Lemley v. Colvin et al, No. 2:2013cv00299 - Document 43 (E.D. Wash. 2014)

Court Description: ORDER granting 38 Defendant's Motion for Summary Judgment. Plaintiff's 37 Motion for Summary Judgment and 33 Motion for Summary Judgment are denied. Signed by Magistrate Judge John T. Rodgers. (KW, Case Administrator)

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1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 EASTERN DISTRICT OF WASHINGTON 8 MAURIE LEMLEY, 9 Plaintiff, 10 11 No. 2:13-CV-0299-JTR ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT V. 12 CAROLYN W. COLVIN, 13 Commissioner of Social Security, 14 Defendant. 15 16 BEFORE THE COURT are Plaintiff Maurie Lemley’s (Plaintiff’s) 17 Motions for Summary Judgment, ECF No. 33, 37, and the Commissioner of Social 18 Security’s (Defendant’s) Cross-Motion for Summary Judgment, ECF No. 38. 19 Plaintiff is unrepresented and is thus proceeding pro se; Special Assistant United 20 States Attorney Jeffrey Eric Staples represents the Commissioner of Social 21 Security (Defendant). The parties have consented to proceed before a magistrate 22 judge. ECF No. 7. After considering the administrative record, briefs filed by the 23 parties, and the oral argument provided on April 14, 2014, the Court GRANTS 24 Defendant’s Motion for Summary Judgment and DENIES Plaintiff’s Motions for 25 Summary Judgment. 26 27 28 JURISDICTION Plaintiff protectively filed applications for Disability Insurance Benefits and Supplemental Security Income on June 2, 2010, alleging disability since April 1, ORDER GRANTING DEFENDANT’S MOTION . . . - 1 1 2010, due to hepatitis C with chronic muscle and joint pain; rheumatoid arthritis; 2 gout; and depression. Tr. 180. The applications were denied initially and upon 3 reconsideration. Administrative Law Judge (ALJ) Caroline Siderius held a hearing 4 on April 24, 2012, Tr. 26-63, and issued an unfavorable decision on June 11, 2012, 5 Tr. 71-82. The Appeals Council denied review on June 13, 2013. Tr. 11-17. The 6 ALJ’s June 2012 decision became the final decision of the Commissioner, which is 7 appealable to the district court pursuant to 42 U.S.C. § 405(g). Plaintiff filed this 8 action for judicial review on August 9, 2013. ECF No. 2, 5. 9 STATEMENT OF FACTS 10 The facts of the case are set forth in the administrative hearing transcript, the 11 ALJ’s decision, and the briefs of the parties. They are only briefly summarized 12 here. 13 Plaintiff was born on May 22, 1964, and was 45 years old on the alleged 14 onset date, April 1, 2010. Tr. 198. He completed the 10th grade in school, received 15 his GED and attended some college. Tr. 364. Plaintiff indicated he stopped 16 working on December 28, 2009, because he was “fired for something [he] did not 17 do.” Tr. 180. However, he asserts his impairments did not prevent him from 18 performing work until April 1, 2010. Tr. 180. Plaintiff testified at the 19 administrative hearing that he is not able to work because he gets too tired and 20 sore. Tr. 33. He stated if he tries to do physical tasks, like mow the lawn, he gets 21 so tired he may end up sleeping for 20 hours. Tr. 34. He also indicated he has 22 pain all over his body, including sharp pains in his joints. Tr. 34. Plaintiff testified 23 he gets depressed because he can no long do the things he used to be able to do. 24 Tr. 52. He stated he spends 18 hours a day lying down and is not able to do 25 anything other than sleep for eight hours in a day. Tr. 53-54. 26 Irvine S. Belzer, M.D., testified as a medical expert at the administrative 27 hearing. Dr. Belzer indicated Plaintiff has persistent hepatitis C, mild disc disease 28 of the lumbar spine, a history of obstructive airways disease, and a history of gout. ORDER GRANTING DEFENDANT’S MOTION . . . - 2 1 Tr. 36-37. Dr. Belzer stated that the treatment for hepatitis C can be very 2 debilitating, like chemotherapy, and the side effects can last for two to three 3 months. Tr. 38-39. Given the recent liver function tests in the record, Dr. Belzer 4 opined Plaintiff’s most recent treatment for hepatitis C had not been successful. 5 Tr. 39. Dr. Belzer testified there was no further treatment available to Plaintiff and 6 the hepatitis C disease could be progressive. Tr. 39. 7 8 9 STANDARD OF REVIEW The ALJ is responsible for determining credibility, resolving conflicts in medical testimony, and resolving ambiguities. Andrews v. Shalala, 53 F.3d 1035, 10 1039 (9th Cir. 1995). The ALJ’s determinations of law are reviewed de novo, 11 although deference is owed to a reasonable construction of the applicable statutes. 12 McNatt v. Apfel, 201 F.3d 1084, 1087 (9th Cir. 2000). The decision of the ALJ 13 may be reversed only if it is not supported by substantial evidence or if it is based 14 on legal error. Tackett v. Apfel, 180 F.3d 1094, 1097 (9th Cir. 1999). Substantial 15 evidence is defined as being more than a mere scintilla, but less than a 16 preponderance. Id. at 1098. Put another way, substantial evidence is such relevant 17 evidence as a reasonable mind might accept as adequate to support a conclusion. 18 Richardson v. Perales, 402 U.S. 389, 401 (1971). If the evidence is susceptible to 19 more than one rational interpretation, the court may not substitute its judgment for 20 that of the ALJ. Tackett, 180 F.3d at 1097; Morgan v. Commissioner of Social Sec. 21 Admin., 169 F.3d 595, 599 (9th Cir. 1999). Nevertheless, a decision supported by 22 substantial evidence will still be set aside if the proper legal standards were not 23 applied in weighing the evidence and making the decision. Brawner v. Secretary 24 of Health and Human Services, 839 F.2d 432, 433 (9th Cir. 1988). If substantial 25 evidence exists to support the administrative findings, or if conflicting evidence 26 exists that will support a finding of either disability or non-disability, the ALJ’s 27 determination is conclusive. Sprague v. Bowen, 812 F.2d 1226, 1229-1230 (9th 28 Cir. 1987). ORDER GRANTING DEFENDANT’S MOTION . . . - 3 1 2 SEQUENTIAL EVALUATION PROCESS The Commissioner has established a five-step sequential evaluation process 3 for determining whether a person is disabled. 20 C.F.R. §§ 404.1520(a), 4 416.920(a); see Bowen v. Yuckert, 482 U.S. 137, 140-142 (1987). In steps one 5 through four, the burden of proof rests upon the claimant to establish a prima facie 6 case of entitlement to disability benefits. Tackett, 180 F.3d at 1098-1099. This 7 burden is met once a claimant establishes that a physical or mental impairment 8 prevents him from engaging in his previous occupation. 20 C.F.R. §§ 9 404.1520(a)(4), 416.920(a)(4). If a claimant cannot do his past relevant work, the 10 ALJ proceeds to step five and the burden shifts to the Commissioner to show that 11 (1) the claimant can make an adjustment to other work, and (2) specific jobs exist 12 in the national economy which claimant can perform. Batson v. Commissioner of 13 Social Sec. Admin., 359 F.3d 1190, 1193-1194 (2004). If a claimant cannot make 14 an adjustment to other work in the national economy, a finding of “disabled” is 15 made. 20 C.F.R. §§ 404.1520(a)(4)(i-v), 416.920(a)(4)(i-v). 16 17 ADMINISTRATIVE DECISION The ALJ found Plaintiff had not engaged in substantial gainful activity since 18 April 1, 2010, the alleged onset date. Tr. 73. At step two, the ALJ determined 19 Plaintiff had the following severe impairments: hepatitis C, degenerative disc 20 disease of the lumbar spine, obstructive airway disease and depression. Tr. 73. 21 The ALJ specifically noted the medical record did not indicate a diagnosis of 22 fibromyalgia; therefore, fibromyalgia had not been established as a medially 23 determinable impairment. Tr. 74-75. At step three, the ALJ found Plaintiff’s 24 severe impairments did not meet or medically equal a listed impairment. Tr. 75. 25 The ALJ assessed Plaintiff’s RFC and determined Plaintiff could perform 26 light exertion level work with the following limitations: he can lift 25 pounds 27 occasionally and 10 pounds frequently; he can stand/walk for up to four hours a 28 day and sit for up to six hours a day; he is precluded from climbing ORDER GRANTING DEFENDANT’S MOTION . . . - 4 1 ropes/ladders/scaffolds but can occasionally climb stairs/ramps; he is able to 2 occasionally reach overhead; he is able to perform one to three step tasks; he can 3 have occasional contact with the public and coworkers; and he needs to avoid 4 odors, gases, dust and fumes. Tr. 76-77. At step four, the ALJ determined 5 Plaintiff was unable to perform his past relevant work as an injection mold 6 machine tender, a molding machine supervisor and a hand packager. Tr. 80. At 7 step five, the ALJ found that, considering Plaintiff’s age, education, work 8 experience and RFC, and based on the testimony of the vocational expert, Plaintiff 9 was able to perform work existing in significant numbers in the national economy. 10 Tr. 80-81. The ALJ thus determined that Plaintiff was not under a disability within 11 the meaning of the Social Security Act at any time from April 1, 2010, the alleged 12 onset date, through the date of the ALJ’s decision, June 11, 2012. Tr. 82. 13 ISSUES 14 The question presented is whether substantial evidence exists to support the 15 ALJ’s decision denying benefits and, if so, whether that decision is based on 16 proper legal standards. 17 Plaintiff asserts multiple errors by the ALJ and the Social Security 18 Administration. Tr. 33, 36, 37. He contends (1) a missing medical report from Dr. 19 Thomas R. Hull should have been provided; (2) the ALJ erred at step two by not 20 finding fibromyalgia and myofascial pain were severe impairments; (3) the ALJ 21 failed to properly consider the statements of lay witnesses; (4) the physical RFC 22 determination was improper; (5) the determination with respect to Plaintiff’s 23 credibility was flawed; and (6) the ALJ improperly relied on the medical opinions 24 of Drs. Belzer, Scottolini, Weir and Awbery. 25 26 DISCUSSION A. Dr. Thomas R. Hull 27 Plaintiff repeatedly argues that the medical report of Dr. Thomas R. Hull is 28 erroneously absent from the evidence of record. Plaintiff asserts “Social Security ORDER GRANTING DEFENDANT’S MOTION . . . - 5 1 did not provide the medical report from Dr. Thomas R. Hull to the ALJ. Which 2 made me look [untruthful] because I told the ALJ what he told me. But at that 3 time I didn’t know his name so I couldn’t prove which doctor said it.” ECF No. 33 4 at 2. On February 25, 2014, Defendant wrote to Plaintiff indicating information 5 about Plaintiff’s appointment with Dr. Hull had been discovered; however, 6 pursuant to the Privacy Act, 5 U.S.C. § 552a, Defendant was unable to discuss the 7 information with the Court without Plaintiff’s consent. ECF No. 37 at 10. 8 9 Plaintiff was apparently provided a consent form by Defendant, but has not provided Defendant with his consent. Plaintiff has thus been given the opportunity 10 to consent to disclosure regarding information pertaining to Dr. Hull, but has 11 declined to do so. ECF No. 38 at 24. Consequently, Defendant is prohibited from 12 discussing the information pursuant to the Privacy Act, 5 U.S.C. § 552a. ECF No. 13 38 at 24. In any event, Plaintiff has not specified what information would be 14 gleaned from a report by Dr. Hull or how the report would otherwise provide 15 support for Plaintiff’s Motion for Summary Judgment. The Court finds any 16 information pertaining to Dr. Hull has not been shown to be material to this case. 17 Accordingly, Plaintiff’s assertions with respect to a report by Dr. Hull are without 18 merit. 19 B. 20 21 Step Two Determination Plaintiff contends the ALJ erred by ignoring the diagnosis of fibromyalgia and dismissing Plaintiff’s myofascial pain syndrome. ECF No. 37 at 2, 5. 22 The undersigned finds it important to note at the outset that Plaintiff’s 23 application for disability benefits alleges disability due to hepatitis C with chronic 24 muscle and joint pain, rheumatoid arthritis, gout and depression. Tr. 180. 25 Although fibromyalgia and myofascial pain syndrome were discussed at the 26 administrative hearing, his application for disability does not allege fibromyalgia 27 or myofascial pain syndrome significantly limited his physical or mental ability to 28 work. ORDER GRANTING DEFENDANT’S MOTION . . . - 6 1 Plaintiff has the burden of proving he has a severe impairment at step two of 2 the sequential evaluation process. 42 U.S.C. § 423(d)(1)(A); 20 C.F.R. §§ 3 423(d)(1)(A), 416.912. In order to meet this burden, Plaintiff must furnish medical 4 and other evidence that shows that he has a severe impairment. 20 C.F.R. § 5 416.912(a). The regulations, 20 C.F.R. §§ 404.1520(c), 416.920(c), provide that 6 an impairment is severe if it significantly limits one’s ability to perform basic work 7 activities. An impairment is considered non-severe if it “does not significantly 8 limit your physical or mental ability to do basic work activities.” 20 C.F.R. §§ 9 404.1521, 416.921. 10 Step two is “a de minimis screening device [used] to dispose of groundless 11 claims,” Smolen v. Chater, 80 F.3d 1273, 1290 (9th Cir. 1996), and an ALJ may 12 find that a claimant lacks a medically severe impairment or combination of 13 impairments only when this conclusion is “clearly established by medical 14 evidence.” S.S.R. 85-28; Webb v. Barnhart, 433 F.3d 683, 686-687 (9th Cir. 15 2005). Applying the normal standard of review to the requirements of step two, 16 the Court must determine whether the ALJ had substantial evidence to find the 17 medical evidence clearly established Plaintiff did not have a medically severe 18 impairment. Yuckert v. Bowen, 841 F.2d 303, 306 (9th Cir. 1988) (“[d]espite the 19 deference usually accorded to the Secretary’s application of regulations, numerous 20 appellate courts have imposed a narrow construction upon the severity regulation 21 applied here.”); Webb, 433 F.3d at 687. 22 1. Fibromyalgia 23 The ALJ evaluated the evidence of record, considered the hearing testimony, 24 and concluded Plaintiff did not have a severe, medically determinable impairment 25 of fibromyalgia. Tr. 74-75. 26 The ALJ noted that although reference was made to fibromyalgia in the 27 record, the record did not reveal a diagnosis of fibromyalgia. Tr. 74. In fact, as 28 indicated by the ALJ, Douglas Duncan, PA-C, stated “[r]eported diagnosis of ORDER GRANTING DEFENDANT’S MOTION . . . - 7 1 fibromyalgia not supported on exam,” Tr. 74-75, 405, and the medical record 2 indicated Plaintiff’s tender point calculation was always either 1 or 0, Tr. 74, 382, 3 385, 405, 408. In claims in which there are no medical signs or laboratory findings 4 to substantiate the existence of a medically determinable impairment, the 5 individual must be found not disabled at step two of the sequential evaluation 6 process. Ukolov v. Barnhart, 420 F.3d 1002, 1005 (9th Cir. 2005). In this case, 7 the medical evidence of record is devoid of medical signs or laboratory findings to 8 substantiate the existence of fibromyalgia. Accordingly, the ALJ reasonably 9 concluded Plaintiff’s alleged fibromyalgia was not a severe, medically 10 determinable impairment. 11 2. 12 The ALJ did not find myofascial pain syndrome to be a severe, medically 13 Myofascial Pain determinable impairment in this case. Tr. 74-75. As with Plaintiff’s alleged fibromyalgia, there is no definitive diagnosis of 14 15 myofascial pain syndrome in the record. Although Ethan Angell, M.D., noted 16 myofascial pain syndrome in the “Assessment/Plan” portion of his March 28, 17 2012, medical report, Tr. 455, it is not apparent Dr. Angell intended to offer 18 myofascial pain syndrome as a diagnosis and no other medical provider of record 19 mentions myofascial pain syndrome. In any event, medical expert Dr. Belzer 20 testified that myofascial pain syndrome would refer to a complex symptomatology 21 where people have pain in certain muscles groups, often associated with previous 22 surgery or trauma, Tr. 44-45, and the ALJ’s RFC determination accounts for 23 Plaintiff’s limitations as a result of pain by limiting him to a restricted range of 24 light exertion level work, Tr. 76-77. 25 The ALJ did not err at step two of the sequential evaluation process by 26 finding Plaintiff did not have severe impairments of fibromyalgia and myofascial 27 pain syndrome. 28 /// ORDER GRANTING DEFENDANT’S MOTION . . . - 8 1 2 3 4 C. Lay Witness Testimony Plaintiff also complains that the ALJ discredited the testimony of his wife, Linda Lemley, and mother, Maureen Anderson. Tr. 33 at 3, 37 at 2. The ALJ shall “consider observations by non-medical sources as to how an 5 impairment affects a claimant’s ability to work.” Sprague v. Bowen, 812 F.2d 6 1226, 1232 (9th Cir. 1987), citing 20 C.F.R. § 404.1513(e)(2). The ALJ may not 7 ignore or improperly reject the probative testimony of a lay witness without 8 giving reasons that are germane to each witness. Dodrill v. Shalala, 12 F.3d 915, 9 919 (9th Cir. 1993) (emphasis added). 10 Plaintiff’s attorney indicated at the administrative hearing that Plaintiff’s 11 wife was available to testify, but would merely testify about what Plaintiff had 12 already said about his limitations and what Plaintiff had told her about his pain. 13 Tr. 60. In a letter dated November 1, 2010, Mrs. Lemley wrote that Plaintiff had 14 constant pain in his joints and muscles and experienced extreme exhaustion. Tr. 15 196. The information in this November 2010 letter parallels Plaintiff’s testimony. 16 The ALJ indicated at the administrative hearing that if Mrs. Lemley was just 17 going to reiterate what Plaintiff had said, her testimony would not be useful. Tr. 18 60. At that point, the ALJ asked Plaintiff if he had anything to add. Tr. 60. 19 Plaintiff did not, at that time, state concern that the ALJ chose to not solicit 20 testimony from Mrs. Lemley. Tr. 61. 21 Ms. Anderson provided a letter on Plaintiff’s behalf on November 2, 2010. 22 Tr. 195. She stated Plaintiff “has been in extreme pain and fatigued to the point of 23 being unable to do things he would normally do, such as work, keep his home in 24 shape and doing activities with friends and family.” Tr. 195. Again, this letter 25 merely echoes Plaintiff’s testimony of fatigue and pain. 26 The ALJ considered the written statements of Mrs. Lemley and Ms. 27 Anderson and gave them little weight because “these individuals [would not] know 28 if the claimant is in pain or how long he is in pain. Their statements simply reflect ORDER GRANTING DEFENDANT’S MOTION . . . - 9 1 what the claimant told them.” Tr. 80. Because the statements did not expound 2 upon Plaintiff’s testimony, the lay witness statements contained little probative 3 value. Accordingly, the ALJ did not err by giving little weight to the statements of 4 the lay witnesses in this case. Tr. 80. 5 D. 6 Physical RFC Determination Plaintiff contends the ALJ erred with respect to the physical RFC 7 determination in this case. Plaintiff specifically asserts the ALJ erred by according 8 weight to the opinions of Dr. Belzer, Dr. Scottolini, Dr. Weir and Dr. Awbery. 9 ECF No. 33 at 3, 37 at 6-7. 10 The ALJ noted that an August 24, 2010, examination by A. Peter Weir, 11 M.D., found that Plaintiff had no muscle weakness or atrophy and no areas of 12 decreased sensation. Tr. 78, 367. The ALJ noted Plaintiff “was observed 13 ambulating at a brisk pace without difficulty or apparent discomfort” both before 14 and after the examination. Tr. 78, 367. Dr. Weir opined Plaintiff had “no 15 functional limitations.” Tr. 367. 16 On September 14, 2010, Kaylee Awbery filled out a physical residual 17 functional capacity assessment form which opined Plaintiff could occasionally lift 18 and/or carry 50 pounds, frequently lift and/or carry 25 pounds, stand and/or walk 19 and sit about six hours in an eight-hour workday and had an unlimited ability to 20 push and/or pull. Tr. 369. On February 8, 2011, Alfred Scottolini, M.D., affirmed 21 the September 2010 physical assessment finding it was “substantially and 22 technically correct.” Tr. 400. The ALJ, however, accorded the opinion of Dr. 23 Scottolini only “some weight,” noting that greater restrictions in accord with the 24 ALJ’s RFC determination, Tr. 76-77, reflected a more accurate assessment of 25 Plaintiff’s physical RFC, Tr. 79. 26 Plaintiff was treated by Ethan M. Angell, M.D., during the course of his 27 treatment for hepatitis C in 2011-2012. Tr. 415-455. On January 18, 2011, Dr. 28 Angell reported Plaintiff’s musculature was normal with no joint deformities or ORDER GRANTING DEFENDANT’S MOTION . . . - 10 1 abnormalities, and he had normal range of motion for his age for all extremities. 2 Tr. 78, 390-393. Dr. Angell reported Plaintiff tolerated the treatment for hepatitis 3 C well throughout the majority of the time under his care. Tr. 78, 415-455. While 4 Plaintiff’s complaints of pain and fatigue are noted in Dr. Angell’s 2012 reports, 5 Tr. 445-455, Dr. Angell never identified any functional limitations or assessed 6 Plaintiff’s physical capacity. 7 Dr. Belzer testified at the administrative hearing on April 24, 2012, that 8 Plaintiff had persistent hepatitis C, mild disc disease of the lumbar spine, a history 9 of obstructive airways disease, and a history of gout, Tr. 36-37, but concluded that 10 Plaintiff’s impairments did not meet or equal a listings impairment. Tr. 79. Dr. 11 Belzer stated the medical evidence indicated Plaintiff had the ability to lift and/or 12 carry 20 to 25 pounds on an occasional basis. Tr. 42-43, 46, 79. 13 The ALJ determined Plaintiff was limited to a restricted range of light 14 exertion level work. Tr. 76-77. Light level work involves lifting no more than 20 15 pounds at a time with frequent lifting or carrying of objects weighting up to 10 16 pounds. 20 C.F.R. §§ 404.1567(b), 416.967(b). No medical professional of 17 record, including those referenced above, has opined that Plaintiff has greater 18 restrictions than those assessed by the ALJ in this case. Since the ALJ’s physical 19 RFC determination is consistent with or more restrictive than the limitations 20 assessed by all other medical professionals of record, the ALJ’s assessment of 21 Plaintiff’s physical functioning ability is supported by substantial record evidence 22 and free of error. 23 E. 24 25 Plaintiff’s Credibility Plaintiff appears to also contest the ALJ’s determination that he lacked credibility. ECF No. 33 at 3, 37 at 3, 5-6. 26 It is the province of the ALJ to make credibility determinations. Andrews v. 27 Shalala, 53 F.3d 1035, 1039 (9th Cir. 1995). However, the ALJ’s findings must be 28 supported by specific cogent reasons. Rashad v. Sullivan, 903 F.2d 1229, 1231 ORDER GRANTING DEFENDANT’S MOTION . . . - 11 1 (9th Cir. 1990). Once the claimant produces medical evidence of an underlying 2 medical impairment, the ALJ may not discredit testimony as to the severity of an 3 impairment because it is unsupported by medical evidence. Reddick v. Chater, 157 4 F.3d 715, 722 (9th Cir. 1998). Absent affirmative evidence of malingering, the 5 ALJ’s reasons for rejecting the claimant’s testimony must be “clear and 6 convincing.” Lester v. Chater, 81 F.3d 821, 834 (9th Cir. 1995). “General 7 findings are insufficient: rather the ALJ must identify what testimony is not 8 credible and what evidence undermines the claimant’s complaints.” Lester, 81 9 F.3d at 834; Dodrill v. Shalala, 12 F.3d 915, 918 (9th Cir. 1993). 10 In this case, the ALJ found Plaintiff’s medically determinable impairments 11 could reasonably be expected to cause the alleged symptoms; however, the ALJ 12 did not find all of Plaintiff’s alleged symptoms to be credible. Tr. 78. The ALJ 13 concluded Plaintiff’s allegations and testimony concerning his subjective 14 complaints and limitations were not convincing. Tr. 79. 15 The ALJ first indicated the medical evidence of record did not support the 16 level of limitation alleged by Plaintiff. Tr. 78. A lack of supporting objective 17 medical evidence is a factor which may be considered in evaluating a claimant’s 18 credibility, provided it is not the sole factor. Bunnell v. Sullivan, 347 F.2d 341, 19 345 (9th Cir. 1991). The ALJ noted that, with regard to Plaintiff’s physical 20 complaints, Dr. Weir found in August 2010 that Plaintiff had no muscle weakness 21 or atrophy and no areas of decreased sensation. Tr. 78, 367. The ALJ noted 22 Plaintiff “was observed ambulating at a brisk pace without difficulty or apparent 23 discomfort” both before and after the examination with Dr. Weir. Tr. 78, 367. Dr. 24 Angell reported on January 18, 2011, that Plaintiff’s musculature was normal with 25 no joint deformities or abnormalities, and he had normal range of motion for his 26 age for all extremities. Tr. 78, 390-393. With regard to Plaintiff’s mental 27 impairment allegations, Samantha Chandler, Psy.D., reported following a July 9, 28 2010, psychological evaluation that a host of findings were normal and Plaintiff ORDER GRANTING DEFENDANT’S MOTION . . . - 12 1 was able to interact appropriately with a supervisor, coworkers and the public, 2 although depression could cause an adverse effect. Tr. 78, 340-344. Dr. Chandler 3 found Plaintiff’s memory, concentration, ability to follow short and simple 4 instructions, abstract reasoning, and executive functioning were all within normal 5 limits and his judgment and insight were good. Id. On January 18, 2011, Dr. 6 Angell reported Plaintiff had no unusual anxiety or evidence of depression. Tr. 78, 7 392. It was thus appropriate for the ALJ to conclude the objective medical 8 evidence did not support Plaintiff’s allegations of disabling physical and mental 9 limitations. 10 The ALJ also indicated the record suggested Plaintiff had engaged in drug- 11 seeking behavior. Tr. 78. An ALJ may properly consider evidence of a claimant’s 12 drug use and drug-seeking behavior in assessing credibility. Edlund v. Massanari, 13 253 F.3d 1152, 1157 (9th Cir. 2001). The ALJ indicated a May 10, 2010, doctor 14 note from Michael J. Metcalf, M.D., reported Plaintiff requested narcotics the day 15 after he had been given 30 pain pills. Tr. 78, 315. Plaintiff explained at oral 16 argument on April 14, 2014, that he was not attempting to get more pills the day he 17 called Dr. Metcalf, but had merely called to inquire about the medication. Plaintiff 18 indicated he did not know Dr. Metcalf had already written a prescription the day 19 before. This explanation, however, was never presented to the ALJ. In any event, 20 as stated by the ALJ, Plaintiff also had a loud disagreement with the doctor over 21 narcotic medication within a month, stating he did not feel he was receiving 22 appropriate care, Tr. 78, 308, and other evidence showed doctors referred to 23 Plaintiff taking Vicodin chronically and had encouraged him to taper off this 24 opioid medication as it was not indicated, Tr. 78, 387, 409. 25 Lastly, the ALJ noted inconsistencies in Plaintiff’s complaints. Tr. 78. 26 Inconsistencies in a disability claimant’s testimony support a decision by the ALJ 27 that a claimant lacks credibility with respect to her claim of disabling pain. Nyman 28 v. Heckler, 779 F.2d 528, 531 (9th Cir. 1986). The ALJ noted Plaintiff informed ORDER GRANTING DEFENDANT’S MOTION . . . - 13 1 Dr. Chandler he only used the computer a few minutes a day, two or three days a 2 month, due to pain, Tr. 343, but reported on January 18, 2011, that he was on the 3 computer for four to eight hours a day, Tr. 387. Tr. 79. The ALJ also noted 4 Plaintiff’s statement to health care providers that he had no history of depression, 5 Tr. 390, conflicts with his current complaint of depression, and his admitted use of 6 the computer for four to eight hours a day conflicted with his allegation that all he 7 does is sleep. Tr. 79. The ALJ additionally found Plaintiff’s “act of continuing to 8 use tobacco suggests that his breathing problem was less troublesome than he 9 indicated.” Tr. 78-79. The ALJ appropriately considered inconsistencies in 10 Plaintiff’s complaints to discount his allegations of symptoms. 11 The ALJ is responsible for reviewing the evidence and resolving conflicts or 12 ambiguities in testimony. Magallanes v. Bowen, 881 F.2d 747, 751 (9th Cir. 13 1989). It is the role of the trier of fact, not this Court, to resolve conflicts in 14 evidence. Richardson, 402 U.S. at 400. The Court has a limited role in 15 determining whether the ALJ’s decision is supported by substantial evidence and 16 may not substitute its own judgment for that of the ALJ even if it might justifiably 17 have reached a different result upon de novo review. 42 U.S.C. § 405(g). After 18 reviewing the record, the undersigned finds the reasons provided by the ALJ for 19 discounting Plaintiff’s subjective complaints are clear, convincing, and fully 20 supported by the record. Accordingly, the ALJ did not err by concluding 21 Plaintiff’s subjective complaints regarding the extent of his symptoms and 22 limitations were not fully credible in this case. 23 F. Additional Evidence Submitted to the Court Plaintiff’s second Motion for Summary Judgment attaches new evidence that 24 25 is not part of the administrative record and was provided for the first time to this 26 Court. 27 28 The Court is required to remand a matter for additional proceedings pursuant to sentence six of 42 U.S.C. § 405(g) if Plaintiff demonstrates new evidence “is ORDER GRANTING DEFENDANT’S MOTION . . . - 14 1 material and that there is good cause for the failure to incorporate such evidence 2 into the record in a prior proceeding.” 42 U.S.C. § 405(g); see Melkonyan v. 3 Sullivan, 501 U.S. 89, 102 (1991); Burton v. Heckler, 724 F.2d 1415, 1417 (9th 4 Cir. 1984). Evidence is material if it bears “directly and substantially on the matter 5 in dispute” and there is a “reasonable possibility” it would have changed the 6 outcome of the administrative decision. Mayes v. Massanari, 276 F.3d 453, 462 7 (2001); Booz v. Secretary of Health and Human Serv., 734 F.2d 1378, 1381 (9th 8 Cir. 1984). 9 The new evidence submitted by Plaintiff is a treatment note and report from 10 Dr. Angell, dated February 25, 2014. ECF No. 37. The materials were generated a 11 year and a half after the ALJ’s decision and do not identify any new functional 12 limitations or restrictions. Therefore, even if Plaintiff could show good cause for 13 submitting these records more than a year after the ALJ’s decision, the evidence is 14 not sufficiently material to compel a remand to the ALJ. Since Plaintiff has failed 15 to meet the “materiality” requirement, the Court declines to remand the case for 16 consideration of this new evidence. 17 If Plaintiff’s condition has worsened since the ALJ issued her decision on 18 June 11, 2012, or new impairments have developed, the appropriate remedy is to 19 file a new application for disability benefits. Osenbrok v. Apfel, 240 F.3d 1157, 20 1164 n.1 (9th Cir. 2001). If Plaintiff is now able to prove a disabling physical or 21 mental impairment, he would be entitled to benefits as of the date of the new 22 application. Sanchez v. Secretary of HHS, 812 F.2d 509, 512 (9th Cir. 1987). 23 CONCLUSION 24 Having reviewed the record and the ALJ’s findings, the Court concludes the 25 ALJ’s decision is supported by substantial evidence and is not based on legal error. 26 Accordingly, 27 /// 28 /// ORDER GRANTING DEFENDANT’S MOTION . . . - 15 1 IT IS ORDERED: 2 1. 3 4 5 6 Defendant’s Motion for Summary Judgment, ECF No. 38, is GRANTED. 2. Plaintiff’s Motions for Summary Judgment, ECF No. 33, 37, are DENIED. The District Court Executive is directed to file this Order and provide a copy 7 to pro se Plaintiff and counsel for Defendant. Judgment shall be entered for 8 DEFENDANT and the file shall be CLOSED. 9 DATED April 15, 2014. 10 11 12 _____________________________________ JOHN T. RODGERS UNITED STATES MAGISTRATE JUDGE 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 ORDER GRANTING DEFENDANT’S MOTION . . . - 16

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