12 citation omitted). In determining whether the standard has been satisfied, a 13 reviewing court must consider the entire record as a whole rather than searching 14 for supporting evidence in isolation. Id. 15 In reviewing a denial of benefits, a district court may not substitute its 16 judgment for that of the Commissioner. Edlund v. Massanari, 253 F.3d 1152, 17 1156 (9th Cir. 2001). If the evidence in the record “is susceptible to more than one 18 rational interpretation, [the court] must uphold the ALJ’s findings if they are 19 supported by inferences reasonably drawn from the record.” Molina v. Astrue, 674 20 F.3d 1104, 1111 (9th Cir. 2012). Further, a district court “may not reverse an 21 ORDER - 2 1 ALJ’s decision on account of an error that is harmless.” Id. An error is harmless 2 “where it is inconsequential to the [ALJ’s] ultimate nondisability determination.” 3 Id. at 1115 (quotation and citation omitted). The party appealing the ALJ’s 4 decision generally bears the burden of establishing that it was harmed. Shinseki v. 5 Sanders, 556 U.S. 396, 409-10 (2009). 6 7 FIVE-STEP EVALUATION PROCESS A claimant must satisfy two conditions to be considered “disabled” within 8 the meaning of the Social Security Act. First, the claimant must be “unable to 9 engage in any substantial gainful activity by reason of any medically determinable 10 physical or mental impairment which can be expected to result in death or which 11 has lasted or can be expected to last for a continuous period of not less than twelve 12 months.” 42 U.S.C. § 1382c(a)(3)(A). Second, the claimant’s impairment must be 13 “of such severity that he is not only unable to do his previous work[,] but cannot, 14 considering his age, education, and work experience, engage in any other kind of 15 substantial gainful work which exists in the national economy.” 42 U.S.C. § 16 1382c(a)(3)(B). 17 The Commissioner has established a five-step sequential analysis to 18 determine whether a claimant satisfies the above criteria. See 20 C.F.R. § 19 416.920(a)(4)(i)-(v). At step one, the Commissioner considers the claimant’s work 20 activity. 20 C.F.R. § 416.920(a)(4)(i). If the claimant is engaged in “substantial 21 ORDER - 3 1 gainful activity,” the Commissioner must find that the claimant is not disabled. 20 2 C.F.R. § 416.920(b). 3 If the claimant is not engaged in substantial gainful activity, the analysis 4 proceeds to step two. At this step, the Commissioner considers the severity of the 5 claimant’s impairment. 20 C.F.R. § 416.920(a)(4)(ii). If the claimant suffers from 6 “any impairment or combination of impairments which significantly limits [his or 7 her] physical or mental ability to do basic work activities,” the analysis proceeds to 8 step three. 20 C.F.R. § 416.920(c). If the claimant’s impairment does not satisfy 9 this severity threshold, however, the Commissioner must find that the claimant is 10 not disabled. 20 C.F.R. § 416.920(c). 11 At step three, the Commissioner compares the claimant’s impairment to 12 severe impairments recognized by the Commissioner to be so severe as to preclude 13 a person from engaging in substantial gainful activity. 20 C.F.R. § 14 416.920(a)(4)(iii). If the impairment is as severe or more severe than one of the 15 enumerated impairments, the Commissioner must find the claimant disabled and 16 award benefits. 20 C.F.R. § 416.920(d). 17 If the severity of the claimant’s impairment does not meet or exceed the 18 severity of the enumerated impairments, the Commissioner must pause to assess 19 the claimant’s “residual functional capacity.” Residual functional capacity (RFC), 20 defined generally as the claimant’s ability to perform physical and mental work 21 ORDER - 4 1 activities on a sustained basis despite his or her limitations, 20 C.F.R. § 2 416.945(a)(1), is relevant to both the fourth and fifth steps of the analysis. 3 At step four, the Commissioner considers whether, in view of the claimant’s 4 RFC, the claimant is capable of performing work that he or she has performed in 5 the past (past relevant work). 20 C.F.R. § 416.920(a)(4)(iv). If the claimant is 6 capable of performing past relevant work, the Commissioner must find that the 7 claimant is not disabled. 20 C.F.R. § 416.920(f). If the claimant is incapable of 8 performing such work, the analysis proceeds to step five. 9 At step five, the Commissioner considers whether, in view of the claimant’s 10 RFC, the claimant is capable of performing other work in the national economy. 11 20 C.F.R. § 416.920(a)(4)(v). In making this determination, the Commissioner 12 must also consider vocational factors such as the claimant’s age, education and 13 past work experience. 20 C.F.R. § 416.920(a)(4)(v). If the claimant is capable of 14 adjusting to other work, the Commissioner must find that the claimant is not 15 disabled. 20 C.F.R. § 416.920(g)(1). If the claimant is not capable of adjusting to 16 other work, analysis concludes with a finding that the claimant is disabled and is 17 therefore entitled to benefits. 20 C.F.R. § 416.920(g)(1). 18 The claimant bears the burden of proof at steps one through four above. 19 Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999). If the analysis proceeds to 20 step five, the burden shifts to the Commissioner to establish that (1) the claimant is 21 ORDER - 5 1 capable of performing other work; and (2) such work “exists in significant 2 numbers in the national economy.” 20 C.F.R. § 416.960(c)(2); Beltran v. Astrue, 3 700 F.3d 386, 389 (9th Cir. 2012). ALJ’S FINDINGS 4 5 Plaintiff protectively filed an application for Title XVI supplemental security 6 income benefits on July 28, 2014, alleging an amended disability onset date of the 7 same date. Tr. 217-22, 45. The application was denied initially, Tr. 94-108, 1248 27, and on reconsideration, Tr. 109-23, 134-44. Plaintiff appeared at a hearing 9 before an administrative law judge (ALJ) on August 9, 2016. Tr. 40-93. On 10 September 16, 2016, the ALJ denied Plaintiff’s claim. Tr. 19-39. 11 At step one of the sequential evaluation analysis, the ALJ found Plaintiff has 12 not engaged in substantial gainful activity since July 28, 2014. Tr. 24. At step 13 two, the ALJ found Plaintiff has the following severe impairments: cervical and 14 lumbar degenerative disk disease, asthma, major depressive disorder, and attention 15 deficit hyperactivity disorder. Tr. 24. At step three, the ALJ found Plaintiff does 16 not have an impairment or combination of impairments that meets or medically 17 equals the severity of a listed impairment. Tr. 25. The ALJ then concluded that 18 Plaintiff has the RFC to perform medium work as defined in 20 C.F.R. § 19 416.967(c) with the following limitations: 20 21 [H]e can frequently climb ladders, ropes and scaffolds, and stoop and crouch; he can have only occasional exposure to pulmonary irritants; he is limited to ORDER - 6 1 2 3 simple, repetitive, routine tasks with a reasoning level 2 or less; he needs a routine predictable work environment that requires no more than simple decision-making; he can have only occasional, superficial contact with the public and coworkers; he cannot work at a production-rate pace; and he is likely to miss work one day every 6-8 weeks on average. 4 Tr. 27. 5 At step four, the ALJ found Plaintiff cannot perform his past relevant work. 6 Tr. 32. At step five, the ALJ found that, considering Plaintiff’s age, education, 7 work experience, RFC, and testimony from a vocational expert, there were other 8 jobs that existed in significant numbers in the national economy that Plaintiff could 9 perform, such as kitchen helper, laundry worker, and warehouse worker. Tr. 33. 10 The ALJ concluded Plaintiff was not under a disability, as defined in the Social 11 Security Act, from July 28, 2014 through September 16, 2016, the date of the 12 ALJ’s decision. Tr. 34. 13 On July 17, 2017, the Appeals Council denied review, Tr. 1-6, making the 14 ALJ’s decision the Commissioner’s final decision for purposes of judicial review. 15 See 42 U.S.C. § 1383(c)(3). 16 17 ISSUES Plaintiff seeks judicial review of the Commissioner’s final decision denying 18 him supplemental security income benefits under Title XVI of the Social Security 19 Act. ECF No. 14. Plaintiff raises the following issues for this Court’s review: 20 21 1. Whether the ALJ properly weighed Plaintiff’s symptom claims; ORDER - 7 1 2. Whether the ALJ properly weighed the medical opinion evidence; and 2 3. Whether the ALJ’s RFC formulation is supported by substantial 3 evidence. 4 ECF No. 14 at 9. 5 6 7 DISCUSSION A. Plaintiff’s Symptom Claims Plaintiff faults the ALJ for failing to rely on reasons that were clear and 8 convincing in discrediting his subjective symptom claims. ECF No. 14 at 15-16. 9 An ALJ engages in a two-step analysis to determine whether a claimant’s 10 testimony regarding subjective pain or symptoms is credible. “First, the ALJ must 11 determine whether there is objective medical evidence of an underlying 12 impairment which could reasonably be expected to produce the pain or other 13 symptoms alleged.” Molina, 674 F.3d at 1112 (internal quotation marks omitted). 14 “The claimant is not required to show that [his] impairment could reasonably be 15 expected to cause the severity of the symptom [he] has alleged; [he] need only 16 show that it could reasonably have caused some degree of the symptom.” Vasquez 17 v. Astrue, 572 F.3d 586, 591 (9th Cir. 2009) (internal quotation marks omitted). 18 Second, “[i]f the claimant meets the first test and there is no evidence of 19 malingering, the ALJ can only reject the claimant’s testimony about the severity of 20 the symptoms if [the ALJ] gives ‘specific, clear and convincing reasons’ for the 21 ORDER - 8 1 rejection.” Ghanim v. Colvin, 763 F.3d 1154, 1163 (9th Cir. 2014) (quoting 2 Lingenfelter v. Astrue, 504 F.3d 1028, 1036 (9th Cir. 2007)). “General findings are 3 insufficient; rather, the ALJ must identify what testimony is not credible and what 4 evidence undermines the claimant’s complaints.” Id. (quoting Lester v. Chater, 81 5 F.3d 821, 834 (9th Cir. 1995)); Thomas v. Barnhart, 278 F.3d 947, 958 (9th Cir. 6 2002) (“[T]he ALJ must make a credibility determination with findings sufficiently 7 specific to permit the court to conclude that the ALJ did not arbitrarily discredit 8 claimant’s testimony.”). “The clear and convincing [evidence] standard is the most 9 demanding required in Social Security cases.” Garrison v. Colvin, 759 F.3d 995, 10 1015 (9th Cir. 2014) (quoting Moore v. Comm’r of Soc. Sec. Admin., 278 F.3d 920, 11 924 (9th Cir. 2002)). 12 In making an adverse credibility determination, the ALJ may consider, inter 13 alia, (1) the claimant’s reputation for truthfulness; (2) inconsistencies in the 14 claimant’s testimony or between his testimony and his conduct; (3) the claimant’s 15 daily living activities; (4) the claimant’s work record; and (5) testimony from 16 physicians or third parties concerning the nature, severity, and effect of the 17 claimant’s condition. Thomas, 278 F.3d at 958-59. 18 The ALJ found that Plaintiff’s medically determinable impairments could 19 cause Plaintiff’s alleged symptoms, but that Plaintiff’s testimony about the severity 20 21 ORDER - 9 1 of his symptoms was not entirely consistent with the evidence in the record. Tr. 2 28. 3 Here, Plaintiff challenges only the ALJ’s conclusion that the objective 4 medical evidence was inconsistent with Plaintiff’s symptom complaints. ECF No. 5 14 at 15-16. Plaintiff failed to challenge the other five reasons the ALJ cited in 6 support of his finding that Plaintiff’s symptom complaints were not entirely 7 credible, thus, any challenges are waived and the Court may decline to review 8 them. See Carmickle v. Comm’r, Soc. Sec. Admin., 533 F.3d 1155, 1161 n.2 (9th 9 Cir. 2008). However, upon review, the Court finds that the ALJ provided specific, 10 clear, and convincing reasons, supported by substantial evidence, to support his 11 finding. Tr. 28-30. 12 1. Lack of Objective Medical Evidence 13 The ALJ found that Plaintiff’s subjective complaints were not reasonably 14 consistent with the medical evidence. Tr. 28. An ALJ may not discredit a 15 claimant’s pain testimony and deny benefits solely because the degree of pain 16 alleged is not supported by objective medical evidence. Rollins v. Massanari, 261 17 F.3d 853, 856 (9th Cir. 2001); Bunnell v. Sullivan, 947 F.2d 341, 346-47 (9th Cir. 18 1991); Fair v. Bowen, 885 F.2d 597, 601 (9th Cir. 1989). Medical evidence is a 19 relevant factor, however, in determining the severity of a claimant’s pain and its 20 disabling effects. Rollins, 261 F.3d at 857; 20 C.F.R. § 416.929(c)(2). Minimal 21 ORDER - 10 1 objective evidence is a factor which may be relied upon in discrediting a claimant’s 2 testimony, although it may not be the only factor. See Burch v. Barnhart, 400 F.3d 3 676, 680 (9th Cir. 2005). 4 The ALJ noted that Plaintiff alleged that his low back and neck pain caused 5 difficulty standing, sitting, or driving for prolonged periods, and that his asthma, 6 neck, back, and hernia pain prevented him from working. Tr. 27. Here, the ALJ 7 set out, in detail, the medical evidence contradicting Plaintiff’s claims of disabling 8 limitations. Tr. 27-28. For example, as to his physical impairments, the ALJ noted 9 that Plaintiff’s examinations resulted in generally normal or mild findings. Tr. 2710 28; see, e.g., Tr. 371 (Aug. 2014: musculoskeletal range of motion appropriate); 11 Tr. 367-68 (Sept. 2014: reported no neck pain or tenderness and no muscle 12 weakness); Tr. 375 (Oct. 2014: neck had good range of motion; normal gait); Tr. 13 351-55 (Oct. 2014: no radicular symptoms of numbness, pain or weakness in the 14 upper extremities; no tenderness in neck or back; normal range of motion; and 15 examination was described as “unremarkable”); Tr. 471-74 (March 2015: full 16 range of motion in lumbar spine; musculoskeletal examination found mildly 17 reduced range of motion in cervical spine; lumbar spine range of motion was pain 18 free and full, gait was non-antalgic, ability to walk heel-toe normally, muscle tone 19 normal); Tr. 481-82 (April 2015: denied numbness, weakness, or tingling in arms 20 21 ORDER - 11 1 or fingers; musculoskeletal examination showed mile pain with motion in cervical, 2 thoracic, and lumber spine). 3 As to his mental impairments, the ALJ noted that the majority of Plaintiff’s 4 treatment providers observed normal psychological functioning. Tr. 28-29; see, 5 e.g., Tr. 371 (Aug. 2014: mood and affect appropriate, answered questions 6 appropriately); Tr. 368 (Sept. 2014: mood and affect appropriate, answered 7 questions appropriately); Tr. 375 (Oct. 2014: judgment and insight normal); Tr. 8 361-62 (Oct. 2014: MSE within normal limits); Tr. 380 (Oct. 2014: mood and 9 affect appropriate); Tr. 471-76 (March 2015: normal memory, appropriate mood 10 and affect, no mood swings, normal insight and judgment); Tr. 477-79 (April 2015: 11 normal memory, appropriate mood and affect, normal insight and judgment); Tr. 12 481-84 (April 2015: normal memory, appropriate mood and affect, normal insight 13 and judgment). 14 Plaintiff cites to objective imaging results and medical opinion evidence that 15 Plaintiff contends undermines the ALJ’s findings. ECF No. 14 at 16. However, 16 the Court may not reverse the ALJ’s decision based on Plaintiff’s disagreement 17 with the ALJ’s interpretation of the record. See Tommasetti v. Astrue, 533 F.3d 18 1035, 1038 (9th Cir. 2008) (“[W]hen the evidence is susceptible to more than one 19 rational interpretation” the court will not reverse the ALJ’s decision). Here, the 20 ALJ reasonably concluded that these examination results and medical record do 21 ORDER - 12 1 not support Plaintiff’s claims of disabling impairments. This reason combined 2 with the others reasons offered by the ALJ provide a specific, clear, and 3 convincing reason to discredit Plaintiff’s symptom claims. 4 2. Minimal and Conservative Treatment 5 The ALJ found that Plaintiff’s statements about his symptoms were 6 inconsistent with the minimal and conservative treatment he received. Tr. 28-29. 7 The medical treatment a Plaintiff seeks to relieve his symptoms is a relevant factor 8 in evaluating the intensity and persistence of symptoms. 20 C.F.R. §§ 9 416.929(c)(3)(iv), (v). When a claimant receives only conservative or minimal 10 treatment, it supports an adverse inference as to the claimant’s credibility regarding 11 the severity of her subjective symptoms. Parra v. Astrue, 481 F.3d 742, 750-51 12 (9th Cir. 2007); Meanal v. Apfel, 172 F.3d 1111, 1114 (9th Cir. 1999). Moreover, 13 noncompliance with medical care or unexplained or inadequately explained 14 reasons for failing to seek medical treatment cast doubt on a claimant’s subjective 15 complaints. Fair, 885 F.2d at 603; Macri v. Chater, 93 F.3d 540, 544 (9th Cir. 16 1996). 17 The ALJ observed that the record shows very little treatment for Plaintiff’s 18 impairments. Tr. 29. Specifically, the ALJ noted that Plaintiff sought treatment at 19 Community Healthcare of Spokane (CHAS) at the behest of his SSI attorney and 20 what little treatment he received was conservative in nature. Tr. 29 (citing Tr. 21 ORDER - 13 1 471). As to his physical impairments, the ALJ noted that treatment for his spine, 2 lower back pain, and headaches included physical therapy, manual treatment, 3 ice/heat therapy, and recommended yoga. Tr. 28-29 (citing Tr. 424-42, 485-87). 4 The ALJ noted that after Plaintiff experienced improvements with physical 5 therapy, he was instructed to engage in a home exercise program. Tr. 28 (referring 6 to Tr. 492). The ALJ noted that Plaintiff’s treatment for his asthma symptoms was 7 minimal, involving the use of an inhaler two to four times per month and 8 consumption of lemon grass tea. Tr. 28 (citing Tr. 351, 463, 62). 9 As to his mental impairments, Plaintiff similarly received minimal treatment. 10 Tr. 29. The ALJ noted that prior to the alleged onset date, in May 2004, Plaintiff 11 indicated that medication helped him think more clearly and concentrate. Tr. 28 12 (citing Tr. 393); see also Tr. 321-23, 325, 329, 331. However, he did not receive 13 any mental health treatment in the form of medication or counseling from 14 approximately 2007 to 2015. Tr. 29. His treatment providers routinely observed 15 normal psychological functioning in their examinations. Tr. 28-29 (citing Tr. 368 16 (Sept. 2014: oriented to time, place, and person, mood and affect appropriate, 17 answered questions appropriately); Tr. 471-74 (March 2015: memory normal, 18 mood and affect appropriate, and normal insight and judgment); Tr. 477-79 (April 19 2015: same)). 20 21 ORDER - 14 1 Moreover, the ALJ considered and rejected Plaintiff’s explanations for 2 failing to seek more treatment. Tr. 29. Plaintiff indicated he did not seek more 3 treatment because he had no insurance and did not like the side effects of the 4 mental health medications. Tr. 61-66, 75-75. The ALJ noted that although 5 Plaintiff indicated he sought health care, he could not articulate what steps he took 6 to seek health care. Tr. 29 (referring to Tr. 61-66, 74-75). The ALJ noted that 7 Plaintiff indicated that he did not like drugs and does not have financial resources, 8 but then admitted that he did not inquire regarding non-drug treatment options of 9 his medical providers and in fact has insurance. Tr. 29 (referring to Tr. 61-66, 7410 75). Here, Plaintiff’s minimal and conservative treatment was a clear and 11 convincing, and unchallenged, reason supported by substantial evidence for finding 12 Plaintiff’s symptom claims less than credible. 13 3. Improvement with Treatment and Medication 14 The ALJ found that Plaintiff’s impairments improved with treatment and 15 medication. Tr. 28. The effectiveness of medication and treatment is a relevant 16 factor in determining the severity of a claimant’s symptoms. 20 C.F.R. § 17 416.929(c)(3) (2011). “Impairments that can be controlled effectively with 18 medication are not disabling.” Warre v. Comm’r of the Soc. Sec. Admin., 439 F.3d 19 1001, 1006 (9th Cir. 2005); see also Tommasetti, 533 F.3d at 1040 (a favorable 20 21 ORDER - 15 1 response to treatment can undermine a claimant's complaints of debilitating pain or 2 other severe limitations). 3 Here, the ALJ found that medication and treatment were effective at 4 reducing Plaintiff’s physical pain symptoms. The ALJ noted that Plaintiff’s neck 5 pain substantially improved with physical therapy. Tr. 28; see Tr. 443 (May 14, 6 2015: low back felt better with manual treatment, more mobility in neck); Tr. 437 7 (May 19, 2015: headaches less severe, increased neck mobility); Tr. 442 (May 19, 8 2015: able to perform household and outside chores with less pain); Tr. 285 (Aug. 9 15, 2015: physical therapy did “amazing things for his headaches.” Now only has 10 occasional headache that is handled with Tylenol); Tr. 490 (Oct.13, 2015: reported 11 that his back, neck, and shoulders have improved and have less pain, more 12 flexibility, can push with arms better). 13 As to his asthma, Plaintiff indicated his breathing had improved with the use 14 of lemon grass tea. Tr. 28 (citing Tr. 463 (May 2016: “breathing has improved 15 with lemon grass tea and is very happy with it”)); see also Tr. 62. 16 As to his mental impairments, the ALJ noted that prior to his onset date, 17 Plaintiff took medication, which substantially improved his ability to concentrate. 18 Tr. 28; see also Tr. 321 (May 21, 2004: pleased with the effects of Strattera, able to 19 think more clearly with less racing thoughts, able to concentrate and read a book, 20 able to retain information); Tr. 322 (May 31, 2004: Strattera was helping him 21 ORDER - 16 1 concentrate quite a bit); Tr. 323 (Nov. 3, 2004: responding well to Strattera); Tr. 2 325 (Dec. 6, 2004: condition is improved, tolerating recent medication adjustment 3 well); Tr. 329 (Jan. 4, 2005: tolerating medication well); Tr. 331 (Jan. 13, 2005: 4 tolerating Strattera without problem). Although Plaintiff testified that he stopped 5 taking mental health medications due to their side effects, Tr. 65-66, that 6 contention is inconsistent with the medical records that he tolerated the medication 7 well. 8 The ALJ reasonably interpreted the record as demonstrating that Plaintiff’s 9 conditions improved with treatment, which is a clear and convincing, and 10 unchallenged reason to find his symptom complaints less credible. 11 4. Stopped Work for Reasons Unrelated to Impairments 12 The ALJ noted that Plaintiff stopped working for reasons unrelated to his 13 impairments, which undermined his symptom claims. Tr. 29. An ALJ may 14 consider that a claimant stopped working for reasons unrelated to the allegedly 15 disabling condition in evaluating a Plaintiff’s symptom complaints. See 16 Tommasetti, 533 F.3d at 1040; Bruton v. Massanari, 268 F.3d 824, 828 (9th Cir. 17 2001). The record supports the ALJ’s conclusion. Here, Plaintiff reported during 18 a psychological evaluation that he last worked as a machine operator in 19 approximately 2006 or 2007, which employment ended due to the seasonal nature 20 of the job and the employer having no more work for him. Tr. 359-60. This was a 21 ORDER - 17 1 clear and convincing, and unchallenged, reason to find Plaintiff’s symptom 2 complaints less than credible. 3 5. Poor Work History 4 The ALJ found Plaintiff’s “work history similarly shows that [he] worked 5 only sporadically before the alleged disability onset date, which raises a question 6 as to whether [Plaintiff’s] continuing unemployment is actually attributable to 7 medical impairments.” Tr. 29. Evidence of a poor work history that suggests a 8 claimant is not motivated to work is a permissible reason to discredit a claimant’s 9 testimony that he is unable to work. Thomas, 278 F.3d at 959. In support of this 10 finding, the ALJ cited to Plaintiff’s earnings statements, which indicate Plaintiff 11 reported approximately $5,000 in 2000 and 2005, and no income in 1994-99, 200112 04, and 2008-2015. Tr. 227, 230-31. His last work at SGA levels was in 1992. 13 Tr. 230-31. The ALJ’s conclusion is supported by substantial evidence. This was 14 a clear and convincing, and unchallenged, reason to find Plaintiff’s symptom 15 complaints less than credible. 16 6. Daily Activities 17 The ALJ observed Plaintiff “can perform a full range of daily activities, 18 which is inconsistent with the nature and severity of his subjective complaints.” 19 Tr. 29-30. It is reasonable for an ALJ to consider a claimant’s activities which 20 undermine claims of totally disabling pain in making the credibility determination. 21 ORDER - 18 1 See Rollins, 261 F.3d at 857. However, it is well-established that a claimant need 2 not “vegetate in a dark room” in order to be deemed eligible for benefits. Cooper 3 v. Bowen, 815 F.2d 557, 561 (9th Cir. 1987). Notwithstanding, if a claimant is 4 able to spend a substantial part of his day engaged in pursuits involving the 5 performance of physical functions that are transferable to a work setting, a specific 6 finding as to this fact may be sufficient to discredit an allegation of disabling 7 excess pain. Fair, 885 F.2d at 603. Furthermore, “[e]ven where [Plaintiff’s daily] 8 activities suggest some difficulty functioning, they may be grounds for discrediting 9 the claimant’s testimony to the extent that they contradict claims of a totally 10 debilitating impairment.” Molina, 674 F.3d at 1113. 11 Here, the ALJ noted that Plaintiff reported mowing his yard and tending to 12 his garden. Tr. 29 (citing Tr. 352). As to daily activities, Plaintiff is able to 13 perform all personal care unassisted, grocery shop a few times per month, 14 complete house hold chores, such as washing dishes, laundry, vacuuming, and 15 dusting. Tr. 29 (citing Tr. 352). He is able to complete his activities of daily living 16 in a reasonable amount of time, schedule his own appointments, has a driver’s 17 license and is able to drive. Tr. 29-30. He also reported building a greenhouse 18 with his son. Tr. 30. The ALJ reasonably interpreted these activities as being 19 inconsistent with Plaintiff’s alleged disabling symptoms. This was a clear and 20 21 ORDER - 19 1 convincing, and unchallenged, reason for finding Plaintiff’s symptom complaints 2 less than credible. 3 In sum, the ALJ provided several clear and convincing reasons, supported by 4 substantial evidence, for finding the Plaintiff’s symptom complaints not entirely 5 consistent with the evidence in the record. 6 7 B. Medical Opinion Evidence Plaintiff contends the ALJ improperly discounted the medical opinion of 8 Thomas Genthe, Ph.D. ECF No. 14 at 12-15. 9 There are three types of physicians: “(1) those who treat the claimant 10 (treating physicians); (2) those who examine but do not treat the claimant 11 (examining physicians); and (3) those who neither examine nor treat the claimant 12 but who review the claimant’s file (nonexamining or reviewing physicians).” 13 Holohan v. Massanari, 246 F.3d 1195, 1201-02 (9th Cir. 2001) (brackets omitted). 14 “Generally, a treating physician’s opinion carries more weight than an examining 15 physician’s, and an examining physician’s opinion carries more weight than a 16 reviewing physician’s.” Id. “In addition, the regulations give more weight to 17 opinions that are explained than to those that are not, and to the opinions of 18 specialists concerning matters relating to their specialty over that of 19 nonspecialists.” Id. (citations omitted). 20 21 ORDER - 20 If a treating or examining physician’s opinion is uncontradicted, an ALJ may 1 2 reject it only by offering “clear and convincing reasons that are supported by 3 substantial evidence.” Bayliss v. Barnhart, 427 F.3d 1211, 1216 (9th Cir. 2005). 4 “However, the ALJ need not accept the opinion of any physician, including a 5 treating physician, if that opinion is brief, conclusory and inadequately supported 6 by clinical findings.” Bray v. Comm’r of Soc. Sec. Admin., 554 F.3d 1219, 1228 7 (9th Cir. 2009) (internal quotation marks and brackets omitted). “If a treating or 8 examining doctor’s opinion is contradicted by another doctor’s opinion, an ALJ 9 may only reject it by providing specific and legitimate reasons that are supported 10 by substantial evidence.” Bayliss, 427 F.3d at 1216 (citing Lester, 81 F.3d at 83011 31). 12 Dr. Genthe conducted a consultative psychological evaluation in October 13 2014. Tr. 358-66. Dr. Genthe’s diagnostic impression was major depressive 14 disorder, mild with anxious distress, ADHD, cannabis use disorder. Tr. 365. Dr. 15 Genthe opined that Plaintiff’s abilities to understand and remember short, simple 16 instructions; to understand and remember detailed instruction; to carry out short, 17 simple instructions in a reasonable amount of time, to work with or near others, 18 over a short period of time, without being districted by them; to keep track of time 19 and finish work on time; to work with or near others, over a long period of time, 20 without being distracted by them; to respond appropriately to changes in the work 21 ORDER - 21 1 setting; to sustain an ordinary routine without supervision; and to multi-task were 2 poor. Tr. 365. Dr. Genthe concluded that it was unlikely that Plaintiff could 3 function in a work setting until his psychological symptoms were managed more 4 effectively. Tr. 365. The ALJ gave this assessment only partial weight. Tr. 31. 5 Because Dr. Genthe’s opinions were contradicted by the medical expert, Dr. 6 Toews, Tr. 46-57, and the state agency reviewers, Dr. Lewis, Tr. 98-105, and Dr. 7 Eather, Tr. 114-20, the ALJ was required to provide specific and legitimate reasons 8 for rejecting the opinion. Bayliss, 427 F.3d at 1216. 9 First, the ALJ found that Dr. Genthe’s opinions were incongruent with 10 Plaintiff’s objective examination as well as the opinion of the medical expert. Tr. 11 31. A medical opinion may be rejected if it is unsupported by medical findings. 12 Bray, 554 F.3d at 1228; Batson v. Comm’r of Soc. Sec. Admin., 359 F.3d 1190, 13 1195 (9th Cir. 2004); Thomas, 278 F.3d at 957; Tonapetyan v. Halter, 242 F.3d 14 1144, 1149 (9th Cir. 2001); Matney v. Sullivan, 981 F.2d 1016, 1019 (9th Cir. 15 1992). An ALJ may discredit physicians’ opinions that are unsupported by the 16 record as a whole. Batson, 359 F.3d at 1195. Moreover, an ALJ is not obliged to 17 credit medical opinions that are unsupported by the medical source’s own data 18 19 20 21 ORDER - 22 1 and/or contradicted by the opinions of other examining medical sources.1 2 Tommasetti, 533 F.3d at 1041. Here, the ALJ found that Dr. Genthe’s opined limitations were inconsistent 3 4 with Dr. Genthe’s objective examination findings. Tr. 31. The ALJ observed that 5 Plaintiff presented as generally open, cooperative and friendly, but somewhat 6 restless. Tr. 30. In memory testing, Plaintiff could repeat words accurately, recall 7 objects after a five-minute delay, recall remote information and he could spell the 8 word “WORLD” forward but not backward. Tr. 30-31. Plaintiff accurately 9 followed a three-step instruction. Tr. 31. His insight was good and his fund of 10 knowledge was within normal limits Tr. 31. Plaintiff completed Trials A and B 11 testing with no errors, falling into the unimpaired range. The ALJ specifically 12 noted that the “only remarkable findings were poor memory scores.” Tr. 31. 13 Plaintiff’s Wechsler memory testing was within borderline to extremely low range, 14 with auditory, visual, immediate and delayed memory being extremely low. Tr. 15 31. Given the largely normal findings of the objective examination, with the 16 17 1 Dr. Toews is a reviewing medical expert and not an examining medical source. 18 Tr. 46. However, the opinion of a nonexamining physician may serve as 19 substantial evidence if it is supported by other evidence in the record and is 20 consistent with it. Andrews v. Shalala, 53 F.3d 1035, 1041 (9th Cir. 1995). 21 ORDER - 23 1 exception of the Wechsler memory tests, the ALJ reasonably concluded that the 2 objective examination was inconsistent with the severe limitations, especially those 3 unrelated to memory, that Dr. Genthe opined. 4 Plaintiff faults the ALJ for relying on the hearing testimony of 5 nonexamining psychological medical expert Jay Towes, Ed.D. in rejecting the 6 opinion of Dr. Genthe, contending it was not supported by substantial evidence. 7 ECF No. 14 at 13-14. Specifically, Plaintiff first asserts that Dr. Toews relied only 8 on the Trail Making scores as being at odds with the Wechsler Memory scores in 9 giving his opinion as to Plaintiff’s diagnosis and RFC. Id. at 13. Plaintiff next 10 asserts that Dr. Toews and the ALJ failed to consider other evidence in the record 11 supporting the ADHD diagnosis, such psychological testing conducted by Dr. 12 Arnold in 2004 and Plaintiff being prescribed Strattera. Id. at 13-14 (citing Tr. 389 13 (April 2004: MCMI-III highly suggestive of ADHD levels of inattention), Tr. 392 14 (prescription for Strattera)). 15 Plaintiff’s contention lacks merit. Contrary to her assertion, Dr. Toews did 16 not rely exclusively on the Trail Making score, but also relied on the psychiatric 17 symptoms observed by physicians in the record, Tr. 47, which indicated normal 18 insight and judgment, appeared as not having mood swings, and the status 19 examination performed by Dr. Genthe. Tr. 50 (“[T[here was no indication on the 20 status exam of any evidence impairments. He remembered four out of four words 21 ORDER - 24 1 after five minutes, and so forth.”). Moreover, in finding that Dr. Genthe’s opinions 2 were in conflict with the objective examination results, the ALJ relied on the 3 opinions of the state agency reviewers, Dr. Lewis and Dr. Eather, in addition to Dr. 4 Toews. Tr. 31 (citing Tr. 98-105, 114-20, referring to Tr. 46-57). Next, also 5 contrary to Plaintiff’s contentions, both Dr. Toews and the ALJ specifically 6 addressed the prior medical records regarding mental health impairments and 7 Plaintiff’s use of Strattera. Tr. 48-49 (Dr. Toews noted that some of Plaintiff’s 8 prior testing had indicated Plaintiff met some of the criteria for ADD and he had 9 been prescribed Strattera, which had controlled his symptoms.); Tr. 28-29 (ALJ 10 noted that Plaintiff had indicated that the medication had helped him think more 11 clearly and concentrate and noting that the mental health records from prior to the 12 adjudicative period were of limited relevance due to their age predating the onset 13 date). 14 Here, the ALJ found that ADHD was a severe impairment, Tr. 24; noted 15 that Plaintiff had received medication treatment for mental impairments, Tr. 28; 16 and provided limitations in the RFC related to mental functioning, Tr. 27, 31-32. 17 Plaintiff fails to articulate how a diagnosis of ADHD and the test results from 2004 18 support any more extreme limitations than provided for in the RFC. ECF No. 14 at 19 14. Significantly, Dr. Toews testified that even if the Weschler memory scores 20 were valid, they would not support a finding that Plaintiff could not perform 21 ORDER - 25 1 unskilled work of the kind listed in the RFC. Tr. 55. The Court may not reverse 2 the ALJ’s decision based on Plaintiff’s disagreement with the ALJ’s interpretation 3 of the record. See Tommasetti, 533 F.3d at 1038 (“[W]hen the evidence is 4 susceptible to more than one rational interpretation” the court will not reverse the 5 ALJ’s decision). The ALJ rationally concluded that the objective examination 6 were inconsistent with the extreme limitations opined by Dr. Genthe. This was a 7 specific and legitimate reason to discredit Dr. Genthe’s opinion. 8 Second, the ALJ found that Dr. Genthe over-relied primarily on Plaintiff’s 9 subjective symptom reports. Tr. 37. A physician’s opinion may be rejected if it is 10 based on a claimant’s subjective complaints which were properly discounted. 11 Tonapetyan, 242 F.3d at 1149; Morgan v. Comm’r of Soc. Sec. Admin., 169 F.3d 12 595, 599 (9th Cir. 1999); Fair, 885 F.2d at 604. However, when an opinion is not 13 more heavily based on a patient’s self-reports than on clinical observations, there is 14 no evidentiary basis for rejecting the opinion. Ghanim, 763 F.3d at 1162; Ryan v. 15 Comm’r of Soc. Sec. Admin., 528 F.3d 1194, 1199-200 (9th Cir. 2008). Here, the 16 ALJ reasonably concluded that absent citation to objective factors as a basis for 17 these very limiting work restrictions, Dr. Genthe must have relied on Plaintiff’s 18 symptom complaints in assessing such extreme limitations. As noted above, the 19 ALJ properly evaluated Plaintiff’s symptom complaints. This was a specific and 20 legitimate reason to reject Dr. Genthe’s opinions. 21 ORDER - 26 1 2 C. RFC Plaintiff challenges the ALJ’s assessment of Plaintiff’s RFC as inadequate, 3 asserting that it failed to incorporate all of Plaintiff’s limitations. ECF No. 14 at 4 15. However, Plaintiff’s argument is based entirely on the assumption that the ALJ 5 erred in considering the medical opinion evidence and Plaintiff’s symptom claims. 6 Id. For reasons discussed throughout this decision, the ALJ’s consideration of 7 Plaintiff’s symptom claims and consideration of the medical opinion evidence are 8 legally sufficient and supported by substantial evidence. Thus, the ALJ did not err 9 in assessing the RFC or finding Plaintiff capable of performing work existing in 10 the national economy. 11 12 CONCLUSION After review, the Court finds that the ALJ’s decision is supported by 13 substantial evidence and free of harmful error. IT IS ORDERED: 14 1. Plaintiff’s Motion for Summary Judgment (ECF No. 14) is DENIED. 15 2. Defendant’s Motion for Summary Judgment (ECF No. 18) is 16 GRANTED. 17 The District Court Executive is directed to file this Order, enter 18 JUDGMENT FOR THE DEFENDANT, provide copies to counsel, and CLOSE 19 20 21 ORDER - 27 1 THE FILE. 2 DATED August 20, 2018. 3 s/Mary K. Dimke MARY K. DIMKE UNITED STATES MAGISTRATE JUDGE 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 ORDER - 28
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