Renggli v. Colvin, No. 2:2014cv00029 - Document 18 (E.D. Wash. 2014)

Court Description: DECISION AND ORDER. 11 Plaintiff's Motion for Summary Judgment is denied. 16 Defendant's Motion for Summary Judgment is granted. Signed by Magistrate Judge Victor E. Bianchini. (KW, Case Administrator)

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Renggli v. Colvin Doc. 18 1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 EASTERN DISTRICT OF WASHINGTON 8 9 Case No. 2:14-CV-00029-VEB JAMES C. RENGGLI, 10 Plaintiff, DECISION AND ORDER 11 vs. 12 CAROLYN W. COLVIN, Acting Commissioner of Social Security, 13 14 15 Defendant. I. INTRODUCTION 16 In January of 2011, Plaintiff James C. Renggli applied for Disability 17 Insurance Benefits (“DIB”) under the Social Security Act. The Commissioner of 18 Social Security denied the application. 19 20 1 DECISION AND ORDER – RENGGLI v COLVIN 14-CV-00029-VEB Dockets.Justia.com 1 Plaintiff, represented by Paul Ralph Kosewski, Esq., commenced this action 2 seeking judicial review of the Commissioner’s denial of benefits pursuant to 42 3 U.S.C. §§ 405 (g) and 1383 (c)(3). The parties consented to the jurisdiction of a 4 United States Magistrate Judge. (Docket No. 4). 5 On September 2, 2014, the Honorable Rosanna Malouf Peterson, Chief United 6 States District Judge, referred this case to the undersigned pursuant to 28 U.S.C. § 7 636(b)(1)(A) and (B). (Docket No. 12). 8 9 II. BACKGROUND 10 The procedural history may be summarized as follows: 11 On January 17, 2011, Plaintiff applied for DIB, alleging disability beginning 12 January 1, 2010. (T at 196-97).1 13 reconsideration and Plaintiff requested a hearing before an Administrative Law 14 Judge (“ALJ”). On July 24, 2012, a hearing was held before ALJ Marie Palachuk. 15 (T at 28). Plaintiff appeared with an attorney and testified. (T at 76-92). The ALJ 16 also received testimony from two medical experts, Dr. Jeremy Landow (T 33-70) 17 and Dr. Jay Toews (T at 70-76), and Jinne Lawson, a vocational expert. (T at 96- 18 110), as well as Karen Ann Renggli, Plaintiff’s wife. (T at 92-96). 19 1 20 The application was denied initially and on Citations to (“T”) refer to the administrative record at Docket No. 8. 2 DECISION AND ORDER – RENGGLI v COLVIN 14-CV-00029-VEB 1 On September 14, 2012, the ALJ 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 8-27). The ALJ’s decision became the 4 Commissioner’s final decision on November 22, 2013, when the Social Security 5 Appeals Council denied Plaintiff’s request for review. (T at 1-6). 6 On January 21, 2014, Plaintiff, acting by and through his 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. 1). The Commissioner interposed 9 an Answer on April 11, 2014. (Docket No. 7). 10 Plaintiff filed a motion for summary judgment on August 11, 2014. (Docket 11 No. 11). The Commissioner moved for summary judgment on October 13, 2014. 12 (Docket No. 16). Plaintiff filed a reply memorandum of law on November 13, 2014. 13 (Docket No. 17). 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 – RENGGLI v COLVIN 14-CV-00029-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 – RENGGLI v COLVIN 14-CV-00029-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 5 DECISION AND ORDER – RENGGLI v COLVIN 14-CV-00029-VEB 1 The initial burden of proof rests upon plaintiff to establish a prima facie case 2 of entitlement to disability benefits. Rhinehart v. Finch, 438 F.2d 920, 921 (9th Cir. 3 1971); Meanel v. Apfel, 172 F.3d 1111, 1113 (9th Cir. 1999). The initial burden is 4 met once plaintiff establishes that a mental or physical impairment prevents the 5 performance of previous work. The burden then shifts, at step five, to the 6 Commissioner to show that (1) plaintiff can perform other substantial gainful 7 activity and (2) a “significant number of jobs exist in the national economy” that 8 plaintiff can perform. Kail v. Heckler, 722 F.2d 1496, 1498 (9th Cir. 1984). 9 B. Standard of Review 10 Congress has provided a limited scope of judicial review of a Commissioner’s 11 decision. 42 U.S.C. § 405(g). A Court must uphold a Commissioner’s decision, 12 made through an ALJ, when the determination is not based on legal error and is 13 supported by substantial evidence. See Jones v. Heckler, 760 F.2d 993, 995 (9th Cir. 14 1985); Tackett v. Apfel, 180 F.3d 1094, 1097 (9th Cir. 1999). “The [Commissioner’s] 15 determination that a plaintiff is not disabled will be upheld if the findings of fact are 16 supported by substantial evidence.” Delgado v. Heckler, 722 F.2d 570, 572 (9th Cir. 17 1983)(citing 42 U.S.C. § 405(g)). Substantial evidence is more than a mere scintilla, 18 Sorenson v. Weinberger, 514 F.2d 1112, 1119 n 10 (9th Cir. 1975), but less than a 19 preponderance. McAllister v. Sullivan, 888 F.2d 599, 601-02 (9th Cir. 1989). 20 6 DECISION AND ORDER – RENGGLI v COLVIN 14-CV-00029-VEB 1 Substantial evidence “means such evidence as a reasonable mind might accept as 2 adequate to support a conclusion.” Richardson v. Perales, 402 U.S. 389, 401 3 (1971)(citations omitted). “[S]uch inferences and conclusions as the [Commissioner] 4 may reasonably draw from the evidence” will also be upheld. Mark v. Celebreeze, 5 348 F.2d 289, 293 (9th Cir. 1965). On review, the Court considers the record as a 6 whole, not just the evidence supporting the decision of the Commissioner. Weetman 7 v. Sullivan, 877 F.2d 20, 22 (9th Cir. 1989)(quoting Kornock v. Harris, 648 F.2d 525, 8 526 (9th Cir. 1980)). 9 It is the role of the Commissioner, not this Court, to resolve conflicts in 10 evidence. Richardson, 402 U.S. at 400. If evidence supports more than one rational 11 interpretation, the Court may not substitute its judgment for that of the 12 Commissioner. Tackett, 180 F.3d at 1097; Allen v. Heckler, 749 F.2d 577, 579 (9th 13 Cir. 1984). Nevertheless, a decision supported by substantial evidence will still be 14 set aside if the proper legal standards were not applied in weighing the evidence and 15 making the decision. Brawner v. Secretary of Health and Human Services, 839 F.2d 16 432, 433 (9th Cir. 1987). Thus, if there is substantial evidence to support the 17 administrative findings, or if there is conflicting evidence that will support a finding 18 of either disability or nondisability, the finding of the Commissioner is conclusive. 19 Sprague v. Bowen, 812 F.2d 1226, 1229-30 (9th Cir. 1987). 20 7 DECISION AND ORDER – RENGGLI v COLVIN 14-CV-00029-VEB 1 C. Commissioner’s Decision 2 The ALJ found that Plaintiff met the insured status requirements of the Social 3 Security Act through December 31, 2014, and had not engaged in substantial gainful 4 activity since January 1, 2010, the alleged onset date. (T at 13). The ALJ determined 5 that Plaintiff’s degenerative disc disease of the lumbar spine, failed back syndrome 6 post fusion, obesity, obstructive sleep apnea, and diabetes mellitus were “severe” 7 impairments under the Act. (Tr. 13-15). 8 However, the ALJ concluded that Plaintiff did not have an impairment or 9 combination of impairments that met or medically equaled one of the impairments 10 set forth in the Listings. (T at 15-16). The ALJ determined that Plaintiff retained the 11 residual functional capacity (“RFC”) to perform a full range of sedentary work as 12 defined in 20 CFR § 416.967 (a). The ALJ found that Plaintiff could never climb 13 ladders, ropes, or scaffolds; could occasionally stoop, knee, crouch, crawl, and climb 14 ramps or stairs; needed to work in an air-conditioned environment; and must avoid 15 concentrated exposure to respiratory irritants and even moderate exposure to 16 hazards. (T at 16-22). 17 The ALJ found that Plaintiff could perform his past relevant work as a Senior 18 Software Engineer and Computer Consultant. (T at 22-23). As such, the ALJ 19 concluded that Plaintiff had not been disabled, as defined under the Act, from 20 8 DECISION AND ORDER – RENGGLI v COLVIN 14-CV-00029-VEB 1 January 1, 2010 (the alleged onset date), through September 14, 2012 (the date of 2 the ALJ’s decision) and was therefore not entitled to benefits. (Tr. 23). The ALJ’s 3 decision became the Commissioner’s final decision when the Appeals Council 4 denied Plaintiff’s request for review. (Tr. 1-6). 5 D. Plaintiff’s Arguments 6 As a threshold matter, this Court admonishes Plaintiff’s counsel for 7 extraordinarily sloppy and poorly organized papers. Plaintiff’s submissions do not 8 comply with Local Rule 10.1 of this Court, which requires double-spaced pleadings 9 and limits documents to no more than 280 words per page. Plaintiff’s summary 10 judgment motion is 32 pages long (almost all of them single-spaced, with extremely 11 small font),2 which violates the 20-page limit prescribed in Local Rule 7.1 (e). 12 Plaintiff’s arguments are presented as a continuous “stream of consciousness,” 13 without subheads or sections to separate one argument from another. 14 Plaintiff’s papers do not conform either to the Local Rules or to the most basic 15 standards of writing style (to say nothing of the rudiments of effective advocacy). 16 Any further submissions to this Court by Plaintiff’s counsel must, at a minimum, 17 comply with the Local Rules. In sum, 18 In addition, the font type and size change several times, seemingly at random, throughout the papers. 2 19 20 9 DECISION AND ORDER – RENGGLI v COLVIN 14-CV-00029-VEB 1 As best as this Court can discern, Plaintiff raises three (3) principal 2 arguments: First, he challenges the ALJ’s step four analysis. Second, Plaintiff 3 contends that the ALJ did not adequately develop the record or consider all of the 4 necessary evidence. Third, Plaintiff challenges the ALJ’s RFC determination and 5 argues that the evidence requires a remand for calculation of benefits. This Court 6 will address each argument in turn. 7 1. Past Relevant Work 8 “Past relevant work” is work that was “done within the last 15 years, lasted 9 long enough for [the claimant] to learn to do it, and was substantial gainful activity.” 10 20 C.F.R. §§ 404.1565(a), 416.965(a). At step four of the sequential evaluation, the 11 ALJ makes a determination regarding the claimant’s residual functional capacity and 12 determines whether the claimant can perform his or her past relevant work. 13 Although the claimant bears the burden of proof at this stage of the evaluation, 14 the ALJ must make factual findings to support his or her conclusion. See SSR 82-62. 15 In particular, the ALJ must compare the claimant’s RFC with the physical and 16 mental demands of the past relevant work. 20 C.F.R. §§ 404.1520(a)(4)(iv) and 17 416.920(a)(4)(iv). 18 In sum, the ALJ must determine whether the claimant’s RFC would permit a 19 return to his or her past job or occupation. The ALJ’s findings with respect to RFC 20 10 DECISION AND ORDER – RENGGLI v COLVIN 14-CV-00029-VEB 1 and the demands of the past relevant work must be based on evidence in the record. 2 See Pinto v. Massanari, 249 F.3d 840, 845 (9th Cir. 2001). 3 The Regulations provide that a vocational report and the claimant’s testimony 4 should be consulted to define the claimant’s past relevant work as it was actually 5 performed. Id.; SSR 82-61, 82-41. 6 claimant’s past relevant work is generally performed, the “best source” is “usually” 7 the Dictionary of Occupational Titles (“DOT”). See id., 20 CFR §§ 404.1566 (d) and 8 416.966 (d). With respect to the question of how the 9 In this case, the ALJ concluded that Plaintiff retained the RFC to perform his 10 past relevant work as a Senior Software Engineer and Computer Consultant. (T at 11 22-23). The ALJ referenced the DOT descriptions of these occupations, which 12 indicated that they required an ability to perform sedentary work. (T at 23). The 13 ALJ also noted the testimony of the vocational expert, who opined that a 14 hypothetical claimant with Plaintiff’s RFC (as determined by the ALJ), age, and 15 work experience could work as a software engineer and computer consultant. (T at 16 99-101). 17 particular, he reported that his work as a software engineer required him to sit for 6 18 hours per day, occasionally lift 20 pounds, and frequently lift less than 10 pounds. (T 19 at 223). His work as a consultant required three hours per day of sitting, two hours 20 11 Plaintiff also provided information about his work experience. DECISION AND ORDER – RENGGLI v COLVIN 14-CV-00029-VEB In 1 of standing, three hours of walking, occasional lifting of 50 pounds, and frequent 2 lifting of 10 pounds. (T at 224). 3 Aside from Plaintiff’s reference to occasional lifting of 50 pounds with regard 4 to the consultant petition, the ALJ’s step four findings were consistent with 5 Plaintiff’s own description of his duties. In addition, the ALJ’s conclusions were 6 supported by the DOT descriptions and vocational expert’s testimony. Plaintiff 7 suggests the ALJ should have considered a report submitted by Michael Johnson, an 8 information technology manager with 21 years of experience. In a report apparently 9 solicited by Plaintiff’s counsel, Mr. Johnson explained that Plaintiff’s prior computer 10 programming experience would not necessarily translate into a position in today’s 11 information technology market, as the programming protocols have changed 12 significantly since Plaintiff last worked in the field. (T at 287). However, the ALJ is 13 not obligated to “demonstrate that the claimant’s past relevant work exists in 14 significant numbers in the national economy in order to support a finding of no 15 disability.” Abdich v. Colvin, 12-cv-02172, 2013 U.S. Dist. LEXIS 180864, at *20 16 (D. Or. Dec. 27, 2013)(citing Barnhart v. Thomas, 540 U.S. 20, 25 (2003)). In other 17 words, a step four finding that a claimant can perform past relevant work does not 18 require a determination as to whether that work currently exists. If the claimant can 19 perform his or her past relevant work, that is sufficient to satisfy the step four 20 12 DECISION AND ORDER – RENGGLI v COLVIN 14-CV-00029-VEB 1 analysis. See Thomas, 540 U.S. at 25. Accordingly, this Court finds no reversible 2 error as to the ALJ’s step four analysis. 3 In addition, contrary to Plaintiff’s argument, because the ALJ found that 4 Plaintiff had not met his burden of proof with regard to step four, she was not 5 required to proceed to the step five analysis. See Crane v. Shalala, 76 F.3d 25, 255 6 (9th Cir. 1995). 7 2. 8 Karen Ann Renggli, Plaintiff’s wife, testified at the administrative hearing. (T 9 at 92-96). Although the ALJ found Mrs. Renggli “generally credible as to her 10 observations,” she noted that many of Mrs. Renggli’s statements were inconsistent 11 with the medical evidence. (T at 20). Plaintiff’s counsel claims that, after the 12 conclusion of the hearing, he asked the ALJ to re-open the record and allow Mrs. 13 Renggli to testify concerning additional observations she made of Plaintiff during 14 the hearing. In an affidavit signed on October 5, 2012, Mrs. Renggli explained that 15 Plaintiff was sweating heavily during the hearing. (T at 293). Plaintiff contends that 16 Mrs. Renggli should have been permitted to place this observation on the record. Development of the Record/Consideration of Evidence 17 The Commissioner suggests that this argument should be rejected because 18 there is no evidence in the record that Plaintiff’s counsel asked the ALJ to go back 19 “on the record.” This argument, of course, begs the question. It is precisely the 20 13 DECISION AND ORDER – RENGGLI v COLVIN 14-CV-00029-VEB 1 ALJ’s (apparent) refusal to go back on the record that prevented counsel from 2 placing his objection on the record. In any event, counsel documented the request, 3 along with the proffer of what Mrs. Renggli’s testimony would have been, in the 4 October 2012 affidavit. (T at 293-94). 5 With that said, it is apparent that the additional testimony, even if it had been 6 permitted and considered, would not have changed the outcome of the ALJ’s 7 decision. Mrs. Renggli completed a function report in February of 2011, wherein 8 she advised that any physical movement caused Plaintiff to break into a sweat. (T at 9 242). The ALJ made specific reference to this aspect of the record and concluded 10 that Plaintiff needed to work in an air-conditioned environment. (T at 17, 20). This 11 Court thus finds no reason to believe Plaintiff was prejudiced by the fact that Mrs. 12 Renggli was (apparently) not permitted to place this observation on the record and 13 this Court finds no error as to this aspect of the ALJ’s decision. 14 Plaintiff also complains that the ALJ failed to address a statement made by 15 Mary Steenblik, the hearing monitor, during the administrative hearing. Toward the 16 end of the hearing, Ms. Steenblik made the following statement to Plaintiff “You can 17 stand if you want.” (T at 82). Plaintiff declined, saying it “doesn’t do any good.” (T 18 at 82). Plaintiff contends that Ms. Steenblik’s offer was motivated by an observation 19 that Plaintiff was having trouble remaining seated, which observation in turn 20 14 DECISION AND ORDER – RENGGLI v COLVIN 14-CV-00029-VEB 1 supports Plaintiff’s claimed difficulties with prolonged periods of sitting and 2 concentrating. 3 Plaintiff’s limitations in detail and concluded that he retained the RFC to sit for 6 4 hours in an 8-hour workday and perform the mental demands of basic work activity. 5 (T at 16-17). Even viewing Ms. Steenblik’s stray remark in the light most favorable 6 to Plaintiff, it is not possible to conclude that this limited lay observation 7 undermined in any meaningful way the ALJ’s RFC determination, which was 8 supported by substantial evidence for the reasons outlined below. 9 10 3. However, the ALJ discussed the medical evidence concerning Substantial Evidence Plaintiff generally challenges the ALJ’s findings and contends that a remand 11 for calculation of benefits is warranted. 12 supported by substantial evidence. This Court finds the ALJ’s decision 13 Dr. Jeremy Landau, a medical expert, reviewed Plaintiff’s medical records 14 and testified at the administrative hearing. Dr. Landau opined that Plaintiff could 15 stand or walk for 2 hours in an 8-hour workday, could sit without limitation 16 (provided he could stand and stretch for 1-3 minutes about once an hour), and 17 lift/carry 10 pounds frequently and 20 pounds occasionally. (T at 22, 41-42). Dr. 18 Landau found that Plaintiff could occasionally stoop, bend, and climb stairs; could 19 not operate heavy machinery or motorized vehicles; and would need to work in an 20 15 DECISION AND ORDER – RENGGLI v COLVIN 14-CV-00029-VEB 1 air conditioned environment free of excessive pollutants. (T at 22, 42-43). 2 Plaintiff’s counsel was afforded an opportunity to cross-examine Dr. Landau 3 extensively. (T at 44-70). The ALJ afforded Dr. Landau’s assessment significant 4 weight, finding the assessment consistent with the treatment history, clinical 5 findings, and MRI results. (T at 22). It is well-settled that “an ALJ may give greater 6 weight to the opinion of a non-examining expert who testifies at a hearing subject to 7 cross-examination.” Andrews v. Shalala, 53 F.3d 1035, 1042 (9th Cir. 1995) (citing 8 Torres v. Secretary of H.H.S., 870 F.2d 742, 744 (1st Cir. 1989)); see also Moody v. 9 Astrue, No CV-10-161, 2011 U.S. Dist. LEXIS 125165, at *22-23 (E.D. Wash. Oct. 10 28, 2011)(finding that ALJ did not err in giving greater weight to medical expert’s 11 opinion over treating psychiatrist’s opinion). 12 Dr. Guillermo Rubio, a non-examining State Agency review consultant, 13 rendered an assessment in May of 2011 consistent with Dr. Landau’s findings and 14 the ALJ’s RFC determination. Dr. Rubio opined that Plaintiff could perform light 15 work, with some postural and environmental limitations. (T at 124-32). The ALJ 16 gave some weight to this assessment. See Henderson v. Astrue, 634 F. Supp. 2d 17 1182, 1190 (E.D.W.A. 2009)(“The opinion of a non-examining physician may be 18 accepted as substantial evidence if it is supported by other evidence in the record and 19 20 16 DECISION AND ORDER – RENGGLI v COLVIN 14-CV-00029-VEB 1 is consistent with it.”)(citing Andrews v. Shalala, 53 F.3d 1035, 1043 (9th Cir. 2 1995)). 3 Dr. Jay Toews, a psychologist, examined the record and testified at the 4 administrative hearing. Dr. Toews concluded that Plaintiff had no restriction in his 5 ability to perform activities of daily living, mild restriction with social functioning, 6 and no restrictions in concentration, persistence, or pace. (T at 21, 74). Dr. Toews’s 7 conclusion was consistent with the findings of two other review consultants, Dr. 8 Mary Gentile and Dr. Edward Beaty, both of whom found that Plaintiff did not have 9 a severe mental health impairment. (T at 113-17, 127-28). 10 The ALJ also found that Plaintiff’s activities of daily living (which included 11 household chores, cooking, and extended travel) were inconsistent with his claims of 12 disabling limitations. (T at 20). When assessing a claimant’s credibility, the ALJ 13 may employ “ordinary techniques of credibility evaluation.” Turner v. Comm’r of 14 Soc. Sec., 613 F.3d 1217, 1224 n.3 (9th Cir. 2010)(quoting Smolen v. Chater, 80 F.3d 15 1273, 1284 (9th Cir. 1996)). Activities of daily living are a relevant consideration in 16 assessing credibility. See Rollins v. Massanari, 261 F.3d 853, 857 (9th Cir. 2001). 17 Although the claimant does not need to “vegetate in a dark room” to be considered 18 disabled, Cooper v. Brown, 815 F.2d 557, 561 (9th Cir. 1987), the ALJ may discount 19 a claimant’s testimony to the extent his or her activities of daily living “contradict 20 17 DECISION AND ORDER – RENGGLI v COLVIN 14-CV-00029-VEB 1 claims of a totally debilitating impairment.” Molina v. Astrue, 674 F.3d 1104, 1112- 2 13 (9th Cir. 2011). 3 Plaintiff argues that the ALJ should have given controlling weight to the 4 opinions of Dr. Allen Seely, his treating physician, and Dr. Dennis Pollack, a 5 psychiatric consultative examiner, both of whom opined that Plaintiff had marked 6 limitations. A treating physician’s opinion carries more weight than an examining 7 physician’s opinion, and an examining physician’s opinion is given more weight 8 than that of a non-examining physician. Benecke v. Barnhart, 379 F.3d 587, 592 (9th 9 Cir. 2004); Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1995). If the treating or 10 examining physician’s opinions are not contradicted, they can be rejected only with 11 clear and convincing reasons. Lester, 81 F.3d at 830. If contradicted, the opinion can 12 only be rejected for “specific” and “legitimate” reasons that are supported by 13 substantial evidence in the record. Andrews v. Shalala, 53 F.3d 1035, 1043 (9th Cir. 14 1995). 15 Here, the opinions of Dr. Seeley and Dr. Pollack were contradicted by the 16 conclusions of Drs. Gentile, Rubio, Beaty, Landau, and Toews and the ALJ provided 17 specific and legitimate reasons for discounting their assessments. More specifically, 18 Dr. Pollack’s assessment was internally inconsistent. He opined that Plaintiff would 19 have a marked limitation with regard to his ability to perform activities within a 20 18 DECISION AND ORDER – RENGGLI v COLVIN 14-CV-00029-VEB 1 schedule, maintain regular attendance, and be punctual within customary tolerances. 2 (T at 521). 3 conclusion. For example, he described Plaintiff as “friendly and cooperative” 4 throughout the testing, giving detailed answers, with logical and progressive 5 thinking. (T at 515). 6 Plaintiff’s ability to sustain an ordinary routine without special supervision, make 7 simple work-related decisions, work in coordination with or proximity to others, or 8 respond appropriately to changes in the work setting. (T at 521-22). He also found 9 no limitations regarding Plaintiff’s understanding and memory. (T at 520). These 10 contradictions were an appropriate basis for discounting Dr. Pollack’s marked 11 limitation assessment. 12 2005)(finding that “discrepancy” between treatment notes and opinion was “a clear 13 and convincing reason for not relying on the doctor's opinion regarding” the 14 claimant’s limitations). However, Dr. Pollack’s clinical and other findings contradict this Dr. Pollack assessed no limitation at all with regard to See Bayliss v. Barnhart, 427 F.3d 1211, 1216 (9th Cir. 15 As to Dr. Seely, he provided several opinions to the effect that Plaintiff could 16 not perform sedentary work due to persistent pain. (T at 21). However, the ALJ 17 noted that Dr. Seely’s opinions were conclusory and not supported by clinical 18 findings. (T at 21). Moreover, Dr. Seely’s findings were contradicted by the MRI 19 results, treatment history, and opinions provided by Drs. Landau, Rubio, Gentile, 20 19 DECISION AND ORDER – RENGGLI v COLVIN 14-CV-00029-VEB 1 Beaty, and Toews. (T at 21-22). The ALJ is not obliged to accept a treating source 2 opinion that is “brief, conclusory and inadequately supported by clinical findings.” 3 Lingenfelter v. Astrue, 504 F.3d 1028, 1044-45 (9th Cir. 2007) (citing Thomas v. 4 Barnhart, 278 F.3d 947, 957 (9th Cir. 2002)). 5 Plaintiff contends that the opinions of Dr. Seely and Dr. Pollack should have 6 been afforded comparatively more weight. 7 Commissioner, not this Court, to resolve conflicts in evidence. Magallanes v. 8 Bowen, 881 F.2d 747, 751 (9th Cir. 1989); Richardson, 402 U.S. at 400. If the 9 evidence supports more than one rational interpretation, this Court may not 10 substitute its judgment for that of the Commissioner. Allen v. Heckler, 749 F.2d 577, 11 579 (9th 1984). If there is substantial evidence to support the administrative 12 findings, or if there is conflicting evidence that will support a finding of either 13 disability or nondisability, the Commissioner’s finding is conclusive. Sprague v. 14 Bowen, 812 F.2d 1226, 1229-30 (9th Cir. 1987). Here, the ALJ’s findings were 15 supported by substantial evidence and should be sustained. 16 Commissioner’s decisions must be upheld. See Tackett v. Apfel, 180 F.3d 1094, 17 1098 (9th Cir. 1999)(holding that if evidence reasonably supports the 18 Commissioner’s decision, the reviewing court must uphold the decision and may not 19 substitute its own judgment) 20 However, it is the role of the 20 DECISION AND ORDER – RENGGLI v COLVIN 14-CV-00029-VEB Thus, the 1 IV. CONCLUSION 2 3 After carefully reviewing the administrative record, this Court finds 4 substantial evidence supports the Commissioner’s decision, including the objective 5 medical evidence and supported medical opinions. It is clear that the ALJ thoroughly 6 examined the record, afforded appropriate weight to the medical evidence, including 7 the assessments of the examining medical providers and the non-examining 8 consultants, and afforded the subjective claims of symptoms and limitations an 9 appropriate weight when rendering a decision that Plaintiff is not disabled. This 10 Court finds no reversible error and because substantial evidence supports the 11 Commissioner’s decision, the Commissioner is GRANTED summary judgment and 12 that Plaintiff’s motion for judgment summary judgment is DENIED. 13 14 15 V. ORDERS IT IS THEREFORE ORDERED that: 16 Plaintiff’s motion for summary judgment, Docket No. 16, is DENIED. 17 The Commissioner’s motion for summary judgment, Docket No. 16, is 18 GRANTED. 19 20 21 DECISION AND ORDER – RENGGLI v COLVIN 14-CV-00029-VEB 1 2 3 The District Court Executive is directed to file this Order, provide copies to counsel, enter judgment in favor of the Commissioner, and close this case. DATED this 1st day of December, 2014. 4 5 6 /s/Victor E. Bianchini VICTOR E. BIANCHINI UNITED STATES MAGISTRATE JUDGE 7 8 9 10 11 12 13 14 15 16 17 18 19 20 22 DECISION AND ORDER – RENGGLI v COLVIN 14-CV-00029-VEB

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