Wing v. Saul, No. 4:2019cv05202 - Document 13 (E.D. Wash. 2020)
Court Description: ORDER DENYING 10 PLAINTIFF'S SUMMARY-JUDGMENT MOTION AND GRANTING 11 DEFENDANT'S SUMMARY-JUDGMENT MOTION. Case is closed. Signed by Senior Judge Edward F. Shea. (AY, Case Administrator)
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Wing v. Saul Doc. 13 Case 4:19-cv-05202-EFS ECF No. 13 filed 08/10/20 PageID.933 Page 1 of 24 1 2 FI LED I N THE U.S. DI STRI CT COURT EASTERN DI STRI CT OF WASHI NGTON 3 Aug 10, 2020 SEAN F. MCAVOY, CLERK 4 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF WASHINGTON 5 6 7 HARRY W.,1 No. Plaintiff, 8 v. 9 10 4:19-CV-5202-EFS ANDREW M. SAUL, the Commissioner of Social Security, ORDER DENYING PLAINTIFF’S SUMMARY-JUDGMENT MOTION AND GRANTING DEFENDANT’S SUMMARY-JUDGMENT MOTION 11 Defendant. 12 13 14 Before the Court are the parties’ cross summary-judgment motions.2 15 Plaintiff Harry W. appeals the denial of benefits by the Administrative Law Judge 16 (ALJ). He alleges the ALJ erred by 1) improperly weighing the medical opinions; 2) 17 discounting Plaintiff’s symptom reports; and 3) improperly assessing Plaintiff’s 18 residual functional capacity and therefore erring at step five. In contrast, 19 20 1 To protect the privacy of the social-security Plaintiff, the Court refers to him by 21 first name and last initial or by “Plaintiff.” See LCivR 5.2(c). 22 2 ECF Nos. 10 & 11. 23 ORDER RULING ON CROSS SUMMARY-JUDGMENT MOTIONS - 1 Dockets.Justia.com Case 4:19-cv-05202-EFS ECF No. 13 filed 08/10/20 PageID.934 Page 2 of 24 1 Defendant Commissioner of Social Security asks the Court to affirm the ALJ’s 2 decision finding Plaintiff not disabled. After reviewing the record and relevant 3 authority, the Court denies Plaintiff’s Motion for Summary Judgment, ECF No. 10, 4 and grants the Commissioner’s Motion for Summary Judgment, ECF No. 11. 5 I. Five-Step Disability Determination 6 A five-step sequential evaluation process is used to determine whether an 7 adult claimant is disabled.3 Step one assesses whether the claimant is currently 8 engaged in substantial gainful activity.4 If the claimant is engaged in substantial 9 gainful activity, benefits are denied.5 If not, the disability-evaluation proceeds to 10 step two.6 11 Step two assesses whether the claimant has a medically severe impairment, 12 or combination of impairments, which significantly limits the claimant’s physical 13 or mental ability to do basic work activities.7 If the claimant does not, benefits are 14 denied. 8 If the claimant does, the disability-evaluation proceeds to step three.9 15 16 3 20 C.F.R. § 404.1520(a). 4 Id. § 404.1520(a)(4)(i). 5 Id. § 404.1520(b). 6 Id. 7 20 C.F.R. § 404.1520(a)(4)(ii). 8 Id. § 404.1520(c). 9 Id. 17 18 19 20 21 22 23 ORDER RULING ON CROSS SUMMARY-JUDGMENT MOTIONS - 2 Case 4:19-cv-05202-EFS 1 ECF No. 13 filed 08/10/20 PageID.935 Page 3 of 24 Step three compares the claimant’s impairment(s) to several recognized by 2 the Commissioner to be so severe as to preclude substantial gainful activity.10 If an 3 impairment meets or equals one of the listed impairments, the claimant is 4 conclusively presumed to be disabled.11 If an impairment does not, the disability- 5 evaluation proceeds to step four. 6 Step four assesses whether an impairment prevents the claimant from 7 performing work he performed in the past by determining the claimant’s residual 8 functional capacity (RFC).12 If the claimant is able to perform prior work, benefits 9 are denied.13 If the claimant cannot perform prior work, the disability-evaluation 10 proceeds to step five. 11 Step five, the final step, assesses whether the claimant can perform other 12 substantial gainful work—work that exists in significant numbers in the national 13 economy—considering the claimant’s RFC, age, education, and work experience.14 14 If so, benefits are denied. If not, benefits are granted.15 15 16 10 Id. § 404.1520(a)(4)(iii). 11 Id. § 404.1520(d). 12 Id. § 404.1520(a)(4)(iv). 13 Id. 14 20 C.F.R. § 404.1520(a)(4)(v); Kail v. Heckler, 722 F.2d 1496, 1497-98 (9th Cir. 17 18 19 20 21 1984). 22 15 20 C.F.R. §§ 404.1520(g), 416.920(g). 23 ORDER RULING ON CROSS SUMMARY-JUDGMENT MOTIONS - 3 Case 4:19-cv-05202-EFS 1 ECF No. 13 filed 08/10/20 PageID.936 Page 4 of 24 The claimant has the initial burden of establishing entitlement to disability 2 benefits under steps one through four.16 At step five, the burden shifts to the 3 Commissioner to show that the claimant is not entitled to benefits.17 4 II. 5 Factual and Procedural Summary Plaintiff filed a Title II application, alleging an amended disability onset 6 date of December 22, 2009.18 His claim was denied initially and upon 7 reconsideration.19 An administrative hearing was held before Administrative Law 8 Judge Lori L. Freund.20 9 In denying Plaintiff’s disability claim, the ALJ made the following findings: 10 11 Plaintiff met the insured status requirements through December 31, 2015; 12 13 Step one: Plaintiff had not engaged in substantial gainful activity since December 22, 2009, the amended alleged onset date, through his 14 date last insured of December 31, 2015; 15 16 Step two: Plaintiff had the following medically determinable severe impairments: fibromyalgia; rheumatoid arthritis, without synovitis; 17 18 16 Parra v. Astrue, 481 F.3d 742, 746 (9th Cir. 2007). 17 Id. 18 AR 46. 19 AR 88 & 101. 20 AR 16-79. 19 20 21 22 23 ORDER RULING ON CROSS SUMMARY-JUDGMENT MOTIONS - 4 Case 4:19-cv-05202-EFS ECF No. 13 filed 08/10/20 PageID.937 Page 5 of 24 1 right shoulder plica syndrome; right knee meniscal tear, status-post 2 arthroscopic surgery; obesity; and degenerative disc disease of the 3 lumbar spine, status-post remote fusion; 4 5 Step three: Plaintiff did not have an impairment or combination of impairments that met or medically equaled the severity of one of the 6 listed impairments; 7 RFC: Plaintiff had the RFC to perform light work except: 8 [Plaintiff] could stand and walk up to 20 minutes a time for a total of two hours total in an eight-hour workday. He could sit up to six hours in an eight-hour workday. He would need to change positioning every 20 to 30 minutes for a brief period. He should never kneel, crouch, crawl, or climb ladders, ropes, or scaffolds but could occasionally balance, stoop, and climb ramps and stairs. He could bilaterally handle and finger frequently. He should avoid concentrated exposure to extreme cold and excessive vibration; all exposure to unprotected heights and hazardous machinery; and even moderate exposure to the operational control of moving machinery. 9 10 11 12 13 14 15 Step four: Plaintiff was not capable of performing past relevant work; and 16 17 Step five: considering Plaintiff’s RFC, age, education, and work history, Plaintiff could perform work that existed in significant 18 numbers in the national economy, such as office helper, parking-lot 19 attendant, and cashier II.21 20 21 22 21 AR 112-19. 23 ORDER RULING ON CROSS SUMMARY-JUDGMENT MOTIONS - 5 Case 4:19-cv-05202-EFS 1 3 6 M.D., and Scot Van Linder, M.D.22 8 The ALJ also found that Plaintiff’s medically determinable impairments could reasonably be expected to cause some of the alleged symptoms, but that his statements concerning the intensity, persistence, and limiting effects of those symptoms were not entirely consistent with the medical evidence and other evidence in the record.23 13 14 15 little weight to the opinions of Chester McLaughlin, M.D., Maria Armstrong-Murphy, M.D., Clarence Fossier, M.D., Thomas Griztka, 7 12 great weight to the opinions of testifying expert H.C. Alexander, III, Staley, M.D.; and 5 11 PageID.938 Page 6 of 24 M.D., Amanda Friese, PAC, William Kalichman, M.D., and Norman 4 10 filed 08/10/20 When assessing the medical-opinion evidence, the ALJ gave: 2 9 ECF No. 13 Plaintiff requested review of the ALJ’s decision by the Appeals Council, which accepted review and adopted the ALJ’s decision.24 Plaintiff timely appealed to this Court. 16 17 18 19 20 22 AR 115-16. 23 AR 113. 24 AR 4-6. 21 22 23 ORDER RULING ON CROSS SUMMARY-JUDGMENT MOTIONS - 6 Case 4:19-cv-05202-EFS 1 ECF No. 13 III. 2 filed 08/10/20 PageID.939 Page 7 of 24 Standard of Review A district court’s review of the Commissioner’s final decision is limited.25 The 3 Commissioner’s decision is set aside “only if it is not supported by substantial 4 evidence or is based on legal error.”26 Substantial evidence is “more than a mere 5 scintilla but less than a preponderance; it is such relevant evidence as a reasonable 6 mind might accept as adequate to support a conclusion.”27 Moreover, because it is 7 the role of the ALJ and not the Court to weigh conflicting evidence, the Court 8 upholds the ALJ’s findings “if they are supported by inferences reasonably drawn 9 from the record.”28 The Court considers the entire record as a whole.29 10 11 12 13 25 42 U.S.C. § 405(g). 26 Hill v. Astrue, 698 F.3d 1153, 1158 (9th Cir. 2012). 27 Id. at 1159 (quoting Sandgathe v. Chater, 108 F.3d 978, 980 (9th Cir. 1997)). 28 Molina v. Astrue, 674 F.3d 1104, 1111 (9th Cir. 2012). 29 Lingenfelter v. Astrue, 504 F.3d 1028, 1035 (9th Cir. 2007) (The court “must 14 15 16 17 18 consider the entire record as whole, weighing both the evidence that supports and 19 the evidence that detracts from the Commissioner's conclusion,” not simply the 20 evidence cited by the ALJ or the parties.); Black v. Apfel, 143 F.3d 383, 386 (8th 21 Cir. 1998) (“An ALJ's failure to cite specific evidence does not indicate that such 22 evidence was not considered[.]”). 23 ORDER RULING ON CROSS SUMMARY-JUDGMENT MOTIONS - 7 Case 4:19-cv-05202-EFS 1 ECF No. 13 filed 08/10/20 PageID.940 Page 8 of 24 Further, the Court may not reverse an ALJ decision due to a harmless 2 error.30 An error is harmless “where it is inconsequential to the [ALJ’s] ultimate 3 nondisability determination.”31 The party appealing the ALJ’s decision generally 4 bears the burden of establishing harm.32 5 6 IV. A. 7 Analysis Medical Opinions: Plaintiff fails to establish consequential error. Plaintiff argues the ALJ erred in failing to assign weight to the opinions of 8 Kathleen Foltz, SDM, Wing Chau, M.D., and Owen Higgs, M.D. Plaintiff also 9 challenges the ALJ’s assignment of great weight to Amanda Friese, PAC and 10 William Kalichman, M.D. 11 1. 12 13 14 15 16 Standard of Review The weighing of medical opinions is dependent upon the nature of the medical relationship, i.e., 1) a treating physician; 2) an examining physician who examines but did not treat the claimant; and 3) a reviewing physician who neither treated nor examined the claimant.33 Generally, more weight is given to the opinion of a treating physician than to an examining physician’s opinion and both 17 18 19 30 Molina, 674 F.3d at 1111. 31 Id. at 1115 (quotation and citation omitted). 32 Shinseki v. Sanders, 556 U.S. 396, 409-10 (2009). 33 Garrison v. Colvin, 759 F.3d 995, 1012 (9th Cir. 2014). 20 21 22 23 ORDER RULING ON CROSS SUMMARY-JUDGMENT MOTIONS - 8 Case 4:19-cv-05202-EFS ECF No. 13 filed 08/10/20 PageID.941 Page 9 of 24 1 treating and examining opinions are to be given more weight than the opinion of a 2 reviewing physician.34 3 When a treating physician’s or evaluating physician’s opinion is not 4 contradicted by another physician, it may be rejected only for “clear and 5 convincing” reasons, and when it is contradicted, it may be rejected for “specific 6 and legitimate reasons” supported by substantial evidence.35 A reviewing 7 physician’s opinion may be rejected for specific and legitimate reasons supported by 8 substantial evidence, and the opinion of an “other” medical source36 may be 9 rejected for specific and germane reasons supported by substantial evidence.37 The 10 opinion of a reviewing physician serves as substantial evidence if it is supported by 11 other independent evidence in the record.38 12 13 34 Id.; Lester v. Chater, 81 F.3d 821, 830-31 (9th Cir. 1995). 35 Lester, 81 F.3d at 830. 36 See 20 C.F.R. § 404.1502 (For claims filed before March 27, 2017, acceptable 14 15 16 medical sources are licensed physicians, licensed or certified psychologists, licensed 17 optometrists, licensed podiatrists, qualified speech-language pathologists, licensed 18 audiologists, licensed advanced practice registered nurses, and licensed physician 19 assistants within their scope of practice—all other medical providers are “other” 20 medical sources.). 21 37 Molina, 674 F.3d at 1111; Bruce v. Astrue, 557 F.3d 1113, 1115 (9th Cir. 2009). 38 Andrews v. Shalala, 53 F.3d 1035, 1041 (9th Cir. 1995). 22 23 ORDER RULING ON CROSS SUMMARY-JUDGMENT MOTIONS - 9 Case 4:19-cv-05202-EFS 1 ECF No. 13 filed 08/10/20 PageID.942 Page 10 of 24 The ALJ must evaluate every medical opinion received according to a list of 2 factors set forth by the Social Security Administration.39 “Where an ALJ does not 3 explicitly reject a medical opinion or set forth specific, legitimate reasons for 4 crediting one medical opinion over another, he errs.”40 5 The harmless error analysis may be applied where even a treating source’s 6 opinion is disregarded without comment.41 An error is harmful unless the 7 reviewing court “can confidently conclude that no ALJ, when fully crediting the 8 [evidence], could have reached a different disability determination.”42 This does not 9 preclude the reviewing court from considering other factors in the harmlessness 10 analysis, including whether the omitted evidence was cumulative of other 11 testimony.43 12 13 14 39 20 C.F.R. § 416.927(c). 40 Garrison v. Colvin, 759 F.3d 995, 1012 (9th Cir. 2014) (citing Nguyen v. Chater, 15 16 100 F.3d 1462, 1464 (9th Cir. 1996)). 17 41 March v. Colvin, 792 F.3d 1170, 1173 (9th Cir. 2015). 42 Stout v. Comm’r Soc. Sec. Admin., 454 F.3d 1050, 1056 (9th Cir. 2006). 43 Molina, 674 F.3d at 1119, 1121 (“[I]f an ALJ has provided well-supported grounds 18 19 20 for rejecting testimony regarding specified limitations, we cannot ignore the ALJ’s 21 reasoning and reverse the agency merely because the ALJ did not expressly discredit 22 each witness who described the same limitations.”). 23 ORDER RULING ON CROSS SUMMARY-JUDGMENT MOTIONS - 10 Case 4:19-cv-05202-EFS 1 2 2. 9 10 11 12 13 14 15 Kathleen Foltz, SDM Plaintiff argues the ALJ erred in failing to assign weight to Ms. Foltz’s opinion.44 Plaintiff is correct in that the ALJ did not assign a weight to the opinion of Ms. Foltz’, however, any error is harmless. 7 8 PageID.943 Page 11 of 24 consequentially erred when weighing the medical opinions. 4 6 filed 08/10/20 As discussed below, the Court finds Plaintiff fails to establish that the ALJ 3 5 ECF No. 13 Ms. Foltz opined Plaintiff had an RFC with the following exertional limitations: occasionally lift and/or carry 20 pounds; frequently lift and/or carry 10 pounds; stand and/or walk (with normal breaks) for 2 hours; sit (with normal breaks) for 6 hours in an 8-hour workday; push and/or pull (including operation of hand and/or foot controls) unlimited, other than shown; occasionally climb ramps and stairs, balance, stoop, kneel, crouch, and crawl; never climb ladders, ropes, or scaffolds; limited to frequent fingering and handling; avoid concentrated exposure extreme cold and hazards; and unlimited exposure to extreme heat, wetness, humidity, noise, vibration, and fumes.45 16 17 18 19 20 21 44 ECF No. 10 at 11. 45 AR 84-86. 22 23 ORDER RULING ON CROSS SUMMARY-JUDGMENT MOTIONS - 11 Case 4:19-cv-05202-EFS 1 ECF No. 13 filed 08/10/20 PageID.944 Page 12 of 24 An ALJ may not accord any weight to the opinion of a non-physician SDM, 2 such as Ms. Foltz.46 Furthermore, the ALJ constructed a more restrictive RFC 3 compared to Ms. Foltz’s opined limitations.47 4 5 Plaintiff’s fails to establish the ALJ erred by failing to assign a weight analysis to Ms. Foltz’s opinion. 6 3. 7 8 9 Dr. Wing Chau Plaintiff also argues the ALJ erred in failing to assign weight to Dr. Chau’s opinion.48 Plaintiff is correct in that the ALJ failed to assign a weight to Dr. Chau’s opinion, however, any error is harmless. 10 11 46 Morgan v. Colvin, 531 Fed.Appx. 793, 794-95 (9th Cir. 2013) (unpublished) 12 (citing POMS DI 24510.050 (“SDM-completed forms are not opinion evidence at the 13 appeal levels.”)). 14 47 See Montalbo v. Colvin, 231 F. Supp. 3d 846, 861 (D. Haw. 2017) (ALJ’s rejection 15 of a treating and examining physicians’ opinion when assessing claimant’s 16 application of SSI benefits was not harmless error, where there was a conflict in 17 medical evidence; rejected opinions, if credited, could have suggested more 18 restrictive RFC than the ALJ found; the ALJ failed to set forth specific and 19 legitimate reasons for rejecting opinions; the court could not reasonably discern the 20 path the ALJ followed in weighing evidence; and could not confidently state that no 21 reasonable ALJ would have reached a different conclusion.). 22 48 ECF No. 10 at 11. 23 ORDER RULING ON CROSS SUMMARY-JUDGMENT MOTIONS - 12 Case 4:19-cv-05202-EFS 1 ECF No. 13 filed 08/10/20 PageID.945 Page 13 of 24 Dr. Chau treated Plaintiff from 2008 to 2009 and from 2011 to 2016.49 In 2 2011, Dr. Chau opined Plaintiff was temporarily unable to work as a Dial A Ride 3 Driver.50 In May 2012, Dr. Chau opined Plaintiff was able to perform modified 4 work from May 2012 to July 2012, with the following restrictions: never climb, 5 twist, bend/stoop, squat/kneel, or crawl; occasionally (1-3 hours) sit, stand/walk, 6 reach, work above shoulders, and vibratory tasks; and frequently (3-6 hours) 7 keyboard, wrist flexion/extension, grasp, fine manipulation, and operate foot 8 controls with left foot.51 In December 2012, Dr. Chau opined Plaintiff could perform 9 the jobs of a medical assistant and phlebotomist.52 In June 2014, after an MRI, Dr. 10 Chau took Plaintiff off of clinical work and opined that Plaintiff might need a 11 vocational counselor to get more of a sedentary job and was capable of office type 12 work.53 In November 2014, Dr. Chau approved Plaintiff to work as a support 13 14 15 49 AR 395-419 & 559-86. 50 AR 569-70 (Plaintiff unable to temporarily perform the duties of a Dial A Ride 16 17 Driver position for 1-2 months.); AR 574 (Plaintiff unable to temporarily perform 18 the physical activities for a Dial A Ride Driver for three months because he failed 19 the PCE.). 20 51 AR 575. 52 AR 412 & 579-80. 53 AR 404. 21 22 23 ORDER RULING ON CROSS SUMMARY-JUDGMENT MOTIONS - 13 Case 4:19-cv-05202-EFS ECF No. 13 filed 08/10/20 PageID.946 Page 14 of 24 1 analyst.54 In May 2015, Dr. Chau approved Plaintiff to work in bookkeeper and 2 receptionist’s jobs.55 3 Here, the ALJ reviewed Dr. Chau’s treatment notes and noted that Plaintiff 4 was ambulatory without an assistive device.56 The ALJ also noted that Dr. Chau’s 5 treatment notes showed Plaintiff was in no distress, without pain behavior, and 6 had a slight limp in the right side of his gait.57 7 Plaintiff argues Dr. Chau opined many employment restrictions, including a 8 complete inability to work.58 However, the record reflects Dr. Chau temporarily 9 opined Plaintiff could not work as a driver, and that after work hardening therapy 10 for a phlebotomist was unsuccessful, opined Plaintiff could work in a more 11 sedentary work environment as a receptionist or bookkeeper.59 Plaintiff fails to 12 point to anything in the record that shows a “complete inability to work.”60 In 13 14 54 AR 402. 55 AR 400. 56 AR 114 (citing AR 395-419). 57 AR 114 (citing AR 395). 58 ECF No. 10 at 11. 59 AR 400. 60 Temporary limitations are not sufficient to meet the durational requirement for 15 16 17 18 19 20 21 a finding of disability. See 20 C.F.R. § 416.905(a) (recognizing a claimant must 22 have impairments expected to last for a continuous period of not less than 12 23 ORDER RULING ON CROSS SUMMARY-JUDGMENT MOTIONS - 14 Case 4:19-cv-05202-EFS ECF No. 13 filed 08/10/20 PageID.947 Page 15 of 24 1 addition, Dr. Chau’s treatment notes support an RFC equal to or less restrictive 2 than the RFC the ALJ crafted.61 3 4 Plaintiff’s fails to establish the ALJ consequentially erred by failing to assign a weight analysis to Dr. Chau’s opinion. 5 4. 6 7 8 Plaintiff also argues the ALJ erred in failing to assign weight to Dr. Higgs’ opinion.62 Plaintiff is correct in that the ALJ failed to assign a weight to the opinion of Dr. Higgs, however, any error is harmless. 9 10 11 12 Dr. Oliver Higgs Dr. Higgs treated Plaintiff from 2009 to 2010.63 In 2009, Dr. Higgs performed an arthroscopy of Plaintiff’s right knee to repair a medial meniscus tear.64 On January 4, 2010, Dr. Higgs opined Plaintiff was able perform modified duties from January 4, 2010 to present, with the following restrictions: never climb 13 14 months; 42 U.S.C. § 423(d)(1)(A); Carmickle, 533 F.3d at 1165 (affirming ALJ’s 15 finding that treating physicians’ short term excuse from work was not indicative of 16 “claimant’s long term functioning.”). 17 61 AR 112 &118 compare with AR 400 & 575; see Turner v. Comm’r Soc. Sec. Admin., 18 613 F.3d 1217, 1223 (9th Cir. 2010) (An ALJ need not provide reasons for rejecting 19 a physician’s opinion where the ALJ incorporated them in the RFC.). 20 62 ECF No. 10 at 11. 63 AR 453-54, 466, & 472. 64 AR 453-54. 21 22 23 ORDER RULING ON CROSS SUMMARY-JUDGMENT MOTIONS - 15 Case 4:19-cv-05202-EFS ECF No. 13 filed 08/10/20 PageID.948 Page 16 of 24 1 ladders, squat, kneel, or crawl; occasionally twist, bend, or stoop; and no restriction 2 when sit, stand, walk, reach, work above shoulders, keyboard, wrist, grasp, fine 3 manipulation, and operate foot controls (left).65 In May 2010, Dr. Higgs opined 4 Plaintiff was temporarily unable to perform work as a Dial A Ride Driver for one 5 month.66 In July 2010, after an MRI showed a tear in the same meniscus, Dr. 6 Higgs performed a second arthroscopy of the right knee, which debrided the medial 7 meniscus and debrided the lateral meniscus. In September 2010, Dr. Higgs noted 8 Plaintiff was doing better after his second knee surgery and that he anticipated 9 releasing Plaintiff to full activities at work in October 2010.67 By November 2010, 10 Plaintiff had gone back to light duty work, and Dr. Higgs noted Plaintiff’s 11 symptoms were out of proportion with what he saw at the time of surgery and that 12 he did not think there was anything else he could do for Plaintiff.68 13 The ALJ erred when she did not discuss Dr. Higgs’ treatment history in her 14 analysis.69 However, any error was harmless. In conducting the harmless error 15 inquiry, “we must consider whether the ALJ’s failure to discuss the [evidence] was 16 17 65 AR 455. 66 AR 458. 67 AR 470. 68 AR 472. 69 See Garrison v. Colvin, 759 F.3d 995, 1012 (9th Cir. 2014) (citing Nguyen v. Chater, 18 19 20 21 22 100 F.3d 1462, 1464 (9th Cir. 1996)). 23 ORDER RULING ON CROSS SUMMARY-JUDGMENT MOTIONS - 16 Case 4:19-cv-05202-EFS ECF No. 13 filed 08/10/20 PageID.949 Page 17 of 24 1 inconsequential to the ultimate nondisability determination in the context of the 2 record as a whole.”70 Here, Dr. Higgs opined temporary work restrictions before 3 Plaintiff eventually returned to light duty work.71 In addition, any opined 4 restriction would not negate the ALJ’s ultimate nondisability determination. 5 Consequently, any error in failing to discuss Dr. Higgs’ opinion was harmless.72 6 5. 7 8 9 10 Plaintiff also argues the ALJ erred in failing to provide a weight analysis of the Physical Capacities Evaluation (PCE) conducted by Mr. Holle. Plaintiff is correct in that the ALJ failed to assign a weight to the PCE, however, any error is harmless. 11 12 13 14 15 16 Kirk Holle, P.T. On November 21, 2011, Mr. Holle performed a PCE on Plaintiff.73 The PCE demonstrated Plaintiff was able to sit for 30 to 45 minutes at a time, 8-hours in a day; stand for 15 to 30 minutes at a time, 4 hours in an 8-hour day; walk for 5 to 10 minutes at a time, 2 to 3 hours in an 8-hour day; lift 20 pounds from floor to waist occasionally, 25 pounds from waist to shoulder, and 15 pounds from shoulder to overhead; carry 10 pounds occasionally for 25 feet; and push with 35 pounds of 17 18 19 70 Molina, 674 F.3d at 1122 (quotation marks omitted). 71 See 20 C.F.R. § 416.905(a); 42 U.S.C. § 423(d)(1)(A); Carmickle, 533 F.3d at 1165. 72 See Molina, 674 F.3d at 1122. 73 AR 506-14. 20 21 22 23 ORDER RULING ON CROSS SUMMARY-JUDGMENT MOTIONS - 17 Case 4:19-cv-05202-EFS ECF No. 13 filed 08/10/20 PageID.950 Page 18 of 24 1 force and pull with 20 pounds of force occasionally.74 Based on the results of the 2 examination, Mr. Holle opined Plaintiff was able to work 8 hours per day in a job 3 that requires sedentary to light physical demand.75 4 Testifying medical expert H.C. Alexander, II, M.D. gave the PCE little 5 weight because it is not considered a reliable source, and in his experience as a 6 rheumatologist, PCEs are very subjective.76 After reviewing the longitudinal 7 record, including the PCE, Dr. Alexander opined Plaintiff could stand up to 4 hours 8 total in an 8-hour workday, up to 20 minutes at a time; walk up to two hours total 9 in an 8-hour work day, up to 20 minutes at a time; and occasionally bend, stoop, 10 and climb ramps and stairs, but never crouch crawl, knee, or climb ladders, ropes 11 or scaffolds.77 The ALJ gave Dr. Alexander’s opinion great weight – Plaintiff does 12 not challenge this.78 13 14 Plaintiff fails to show how these limitations are more restrictive than the limitations in the RFC.79 15 16 17 74 AR 513. 75 Id. 76 AR 39. 77 AR 31-34. 78 AR 116. 18 19 20 21 22 79 See Turner, 613 F.3d at 1223. 23 ORDER RULING ON CROSS SUMMARY-JUDGMENT MOTIONS - 18 Case 4:19-cv-05202-EFS ECF No. 13 filed 08/10/20 PageID.951 Page 19 of 24 1 6. 2 Plaintiff argues the ALJ erred in assigning any weight to Ms. Friese’s and Dr. 3 Amanda Friese, PA-C and William Kalichman, M.D. Kalichman’s opinions.80 4 On November 30, 2015, Ms. Friese opined Plaintiff could return to work 5 immediately with no restrictions.81 Ms. Friese noted Plaintiff had both asthma and 6 rheumatoid arthritis, and took Humera, which treats Plaintiff’s RA by decreasing 7 the response of his immune system. Ms. Friese also noted that Plaintiff taking 8 Humera “caus[ed] him to be more susceptible to infection and also contributes to 9 poor healing from infections.”82 10 11 On September 23, 2016, Dr. Kalichman, who treated Plaintiff for bronchitis, opined Plaintiff should remain out of school/work until September 28, 2016.83 12 The ALJ gave great weight to Ms. Friese’s and Dr. Kalichman’s opinions 13 because they were familiar with Plaintiff’s limitations as his treating provider and 14 their opinions were consistent with the objective medical evidence.84 Plaintiff 15 contends that Ms. Friese’s and Dr. Kalichman’s opinions “seem[] irrelevant” to the 16 claim, thus do not warrant a weight analysis. However, beyond objecting that a 17 18 80 ECF No. 10 at 12. 81 AR 539. 82 Id. 83 AR 540. 84 AR 116. 19 20 21 22 23 ORDER RULING ON CROSS SUMMARY-JUDGMENT MOTIONS - 19 Case 4:19-cv-05202-EFS ECF No. 13 filed 08/10/20 PageID.952 Page 20 of 24 1 weight was assigned to Ms. Friese’s and Dr. Kalichman’s opinions, Plaintiff has not 2 argued that the opinions were in error. The ALJ’s decision “will only be disturbed if 3 it is not supported by “substantial evidence or it is based on legal error.”85 And 4 “[w]here evidence is susceptible to more than one rational interpretation, it is the 5 ALJ’s conclusion that must be upheld.”86 Plaintiff failed to identify a legal error 6 with respect to the ALJ’s weighing of Ms. Friese’s and Dr. Kalichman’s opinions. 7 B. 8 Plaintiff’s Symptom Reports: Plaintiff fails to establish error. Plaintiff argues the ALJ failed to provide valid reasons for rejecting his 9 symptom reports. When examining a claimant’s symptom reports, the ALJ must 10 make a two-step inquiry. “First, the ALJ must determine whether there is objective 11 medical evidence of an underlying impairment which could reasonably be expected 12 to produce the pain or other symptoms alleged.”87 Second, “[i]f the claimant meets 13 the first test and there is no evidence of malingering, the ALJ can only reject the 14 claimant’s testimony about the severity of the symptoms if [the ALJ] gives ‘specific, 15 clear and convincing reasons’ for the rejection.”88 Here, the ALJ found Plaintiff’s 16 17 85 Magallanes v. Bowen, 881 F.2d 747, 750 (9th Cir. 1989) (internal quotation marks 18 omitted). 19 86 Burch v. Barnhard, 400 F.3d 676, 679 (9th Cir. 2005). 87 Molina, 674 F.3d at 1112. 88 Ghanim v. Colvin, 763 F.3d 1154, 1163 (9th Cir. 2014) (quoting Lingenfelter, 504 20 21 22 F.3d at 1036). 23 ORDER RULING ON CROSS SUMMARY-JUDGMENT MOTIONS - 20 Case 4:19-cv-05202-EFS ECF No. 13 filed 08/10/20 PageID.953 Page 21 of 24 1 statements concerning the intensity, persistence, and limiting effects of his 2 symptoms inconsistent with the objective medical evidence and other evidence in 3 the record.89 4 Plaintiff argues the ALJ did not provide specific reasons to discount 5 Plaintiff’s reported symptoms. However, the ALJ is not required to recite “magic 6 words” to indicate why she discounted Plaintiff’s reported symptoms.90 When 7 evidence reasonably supports confirming the ALJ’s decision, the reviewing court 8 may not substitute its own judgment for that of the ALJ.91 As to the ALJ’s finding 9 that Plaintiff’s symptom reports were inconsistent with the objective medical 10 evidence, symptom reports cannot be solely discounted on the grounds that they 11 were not fully corroborated by the objective medical evidence.92 However, objective 12 medical evidence is a relevant factor in considering the severity of the reported 13 symptoms. 93 Here, the ALJ summarized the medical evidence, highlighting that 14 15 89 AR 113. 90 See Magallanes, 881 F.2d at 755 (The reviewing court is “not deprived of our 16 17 faculties for drawing specific legitimate references from the ALJ’s opinion.”). 18 91 Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999). 92 See Rollins v. Massanari, 261 F.3d 853, 857 (9th Cir. 2001). 93 Id. “Objective medical evidence” means signs, laboratory findings, or both. 20 19 20 21 C.F.R. § 416.902(k). In turn, “signs” is defined as: 22 23 one or more anatomical, physiological, or psychological abnormalities that can be observed, apart from [the claimant’s] statements ORDER RULING ON CROSS SUMMARY-JUDGMENT MOTIONS - 21 Case 4:19-cv-05202-EFS ECF No. 13 filed 08/10/20 PageID.954 Page 22 of 24 1 the examinations and imaging showed Plaintiff was ambulatory without assistive 2 devices, mild reduced flexion of his wrist but no synovitis, limited motion in his 3 right knee but a smooth gait and intact sensations, no evidence of nerve root 4 compression, and normal range of motion of his back with diffused tenderness.94 5 This was a relevant factor for the ALJ to consider. 6 The ALJ also accounted for the medical opinion evidence when weighing 7 Plaintiff’s symptom reports. The ALJ discussed the opinions of agency reviewing 8 expert Dr. Staley and testifying expert Dr. Alexander, gave great weight to their 9 opinions – opinions Plaintiff did not contest – and adopted most of their findings 10 because they were consistent with the record as a whole.95 Regarding Plaintiff’s 11 allegations of physical limitations, Dr. Staley opined Plaintiff was capable of light 12 exertional work, could stand or walk up to 2 hours in an 8-hour day; sit up to 6 13 14 (symptoms). Signs must be shown by medically clinical diagnostic techniques. 15 16 Id. § 416.902(l). Evidence obtained from the “application of a medically acceptable 17 clinical diagnostic technique, such as evidence of reduced joint motion, muscle 18 spasm, sensory deficits, or motor disruption” is considered objective medical 19 evidence. 3 Soc. Sec. Law & Prac. § 36:26, Consideration of objective medical 20 evidence (2019). 21 94 AR 364-65, 368, 370, 395, 545-46, & 555. 95 AR 116. 22 23 ORDER RULING ON CROSS SUMMARY-JUDGMENT MOTIONS - 22 Case 4:19-cv-05202-EFS ECF No. 13 filed 08/10/20 PageID.955 Page 23 of 24 1 hours in an 8-hour workday; occasionally balance stoop, kneel, crouch, crawl, and 2 climb ramps and stairs; never climb ladders, ropes, or scaffolds; frequent handling 3 and fingering; occasionally lift and/or carry 20 pounds; and frequently lift and/or 4 carry 10 pounds.96 As previously explained, Dr. Alexander opined similar 5 limitations.97 In short, the medical opinions did not support Plaintiff’s subjective 6 claim that he cannot engage in work within the limitations of his RFC 7 assessment.98 8 The ALJ’s decision to discount Plaintiff’s reported symptoms is upheld on 9 this record. 10 C. 11 Step Five: Plaintiff fails to establish error. Plaintiff argues that the ALJ’s hypothetical failed to consider the limitations 12 set forth by his providers and Plaintiff’s symptom testimony. However, this 13 argument merely restates Plaintiff’s earlier allegations of error, which are not 14 15 16 17 18 96 AR 97-98. 97 AR 31-34. 98 Roberts v. Colvin, No. 2:12-CV-01456-JO, 2013 WL 5819092, at *4 (D. Or. Oct. 19 20 21 29, 2013) (upholding the ALJ assessing the medical opinion evidence of agency 22 reviewing experts when discounting the plaintiff’s reported symptoms). 23 ORDER RULING ON CROSS SUMMARY-JUDGMENT MOTIONS - 23 Case 4:19-cv-05202-EFS ECF No. 13 filed 08/10/20 PageID.956 Page 24 of 24 1 supported by the record.99 Accordingly, the ALJ’s hypothetical properly accounted 2 for the limitations supported by the record.100 3 V. Conclusion 4 Accordingly, IT IS HEREBY ORDERED: 5 1. Plaintiff’s Motion for Summary Judgment, ECF No. 10, is DENIED. 6 2. The Commissioner’s Motion for Summary Judgment, ECF No. 11, is 7 GRANTED. 8 3. The Clerk’s Office shall enter JUDGMENT in favor of Defendant. 9 4. The case shall be CLOSED. 10 IT IS SO ORDERED. The Clerk’s Office is directed to file this Order and 11 provide copies to all counsel. 12 DATED this 10th day of August 2020. 13 s/Edward F. Shea EDWARD F. SHEA Senior United States District Judge 14 15 16 17 99 Plaintiff also argues Dr. Alexander had incomplete evidence when he provided 18 an RFC, thus his RFC was incomplete. However, Plaintiff does not challenge the 19 great weight given to Dr. Alexander’s opinion, thus, any challenges are waived. See 20 Carmickle v. Comm’r Soc. Sec. Admin., 533 F.3d 1155, 1161 n.2 (9th Cir. 2008). 21 100 See Magallanes, 881 F.2d at 756–57 (holding it is proper for the ALJ to limit a 22 hypothetical to those restrictions supported by substantial evidence in the record). 23 ORDER RULING ON CROSS SUMMARY-JUDGMENT MOTIONS - 24
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