McInturff v. Colvin, No. 1:2014cv03001 - Document 23 (E.D. Wash. 2014)

Court Description: ORDER GRANTING DEFENDANTS MOTION FOR SUMMARY JUDGMENT. Plaintiffs Motion for Summary Judgment ECF No. 18 is DENIED. Defendants Motion for Summary Judgment ECF No. 19 is GRANTED. The file is CLOSED. Signed by Judge Thomas O. Rice. (LLH, Courtroom Deputy)

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McInturff v. Colvin Doc. 23 1 2 3 4 5 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF WASHINGTON 6 7 ALICIA D. McINTURFF, NO: 1:14-CV-3001-TOR Plaintiff, 8 v. 9 10 11 ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT CAROLYN W. COLVIN, Acting Commissioner of Social Security Administration, 12 Defendant. 13 BEFORE THE COURT are the parties’ cross-motions for summary 14 judgment. ECF Nos. 18, 19. Plaintiff is represented by D. James Tree. Defendant 15 is represented by Nicole A. Jabaily. The Court has reviewed the administrative 16 record and the parties’ completed briefing and is fully informed. For the reasons 17 discussed below, the Court grants Defendant’s motion and denies Plaintiff’s 18 motion. 19 // 20 // ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 1 Dockets.Justia.com 1 2 3 4 5 JURISDICTION The Court has jurisdiction over this case pursuant to 42 U.S.C. §§ 405(g), 1383(c)(3). STANDARD OF REVIEW A district court’s review of a final decision of the Commissioner of Social 6 Security is governed by 42 U.S.C. § 405(g). The scope of review under §405(g) is 7 limited: the Commissioner’s decision will be disturbed “only if it is not supported 8 by substantial evidence or is based on legal error.” Hill v. Astrue, 698 F.3d 1153, 9 1158 (9th Cir. 2012). “Substantial evidence” means relevant evidence that “a 10 reasonable mind might accept as adequate to support a conclusion.” Id. at 1159 11 (quotation and citation omitted). Stated differently, substantial evidence equates to 12 “more than a mere scintilla[,] but less than a preponderance.” Id. (quotation and 13 citation omitted). In determining whether this standard has been satisfied, a 14 reviewing court must consider the entire record as a whole rather than searching 15 for supporting evidence in isolation. Id. 16 In reviewing a denial of benefits, a district court may not substitute its 17 judgment for that of the Commissioner. If the evidence in the record “is 18 susceptible to more than one rational interpretation, [the court] must uphold the 19 ALJ’s findings if they are supported by inferences reasonably drawn from the 20 record.” Molina v. Astrue, 674 F.3d 1104, 1111 (9th Cir. 2012). Further, a district ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 2 1 court “may not reverse an ALJ’s decision on account of an error that is harmless.” 2 Id. at 1111. An error is harmless “where it is inconsequential to the [ALJ’s] 3 ultimate nondisability determination.” Id. at 1115 (quotation and citation omitted). 4 The party appealing the ALJ’s decision generally bears the burden of establishing 5 that it was harmed. Shinseki v. Sanders, 556 U.S. 396, 409–10 (2009). 6 FIVE-STEP SEQUENTIAL EVALUATION PROCESS 7 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 20 work activity. 20 C.F.R. § 416.920(a)(4)(i). If the claimant is engaged in ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 3 1 “substantial gainful activity,” the Commissioner must find that the claimant is not 2 disabled. 20 C.F.R. § 416.920(b). 3 If the claimant is not engaged in substantial gainful activities, 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 11 not disabled. Id. At step three, the Commissioner compares the claimant's impairment to 12 several impairments recognized by the Commissioner to be so severe as to 13 preclude a person from engaging in substantial gainful activity. 20 C.F.R. 14 § 416.920(a)(4)(iii). If the impairment is as severe as or more severe than one of 15 the enumerated impairments, the Commissioner must find the claimant disabled 16 and award benefits. 20 C.F.R. § 416.920(d). 17 If the severity of the claimant’s impairment does meet or exceed the severity 18 of the enumerated impairments, the Commissioner must pause to assess the 19 claimant's “residual functional capacity.” Residual functional capacity (“RFC”), 20 defined generally as the claimant’s ability to perform physical and mental work ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 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 work experience. Id. If the claimant is capable of adjusting to other work, the 14 Commissioner must find that the claimant is not disabled. 20 C.F.R. 15 § 416.920(g)(1). If the claimant is not capable of adjusting to other work, the 16 analysis concludes with a finding that the claimant is disabled and is therefore 17 entitled to benefits. Id. 18 The claimant bears the burden of proof at steps one through four above. 19 Lockwood v. Comm’r of Soc. Sec. Admin., 616F.3d 1068, 1071 (9th Cir. 2010). If 20 the analysis proceeds to step five, the burden shifts to the Commissioner to ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 5 1 establish that (1) the claimant is capable of performing other work; and (2) such 2 work “exists in significant numbers in the national economy.” 20 C.F.R. 3 § 416.960(c)(2); Beltran v. Astrue, 700 F.3d 386, 389 (9th Cir. 2012). 4 5 ALJ FINDINGS Plaintiff filed an application for supplemental security income on May 24, 6 2010. Tr. 22, 139–46. Plaintiff’s claim was denied initially and on 7 reconsideration. Tr. 82–85, 89–90. Plaintiff requested a hearing before an ALJ 8 which was held on June 6, 2012. Tr. 36–71. The ALJ rendered a decision denying 9 Plaintiff supplemental security income on August 29, 2012. Tr. 22–31. 10 At step one, the ALJ found that Plaintiff had not engaged in substantial 11 gainful activity since May 24, 2010, the application date. Tr. 24. At step two, the 12 ALJ found that Plaintiff had the following severe impairment: degenerative disk 13 disease with disk herniations. Id. At step three, the ALJ found that Plaintiff did 14 not have an impairment or combination of impairments that met or medically 15 equaled a listed impairment. Tr. 25. 16 The ALJ then concluded that Plaintiff’s had the RFC to 17 perform a less than full range of sedentary work as defined in 20 CFR 416.967(a). The claimant can lift and carry up to 10 pounds, stand and/or walk for 2 hours in an 8-hour workday, and sit in 1-hour increments up to 8 hours in an 8-hour workday. She can occasionally perform balancing, stooping, kneeling, crouching, and climbing of ramps and stairs but is limited to no climbing of ropes, ladders, or scaffolds and no crawling. The claimant should avoid work at unprotected heights or around dangerous moving machinery. She 18 19 20 ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 6 1 should further avoid exposure to extremes of temperature changes, extremes of cold or heat, and moderate exposure to vibration. She can remember, understand, and carry out simple and detailed, but not complex, tasks or instructions typical of occupations with a situational vocational preparation (SVP) of 1 or 2. 2 3 4 Tr. 25–26. The ALJ found, at step four, that Plaintiff was unable to perform any 5 past relevant work. Tr. 29–30. At step five, the ALJ found that, considering 6 Plaintiff’s age, education, work experience, and RFC, there exist significant 7 numbers of jobs in the national economy that Plaintiff could perform in 8 representative occupations such as assembly and packaging. Tr. 30–31. On that 9 basis, the ALJ concluded that Plaintiff was not disabled as defined in the Social 10 Security Act. Tr. 31. 11 The Appeals Council denied Plaintiff’s request for review on November 7, 12 2013, making the ALJ’s decision the Commissioner’s final decision for purposes 13 of judicial review. Tr. 1–6; 20 C.F.R. §§ 404.981, 416.1484, 422.210. 14 ISSUES 15 Plaintiff essentially raises two issues for review. Plaintiff argues that the 16 ALJ erred by rejecting Plaintiff’s testimony based upon erroneous credibility 17 findings. ECF No. 18 at 13–19. Plaintiff also argues that the ALJ erred by failing 18 to consider or improperly rejecting four medical opinions. ECF No. 18 at 4–13. 19 // 20 // ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 7 1 2 3 DISCUSSION A. Plaintiff’s Credibility Plaintiff contends that the ALJ erred by rejecting Plaintiff’s subjective 4 complaints about the severity of impairments caused by her back pain. ECF No. 5 18 at 13. Plaintiff argues that the ALJ based her credibility determination upon 6 “erroneous credibility findings,” and that were Plaintiff’s testimony credited, as 7 Plaintiff contends it should have been, “it becomes clear that the claimant is 8 incapable of working on a regular and continuing basis and thus is disabled 9 according to the statutory definition.” Id. at 13, 19. 10 In social security proceedings, a claimant must prove the existence of a 11 physical or mental impairment with “medical evidence consisting of signs, 12 symptoms, and laboratory findings.” 20 C.F.R. §§ 416.908, 416.927. A claimant’s 13 statements about his or her symptoms alone will not suffice. 20 C.F.R. §§ 14 416.908, 416.927. Once an impairment has been proven to exist, an ALJ “may not 15 reject a claimant’s subjective complaints based solely on a lack of objective 16 medical evidence to fully corroborate the alleged severity of pain.” Bunnell v. 17 Sullivan, 947 F.2d 341, 345 (9th Cir. 1991) (en banc). As long as the impairment 18 “could reasonably be expected to produce [the] symptoms,” the claimant may offer 19 a subjective evaluation as to the severity of the impairment. Id. This rule 20 ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 8 1 recognizes that the severity of a claimant’s symptoms “cannot be objectively 2 verified or measured.” Id. at 347 (quotation and citation omitted). 3 However, an ALJ may conclude that the claimant’s subjective assessment is 4 unreliable, so long as the ALJ makes “a credibility determination with findings 5 sufficiently specific to permit [a reviewing] court to conclude that the ALJ did not 6 arbitrarily discredit claimant's testimony.” Thomas v. Barnhart, 278 F.3d 947, 958 7 (9th Cir. 2002); see also Bunnell, 947 F.2d at 345 (“[A]lthough an adjudicator may 8 find the claimant's allegations of severity to be not credible, the adjudicator must 9 specifically make findings which support this conclusion.”). In making such a 10 determination, the ALJ may consider, inter alia: (1) the claimant’s reputation for 11 truthfulness; (2) inconsistencies in the claimant’s testimony or between her 12 testimony and her conduct; (3) the claimant’s daily living activities; (4) the 13 claimant’s work record; and (5) testimony from physicians or third parties 14 concerning the nature, severity, and effect of the claimant’s condition. Thomas, 15 278 F.3d at 958. If there is no evidence of malingering, the ALJ’s reasons for 16 discrediting the claimant's testimony must be “specific, clear and convincing.” 17 Chaudhry v. Astrue, 688 F.3d 661, 672 (9th Cir. 2012) (quotation and citation 18 omitted). The ALJ “must specifically identify the testimony she or he finds not to 19 be credible and must explain what evidence undermines the testimony.” Holohan 20 v. Massanari, 246 F.3d 1195, 1208 (9th Cir. 2001). ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 9 1 Here, the ALJ found that the medical evidence confirmed the existence of 2 degenerative disk disease and ongoing chronic pain. Tr. 26–27. The ALJ did not 3 credit Plaintiff’s testimony about the severity of her pain and its impact on her 4 functional capacity. There is no evidence of malingering in this case, and therefore 5 the Court must determine whether the ALJ provided clear and convincing reasons 6 not to credit Plaintiff’s testimony of the limiting effect of her chronic pain. 7 Chaudhry, 688 F.3d at 672. The Court concludes that the ALJ did provide clear 8 and convincing reasons. 9 First, the ALJ found that the while the objective medical evidence confirmed 10 the presence of chronic pain, “the records contain no objective findings that 11 corroborate [Plaintiff’s] allegations of disabling functional limitations.” Tr. 27. 12 The ALJ noted that Plaintiff’s physical examinations showed ongoing tenderness 13 in the lumbar spine with pain on extension and flexion, but “no focal weakness or 14 atrophy in the extremities, with normal reflexes throughout.” Tr. 27, 285. The 15 ALJ noted that in a December 2009 examination, Dr. Daniel Kwon found Plaintiff 16 had a “mildly positive straight leg raise test, but not classic with radicular pain but 17 rather just kind of radiating symptoms in the posterior thighs.” Tr. 27, 285. 18 Examinations in April and July 2011 showed negative straight leg testing and 19 normal heel to toe walking. Tr. 27, 281, 282. Plaintiff’s primary care physician, 20 ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 10 1 Dr. Natalia Luera, consistently noted that Plaintiff had normal gait and station and 2 was not in apparent distress. Tr. 27, 234, 235, 236, 237. 3 Indeed, the ALJ found that the medical records supported a conclusion that 4 Plaintiff’s pain was well managed by her medications. Tr. 27. An independent 5 review of the record confirms the ALJ’s finding that Plaintiff’s physicians 6 repeatedly noted that her medication was effective in controlling her pain level and 7 keeping it stable. E.g., Tr. 273, 281, 282 (“A combination of her medications does 8 seem to control her medical problems, give her moderate relief of her pain itself, 9 and give her the ability to function.”). In both March and May 2011, Plaintiff told 10 her treating physicians that the pain medication was working well. Tr. 27, 419 11 (May 2011), 465 (March 2011). 1 12 1 13 The ALJ also relied on Plaintiff’s reported activities of camping, huckleberry and 14 mushroom picking, attending a gardening club, and swimming that were 15 inconsistent with someone claiming total disability. Tr. 28. Plaintiff contends this 16 was in error because a claimant need not be “utterly incapacitated” to meet the 17 definition of disabled. ECF No. 13 at 16 (quoting Vertigan v. Halter, 260 F.3d 18 1044, 1050 (9th Cir. 2001)). But those activities, the ALJ found, were inconsistent 19 with Plaintiff’s level of claimed disability and consistent with the finding that her 20 pain medications allow her to perform daily activities without significant pain. ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 11 1 “While subjective pain testimony cannot be rejected on the sole ground that 2 it is not fully corroborated by objective medical evidence, the medical evidence is 3 still a relevant factor in determining the severity of the claimant’s pain and its 4 disabling effects.” Rollins v. Massanari, 261 F.3d 853, 857 (9th Cir. 2001). 5 Moreover, “[c]ontradiction in the medical record is a sufficient basis for rejecting 6 the claimant’s subjective testimony.” Carmickle v. Comm'r, Soc. Sec. Admin., 533 7 F.3d 1155, 1161 (9th Cir. 2008). The ALJ did not err by basing her credibility 8 determination, in part, upon the objective medical evidence which did not support 9 the debilitating pain Plaintiff subjectively claimed, but in fact contradicted it. 10 Second, the ALJ found Plaintiff’s statements about her usage of pain 11 medications were inconsistent with her drug screening. Tr. 28. Drug screenings of 12 Plaintiff were negative for Oxycodone in January, February, and March 2012, as 13 well as in December 2009 and March 2010. Tr. 252, 253, 432, 433, 434. While 14 Plaintiff tested positive in April and May 2010 (Tr. 250, 251), the ALJ found the 15 multiple negative tests suggested that “the claimant may have overstated her 16 symptoms as they were not of such severity as to require the use of [her 17 prescription] narcotics . . . .” Tr. 28. An ALJ may properly rely upon 18 inconsistencies in a claimant’s claimed limitations and a claimant’s conduct. 19 Thomas, 278 F.3d at 958–59. The ALJ found Plaintiff’s failure to take her 20 medications was inconsistent with her claimed level of pain. Such an inadequately ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 12 1 explained failure to follow a prescribed course of treatment “can cast doubt on the 2 sincerity of the claimant’s pain testimony.” Fair v. Brown, 885 F.2d 597, 603 (9th 3 Cir. 1989). The ALJ did not err in relying upon these inconsistencies in weighing 4 Plaintiff’s credibility. 5 The ALJ also found that Plaintiff’s work history reflected a “pattern of 6 marginal intermittent and part-time work . . . indicating that her impairments may 7 not be the sole reason for her current inability to sustain full-time competitive 8 employment, and that a lack of interest in working, unrelated to any medical 9 condition, may account for her current lack of employment.” Tr. 28. In support of 10 this conclusion, the ALJ relied upon two sections of the record in which Plaintiff, 11 first, requested a note from her physician stating that she could not work because 12 of her pain and so she could take care of her daughter, Tr. 245, and, second, where 13 Plaintiff reported it was hard for her to figure out how to work with a high-needs 14 four-year-old child at home, Tr. 267. Plaintiff objects to the ALJ’s conclusion 15 because “[t]here is no evidence [Plaintiff] lied about her pain to stay home with her 16 daughter but merely made her doctor aware of her situation.” ECF No. 18 at 18. 17 The ALJ inferred from Plaintiff’s sporadic work history—which she does 18 not contest—and from Plaintiff’s comments about wanting to stay home with her 19 child, that her lack of employment was not due solely to Plaintiff’s medical 20 impairments. Despite Plaintiff’s protestations, the ALJ’s inference was not ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 13 1 unreasonable, and must therefore be upheld. See, e.g., Batson v. Comm'r of Soc. 2 Sec. Admin., 359 F.3d 1190, 1193 (9th Cir. 2004) (“[T]he Commissioner's findings 3 are upheld if supported by inferences reasonably drawn from the record.”); 4 Thomas, 278 F.3d at 959 (stating an ALJ may consider both work history and 5 inconsistent statements). The ALJ’s credibility determination was based upon 6 specific, clear, and convincing reasons sufficient for this Court to conclude that the 7 determination was not arbitrary. See Thomas, 278 F.3d at 958–59. As such, the 8 ALJ properly evaluated and rejected Plaintiff’s testimony. 9 B. Medical Opinions 10 Plaintiff also contends the ALJ erred in rejecting the opinions of four 11 medical providers. A treating physician’s opinions are entitled to substantial 12 weight in social security proceedings. Bray v. Comm’r of Soc. Sec. Admin., 554 13 F.3d 1219, 1228 (9th Cir.2009). If a treating or examining physician’s opinion is 14 uncontradicted, an ALJ may reject it only by offering “clear and convincing 15 reasons that are supported by substantial evidence.” Bayliss v. Barnhart, 427 F.3d 16 1211, 1216 (9th Cir. 2005). However, the ALJ need not accept a physician’s 17 opinion that is “brief, conclusory and inadequately supported by clinical findings.” 18 Bray, 554 F.3d at 1228 (quotation and citation omitted). An ALJ may also reject a 19 treating physician’s opinion which is “based to a large extent on a claimant’s self- 20 ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 14 1 reports that have been properly discounted as incredible.” Tommasetti v. Astrue, 2 533 F.3d 1035, 1041 (9th Cir. 2008) (internal and quotation and citation omitted). 3 1. Dr. Natalia Luera 4 Dr. Natalia Luera was Plaintiff’s treating physician. Tr. 29. In July 2012, 5 Dr. Luera opined that Plaintiff would need to lie down two or three times per day 6 for forty-five to seventy-five minutes each time because of Plaintiff’s chronic pain. 7 Tr. 503. The ALJ gave little weight to this opinion because it was based on 8 Plaintiff’s subjective complaints made that same day. Tr. 29, 502 (“The patient 9 states she must lie down 2–3 x per day for 45–75 minutes each session due to 10 increased pain.”). The ALJ discounted Plaintiff’s subjective statements as 11 incredible, and may properly assign little weight to Dr. Luera’s opinion which is 12 based upon Plaintiff’s self-reporting. Tommasetti, 533 F.3d at 1041. The ALJ also 13 assigned Dr. Luera’s opinion little weight because it was inconsistent with her 14 overall opinion. Tr. 29. Dr. Luera opined that Plaintiff’s condition would not 15 deteriorate from regular and continuous work, though Plaintiff may miss three days 16 a month due to her medical condition. Tr. 504. As the ALJ noted, Dr. Luera 17 provided no clinical support for the limitations listed. Tr. 29. The Court’s 18 independent review of the record confirms that the treatment notes make no 19 mention of such a debilitating limitation. Contrary to Plaintiff’s assertion, the ALJ 20 did not reject Dr. Luera’s opinion merely because Dr. Luera considered subjective ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 15 1 symptoms in her analysis. ECF No. 18 at 6. The ALJ accepted portions of the 2 opinion, but rejected the portion that was both inconsistent with the record and 3 founded only upon Plaintiff’s subjective complaints. 4 5 The ALJ did not err in rejecting Dr. Luera’s conclusory opinion that was inadequately supported by the record. See Bray, 554 F.3d at 1228. 6 2. Dr. Jennifer Lentz 7 The ALJ gave limited weight to the opinion of Dr. Jennifer Lentz that 8 Plaintiff was only capable of sedentary work from one to ten hours per week. Tr. 9 29. The ALJ did not credit this opinion because it was entered upon a disability 10 form that Dr. Lentz filled out alongside Plaintiff, indicating that Dr. Lentz may 11 have been relying more on Plaintiff’s subjective complaints than on objective 12 clinical findings. Tr. 29, 206–08, 240. Plaintiff contends that Dr. Lentz’s opinion 13 is not based upon Plaintiff’s subjective statements, but upon the MRI results. ECF 14 No. 18 at 8. 15 Plaintiff’s MRI and x-ray results confirm the ALJ’s finding that Plaintiff 16 suffered from degenerative disk disease. However, these results alone do not 17 confirm the severity of Plaintiff’s limitations. The ALJ agreed with Dr. Lentz in 18 part and found that Plaintiff was limited to a sedentary RFC assessment. Tr. 29. 19 But, the ALJ concluded that a more severe limitation was inconsistent with the 20 medical record. Plaintiff has not pointed to any clinical findings or treatment notes ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 16 1 of Dr. Lentz that would indicate that Plaintiff was as severely limited in her 2 functional capacity as indicated on the disability form. Thus, the ALJ did not err in 3 assigning limited weight to an opinion unsupported by clinical evidence and which 4 opinion appears to be based on Plaintiff’s subjective complaints that have been 5 discounted. 6 3. Dr. Daniel Kwon 7 Plaintiff asserts that the ALJ failed to consider the findings and opinions of 8 Dr. Daniel Kwon. ECF No. 18 at 10. Specifically, Plaintiff argues that Dr. 9 Kwon’s opinions support Dr. Luera’s and Dr. Lentz’s opinions and that his finding 10 of “chronic lumbalgia” should have been listed as a step two severe impairment. 11 ECF No. 18 at 11. In reply, Plaintiff again contends the ALJ failed to discuss or 12 weigh the medical findings and opinions of Dr. Kwon. ECF No. 22 at 4. 13 Defendant argues the ALJ did discuss Dr. Kwon’s findings, that Plaintiff 14 fails to show any limitations opined by Dr. Kwon that have not been incorporated 15 into the ALJ’s RFC assessment, and that “chronic lumbalgia” is another term for 16 low back pain, so it is not properly listed as an impairment, but rather a symptom. 17 ECF No. 19 at 16–17. 18 Dr. Kwon treated Plaintiff at the Water’s Edge Pain Relief Institute. See, 19 e.g.¸ Tr. 287. While the ALJ may not have cited Dr. Kwon by name, the ALJ 20 discussed and cited to the reports of Dr. Kwon and others at Water’s Edge by ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 17 1 reference to them in Exhibit 10F in the administrative record. Tr. 27–28. Plaintiff 2 has not otherwise identified any opinion of Dr. Kwon that has not been addressed 3 by the ALJ’s RFC assessment. 4 Plaintiff’s contention that “chronic lumbalgia” should have been considered 5 an impairment at step two is likewise harmless. Lumbalgia is literally lumbar 6 (lower back) pain. In this case, Plaintiff’s chronic lower back pain is a symptom of 7 her degenerative disk disease. It would not properly be considered a separate 8 impairment at step-two. But, the ALJ properly considered Plaintiff’s chronic pain 9 as a symptom of her impairment while determining Plaintiff’s RFC. Thus, no error 10 has been shown on this record. 11 4. Paul Schneider, Ph.D. 12 Plaintiff contends that the ALJ also erred by failing to consider the opinion 13 of Paul Schneider, Ph.D., who performed a psychological evaluation of Plaintiff in 14 December 2010. ECF No. 18 at 12. Specifically, Plaintiff contends that the ALJ 15 failed to consider that Dr. Schneider diagnosed her with a mood disorder in 16 addition to chronic pain syndrome. Id. 17 18 19 20 Defendant counters that the ALJ did cite to Dr. Schneider’s opinion and that Plaintiff has failed to show any harmful error. ECF No. 19 at 17–18. Dr. Schneider’s single report was included as part of Plaintiff’s Water’s Edge reports and treatment notes in Exhibit 10F (Tr. 266–70), and was cited twice ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 18 1 by the ALJ in his findings. Tr. 28. Dr. Schneider opined that Plaintiff suffered 2 from “[m]ood disorder, not otherwise specified.” Tr. 270. The ALJ did not 3 specifically discuss these findings of Dr. Schneider’s. While Plaintiff raised no 4 challenge to the ALJ’s step-two evaluation of her alleged mental impairments, the 5 ALJ discussed, at step-two, Plaintiff’s alleged mental impairments. Tr. 24. The 6 ALJ found that although Plaintiff “alleged disability due to depression, treatment 7 records show [Plaintiff] to receive no more than medication management from her 8 primary care physician. She is not under the care of a mental health professional 9 nor is she undergoing counseling services.” Id. The ALJ gave significant weight 10 to the opinion of Jeff Teal, Ph.D., who performed a consultative examination of 11 Plaintiff, and concluded that her depressive symptoms would not significantly 12 interfere with sustained full-time employment. Tr. 24, 214. 13 Plaintiff has not identified anything in Dr. Schneider’s opinion—other than 14 the mood disorder diagnosis—that the ALJ failed to discuss. The Court’s review 15 of Dr. Schneider’s report confirms that the relevant, material evidence was 16 adequately discussed by the ALJ at step two. Plaintiff has failed to show how the 17 ALJ erred by not specifically discussing Dr. Schneider’s report in more detail. As 18 such, any error in not discussing Dr. Schneider’s report is harmless. 19 // 20 // ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 19 1 IT IS HEREBY ORDERED: 2 1. Plaintiff’s Motion for Summary Judgment (ECF No. 18) is DENIED. 3 2. Defendant’s Motion for Summary Judgment (ECF No. 19) is 4 5 6 7 GRANTED. The District Court Executive is hereby directed to file this Order, enter Judgment for Defendant, provide copies to counsel, and CLOSE the file. DATED December 30, 2014. 8 9 THOMAS O. RICE United States District Judge 10 11 12 13 14 15 16 17 18 19 20 ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 20

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