Hollenbaugh v. Colvin, No. 4:2016cv05037 - Document 24 (E.D. Wash. 2017)

Court Description: ORDER Denying 14 Plaintiff's Motion for Summary Judgment and Granting 22 Defendant's Motion for Summary Judgment. Signed by Senior Judge Edward F. Shea. (PL, Case Administrator)

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Hollenbaugh v. Colvin Doc. 24 1 2 3 4 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF WASHINGTON 5 6 7 TROY HOLLENBAUGH, Plaintiff, 8 v. 9 10 11 No.: 4:16-CV-5037-EFS ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT CAROLYN COLVIN, Commissioner of Social Security, Defendant. 12 13 14 Before the Court are cross summary judgment motions. ECF Nos. 14 & 15 22. Plaintiff Troy Hollenbaugh appeals a denial of benefits by the 16 Administrative Law Judge (ALJ). ECF No. 14. Mr. Hollenbaugh contends the 17 ALJ erred because she (1) failed to properly consider the statements of 18 Gregory A. Oberg, D.C., Mr. Hollenbaugh’s treating chiropractor; (2) 19 improperly rejected the opinions of examining medical sources Dr. Opara 20 and Dr. Gomez; and (3) committed numerous credibility errors. ECF No. 14 21 22 at 1. The Commissioner of Social Security (“Commissioner”) asks the 23 Court to affirm the ALJ’s decision that Mr. Hollenbaugh is capable of 24 performing 25 significant number of jobs exist in the national economy. ECF No. 22. 26 After reviewing the record and relevant authority, the Court is fully 27 informed. substantial gainful activity in a field for which a For the reasons set forth below, the Court grants Defendant’s 28 ORDER - 1 Dockets.Justia.com 1 Motion for Summary Judgment and denies Plaintiff’s Motion for Summary 2 Judgment. 3 I. 4 Statement of Facts1 Mr. Hollenbaugh was born in 1960. AR 58. He completed eleventh 5 grade before obtaining his GED. AR 61. Mr. Hollenbaugh has been 6 diagnosed with hepatitis C and alleges a number of physical and 7 psychological disabilities, including spinal stenosis, left rotator cuff 8 9 tendinosis, arthritis in his left wrist, depression, and a pain 10 disorder. ECF No. 14 at 2–5; see, e.g., AR 363, 374–97, 404, 413. He has 11 treated his back and shoulder pain with surgery, injections in his 12 shoulder, and opiate pain medication. AR 374–97. Mr. Hollenbaugh spends 13 his days at home resting, doing household chores including laundry and 14 mowing the lawn, and reviewing his baseball card collection. AR 262–86. 15 Mr. Hollenbaugh has significant employment history, apparently 16 limited only by lengthy periods of time when he was incarcerated. 17 AR 287–302. Just prior to filing this claim, Mr. Hollenbaugh was working 18 in construction as a concrete foundation pourer, AR 288, and he had 19 20 worked in that position for various companies over the course of 21 approximately five years. AR 287–90, 298. Mr. Hollenbaugh also reports 22 working as an apprentice painter for approximately four years, AR 287, 23 292–95, and working as a salesman and delivery driver for a year prior 24 to that, AR 287, 296. 25 / 26 27 1 The facts are only briefly summarized. Detailed facts are contained in the administrative hearing transcript, the ALJ’s decision, the parties’ briefs, 28 and the underlying records. ORDER - 2 1 II. 2 3 4 Procedural History On August disability 27, 2012, insurance Mr. Hollenbaugh benefits, AR 208–09, protectively and filed applied a for claim for supplemental security income, AR 211–22. His alleged onset date was 5 August 6, 2012. AR 208, 211. Mr. Hollenbaugh’s claims were denied 6 initially and upon reconsideration. AR 151-54, 161–64. Mr. Hollenbaugh 7 filed a written request for an administrative hearing, which was held 8 9 before ALJ Jo Hoenninger on September 5, 2014. AR 49. On 10 December 22, 2014, the ALJ issued a decision denying Mr. 11 Hollenbaugh’s claims. AR 31–48. The Appeals Council denied review of the 12 ALJ’s decision. AR 1–4. On March 30, 2016, Mr. Hollenbaugh filed this 13 lawsuit appealing the ALJ’s decision. ECF No. 1. The parties then filed 14 the instant summary judgment motions. ECF Nos. 14 & 22. 15 III. Disability Determination 16 A “disability” is defined as the “inability to engage in any 17 substantial gainful activity by reason of any medically determinable 18 physical or mental impairment which can be expected to result in death 19 20 or which has lasted or can be expected to last for a continuous period 21 of 22 1382c(a)(3)(A). 23 evaluation process to determine whether a claimant is disabled. 24 C.F.R. §§ 404.1520, 416.920. 25 26 not less than twelve months.” The decision maker 42 uses U.S.C. a §§ 423(d)(1)(A), five-step sequential 20 Step one assesses whether the claimant is engaged in substantial gainful activities during the relevant period. If he is, benefits are 27 denied. 20 C.F.R. §§ 404.1520(b), 416.920(b). If he is not, the decision 28 maker proceeds to step two. ORDER - 3 Step 1 two assesses whether 2 impairment 3 416.920(c). If the combination of impairments, 4 or combination of claimant the claimant impairments. does the not has 20 have disability a medically C.F.R. a §§ 404.1520(c), severe claim is severe impairment denied. If or the 5 impairment is severe, the evaluation proceeds to the third step. 6 Step three compares the claimant’s impairment with a number of 7 listed impairments acknowledged by the Commissioner to be so severe as 8 9 to preclude substantial gainful activity. 20 C.F.R. §§ 404.1520(d), 404 10 Subpt. P App. 1, 416.920(d). If the impairment meets or equals one of 11 the listed impairments, the claimant is conclusively presumed to be 12 disabled. If the impairment does not meet or equal one of the listed 13 impairments, the evaluation proceeds to the fourth step. 14 15 Step four assesses whether the impairment prevents the claimant from performing work he has performed in the past. This includes 16 determining the claimant’s residual functional capacity. 20 C.F.R. 17 §§ 404.1520(e), 416.920(e). If the claimant is able to perform his 18 previous work, he is not disabled. If the claimant cannot perform this 19 20 21 work, the evaluation proceeds to the fifth step. Step five, 26 during this in view claimant of sequential his can see Bowen v. Yuckert, 482 U.S. 137 (1987). shifts economy the 24 proof national whether education, and work experience. 20 C.F.R. §§ 404.1520(f), 416.920(f); of the assesses 23 burden in step, perform The work final 22 25 other the age, disability analysis. The claimant has the initial burden of establishing a prima 27 facie case of entitlement to disability benefits. Rhinehart v. Finch, 28 438 F.2d 920, 921 (9th Cir. 1971). The claimant meets this burden if he ORDER - 4 1 establishes 2 engaging in his previous occupation. The burden then shifts to the 3 Commissioner to show (1) the claimant can perform other substantial 4 that a physical or mental impairment prevents him from gainful activity, and (2) that a “significant number of jobs exist in 5 the national economy” which the claimant can perform. Kail v. Heckler, 6 722 F.2d 1496, 1498 (9th Cir. 1984). A claimant is disabled only if his 7 impairments are of such severity that he is not only unable to do his 8 9 previous work but cannot, considering his age, education, and work 10 experiences, engage in any other substantial gainful work that exists in 11 sufficient quantity in the national economy. 12 1382c(a)(3)(B). 42 U.S.C. §§ 423(d)(2)(A), 13 In this case, the ALJ determined that Mr. Hollenbaugh was not 14 disabled. At step one, the ALJ determined that Mr. Hollenbaugh had not 15 engaged in substantial gainful activity following his alleged disability 16 onset date. AR 33. At step two, the ALJ found that Mr. Hollenbaugh has 17 the following severe impairments: spinal stenosis; left rotator cuff 18 tendinosis; hepatitis C; depression, not otherwise specified; and a pain 19 20 disorder associated with both psychological factors and a medical 21 condition. AR 33. At step three, the ALJ found that Mr. Hollenbaugh’s 22 impairments did not meet or medically equal the severity of any listed 23 impairments. AR 34. At step four, the ALJ found: 24 25 26 27 28 [T]he claimant has the residual functional capacity to lift, carry, push and pull 20 pounds occasionally and 10 pounds frequently. He can stand and walk two hours in an eight-hour workday. He has no limitations on sitting in an eight-hour workday. He can occasionally use foot controls with the left lower extremity. He can occasionally climb ramps and stairs. He should not climb ladders, ropes and scaffolds. He can occasionally balance, stoop, crouch and crawl. He can frequently kneel. He can occasionally reach ORDER - 5 overhead with the left upper extremity. He should avoid concentrated exposure to hazards such as unprotected heights and exposed moving mechanical parts. He can understand and remember simple instructions and has sufficient concentration, persistence and pace with more complicated tasks. He should have only occasional, brief, superficial contact with the general public and co-workers. He should have no over-the-shoulder supervision. 1 2 3 4 5 6 AR 7 determination that Mr. Hollenbaugh’s statements regarding the severity 8 of his symptoms were “not entirely credible.” AR 36. Based on this 9 35. This step four finding was based in part on the ALJ’s assessment, the ALJ concluded that Mr. Hollenbaugh could not perform any 10 past relevant work. AR 42. The ALJ then found, at step five, that Mr. 11 Hollenbaugh could perform jobs that exist in significant numbers in the 12 national economy, such as small products assembler, weld inspector, and 13 14 15 packing line worker. AR 43. IV. Standard of Review 16 On review, the Court considers the record as a whole, not just the 17 evidence supporting the ALJ’s decision. Weetman v. Sullivan, 877 F.2d 18 20, 22 (9th Cir. 1989) (quoting Kornock v. Harris, 648 F.2d 525, 526 19 (9th Cir. 1980)). The Court upholds the ALJ’s determination that the 20 claimant is not disabled if the ALJ applied the proper legal standards 21 and there is substantial evidence in the record as a whole to support 22 the decision. Delgado v. Heckler, 722 F.2d 570, 572 (9th Cir. 1983) 23 (citing 42 U.S.C. § 405(g)); Brawner v. Sec’y of Health & Human Servs., 24 25 839 F.2d 432, 433 (9th Cir. 1987). Substantial evidence is more than a 26 mere scintilla, Sorenson v. Weinberger, 514 F.2d 1112, 1119 n.10 (9th 27 Cir. 1975), but less than a preponderance, McAllister v. Sullivan, 888 28 F.2d 599, 601-02 (9th Cir. 1989); Desrosiers v. Sec’y of Health & Human ORDER - 6 1 Servs., 846 F.2d 573, 576 (9th Cir. 1988). “It means such relevant 2 evidence as a reasonable mind might accept as adequate to support a 3 conclusion.” Richardson v. Perales, 402 U.S. 389, 401 (1971) (citations 4 omitted). Reasonable inferences and conclusions drawn by the ALJ will 5 also be upheld. Mark v. Celebrezze, 348 F.2d 289, 293 (9th Cir. 1965). 6 If the evidence supports more than one rational interpretation, the 7 court must uphold the ALJ’s decision. Allen v. Heckler, 749 F.2d 577, 8 9 10 579 (9th Cir. 1984). V. The Court addresses each of Mr. Hollenbaugh’s challenges to the 11 12 Analysis ALJ’s decision. 13 A. 14 15 Mr. consider Treating Chiropractor Gregory A. Oberg Hollenbaugh the first opinion claims of that Gregory A. the ALJ Oberg, failed Mr. to properly Hollenbaugh’s 16 chiropractor. Mr. Hollenbaugh argues that Dr. Oberg’s opinion should not 17 have been discounted simply because he is a chiropractor and not an 18 “acceptable medical source.” He also argues that the fact that Dr. Oberg 19 20 21 recommended a separate physical capacity evaluation was not a reason to discount the opinion. Under the Social Security regulations, “only licensed physicians 22 23 and 24 medical sources.” Molina v. Astrue, 674 F.3d 1104, 1111 (9th Cir. 2012) 25 (internal quotes omitted). Chiropractors are not “acceptable medical 26 certain other qualified specialists are considered acceptable sources,” and their opinions are not entitled to the same deference as 27 acceptable medical sources. 20 C.F.R. § 404.1513(a), (d); Helmke v. 28 Astrue, 371 F. App’x 748, 749 (9th Cir. 2010) (“Because chiropractors ORDER - 7 1 are not ‘acceptable medical sources,’ their opinions are entitled to 2 less weight than a physician’s.” (internal citations omitted)). Still, 3 the opinions of “other sources” such as chiropractors may be used to 4 show the severity of impairments and how those impairments affect a 5 claimant’s ability to work. 20 C.F.R. § 404.1513(d). 6 The ALJ assigned “some weight” to Dr. Oberg’s opinion because “he 7 has a history of treatment of the claimant,” but the weight given to the 8 9 opinion was limited by the fact that “he reported that the claimant 10 should participate in a physical capacity evaluation to determine his 11 capabilities” and “as a chiropractor, he is not an acceptable medical 12 source under Social Security regulation.” AR 41. In addition, the ALJ 13 noted that greater weight was given to a conflicting opinion by Dr. 14 Opara because he is a medical doctor who qualifies as an acceptable 15 medical source and had examined the claimant. AR 41. 16 The Court holds that the ALJ did not err in giving less weight to 17 Dr. Oberg’s opinion as an “other source,” and instead giving more weight 18 to opinions by “acceptable medical sources.” Significantly, the ALJ did 19 20 not reject the opinion or even assign the opinion “little weight,” and 21 instead gave the opinion “some weight,” which is not a low level of 22 consideration. Moreover, the Court holds that it was appropriate for the 23 ALJ 24 additional capacity examination, as that tends to indicate that Dr. 25 Oberg did not consider himself fully informed as to Mr. Hollenbaugh’s 26 to consider the functional capacity. 27 // 28 / ORDER - 8 fact that Dr. Oberg himself recommended an B. 1 Examining Medical Sources Dr. Opara and Dr. Gomes 2 Mr. Hollenbaugh next claims that the ALJ inappropriately rejected 3 portions of the opinions of Dr. Opara and Dr. Gomes, despite giving 4 their opinions “great” and “some” weight, respectively. Specifically, 5 the ALJ discounted Dr. Opara’s conclusion that Mr. Hollenbaugh could 6 only reach occasionally with his right arm. Mr. Hollenbaugh argues that 7 this was a material error because the jobs recommended for him by the 8 9 vocational expert all require reaching. ECF No. 14 at 9. As to Dr. 10 Gomes, Mr. Hollenbaugh claims that the ALJ erred by discounting Dr. 11 Gomes’s finding that Mr. Hollenbaugh would be unable to maintain regular 12 attendance. 13 “In disability benefits cases . . . physicians may render medical, 14 clinical opinions, or they may render opinions on the ultimate issue of 15 disability — the claimant’s ability to perform work.” Garrison v. 16 Colvin, 759 F.3d 995, 1012 (9th Cir. 2014) (alteration in original). 17 There are three types of physicians: treating physicians, examining 18 physicians, and non-examining physicians. Lester v. Chater, 81 F.3d 821, 19 20 830 (9th Cir. 1995). The ALJ must provide “clear and convincing” reasons 21 for rejecting an examining physician’s opinions and may not reject such 22 opinions without providing “specific and legitimate reasons” supported 23 by “substantial evidence” in the record. Id. “An ALJ can satisfy the 24 substantial evidence requirement by setting out a detailed and thorough 25 summary of the facts and conflicting clinical evidence, stating his 26 interpretation thereof, and making findings.” Garrison, 759 F.3d at 1012 27 (internal quotation marks omitted). 28 / ORDER - 9 1. 1 Dr. Opara 2 Mr. Hollenbaugh contends that the ALJ failed to properly consider 3 the opinion of examining physician, Dr. Opara, as to Mr. Hollenbaugh’s 4 ability to reach with his right arm. The ALJ explained: 5 6 7 8 9 10 11 12 [Dr. Opara] examined the claimant and his opinion is generally consistent with his physical examination findings, other than regarding the claimant’s shoulder function. The claimant complained of right shoulder pain at the time of the evaluation. However, Dr. Opara reported reduced range of motion in both shoulders. He somewhat inconsistently reported limitation to light work in part due to limited range of motion of the left shoulder. He also opined that the claimant should only occasionally engage in reaching with the right shoulder because of diminished range of motion of the right shoulder joint. The evidence of record as a whole suggests that during the period relevant to this decision, the claimant has been limited primarily by left shoulder pain despite reporting right shoulder complaints at times. 13 14 15 AR 40. The ALJ also noted that the complaints of right shoulder pain were accounted for by the limitation to light work. AR 40. 16 Mr. Hollenbaugh argues that the record supports his claim of right 17 shoulder disability and cites numerous instances in the record when 18 right shoulder pain or issues were mentioned. ECF No. 14 at 11. As the 19 Commissioner notes, however, the instances cited are almost entirely 20 21 based on self-reporting by Mr. Hollenbaugh. See ECF No. 22 at 4. The only clinical finding as to right shoulder pain is found in Dr. Opara’s 22 opinion. This can be contrasted with the multiple occasions between 2011 23 and 2014 when Mr. Hollenbaugh sought out injections and medication from 24 25 26 his treating physician, Dr. Hocson, to address left shoulder pain. See 380–81, 383–84, 389–90, 436, 438–39. Cf. Lester v. Chater, 81 F.3d 821, 27 830 (9th Cir. 1995)(“As a general rule, more weight should be given to 28 the opinion of a treating source than to the opinion of doctors who do ORDER - 10 1 not treat the claimant.”). On only one occasion did Mr. Hollenbaugh 2 raise the issue of bilateral shoulder pain to Dr. Hocson, and that was 3 in March 2014, over 18 months after filing his social security and 4 disability claim. See AR 442. Even then, Dr. Hocson did not make a 5 finding as to bilateral shoulder pain, as Mr. Hollenbaugh declined an 6 exam. AR 445. The Court holds that the ALJ was justified in finding that 7 Mr. Hollenbaugh was primarily limited by left shoulder pain, and not 8 9 right shoulder pain. In addition, the ALJ noted that there were inconsistencies in Dr. 10 11 Opara’s 12 Hollenbaugh’s left shoulder was not limited in its range of motion, 13 while 14 assessment, however, Dr. Opara advised that Mr. Hollenbaugh should be 15 report. the right Dr. Opara shoulder reported was a limited. clinical AR 403. finding In his that Mr. functional limited in lifting due to limited motion of the left shoulder, and the 16 right shoulder is not mentioned in regard to lifting. AR 404. Dr. Opara 17 then notes that Mr. Hollenbaugh should be limited in reaching only as to 18 the right shoulder, due to the diminished range of motion in that joint, 19 20 and does not mention the left shoulder as relevant to reaching. AR 404. 21 Based on these inconsistencies and the evidence in the record, the Court 22 holds that the ALJ was justified in finding that Dr. Opara’s opinion as 23 to reaching with the right shoulder should not be given great weight. 24 25 26 Accordingly, while Mr. Hollenbaugh argues that the hypothetical given to the vocational expert was flawed due to the omission of additional reaching restrictions for the right shoulder, the Court holds 27 that the hypothetical given to the vocational expert — and the expert’s 28 ORDER - 11 1 recommendation 2 reflected Mr. Hollenbaugh’s impairments and are valid. 3 given 2. 4 as a result of that hypothetical — accurately Dr. Gomes Mr. Hollenbaugh argues that the ALJ improperly rejected the portion 5 of Dr. Gomes’s opinion in which Dr. Gomes indicated that Mr. Hollenbaugh 6 would be unable to maintain regular attendance due to his preoccupation 7 with his physical impairments. The ALJ explained: “The record contains no 8 9 support for Dr. Gomes’ opinion that the claimant would be unable to 10 maintain attendance due to his focus on his physical condition. That 11 opinion is given little weight as purely speculative.” 12 As an initial matter, the ALJ did not “reject” this portion of Dr. 13 Gomes’s opinion, but merely assigned it “little weight” due to the lack 14 of evidence supporting the opinion. Mr. Hollenbaugh argues that the ALJ’s 15 finding is not consistent with the record because another psychiatrist, 16 Dr. Hashmi, found that Mr. Hollenbaugh could not work given his 17 impairments. Dr. Hashmi’s report, however, does not mention an inability 18 to maintain attendance. In addition, the ALJ assigned little weight to 19 20 Dr. Hashmi’s opinion because it was not signed,2 was based on a one-time 21 evaluation, and appeared to be based primarily on Mr. Hollenbaugh’s self- 22 reporting of symptoms. AR 41–42. Accordingly, Dr. Hashmi’s opinion fails 23 to refute the ALJ’s finding that the record contains no support for Dr. 24 Gomes’s opinion that Mr. Hollenbaugh would be unable to maintain 25 26 27 2 The Court notes that Dr. Hashmi’s opinion was electronically signed, as noted on the final page of the report, AR 450, but that fact is immaterial to the 28 Court’s findings on this issue. ORDER - 12 1 attendance. The Court holds that the ALJ appropriately discounted the 2 relevant portion of Dr. Gomes’s opinion. 3 C. 4 Mr. Credibility Determination Hollenbaugh argues the ALJ relied on invalid reasons in 5 determining that his testimony regarding the severity and limiting 6 effects of his impairments was not entirely credible. Specifically, Mr. 7 Hollenbaugh argues that the ALJ improperly relied on findings that: 8 9 (1) Mr. Hollenbaugh obtained unemployment benefits while his application 10 was 11 recommendations,” AR 36; (3) his daily activities were inconsistent with 12 his 13 credibility; 14 manufacturing methamphetamine while accepting social security payments. 15 pending; symptom A (2) he was testimony; and two-step (5) he analysis (4) not his made is “fully criminal an used compliant history inconsistent by the with ALJ undermined statement to treatment assess his regarding whether a 16 claimant’s testimony regarding subjective pain or symptoms is credible. 17 Garrison, 759 F.3d at 1014. Step one requires the ALJ to determine 18 whether the claimant presented objective medical evidence of an 19 20 impairment, which could reasonably be expected to produce some degree of 21 the pain or other symptoms alleged. Lingenfelter v. Astrue, 504 F.3d 22 1028, 1035–36 (9th Cir. 2007); Smolen v. Chater, 80 F.3d 1273, 1282 (9th 23 Cir. 1996). Objective medical evidence of the pain or fatigue, or the 24 severity thereof, need not be provided by the claimant. Garrison, 759 25 F.3d at 1014. 26 If the claimant satisfies the first step of this analysis, and 27 there is no evidence of malingering, the ALJ must accept the claimant’s 28 testimony about the severity of his symptoms unless the ALJ provides ORDER - 13 1 specific, clear, and convincing reasons for rejecting the claimant’s 2 symptom-severity testimony. Id. An ALJ is not “required to believe every 3 allegation of disabling pain” or other non-exertional impairment. Orn v. 4 Astrue, 495 F.3d 625, 635 (9th Cir. 2007). To discredit a claimant’s 5 testimony after finding that a medical impairment exists, however, “the 6 ALJ must provide specific, cogent reasons for the disbelief.” Id. 7 (internal quotation marks omitted). “Factors that an ALJ may consider in 8 9 weighing a claimant’s credibility include reputation for truthfulness, 10 inconsistencies in testimony or between testimony and conduct, daily 11 activities, and unexplained, or inadequately explained, failure to seek 12 treatment or follow a prescribed course of treatment.” Id. at 636. 13 14 15 In this case, the ALJ fully documented the testimony of Mr. Hollenbaugh as to the intensity, persistence, and limiting effects of his impairments. AR 36. The ALJ then found that Mr. Hollenbaugh’s 16 “medically determinable cause alleged impairments could reasonably be expected to 17 the symptoms; however, his statements concerning the 18 intensity, persistence and limiting effects of these symptoms are not 19 20 entirely credible . . . .” AR 36. The ALJ continued on for approximately 21 six pages outlining Mr. Hollenbaugh’s medical history and how it is 22 inconsistent with his testimony regarding the severity of his symptoms. 23 AR 35–42. 24 First, the ALJ cited various medical records that cast doubt on 25 the severity of Mr. Hollenbaugh’s symptoms. The ALJ reviewed records 26 from Mr. Hollenbaugh’s treating physician, Dr. Hocson, and noted that 27 Mr. Hollenbaugh initially continued to work despite reporting pain, that 28 the pain was “treated conservatively,” and that Mr. Hollenbaugh did not ORDER - 14 1 follow through with a recommendation that he obtain an MRI. AR 37. 2 Later, 3 Hollenbaugh was not in compliance with blood pressure medication and 4 the ALJ cited additional records from Dr. Hocson that Mr. needed to reestablish contact with a doctor for hepatitis C treatment. 5 AR 38. The ALJ noted that no treatment is documented for hepatitis C. AR 6 39. The ALJ also cited the fact that Dr. Peacock referred Mr. 7 Hollenbaugh to a neurologist and that his treating chiropractor, Mr. 8 9 Oberg, referred Mr. Hollenbaugh to a doctor at the Kadlec Neuroscience 10 Center, but 11 recommendation. AR 37–38. The 12 Mr. ALJ Hollenbaugh explained did that not follow Dr. Opara, the through with examining either physician, 13 concluded that Mr. Hollenbaugh “can stand and/or walk two hours of an 14 eight-hour workday,” “has no limitation on sitting,” and “can lift and 15 carry 20 pounds occasionally and 10 pounds frequently.” AR 41. The ALJ 16 cited the more conservative opinion of medical consultant Dr. Stanley 17 that “the claimant remains able to perform light work with only 18 occasional use of foot controls with the left leg; occasional climbing; 19 20 and avoidance of concentrated exposure to hazards,” AR 41, but found 21 that greater limitation was appropriate based on the evidence in the 22 record and Dr. Opara’s opinion. AR 41. The ALJ also noted that she found 23 a limitation based on partially crediting Mr. Hollenbaugh’s statements: 24 “At the hearing, the claimant complained primarily of left shoulder pain 25 and limitation and I have credited his complaints to the extent that he 26 is limited to work which 27 shoulder level.” AR 41. 28 ORDER - 15 involves only occasionally reaching above The ALJ also cited to other inconsistencies that contributed to 1 2 her 3 reported daily activities: 4 6 7 8 10 credibility finding, including Mr. Hollenbaugh’s self- The claimant has described activities that are not limited to the extent one would expect, given the complaints of disabling symptoms and limitations. He reported in November 2012 that he performs some housework, including vacuuming and laundry; he mows the lawn when it is due; and he performs some maintenance work at home. He testified at the hearing that since August 6, 2012, he has performed volunteer work for relatives when they need help. 5 9 negative AR 39 (internal citation omitted). The ALJ also noted that the evidence “suggests that the claimant’s work did not end due to disability,” as 11 “he testified at the hearing that he was laid off from his most recent 12 work doing foundation/concrete work . . . because the foundation crew 13 14 15 was disbanded.” AR 39. An additional inconsistency identified by the ALJ was that Mr. Hollenbaugh received unemployment benefits while his social 16 security and disability claims were pending, and, as the ALJ explained, 17 “[i]n order to qualify for such benefits, applicants must typically 18 affirm that they are capable of working.” AR 39. 19 20 21 The ALJ also noted that Mr. Hollenbaugh’s “credibility is diminished by his criminal history.” AR 39. The ALJ advised that “prior felony convictions do not singularly bar a finding of disability,” but 22 that “a criminal record[] does cast doubt on the claimant’s veracity, 23 character, and truthfulness,” and Mr. Hollenbaugh’s crimes “necessarily 24 25 26 involv[ed] dishonesty and deception.” AR 39–40. In addition, the ALJ cited the fact that “in response to specific questioning by me at the 27 hearing, the claimant acknowledged that during a portion of the time he 28 was receiving ORDER - 16 SSI payments, he was engaging in manufacture of 1 methamphetamine.” 2 admission, 3 further 4 but AR the diminish 40. ALJ his Mr. Hollenbaugh concluded that credibility.” AR subsequently the 40. refuted “inconsistent Despite Mr. that statements Hollenbaugh’s indications to the contrary, the inconsistencies noted by the ALJ are 5 all valid considerations for the ALJ’s credibility assessment. See Orn, 6 495 F.3d at 636. 7 Mr. Hollenbaugh argues that the ALJ improperly considered Mr. 8 9 Hollenbaugh’s noncompliance with medical recommendations as a basis for 10 discrediting 11 failure to follow through with recommendations and referrals by treating 12 sources 13 failure to seek treatment for his hepatitis C, are proper considerations 14 for the ALJ in assessing the claimant’s credibility. See Orn, 495 F.3d 15 his regarding statements. The neurological Court and pain holds that Mr. complaints, Hollenbaugh’s along with his at 636. The fact that Mr. Hollenbaugh did not have insurance for a 16 period and could not travel to his treating physician are also 17 appropriate considerations, but these explanations fail to explain all 18 of the instances of noncompliance, as Mr. Hollenbaugh was noncompliant 19 20 during periods when he had insurance and there is no evidence that he 21 could not have pursued treatment locally. Fair v. Bowen, 885 F.2d 597, 22 603 (9th Cir. 1989) (A claimant’s failure to assert a “good reason[]” 23 for failure to seek treatment or follow a proposed course of treatment 24 “can cast doubt on the sincerity of the claimant’s pain testimony.”). 25 Accordingly, the Court holds that the ALJ did not err by failing to 26 discuss explanations for the noncompliance in her decision. Moreover, 27 based on the one-sentence reference to noncompliance in the decision, it 28 is clear that the ALJ’s credibility finding was primarily based on other ORDER - 17 1 factors, and including the partial explanations for noncompliance, even 2 if credited, would not have affected the credibility finding. 3 4 The ALJ’s findings regarding Mr. Hollenbaugh’s daily activities are also appropriate. Mr. Hollenbaugh argues that the ALJ said that 5 reported daily activities “disqualify Mr. Hollenbaugh from being 6 considered as having disabling symptoms and limitations.” ECF No. 14 at 7 16. The ALJ did not make a statement to that effect and found only that 8 9 “[Mr. Hollenbaugh’s] reported activities are consistent with the above- 10 described residual functional capacity assessment for sedentary to light 11 work.” AR 39. Mr. Hollenbaugh is correct that “impairments that would 12 unquestionably preclude work and all of the pressures of a workplace 13 environment will often be consistent with doing more than merely resting 14 in bed all day.” ECF No. 14 at 16–17 (quoting Garrison, 759 F.3d at 15 1016). Nevertheless, the ALJ may certainly consider the types of 16 activities performed and whether they are consistent with the level of 17 disability claimed. Fair, 885 F.2d at 603. The Court holds that the ALJ 18 was justified in finding that Mr. Hollenbaugh’s reported activities of 19 20 vacuuming, doing laundry, mowing the lawn, doing maintenance work at 21 home, and occasionally helping relatives with projects are fairly 22 rigorous activities that are consistent with sedentary to light work. As to unemployment benefits, Mr. Hollenbaugh argues: “The receipt 23 24 of 25 claimant is not credible where the record does not establish that the 26 unemployment benefits does not support an ALJ’s finding that a claimant held himself out as capable and available for full-time work.” 27 ECF No. 14 at 13. He notes that “courts have interpreted the benefits as 28 relationship ORDER - 18 between disability and unemployment 1 inconsistent, but not preclusive.” ECF No. 14 at 13. These arguments are 2 not in conflict with the ALJ’s finding in this case. The ALJ noted only 3 that in order to receive unemployment benefits, applicants generally 4 must affirm that they are able to work. AR 39. She did not find that Mr. 5 Hollenbaugh had made such an affirmation in his unemployment 6 application. In addition, the ALJ in no way indicated that the finding 7 that Mr. Hollenbaugh received unemployment benefits precluded him from 8 9 10 11 obtaining social security and disability benefits, it was simply one of many factors considered by the ALJ. Regarding Mr. Hollenbaugh’s criminal history, Mr. Hollenbaugh 12 argues that his history does not discredit his allegations of pain and 13 objective evidence of impairment. The ALJ did not make such a finding 14 and, as explained above, weighed the objective evidence in the record 15 when assessing Mr. Hollenbaugh’s credibility and level of impairment. In 16 fact, the ALJ expressly stated that a criminal record does not bar a 17 finding of disability, but is simply a factor that weighs against a 18 claimant’s veracity. AR 39. His criminal history was an appropriate 19 20 consideration in assessing Mr. Hollenbaugh’s reputation for 21 truthfulness. See Thomas v. Barnhart, 278 F.3d 947, 958–59 (9th Cir. 22 2002). 23 Similarly, it was appropriate for the ALJ to consider Mr. manufacture of 24 Hollenbaugh’s 25 methamphetamine. Mr. Hollenbaugh stated during the hearing that, in the 26 inconsistent statements regarding past, he manufactured methamphetamine while receiving social security 27 payments. AR 55. He later submitted a filing explaining to the ALJ that 28 he had not actually manufactured methamphetamine during that period and ORDER - 19 1 had instead only used methamphetamine. AR 323–25. It is important to 2 note 3 methamphetamine influenced her credibility finding, but noted only that 4 the that the ALJ inconsistent did not statements indicate regarding that the the manufacture manufacturing of “further 5 diminish his credibility.” AR 40. Such inconsistent statements are 6 relevant to credibility. See Thomas, 278 F.3d at 958–59. 7 Based on the evidence in the record — as compared with Mr. 8 9 Hollenbaugh’s disability reports and testimony regarding the severity, 10 intensity, and limiting effects of his impairments — the ALJ found that 11 Mr. Hollenbaugh’s subjective statements were not credible. While the 12 findings regarding noncompliance, daily activities, or criminal history 13 alone may not have been sufficient to justify the ALJ’s credibility 14 finding, all of the considerations discussed above, in combination with 15 the objective findings in the record, justify the ALJ’s credibility 16 finding. The ALJ provided specific, clear, and convincing reasons for 17 rejecting the claimant’s testimony as to symptom severity. The Court 18 therefore holds that the ALJ and did not err in finding Mr. 19 20 21 Hollenbaugh’s testimony not entirely credible. VI. Conclusion 22 For the above-given reasons, the Court denies Plaintiff’s Motion 23 for Summary Judgment and grants Defendant’s Motion for Summary Judgment. 24 The Court notes, however, that neither this Court’s decision nor the 25 decision of the ALJ should be read to indicate that Mr. Hollenbaugh does 26 not suffer from valid impairments. These decisions simply reflect the 27 fact that the information provided in the record does not support a 28 ORDER - 20 1 finding 2 Security Administration. 3 4 of disability under the standards outlined by the Social Accordingly, IT IS HEREBY ORDERED: 1. Mr. Hollenbaugh’s Motion for Summary Judgment, ECF No. 14, is 5 DENIED. 6 2. The Commissioner’s Motion for Summary Judgment, ECF No. 22, 7 is GRANTED. 8 9 3. The Clerk’s Office is to enter Judgment in favor of the Commissioner. 10 11 4. 12 IT IS SO ORDERED. 13 14 The case shall be CLOSED. The Clerk’s Office is directed to enter this Order and provide copies to counsel and ALJ Jo Hoenninger. DATED this 9th day of January 2017. 15 16 ____s/Edward F. Shea_______ EDWARD F. SHEA Senior United States District Judge 17 18 19 20 21 22 23 24 25 26 27 28 Q:\EFS\Civil\2016\5037.Hollenbaugh.ord.deny.ss.lc02.docx ORDER - 21

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