Redman v. Colvin, No. 1:2015cv03063 - Document 19 (E.D. Wash. 2016)

Court Description: ORDER Denying Plaintiff's 14 Motion for Summary Judgment and Granting Defendant's 15 Motion for Summary Judgment. Signed by Magistrate Judge Mary K. Dimke. (MO, Courtroom Deputy)

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Redman v. Colvin Doc. 19 FI LED I N THE U.S. DI STRI CT COURT EASTERN DI STRI CT OF WASHI NGTON Sep 14, 2016 1 SEAN F. MCAVOY, CLERK 2 3 4 5 UNITED STATES DISTRICT COURT 6 EASTERN DISTRICT OF WASHINGTON 7 STEVEN ARTHUR REDMAN, No. 1:15-CV-03063-MKD 8 10 CAROLYN W. COLVIN, ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT 11 Acting Commissioner of Social Security, ECF Nos. 14, 15 Plaintiff, 9 vs. 12 Defendant. BEFORE THE COURT are the parties’ cross-motions for summary 13 14 judgment. ECF Nos. 14, 15. The parties consented to proceed before a magistrate 15 judge. ECF No. 4. The Court, having reviewed the administrative record and the 16 parties’ briefing, is fully informed. For the reasons discussed below, the Court 17 denies Plaintiff’s motion (ECF No. 14) and grants Defendant’s motion (ECF No. 18 15). 19 20 21 ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT - 1 Dockets.Justia.com 1 2 3 4 JURISDICTION The Court has jurisdiction over this case pursuant to 42 U.S.C. § 405(g). STANDARD OF REVIEW A district court’s review of a final decision of the Commissioner of Social 5 Security is governed by 42 U.S.C. § 405(g). The scope of review under § 405(g) is 6 limited; the Commissioner’s decision will be disturbed “only if it is not supported 7 by substantial evidence or is based on legal error.” Hill v. Astrue, 698 F.3d 1153, 8 1158 (9th Cir. 2012). “Substantial evidence” means “relevant evidence that a 9 reasonable mind might accept as adequate to support a conclusion.” Id. at 1159 10 (quotation and citation omitted). Stated differently, substantial evidence equates to 11 “more than a mere scintilla[,] but less than a preponderance.” Id. (quotation and 12 citation omitted). In determining whether the standard has been satisfied, a 13 reviewing court must consider the entire record as a whole rather than searching 14 for supporting evidence in isolation. Id. 15 In reviewing a denial of benefits, a district court may not substitute its 16 judgment for that of the Commissioner. If the evidence in the record “is 17 susceptible to more than one rational interpretation, [the court] must uphold the 18 ALJ’s findings if they are supported by inferences reasonably drawn from the 19 record.” Molina v. Astrue, 674 F.3d 1104, 1111 (9th Cir. 2012). Further, a district 20 court “may not reverse an ALJ’s decision on account of an error that is harmless.” 21 ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT - 2 1 Id. An error is harmless “where it is inconsequential to the [ALJ’s] ultimate 2 nondisability determination.” Id. at 1115 (quotation and citation omitted). The 3 party appealing the ALJ’s decision generally bears the burden of establishing that 4 it was harmed. Shineski v. Sanders, 556 U.S. 396, 409-410 (2009). 5 6 FIVE-STEP EVALUATION PROCESS A claimant must satisfy two conditions to be considered “disabled” within 7 the meaning of the Social Security Act. First, the claimant must be “unable to 8 engage in any substantial gainful activity by reason of any medically determinable 9 physical or mental impairment which can be expected to result in death or which 10 has lasted or can be expected to last for a continuous period of not less than twelve 11 months.” 42 U.S.C. § 423(d)(1)(A). Second, the claimant’s impairment must be 12 “of such severity that he is not only unable to do his previous work[,] but cannot, 13 considering his age, education, and work experience, engage in any other kind of 14 substantial gainful work which exists in the national economy.” 42 U.S.C. § 15 423(d)(2)(A). 16 The Commissioner has established a five-step sequential analysis to 17 determine whether a claimant satisfies the above criteria. See 20 C.F.R. § 18 404.1520(a)(4)(i)-(v). At step one, the Commissioner considers the claimant’s 19 work activity. 20 C.F.R. § 404.1520(a)(4)(i). If the claimant is engaged in 20 21 ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT - 3 1 “substantial gainful activity,” the Commissioner must find that the claimant is not 2 disabled. 20 C.F.R. § 404.1520(b). 3 If the claimant is not engaged in substantial gainful activity, the analysis 4 proceeds to step two. At this step, the Commissioner considers the severity of the 5 claimant’s impairment. 20 C.F.R. § 404.1520(a)(4)(ii). If the claimant suffers 6 from “any impairment or combination of impairments which significantly limits 7 [his or her] physical or mental ability to do basic work activities,” the analysis 8 proceeds to step three. 20 C.F.R. § 404.1520(c). If the claimant’s impairment 9 does not satisfy this severity threshold, however, the Commissioner must find that 10 the claimant is not disabled. 20 C.F.R. § 404.1520(c). 11 At step three, the Commissioner compares the claimant’s impairment to 12 severe impairments recognized by the Commissioner to be so severe as to preclude 13 a person from engaging in substantial gainful activity. 20 C.F.R. § 14 404.1520(a)(4)(iii). If the impairment is as severe or more severe than one of the 15 enumerated impairments, the Commissioner must find the claimant disabled and 16 award benefits. 20 C.F.R. § 404.1520(d). 17 If the severity of the claimant’s impairment does not meet or exceed the 18 severity of the enumerated impairments, the Commissioner must pause to assess 19 the claimant’s “residual functional capacity.” Residual functional capacity (RFC), 20 defined generally as the claimant’s ability to perform physical and mental work 21 ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT - 4 1 activities on a sustained basis despite his or her limitations, 20 C.F.R. § 2 404.1545(a)(1), is relevant to both the fourth and fifth steps of the analysis. 3 At step four, the Commissioner considers whether, in view of the claimant’s 4 RFC, the claimant is capable of performing work that he or she has performed in 5 the past (past relevant work). 20 C.F.R. § 404.1520(a)(4)(iv). If the claimant is 6 capable of performing past relevant work, the Commissioner must find that the 7 claimant is not disabled. 20 C.F.R. § 404.1520(f). If the claimant is incapable of 8 performing such work, the analysis proceeds to step five. 9 At step five, the Commissioner considers whether, in view of the claimant’s 10 RFC, the claimant is capable of performing other work in the national economy. 11 20 C.F.R. § 404.1520(a)(4)(v). In making this determination, the Commissioner 12 must also consider vocational factors such as the claimant’s age, education and 13 past work experience. 20 C.F.R. § 404.1520(a)(4)(v). If the claimant is capable of 14 adjusting to other work, the Commissioner must find that the claimant is not 15 disabled. 20 C.F.R. § 404.1520(g)(1). If the claimant is not capable of adjusting to 16 other work, analysis concludes with a finding that the claimant is disabled and is 17 therefore entitled to benefits. 20 C.F.R. § 404.1520(g)(1). 18 The claimant bears the burden of proof at steps one through four above. 19 Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999). If the analysis proceeds to 20 step five, the burden shifts to the Commissioner to establish that (1) the claimant is 21 ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT - 5 1 capable of performing other work; and (2) such work “exists in significant 2 numbers in the national economy.” 20 C.F.R. § 404.1560(c)(2); Beltran v. Astrue, 3 700 F.3d 386, 389 (9th Cir. 2012). ALJ’S FINDINGS 4 5 Plaintiff applied for Title II disability insurance benefits on June 26, 2012, 6 alleging a disability onset date of June 1, 2012. Tr. 143-149. The application was 7 denied initially, Tr. 59-67, and on reconsideration. Tr. 68-77. Plaintiff appeared at 8 a hearing before an administrative law judge (ALJ) on July 15, 2013. Tr. 22-58. 9 On September 16, 2013, the ALJ denied Plaintiff’s claim. Tr. 6-21. 10 At the outset, the ALJ found that Plaintiff met the insured status 11 requirements of the Act with respect to his disability insurance benefits claim 12 through December 31, 2016. Tr. 11. At step one, the ALJ found that Plaintiff has 13 not engaged in substantial gainful activity since the alleged onset date, June 1, 14 2012. Tr. 11. At step two, the ALJ found Plaintiff has the following severe 15 impairments: ankylosing spondylitis (AS); Crohn’s disease; latent tuberculosis 16 (TB); and obesity. Tr. 11. At step three, the ALJ found Plaintiff does not have an 17 impairment or combination of impairments that meets or medically equals the 18 severity of a listed impairment. Tr. 12. The ALJ then concluded that Plaintiff has 19 the RFC to perform light work with the following additional limitations and 20 qualifications: 21 ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT - 6 1 2 3 4 [H]e can stand and walk for about 6 hours in [an] 8 hour workday with normal breaks; he can lift, carry, and push, and pull within the light exertional limits, except he can never push or pull overhead; he can never reach overhead; he can perform work that is indoors for reasonable access to the bathroom; he can frequently climb ramps and stairs and crouch; he can never climb ladders, ropes, or scaffolds or crawl; he can occasionally stoop; he can perform work in which concentrated exposure to extreme cold, heat, wetness, vibration, and or hazards are not present. 5 Tr. 12. 6 At step four, the ALJ found Plaintiff is unable to perform past relevant work. 7 Tr. 15. At step five, the ALJ found that, considering Plaintiff’s age, education, 8 work experience, and RFC, there are jobs in significant numbers in the national 9 economy that Plaintiff could perform, such as cashier II, counter attendant, and 10 hand packager. Tr. 16. On that basis, the ALJ concluded that Plaintiff is not 11 disabled as defined in the Social Security Act. Tr. 16-17. 12 On March 26, 2015, the Appeals Council denied review, Tr. 1-4, making the 13 ALJ’s decision the Commissioner’s final decision for purposes of judicial review. 14 See 42 U.S.C. § 1383(c)(3); 20 C.F.R. §§ 404.981, 422.210. 15 ISSUES 16 Plaintiff seeks judicial review of the Commissioner’s final decision denying 17 him disability insurance benefits under Title II of the Social Security Act. ECF 18 No. 14. Plaintiff raises the following issues for review: 19 1. Whether the ALJ properly considered the medical opinion evidence; 2. Whether the ALJ properly considered the lay testimony; 20 21 ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT - 7 1 3. Whether the ALJ properly discredited Plaintiff’s symptom claims; and 2 4. Whether the ALJ made a proper step five finding. 3 ECF No. 14 at 5. 4 5 A. Medical Opinion Evidence Plaintiff contends the ALJ improperly discounted the medical opinion of 6 treating physician Judith Harvey, M.D. ECF No. 14 at 8-10. 7 There are three types of physicians: “(1) those who treat the claimant 8 (treating physicians); (2) those who examine but do not treat the claimant 9 (examining physicians); and (3) those who neither examine nor treat the claimant 10 but who review the claimant’s file (nonexamining or reviewing physicians).” 11 Holohan v. Massanari, 246 F.3d 1195, 1201-02 (9th Cir. 2001) (brackets omitted). 12 “Generally, a treating physician’s opinion carries more weight than an examining 13 physician’s, and an examining physician’s opinion carries more weight than a 14 reviewing physician’s.” Id. “In addition, the regulations give more weight to 15 opinions that are explained than to those that are not, and to the opinions of 16 specialists concerning matters relating to their specialty over that of 17 nonspecialists.” Id. (citations omitted). 18 If a treating or examining physician’s opinion is uncontradicted, an ALJ may 19 reject it only by offering “clear and convincing reasons that are supported by 20 substantial evidence.” Bayliss v. Barnhart, 427 F.3d 1211, 1216 (9th Cir. 2005). 21 ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT - 8 1 “However, the ALJ need not accept the opinion of any physician, including a 2 treating physician, if that opinion is brief, conclusory and inadequately supported 3 by clinical findings.” Bray v. Comm’r Soc. Sec. Admin., 554 F.3d 1219, 1228 (9th 4 Cir. 2009) (internal quotation marks and brackets omitted). “If a treating or 5 examining doctor’s opinion is contradicted by another doctor’s opinion, an ALJ 6 may only reject it by providing specific and legitimate reasons that are supported 7 by substantial evidence.” Bayliss, 427 F.3d at 1216 (citing Lester v. Chater, 81 8 F.3d 821, 830-31 (9th Cir. 2014). 9 In December 2012, Dr. Harvey completed a medical report in which she 10 reported that Plaintiff has suffered from AS since approximately 1990, it is 11 currently considered severe, and he has pain in his neck and shoulders, which 12 limits his functioning. Tr. 280. Dr. Harvey opined that Plaintiff’s neck symptoms 13 were worsening and he would likely miss up to a week per month from work due 14 to pain. Tr. 280-281. The ALJ gave this opinion little weight. 15 Because Dr. Harvey’s opinion was contracted by Dr. Staley, Tr. 69-77, the 16 ALJ was required to provide specific and legitimate reasons for rejecting Dr. 17 Harvey’s opinion. Bayliss, 427 F.3d at 1216. 18 First, the ALJ found that Dr. Harvey’s opinion is inconsistent with the 19 record. Tr. 15. An ALJ may discredit a treating physician’s opinions that are 20 21 ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT - 9 1 unsupported by the record as a whole or by objective medical findings. Batson v. 2 Comm’r of Soc. Sec. Admin., 359 F.3d 1190, 1195 (9th Cir. 2004). 3 As an initial matter, Plaintiff did not challenge this reason. ECF No. 14 at 8- 4 10. Plaintiff’s failure to raise the issue in her opening brief means the issue is 5 waived. See Bray, 554 F.3d at 1226 n.7. Here, the ALJ set out the medical 6 evidence and concluded that it did not support the disabling limitations opined by 7 Dr. Harvey. The ALJ observed that “claimant’s AS has been a long-standing 8 condition,” Tr. 15, which is well documented in the record. The ALJ noted that in 9 March 2012, Plaintiff had reported that his AS was under control with medications. 10 Tr. 15 (citing Tr. 231). During a medical appointment to establish care with a new 11 provider, Plaintiff indicated he had managed his AS for 15 years with ibuprofen, 12 and subsequently with Celebrex. Tr. 15 (citing Tr. 233). He told the physician that 13 he could manage his disease better with increased exercise. Tr. 233. The ALJ also 14 noted that despite the allegations of disabling neck pain, Plaintiff was not taking 15 any pain medications. Tr. 14. Finally, the ALJ noted that the medical records 16 contained minimal complaints of neck pain for the alleged disability period. Tr. 17 14. In fact, the medical records indicate that Plaintiff’s complaints of neck pain 18 occurred primarily in 2011, prior to alleged onset date. However, that pain did not 19 prevent him from working, as Plaintiff quit his job in June 2012. Tr. 13. Here, the 20 ALJ’s finding that this medical record, which included minimal complaints of neck 21 ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT - 10 1 pain during the alleged disability period and minimal use of pain medications, was 2 inconsistent with an assessment that Plaintiff would miss up to a week of work a 3 month due to neck pain. Although the medical record could be interpreted as 4 favorable to the Plaintiff, here, the medical evidence of record was susceptible to 5 more than one rational conclusion, and therefore the ALJ’s conclusion must be 6 upheld. See Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005). Second, the ALJ rejected Dr. Harvey’s opinion in part because “[i]t appears 7 8 that claimant went to Dr. Harvey about hip pain and not neck pain,” and because 9 Plaintiff made no mention of issues with Crohn’s disease. Tr. 15. Defendant 10 concedes the ALJ erred in asserting this reason as a basis for rejecting Dr. 11 Harvey’s opinion. ECF No. 15 at 8. This was not a specific and legitimate reason 12 to reject Dr. Harvey’s opinion. Third, the ALJ rejected Dr. Harvey’s opinion that Plaintiff would miss up to 13 14 a week of work a month, finding it to be speculative and not helpful since “up to” a 15 month could mean no missed work. Tr. 15.1 A medical opinion may be rejected 16 by the ALJ if it is conclusory, contains inconsistencies, or is inadequately 17 supported. Bray, 554 F.3d at 1228; Thomas v. Barnhart, 278 F.3d 947, 957 (9th 18 19 1 The Court rejects the ALJ’s interpretation of the limitation that it could mean no 20 missed work. That is not a valid interpretation of the physician’s limitation. 21 ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT - 11 1 Cir. 2002). Here, Dr. Harvey provided no clinical findings or explanation to 2 support such an extreme limitation. In fact, in the section of the report labeled 3 “Describe your patient’s signs (relevant clinical findings, test results, etc.),” Dr. 4 Harvey stated “severely kyphosis, x-ray done a very long time ago.” Tr. 280. This 5 report was generated in December 2012, Tr. 281, which is only six months after 6 Plaintiff quit his full time employment. Given the lack of objective clinical 7 findings to support such an extreme limitation, the ALJ did not error in finding that 8 limitation was unsupported. This was a specific, legitimate reason to give limited 9 weight to Dr. Harvey’s opinion. 10 11 B. Lay Opinion Next, Plaintiff contends that the ALJ erred in assessing the statements of 12 Plaintiff’s wife. ECF No. 14 at 9-10. In July 2012, Ms. Redman submitted a Third 13 Party Function Report. Tr. 179-186. She reported that Plaintiff had difficulty 14 lifting, squatting, bending, standing, reaching, walking, sitting, kneeling and stair 15 climbing due to his mobility issues. Id. She also reported that Plaintiff had no 16 difficulty with personal care, prepared meals daily, performed household chores 17 including household repairs and mowing. Id. The ALJ gave Ms. Redman’s 18 statements some weight. Tr. 15. 19 Lay testimony as to a claimant’s symptoms or how an impairment affects the 20 claimant’s ability to work is competent evidence that the ALJ must take into 21 ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT - 12 1 account, and an ALJ is required to give germane reasons for discounting lay 2 testimony. Molina, 674 F.3d at 1114 (citations omitted). Here, the ALJ discounted Ms. Redman’s statements because they were not 3 4 wholly consistent with the record, in that the medical evidence indicated that 5 Plaintiff’s AS and Crohn’s disease were fairly stable. Tr. 15. Also, the ALJ noted 6 that Ms. Redman’s report described some discomfort, but also described a fairly 7 full range of activities of daily living. Tr. 15. The ALJ further noted that 8 discomfort does not equate to disability. Tr. 15. An ALJ may reject lay testimony 9 that is inconsistent with the medical evidence. See Bayliss, 427 F.3d at 1218. 10 Here, as discussed supra and infra, the ALJ found the medical records did not 11 support the Plaintiff’s allegations of disabling limitations. This was a germane 12 reason to reject Ms. Redman’s statements.2 13 In support of her contention that the ALJ improperly rejected Ms. Redman’s 14 statements, Plaintiff cites to several medical records. ECF No. 14 at 10 (citing Tr. 15 226, 233, 308). However, none of those medical records contain an assessment by 16 17 2 Moreover, the Court notes that the assessed RFC provides that Plaintiff could 18 never crawl and can only occasionally stoop, which incorporates Ms. Redman’s 19 indications that Plaintiff has difficulty, but is not unable, to perform these 20 activities. Tr. 12. 21 ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT - 13 1 a medical provider opining that Plaintiff had any work-related functional 2 limitations in his ability to stoop, squat, and look around, or that he required 3 assistance with his daily activities. 4 5 C. Adverse Credibility Finding Plaintiff faults the ALJ for failing to provide specific findings with clear and 6 convincing reasons for discrediting his symptom claims. ECF No. 14 at 10-14. 7 An ALJ engages in a two-step analysis to determine whether a claimant’s 8 testimony regarding subjective pain or symptoms is credible. “First, the ALJ must 9 determine whether there is objective medical evidence of an underlying 10 impairment which could reasonably be expected to produce the pain or other 11 symptoms alleged.” Molina, 674 F.3d at 1112 (internal quotation marks omitted). 12 “The claimant is not required to show that [his] impairment could reasonably be 13 expected to cause the severity of the symptom [he] has alleged; [he] need only 14 show that it could reasonably have caused some degree of the symptom.” Vasquez 15 v. Astrue, 572 F.3d 586, 591 (9th Cir. 2009) (internal quotation marks omitted). 16 Second, “[i]f the claimant meets the first test and there is no evidence of 17 malingering, the ALJ can only reject the claimant’s testimony about the severity of 18 the symptoms if [the ALJ] gives ‘specific, clear and convincing reasons’ for the 19 rejection.” Ghanim v. Colvin, 763 F.3d 1154, 1163 (9th Cir. 2014) (internal 20 citations and quotations omitted). “General findings are insufficient; rather, the 21 ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT - 14 1 ALJ must identify what testimony is not credible and what evidence undermines 2 the claimant’s complaints.” Id. (quoting Lester, 81 F.3d at 834); see also Thomas, 3 278 F.3d at 958 (“[T]he ALJ must make a credibility determination with findings 4 sufficiently specific to permit the court to conclude that the ALJ did not arbitrarily 5 discredit claimant’s testimony.”). “The clear and convincing [evidence] standard 6 is the most demanding required in Social Security cases.” Garrison v. Colvin, 759 7 F.3d 995, 1015 (9th Cir. 2014) (quoting Moore v. Comm’r of Soc. Sec. Admin., 278 8 F.3d 920, 924 (9th Cir. 2002)). 9 In making an adverse credibility determination, the ALJ may consider, inter 10 alia, (1) the claimant’s reputation for truthfulness; (2) inconsistencies in the 11 claimant’s testimony or between his testimony and his conduct; (3) the claimant’s 12 daily living activities; (4) the claimant’s work record; and (5) testimony from 13 physicians or third parties concerning the nature, severity, and effect of the 14 claimant’s condition. Thomas, 278 F.3d at 958-59. 15 This Court finds that the ALJ provided specific, clear, and convincing 16 reasons for finding Plaintiff’s statements concerning the intensity, persistence, and 17 limiting effects of those symptoms not credible. Tr. 14-15. Here, Plaintiff only 18 challenged two of the several reasons identified by the ALJ. 19 First, the ALJ found that Plaintiff gave inconsistent statements regarding the 20 reason for quitting his job. Tr. 14. In evaluating credibility, the ALJ may consider 21 ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT - 15 1 inconsistencies in Plaintiff’s testimony or between his testimony and his conduct. 2 Thomas, 278 F.3d at 958-59; see also Smolen v. Chater, 80 F.3d 1273, 1284 (9th 3 Cir. 1996) (in making a credibility evaluation, the ALJ may rely on ordinary 4 techniques of credibility evaluation). Plaintiff testified that he stopped working 5 because he was unable to stand for 10 hours and he believed he was going to be 6 fired. Tr. 14, 32-34. However, the ALJ observed that the unemployment records 7 demonstrated that Plaintiff quit his job due to a personality conflict with his 8 employer. Tr. 14 (citing Tr. 217). This was a clear and convincing reason for 9 discrediting Plaintiff’s testimony. 10 Second, the ALJ found that Plaintiff stopped working for reasons that were 11 unrelated to his physical impairments. Tr. 14. When considering a claimant’s 12 contention that he cannot work because of his impairments, it is appropriate to 13 consider whether the claimant has not worked for reasons unrelated to his alleged 14 disability. See Bruton v. Massanari, 268 F.3d 824, 828 (9th Cir. 2001) (the fact 15 that the claimant left his job because he was laid off, rather than because he was 16 injured, was a clear and convincing reason to find him not credible); Tommasetti v. 17 Astrue, 533 F.3d 1035, 1040 (9th Cir. 2008) (the ALJ properly discounted 18 claimant’s credibility based, in part, on the fact that the claimant’s reason for 19 stopping work was not his disability). Here, as noted supra, the ALJ observed that 20 the unemployment records indicated that Plaintiff quit his last job due to a 21 ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT - 16 1 personality conflict with his employer and the likelihood that he would be laid off 2 later that year when work slowed. Tr. 14 (citing Tr. 217). This was a clear and 3 convincing reason to discredit Plaintiff’s testimony. 4 Third, the ALJ observed that Plaintiff was actively seeking work months 5 after the alleged onset date and also applied for unemployment benefits, a process 6 that required Plaintiff to indicate that he was ready, able, and willing to work. Tr. 7 14. The ALJ found these facts to be inconsistent with Plaintiff’s allegations that he 8 suffers from disabling impairments. Tr. 14. Receipt of unemployment benefits 9 may cast doubt on a claim of disability. See Ghanim, 763 F.3d at 1165; Copeland 10 v. Bowen, 861 F.2d 536, 542 (9th Cir. 1988). However, if the record does not 11 establish whether the claimant held himself out as available for full-time or part12 time work, receipt of unemployment benefits may not be inconsistent with 13 disability allegations. See Carmickle v. Comm’r Soc. Sec. Admin., 533 F.3d 1155, 14 1161-62 (9th Cir. 2008). Here, Plaintiff applied for, but was denied, 15 unemployment benefits. Tr. 33-36. However, Plaintiff testified that when he 16 applied for unemployment benefits, he understood that he had to be ready, willing 17 and able to accept any full time employment that would be offered to him. Tr. 36. 18 The record establishes that Plaintiff “held himself out as available for full-time” 19 work, which is inconsistent with disability allegations. Carmickle, 533 F.3d at 20 21 ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT - 17 1 1161-62. This was a clear and convincing reason to discredit Plaintiff’s 2 testimony. 3 Fourth, the ALJ found that the medical records do not establish disabling 4 physical symptoms. Tr. 14. An ALJ may not discredit a claimant’s pain testimony 5 and deny benefits solely because the degree of pain alleged is not supported by 6 objective medical evidence. Rollins v. Massanari, 261 F.3d 853, 857 (9th Cir. 7 2001); Bunnell v. Sullivan, 947 F.2d 341, 346-47 (9th Cir. 1991); Fair v. Bowen, 8 885 F.2d 597, 601 (9th Cir. 1989). However, the medical evidence is a relevant 9 factor in determining the severity of a claimant’s pain and its disabling effects. 10 Rollins, 261 F.3d at 857; 20 C.F.R. §416.929(c)(2); see also S.S.R. 96-7p.3 11 Minimal objective evidence is a factor which may be relied upon in discrediting a 12 claimant’s testimony, although it may not be the only factor. See Burch, 400 F.3d 13 at 680. 14 15 16 3 S.S.R. 96-7p was superseded by S.S.R. 16-3p effective March 16, 2016. The new 17 ruling also provides that the consistency of a claimant’s statements with objective 18 medical evidence and other evidence is a factor in evaluating a claimant’s 19 symptoms. S.S.R. 16-3p at *6. Nonetheless, S.S.R. 16-3p was not effective at the 20 time of the ALJ’s decision and therefore does not apply in this case. 21 ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT - 18 1 For example, the ALJ noted that Plaintiff testified that he was unable to 2 work due to ongoing neck pain; however, Plaintiff did not take any pain 3 medication for his neck pain. Tr. 14. The ALJ further noted that the medical 4 records document minimal complaints regarding neck pain during the alleged 5 disability period. Tr. 14. Moreover, the ALJ noted that prior to 2011, Plaintiff 6 endorsed improved symptoms of neck pain if taking prednisone. Tr. 14. 7 The ALJ observed that Plaintiff testified that as a result of his Crohn’s 8 disease, he had to go to the bathroom approximately four times per day up to 45 9 minutes. The ALJ found that the medical record did not support such allegations. 10 The ALJ set forth in detail numerous instances where Plaintiff reported that his 11 Crohn’s disease was relatively stable and he had no or minimal gastrointestinal 12 symptoms. Tr. 14 (citing Tr. 235 (Crohn’s disease is stable), 262, 284, 289, 299, 13 307); see also Tr. 233. 14 Moreover, the ALJ noted that Plaintiff’s AS’s disease was relatively well 15 controlled with medication. Tr. 14. Impairments that can be controlled effectively 16 with medication are not disabling for the purpose of determining eligibility for SSI 17 benefits. Warre v. Comm’r of Soc. Sec. Admin., 439 F.3d 1001, 1006 (9th Cir. 18 2006); see also Tommasetti, 533 F.3d at 1040 (a favorable response to treatment 19 can undermine a claimant’s complaints of debilitating pain or other severe 20 limitations). Here, Plaintiff reported to Dr. Chen in March of 2012 that his AS was 21 ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT - 19 1 under control with medication. Tr. 231. He further reported to Dr. Peacock in 2 May of 2012, that he had managed his AS for 15 years with ibuprofen and then 3 with Celebrex, which seemed to work well. Tr. 233. Although the objective 4 evidence could be interpreted as more favorable to the Plaintiff, here, the medical 5 evidence of record was susceptible to more than one rational conclusion, and 6 therefore the ALJ’s conclusion as to the inconsistencies between Plaintiff’s alleged 7 physical impairments, and the overall record, must be upheld. See Burch, 400 F.3d 8 at 679. 9 Fifth, the ALJ found that Plaintiff’s daily activities were inconsistent with 10 disability. Tr. 14. A claimant’s reported daily activities can form the basis for an 11 adverse credibility determination if they consist of activities that contradict the 12 claimant’s “other testimony” or if those activities are transferable to a work setting. 13 Orn v. Astrue, 495 F.3d 625, 639 (9th Cir. 2007); see also Fair, 885 F.2d at 603 14 (9th Cir. 1989) (daily activities may be grounds for an adverse credibility finding 15 “if a claimant is able to spend a substantial part of his day engaged in pursuits 16 involving the performance of physical functions that are transferable to a work 17 setting.”). “While a claimant need not vegetate in a dark room in order to be 18 eligible for benefits, the ALJ may discredit a claimant’s testimony when the 19 claimant reports participation in everyday activities indicating capacities that are 20 transferable to a work setting” or when activities “contradict claims of a totally 21 ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT - 20 1 debilitating impairment.” Molina, 674 F.3d at 1112-13 (internal quotation marks 2 and citations omitted). Here, the ALJ noted that Plaintiff is independent in his 3 personal care needs, such as dressing and bathing; he prepares meals daily and 4 performs household chores, including small household repairs and mowing the 5 lawn once per week. Tr. 14. Plaintiff is able to drive and shop in stores; and he 6 watched three to five hours of television daily. Tr. 14. He stated he went out daily 7 and was able to go out alone. Tr. 14. He regularly went to swap meets, festivals, 8 and travelled, including taking a 20 hour road trip to Arizona, where he and his 9 wife switched driving responsibility every 2.5 hours. Tr. 14. 10 Plaintiff contends that none of the activities cited by the ALJ were 11 inconsistent with Plaintiff’s alleged limitations, nor do they show that he was 12 capable of gainful employment for a sustained period of time. ECF No. 14 at 12. 13 Here, the ALJ did not articulate how these particular activities were inconsistent 14 with Plaintiff’s specific allegations of disabling impairments. However, even 15 assuming that the ALJ erred, any error is harmless because, as discussed in detail 16 in this section, the ALJ offered additional reasons, supported by substantial 17 evidence, for the ultimate adverse credibility finding. See Carmickle, 533 F.3d at 18 1162-63. 19 20 21 ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT - 21 1 In sum, despite Plaintiff’s arguments to the contrary, the ALJ provided 2 specific, clear, and convincing reasons, supported by the record, for rejecting 3 Plaintiff’s testimony. See Ghanim, 763 F.3d at 1163. 4 5 D. Step Five – RFC and Hypothetical Finally, Plaintiff argues that the ALJ erred in assessing an RFC that did not 6 include all of the limitations opined by Plaintiff’s medical provider and the lay 7 witness testimony; and therefore relied on the vocational expert’s response to a 8 hypothetical that does not accurately reflect Plaintiff’s limitations. ECF No. 14 at 9 14-15. 10 A claimant’s RFC is “the most [the claimant] can still do despite [his or her] 11 limitations;” and is based on all the relevant evidence in the claimant’s case record. 12 20 C.F.R. §§ 404.1545(a), 416.945(a). In determining the RFC, the ALJ is 13 required to consider the combined effect of all the claimant’s impairments, mental 14 and physical, exertional and non-exertional, severe and non-severe. 42 U.S.C. § 15 423(d)(2)(B), (5)(B). Further, “[a]n ALJ must propound a hypothetical to a 16 [vocational expert] that is based on medical assumptions supported by substantial 17 evidence in the record that reflects all the claimant's limitations.” Osenbrock v. 18 Apfel, 240 F.3d 1157, 1165 (9th Cir. 2001). “If the assumptions in the hypothetical 19 are not supported by the record, the opinion of the vocational expert that claimant 20 has a residual working capacity has no evidentiary value.” Gallant v. Heckler, 753 21 ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT - 22 1 F.2d 1450, 1456 (9th Cir. 1984). However, the ALJ is not bound to accept as true 2 the restrictions presented in a hypothetical question propounded by a claimant’s 3 counsel. Osenbrock, 240 F.3d at 1164; Magallanes v. Bowen, 881 F.2d 747, 756– 4 57 (9th Cir. 1989). The ALJ is free to accept or reject these restrictions as long as 5 they are supported by substantial evidence, even when there is conflicting medical 6 evidence. Magallanes, 881 F.2d at 756-57. 7 Plaintiff argues the RFC and hypothetical failed to include Dr. Harvey’s 8 limitation that Plaintiff would miss a week of work a month and Ms. Redman’s 9 statement that stooping and squatting are difficult for Plaintiff. Plaintiff’s 10 arguments are based on the assumption that the ALJ erred in considering the 11 medical opinion evidence and the lay testimony. ECF No. 14 at 14-15. As 12 discussed above, the ALJ’s reasons for rejecting Dr. Harvey’s opinion and Mrs. 13 Redman’s statements were legally sufficient and supported by substantial 14 evidence. 15 For all of these reasons, the ALJ properly excluded limitations assessed by 16 the above-referenced medical provider and witness from the RFC and hypothetical 17 propounded to the vocational expert. The hypothetical contained the limitations 18 the ALJ found credible and supported by substantial evidence in the record. See 19 Magallanes, 881 F.2d at 756-757. The ALJ’s reliance on testimony the vocational 20 21 ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT - 23 1 expert gave in response to the hypothetical was therefore proper. See id.; Bayliss, 2 427 F.3d at 1217-18. The ALJ did not err at step five. 3 4 CONCLUSION After review, the Court finds that the ALJ’s decision is supported by 5 substantial evidence and free of harmful legal error. 6 IT IS ORDERED: 7 1. Plaintiff’s motion for summary judgment (ECF No. 14) is DENIED 8 2. Defendant’s motion for summary judgment (ECF No. 15) is GRANTED. 9 The District Court Executive is directed to file this Order, enter 10 JUDGMENT FOR THE DEFENDANT, provide copies to counsel, and CLOSE 11 THE FILE. 12 13 14 DATED this 14th day of September, 2016. S/Mary K. Dimke MARY K. DIMKE UNITED STATES MAGISTRATE JUDGE 15 16 17 18 19 20 21 ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT - 24

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