Cheetham v. Colvin (previously Astrue), No. 2:2012cv00455 - Document 24 (E.D. Wash. 2014)

Court Description: DECISION AND ORDER denying ECF NO. 16 Plaintiff's Motion for Summary Judgment and granting ECF No. 20 Defendant's Motion for Summary Judgment. CLOSE FILE. Signed by Magistrate Judge Victor E. Bianchini. (PH, Case Administrator)

Download PDF

1 2 3 4 UNITED STATES DISTRICT COURT 5 EASTERN DISTRICT OF WASHINGTON 6 7 8 9 10 Case No. 12-CV-00455 (VEB) JOSIE CRUZ CHEETHAM, Plaintiff, DECISION AND ORDER vs. 11 CAROLYN W. COLVIN, Acting Commissioner of Social Security, 12 Defendant. 13 14 15 16 17 18 19 20 I. INTRODUCTION In August of 2010, Plaintiff Josie Cruz Cheetham applied for Disability Insurance Benefits under the Social Security Act. The Commissioner of Social Security denied the application. Plaintiff, represented by the Law Offices of Calbom & Schwab, PSC, Randy J. Fair, Esq., of counsel, commenced this action seeking judicial review of the 1 DECISION AND ORDER CHEETHAM v COLVIN 12-CV-00455-VEB 1 Commissioner s denial of benefits pursuant to 42 U.S.C. §§ 405 (g) and 1383 (c)(3). 2 The parties consented to the jurisdiction of a United States Magistrate Judge. 3 (Docket No. 7). 4 On February 3, 2014, the Honorable Rosanna Malouf Peterson, Chief United 5 States District Judge, referred this case to the undersigned pursuant to 28 U.S.C. § 6 636(b)(1)(A) and (B). (Docket No. 23). 7 II. BACKGROUND 8 9 The procedural history may be summarized as follows: 10 On August 31, 2010, Plaintiff applied for disability insurance benefits, 11 alleging disability beginning May 30, 2001. (T at 147-55).1 The application was 12 denied initially and Plaintiff requested a hearing before an Administrative Law 13 Judge ( ALJ ). 14 Palachuk. (T at 45). Plaintiff appeared with an attorney and testified. (T at 61-70). 15 The ALJ also received testimony from Diane Kramer, a vocational expert (T at 71- 16 73) and Dr. Minh D. Vu, a medical expert (T at 50-71). During the hearing, Plaintiff 17 amended her alleged onset date to December 31, 2006. (T at 25). On October 19, 2011, a hearing was held before ALJ Marie 18 19 20 1 Citations to ( T ) refer to the administrative record at Docket Nos. 11, 12, and 13. 2 DECISION AND ORDER CHEETHAM v COLVIN 12-CV-00455-VEB 1 On November 23, 2011, ALJ Palachuk issued a written decision denying the 2 application for benefits and finding that Plaintiff was not disabled within the 3 meaning of the Social Security Act. (T at 22-38). The ALJ s decision became the 4 Commissioner s final decision on May 9, 2012, when the Social Security Appeals 5 Council denied Plaintiff s request for review. (T at 1-6). 6 On July 2, 2012, Plaintiff, acting by and through her counsel, timely 7 commenced this action by filing a Complaint in the United States District Court for 8 the Eastern District of Washington. (Docket No. 5). The Commissioner interposed 9 an Answer on September 7, 2012. (Docket No. 10). 10 Plaintiff filed a motion for summary judgment with supporting memorandum 11 of law on January 7, 2013. (Docket No. 16, 17). The Commissioner moved for 12 summary judgment on February 19, 2013. (Docket No. 20). As noted above, the 13 parties consented to the jurisdiction of a Magistrate Judge. (Docket No. 7). 14 15 For the reasons set forth below, the Commissioner s motion is granted, Plaintiff s motion is denied, and this case is closed. 16 17 18 19 20 3 DECISION AND ORDER CHEETHAM v COLVIN 12-CV-00455-VEB III. DISCUSSION 1 2 A. Sequential Evaluation Process 3 The Social Security Act ( the Act ) defines disability as the inability to 4 engage in any substantial gainful activity by reason of any medically determinable 5 physical or mental impairment which can be expected to result in death or which has 6 lasted or can be expected to last for a continuous period of not less than twelve 7 months. 42 U.S.C. §§ 423(d)(1)(A), 1382c(a)(3)(A). The Act also provides that a 8 plaintiff shall be determined to be under a disability only if any impairments are of 9 such severity that a plaintiff is not only unable to do previous work but cannot, 10 considering plaintiff s age, education and work experiences, engage in any other 11 substantial work which exists in the national economy. 42 U.S.C. §§ 423(d)(2)(A), 12 1382c(a)(3)(B). Thus, the definition of disability consists of both medical and 13 vocational components. Edlund v. Massanari, 253 F.3d 1152, 1156 (9th Cir. 2001). 14 The Commissioner has established a five-step sequential evaluation process 15 for determining whether a person is disabled. 20 C.F.R. §§ 404.1520, 416.920. Step 16 one determines if the person is engaged in substantial gainful activities. If so, 17 benefits are denied. 20 C.F.R. §§ 404. 1520(a)(4)(i), 416.920(a)(4)(i). If not, the 18 decision maker proceeds to step two, which determines whether plaintiff has a 19 medially severe impairment or combination of impairments. 20 C.F.R. §§ 20 4 DECISION AND ORDER CHEETHAM v COLVIN 12-CV-00455-VEB 1 404.1520(a)(4)(ii), 416.920(a)(4)(ii). 2 If plaintiff does not have a severe impairment or combination of impairments, 3 the disability claim is denied. If the impairment is severe, the evaluation proceeds to 4 the third step, which compares plaintiff s impairment with a number of listed 5 impairments acknowledged by the Commissioner to be so severe as to preclude 6 substantial gainful activity. 20 C.F.R. §§ 404.1520(a)(4)(iii), 416.920(a)(4)(iii); 20 7 C.F.R. § 404 Subpt. P App. 1. If the impairment meets or equals one of the listed 8 impairments, plaintiff is conclusively presumed to be disabled. If the impairment is 9 not one conclusively presumed to be disabling, the evaluation proceeds to the fourth 10 step, which determines whether the impairment prevents plaintiff from performing 11 work which was performed in the past. If a plaintiff is able to perform previous work 12 that plaintiff is deemed not disabled. 20 C.F.R. §§ 404.1520(a)(4)(iv), 13 416.920(a)(4)(iv). At this step, plaintiff s residual functional capacity (RFC) is 14 considered. If plaintiff cannot perform past relevant work, the fifth and final step in 15 the process determines whether plaintiff is able to perform other work in the national 16 economy in view of plaintiff s residual functional capacity, age, education and past 17 work experience. 20 C.F.R. §§ 404.1520(a)(4)(v), 416.920(a)(4)(v); Bowen v. 18 Yuckert, 482 U.S. 137 (1987). 19 20 The initial burden of proof rests upon plaintiff to establish a prima facie case 5 DECISION AND ORDER CHEETHAM v COLVIN 12-CV-00455-VEB 1 of entitlement to disability benefits. Rhinehart v. Finch, 438 F.2d 920, 921 (9th Cir. 2 1971); Meanel v. Apfel, 172 F.3d 1111, 1113 (9th Cir. 1999). The initial burden is 3 met once plaintiff establishes that a mental or physical impairment prevents the 4 performance of previous work. The burden then shifts, at step five, to the 5 Commissioner to show that (1) plaintiff can perform other substantial gainful 6 activity and (2) a significant number of jobs exist in the national economy that 7 plaintiff can perform. Kail v. Heckler, 722 F.2d 1496, 1498 (9th Cir. 1984). 8 B. Standard of Review 9 Congress has provided a limited scope of judicial review of a Commissioner s 10 decision. 42 U.S.C. § 405(g). A Court must uphold a Commissioner s decision, 11 made through an ALJ, when the determination is not based on legal error and is 12 supported by substantial evidence. See Jones v. Heckler, 760 F.2d 993, 995 (9th Cir. 13 1985); Tackett v. Apfel, 180 F.3d 1094, 1097 (9th Cir. 1999). The [Commissioner s] 14 determination that a plaintiff is not disabled will be upheld if the findings of fact are 15 supported by substantial evidence. Delgado v. Heckler, 722 F.2d 570, 572 (9th Cir. 16 1983)(citing 42 U.S.C. § 405(g)). Substantial evidence is more than a mere scintilla, 17 Sorenson v. Weinberger, 514 F.2d 1112, 1119 n 10 (9th Cir. 1975), but less than a 18 preponderance. McAllister v. Sullivan, 888 F.2d 599, 601-02 (9th Cir. 1989). 19 Substantial evidence means such evidence as a reasonable mind might accept as 20 6 DECISION AND ORDER CHEETHAM v COLVIN 12-CV-00455-VEB 1 adequate to support a conclusion. Richardson v. Perales, 402 U.S. 389, 401 2 (1971)(citations omitted). [S]uch inferences and conclusions as the [Commissioner] 3 may reasonably draw from the evidence will also be upheld. Mark v. Celebreeze, 4 348 F.2d 289, 293 (9th Cir. 1965). On review, the Court considers the record as a 5 whole, not just the evidence supporting the decision of the Commissioner. Weetman 6 v. Sullivan, 877 F.2d 20, 22 (9th Cir. 1989)(quoting Kornock v. Harris, 648 F.2d 525, 7 526 (9th Cir. 1980)). 8 It is the role of the Commissioner, not this Court, to resolve conflicts in 9 evidence. Richardson, 402 U.S. at 400. If evidence supports more than one rational 10 interpretation, the Court may not substitute its judgment for that of the 11 Commissioner. Tackett, 180 F.3d at 1097; Allen v. Heckler, 749 F.2d 577, 579 (9th 12 Cir. 1984). Nevertheless, a decision supported by substantial evidence will still be 13 set aside if the proper legal standards were not applied in weighing the evidence and 14 making the decision. Brawner v. Secretary of Health and Human Services, 839 F.2d 15 432, 433 (9th Cir. 1987). Thus, if there is substantial evidence to support the 16 administrative findings, or if there is conflicting evidence that will support a finding 17 of either disability or nondisability, the finding of the Commissioner is conclusive. 18 Sprague v. Bowen, 812 F.2d 1226, 1229-30 (9th Cir. 1987). 19 20 7 DECISION AND ORDER CHEETHAM v COLVIN 12-CV-00455-VEB 1 C. Commissioner s Decision 2 The ALJ found that Plaintiff had not engaged in substantial gainful activity 3 since December 31, 2006, the amended alleged onset date, and last met the insured 4 status requirements of the Social Security Act on that date. (T at 27). The ALJ 5 determined that Plaintiff s asthma, headaches, hypertension with chest pain, history 6 of hypothyroidism, mild osteoarthritis, and ulnar neuropathy were impairments 7 considered severe under the Act. (Tr. 27-28). 8 However, the ALJ concluded that, as of the date last insured, Plaintiff did not 9 have an impairment or combination of impairments that met or medically equaled 10 one of the impairments set forth in the Listings. (T at 28-29). The ALJ determined 11 that, as of the date last insured, Plaintiff retained the residual functional capacity 12 ( RFC ) to perform light work, as defined in 20 CFR § 416.967 (b), except that she 13 could never climb ladders, ropes or scaffolds and should avoid concentrated 14 exposure to extreme temperatures, humidity, respiratory irritants, and hazards such 15 as heights and moving machinery. (T at 29-33). The ALJ further found that, as of 16 the date last insured, Plaintiff was capable of performing her past relevant work as a 17 general ledger bookkeeper. (T at 33-34). 18 As such, the ALJ concluded that Plaintiff was not disabled within the meaning 19 of the Social Security Act as of the date last insured and was therefore not entitled to 20 8 DECISION AND ORDER CHEETHAM v COLVIN 12-CV-00455-VEB 1 benefits. (Tr. 34). As noted above, the ALJ s decision became the Commissioner s 2 final decision on May 9, 2012, when the Appeals Council denied Plaintiff s request 3 for review. (Tr. 1-6). 4 D. Plaintiff s Arguments 5 Plaintiff contends that the Commissioner s decision should be reversed. She 6 offers three (3) main arguments in support of this position. First, Plaintiff argues 7 that certain of her conditions should have been considered severe impairments. 8 Second, Plaintiff challenges the ALJ s credibility determination. 9 contends that the ALJ did not properly assess the opinion of a treating physician. 10 Third, she This Court will address each argument in turn. 11 IV. ANALYSIS 12 13 A. Severity of Impairments 14 At step two of the sequential evaluation process, the ALJ must determine 15 whether the claimant has a severe impairment. See 20 C.F.R. §§ 404.1520(c), 16 416.920(c). The fact that a claimant has been diagnosed with and treated for a 17 medically determinable impairment does not necessarily mean the impairment is 18 severe, as defined by the Social Security Regulations. See, e.g., Fair v. Bowen, 19 885 F.2d 597, 603 (9th Cir. 1989); Key v. Heckler, 754 F.2d 1545, 1549-50 (9th Cir. 20 9 DECISION AND ORDER CHEETHAM v COLVIN 12-CV-00455-VEB 1 1985). To establish severity, the evidence must show the diagnosed impairment 2 significantly limits a claimant's physical or mental ability to do basic work activities 3 for at least 12 consecutive months. 20 C.F.R. § 416.920(c). 4 The step two analysis is a screening device designed to dispose of de minimis 5 complaints. Smolen v. Chater, 80 F.3d 1273, 1290 (9th Cir. 1996). [A]n impairment 6 is found not severe . . . when medical evidence establishes only a slight abnormality 7 or a combination of slight abnormalities which would have no more than a minimal 8 effect on an individual s ability to work. Yuckert v. Bowen, 841 F.2d 303 (9th Cir. 9 1988) (quoting SSR 85-28). The claimant bears the burden of proof at this stage and 10 the severity requirement cannot be satisfied when medical evidence shows that the 11 person has the ability to perform basic work activities, as required in most jobs. 12 SSR 85-28. Basic work activities include: walking, standing, sitting, lifting, 13 pushing, pulling, reaching, carrying, or handling; seeing, hearing, speaking; 14 understanding, carrying out and remembering simple instructions; responding 15 appropriately to supervision, coworkers, and usual work situation. Id. 16 The ALJ determined that Plaintiff s asthma, headaches, hypertension with 17 chest pain, history of hypothyroidism, mild osteoarthritis, and ulnar neuropathy were 18 impairments considered severe under the Act. (Tr. 27-28). Plaintiff contends that 19 her chronic sinus disease, rhinitis, diverticulitis, irritable bowel syndrome, and 20 10 DECISION AND ORDER CHEETHAM v COLVIN 12-CV-00455-VEB 1 ovarian cysts should also have been considered severe impairments. This Court 2 finds no reversible error as to this aspect of the ALJ s decision. 3 Plaintiff was diagnosed with chronic rhinitis (an irritation and inflammation of 4 the mucous membrane inside the nose) and sinusitis. (T at 247, 256-57). Dr. Donald 5 Paugh, a treating physician, reported that Plaintiff was a reasonable candidate for 6 endoscopic sinus surgery and opined that Plaintiff s sinus disease and . . . pattern 7 of sinus infection could exacerbate her asthma a bit more. (T at 283). However, 8 Plaintiff does not point to any opinion evidence suggesting work-related limitations 9 arising from these impairments. In fact, the conditions were generally described as 10 causing mild symptoms (e.g. a little bit of sinus pressure; mild upper respiratory 11 congestion ). (T at 247, 251, 256, 263, 279). 12 aggravated Plaintiff s asthma, that condition was already deemed to be severe by the 13 ALJ (T at 27) and limitations related to that condition were incorporated into the 14 residual functional capacity determination (i.e. the requirement that Plaintiff avoid 15 concentrated exposures to respiratory irritants). (T at 29). In so far as these impairments 16 In October of 2006, Dr. Charles Bricker, a treating physician, diagnosed 17 diverticulitis and recommended a colonoscopy and high fiber diet. (T at 275). He 18 also noted that Plaintiff s complaints of diarrhea sound[ed] like irritable bowel 19 [syndrome]. (T at 275). Dr. Bricker also reported the presence of ovarian cysts, but 20 11 DECISION AND ORDER CHEETHAM v COLVIN 12-CV-00455-VEB 1 described them as stable and recommended that Plaintiff wait several months for 2 reevaluation. (T at 275). Plaintiff notes that she was admitted to the hospital with 3 complaints of pain related to her ovarian cysts (T at 362), but this admission 4 occurred in November of 2005, prior to the alleged onset date. 5 With regard to irritable bowel syndrome, the evidence indicates that this 6 condition was chronic and existed prior to the alleged onset date. (T at 275, 280-81, 7 286-87). 8 condition with over-the-counter fiber products (e.g. Metamucil or Benefiber) and 9 anti-diarrheal medicine (e.g. Imodium). (T at 287-88). In December of 2006, Dr. Gail Feinman recommended treating the 10 Ultimately, Plaintiff does not point to evidence of sustained work-related 11 limitations arising from any these impairments. In other words, Plaintiff does not 12 cite any medical evidence suggesting that her periodic symptoms of diverticulitis, 13 diarrhea, or ovarian cysts caused more than a minimal limitation in her ability to 14 perform basic work-related activities prior to the date last insured. 15 Moreover, even if the ALJ should have found one or more of these 16 impairments to be severe, because she considered all of the impairments and 17 completed the sequential evaluation process, any arguable error was harmless. See 18 Lewis v. Astrue, 498 F.3d 909, 911 (9th Cir. 2007)( Even assuming that the ALJ 19 erred in neglecting to list the bursitis at Step 2, any error was harmless. ); Dickey v. 20 12 DECISION AND ORDER CHEETHAM v COLVIN 12-CV-00455-VEB 1 Colvin, No. CV-12-3028, 2013 U.S. Dist. LEXIS 169319, at *9 (E.D.Wa. Nov. 27, 2 2013)( Additionally, because the ALJ proceeded beyond step two to consider Mr. 3 Dickey's residual functional capacity in steps 3 and 4, the ALJ did not commit 4 reversible error. ). Accordingly, this Court finds no reversible error with regard to 5 the ALJ s step two analysis. 6 B. Credibility 7 A claimant s subjective complaints concerning his or her limitations are an 8 important part of a disability claim. See Batson v. Comm r of Soc. Sec. Admin., 359 9 F.3d 1190, 1195 (9th Cir. 2004)(citation omitted). The ALJ s findings with regard to 10 the claimant s credibility must be supported by specific cogent reasons. Rashad v. 11 Sullivan, 903 F.2d 1229, 1231 (9th Cir. 1990). Absent affirmative evidence of 12 malingering, the ALJ s reasons for rejecting the claimant s testimony must be clear 13 and convincing. Lester v. Chater, 81 F.3d 821, 834 (9th Cir. 1995). General 14 findings are insufficient: rather the ALJ must identify what testimony is not credible 15 and what evidence undermines the claimant s complaints. Lester, 81 F.3d at 834; 16 Dodrill v. Shalala, 12 F.3d 915, 918 (9th Cir. 1993). 17 However, subjective symptomatology cannot be the sole basis for a finding of 18 disability. A claimant must present medical evidence or findings that the existence 19 of an underlying condition could reasonably be expected to produce the 20 13 DECISION AND ORDER CHEETHAM v COLVIN 12-CV-00455-VEB 1 symptomatology alleged. See 42 U.S.C. §§423(d)(5)(A), 1382c (a)(3)(A); 20 C.F.R. 2 § 404.1529(b), 416.929; SSR 96-7p. 3 In this case, Plaintiff testified as follows: In late 2006, she had total body 4 pain and was not able to get out of bed. (T at 61-62). She was wearing hand 5 splints. (T at 62). Her hand pain was so extreme that she was unable to write. (T at 6 62). She could not do any lifting, carrying, or cooking. (T at 63). Her ability to 7 perform household chores, attend to personal care needs, and leave the home was 8 very limited. (T at 67, 69-70). Her movement was limited by foot pain. (T at 68). 9 The ALJ found that Plaintiff s medically determinable impairments could 10 reasonably be expected to cause the alleged symptoms, but that her statements 11 concerning the intensity, persistence, and limiting effects of those symptoms were 12 not fully credible. (T at 30). The ALJ offered several reasons in support of her 13 decision to discount Plaintiff s credibility. A part of the ALJ s rationale was a report 14 that, in August of 2005, Plaintiff had been working hard, remodeling her house. (T 15 at 272). Plaintiff notes (correctly) that the remodeling occurred more than a year 16 before the alleged onset date and, as such, was not necessarily inconsistent with 17 Plaintiff s current claims of disabling pain. The probative value of a single report of 18 activity from more than a year prior to the alleged onset date is certainly limited. 19 However, any error by the ALJ in relying on this evidence was harmless. The ALJ 20 14 DECISION AND ORDER CHEETHAM v COLVIN 12-CV-00455-VEB 1 cited numerous other reasons in support of her decision to discount Plaintiff s 2 credibility and these reasons provide substantial evidence sufficient to sustain the 3 ALJ s decision. 4 First, the evidence from Plaintiff s treating providers did not support her claim 5 of disabling limitations. No treating provider opined that Plaintiff had significant 6 limitations during the time period at issue. In December of 2006, Dr. Charles 7 Bricker reported that Plaintiff complained of diarrhea, but noted that she had 8 experienced the problem for several years. (T at 280). He suspected irritable bowel 9 syndrome. (T at 281). Dr. Bricker diagnosed sinusitis, but noted that the condition 10 was pretty well cleared through the use of antibiotics. (T at 280). He noted that 11 Plaintiff suffered from asthma and recommended that she resume use of her inhaler. 12 (T at 281). Later that month, Dr. Donald Paugh diagnosed chronic sinus disease and 13 suggested that Plaintiff would be a reasonable candidate for endoscopic sinus 14 surgery. (T at 283). He suggested the use of topical corticosteroids and saline for 15 Plaintiff s nose, but otherwise made no further recommendations and did not assess 16 any work-related limitations. (T at 283). On December 27, 2006, Dr. Gail R. 17 Feinman reported that Plaintiff s husband had inquired about disability benefits. (T 18 at 286). Dr. Feinman explained that she did not see any particular reason why 19 [Plaintiff] should be on disability. (T at 286). Dr. Feinman s physical examination 20 15 DECISION AND ORDER CHEETHAM v COLVIN 12-CV-00455-VEB 1 yielded generally normal findings. (T at 287). She recommended x-rays in response 2 to Plaintiff s complaints of wrist discomfort, but Plaintiff said she did not want any 3 treatment. (T at 288). In August of 2007, Dr. John Mitchell opined that Plaintiff s 4 pain symptoms might be magnified by depression, but Plaintiff denied that she was 5 depressed. (T at 326). Plaintiff asked Dr. Mitchell to complete forms in support of 6 her application for disability benefits, but the doctor explained that he believed she 7 was not impaired. (T at 325). 8 Second, the opinions of the non-examining review physicians also contradict 9 Plaintiff s claims and support the ALJ s decision. In October of 2010, Dr. Norman 10 Staley opined that Plaintiff could occasionally lift/carry 20 pounds, frequently lift 10 11 pounds, stand/walk/sit for about 6 hours in an 8-hour workday. (T at 294). Dr. 12 Staley found that Plaintiff should avoid concentrated exposure to temperature 13 extremes, wetness and humidity, vibration, respiratory irritants, and hazards. (T at 14 297). 15 November of 2010 in which he affirmed Dr. Staley s assessment. (T at 337). Dr. 16 Minh D. Vu, a medical expert, reviewed Plaintiff s medical record and testified at 17 the administrative hearing. Dr. Vu opined that Plaintiff s impairments did not meet 18 any of the impairments set forth in the Listings during the relevant time period. (T at 19 51). Dr. Vu found that Plaintiff was capable of light work, with occasional lifting of 20 16 Dr. Howard Platter, another review physician, provided an opinion in DECISION AND ORDER CHEETHAM v COLVIN 12-CV-00455-VEB 1 30 pounds, frequent lifting of 10 pounds, and frequent walking or sitting for 6 hours 2 in an 8-hour workday. (T at 51). Dr. Vu opined that Plaintiff was limited to 3 occasional climbing of scaffolds, ropes, and ladders and should avoid concentrated 4 exposure to fumes, odors, and air pollution. (T at 51-52). 5 In light of the foregoing, this Court finds no reversible error in the ALJ s 6 credibility assessment. It is the province of the ALJ to make credibility 7 determinations. Andrews v. Shalala, 53 F.3d 1035, 1039 (9th Cir. 1995). The lack of 8 supporting medical evidence is a proper basis for discounting a claimant s 9 credibility. Burch v. Barnhart, 400 F.3d 676, 680 (9th Cir. 2005). Moreover, the 10 opinions of non-examining review physicians may be accepted as substantial 11 evidence where, as here, they are consistent with the overall medical record. See 12 Henderson v. Astrue, 634 F. Supp. 2d 1182, 1190 (E.D.W.A. 2009) (citing Andrews 13 v. Shalala, 53 F.3d 1035, 1043 (9th Cir. 1995)). Although the ALJ s citation of the 14 remodeling [of her house] evidence was dubious given the timeframe, the ALJ 15 provide ample additional reasons to support her credibility determination and these 16 reasons were sufficient under the applicable standard of review. 17 C. Treating Physician s Opinion 18 In disability proceedings, a treating physician s opinion carries more weight 19 than an examining physician s opinion and an examining physician s opinion is 20 17 DECISION AND ORDER CHEETHAM v COLVIN 12-CV-00455-VEB 1 given more weight than that of a non-examining physician. Benecke v. Barnhart, 2 379 F.3d 587, 592 (9th Cir. 2004); Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 3 1995). If the treating or examining physician s opinions are not contradicted, they 4 can be rejected only for clear and convincing reasons. Lester, 81 F.3d at 830. If 5 contradicted, the opinion can only be rejected for specific and legitimate reasons 6 supported by substantial evidence in the record. Andrews v. Shalala, 53 F.3d 1035, 7 1043 (9th Cir. 1995). 8 In October of 2011, Dr. Shawn Nixon, a treating physician, opined that 9 Plaintiff was limited to working 2 hours per day and would miss 2-4 days of work 10 per month. (T at 494). 11 unscheduled breaks of about 10 minutes or more 4-5 times per day and was limited 12 to lifting no more than 10 pounds frequently. (T at 494). Dr. Nixon further found that Plaintiff would need 13 Plaintiff notes that the ALJ did not reference Dr. Nixon s opinion in her 14 decision. The Commissioner concedes this omission. (Docket No. 20, at p. 10). 15 Without in any way diminishing the importance of discussing the opinion of a 16 treating provider, this Court finds that the ALJ s omission does not require remand. 17 To qualify for disability insurance benefits, a claimant must establish 18 disability on or before the date last insured. See 42 U.S.C. § 423 (c); 20 CFR § 19 404.1520. The claimant bears the burden of proof on this point. See Morgan v. 20 18 DECISION AND ORDER CHEETHAM v COLVIN 12-CV-00455-VEB 1 Sullivan, 945 F.2d 1079, 1080-81 (9th Cir. 1991). There is no dispute in this case 2 that the date last insured was December 31, 2006. (T at 27). Dr. Nixon s opinion 3 was rendered in October of 2011, nearly five (5) years after the date last insured. He 4 did not even begin treating Plaintiff until February of 2011. (T at 74). The ALJ was 5 aware of Dr. Nixon s opinion and asked Plaintiff about it during the administrative 6 hearing (T at 74), so there is good reason to believe she considered the opinion even 7 though no reference is made to it in the decision. (T at 74). Although the ALJ 8 should certainly have discussed the opinion, her failure to do so does not provide a 9 reason for remand. The opinion was rendered long after the date last insured, the 10 physician did not treat Plaintiff during the relevant time period, there is no indication 11 that the limitations existed during that period, and (most importantly) the records 12 from Plaintiff s treating providers and the medical review physicians during the 13 relevant time period (as outlined above) are extensive and supportive of the ALJ s 14 assessment. While medical conditions both before the alleged onset of a disability 15 or after the date last insured can be relevant to a disability determination, the 16 remoteness of the condition reported by Dr. Nixon is too remote to be relevant in 17 this case. The Commissioner s decision may be affirmed where, as here, there is 18 substantial evidence supporting the decision and the ALJ s error or omission does 19 not undermine the ultimate non-disability determination. See Carmickle v. Comm'r, 20 19 DECISION AND ORDER CHEETHAM v COLVIN 12-CV-00455-VEB 1 Soc. Sec. Admin., 533 F.3d 1155, 1162 (9th Cir. 2008); Stout v. Comm'r, 454 F.3d 2 1050, 1055 (9th Cir. 2006); Batson v. Comm'r, 359 F.3d 1190, 1195-97 (9th Cir. 3 2004). 4 V. CONCLUSION 5 After carefully reviewing the administrative record, this Court finds that 6 substantial evidence supports the Commissioner s decision, including the objective 7 medical evidence and supported medical opinions prior to the date last insured. This 8 Court finds no reversible error and because substantial evidence supports the 9 Commissioner s decision, the Commissioner is GRANTED summary judgment and 10 that Plaintiff s motion for judgment summary judgment is DENIED. 11 12 13 14 15 16 17 18 19 20 20 DECISION AND ORDER CHEETHAM v COLVIN 12-CV-00455-VEB VI. ORDERS 1 2 IT IS THEREFORE ORDERED that: 3 Plaintiff s motion for summary judgment, Docket No. 16, is DENIED. 4 The Commissioner s motion for summary judgment, Docket No. 20, is 5 GRANTED. 6 The District Court Executive is directed to file this Decision and Order, 7 provide copies to counsel, enter judgment in favor of the Commissioner and 8 CLOSE the file. 9 DATED this 24th day of March, 2014. 10 11 12 /s/Victor E. Bianchini VICTOR E. BIANCHINI UNITED STATES MAGISTRATE JUDGE 13 14 15 16 17 18 19 20 21 DECISION AND ORDER CHEETHAM v COLVIN 12-CV-00455-VEB

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

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