Blakely v. Commissioner of Social Security, No. 4:2016cv05137 - Document 20 (E.D. Wash. 2017)
Court Description: ORDER GRANTING DEFENDANT'S SUMMARY JUDGMENT MOTION 18 AND DENYING PLAINTIFF'S SUMMARY JUDGMENT MOTION 17 . Signed by Senior Judge Edward F. Shea. (VR, Courtroom Deputy)
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Blakely v. Commissioner of Social Security Doc. 20 1 2 3 4 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF WASHINGTON 5 6 7 No. BRIAN BLAKELY, 8 4:16-CV-05137-EFS Plaintiff, 9 v. 10 COMMISSIONER OF SOCIAL SECURITY, 11 ORDER GRANTING DEFENDANT’S SUMMARY JUDGMENT MOTION AND DENYING PLAINTIFF’S SUMMARY JUDGMENT MOTION Defendant. 12 13 Before the Court are cross summary judgment motions. ECF 14 Nos. 17 & 18. 15 the Administrative Law Judge (ALJ). ECF No. 17. 16 that the ALJ (1) erroneously rejected the examining medical opinion of 17 Jameson Lontz, Ph.D.; (2) erroneously rejected the opinion of Jared 18 Holman, 19 convincing reasons for discrediting Mr. Blakely’s symptom testimony. 20 ECF No. 17 at 2. 21 asks the 22 capable of performing substantial gainful activity in a field for 23 which a significant number of jobs exist in the national economy. ECF 24 No. 18. Plaintiff Brian Blakely appeals a denial of benefits by A.R.N.P.; Court and (3) failed to provide Mr. Blakely contends specific, clear, and The Commissioner of Social Security (Commissioner) to affirm the ALJ’s decision that Mr. Blakely is 25 26 ORDER GRANTING SUMMARY JUDGMENT IN FAVOR OF DEFENDANT - 1 Dockets.Justia.com After reviewing the record and relevant authority, the Court is 1 2 fully informed. For the reasons set forth below, the Court denies 3 Plaintiff’s Motion for Summary Judgment and grants Defendant’s Motion 4 for Summary Judgment. FACTS AND PROCEDURAL HISTORY1 I. 5 Mr. Blakely was born in 1976. AR 168. 6 He obtained his GED in 7 2006. AR 214. 8 his 9 working as an industrial truck operator, a laborer for stores, a 10 material handler, a cannery worker, a cleaner housekeeper, a house 11 mover-helper, and a van driver. AR 29–30, 50. alleged Mr. Blakely has significant employment history up until disability onset date of August 15, 2012, including 12 In 2000, Mr. Blakely suffered a traumatic brain injury when he 13 fell from a ladder, which resulted in a seizure disorder and cognitive 14 deficits. AR 300, 365. 15 in 2008. AR. 366. 16 vertigo, hearing problems in the left ear, and double vision on the 17 right side. AR 221. He was on disability until he returned to work Mr. Blakely reports that he has difficulty with Mr. Blakely spends his days watching television, fishing, doing 18 19 chores, visiting others, and using the computer. AR 223–25. He 20 reports that his parents assist him with cooking, shopping, and other 21 chores. AR 222–25. 22 needs to have things repeated to him and requires hands on training. 23 AR. 604. Mr. Blakely also indicates that he frequently 24 25 26 1 The facts are only briefly summarized. Detailed facts are contained in the administrative hearing transcript, the ALJ’s decision, the parties’ briefs, and the underlying records. ORDER GRANTING SUMMARY JUDGMENT IN FAVOR OF DEFENDANT - 2 1 On August 16, 2012, Blakely disability 3 supplemental security income, AR 175. 4 August 15, 2012. AR 168. 5 and upon reconsideration. AR 79, 101. 6 request 7 9 On an June 2015, Blakely’s claims. AR 32. 168, and filed for claim for a His alleged onset date was Mr. Blakely’s claims were denied initially administrative 11, AR applied before ALJ Caroline Siderius on January 29, 2015, AR 40. for benefits, protectively 2 8 insurance Mr. the Mr. Blakely filed a written hearing, ALJ AR issued 113–14, a which decision was denying held Mr. The Appeals Council denied review of the 10 ALJ’s decision. AR 1. 11 lawsuit appealing the ALJ’s decision. ECF Nos. 1 & 3. 12 subsequently 13 Nos. 17 & 18. filed the II. 14 On October 18, 2016, Mr. Blakely filed this instant summary judgment The parties motions. ECF DISABILITY DETERMINATION 15 A “disability” is defined as the “inability to engage in any 16 substantial gainful activity by reason of any medically determinable 17 physical or mental impairment which can be expected to result in 18 death or which has lasted or can be expected to last for a continuous 19 period of not less than twelve months.” 42 U.S.C. §§ 423(d)(1)(A), 20 1382c(a)(3)(A). 21 evaluation process to determine whether a claimant is disabled. 20 22 C.F.R. §§ 404.1520, 416.920. 23 The decision maker uses a five-step sequential Step one assesses whether the claimant is engaged in substantial 24 gainful activities during the relevant period. 25 are denied. 20 C.F.R. §§ 404.1520(b), 416.920(b). 26 If he is, benefits decision maker proceeds to step two. If he is not, the ORDER GRANTING SUMMARY JUDGMENT IN FAVOR OF DEFENDANT - 3 1 Step two assesses whether the claimant has a medically severe 2 impairment or combination of impairments. 20 C.F.R. §§ 404.1520(c), 3 416.920(c). 4 combination of impairments, the disability claim is denied. 5 impairment is severe, the evaluation proceeds to the third step. If the claimant does not have a severe impairment or If the 6 Step three compares the claimant’s impairment with a number of 7 listed impairments acknowledged by the Commissioner to be so severe 8 as to preclude substantial gainful activity. 20 C.F.R. §§ 404 Subpt. 9 P App. 1, 404.1520(d), impairments, the claimant is conclusively presumed to be disabled. 12 If 13 impairments, the evaluation proceeds to the fourth step. does not meets meet or or equals equal one one of 416.925, 11 impairment impairment 416.920(d), 416.926. the the 404.1526, 10 14 If 404.1525, of the the listed listed Step four assesses whether the impairment prevents the claimant 15 from performing work he has performed in the past. 16 determining the claimant’s residual functional capacity (RFC). 20 17 C.F.R. 18 perform his previous work, he is not disabled. 19 cannot perform this work, the evaluation proceeds to the fifth step. 20 §§ 404.1520(e), 416.920(e). If the This includes claimant is able to If the claimant Step five, the final step, assesses whether the claimant can 21 perform 22 education, and work experience. 20 C.F.R. §§ 404.1520(g), 416.920(g); 23 see Bowen v. Yuckert, 482 U.S. 137 (1987). 24 other work in the national economy in view of his age, The burden of proof shifts during this sequential disability 25 analysis. The claimant has the initial burden of establishing a 26 prima facie case of entitlement to disability benefits. Rhinehart v. ORDER GRANTING SUMMARY JUDGMENT IN FAVOR OF DEFENDANT - 4 1 Finch, 438 F.2d 920, 921 (9th Cir. 1971). 2 burden 3 prevents him from engaging in his previous occupation. 4 then shifts to the Commissioner to show that (1) the claimant can 5 perform other substantial gainful activity, and (2) a “significant 6 number of jobs exist in the national economy” that the claimant can 7 perform. Kail v. Heckler, 722 F.2d 1496, 1498 (9th Cir. 1984). 8 claimant is disabled only if his impairments are of such severity 9 that he is not only unable to do his previous work but cannot, 10 considering his age, education, and work experiences, engage in any 11 other substantial gainful work that exists in sufficient quantity in 12 the national economy. 42 U.S.C. §§ 423(d)(2)(A), 1382c(a)(3)(B). 13 if In he this establishes case, the that ALJ a The claimant meets this physical determined or that Mr. mental impairment The burden Blakely was A not 14 disabled. 15 engaged 16 disability onset date. AR 23. 17 Blakely has the following severe impairments: (1) seizure disorder, 18 (2) mild memory loss, and (3) mood instability. AR 23. 19 three, the ALJ found that Mr. Blakely’s impairments did not meet or 20 medically equal the severity of any listed impairments. AR 24. 21 step four, the ALJ found: 22 23 24 25 26 At step one, the ALJ determined that Mr. Blakely had not in substantial gainful activity following his alleged At step two, the ALJ found that Mr. At step After careful consideration of the entire record, the undersigned finds that the claimant has the residual functional capacity to perform medium work as defined in 20 CFR 404.1567(c) and 416.967(c) subject to the following limitations. The claimant can lift or carry 40 pounds occasionally and 20 pounds frequently. The claimant can perform work that does not require him to walk on uneven surfaces, climb ladders, ropes, or scaffolds, or work at unprotected heights. The claimant does not have any ORDER GRANTING SUMMARY JUDGMENT IN FAVOR OF DEFENDANT - 5 At limitations walking, sitting or standing. The claimant can perform work [that] does not require the operation of the machinery or equipment or the operation of foot pedals. He can perform work that does not require driving. He can perform simple repetitive tasks. He can tolerate occasional, brief, and non-collaborative contact with the public and coworkers. The claimant would need to have frequent brief breaks every 60 to 90 minutes for up to five minutes. 1 2 3 4 5 6 AR 25. This finding was based in part on the ALJ’s determination 7 that Mr. Blakely’s statements “concerning the intensity, persistence 8 and limiting effects of these symptoms are not entirely credible.” 9 AR 26. The ALJ determined that Mr. Blakely could 10 relevant work as a cleaner housekeeper. AR 29. 11 perform past Accordingly, the ALJ concluded at step four that Mr. Blakely is not disabled. 12 Although the ALJ determined that Mr. Blakeley is not disabled at 13 step four, she went on to make an “alternative” finding at step five 14 that “considering the claimant’s age, education, work experience, and 15 residual functional capacity, there are other jobs that exist in 16 significant numbers in the national economy that claimant also can 17 perform.” AR 30. Based on the vocational expert’s testimony, the ALJ 18 found Blakely 19 attendant. that Mr. would be able to work as a cafeteria III. STANDARD OF REVIEW 20 21 On review, the Court considers the record as a whole, not just 22 the evidence supporting the ALJ’s decision. Weetman v. Sullivan, 877 23 F.2d 20, 22 (9th Cir. 1989) (quoting Kornock v. Harris, 648 F.2d 525, 24 526 (9th Cir. 1980)). 25 the claimant is not disabled if the ALJ applied the proper legal 26 standards and there is substantial evidence in the record as a whole The Court upholds the ALJ’s determination that ORDER GRANTING SUMMARY JUDGMENT IN FAVOR OF DEFENDANT - 6 1 to support the decision. Delgado v. Heckler, 722 F.2d 570, 572 (9th 2 Cir. 1983) (citing 42 U.S.C. § 405(g)); Brawner v. Sec’y of Health & 3 Human Servs., 839 F.2d 432, 433 (9th Cir. 1987). 4 is more than a mere scintilla, Sorenson v. Weinberger, 514 F.2d 1112, 5 1119 n.10 (9th Cir. 1975), but less than a preponderance, McAllister 6 v. Sullivan, 888 F.2d 599, 601-02 (9th Cir. 1989); Desrosiers v. Sec’y 7 of Health & Human Servs., 846 F.2d 573, 576 (9th Cir. 1988). 8 means such relevant evidence as a reasonable mind might accept as 9 adequate to support a conclusion.” Richardson v. Perales, 402 U.S. Substantial evidence “It 10 389, 401 (1971) (citations omitted). 11 inferences and conclusions as the [ALJ] may reasonably draw from the 12 evidence.” Mark v. Celebrezze, 348 F.2d 289, 293 (9th Cir. 1965). 13 the 14 reviewing court must uphold the ALJ’s decision. Allen v. Heckler, 749 15 F.2d 577, 579 (9th Cir. 1984). evidence supports more than IV. 16 The Court will also uphold “such one rational interpretation, If a ANALYSIS The Court addresses each of Mr. Blakely’s challenges to the 17 18 ALJ’s decision in turn. 19 A. 20 Medical Opinion of Jameson Lontz, Ph.D. Mr. Blakely claims that the ALJ erroneously rejected 21 examining medical opinion of Jameson Lontz. ECF No. 17 at 6. 22 Blakely 23 the develop the record as recommended by Dr. Lontz.” ECF No. 17 at 9. also contends disability that the 24 “In 25 medical, clinical opinions, 26 ultimate issue disability of benefits ALJ cases or — they the “further . . may . erred in physicians render claimant’s failing may opinions ability ORDER GRANTING SUMMARY JUDGMENT IN FAVOR OF DEFENDANT - 7 to Mr. to render on the perform 1 work.” Garrison 2 (alteration 3 treating 4 physicians. Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1995). 5 ALJ 6 examining 7 without 8 “substantial evidence” in the record. Id. 9 substantial in v. Colvin, original). physicians, must provide providing and of are not by and of and reasons legitimate requirement facts may (9th types physicians, and and 1012 three convincing” opinions the 995, 2014) physicians: non-examining for reject Cir. rejecting such reasons” The an opinions supported by “An ALJ can satisfy the setting out conflicting a detailed clinical and 10 thorough 11 stating his interpretation thereof, and making findings.” Garrison, 12 759 F.3d at 1012 (internal quotation marks omitted). 13 summary There “specific evidence F.3d examining “clear physician’s 759 evidence, On February 26, 2015, Dr. Jameson C. Lontz, Ph.D., conducted a 14 neuropsychological evaluation. AR 365–371. 15 Dr. Lontz diagnosed Mr. Blakely with “[m]ild neurocognitive disorder, 16 due to traumatic brain injury, without behavioral disturbance, mild.” 17 AR 370. 18 Results indicated generally reduced intellectual performances with relatively high perceptual reasoning abilities alongside generally low average memory abilities. Academic performances were within the low average range. Significant attention and concentration confound was indicated. Significant deficits within the sensorimotor and language domains were found. However, executive functions appeared to be within normal limits. AR 365. 19 20 21 22 23 In the resulting report, Dr. Lontz’s major findings were as follows: Under the portion of the report entitled “Recommendations” Dr. 24 Lontz included a list of 12 suggestions, including the following: 25 2) Cognitive behavioral therapy to address mood instability that results from ongoing residuals due to what is purported to be moderate traumatic brain injury. 26 ORDER GRANTING SUMMARY JUDGMENT IN FAVOR OF DEFENDANT - 8 1 2 3 4 5 6 7 8 9 3) Psychiatric consult to determine ongoing candidacy for mood stabilizing medication that can address the symptoms outlined in this report. a. As part of that consult, the examinee may also want to consider a stimulant medication that allows for better attention and concentration. . . . . 9) Should the examinee elect a return to work in a capacity (which would be relatively reduced compared to his former functioning), frequent breaks of short duration are recommended (e.g., 15 minute breaks every 60–90 minutes during the workday). . . . . 11) Occupational and speech therapies are recommended so as to assess functional limitations, and to develop and implement compensatory strategies (e.g., daily planner, schedule) that will assist the examinee toward improved self-management skills. 10 AR 370. 11 The ALJ stated that Dr. Lontz’s opinion “supports limiting the 12 claimant to simple routine work and reducing stress by limiting social 13 interaction,” and the ALJ afforded that opinion significant weight. 14 AR 29. The ALJ also found, however, that the “duration of breaks 15 opined by Dr. Lontz is not supported by the medical evidence of 16 record. Although the claimant may need breaks, the evidence regarding 17 the frequency of seizures and cognitive functioning supports no more 18 than brief breaks. As such, this portion of Dr. Lontz’s opinion is 19 given lesser weight.” AR 29. 20 1. Length of Recommended Work Break 21 Mr. Blakely argues that the ALJ “rejected only that portion of 22 the opinion that would indicate an inability to engage in competitive 23 employment — namely, Dr. Lontz’s specific determination that Mr. 24 Blakely would require 15 minute breaks every 60-90 minutes during the 25 workday.” ECF No. 17 at 6. According to Mr. Blakely, “the ALJ’s 26 ORDER GRANTING SUMMARY JUDGMENT IN FAVOR OF DEFENDANT - 9 1 interpretation mischaracterizes the nature of his impairments and is 2 unsupported by the medical record.” ECF No. 19 at 3. 3 First, it is worth noting the language in Dr. Lontz’s report 4 does not indicate a clear need for Mr. Blakely to take 15-minute 5 breaks in order to be able to work. 6 is provided as an example of what might constitute the recommended 7 “frequent breaks of short duration.” AR 370. 8 rely 9 rather than recommendations.” Rounds v. Comm’r Soc. Sec. Admin., 807 on specific imperatives Instead, the 15-minute duration regarding An ALJ “may rationally a claimant’s limitations, 10 F.3d 996, 1006 (9th Cir. 2015). Thus, the ALJ was not required to 11 treat this parenthetical illustration as an opinion regarding Mr. 12 Blakely’s employment limitations. 13 Second, to the extent the example of a 15-minute break could be 14 considered to constitute Dr. Lontz’s “opinion,” that opinion appears 15 to be inconsistent with the opinion of another acceptable medical 16 source. 17 neurologist, pointed out that the neuropsychology evaluation needs to 18 be viewed in the context of Mr. Blakely’s activities of daily living 19 and the history of comments made by Mr. Blakely’s treating physicians. 20 AR 47. 21 that Mr. Blakely suffered from only mild cognitive impairment. AR 42– 22 47. 23 During the May 14, 2015 hearing, Dr. Ronald Devere, a Upon consideration of everything before him, Dr. Devere opined Consistent with Dr. Devere’s opinion and testimony, the ALJ 24 noted that the treating records throughout 2014 “show few, if any, 25 complaints 26 claimant’s treatment history shows little mention of mood difficulties of impairment related to his mental impairments. ORDER GRANTING SUMMARY JUDGMENT IN FAVOR OF DEFENDANT - 10 The 1 and minimal, if any treatment for these. 2 considered these impairments given their intersection with his mild 3 cognitive difficulties.” AR 28 (internal record citations omitted). 4 Thus, the ALJ pointed to specific and legitimate reasons — which were 5 supported by substantial evidence on the record — for her conclusion 6 that 7 residual functional capacity. frequent 5-minute breaks However, the undersigned has adequately reflected Mr. Blakely’s 8 Lastly, assuming arguendo that the ALJ erred in determining that 9 5-minute breaks would be sufficient, Mr. Blakely has not shown any 10 resulting harm. At the hearing, when the hypothetical given to the 11 vocational 12 minutes, the vocational expert still opined that — although it was a 13 close call — a cafeteria attendant employer would retain the employee. 14 Thus, even if Mr. Blakely required frequent 15-minute breaks, the 15 expert testimony in the record supports finding that Mr. Blakely can 16 perform 17 economy. expert a was significant changed number to of reflect jobs a that break exist duration in the of 15 national 18 2. Further Development of the Record 19 Mr. Blakely argues that Dr. Lontz “recommended evaluations to 20 determine the limitations 21 evaluations 22 functional limitations based on those impairments.” ECF No. 17 at 9. 23 Contrary to Mr. Blakely’s contentions, however, Dr. Lontz did not 24 recommend 25 recommendations suggest that further record development was necessary. 26 Looking at Dr. Lontz’s recommendations, it is clear that each of the from an developing from Mr. occupational the record Blakely’s and speech any mood disorders, therapist further, nor ORDER GRANTING SUMMARY JUDGMENT IN FAVOR OF DEFENDANT - 11 to and assess did his 1 suggested 2 Blakely with a treatment plan; they did not necessarily call for 3 further diagnosis or clarification. 4 B. 7 8 9 10 11 12 consultations were intended to provide Mr. Opinion of Jared Holman, A.R.N.P. In her decision, the ALJ stated, 5 6 additional On April 29, 2013, Jared Homan, A.R.N.P., opined the claimant could perform light work. He opined the claimant’s epilepsy and hemiplegia would cause mild limitations in functioning. Additionally, he noted the claimant’s conductive hearing loss would cause moderate limitations in the claimant’s ability to hear. Mr. Holman’s opinion suggests the claimant retains the ability to perform some work. The medical evidence does not support significant limitations based on hearing loss and does not support the degree of exertional limitation opined by Mr. Holman. As such, his opinion is given lesser weight. AR 28. Mr. 13 Blakely claims that the ALJ “erroneously rejected the 14 treating medical opinion of Jared Holman, A.R.N.P.” ECF No. 17 at 10. 15 Mr. Blakely argues that although Mr. Holman is not an “acceptable 16 medical source,” the ALJ was nevertheless required to provide legally 17 sufficient reasons to reject his opinion. ECF No. 17 at 11. 18 As an initial matter, under the Social Security regulations, 19 “only licensed physicians and certain other qualified specialists are 20 considered acceptable medical sources.” Molina v. Astrue, 674 F.3d 21 1104, 22 professionals such as nurse practitioners and physical therapists are 23 not considered “acceptable medical sources,” and their opinions are 24 not entitled to the same deference as acceptable medical sources. 20 25 C.F.R. § 404.1513(a), (d); see also Huff v. Astrue, 275 F. App’x 713, 26 716 (9th Cir. 2008) (explaining that the “ALJ was entitled to give the 1111 (9th Cir. 2012) (internal quotes omitted). ORDER GRANTING SUMMARY JUDGMENT IN FAVOR OF DEFENDANT - 12 Medical 1 physical 2 “contradicted the findings of other acceptable medical sources in the 3 record, 4 sources”). 5 A.R.N.P., 6 impairment(s) and how it affects [the claimant’s] ability to work,” 20 7 C.F.R. § 404.1513(d). 8 1. 9 Mr. therapist’s and the ALJ Still, may be opinion properly the used less relied opinions to weight” “show of the on when the “other the acceptable sources,” severity of opinion medical such [the as an claimant’s] Hearing Loss Blakely claims that the ALJ erred because she “wholly 10 disregarded” an audiometer test conducted by A.R.N.P. Holman in April 11 2013. ECF No. 17 at 12. 12 hearing in his left ear. AR 319. That test indicated that Mr. Blakely has no 13 The record shows that Mr. Blakely does have hearing loss in his 14 left ear and consistently reported as much. See, e.g., AR 221, 316, 15 332. 16 shows that his overall hearing is adequate, and does not meet the 17 Social Security standards for hearing loss not treated with a cochlear 18 implant. See AR 589 (“Word recognition ability was great in the right 19 ear at 98% correct. 20 amplification options . . . to help him hear better after medical 21 clearance.”).2 That said, even Mr. Blakely’s latest January 2015 hearing test Results show left sided deafness. Further the medical evidence on the We discussed record, 22 23 24 25 26 2 To meet the relevant listing for hearing loss, tests must show either A. An average air conduction hearing threshold of 90 decibels or greater in the better ear and an average bone conduction hearing threshold of 60 decibels or greater in the better ear (see 2.00B2c). OR B. A word recognition score of 40 percent or less in the better ear determined using a standardized list of phonetically balanced monosyllabic words (see 2.00B2e). ORDER GRANTING SUMMARY JUDGMENT IN FAVOR OF DEFENDANT - 13 as a 1 whole, is inconsistent and suggests that Mr. Blakely’s hearing loss 2 did not significantly impact his employability. See, e.g., AR 200 3 (indicating Mr. Blakely had no difficulty hearing the interviewer); 4 AR 433 (recording “negative” for hearing loss during September 2013 5 office visit); AR 458, 460 (indicating in the same report both that 6 Mr. Blakely had “extreme” hearing loss and that his hearing in each 7 ear was “grossly intact”). 8 that “the medical evidence does not support significant limitations 9 based on hearing loss.” AR 28 (emphasis added). Therefore, the ALJ did not err in finding 10 2. Light-Work Limitation 11 Mr. Blakely claims that the ALJ disregarded clinical findings 12 from a March 2014 examination supporting A.R.N.P. Holman’s opinion 13 that Mr. Blakely is limited to performing light exertional work. 14 Blakely therefore argues that the record does not support the ALJ’s 15 finding that Mr. Holman’s April 2013 opinion conflicts with other 16 medical evidence in the record. Mr. 17 As the ALJ noted, A.R.N.P. Holman’s opinion in April 2013 was 18 that Mr. Blakely could perform “light work;” that is, “lift 20 pounds 19 maximum and frequently lift or carry up to 10 pounds, able to walk or 20 stand six out of eight hours per day, and able to sit and use pushing 21 or pulling arm or leg movements most of the day.” AR 317. 22 the ALJ also noted that only two months earlier, another examining 23 provider opined that Mr. Blakely was capable of heavy work — able to 24 lift 100 pounds maximum and frequently lift or carry up to 50 pounds — However, 25 26 See Exertional and Nonexertional Limitations, DI 34001.012, Social Security Administration Program Operations Manual System, http://policy.ssa.gov/poms.nsf/lnx/0434001012. ORDER GRANTING SUMMARY JUDGMENT IN FAVOR OF DEFENDANT - 14 1 and predicted that this would remain the case “life long” with 2 available medical treatment. AR 28, 314. 3 the ALJ to conclude that Mr. Holman’s opinion was contradicted by 4 other evidence in the record. Thus it was not improper for 5 Here, again, the medical records are inconsistent, but generally 6 indicate that Mr. Blakely has some right-side weakness. See, e.g., 7 AR 459 8 disturbance . . . .”), AR 461 (“Gait is right side weakness . . . 9 [patient] with right side paralysis.”), AR 521 (recording “negative” (“Negative for dizziness, extremity weakness, gait 10 for muscle weakness). 11 evidence to conclude that Mr. Blakely’s right-side weakness is serious 12 enough to prevent him from performing heavy work, but not so severe as 13 to limit Mr. Blakely to only light work. 14 substantial 15 Blakely was capable of lifting 40 pounds occasionally and 20 pounds 16 frequently, see AR 25, and it was not error for the ALJ to reject the 17 conflicting portion of Mr. Holman’s opinion. 18 C. to support the Thus, the record contains ALJ’s determination that Mr. Credibility Determination as to Mr. Blakely Mr. 19 evidence The ALJ reasonably interpreted the medical Blakely claims that the ALJ discredited his symptom 20 testimony without providing legally sufficient reasons for doing so. 21 ECF No. 17 at 13. 22 that 23 reported symptoms.” ECF No. 17 at 15. 24 the Mr. Blakely argues that “the ALJ wholly disregarded objective medical evidence comports with Mr. Blakely’s A two-step analysis is used by the ALJ to assess whether a 25 claimant’s testimony regarding subjective 26 credible. Garrison, 759 F.3d at 1014. pain or symptoms is Step one requires the ALJ to ORDER GRANTING SUMMARY JUDGMENT IN FAVOR OF DEFENDANT - 15 1 determine whether the claimant presented objective medical evidence of 2 an impairment, which could reasonably be expected to produce some 3 degree of the pain or other symptoms alleged. Lingenfelter v. Astrue, 4 504 F.3d 1028, 1035–36 (9th Cir. 2007); Smolen v. Chater, 80 F.3d 5 1273, 1282 (9th Cir. 1996). 6 fatigue, 7 claimant. Garrison, 759 F.3d at 1014. the severity thereof, need not be provided by the If the claimant satisfies the first step of this analysis, and 8 9 or Objective medical evidence of pain or there is no evidence of malingering, the ALJ must accept the 10 claimant’s testimony about the severity of his symptoms unless the ALJ 11 provides specific, clear, and convincing reasons for rejecting the 12 claimant’s symptom-severity testimony. Id. 13 claimant’s every allegation of pain or non-exertional impairment. Orn 14 v. 15 claimant’s testimony after finding that a medical impairment exists, 16 however, 17 disbelief.” Id. (internal quotation marks omitted). 18 claimant’s 19 testimony or between testimony and conduct, daily activities, and 20 unexplained, or inadequately explained, failure to seek treatment or 21 follow a prescribed course of treatment.” Orn v. Astrue, 495 F.3d 625, 22 636 (9th Cir. 2007) (internal quotation marks omitted). 23 Astrue, 495 “the F.3d ALJ 625, must credibility, 635 (9th provide an ALJ Cir. specific, may An ALJ need not believe a 2007). cogent consider To discredit reasons for a the In weighing a “inconsistencies in In this case, the ALJ found Mr. Blakely’s medically determinable 24 impairments could reasonably be expected to cause 25 symptoms, but went on to find that his “statements concerning the 26 intensity, persistence and limiting effects of these symptoms are not ORDER GRANTING SUMMARY JUDGMENT IN FAVOR OF DEFENDANT - 16 the alleged 1 entirely credible for the reasons explained in this decision.” AR 26. 2 The ALJ noted a treating physician’s report from November 2014 that 3 stated that Mr. Blakely demonstrated normal speech, an “unremarkable” 4 gait, normal muscle tone, and “strength is 5/5 in the upper and lower 5 limbs.” 6 complaints and treatment relating to “cognitive or physical impairment 7 related 8 impairments,” and “mood difficulties.” AR 28. 9 that “the medical evidence of record does not indicate a significant 10 difficult managing appointments,” and that this “is inconsistent with 11 his complaints of problems concentrating and needing reminders.” AR 12 28. The 13 AR 27, to ALJ 363. his The ALJ seizures,” provided pointed out “impairment specific, clear, the general related and to lack his of mental The ALJ also mentioned convincing reasons to 14 support her conclusion that “the medical records do not support the 15 frequency and functional limitations endorsed by the claimant.” AR 28. 16 The 17 credibility. ALJ acted within her V. 18 19 discretion in weighing Mr. Blakely’s CONCLUSION For the reasons outlined above, the Court holds that the ALJ’s 20 finding of nondisability is both reasonable and supported by 21 substantial evidence in the record. 22 Blakely’s Motion for Summary Judgment and grants the Commissioner’s 23 Motion for Summary Judgment. The Court therefore denies Mr. 24 Accordingly, IT IS HEREBY ORDERED: 25 1. 26 Plaintiff’s Motion for Summary Judgment, ECF No. 17, is DENIED. ORDER GRANTING SUMMARY JUDGMENT IN FAVOR OF DEFENDANT - 17 1 2. is GRANTED. 2 3 The Commissioner’s Motion for Summary Judgment, ECF No. 18, 3. The Clerk’s Office is to enter JUDGMENT in favor of the Commissioner. 4 5 4. 6 IT IS SO ORDERED. 7 8 The case shall be CLOSED. The Clerk’s Office is directed to enter this Order and provide copies to all counsel. DATED this 23rd day of August 2017. 9 10 s/Edward F. Shea EDWARD F. SHEA Senior United States District Judge 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 Q:\EFS\Civil\2016\16-CV-5137;Blakely.SJ.LC1.docx ORDER GRANTING SUMMARY JUDGMENT IN FAVOR OF DEFENDANT - 18
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