Sanderfer v. Colvin, No. 4:2014cv05032 - Document 31 (E.D. Wash. 2016)
Court Description: ORDER GRANTING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT AND DENYING PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT - denying 21 Motion for Summary Judgment; and granting 26 Motion for Summary Judgment. Signed by Senior Judge Edward F. Shea. (CC, Case Administrator)
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Sanderfer v. Colvin Doc. 31 1 2 3 4 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF WASHINGTON 5 6 7 ANGENETTE SANDERFER, v. 9 11 ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT AND DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT Plaintiff, 8 10 No.: 4:14-CV-5032-EFS CAROLYN COLVIN, Acting Commissioner of Social Security, Defendant. 12 13 14 Before the Court are cross-summary-judgment motions. ECF Nos. 21 & 15 26. Plaintiff Angenette Sanderfer appeals the Administrative Law Judge’s 16 (ALJ) denial of benefits. ECF No. 21. Ms. Sanderfer contends the ALJ 17 erred because she 1) failed to properly evaluate the medical opinion 18 evidence, 2) improperly rejected Ms. Sanderfer’s subjective complaints 19 about her symptoms, and 3) failed to properly consider all of Ms. 20 Sanderfer’s impairments when determining her functional limitations. ECF 21 22 No. 21 at 1. The Commissioner of Social Security (“Commissioner”) asks 23 the Court to affirm the ALJ’s decision that Ms. Sanderfer is capable of 24 performing 25 significant number of jobs exist in the national economy. ECF No. 26 at 26 1. After reviewing the record and relevant authority, the Court is fully 27 informed. For the reasons set forth below, the Court denies Plaintiff’s substantial gainful activity in a field for which a 28 ORDER - 1 Dockets.Justia.com 1 Motion for Summary Judgment and grants Defendant’s Motion for Summary 2 Judgment. 3 A. Statement of Facts1 4 Ms. Sanderfer was born in 1968. Transcript of admin. hrg. (“Tr.”) 5 at 176. She has a high school education and is able to communicate in 6 English. Tr. at 22. She is five feet, five inches tall and weighs over 7 250 pounds. Tr. at 18. Ms. Sanderfer has been diagnosed with chronic 8 9 back pain, asthma, obesity, major depressive disorder, moderate 10 generalized anxiety disorder, and ADHD. Tr. 301, 304-346, & 348-370. She 11 has had two surgeries on her right knee, with the most recent occurring 12 in 13 experiencing 14 fibromyalgia. Id. Ms. Sanderfer has a goiter but her thyroids function 15 2007. Tr. 40, 44, chronic 50-51, pain 213. and After was the surgeries, subsequently she started diagnosed with normally and her complete metabolic panel was within normal limits. Id. 16 at 13. She also suffers from mild leg edema. Id. 17 According to Ms. Sanderfer’s own testimony, it hurts to do 18 anything and everything. Tr. at 16. She is allegedly in constant pain 19 20 and feels tired and exhausted all of the time. She states that there are 21 days where she is in bed all day long and her pain is worse whenever it 22 rains or snows. Id. at 17. Her condition affects lifting, squatting, 23 bending, standing, reaching, walking, sitting, kneeling, hearings, stair 24 climbing, seeing, memory, completing tasks, concentration, using her 25 hands, and getting along with others. Id. at 16-17. She states that her 26 1 The facts are only briefly summarized. Detailed facts are 27 contained in the administrative hearing transcript, the ALJ’s decision, 28 the parties’ briefs, and the underlying records. ORDER - 2 1 lack of concentration has gotten worse and that she forgets to do the 2 things she needs to do to take care of her personal needs. Tr. at 16. 3 Her muscles never relax so her whole body is exhausted. She claims she 4 is unable to go for walks or do housework. Id. Apparently she attempted 5 to return to school in 2012, but stopped going due to her pain, lack of 6 concentration, anxiety, and depression. Id. at 17. She smokes cigarettes 7 and marijuana everyday despite repeated admonitions by her healthcare 8 9 provider to stop. Tr. at 18 & 310. Some of her pain has been attributed 10 to enlarged mammaries. Tr. at 18. A pain specialist recommended surgical 11 intervention. 12 required her to weigh 185 pounds or less before he would do the surgery. 13 Id. As of the most recent records, Ms. Sanderfer has not lost weight. 14 Id. 15 Id. However, the surgeon Ms. Sanderfer consulted with Ms. Sanderfer has a notable employment history. ECF No. 21 at 2; 16 Tr. at 21. Most recently she worked as a care provider but was fired 17 “due to side effects from her fibromyalgia medication.” ECF No. 21 at 2; 18 Tr. at 21. Apparently, while taking Lyrica for her pain, she “snapped 19 20 21 off on her client.” Id. She has also worked as a cashier, a hotel desk clerk, a home attendant, and a babysitter. Tr. at 21. 22 Despite her stated excessive pain, Ms. Sanderfer takes care of her 23 children, prepares meals daily, does the laundry, cleans the house, and 24 gets around when necessary. She is able to shop, go to the store, and 25 handle money. She goes to church on a regular basis and sometimes spends 26 time with others. She does not need to be reminded to go places and she 27 doesn’t require assistance when doing so. 28 / ORDER - 3 1 B. 2 3 4 Procedural History On October 11, 2011, Ms. Sanderfer applied for supplemental security income alleging a number of physical disabilities. Tr. at 172182. Her alleged onset date is December 31, 2008. Id. 5 On March 14, 2011, Ms. Sanderfer’s claim was denied. Tr. at 11. On 6 May 16, 2011, reconsideration was denied. Id. On September 11, 2012, an 7 administrative hearing was held before ALJ Caroline Siderius at which 8 9 Ms. Sanderfer and an independent vocational expert, Jinnie Lawson, both 10 testified. Tr. 34-59. Ms. Sanderfer was represented by Mr. Bradford D. 11 Myler. Tr. at 11. The ALJ determined that Ms. Sanderfer has the severe 12 impairments 13 asthma; 14 proceeded 15 of arthritis; fibromyalgia; to find degenerative obesity; that Ms. and joint diseases, depression. Sanderfer’s right knee; Tr. at 13. The impairments do not ALJ meet or medically equal the severity of any listed impairments. Tr. at 14. 16 Despite her impairments, the ALJ ultimately found that Ms. 17 Sanderfer has the residual functional capacity to perform sedentary work 18 as defined, except that she cannot climb ladders, ropes, or scaffolds; 19 20 must avoid exposure to odors, dusts, gases, and fumes; must avoid 21 extreme temperatures; may have only superficial contact with the general 22 public and occasional contact with coworkers; can do no more than one to 23 three step tasks; needs a moderate level of supervision; cannot perform 24 any detailed work; can have only occasional changes to her work setting; 25 and can have no more than ordinary production requirements. Tr. at 16. 26 Based on this assessment, which was presented to the vocational 27 expert, and based on Ms. Sanderfer’s age, education, work experience, 28 and residual functional capacity, the ALJ concluded Ms. Sanderfer can ORDER - 4 1 perform jobs that exist in significant numbers in the national economy, 2 such as document preparer and escort vehicle driver, and is therefore 3 not disabled as defined by the Social Security Act. Tr. at 22. 4 The Appeals Council denied review of the ALJ’s decision. Tr. at 1- 5 7. Thereafter, Ms. Sanderfer filed this lawsuit, appealing the ALJ’s 6 decision. ECF No. 1. The parties then filed the instant summary-judgment 7 motions. ECF Nos. 21 & 26. 8 9 C. Disability Determination A 10 "disability" is defined as the "inability to engage in any 11 substantial gainful activity by reason of any medically determinable 12 physical or mental impairment which can be expected to result in death 13 or which has lasted or can be expected to last for a continuous period 14 of 15 not less than 1382c(a)(3)(A). twelve The months." decision-maker 42 U.S.C. uses a §§ 423(d)(1)(A), five-step sequential 16 evaluation process to determine whether a claimant is disabled. 20 17 C.F.R. §§ 404.1520, 416.920. 18 Step one assesses whether the claimant is engaged in substantial 19 20 gainful activities during the relevant period. If she is, benefits are 21 denied. 22 decision-maker proceeds to step two. 23 20 Step C.F.R. two §§ assesses 404.1520(b), whether 24 impairment 25 416.920(c). If the combination of impairments, 26 or combination of claimant the 416.920(b). claimant impairments. does the not disability has 20 have If she a C.F.R. a is not, medically §§ severe claim is impairment denied. impairment is severe, the evaluation proceeds to the third step. ORDER - 5 severe 404.1520(c), 27 28 the If or the 1 Step three compares the claimant's impairment with a number of 2 listed impairments acknowledged by the Commissioner to be so severe as 3 to preclude substantial gainful activity. 4 20 C.F.R. §§ 404.1520(d), 404 Subpt. P App. 1, 416.920(d). If the impairment meets or equals one of 5 the listed impairments, the claimant is conclusively presumed to be 6 disabled. If the impairment does not meet or equal one of the listed 7 impairments, the evaluation proceeds to the fourth step. 8 Step four assesses whether the impairment prevents the claimant 9 10 from 11 determining the claimant’s residual functional capacity. 20 C.F.R. §§ 12 404.1520(e), 416.920(e). If the claimant is able to perform her previous 13 work, she is not disabled. If the claimant cannot perform this work, the 14 evaluation proceeds to the fifth step. 15 performing Step work five, the she has final performed step, in assesses the past. whether the This includes claimant can 16 perform other work in the national economy in view of her age, 17 education, and work experience. 20 C.F.R. §§ 404.1520(f), 416.920(f); 18 see Bowen v. Yuckert, 482 U.S. 137 (1987). 19 20 The burden of proof shifts during this sequential disability 21 analysis. The claimant has the initial burden of establishing a prima 22 facie case of entitlement to disability benefits. Rhinehart v. Finch, 23 438 F.2d 920, 921 (9th Cir. 1971). The claimant meets this burden if she 24 establishes 25 engaging in her previous occupation. The burden then shifts to the 26 Commissioner that to a physical show 1) the or mental claimant impairment can perform prevents other her from substantial 27 gainful activity, and 2) that a “significant number of jobs exist in the 28 national economy” which the claimant can perform. Kail v. Heckler, 722 ORDER - 6 1 F.2d 1496, 1498 (9th Cir. 1984). A claimant is disabled only if her 2 impairments are of such severity that she is not only unable to do her 3 previous 4 work but cannot, considering her age, education, and work experiences, engage in any other substantial gainful work which exists 5 in the national economy. 42 U.S.C. §§ 423(d)(2)(A), 1382c(a)(3)(B). 6 D. Standard of Review 7 On review, the court considers the record as a whole, not just the 8 9 evidence supporting the ALJ’s decision. Weetman v. Sullivan, 877 F.2d 10 20, 22 (9th Cir. 1989) (quoting Kornock v. Harris, 648 F.2d 525, 526 11 (9th Cir. 1980)). The court upholds the ALJ’s determination that the 12 claimant is not disabled if the ALJ applied the proper legal standards 13 and there is substantial evidence in the record as a whole to support 14 the decision. 15 Delgado v. Heckler, 722 F.2d 570, 572 (9th Cir. 1983) (citing 42 U.S.C. § 405(g)); Brawner v. Sec’y of Health & Human Servs., 16 839 F.2d 432, 433 (9th Cir. 1987) (recognizing that a decision supported 17 by substantial evidence will be set aside if the proper legal standards 18 were not applied in weighing the evidence and making the decision). 19 20 Substantial evidence is more than a mere scintilla, Sorenson v. 21 Weinberger, 514 F.2d 1112, 1119 n.10 (9th Cir. 1975), but less than a 22 preponderance, McAllister v. Sullivan, 888 F.2d 599, 601-02 (9th Cir. 23 1989); Desrosiers v. Sec’y of Health & Human Servs., 846 F.2d 573, 576 24 (9th Cir. 1988). “It means such relevant evidence as a reasonable mind 25 might 26 accept Perales, 402 as adequate U.S. 389, to support 401 (1971) a conclusion.” (citations Richardson omitted). v. “[S]uch 27 inferences and conclusions as the [ALJ] may reasonably draw from the 28 evidence” will also be upheld. ORDER - 7 Mark v. Celebrezze, 348 F.2d 289, 293 1 (9th 2 interpretation, 3 Heckler, 749 F.2d 577, 579 (9th Cir. 1984). 4 E. Cir. 1965). If the the court evidence must supports uphold the more ALJ’s than one decision. rational Allen v. Analysis 5 Ms. Sanderfer contends that the ALJ erred in three respects: 1) 6 that she failed to properly evaluate the medical opinion evidence, 2) 7 that she improperly rejected Ms. Sanderfer’s subjective complaints about 8 9 her symptoms, and 3) that she failed to properly consider all of Ms. 10 Sanderfer’s impairments when determining her functional limitations. The 11 Court addresses each in turn. 12 1. 13 There 14 15 Medical Opinion Evidence are three types of physicians: treating physicians, examining physicians, and nonexamining physicians. Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1995). “As a general rule, more weight should be 16 given to the opinion of a treating source than to the opinion of doctors 17 who do not treat the claimant.” Id. The ALJ must provide “clear and 18 convincing” reasons for rejecting a treating or examining physician’s 19 20 opinions and may not reject such opinions without providing “specific 21 and legitimate reasons” supported by substantial evidence in the record 22 for so doing. Id. Ms. Sanderfer argues the ALJ improperly rejected the 23 opinions of her three medical experts: Dr. Jesus Marcelo, M.D., Ms. 24 Marci 25 analyzes the ALJ decision as to each medical expert. 26 Miller-Pilsbury, M.Ed., and Kishore Varada, PA-C. The Court a. Dr. Jesus Marcelo, M.D. 27 Ms. Sanderfer argues that the ALJ improperly rejected the opinion 28 of Dr. Marcelo. Dr. Marcelo is Ms. Sanderfer’s treating physician. Tr. ORDER - 8 1 at 252-53. As such, his opinion should ordinarily be given the most 2 weight. In fact, in order to reject or give less weight to Dr. Marcelo’s 3 opinion, the ALJ must provide clear and convincing reasons for rejecting 4 a treating or examining physician’s opinions and may not reject such 5 opinions without providing specific and legitimate reasons supported by 6 substantial evidence in the record for so doing. Id. The Court finds 7 that the ALJ met this standard and did not improperly evaluate Dr. 8 9 Marcelo’s opinion. Dr. Marcelo has treated Ms. Sanderfer since 2008. ECF No. 21 at 6. 10 11 On 12 Capacity 13 diagnosed 14 asthma, 15 January 28, 2011, Dr. Questionnaire.” Ms. with Sanderfer’s Sanderfer a Tr. at with prognosis symptoms Marcelo of completed 252. In that fibromyalgia, “fair.” “frequently” a Id. “Residual document, chronic He interfere Functional Dr. back indicated with Marcelo pain, and that Ms. attention and 16 concentration required to perform simple work related tasks. Id. When 17 asked if Ms. Sanderfer would need to lie down during a hypothetical work 18 day in excess of the typical 15-minute breaks and 30-minute lunch, Dr. 19 20 Marcelo checked “yes.” Id. He further indicated that she couldn’t walk 21 more than one city block and that she cannot sit or stand for more than 22 15-20 minutes at a time. Id. He also believed that she could not sit or 23 stand for more than 3-4 hours in a full work day and that she would need 24 to miss three days a month due to her impairments. Id. at 253. Finally, 25 Dr. 26 Marcelo noted that Ms. Sanderfer’s asthma that can sometimes exacerbate to the point where a hospital visit is necessary. Id. 27 The ALJ gave “little weight” to this evaluation finding that it 28 was “inconsistent with [Dr. Marcelo’s] own treatment records where he ORDER - 9 1 apparently relied quite heavily on her subjective complaints.” Id. at 2 21. The ALJ also pointed out that Dr. Marcelo indicated in his notes 3 that 4 Ms. Sanderfer’s exacerbations. Id. asthma is Furthermore, stable and according has to not the had ALJ, any Dr. recent Marcelo’s 5 treatment records show that Ms. Sanderfer’s physical examinations are 6 “unremarkable” with the exception of noting 17 or 18 tender points in 7 December 2010. It should be noted, that the ALJ did not “reject” Dr. 8 9 Marcelo’s decision but instead gave it “little weight.” It was still 10 considered in determining Ms. Sanderfer’s residual functional capacity. 11 Tr. at 21. 12 After reviewing the ALJ’s decision, Dr. Marcelo’s treatment 13 records, and the briefing of the parties, the Court finds that the ALJ 14 met her burden and provided clear and convincing reasons for rejecting a 15 treating or examining physician’s opinions and did not reject such 16 opinions without providing specific and legitimate reasons supported by 17 substantial evidence in the record for so doing. Specifically, the Court 18 agrees that Dr. Marcelo’s records are inconsistent with the severity of 19 20 Ms. Sanderfer’s symptoms as described in Dr. Marcelo’s RFC 21 Questionnaire. See, e.g., Tr. at 310 (“Her fibromyalgia is a little bit 22 worse. . . . we have increased her [medication] and this is helping her 23 with sleeping as well as some of the body aches and pains . . . .”); Tr. 24 at 314 (“Asthma, stable. Advised about avoidance of smoking as well as 25 marijuana use. . . . Inform us if she is using her Albuterol more than 26 2-3 times per week.”); Tr. at 321 (“She has noticed that her 27 fibromyalgia pain is really responding well to Amitripyline . . . 28 patient said that she has been having a little bit more energy and less ORDER - 10 1 pain.”); Tr. at 321. (“[P]atient will have no difficulty maintaining a 2 safe and constructive classroom environment.”); Tr. at (“She said that 3 she had been on a road trip that started last Thursday and came back 4 Friday. The trip was about four hours so she had some frequent stops to 5 stretch her legs.”). 6 The Court acknowledges Ms. Sanderfer’s argument and agrees that 7 fibromyalgia “is a common and complex condition characterized primarily 8 9 by widespread pain.” ECF No. 21 at 8. The Court further acknowledges 10 that symptoms of this disease can “wax and wane” so that a person can 11 have good days and bad days. Id. at 10. However, the severity of Ms. 12 Sanderfer’s symptoms, as described in the RFC Questionnaire filled out 13 by Dr. Marcelo, are simply inconsistent with the rest of his treatment 14 records. The ALJ pointed to these inconsistencies, as well as the fact 15 that many of those records relied on Ms. Sanderfer’s subject complaints, 16 and chose to give “less weight” to Dr. Marcelo’s opinion as stated in 17 the RFC Questionnaire. Tr. at 21. In doing so, the ALJ provided clear 18 and convincing reasons for rejecting a treating or examining physician’s 19 20 opinions and did not reject those opinions without providing specific 21 and legitimate reasons supported by substantial evidence in the record 22 for so doing. Therefore, the Court finds that the ALJ did not improperly 23 weigh the opinion of Dr. Marcelo. 24 b. Marci Miller-Pilsbury, M.Ed. 25 26 The ALJ also gave “little weight” to the opinion of Ms. Marci Miller-Pilsbury, M.Ed. On October 20, 2011, Ms. Miller-Pilsbury filled 27 out a “check-the-box” mental capacity assessment diagnosing Ms. 28 Sanderfer with fibromyalgia, ADHD, MDD – Recurrent, and GAD, which would ORDER - 11 1 hinder her ability to maintain attention and concentration for extended 2 periods, to complete a normal workday, to complete a normal workweek, to 3 perform at a consistent pace, and to accept instructions and respond to 4 criticism, all at “marked” levels. Tr. at 302. Ms. Miller-Pilsbury 5 specifically noted that Ms. Sanderfer has problems with “anxiety, 6 focus/concentrations, and pain,” which cause irritability and 7 frustration dealing with stressors in a public setting. Tr. at 303. 8 The ALJ gave little weight to Ms. Miller-Pilsbury’s opinions as to 9 10 Ms. Sanderfer’s mental capacity. Tr. at 21. It is again important to 11 note that the ALJ did not reject or disregard Ms. Miller-Pilsbury’s 12 opinion but simply gave them less weight. “[O]nly licensed physicians 13 and 14 medical sources.” Molina v. Astrue, 674 F.3d 1104, 1111 (9th Cir. 2012) 15 certain (internal other quotes qualified omitted). Ms. specialists are Miller-Pilsbury considered is not acceptable considered an 16 “acceptable medical source” under the Social Security Code or Ninth 17 Circuit case law. Id.; 20 C.F.R. § 404.1513. Even still, the 18 observations of sources such as Ms. Miller-Pilsbury must be considered. 19 20 SSR 60-03p. 21 The ALJ granted little weight to Ms. Miller-Pilsbury’s opinion 22 because it did not correlate with the “relatively benign counseling 23 records.” Tr. at 21. The ALJ further pointed out that in those records, 24 “the claimant is otherwise describe as alert and oriented times four, 25 fully focused, intact memory, and in no apparent distress.” Id. While 26 the ALJ’s analysis of Ms. Miller-Pilsbury’s opinion is not lengthy, it 27 is supported by the evidence. See, e.g., Tr. at 304 (“She has had bouts 28 of depression in the past, but states she hasn’t had continuing low mood ORDER - 12 1 for some time.”); Id. (“She is attending college online in hopes of 2 being better able to provide for her family.”); 3 to complete her activities of daily living.”); Tr. at 304 (“She states 4 Tr. at 307 (“[M]anages she has been productive at home and is feeling good about that.”); Tr. 5 at 352 (discussing how her pain and “slowness” is the result of a recent 6 surgery and not from her fibromyalgia); Tr. at 354 (“Angie is doing 7 relatively well, in spite of current medical concerns. She is tending to 8 9 her activities of daily living and caring for her sons despite pain and 10 anxiety. Her focus and concentration appear to be less of a problem at 11 this time.”); Tr. at 360 (“She states she has been feeling somewhat 12 better and helped with a banquet earlier this week. She has been cooking 13 and feeling good about that.”). 14 15 The Court is sensitive to the fact that Ms. Sanderfer has good days and bad days when it comes to her psychological impairments and 16 that much of this is determined by changing life circumstances. ECF No. 17 14-15. However, the Court cannot reverse or find fault in the ALJ’s 18 decision to give little weight to Ms. Miller-Pilsbury’s opinion. The ALJ 19 20 did not fail to provide clear and convincing reasons for giving less 21 weight to her opinion nor did she do so without providing specific and 22 legitimate reasons supported by substantial evidence in the record for 23 so 24 reasonable 25 Astrue, 674 F.3d at 1110 (quoting Valentine v. Comm'r Soc. Sec. Admin., 26 doing. Substantial evidence mind accept might as “means such adequate to relevant support evidence a as a conclusion.” 574 F.3d 685, 690 (9th Cir. 2009)). In this case, because there is 27 enough relevant evidence for a reasonable mind to accept the ALJ’s 28 conclusion, there is “substantial evidence” in the record to support the ORDER - 13 1 ALJ’s decision. Therefore, the Court finds that the ALJ did not err in 2 giving less weight to Ms. Miller-Pilsbury’s opinion. 3 c. Kishore Varada, PAC 4 Ms. Sanderfer contends the ALJ erred in giving less weight to the 5 opinion of Kishore Varada, PA-C. On October 21, 2011, PA-C Varada 6 filled out a residual functional capacity questionnaire. In that 7 assessment, PA-C Varada diagnosed Ms. Sanderfer with three mental health 8 9 impairments and physical generalized depressive symptoms listed were depression, anxiety, chronic pain, and trouble with 12 focus 13 impairments, PA-C Varada indicated that Ms. Sanderfer would not be able 14 to stand or walk for more than 15 minutes at a time. She also wouldn’t Id. Due to disorder. these Tr. alleged at disorder, 11 concentration. anxiety major recurrent; 15 and impairments: 10 and ADHD; no 299. mental The health be able to sit for more than four hours in an eight hour workday. She 16 would need to take an unscheduled break every hour. She would never be 17 able to lift more than ten pounds and she had only ten percent use of 18 her arms in the “reaching” category. Tr. at 300. 19 The ALJ gave less weight to PA-C Varada’s opinion because PA-C 20 21 Varada is not considered an “acceptable medical source” and because 22 “treatment notes do not correlate with these assessed limitations.” The 23 ALJ pointed out that medical records indicate that Ms. Sanderfer was 24 described “as alert and oriented to person, place, date, and situation, 25 in 26 no apparent distress, well-groomed, mood was with affect, fully focused and memory intact.” Ms. Sanderfer argues that as a treating 27 physician’s assistant, PA-C Varada is entitled to some weight and that 28 ORDER - 14 1 the description used by the ALJ is contradicted by the rest of the 2 medical records. 3 4 “[O]nly specialists licensed are physicians considered and acceptable certain medical other sources.” qualified Molina v. 5 Astrue, 674 F.3d 1104, 1111 (9th Cir. 2012) (internal quotes omitted). 6 Physician's assistants are defined as “other sources,” and are not 7 entitled to the same deference as acceptable medical sources. Id. The 8 9 ALJ may discount testimony from these “other sources” if the ALJ “gives 10 reasons germane to each witness for doing so.” Astrue, 674 F.3d at 1111 11 (quoting Turner v. Comm'r of Soc. Sec., 613 F.3d 1217, 1224 (9th Cir. 12 2010)). 13 In this case, PA-C Varada’s opinion is entitled to some weight as 14 an “other source.” However, PA-C Varada’s opinion should be given less 15 weight than a treating medical source would be given. And, in fact, this 16 is what the ALJ did. The ALJ did not reject PA-C Varada’s opinion but 17 simply gave it little weight. Tr. at 21. Furthermore, the ALJ did not 18 err in giving PA-C Varada’s opinion less weight than an “other source” 19 20 would typically receive because the ALJ gave “germane reasons” for 21 discrediting PA-C Varada’s opinion. Tr. at 21. The Court finds that the 22 ALJ did not err in giving “less weight” to PA-C Varada’s opinion. 23 2. 24 Ms. Sanderfer contends the ALJ improperly found her statements 25 26 concerning Ms. Sanderfer’s Subjective Complaints the intensity, persistence and limiting effects of her symptoms not credible. ECF No. 21 at 20. A two-step analysis is used by 27 the ALJ to assess whether a claimant's testimony regarding subjective 28 pain or symptoms is credible. Garrison v. Colvin, 759 F.3d 995, 1014 ORDER - 15 1 (9th Cir. 2014). Step one requires the ALJ to determine whether the 2 claimant presented objective medical evidence of an impairment, which 3 could reasonably be expected to produce some degree of the pain or other 4 symptoms alleged. Lingenfelter v. Astrue, 504 F.3d 1028, 1035–36 (9th 5 Cir. 2007); Smolen v. Chater, 80 F.3d 1273, 1282 (9th Cir. 1996). 6 Objective medical evidence of the pain or fatigue, or the severity 7 thereof, need not be provided by the claimant. Garrison, 759 F.3d at 8 9 1014. If the claimant satisfies the first step of this analysis, and 10 there is no evidence of malingering, the ALJ must accept the claimant's 11 testimony about the severity of his symptoms unless the ALJ provides 12 specific, clear, and convincing reasons for rejecting the claimant’s 13 symptom-severity testimony. Id. An ALJ is not “required to believe every 14 allegation of disabling pain” or other non-exertional impairment. Orn v. 15 Astrue, 495 F.3d 625, 635 (9th Cir. 2007). However, to discredit a 16 claimant's testimony when a medical impairment has been established, the 17 ALJ must provide specific, cogent reasons for the disbelief. Id. Factors 18 that an ALJ may consider in weighing a claimant's credibility include 19 20 reputation for truthfulness, inconsistencies in testimony or between 21 testimony and conduct, daily activities, and unexplained, or 22 inadequately explained, failure to seek treatment or follow a prescribed 23 course of treatment. Id. 24 In this case, the ALJ found “claimant’s medically determinable 25 impairments could reasonably be expected to cause the alleged symptoms,” 26 satisfying the first part of the analysis. Tr. at 17. “[C]laimant’s 27 statements concerning the intensity, persistence and limiting effects of 28 the symptoms,” however, were found to be “not credible.” Id. The ALJ ORDER - 16 1 then went on for many pages in her opinion describing in great detail 2 Ms. Sanderfer’s medical history, the opinions of her medical examiners, 3 the 4 inconsistencies between her alleged symptoms and her daily activities, and her failure to follow the advice of her physicians. 5 As to the inconsistencies between her alleged symptoms and her 6 daily activities, Ms. Sanderfer claims that it hurts to do anything and 7 everything. Tr. at 16. She states that she is in constant daily pain and 8 9 feels tired and exhausted all the time. She claims there are days when 10 she has to stay in bed all day long. As previously discussed, however, 11 Ms. Sanderfer takes care of her children, prepares meals daily, does the 12 laundry, cleans the house, and gets around when necessary. She is able 13 to shop, go to the store, and handle money. She goes to church on a 14 regular basis and sometimes spends time with others. She does not need 15 to be reminded to go places and she doesn’t require assistance when 16 doing so. There is some disconnect between Ms. Sanderfer’s testimony to 17 her symptom severity and her daily activities. 18 As to her failure to follow a prescribed course of treatment, all 19 20 of her medical and psychological treatment providers, even the ones the 21 ALJ gave little weight to, recommend that Ms. Sanderfer stop smoking 22 cigarettes, stop smoking marijuana, and lose weight so that she can have 23 surgery. Much of her pain has been attributed to enlarged mammaries, 24 which 25 Additionally, 26 could be fixed many of with the surgery symptoms if she attributed would to lose her weight. respiratory impairments, such as her asthma, would at least partially subside if she 27 were to follow the instructions of her physicians. 28 ORDER - 17 1 The ALJ found Ms. Sanderfer’s testimony regarding the intensity, 2 persistence and limiting effects of her symptoms “not credible.” The ALJ 3 discussed 4 at length how Ms. Sanderfer’s medical history, her daily activities, and her failure to follow through on prescribed treatment, 5 do not support the severity of her symptoms. Therefore, the Court finds 6 that the ALJ did not err in finding Ms. Sanderfer’s subject testimony 7 regarding the intensity, persistence and limiting effects of her 8 9 symptoms not credible. 10 3. 11 Ms. Sanderfer contends that the ALJ erred in finding that there 12 are jobs that exits in significant numbers in the national economy 13 because the ALJ’s Residual Functional Capacity (“RFC”) assessment did 14 not account for the full extent of Ms. Sanderfer’s impairments and 15 Specific Jobs in the National Economy limitations. ECF No. 21 at 28. Specifically, Ms. Sanderfer contends that 16 the ALJ did not include impairments that physicians had diagnosed her as 17 having, did not include limitations that certain medical treatment 18 providers described her as having, and did not properly consider Ms. 19 20 Sanderfer’s symptoms. Id. at 29. As to the ALJ’s alleged failure to 21 include certain impairments and functional limitations, each of the 22 alleged omissions were included in the assessments of medical treatment 23 providers who, as previously discussed, were appropriately given little 24 weight. As to the ALJ’s alleged failure to consider Ms. Sanderfer’s 25 fibromyalgia symptoms, as the Court previously found, the ALJ did not 26 err in finding Ms. Sanderfer’s symptom-severity testimony less than 27 credible and, therefore, did not err in not including those functional 28 limitations in her RFC. ORDER - 18 1 C. Conclusion 2 The ALJ did not err by giving the opinions of certain medical and 3 mental health care providers less weight, or by finding Ms. Sanderfer’s 4 symptom-severity testimony not credible, or by not including certain 5 impairments and symptoms in determining Ms. Sanderfer’s RFC. Therefore, 6 the Court denies Ms. Sanderfer’s Motion for Summary Judgement and grants 7 the Commissioner’s motion for summary judgment. 8 9 10 Accordingly, IT IS HEREBY ORDERED: 1. DENIED. 11 12 2. 13 14 Ms. Sanderfer’s Motion for Summary Judgment, ECF No. 21, is The Commissioner’s Motion for Summary Judgment, ECF No. 26, is GRANTED. 3. 15 The Clerk’s Office is ordered to enter JUDGMENT in favor of the Commissioner. 16 4. The case shall be CLOSED. 17 IT IS SO ORDERED. The Clerk’s Office is directed to enter this 18 Order and provide copies to counsel. 19 20 DATED this 27th day of July 2016. 21 _____s/Edward F. Shea ___ EDWARD F. SHEA Senior United States District Judge 22 23 24 25 26 27 28 Q:\EFS\Civil\2014\5032.social.sec.lc2.docx ORDER - 19
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