Gibson v.Commissioner Social Security Administration, No. 3:2014cv01170 - Document 22 (D. Or. 2015)

Court Description: OPINION AND ORDER. The ALJ's finding that plaintiff is not disabled within the meaning of the Act is supported by substantial evidence in the record. Accordingly, the Commissioner's decision is AFFIRMED. This case is DISMISSED. See formal OPINION AND ORDER. Signed on 9/22/2015 by Chief Judge Ann L. Aiken. (rh)

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Gibson v.Commissioner Social Security Administration Doc. 22 IN THE UNITED STATES DISTRICT COURT DISTRICT OF OREGON KIM CHERRI GIBSON, Case No. 3:14-CV-1170-AA OPINION AND ORDER Plaintiff, v. CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant. Jeffrey H. Baird Dellert Baird Law Offices, PLLC P.O. Box 3757 Silverdale, WA 98383 Attorney for plaintiff Billy J. Williams Acting United States Attorney District of Oregon Janice E. Herbert Assistant United States Attorney 1000 SW Third Avenue, Suite 600 Portland, OR 97201 Page 1 - OPINION AND ORDER Dockets.Justia.com Courtney Garcia Special Assistant United States Attorney Office of the General Counsel Social Security Administration 701 Fifth Avenue, Suite 2900 M/S 221A Seattle, WA 98104 Attorneys for defendant AIKEN, Chief Judge: Plaintiff Kim Cherri Gibson brings this action pursuant to the Social Security Act final decision of ("Commissioner") insurance ("SSI"). the and set of Social Security application her ("DIB") reasons to obtain judicial review of a Commissioner the denying benefits For ("Act") for supplemental security forth below, the disability income Commissioner's decision is AFFIRMED. PROCEDURAL BACKGROUND On June applications were 24, for 2010, DIB and plaintiff SSI. Tr. protectively 23. After denied initially and on reconsideration, the filed applications plaintiff timely requested a hearing before an administrative law judge Tr. ALJ; 146-47. On November 6, plaintiff, 2012, testified. issued a decision Tr. 40-72. finding meaning of the Act. Tr. and a vocational expert November plaintiff 20-33. Page 2 - OPINION AND ORDER On ( "ALJ") . a hearing was held before the represented by counsel, ("VE") her not 21, 2012, disabled the ALJ within the Plaintiff requested review of the decision on December 10, 2012 and submitted new evidence to the Appeals Council in March 2013 through July 2013. After considering record, the review. Tr. the Appeals 1-5. new evidence Council Plaintiff and declined filed a Tr. 19, admitting it in into the request plaintiff's complaint 767-81. for this Court on July 23, 2014. STATEMENT OF FACTS Born on the alleged time of the December onset 10, date hearing. 1960, of Tr. disability and 31. Plaintiff through part of the tenth grade, 32, 44. plaintiff was 51 48 years years old on old attended at high the school and later obtained her GED. Tr. She previously worked at a care facility called Hilltop Healthcare doing laundry, Plaintiff alleges she housekeeping, became disabled and dishwashing. on March 1, Tr. 2009 46. as result of a work-related injury when she was lifting heavy, laundry, strain, 47, and suffers hypoglycemia, from fibromyalgia, depression, back pain, a wet back muscle and cognitive issues. Tr. 2 3, 97. STANDARD OF REVIEW The district court must affirm the Commissioner's decision if it is supported based on proper legal by substantial Page 3 - OPINION AND ORDER standards evidence in the and the record. findings Hammock are v. Bowen, 879 F.2d 498, 501 (9th Cir. is "more than a mere scintilla. as a reasonable conclusion." mind The (9th 1986). demonstrate mental v. adequate 772 reason impairment conclusions. proof rests Howard v. Heckler, meet this of any which 197, 229 supports ]\tlartinez v. the 782 plaintiff F.2d the in any medically be upon burden, engage can continuous period of not 401 38 9' 305 U.S. a (9th Cir. 1986). an "inability to by support evidence that of To to u.s. 402 N.L.R.B., [Commissioner's] burden disability. Cir. activity from the initial establish as Perales, Edison Co. 807 F. 2d 771, The accept court must weigh "both the and detracts Heckler, Substantial evidence It means such relevant evidence v. Richardson (1971) (quoting Consol. ( 1938)) . might 1989) 1484, 1486 plaintiff must substantial determinable gainful physical to expected to less than twelve months." last 42 or for a U.S. C. § 423(d) (1) (A). COMMISSIONER'S DECISION The process Commissioner for Yuckert, 482 416.920. At has established determining whether a U.S. step 137, one, engaged in "substantial 140 the gainful Page 4 - OPINION AND ORDER five-step person is (1987); ALJ a found 20 activity" disabled. C.F.R. that sequential §§ plaintiff during Bowen v. 404.1520, had not the period of alleged disability. §§ 404.1520 (b)' or combination 482 U.S. fibromyalgia, of at 140; 20 C.F.R. depression, including mood disorder, tobacco disorder, sprain, thoracic impairments," hypothyroidism, somatization syndrome, dependence, Yuckert, the ALJ found that plaintiff had a "medically impairment myofascial 25; 416.920 (b). At step two, severe Tr. posttraumatic disorder, stress and personality disorder not otherwise specified with borderline and histrionic traits. Tr. C.F.R. §§ 404.1520(c), At did step three, not meet or are that activity." Tr. 404.1520 (d)' The 25-26; the ALJ found so "one of severe as Yuckert, functional capacity ("RFC") that stoop, climb she 404.1567(b) ladders, could kneel, at that plaintiff's a number to 482 found never ALJ §§ U.S. 140-41; 20 of preclude U.S. at listed impairments impairments substantial 140-4i; 20 gainful C.F.R. §§ 416.920 (d) . then 20 C.F.R. 482 416.920(c). equal 26; Yuckert, that had the residual to perform light work as defined in and 416.967(b), ropes, occasionally crouch, plaintiff or scaffolds. climb and crawl; except that she should ramps The and ALJ also found stairs, balance, could perform simple, routine, repetitive work that involves only simple work-related decisions Page 5 - OPINION AND ORDER and routine workplace and changes, could work under only occasional supervision with permission to be off task 5% of the workday, but have no direct interaction with the public and have only occasional interaction with co-workers. Tr. 26. At step four, the ALJ found that plaintiff could perform her "past relevant work" in light of her RFC. Tr. C.F.R. §§ At five, economy the her garment bagger, Accordingly, 20 that jobs existed numbers impairments, folder, 141-42; found significant despite at ALJ in perform U.S. 31; 20 404.1520(e), 416.920(e). step national not that plaintiff including and basket filler. C.F.R. §§ work Tr. 404.1520(e)&(f), as a in the could laundry 32; Yuckert, 48 2 416.920(e)&(f). the ALJ concluded that plaintiff was not disabled within the meaning of the Act. Tr. 33. DISCUSSION Plaintiff contends that the ALJ failed to provide specific, clear, and convincing reasons supported by substantial evidence for finding plaintiff not fully credible as to the severity of her alleged reasons for limitations, attributing and little by failing weight to to the provide opinion germane of her chiropractor, Tyge Shelby. Additionally, plaintiff maintains that the new evidence she Page 6 - OPINION AND ORDER submitted to the Appeals Council after the ALJ's decision, which source treatment notes, imaging statements, included was probative and reports, medical two medical evidence that undermined the ALJ's finding that she was not disabled. Tr. 81. Further, evidence case, given into the that the record Appeals but Council declined to accepted review the 767new plaintiff's plaintiff maintains that the Appeals Council should have provided a material legally sufficient convincing, reason remanded her consideration of the new material, for not finding to case the the ALJ new for or remanded her case with an order for payment of benefits. I. Plaintiff's Credibilit Plaintiff challenges the ALJ's assessment and conclusion that plaintiff's credibility was at variance with the weight of the evidence, and that the extent of her alleged symptoms were contradicted by her veracity, her level of daily activities, and her good response to conservative treatment. When a plaintiff has medically documented impairments that could reasonably be expected symptoms complained of, evidence of the produce some degree of the and the record contains no affirmative malingering, testimony about to nthe ALJ severity of her Page 7 - OPINION AND ORDER can reject symptoms the claimant's only by offering specific, Chater, clear and convincing reasons for doing so." Smolen v. 80 F.3d 1273, 1281 that plaintiff is not (9th Cir. credible is 1996). A general assertion insufficient; the ALJ "must testimony is not credible and what evidence state which suggests the complaints are not credible." Dodrill v. Shalala, 12 F.3d 915, 918 (9th Cir. 1993). In assessing a plaintiff's credibility, an ALJ may consider a range of factors, evaluation, prior such including ordinary techniques of credibility as (1) inconsistent plaintiff's statements reputation concerning for lying symptoms; or ( 2) unexplained or inadequately explained failure to seek treatment or to follow evaluation 763 of a prescribed plaintiff's F.3d 1154, 1163 course daily (9th Cir. of and treatment; activities. Ghanim v. 2014) (citing Smolen, 80 (3) Colvin, F.3d at 1284). The reasons proffered must be "sufficiently specific to permit the arbitrarily reviewing court discredit F.3d the Shalala, 50 748, However, when evidence 750 to conclude plaintiff's (9th Cir. that the ALJ testimony." did Orteza 1995) (citation not v. omitted) supports either confirming or reversing an ALJ's decision, the court may not substitute its own judgment for that of the ALJ. See Batson v. 359 F.3d 1190, 1196 (9th Cir. 2004}. Page 8 - OPINION AND ORDER Comm'r of Soc. Sec. Admin., A. Objective Medical Evidence Plaintiff contends that the ALJ erred in finding a lack of objective medical regarding the impacts. evidence severity Plaintiff's to of support her primary plaintiff's impairments allegation is functional and that testimony "her physical impairments prevent her from performing basic work activities on a regular and continuing basis." Pl.'s Br. maintains standing, or walking for extended periods of time; of daily her pain living; prevents Specifically, plaintiff activities that at 10. and her impacts from sitting, impacts her her ability to concentrate and remember. Id. The ALJ impairments symptoms; found could however, that plaintiff's reasonably be he found medically expected to that plaintiff's determinable cause the alleged statements as to the intensity, persistence, and limiting effects of her symptoms were not credible to the extent they were inconsistent with the RFC assessment. Tr. 27. Once a claimant produces medical evidence of an underlying impairment, regarding an ALJ may subjective not discredit symptoms merely claimant's because unsupported by medical evidence. Berry v. Astrue, 1234 (9th Cir. 2010). Nonetheless, Page 9 - OPINION AND ORDER an ALJ may testimony they are 622 F.3d 1228, consider the objective medical evidence and the claimant's treatment history in the credibility determination. Further, self-limiting symptom exaggeration, credibility. Thomas 2002). when Thus, Smolen, behaviors Barnhart, 278 determining the F.3d examination, detract may v. on 80 from F.3d as 959 credibility of 1284. well as plaintiff's a 947, at a (9th Cir. claimant's excess symptom testimony, the ALJ may consider evidence of selflimitation. Osenbrock v. Apfel, 240 F.3d 1157, 1165-66 (9th Cir. 2001); 2001) Tonapetyan v. Halter, (exaggeration and 242 F. 3d 1144, failure to 1147-48 give maximum or (9th Cir. consistent effort during a medical evaluation can be a basis for an adverse credibility finding). the Here, examining physical ALJ physicians functioning relied that notes evaluations showed contradicted pain and limitations. Tr. chart on 27-30. that the by treating plaintiff's alleged For example, from treating physician Theodore and level severity of of her the ALJ relied on Kruse, M.D., who examined plaintiff on three separate occasions, beginning on May 1, 2009, regarding her back pain. Tr. 27, 416-17. Dr. Kruse noted that plaintiff walked from her car to the clinic without visible difficulty and showed impressive arm strength and body movements without obvious Page 10 - OPINION AND ORDER pain or difficulty. Id. Dr. Kruse diagnosed plaintiff disorder, and viral Dr. with myofascial determined that syndrome with myalgias. Kruse expressed that syndrome plaintiff Tr. 27, likely 417. plaintiff was and somatization had an acute The ALJ noted that very resistant to his recommendations. Tr. 27, 423. The 2009, ALJ also relied on two physiatry opinions. In Jon Swift, D.O. examined pl?intiff and determined that she had 5/5 motor strength in her upper and lower extremities. 27, July 436-38. Dr. Swift diagnosed plaintiff with a Tr. probable cervicothoracic sprain and recommended physical therapy and work hardening. Tr. 27, 438. He also reassured plaintiff that she had a normal neurological examination. plaintiff on two Tr. subsequent visits, 438. noting Dr. Swift examined that plaintiff had done well with physical therapy was ready for regular work duty by August 2009. Tr. 27, 433-35. Further, medical opinion of Phillip Wallace, M.D., the ALJ relied on the a second physiatrist, who similarly noted plaintiff's high level of motor strength in her upper and lower extremities. Tr. 28, 579. To further assess plaintiff's physical limitations, relied on an internal Henderson, D.O., plaintiff, noting medicine in July 2012. normal muscle Page 11 - OPINION AND ORDER Tr. IME conducted 28. Dr. tone, gait, by the ALJ Michael Henderson examined and strength, and imposed no physical Dr. Henderson during functional plaintiff's that Id. plaintiff. of pain Tr. gave effort 28, Tr. plaintiff's Dr. for plaintiff testing. than physical suggest. that symptoms evaluation worse noted limitations were poor 727. He also excessive, perception of her was unable to 7 2 6-2 7. at times added noting health exam testing and the medical Henderson 2 8, that in was the much records would confirm plaintiff's fibromyalgia diagnosis with only 9 out of 18 tender point sites met. Id. with Moreover, limitations, Dr. regard Henderson to noted plaintiff's that he objective medical evidence to limit sitting, could functional not standing, "find walking, pushing, pulling or lifting." Id. Plaintiff duty is restrictions however, the temporary, 2009. correct after record that her shows in May alleged that 2009, work such Dr. Kruse injury to restrictions imposed her back; were only as plaintiff was released to full duty work in August Tr. 416' plaintiff's 433, Thus, 435. allegation of pain at the a level ALJ explained causing that significant functional limitations was contradicted by the objective medical evidence. Besides record of relying plaintiff's on the objective physical Page 12 - OPINION AND ORDER medical condition, the evidence ALJ in the discredited plaintiff's testimony based on findings produced spasms, t'hat exaggerated her symptoms, she intentionally and gave poor effort during testing. Tr. 28-31, 726-27, 742-44, 751. The Court finds that the ALJ provided sufficient objective medical evidence to discount plaintiff's alleged severity of pain and attendant physical limitations. B. Somatization Disorder Plaintiff contends that lack of objective evidence the to ALJ erred by support on the her testimony about the severity of her impairments and functional also found personality that she disorder. had In severe other such and poor as intentional spasms caused by her mental disorders. limitations when he somatization words, the behaviors the ALJ found relying plaintiff disorder and contends that plaintiff's credibility, effort, were legitimately Plaintiff further maintains that the ALJ erred by not calling a medical expert to testify about whether plaintiff's mental impairments could affect and/or cause her physical symptoms and impairments to extent the she described. Plaintiff has been diagnosed with mental health conditions including personality disorder, somatization posttraumatic stress disorder, and depression. Tr. Page 13 - OPINION AND ORDER 417, disorder, 751. The ALJ accounted disorder, Tr. for these conditions, in his assessment, 25-26. July somatization determining that they were severe. The ALJ relied on a neuro-psychological consultative examination by clinical psychologist, in including 2012 conditions. to Tr. plaintiff's determine 28, the 741-51. Dr. were spasms Michelle Whitehead, extent of plaintiff's Ph.D. mental Whitehead gave the opinion that intentionally produced. Tr. 742. Further, Dr. Whitehead noted that plaintiff was overly dramatic, histrionic, and tearful, put sufficient forth testing. Tr. 29-30, and suggested that effort 743, and the testing results, during plaintiff did periods of not psychometric 751. Based on her personal observations Dr. could perform simple tasks Whitehead concluded that plaintiff and generally had mild to moderate limitations in the work setting. Tr. 30, 738-39. The ALJ records, where therapy. was relied plaintiff on Deschutes had sought County Mental individual Health and group The ALJ noted records where plaintiff stated that she doing health also well, issues had were identified not dire. coping Tr. 2 9. skills, The and ALJ also her mental cited opinions of State agency psychologist Bill Hennings, September 2010, and Dr. Sharon Eder in October 2010, Ph.D., the in both of whom concluded that plaintiff had mild limitations pertaining to Page 14 - OPINION AND ORDER daily living, social functioning, concentration, persistence, and pace. Tr. 30, 82-83, 89. Furthermore, hearing the affected plaintiff's his spams ALJ's credibility occurred testifying about questioned plaintiff's statement. Id. plaintiff her almost muscle credibility Dr. Whitehead that computer; at Tr. based during the plaintiff he exclusively spasms. example, on of determination; For told checked email observation her The her the noted when 31. on at that she was ALJ also inconsistent examination she watched the administrative in 2012, television and hearing, plaintiff denied ever owning a computer or using email. Tr. 31, 59. Finally, the ALJ noted that the record contained a statement from plaintiff's friend, LaDonna Moore, stating that plaintiff had a history of overreacting. Tr. 29. The Court finds that the ALJ did not fail to consider the implications of plaintiff's conversion disorder; further, somatization disorder or rule out his finding that plaintiff was not fully credible as to the extent of her limitations was supported by substantial evidence. The weight of the evidence relied on by the ALJ reflected plaintiff's physical strength and condition, medical and clearance to return to confirming her ability to work. Page 15 - OPINION AND ORDER work, Moreover, neurological status the psychologists who evaluated plaintiff's case did not functional identify impairments that would prevent plaintiff from working based on her somatization disorder. Finally, to opine disorder the ALJ did not err in failing to call an expert on the connection and her physical objective medical to require further plaintiff's limitations, evidence disabling limitations. between did Thus, not somatization when the weight support the of the existence of the record was not so ambiguous as development. Mayes v. Massanari, 276 F.3d 453, 460 (9th Cir. 2001) C. Daily Activities Plaintiff pain impacts chores, Pl.'s her that ability severe to get back pain dressed, and cook, fibromyalgia and perform and prevents her from functioning for much of the day. Br. at prevents her washing, and maintains were claims 10; Tr. from does 30. doing not pay Plaintiff yard work, bills. Tr. testified that that she 58-59. does Thus, her pain no dish plaintiff that the ALJ erred by relying on what he determined fairly normal daily activities to find the extent of plaintiff's alleged limitations not fully credible. The ALJ may consider the claimant's daily activities and the observations of third parties with personal knowledge about Page 16 - OPINION AND ORDER the claimant's functional limitations. Smolen, 80 F.3d at 1284. When a claimant's daily activities "are transferable to a work setting" or "contradict impairment," performance claims of of a totally those activities basis for discrediting a claimant. may Molina v. debilitating serve As true, as a 67 4 F. 3d 1104, 1112-13 (9th Cir. 2012). The ALJ found that plaintiff's claimed inability to do much of anything inconsistent was with throughout the disability period. substantial evidence in plaintiff participated reading, walking, assistance, dryer, the in record. watching her The ALJ daily activities sweeping, daily This finding mother, is activities supported by determined including vacuuming, preparing simple meals, and her that knitting, grooming without putting her clothes in the all of which were deemed inconsistent with the level of impairment plaintiff alleges. Tr. 30. The ALJ further relied on a report by plaintiff to her counselor that she had outings over the holiday weekend and was able to get out of the house despite feeling depressed. 675. Similarly, statements to the her ALJ health relied care on plaintiff's providers that Tr. July she 29, 2010 enjoyed walking, and her October 2010 statement that she went for a walk every day that month. Tr. 28. Page 17 -OPINION AND ORDER The ALJ activities, could conclude reasonably including engaging in plaintiff's that care personal without assistance, doing laundry, performing general chores in the home albeit sometimes experiencing pain, and making grocery purchases at the store severe as undermined her to prevent her claims that from working. her symptoms were so It was also reasonable for the ALJ to conclude that plaintiff's level of activity was inconsistent with her alleged limitations based on plaintiff's July 2010 statements that she enjoyed knitting, reading, and walking, and that her primary form of exercising is cycling. Tr. 28, 535. In addition Whitehead's claimant's to the reasons neuropsychological activities objectively assessed of daily (Vineland above, the evaluation, living II) ALJ relied which and and it on states: socialization was determined Dr. were that she does not have any major impairment in these areas." Tr. 743. If the s credibility evidence in the record, guessing." Thomas, The Court reasons finds finding [the court] 278 F.3d at 959 that why plaintiff's the ALJ is supported by may not engage in second- (internal citation omitted). provided activities of clear daily and convincing living undermined her statements about the severity of her limitations. Page 18 - OPINION AND ORDER substantial D. Conservative Treatment Plaintiff credibility maintains was that undermined the ALJ' s based on her fin ding good that her responses to conservative treatment was not supported by substantial evidence in the record. 1 Evidence of conservative treatment can be used to discount a claimant's testimony regarding the severity of an impairment. Parra v. Astrue, 481 F.3d 742, 751 (9th Cir. 2007) (citing Johnson v. Shalala, 60 F. 3d 1428, 1434 (9th Cir.1995)). Evidence in the record supports the ALJ's finding that the treatment chest obtained by pain has chiropractic medication. been 30, present no evidence for back surgery Additionally, or for conservative, sessions, Tr. plaintiff physical 4 9-50. her therapy, arm, and predominantly massage therapy, of and The record and plaintiff's testimony substantial 1 neck, consisting of hospitalizations plaintiff's back, physical and no treatment therapist, for recommendations pain. Tr. Tom Watson, 50. OPT, Plaintiff also argues that the ALJ misconstrued the record when he found that Cymbalta was the best drug plaintiff had to combat her fibromyalgia symptoms, which he said was' evidence of a good response to conservative treatment, when in fact, plaintiff stated that Cymbal ta was the best drug for her pain outside of narcotics. Pl.'s Br. at 16. However, the ALJ wrote in his decision that Cymbal ta was the best drug for plaintiff's pain other than narcotics; thus, the ALJ did not misrepresent the record. Tr. 30, 616. Page 19 - OPINION AND ORDER noted in October 2009 that plaintiff "still reports pain but no objective findings to support the pain at this time." Tr. 4 60. Further, the ALJ relied on medical records noting that plaintiff reported her pain was a 3/10 at its worst and she was treating it with topical muscle rub and muscle relaxants. Tr. 27,431. The ALJ's conclusion conservative treatment supported substantial by that for plaintiff her evidence has allegedly in the undergone record. to conservative treatment, such an is Furthermore, even if plaintiff could show that she did not have an response pain severe only error would be harmless in this case given that the ALJ provided numerous other valid reasons for discrediting plaintiff's testimony as to the severity of her pain and limitations, which support the validity of the ultimate credibility conclusion. Carmickle v. Comm'r Soc. Sec. Admin., 533 F.3d 1155, 1162 (9th Cir. 2008) (citations omitted). The Court finds that the ALJ provided specific, convincing reasons for concluding that plaintiff's clear, and subjective testimony as to the severity of her pain and limitations is not fully credible. The ALJ identified the testimony that he did not find credible and relied on significant medical opinion evidence undermining plaintiff's Page 20 - OPINION AND ORDER alleged complaints, including the opinions of treating and plaintiff's high level functioning, whom also examining of physicians strength suggested and opining normal intentional or on physical exaggerated behavior by plaintiff. See Burch v. Barnhart, 4 00 F. 3d. 67 6, 68.0 (9th rational basis to Cir. support 2005). an Thus, adverse the ALJ provided credibility a finding despite somatization or conversion disorder. As a result, not engage in second-guessing. Thomas, 278 plaintiff's the Court may F.3d at 959. The ALJ's decision as to plaintiff's credibility is upheld. II. Opinion of Tyge Shelby, DC Plaintiff contends that the ALJ failed to provide clear and convincing reasons supported by substantial evidence for affording little weight to the opinion of her chiropractor, Tyge Shelby. Shelby treated plaintiff from 2009 through 2012 and his treatment notes are the primary source supporting the severity of plaintiff's alleged limitations. The ALJ discounted Shelby's May 2010 opinion that plaintiff was limited to lifting 10 pounds and working no more than four hours per acceptable day, Tr. medical 28, 710, source. Tr. finding 29. that The Shelby ALJ was is not an correct in determining that Shelby is not an nacceptable medical source" to provide a medical opinion. Page 21 - OPINION AND ORDER 20 C.F.R. § 404.1513 (d) (1). Nonetheless, Shelby's opinion as limitations should be considered, to plaintiff's functional though it carries less weight than the treating and examining physicians that the ALJ relied on. Id.; 20 C.F.R. 404.1527(c). § The Court finds that the ALJ provided a germane reason for affording Shelby's little opinion functioning. 1053 (9th is Stout v. Cir. discussed record weight Shelby's indicative Comm'r, Soc. 2006) (quoting above, opined not to several that of Sec. Dodrill, acceptable plaintiff opinion, had namely plaintiff's Admin., 12 F. 3d medical full 454 727. at 919)). sources Court As the strength motor in and Tr. 2 8, The ALJ did not err in finding that the contradictory evidence from acceptable medical sources, examining overall F.3d 1050, exhibited high levels of strength in the lumbar spine. 579, that physicians, finds outweighed that the ALJ did not including treating and Shelby's opinion. Thus, the commit reversible error with regard to the weight assigned to Dr. Shelby's opinion. II. New Evidence Admitted by Appeals Council Plaintiff maintains that the new evidence she submitted for the first time to the record by the Appeals this Court's review; Appeals Council, this Page 22 - OPINION AND ORDER Council was and thus, point is accepted must undisputed be by into the included in defendant. Def.'s Resp. into the declining Court the 13, 15. Council. review of the ALJ decision. administrative evidence 2 the Appeals Council accepted record and reviewed plaintiff's new evidence prior to reviewed the new In this case, that Brewes v. record as Comm'r of Soc. 1163 (9th Cir. Cir. 1993). plaintiff 2012); Ramirez v. Tr. 1-2, a The question remaining is to Admin., Shalala, Thus, whole, submitted Sec. 5. including the 682 this Appeals F.3d 1157, 8 F. 3d 1449, 1452 (9th whether the new evidence supports remand to allow consideration by the ALJ. A. Opinion of Tyge Shelby, DC Plaintiff statement that contends plaintiff probative medical In the medical that submitted evidence source Shelby's that statement, to June the undermined Shelby 2013 medical Appeals the opines Council was ALJ' s decision. that plaintiff would not be able to sustain full-time work and "based on 2 source [his] Regarding plaintiff's argument that the Appeals Council erred when it denied plaintiff's request for review and did not offer a substantive discussion of why it found that the new evidence did not change the ALJ' s decision, this Court has no jurisdiction to review the Appeals Council's decision. Brewes, 682 F.3d at 1161; Taylor v. Comm'r.of Soc. Sec. Admin., 659 F.3d 1228, 1231 (9th Cir. 2011). IYioreover, "'the Appeals Council [was] not required to make any particular evidentiary finding' when it rejected evidence from a vocational expert obtained after an adverse administrative decision." Taylor, 659 F. 3d at 1232 ("rejected" was used to mean the Appeals Council did not find the new material persuasive enough to overturn the ALJ' s decision) (quoting Gomez v. Chater, 74 F.3d 967, 972 (9th Cir. 1996)) . Page 23 - OPINION AND ORDER conversations with [plaintiff] about her condition it is very probable that she would be absent from work well over three days month." [per] concedes Tr. that maintains 774-75. Shelby is that he As not is noted an acceptable medical competent to plaintiff previously, provide source, an opinion but on plaintiff's functional limitations arising from her impairments. Defendant maintains by Shelby is not from plaintiff, evidence that credible, the new medical is based on source subjective statement statements and does not overcome the contradictory medical from acceptable medical sources reviewed by the ALJ. Further, defendant argues that Shelby's opinion was contradicted by the medical imaging from Central Oregon Radiology Associates. These imaging records, to Shelby's the cervical statement, spine show only mild degenerative and defendant asserts that 2012 obtained approximately four months prior lumbar Dr. found plaintiff to spine. Henderson's 771-72. in Furthermore, IME examination in July with normal muscle bulk and tone in the upper and lower extremities, normal gait, 4.5/5 be Tr. changes strength, "in very good health" and an unconfirmable fibromyalgia diagnosis with 9 out of 18 tender point sites positive. Tr. 72627. In determining whether Page 24 OPINION AND ORDER to remand a case in light of new evidence, material has the to shown court a examines whether disability determination good cause for having evidence to a present is claimant the new 405(g); Mayes, 276 F.3d § The Court agrees with defendant that the medical source statement drafted by plaintiff's by new and whether failed evidence to the ALJ earlier. 42 U.S.C. at 462. the Shelby, attorney with minimal answers completed approximately one treated plaintiff, year Shelby last objective evidence does not negate the after from acceptable medical sources that contradict his opinion. Additionally, extent upon the limitations themselves claimant's may be been faking largely her once discounted." (9th Cir. 1995) of [her] those indicating plaintiff's complaints Andrews v. and have Shalala, 53 In the medical source statement that subjective his opinion reports of limitations, which the ALJ found not credible. Tr. Shelby -opined symptoms "I take Kim at her word and don't think she is pain," upon own accounts disregarded, properly F.3d 1035, 1043 Shelby writes, "a6 opinion of disability premised to a large that "Kim has significant is her premised pain and 775. Further, spinal structural along with arthritic and degenerative processes in the spine"; this assessment conflicts with both the weight of the evidence in the record and the most recent imaging studies Page 25 - OPINION AND ORDER submitted to Shelby's the Appeal's treatment Council. notes that Tr. were 771-772, submitted 775. to Finally, the Appeal's Council are sufficiently similar to the treatment notes in the record reviewed by plaintiff the ALJ to submitted to the conclude that the new Appeals Council would Shelby's medical evidence not source have changed the ALJ's decision. This that Court plaintiff Council does hearing, finds submitted not because reasonable that for warrant this is it possibility the first case to cumulative of time be to changing the remanded evidence the statement and Appeals for a new poses no of outcome the administrative hearing. Mayes? 276 F.3d at 462. B. Opinion of Sydnee Goldstein, MSW Finally, plaintiff contends statement by Sydnee Goldstein, Appeals Council, the basis Goldstein for is is an the medical decision. acceptable source which was submitted to the probative medical evidence that the ALJ' s not MSW, that Plaintiff medical undermines acknowledges source, but that maintains that she is competent to offer an opinion regarding the severity of plaintiff's impairments and how such impairments will affect plaintiff's ability to work. Defendant contends that Goldstein's June 2013 opinion does Page 26 - OPINION AND ORDER not change the fact that substantial evidence supports the ALJ's findings and decision. Further, defendant maintains that the marked limitations indicated by Goldstein in the medical source statement, written almost two years after plaintiff's last visit with her, do not have a basis in the treatment records. Goldstein completed a medical source statement in June 2013 assessing plaintiff's functional limitations and noted that plaintiff's physical and mental problems would cause her to miss five days task per month or more, more than 30% of an and that plaintiff would be eight-hour work day. Tr. off 778-81. Goldstein had personally provided individual counseling services to plaintiff on several occasions in 2011 and was part of a team of mental health counselors who provided services to plaintiff. The Court finds that Goldstein's medical source statement is not probative and is not material to the ALJrs decision given that Goldstein's opinion were 627, 631, included in 634, significant counseling after the record from which she reviewed by based her the ALJ. Tr. 636, 638, 639, 640. Moreover, the ALJ attributed weight to Dr. Whitehead's neuro-psychological evaluation of plaintiff, Tr. 738-51. records which contradicts Goldstein's opinion. Further, the limitations identified by Dr. Whitehead administering testing Page 27 - OPINION AND ORDER on plaintiff were included in the ALJ' s calculation of plaintiff's residual functional capacity. Tr. 26. Thus, the new evidence from Goldstein does not alter the substantial evidence supporting the ALJ's determination. CONCLUSION The ALJ's finding that plaintiff is not disabled within the meaning of the Act is supported by substantial evidence in the record. Accordingly, the Commissioner's decision This case is DISMISSED. IT IS SO ORDERED. Dated this day of September 2015. Ann Aiken United States District Judge Page 28 - OPINION AND ORDER is AFFIRMED.

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