Foote v. Commissioner of Social Security, No. 1:2016cv03098 - Document 24 (E.D. Wash. 2017)

Court Description: ORDER DENYING PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT (ECF 20 ) AND GRANTING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT (ECF 21 ). FILE CLOSED. Signed by Magistrate Judge Mary K. Dimke. (PH, Case Administrator)

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Foote v. Commissioner of Social Security Doc. 24 1 2 3 4 UNITED STATES DISTRICT COURT 5 EASTERN DISTRICT OF WASHINGTON 6 KRISTEEN FOOTE, No. 1:16-cv-03098-MKD 7 ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT Plaintiff, 8 vs. 9 COMMISSIONER OF SOCIAL ECF Nos. 20, 21 10 SECURITY, 11 Defendant. 12 BEFORE THE COURT are the parties’ cross-motions for summary 13 judgment. ECF Nos. 20, 21. The parties consented to proceed before a magistrate 14 judge. ECF No. 7. The Court, having reviewed the administrative record and the 15 parties’ briefing, is fully informed. For the reasons discussed below, the Court 16 denies Plaintiff’s motion (ECF No. 20) and grants Defendant’s motion (ECF No. 17 21). 18 19 JURISDICTION The Court has jurisdiction over this case pursuant to 42 U.S.C. § 1383(c)(3). 20 21 ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT - 1 Dockets.Justia.com 1 2 STANDARD OF REVIEW A district court’s review of a final decision of the Commissioner of Social 3 Security is governed by 42 U.S.C. § 405(g). The scope of review under § 405(g) is 4 limited; the Commissioner’s decision will be disturbed “only if it is not supported 5 by substantial evidence or is based on legal error.” Hill v. Astrue, 698 F.3d 1153, 6 1158 (9th Cir. 2012). “Substantial evidence” means “relevant evidence that a 7 reasonable mind might accept as adequate to support a conclusion.” Id. at 1159 8 (quotation and citation omitted). Stated differently, substantial evidence equates to 9 “more than a mere scintilla[,] but less than a preponderance.” Id. (quotation and 10 citation omitted). In determining whether the standard has been satisfied, a 11 reviewing court must consider the entire record as a whole rather than searching 12 for supporting evidence in isolation. Id. 13 In reviewing a denial of benefits, a district court may not substitute its 14 judgment for that of the Commissioner. Edlund v. Massanari, 253 F.3d 1152, 15 1156 (9th Cir. 2001). If the evidence in the record “is susceptible to more than one 16 rational interpretation, [the court] must uphold the ALJ’s findings if they are 17 supported by inferences reasonably drawn from the record.” Molina v. Astrue, 674 18 F.3d 1104, 1111 (9th Cir. 2012). Further, a district court “may not reverse an 19 ALJ’s decision on account of an error that is harmless.” Id. An error is harmless 20 “where it is inconsequential to the [ALJ’s] ultimate nondisability determination.” 21 ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT - 2 1 Id. at 1115 (quotation and citation omitted). The party appealing the ALJ’s 2 decision generally bears the burden of establishing that it was harmed. Shinseki v. 3 Sanders, 556 U.S. 396, 409-10 (2009). 4 5 FIVE-STEP EVALUATION PROCESS A claimant must satisfy two conditions to be considered “disabled” within 6 the meaning of the Social Security Act. First, the claimant must be “unable to 7 engage in any substantial gainful activity by reason of any medically determinable 8 physical or mental impairment which can be expected to result in death or which 9 has lasted or can be expected to last for a continuous period of not less than twelve 10 months.” 42 U.S.C. § 1382c(a)(3)(A). Second, the claimant’s impairment must be 11 “of such severity that he is not only unable to do his previous work[,] but cannot, 12 considering his age, education, and work experience, engage in any other kind of 13 substantial gainful work which exists in the national economy.” 42 U.S.C. § 14 1382c(a)(3)(B). 15 The Commissioner has established a five-step sequential analysis to 16 determine whether a claimant satisfies the above criteria. See 20 C.F.R. § 17 416.920(a)(4)(i)-(v). At step one, the Commissioner considers the claimant’s work 18 activity. 20 C.F.R. § 416.920(a)(4)(i). If the claimant is engaged in “substantial 19 gainful activity,” the Commissioner must find that the claimant is not disabled. 20 20 C.F.R. § 416.920(b). 21 ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT - 3 1 If the claimant is not engaged in substantial gainful activity, the analysis 2 proceeds to step two. At this step, the Commissioner considers the severity of the 3 claimant’s impairment. 20 C.F.R. § 416.920(a)(4)(ii). If the claimant suffers from 4 “any impairment or combination of impairments which significantly limits [his or 5 her] physical or mental ability to do basic work activities,” the analysis proceeds to 6 step three. 20 C.F.R. § 416.920(c). If the claimant’s impairment does not satisfy 7 this severity threshold, however, the Commissioner must find that the claimant is 8 not disabled. 20 C.F.R. § 416.920(c). 9 At step three, the Commissioner compares the claimant’s impairment to 10 severe impairments recognized by the Commissioner to be so severe as to preclude 11 a person from engaging in substantial gainful activity. 20 C.F.R. § 12 416.920(a)(4)(iii). If the impairment is as severe or more severe than one of the 13 enumerated impairments, the Commissioner must find the claimant disabled and 14 award benefits. 20 C.F.R. § 416.920(d). 15 If the severity of the claimant’s impairment does not meet or exceed the 16 severity of the enumerated impairments, the Commissioner must pause to assess 17 the claimant’s “residual functional capacity.” Residual functional capacity (RFC), 18 defined generally as the claimant’s ability to perform physical and mental work 19 activities on a sustained basis despite his or her limitations, 20 C.F.R. § 20 416.945(a)(1), is relevant to both the fourth and fifth steps of the analysis. 21 ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT - 4 1 At step four, the Commissioner considers whether, in view of the claimant’s 2 RFC, the claimant is capable of performing work that he or she has performed in 3 the past (past relevant work). 20 C.F.R. § 416.920(a)(4)(iv). If the claimant is 4 capable of performing past relevant work, the Commissioner must find that the 5 claimant is not disabled. 20 C.F.R. § 416.920(f). If the claimant is incapable of 6 performing such work, the analysis proceeds to step five. 7 At step five, the Commissioner considers whether, in view of the claimant’s 8 RFC, the claimant is capable of performing other work in the national economy. 9 20 C.F.R. § 416.920(a)(4)(v). In making this determination, the Commissioner 10 must also consider vocational factors such as the claimant’s age, education and 11 past work experience. 20 C.F.R. § 416.920(a)(4)(v). If the claimant is capable of 12 adjusting to other work, the Commissioner must find that the claimant is not 13 disabled. 20 C.F.R. § 416.920(g)(1). If the claimant is not capable of adjusting to 14 other work, analysis concludes with a finding that the claimant is disabled and is 15 therefore entitled to benefits. 20 C.F.R. § 416.920(g)(1). 16 The claimant bears the burden of proof at steps one through four above. 17 Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999). If the analysis proceeds to 18 step five, the burden shifts to the Commissioner to establish that (1) the claimant is 19 capable of performing other work; and (2) such work “exists in significant 20 numbers in the national economy.” 20 C.F.R. § 416.960(c)(2); Beltran v. Astrue, 21 ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT - 5 1 700 F.3d 386, 389 (9th Cir. 2012). 2 ALJ’S FINDINGS 3 Plaintiff applied for supplemental security income benefits on February 20, 4 2007, alleging an amended disability onset date also of February 20, 2007. Tr. 525 53 (amending onset date); Tr. 217-20 (Title XVI application).1 The application 6 was denied initially, Tr. 135-38, and on reconsideration. Tr. 139-41. Plaintiff 7 appeared at a hearing before an Administrative Law Judge (ALJ) on February 24, 8 2015. Tr. 1097-1177. The ALJ conducted a supplemental hearing on June 25, 9 2015. Tr. 1123-60. 10 At step one, the ALJ found that Plaintiff did not engage in substantial 11 gainful activity after the application date, February 20, 2007. Tr. 1066. At step 12 two, the ALJ found that Plaintiff has the following severe impairments: cervical 13 degenerative disc disease, status post fusion surgery; thoracic and lumbar spine 14 15 1 A prior hearing was held August 20, 2009, Tr. 51-74, and Plaintiff’s claim was 16 denied October 2, 2009, Tr. 121-30. The case was remanded by the Appeals 17 Council and another hearing was held January 10, 2012. Tr. 77-113. The claim 18 was denied February 8, 2012, Tr. 20-33, and the district court ordered remand, Tr. 19 1197-1211. Another hearing was held and resulted in the decision that is the basis 20 of this appeal. 21 ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT - 6 1 degenerative disc disease; status post left side carpal tunnel surgery; and status post 2 left foot surgeries. Tr. 1066. At step three, the ALJ found that Plaintiff does not 3 have an impairment or combination of impairments that meets or medically equals 4 a listed impairment. Tr. 1072. The ALJ then concluded that Plaintiff has the RFC 5 to perform a range of light work with the following qualifications and limitations: 6 7 8 9 the claimant has the residual functional capacity to perform light work as defined in 20 C.F.R. § 416.967(b) except she cannot climb ladders, ropes, or scaffolds, and can only occasionally climb ramps and stairs. She can occasionally balance, stoop, kneel, crouch, and crawl. She can frequently finger, handle, and feel. She should avoid concentrated exposure to extreme cold, heat, vibration, pulmonary irritants, and workplace hazards. She is limited to simple, routine, unskilled tasks. 10 Tr. 1072-73. 11 At step four, the ALJ found that Plaintiff has no past relevant work. Tr. 12 1083. At step five, relying on a vocational expert’s testimony, the ALJ found that, 13 considering Plaintiff’s age, education, work experience, and RFC, there are jobs in 14 significant numbers in the national economy that Plaintiff could perform, such as 15 pricing marker, fast food worker, package sorter, and photocopy machine operator. 16 Tr. 1084. Thus, the ALJ concluded Plaintiff has not been under a disability since 17 February 20, 2007, the date the application was filed. Tr. 1085. 18 19 20 21 ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT - 7 Following the ALJ’s decision, the Appeals Council denied review,2 making 1 2 the ALJ’s decision the Commissioner’s final decision for purposes of judicial 3 review. See 42 U.S.C. § 1383(c)(3); 20 C.F.R. §§ 416.1481, 422.210. 4 ISSUES 5 Plaintiff seeks judicial review of the Commissioner’s final decision denying 6 her supplemental security income benefits under Title XVI of the Social Security 7 Act. ECF No. 20. Plaintiff raises the following issues for this Court’s review: 8 1. Whether the ALJ properly weighed the medical evidence; 9 2. Whether the ALJ properly weighed the lay testimony; 10 3. Whether the ALJ made a proper step two determination; 11 4. Whether the ALJ properly found Plaintiff did not meet Listing 1.04; 12 5. Whether the ALJ properly discredited Plaintiff ’s symptom claims; 13 6. Whether the ALJ properly refused to recuse herself; and 14 7. Whether the ALJ held a full and fair hearing. 15 ECF No. 20 at 5-6. 16 17 18 2 The Appeals Council’s current denial of review following the ALJ’s March 25, 19 2016 decision is not in the record. As the parties raise no challenge to the 20 omission, the Court declines to address it further. 21 ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT - 8 1 ARGUMENT 2 A. Medical Opinion Evidence 3 Plaintiff contends the ALJ improperly discounted the medical opinions of 4 (1) examining physician Dr. Pellicer in November 2014; (2) treating physician Dr. 5 Schmitt between July 2009 and October 2015; (3) treating physician Dr. Anderson 6 in April 2007; (4) treating physician Dr. Friedman in December 2014; (5) treating 7 physical therapist Mr. Pigeon in December 2010 and June 2015; and (6) treating 8 physicians Dr. Heit and Dr. Holden in 2013. ECF No. 20 at 6-15. 9 There are three types of physicians: “(1) those who treat the claimant 10 (treating physicians); (2) those who examine but do not treat the claimant 11 (examining physicians); and (3) those who neither examine nor treat the claimant 12 [but who review the claimant's file] (nonexamining [or reviewing] physicians).” 13 Holohan v. Massanari, 246 F.3d 1195, 1201–02 (9th Cir. 2001) (citations omitted). 14 Generally, a treating physician’s opinion carries more weight than an examining 15 physician’s, and an examining physician’s opinion carries more weight than a 16 reviewing physician’s. Id. at 1202. “In addition, the regulations give more weight 17 to opinions that are explained than to those that are not, and to the opinions of 18 specialists concerning matters relating to their specialty over that of 19 nonspecialists.” Id. (citations omitted). 20 If a treating or examining physician’s opinion is uncontradicted, the ALJ 21 ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT - 9 1 may reject it only by offering “clear and convincing reasons that are supported by 2 substantial evidence.” Bayliss v. Barnhart, 427 F.3d 1211, 1216 (9th Cir. 2005). 3 “However, the ALJ need not accept the opinion of any physician, including a 4 treating physician, if that opinion is brief, conclusory, and inadequately supported 5 by clinical findings.” Bray v. Comm’r, of Soc. Sec. Admin., 554 F.3d 1219, 1228 6 (9th Cir. 2009) (internal quotation marks and brackets omitted). “If a treating or 7 examining doctor’s opinion is contradicted by another doctor’s opinion, an ALJ 8 may only reject it by providing specific and legitimate reasons that are supported 9 by substantial evidence.” Bayliss, 427 F.3d at 1216 (citing Lester v. Chater, 81 10 F.3d 821, 830–83 (9th Cir. 1995)). 11 The opinion of an acceptable medical source such as a physician or 12 psychologist is given more weight than that of an “other source.” See SSR 06-03p 13 (Aug. 9, 2006), available at 2006 WL 2329939, at *2; 20 C.F.R. § 416.927; Gomez 14 v. Chater, 74 F.3d 967, 970-71 (9th Cir. 1996). “Other sources” include nurse 15 practitioners, physicians’ assistants, therapists, teachers, social workers, spouses 16 and other non-medical sources. 20 C.F.R. § 416.913(d). However, the ALJ is 17 required to “consider observations by non-medical sources as to how an 18 impairment affects a claimant’s ability to work.” Sprague v. Bowen, 812 F.2d 19 1226, 1232 (9th Cir. 1987). Non-medical testimony can never establish a 20 diagnosis or disability absent corroborating competent medical evidence. Nguyen 21 ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT - 10 1 v. Chater, 100 F.3d 1462, 1467 (9th Cir. 1996). Pursuant to Dodrill v. Shalala, 12 2 F.3d 915, 919 (9th Cir. 1993), an ALJ is obligated to give reasons germane to 3 “other source” testimony before discounting it. 4 1. Dr. Pellicer 5 Plaintiff contends the ALJ improperly rejected the November 2014 opinion 6 of examining physician Mary Pellicer, M.D. ECF No. 20 at 6-9. Dr. Pellicer 7 observed that Plaintiff gave a positive straight-leg raise test, walked slowly with a 8 limp, and had reduced range of motion. Tr. 1083 (citing Tr. 1427, 1430). Dr. 9 Pellicer opined that Plaintiff could occasionally lift or carry up to five pounds, 10 could only sit, stand, or walk 10 minutes at a time, and needed to lie down for two 11 hours during the day. Tr. 1419-20. She also opined Plaintiff could only 12 occasionally handle due to right arm and hand pain. Tr. 1431. The ALJ gave this 13 opinion little weight. Tr. 1083. Because Dr. Pellicer’s opinion was contradicted 14 by reviewing Dr. Turner3 and Dr. Shors, the ALJ was required to provide specific 15 16 3 On February 18, 2008, reviewing physician Guthrie Turner, M.D., opined 17 Plaintiff could perform light work with some limitations. Tr. 1080 (citing Tr. 39418 400, 560). The ALJ generally accepted this opinion as consistent with the medical 19 evidence overall, except that the ALJ rejected Dr. Turner’s limitation to only 20 occasionally reaching overhead and pushing/pulling with the right upper extremity 21 ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT - 11 1 and legitimate reasons for discounting Dr. Pellicer’s opinion. Bayliss, 427 F.3d at 2 1216. 3 First, the ALJ found Dr. Pellicer’s November 2014 opinion was inconsistent 4 with other evidence in the record. Tr. 1079, 1083. Relevant factors to evaluating 5 any medical opinion include the amount of relevant evidence that supports the 6 opinion, the quality of the explanation provided in the opinion, and the consistency 7 of the medical opinion with the record as a whole. Lingenfelter v. Astrue, 504 F.3d 8 1028, 1042 (9th Cir. 2007); Orn v. Astrue, 495 F.3d 625, 631 (9th Cir. 2007). 9 The ALJ found that Dr. Pellicer’s opinion was contradicted by the objective 10 findings found by treating hand surgeon Heidi Shors, M.D. Tr. 1079. An ALJ 11 may discredit a physician’s opinions that are unsupported by the record as a whole 12 or by objective medical findings. Batson v. Comm’r of Soc. Sec. Admin., 359 F.3d 13 1190, 1195 (9th Cir. 2004). Generally, a treating physician’s opinion carries more 14 weight than an examining physician’s. Holohan, 246 F.3d at 1202. Here, the ALJ 15 found that Dr. Pellicer’s opinion was contradicted by Dr. Shors’ objective findings 16 in August 2014 and January 2015 – findings that were roughly contemporaneous 17 with Dr. Pellicer’s exam. Tr. 1079 (citing Tr. 1631-32) (in January 2015, Dr. 18 19 due to right shoulder impairment and myofascial pain. Tr. 1080 (citing Tr. 39420 400, 560). 21 ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT - 12 1 Shors noted nerve studies showed no significant carpal tunnel on the right); (citing 2 Tr. 1425-26) (in November 2014, Plaintiff told Dr. Pellicer she had ongoing pain 3 in her right upper extremity and pain and weakness in both hands). The ALJ 4 found, as another example, that in August 2014, Dr. Shors noted Plaintiff had full 5 range of motion; Dr. Shors noted full flexion and full extension bilaterally without 6 restriction. Tr. 1079 (citing Tr. 1634). As another example, the ALJ found Dr. 7 Pellicer noted Plaintiff was slow and clumsy when picking up coins from a flat 8 surface with her right hand, required multiple attempts, and reported that this 9 increased pain in her right hand, Tr. 1079 (citing Tr. 1430), but this was 10 inconsistent with Dr. Shors’ objective findings that diagnostic nerve studies 11 showed no significant carpal tunnel on the right. Tr. 1079 (citing Tr. 1632). As 12 another example, the ALJ found Dr. Pellicer noted Plaintiff sat leaning forward 13 with her weight on her elbows, Tr. 1079 (citing Tr. 1427), but this posture is not 14 reflected in Dr. Shors’ treatment notes or in the CDIU4 interview. Tr. 1079 (citing 15 Tr. 1631-32, 1634) (Dr. Shors does not mention forward leaning posture); (citing 16 17 4CDIU stands for Cooperative Disability Investigations Unit. A report was 18 transmitted February 10, 2015, after referral by the Seattle Office of Disability 19 Adjudication and Review (ODAR) found inconsistencies in Plaintiff’s allegations 20 and presentations throughout the file, and an investigation ensued. Tr. 1359. 21 ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT - 13 1 Tr. 1366) (the CDIU investigator stated that Plaintiff stood and sat “naturally and 2 fluidly on multiple occasions.”). This was a specific, legitimate reason to give 3 limited weight to Dr. Pellicer’s opinion. 4 Next, the ALJ discounted Dr. Pellicer’s opinion because she relied on 5 Plaintiff’s own symptom testimony, which the ALJ found not to be credible. Tr. 6 1083. A physician’s opinion may be rejected if it is based on a Plaintiff’s 7 subjective complaints which were properly discounted. Tonapetyan v. Halter, 242 8 F.3d 1144, 1149 (9th Cir. 2001); Morgan v. Comm’r of Soc. Sec. Admin., 169 F.3d 9 595, 604 (9th Cir. 1999); Fair v, Bowen, 885 F.2d 597, 604 (9th Cir. 1989). The 10 ALJ discounted Dr. Pellicer’s recorded clinical findings because most of them 11 were based on Plaintiff’s report of pain (e.g., tenderness and reduced range of 12 motion). Tr. 1083 (citing Tr. 1428) (reported right mid back tender “as is her 13 entire spine from the low back cervical to the lumbar region,” and noting low back 14 tender across the muscles of buttocks). The ALJ further noted Dr. Pellicer 15 examined Plaintiff only once and reviewed no treating records. Tr. 1083. Here, 16 given the ALJ’s conclusion that Dr. Pellicer did not rely on adequate objective 17 medical evidence to form her opinion, she necessarily would have had to rely on 18 subjective symptom testimony to form her opinion. To the extent Dr. Pellicer did 19 rely on Plaintiff’s self-reported symptoms to form her opinion, it was not error for 20 the ALJ to reject her opinion on that basis. 21 ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT - 14 1 This was a specific, legitimate reason to give Dr. Pellicer’s opinion limited 2 weight. 3 Plaintiff cites other medical evidence she alleges contradicts the ALJ’s 4 reasons for discrediting Dr. Pellicer’s opinion. ECF No. 20 at 9. For example, 5 Plaintiff cites Tr. 439 (abnormal gait is noted in December 2007) and Tr. 1620 6 (bilateral positive Tinel’s test) as evidence the ALJ should have relied on in 7 crediting Dr. Pellicer’s opinion. This contention alleges that the ALJ should have 8 weighed the evidence differently, but the ALJ is responsible for reviewing the 9 evidence and resolving conflicts or ambiguities in testimony. Magallanes v. 10 Bowen, 881 F.2d 747, 751 (9th Cir. 1989). If there is substantial evidence to 11 support the administrative findings, or if there is conflicting evidence that will 12 support a finding of either disability or nondisability, the finding of the 13 Commissioner is conclusive. Sprague, 812 F.2d at 1229-30. Here, substantial 14 evidence supports the ALJ’s reasons to give limited weight to Dr. Pellicer’s 15 opinion. 16 2. Dr. Schmitt 17 Next, Plaintiff contends the ALJ improperly discredited several opinions by 18 treating physician Paul Schmitt, M.D. ECF No. 20 at 9-12. Because Dr. Schmitt’s 19 opinions were controverted in part by Dr. Turner, the ALJ was required to provide 20 21 ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT - 15 1 specific and legitimate reasons to reject them. Bayliss, 427 F.3d at 1216. The ALJ 2 gave these opinions little weight. Tr. 1081. 3 In July 2009, Dr. Schmitt opined Plaintiff was not employable in her past 4 work as a paralegal due to an inability to sit or type, due to her pain; he also opined 5 that medication would interfere with Plaintiff’s mental functioning. Tr. 1081 6 (citing Tr. 692). The ALJ rejected this opinion because Dr. Schmitt’s treatment 7 notes do not contain findings that support these limitations. Tr. 1081. A medical 8 opinion may be rejected by the ALJ if it is conclusory, contains inconsistencies, or 9 is inadequately supported. Bray, 554 F.3d at 1228; Thomas v. Barnhart, 278 F.3d 10 947, 957 (9th Cir. 2002). Moreover, a physician’s opinion may be rejected if it is 11 unsupported by the physician’s treatment notes. See Connett v. Barnhart, 340 F.3d 12 871, 875 (9th Cir. 2003) (affirming ALJ’s rejection of physician’s opinion as 13 unsupported by physician’s treatment notes). In May 2009, for example, Dr. 14 Schmitt noted Plaintiff complained of increasing symptoms of neck pain, 15 increasing low back pain, and is “getting weaker in the lower extremities.” Tr. 16 694. However, Dr. Schmitt’s treatment notes and the record as a whole do not 17 support his assessed limitations. See, e.g., Tr. 1722 (October 2012 lumbar MRI 18 showed no significant narrowing). In addition, in March 2013, Plaintiff told Dr. 19 Schmitt her fibromyalgia symptoms were much improved with medication. Tr. 20 1608. In May 2013, Dr. Schmitt found Plaintiff’s upper extremities moved 21 ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT - 16 1 normally. Tr. 1605. In October 2013, Dr. Schmitt opined fibromyalgia symptoms 2 were stable. Tr. 1587. In August 2014, treating physician Dr. Shors found full 3 range of motion in wrists. Tr. 1634. In December 2014, a cervical MRI scan did 4 not show a clear nerve root compression. Tr. 1633. The ALJ is correct that there 5 are no supporting exam findings; instead, Dr. Schmitt lists Plaintiff’s unreliable 6 description of symptoms. Tr. 1081. This was a specific, legitimate reason to give 7 Dr. Schmitt’s opinion limited weight. 8 Next, the ALJ rejected Dr. Schmitt’s 2009 opinion because the record in 9 general also does not contain findings consistent with the opinion. Tr. 1081. An 10 ALJ may discredit physicians’ opinions that are unsupported by the record as a 11 whole or by objective findings. Batson, 359 F.3d at 1195. The ALJ found, for 12 example, that the findings of other treating physicians contradicted Dr. Schmitt’s 13 opinion. Tr. 1081 (citing Tr. 1612-1728); see, e.g., Tr. 1613 (in June 2013, treating 14 physician Zornitza Stoilova, M.D., reviewed an October 2012 lumbar MRI that 15 revealed no significant central canal or neural foraminal stenosis; further, no 16 definitive etiology for right L5 radiculopathy was evident); Tr. 1634 (Dr. Shors 17 noted full range of motion in wrists); Tr. 1632 (Dr. Shors opined that working 18 would help Plaintiff’s hands). Similarly, in January 2015, Dr. Shors found that 19 diagnostic nerve studies showed no significant carpal tunnel on the right. Tr. 1079 20 21 ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT - 17 1 (citing Tr. 1632). This was a specific, legitimate reason to give Dr. Schmitt’s 2 opinions limited weight. 3 The ALJ further found that the lack of objective findings suggested that Dr. 4 Schmitt relied primarily on Plaintiff’s less than credible self-report. Tr. 1081. A 5 physician’s opinion may be rejected if it is based on a Plaintiff’s subjective 6 complaints which were properly discounted. Tonapetyan, 242 F.3d at 1149; 7 Morgan, 169 F.3d at 604; Fair, 885 F.2d at 604. Here, Dr. Schmitt included 8 reports of Plaintiff’s self-reported symptoms in his medical records. See, e.g., Tr. 9 694 (“she has increasing symptoms of neck pain”). Furthermore, given the ALJ’s 10 conclusion that Dr. Schmitt did not rely on adequate objective medical evidence to 11 form his opinion, he necessarily would have had to rely on subjective symptom 12 testimony to form his opinion. To the extent Dr. Schmitt did rely on Plaintiff’s 13 self-reported symptoms to form his opinion, this was a specific and legitimate 14 reason to discredit his opinion. 15 The ALJ additionally rejected Dr. Schmitt’s opinion that Plaintiff is not 16 employable as a paralegal due to her inability to type. Tr. 1081 (citing Tr. 692). 17 The ALJ opined that an inability to type would not preclude all work, and rejected 18 Dr. Schmitt’s opinion on that basis. Tr. 1081. To find a claimant disabled, an ALJ 19 is required to find that a claimant is unable to engage in any substantial gainful 20 activity. See 42 U.S.C. §§ 423(d)(1)(A); 1382c(a)(3)(A). The ALJ is correct that 21 ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT - 18 1 many types of work do not require this ability. This was a specific, legitimate 2 reason to give limited weight to Dr. Schmitt’s opinion. 3 Next, the ALJ rejected Dr. Schmitt’s conclusion that Plaintiff is unable to 4 work because, rather than a clear medical opinion, the ALJ found it is a legal 5 conclusion reserved exclusively to the Commissioner. Tr. 1081 (citing 20 C.F.R. 6 §§ 404.1527(e)(1); 416.927(e)(1)). “We will not give any special significance to 7 the source of an opinion on issues reserved to the Commissioner.” 20 C.F.R. § 8 404.1527(d)(3). The ALJ rejected Dr. Schmitt’s opinion that Plaintiff is disabled 9 because this is a legal rather than medical opinion. 10 However, a medical opinion of disability may not be disregarded simply 11 because it addresses disability; rather, a medical conclusion of disability may have 12 value when it is specifically supported. Aaron v. Astrue, 2008 WL 4502268, at *7 13 (E.D. Cal. Oct. 7, 2008) (“It is true that the ultimate issue of disability vel non is 14 reserved to the Commissioner because a determination of whether or not a 15 claimant meets the statutory definition of disability is a legal conclusion reserved 16 to the Commissioner”). Aaron noted that such a conclusion has value only when 17 the physician supported the conclusion by addressing “the specific extent of a 18 claimant’s exertional capacity, precisely limited the maximum hours to be worked, 19 specified the requirement of elevating the legs for precise periods of time, and set 20 forth specific postural limitations.” Fabilla v. Astrue, 2012 WL 3985140, at *4 21 ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT - 19 1 (E.D. Cal. Sept. 11, 1012) (citing Aaron, 2008 WL 4502268, at *7). Here, Dr. 2 Schmitt failed to support his conclusion that Plaintiff is disabled by addressing, for 3 example, the extent of Plaintiff’s exertional capacity or the existence of any 4 postural limitations. Because Dr. Schmitt’s disability conclusion was unsupported, 5 the ALJ was entitled to reject it as an opinion reserved to the Commissioner. This 6 was a specific, legitimate reason to give limited weight to Dr. Schmitt’s opinion. 7 The ALJ discredited Dr. Schmitt’s 2011 and 2015 opinions because there are 8 no accompanying objective findings that are consistent with the dire limitations 9 assessed. An ALJ may discredit physicians’ opinions that are unsupported by the 10 record as a whole or by objective medical findings. Batson, 359 F.3d at 1195. In 11 December 2011, Dr. Schmitt opined Plaintiff would miss more than four days of 12 work a month and would need to lie down during the day due to pain. Tr. 1081 13 (citing Tr. 935-36). The ALJ further noted that in February 2015, Dr. Schmitt 14 opined Plaintiff was severely limited due to pain, again would miss more than four 15 days of work each month, and would have to lie down for 30 minutes two to three 16 times a day. Tr. 1081 (citing Tr. 1489). The ALJ found these opinions were 17 controverted by the medical record as a whole, specifically by MRI results. Tr. 18 1081. The ALJ rejected both opinions because, again, there are no accompanying 19 objective findings that are consistent with the limitations assessed. Tr. 1081; see 20 Tr. 1722 (lumbar MRI showed no significant narrowing); Tr. 1632 (Dr. Shors 21 ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT - 20 1 opined working would help, not hurt, Plaintiff’s hands); Tr. 1634 (Dr. Shors noted 2 full range of motion in wrists); Tr. 1637 (in August 2014 PAC Mr. Patzer opined 3 that Plaintiff’s left hand strength was 5/5). This was a specific, legitimate reason 4 to give limited weight to Dr. Schmitt’s opinions. 5 In addition, the ALJ found that because Dr. Schmitt’s later opinions were 6 also not supported by objective findings, he must have relied at least in part on 7 Plaintiff’s unreliable self-report. Tr. 1081. A physician’s opinion may be rejected 8 if it is based on a Plaintiff’s subjective complaints which were properly discounted. 9 Tonapetyan, 242 F.3d at 1149. Given the ALJ’s conclusion that Dr. Schmitt did 10 not rely on adequate objective medical evidence to form his opinion, he necessarily 11 would have had to rely on Plaintiff’s self-reported symptoms to form his opinion. 12 It was not error for the ALJ to reject his opinion on that basis. 13 The ALJ additionally rejected Dr. Schmitt’s opinions because at least some 14 of his assessed limitations were predicated on a diagnosis of fibromyalgia, and the 15 ALJ found that was not a medically determinable impairment. Tr. 1081 (citing 16 e.g., Tr. 1488) (Dr. Schmitt noted a diagnosis of fibromyalgia). An ALJ need not 17 presume that a diagnosis or medically determinable impairment equates to work18 related limitations. See Key v. Heckler, 754 F.2d 1545, 1549 (9th Cir. 1985) (the 19 mere diagnosis of an impairment . . .is not sufficient to sustain a finding of 20 disability.”). The ALJ found that the medical evidence, including objective 21 ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT - 21 1 findings, did not establish that fibromyalgia was a medically determinable 2 impairment. Tr. 1070, 1081. An ALJ may discredit a treating physician’s opinions 3 that are unsupported by the record as a whole or by objective medical findings. 4 Batson, 359 F.3d at 1195. Here, the ALJ found that Dr. Schmitt failed to record 5 specific tender point findings or other evidence to substantiate this diagnosis. Tr. 6 1070 (citing Tr. 353, 792). In addition, the ALJ found that rheumatologist 7 Stanford Peng, M.D., seemed to rule out a fibromyalgia diagnosis because he noted 8 only minimal tender points and made no mention of a fibromyalgia diagnosis. Tr. 9 1070 (citing Tr. 1668, 1679). The ALJ further found that, although Jeffrey Carlin, 10 M.D., indicated a fibromyalgia diagnosis, he was merely adopting Dr. Friedman’s 11 diagnosis. Tr. 1070 (citing Tr. 1638-39). Most importantly, neither Dr. Carlin nor 12 Dr. Friedman recorded the requisite findings to substantiate the diagnosis, and 13 treating physician Andrew Friedman, M.D., specifically stated that he did not see 14 the diagnostic criteria for fibromyalgia. Tr. 1070 (citing Tr. 508). Moreover, the 15 ALJ found that Dr. Schmitt himself correctly indicated that Plaintiff’s examination 16 findings did not meet the diagnostic criteria for fibromyalgia.5 Tr. 1070 (citing Tr. 17 18 5 In addition, the ALJ found that the record does not contain the diagnostic criteria 19 for fibromyalgia listed in S.S.R. 12-2p, which went into effect on July 25, 2012. 20 Nor does the record show, the ALJ found, the specific tender point findings 21 ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT - 22 1 1537). Because Plaintiff failed to establish that fibromyalgia was a medically 2 determinable impairment, the ALJ was not required to accept Dr. Schmitt’s 3 assessed limitations based on that condition. The ALJ provided another specific, 4 legitimate reason to give Dr. Schmitt’s opinions little weight. 5 The ALJ rejected Dr. Schmitt’s opinions in August 2012, June 2015, and 6 October 2015 that Plaintiff was disabled by chronic pain or fibromyalgia or both. 7 Tr. 1082 (citing Tr. 1519, 1729, 1744). Dr. Schmitt opined in August 2012 that 8 Plaintiff could not work due to chronic pain and fibromyalgia. Tr. 1082 (citing Tr. 9 1519). Similarly, in June 2015, Dr. Schmitt opined Plaintiff was permanently 10 disabled due to chronic pain. Tr. 1082 (citing Tr. 1729). And, in October 2015, 11 the ALJ found Dr. Schmitt again opined that Plaintiff was disabled. Tr. 1082 12 (citing Tr. 1744). The ALJ rejected these opinions because, again, they stated a 13 legal conclusion reserved to the Commissioner, they were partially predicated on a 14 diagnosis of fibromyalgia, which the ALJ found was not a medically determinable 15 impairment, and Dr. Schmitt’s treatment notes do not contain objective findings 16 consistent with his assessed inability to perform any work. Tr. 1082 (citing e.g., 17 Tr. 1552) (in January 2015, Dr. Schmitt noted Plaintiff says she is more active than 18 19 required to establish a fibromyalgia diagnosis prior to July 25, 2012. Tr. 1070 at 20 n.3. 21 ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT - 23 1 in past years and has grandchildren in her home now). For the reasons previously 2 articulated, the ALJ provided specific, legitimate reasons to give limited weight to 3 Dr. Schmitt’s opinions. 4 In addition, importantly, the ALJ rejected Dr. Schmitt’s assessed severe 5 limitations because they were inconsistent with Plaintiff’s reported actual 6 activities. Tr. 1077-79, 1081. An ALJ may discount an opinion that is inconsistent 7 with a claimant’s reported functioning. Morgan, 169 F.3d at 601-02. The ALJ 8 found Plaintiff’s functioning was inconsistent with Dr. Schmitt’s opinions. Tr. 9 1077-79, 1081 (citing Tr. 1365-67). For example, Plaintiff told the CDIU 10 investigator in February 2015 she could drive herself anywhere she wanted to go, 11 she gave rides to friends and to her teenage son and his friends; moreover, Plaintiff 12 reported that she drove to nearby towns for shopping and medical visits. In 13 addition, Plaintiff reported she homeschooled her son, shopped, cooked, paid bills, 14 and did light housework. Tr. 1078 (citing Tr. 248-49). Further, Plaintiff stated she 15 could walk a mile, and reported that she went on a one-mile hiking trip. Tr. 1078 16 (citing Tr. 571, 928). This was a specific, legitimate reason to give limited weight 17 to Dr. Schmitt’s opinions. 18 3. Dr. Anderson 19 Plaintiff alleges the ALJ failed to properly credit the April 2007 opinion of 20 treating physician John Anderson, M.D. ECF No. 20 at 12-13. Dr. Anderson 21 ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT - 24 1 opined Plaintiff would require continuous flexibility of position, needed to avoid 2 any sort of physical exertion, and “probably IS indeed disabled for employment.” 3 Tr. 1081 (citing Tr. 353). The ALJ gave this opinion little weight. Tr. 1081. 4 Because Dr. Anderson’s opinion was contradicted by Dr. Turner and Dr. Shors, the 5 ALJ was required to provide specific and legitimate reasons to reject it. Bayliss, 6 427 F.3d at 1216. 7 First, the ALJ rejected this opinion because, rather than a clear medical 8 opinion, it is equivocal (“probably” disabled). An ALJ is not required to accept an 9 equivocal opinion of disability. See Mitchell v. Astrue, 2010 WL 1486475, at *9 10 (C.D. Cal. March 3, 2010) (an ALJ may properly discredit a treating physician’s 11 finding for being equivocal, unsupported by clinical findings, and contradictory to 12 the physician’s own previous findings) (citing Batson, 359 F.3d at 1195). Dr. 13 Anderson’s opinion Plaintiff “probably” is disabled is equivocal rather than 14 definitive. Tr. 353. This was a specific, legitimate reason to give limited weight to 15 Dr. Anderson’s opinion. 16 Second, the ALJ rejected Dr. Anderson’s disability opinion because it is a 17 legal conclusion rather than a medical opinion. Tr. 1081 (citing 20 C.F.R. §§ 18 404.1527(e)(1), 416.927 (e)(1)). As noted, the legal conclusion of disability, is 19 reserved exclusively to the Commissioner. See 20 C.F.R. § 404.1527(d)(3) (“We 20 will not give any special significance to the source of an opinion on issues reserved 21 ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT - 25 1 to the Commissioner. . .”); Aaron, 2008 WL 4502268, at *7 (E.D. Cal. Oct. 7, 2 2008) (“It is true that the ultimate issue of disability vel non is reserved to the 3 Commissioner because a determination of whether or not a claimant meets the 4 statutory definition of disability is a legal conclusion reserved to the 5 Commissioner”). Aaron noted that such a conclusion has value only when the 6 physician supports the conclusion by addressing with specificity the extent of 7 Plaintiff’s exertional capacity, the maximum hours to be worked, if applicable, the 8 requirement of elevating the legs for precise periods of time, and any postural 9 limitations. See Fabilla, 2012 WL 3985140, at *4 (E.D. Cal. Sept. 11, 2012) 10 (citing Aaron, 2008 WL 4502268, at *7.). 11 Here, Dr. Anderson did not provide any opinions regarding Plaintiff’s 12 functional limitations, other than requiring “continuous flexibility of position and 13 avoidance of any sort of physical exertion.” Tr. 349. This supports the ALJ’s 14 finding that Dr. Anderson rendered a legal conclusion of disability that is 15 exclusively reserved to the Commissioner; and, significantly, the conclusion is of 16 limited value because Dr. Anderson failed to support the conclusion by assessing 17 Plaintiff’s limitations with requisite specificity. For example, Dr. Anderson’s 18 opinion makes no reference to Plaintiff’s exertional capacity, the maximum hours 19 Plaintiff can work, or Plaintiff’s postural limitations. Accordingly, Dr. Anderson’s 20 equivocal statement that Plaintiff probably is disabled, unsupported by his opinion 21 ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT - 26 1 of specific functional abilities, was properly discounted by the ALJ, and the ALJ’s 2 rejection of the opinion as an unsupported opinion of disability (a determination 3 reserved to the Commissioner),was also a specific, legitimate reason to give 4 limited weight to Dr. Anderson’s opinion. Plaintiff contends the ALJ was required 5 to incorporate Dr. Anderson’s assessed limitations in the RFC, but this argument 6 fails because the ALJ properly weighed the opinion. 7 4. Dr. Friedman 8 Plaintiff faults the ALJ for failing to credit the December 2014 opinion of 9 treating physician Andrew Friedman, M.D. ECF No. 20 at 13-14. Dr. Friedman 10 treated Plaintiff for pain. He opined Plaintiff was limited to less than sedentary 11 work and would miss more than four days of work each month. Tr. 1082 (citing 12 Tr. 1481). The ALJ gave this opinion little weight. Tr. 1080, 1082-83. Because 13 Dr. Friedman’s opinion was contradicted in part by Dr. Turner, the ALJ was 14 required to provide specific and legitimate reasons supported by substantial 15 evidence to reject it. Bayliss, 427 F.3d at 1216. 16 The ALJ rejected this opinion, first, because Dr. Friedman did not provide a 17 completed evaluation with objective findings consistent with the assessed 18 limitations. Tr. 1082. An ALJ may discredit physicians’ opinions that are 19 unsupported by the record as a whole or by objective medical findings. Batson, 20 359 F.3d at 1195. The ALJ is correct that Dr. Friedman did not support his 21 ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT - 27 1 assessment with objective findings. This was a specific, legitimate reason to give 2 limited weight to Dr. Friedman’s opinion. 3 Second, the ALJ rejected Dr. Friedman’s opinion because it appeared to be 4 largely based on Plaintiff’s unreliable self-report. Tr. 1082. A physician’s opinion 5 may be rejected if it is based on a Plaintiff’s subjective complaints which were 6 properly discounted. Tonapetyan, 242 F.3d at 1149; Morgan, 169 F.3d at 604; 7 Fair, 885 F.2d at 604. Here, the ALJ found Dr. Friedman assessed an RFC for less 8 than sedentary work and noted that Plaintiff “has not functioned well in a long 9 time, and does not cope well with pain.” Tr. 1082 (citing Tr. 1481). These 10 statements to Dr. Friedman, presumably by Plaintiff, indicate Dr. Friedman likely 11 relied at least in part on Plaintiff’s unreliable statements when he formed his 12 medical opinion. This was a specific, legitimate reason to give Dr. Friedman’s 13 opinion limited weight. 14 Third, the ALJ rejected Dr. Friedman’s opinion because it is unsupported by 15 other evidence, including objective findings, in the record. Tr. 1082. An ALJ may 16 discredit a treating physician’s opinions that are unsupported by the record as a 17 whole or by clinical findings. Batson, 359 F.3d at 1195. Here, the ALJ found Dr. 18 Friedman stated that MRI findings do not show a clear nerve root compression to 19 explain Plaintiff’s “reported upper right extremity pain,” which was Plaintiff’s 20 primary complaint. Tr. 1082 (citing Tr. 1480, 1633). In addition, Dr. Friedman 21 ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT - 28 1 further opined Plaintiff was going to undergo a rheumatology evaluation to find the 2 cause of her reported pain. Tr. 1082 (citing Tr. 1480). Dr. Friedman noted 3 objective findings did not explain Plaintiff’s primary complaint and further testing 4 was needed. This was a specific, legitimate reason to give limited weight to Dr. 5 Friedman’s opinion. 6 Furthermore, given the ALJ’s conclusion that Dr. Friedman did not rely on 7 adequate objective medical evidence to form his opinion, he necessarily would 8 have had to rely on subjective symptom testimony to form his opinion. This was a 9 specific, legitimate reason to give limited weight to Dr. Friedman’s opinion. To 10 the extent Dr. Friedman did rely on Plaintiff’s self-reported symptoms to form his 11 opinion, it was not error for the ALJ to reject his opinion on that basis. 12 5. Mr. Pigeon 13 Treating physical therapist Craig Pigeon, P.T., opined Plaintiff was limited 14 due to pain. Tr. 912. In December 2010, Mr. Pigeon opined Plaintiff was limited 15 to less than sedentary work due to complaints of low back and neck pain, with pain 16 in the upper and lower extremities. Tr. 1083 (citing Tr. 912). The ALJ gave this 17 opinion little weight. Tr. 1083. Because Mr. Pigeon is an “other source” as 18 defined in 20 C.F.R. § 416.913(d), the ALJ was required to provide germane 19 reasons for rejecting Mr. Pigeon’s opinion. Molina, 674 F.3d at 1111. 20 The ALJ concluded that the objective medical findings do not support Mr. 21 ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT - 29 1 Pigeon’s opinion. Tr. 1083. An ALJ may discredit physicians’ opinions that are 2 unsupported by the record as a whole or by objective medical findings. Batson, 3 359 F.3d at 1195. Here, Mr. Pigeon’s opinion was controverted by the medical 4 record as a whole. As an example, a negative cervical MRI scan did not show a 5 clear nerve root compression. Tr. 1633. As another example, a lumbar MRI 6 showed no significant narrowing. Tr. 1722. In addition, treating physician Dr. 7 Shors found that diagnostic nerve studies showed no significant carpal tunnel on 8 the right; further, she opined working would help Plaintiff’s hands. Tr. 1632. The 9 ALJ gave a germane reason for rejecting Mr. Pigeon’s opinion. 10 In June 2015, Mr. Pigeon opined Plaintiff was limited due to pain in both 11 hands, upper extremity pain and weakness, and neck and back pain. Tr. 1083 12 (citing Tr. 1742-43). Mr. Pigeon opined Plaintiff demonstrated notably reduced 13 strength in her left hand during the evaluation. Tr. 1083 (citing Tr. 1743). The 14 ALJ gave this opinion little weight. Tr. 1083. 15 First, the ALJ found because there was evidence Plaintiff exaggerated her 16 complaints, Mr. Pigeon’s opinion was less reliable. Tr. 1083. An opinion may be 17 rejected if it is based on a Plaintiff’s subjective complaints which were properly 18 discounted. See Tonapetyan, 242 F.3d at 1149. Here, to the extent the ALJ found 19 Mr. Pigeon’s opinion was premised on Plaintiff’s unreliable complaints, the ALJ 20 gave a germane reason for rejecting Mr. Pigeon’s 2015 opinion. 21 ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT - 30 1 In addition, and more importantly, the ALJ found Mr. Pigeon’s opinion was 2 contradicted by other medical providers. Tr. 1083. An ALJ may discredit 3 opinions that are unsupported by the record as a whole or by objective medical 4 findings. Batson, 359 F.3d at 1195. Here, the ALJ found Mr. Pigeon’s 2015 5 opinion was contradicted by that of an acceptable medical source, treating hand 6 surgeon Dr. Shors. Tr. 1083 (citing Tr. 1631-32, 1634) (Dr. Shors noted no left 7 hand weakness). The ALJ also found Mr. Pigeon’s opinion was contradicted by 8 another treating source. Tr. 1083 (citing Tr. 1637) (treatment provider PAC Mr. 9 Patzer opined in August 2014 that Plaintiff’s left hand strength was 5/5). 10 Moreover, the ALJ found Dr. Shors opined in January 2015 that Plaintiff could 11 return to see her as needed, but Plaintiff did not do so, suggesting Plaintiff’s hand 12 condition did not worsen as described by Mr. Pigeon. Tr. 1083 (citing Tr. 1632) 13 (Dr. Shors indicated Plaintiff will follow up as needed). These were germane 14 reasons to give limited weight to Mr. Pigeon’s opinion. 15 6. Dr. Heit and Dr. Holden 16 Plaintiff contends the ALJ misattributed the December 2011 opinion of 17 treating podiatrist Curtis Holden, D.P.M., to another treating podiatrist, Eric Heit, 18 D.P.M. ECF No. 20 at 15-16 (citing Tr. 1080). In discussing this opinion, the ALJ 19 cited Tr. 1045-46, which is in fact Dr. Holden’s, not Dr. Heit’s, opinion. Tr. 1080. 20 The ALJ gave significant weight to “Dr. Heit’s” opinion that Plaintiff’s left foot 21 ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT - 31 1 impairment would cause little to no functional impairment. Tr. 1080. This opinion 2 is essentially uncontradicted. In general, if a treating or examining physician’s 3 opinion is uncontradicted, an ALJ may reject it only by offering “clear and 4 convincing reasons that are supported by substantial evidence.” Bayliss, 427 F.3d 5 at 1216. Plaintiff is correct that the ALJ erroneously attributed this opinion by Dr. 6 Holden to Dr. Heit. Plaintiff contends the ALJ should have relied instead on the 7 later opinions and records of Dr. Heit where he found that Plaintiff suffered from 8 various foot disorders. ECF No. 20 at 15 (citing Tr. 1627 in 2012 and Tr. 1676, 9 1678 in 2013). 10 However, these records do not establish severe impairments and therefore 11 they do not contradict Dr. Holden’s 2011 opinion, rendering any error harmless. 12 See Stout v. Comm’r of Soc. Sec. Admin., 454 F.3d 1050, 1055 (9th Cir. 2006) 13 (error harmless where it is non-prejudicial to claimant or irrelevant to the ALJ’s 14 ultimate disability conclusion). 15 In October 2012, Dr. Heit noted possible symptomatic neuroma of the left 16 foot and metatarsalgia secondary to a surgically shortened hallux, and prescribed 17 orthotics (emphasis added). Tr. 1627. In February 2013, Dr. Heit assessed 18 capsulitis of the first metatarsophalangeal joint on the right and gave Plaintiff an 19 injection. Tr. 1678. Two months later, in April 2013, he made the same diagnosis 20 and again gave Plaintiff an injection. Tr. 1676. Conditions effectively controlled 21 ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT - 32 1 with medication are not debilitating for purposes of determining eligibility for 2 benefits. Warre v. Comm’r of Soc. Sec. Admin., 439 F.3d 1001, 1006 (9th Cir. 3 2006). Because Plaintiff fails to establish that these were severe impairments that 4 lasted the requisite twelve months, the ALJ was not required to find that they 5 caused any severe limitations. As Dr. Heit’s later records did not refute Dr. 6 Holden’s 2011 opinion, the ALJ was not required to reject Dr. Holden’s 2011 7 opinion. 8 B. Lay Witness Testimony 9 Plaintiff contends the ALJ failed to provide germane reasons for rejecting 10 lay testimony. ECF No. 20 at 16. 11 Lay testimony as to a claimant’s symptoms or how an impairment affects the 12 claimant’s ability to work is competent evidence that the ALJ must take into 13 account. Molina, 674 F. 3d at 1114 (citing Ngyuen, 100 F.3d at 1467; Dodrill, 12 14 F.3d 915 at 919). As the Molina court noted, competent lay witness testimony 15 “cannot be disregarded without comment,” Nguyen, 100 F.3d at 1467, and in order 16 to discount competent lay witness testimony, the ALJ “must give reasons that are 17 germane to each witness,” Dodrill, 12 F.3d at 919. Molina, 674 F.3d at 1114. 18 The Court has not, however, required the ALJ to discuss every witness’s 19 testimony on a individualized, witness-by-witness basis. Molina, 674 F.3d at 20 1114. Rather, if the ALJ gives germane reasons for rejecting testimony by one 21 ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT - 33 1 witness, the ALJ need only point to those reasons when rejecting similar testimony 2 by a different witness. Molina, 674 F.3d at 1114; see Valentine v. Comm’r of Soc. 3 Sec. Admin., 574 F.3d 685, 694 (9th Cir. 2009) (holding that because the ALJ 4 provided clear and convincing reasons for rejecting the claimant’s own subjective 5 complaints, and because the lay witness’s testimony was similar to such 6 complaints, it follows that the ALJ also gave germane reasons for rejecting the lay 7 witness’s testimony.). The applicable regulations are in accord, as they require the 8 ALJ to consider testimony from family and friends submitted on behalf of the 9 claimant, see 20 C.F.R. § 404.1545(a)(3), but do not require the ALJ to provide 10 express reasons for rejecting testimony from each lay witness, see id.; see also 11 SSR 06–03p (recognizing that “there is a distinction between what an adjudicator 12 must consider and what the adjudicator must explain in the disability determination 13 or decision”). Molina, 674 F.3d at 1114. 14 Here, the ALJ’s reason is germane and supported by the record. 15 The ALJ found that the third party statements generally reflect the same 16 allegations made by Plaintiff, and, as noted, the ALJ found Plaintiff’s allegations 17 are not credible. Tr. 1083. If an ALJ gave reasons for rejecting a claimant’s 18 testimony regarding symptoms that were equally relevant to the similar testimony 19 of the lay witnesses, that would support a finding that the lay testimony was 20 similarly not credible. Molina, 674 F.3d at 1114-15. For example, the ALJ 21 ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT - 34 1 considered the December 2007 statement of Plaintiff’s significant other, Douglas 2 Ruckle. Tr. 1083 (citing Tr. 279-86). Mr. Ruckle opined Plaintiff is unable to 3 mop or vacuum due to pain and numbness in the neck, shoulder, back, and hand. 4 Tr. 282. The ALJ found Plaintiff’s similar symptom complaints were not credible. 5 Tr. 1077-78. If the ALJ gives germane reasons for rejecting testimony by one 6 witness, the ALJ need only point to those reasons when rejecting similar testimony 7 by a different witness. Molina, 674 F.3d at 1114; see also Valentine, 574 F.3d at 8 694. Here, because the ALJ provided clear and convincing reasons for rejecting 9 Plaintiff’s subjective complaints, and because the lay testimony of Douglas Ruckle 10 was similar to Plaintiff’s complaints, it also follows that the ALJ gave a germane 11 reason for rejecting Mr. Ruckle’s testimony. 12 Similarly, the ALJ properly rejected the other lay witness testimony for the 13 same germane reason. For example, in January 2012 and June 2015, Douglas 14 Ruckle again described neck, back, and hand pain. Tr. 333, 1405-08. Because this 15 testimony essentially restated Plaintiff’s properly rejected complaints, the ALJ 16 gave a germane reason to reject it. 17 Likewise, Plaintiff’s son, Craig Ruckle, opined in an undated letter and in 18 February 2015 that Plaintiff is unable to perform most household tasks and doing 19 so causes excruciating pain. Tr. 1412, 1492. Last, the testimony of Plaintiff’s 20 friend, Linda Uptain, is also similar to Plaintiff’s properly discounted complaints. 21 ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT - 35 1 Tr. 334, 1413-14 (in January 2012 and February 2015, Ms. Uptain stated Plaintiff’s 2 activities bring on “multiple days of intense pain”). 3 All are similar to Plaintiff’s properly discredited complaints. If an ALJ 4 gives reasons for rejecting a claimant’s testimony regarding symptoms that were 5 equally relevant to the similar testimony of a lay witnesses, that would support a 6 finding that the lay testimony was similarly not credible. Molina, 674 F.3d at 7 1114-15. Significantly, Plaintiff has not identified any limitation in the lay 8 testimony beyond what Plaintiff herself described. This Court finds the ALJ’s 9 reason for giving the lay testimony little weight was germane. 10 C. Step Two 11 Plaintiff contends the ALJ should have found that she suffers from medically 12 determinable impairments involving her right hand and upper extremity sufficient 13 to meet the step two standard, based on records from Dr. Shors, Douglas Burns, 14 M.D., in November 2004 (citing Tr. 494), and others, as discussed supra. ECF No. 15 20 at 16-17. Plaintiff bears the burden to establish the existence of a severe 16 impairment or combination of impairments, which prevents her from performing 17 substantial gainful activity, and that the impairment or combination of impairments 18 lasted for at least twelve continuous months. 42 U.S.C. § 1382c(a)(3)(A). 19 However, step two is “a de minimus screening device [used] to dispose of 20 groundless claims.” Smolen v. Chater, 80 F.3d 1273, 1290 (1996). “Thus, 21 ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT - 36 1 applying our normal standard of review to the requirements of step two, we must 2 determine whether the ALJ had substantial evidence to find that the medical 3 evidence clearly established that [Plaintiff] did not have a medically severe 4 impairment or combination of impairments.” Webb v. Barnhart, 433 F.3d 683, 687 5 (9th Cir. 2005). 6 For context, the Court observes the ALJ noted that in early 2004, Plaintiff 7 reported neck pain that radiated into her right arm. Tr. 1066 (citing Tr. 480). The 8 ALJ found that in June 2004, Plaintiff underwent a C5-C6 discectomy and fusion. 9 Tr. 1066 (citing Tr. 485). Plaintiff cites several records after this surgery 10 purporting to establish a severe impairment at step two. First, in November 2004, 11 about five months after surgery, examining physician Dr. Burns noted Plaintiff 12 described a complicated constellation of pain, numbness and weakness, with “no 13 clear dermatomal pattern.” He ordered further testing. Tr. 494. This does not 14 establish a severe impairment as it is based on Plaintiff’s unreliable description, 15 and further testing was required. Second, Plaintiff cited records showing that on 16 September 14, 2011, bilateral hand imaging results showed no evidence of arthritis 17 and an impression of minimal degenerative arthropathy in the right thumb 18 (emphasis added). Tr. 948. “Minimal” does not equate to severe. Third, in 19 October 2012, treating physician Dr. Shors noted a positive Tinel’s test and 20 assessed the need for left carpal tunnel release. Tr. 1620. However, this condition 21 ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT - 37 1 was remedied when Dr. Shors performed left carpal tunnel release in November 2 2012, Tr. 1701-02, and the ALJ noted Plaintiff reported improvement in January 3 2013. Tr. 1075 (citing Tr. 1680, 1683). Fourth, in August 2014, treating physician 4 Dr. Carlin opined Plaintiff needed surgery to remove multiple ganglion cysts and 5 noted no evidence of inflammatory arthritis. Tr. 1638-39. Cysts are not a 6 condition that would last the requisite twelve months.6 Fifth, an ultrasound of 7 Plaintiff’s left wrist dated August 7, 2014, noted limited range of motion in wrists. 8 Tr. 1642. This does not establish a severe impairment. Sixth, in August 2015, Dr. 9 Shors noted recurrent right thumb trigger finger, possible inflammatory arthritis 10 (emphasis added). Tr. 1745. Nor does this establish a severe impairment. 11 Plaintiff’s cited records are insufficient to establish significant limitations on work12 related activity. Thus, the ALJ reasonably found Plaintiff’s conditions related to 13 her right hand and upper extremity are not severe impairments because they cause 14 no more than minimal limitations in Plaintiff’s ability to perform work activity. 15 Tr. 1082. 16 17 6 See Smolen, 80 F.3d at 1280 (citing 42 U.S.C. § 423(d)(1)(A) (defining disability 18 as the “inability to engage in any substantial gainful activity by reason of any 19 medically determinable physical or mental impairment which . . .has lasted or can 20 be expected to last for a continuous period of not less than 12 months[.]”)). 21 ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT - 38 1 Furthermore, even if the ALJ should have determined one of the conditions 2 identified by Plaintiff is a severe impairment, any error would be harmless because 3 the step was resolved in Plaintiff’s favor. See Stout, 454 F.3d at 1055; Burch v. 4 Barnhart, 400 F.3d 676, 682 (9th Cir. 2005). Plaintiff makes no showing that any 5 of the conditions mentioned creates limitations not already accounted for in the 6 RFC. Thus, the ALJ’s step two finding with respect to her right hand and upper 7 extremity impairments is legally sufficient. 8 D. Listing 1.04A 9 Plaintiff contends the ALJ erred by finding that Plaintiff did not meet the 10 requirements of Listing 1.04A – disorders of the spine. ECF No. 20 at 17; see 20 11 C.F.R. Pt. 404, Subpt. P, App. 1. 12 At step three, the ALJ must determine if a claimant’s impairments meet or 13 equal a listed impairment. 20 C.F.R. § 404.1520(a)(4)(iii). The Listing of 14 Impairments “describes each of the major body systems impairments [which are 15 considered] severe enough to prevent an individual from doing any gainful 16 activity, regardless of his or her age, education or work experience.” 20 C.F.R. 17 § 404.1525. To meet a listed impairment, a claimant must establish that she meets 18 each characteristic of a listed impairment relevant to her claim. 20 C.F.R. 19 § 404.1525(d). The claimant bears the burden of establishing she meets a listing. 20 21 ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT - 39 1 Burch, 400 F.3d at 683. If a claimant meets the listed criteria for disability, she 2 will be found to be disabled. 20 C.F.R. §§ 404.1520(a)(4)(iii). 3 In order to meet Listing § 1.04A, a claimant must establish (1) evidence of 4 nerve root compression characterized by neuro-anatomic distribution of pain; as 5 well as the following severity requirements: (2) limitations of motion of the spine; 6 and (3) motor loss (“atrophy with associated muscle weakness or muscle 7 weakness”) accompanied by sensory or reflex loss, and (4) if there is involvement 8 of the lower back, positive straight-leg raising test (sitting and supine). Gnibus v. 9 Berryhill, 2017 WL 977594, at *4 (E. D. Cal. March 13, 2017) (finding Listing 10 1.04A was met) (citing Sullivan v. Zebley, 493 U.S. 521, 530 (1990) (“For a 11 claimant to show that his impairment matches a listing, it must meet all of the 12 specified medical criteria. An impairment that manifests only some of those 13 criteria, no matter how severely, does not qualify.”)). Further, Plaintiff must 14 establish the impairment(s) satisfies the 12-month durational requirement. Gnibus, 15 2017 WL 977594, at *7 (internal citations omitted); see also Stewart v. Colvin, 674 16 F.App’x 634, 635 (9th Cir. 2017) (Plaintiff failed to carry his burden of 17 establishing that he met all of the criteria for Listing 1.04A). 18 In support of her contention that she meets Listing 1.04A, Plaintiff cites the 19 ALJ’s finding that Plaintiff suffered degenerative disc disease in her cervical, 20 thoracic, and lumbar spine. ECF No. 20 at 17 (citing Tr. 1066). Plaintiff contends 21 ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT - 40 1 that because the record showed evidence of nerve root compression from 2 neuroanatomic distribution of pain (citing Tr. 346-47, 1649); limitations in the 3 motion of her spine (citing Tr. 1417, 1623); motor loss (citing Tr. 358); 4 (difficulties typing and writing); reflex loss (citing Tr. 1430, 617-18); and a single 5 positive straight-leg test (citing Tr. 1430, 1692), the ALJ should have found she 6 met Listing 1.04A. The ALJ properly relied on the medical opinions of two 7 reviewing physicians who opined that Plaintiff did not meet a Listing, the medical 8 evidence as a whole, and Plaintiff’s reported daily activities that are inconsistent 9 with severe limitations, when the ALJ found no Listing was met. 10 First, the ALJ largely credited the opinions of reviewing physicians Dr. 11 Turner, in 2008, Tr. 1080 (citing Tr. 393-400, 560), and Dr. Hutson,7 who testified 12 at the hearing on January 10, 2012 (citing Tr. 82-93). In February 2008, Dr. 13 Turner reviewed the record and assessed an RFC for a range of light work, 14 indicating that no Listing was met. Tr. 560. At the January 2012 hearing, Dr. 15 16 7As noted with respect to specific contentions, the ALJ also relied in part on some 17 of the opinions of treating hand surgeon Dr. Shors, Tr. 1079 (citing Tr. 1631-32, 18 1634), and primary physician Dr. Anderson, Tr. 1079 (citing Tr. 365) (Dr. 19 Anderson’s May 2006 opinion that Plaintiff does tend to exaggerate on most 20 things). 21 ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT - 41 1 Hutson testified that Listing 1.04 was not met. Tr. 87-88. 2 The opinion of a nonexamining physician may sometimes serve as 3 substantial evidence, if that opinion is supported by other evidence in the record 4 and consistent with it. Andrews v. Shalala, 53 F.3d 1035, 1041 (9th Cir. 1995). 5 Here, the ALJ found that the objective medical evidence does not establish 6 that Plaintiff meets Listing 1.04. With respect to right upper extremity symptoms, 7 the ALJ found the objective evidence does not support a Listed impairment. Tr. 8 1079-80. For example, the evidence showed treating hand surgeon Dr. Shors 9 denied Plaintiff’s request that she certify Plaintiff was unable to do desk work for 10 eight hours a day due to her right hand symptoms. Consistent with the medical 11 evidence, Dr. Shors refused, and stated that doing desk work would be helpful for 12 Plaintiff’s hands, not problematic. Tr. 1079 (citing Tr. 1631-32). In February 13 2012, treating physician Dr. Friedman found normal strength in both upper 14 extremities. Tr. 1075 (citing Tr. 1699). In October 2013, treating physician Brian 15 Strachan, M.D., assessed strength as 5/5 throughout bilateral upper extremities. Tr. 16 1075 (citing Tr. 1662). The ALJ is correct that the evidence does not support a 17 Listed impairment. 18 The ALJ further found that the objective medical evidence revealed little to 19 no abnormality in the lumbar spine, and there was no abnormality on imaging to 20 explain Plaintiff’s report of radicular pain. Tr. 1076 (citing Tr. 1004) (August 21 ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT - 42 1 2011 imaging showed mild degeneration and bulging L5-S1 disc and mild facet 2 arthrosis at the Ls-4, L4-5, and L5-S1 levels); (citing Tr. 1520) (March 2012 3 imaging showed mild spondylosis). This objective evidence supports the ALJ’s 4 finding that Plaintiff did not meet a Listed impairment. 5 Similarly, the ALJ noted that objective evidence does not support Plaintiff’s 6 allegations with respect to neck and back pain. Tr. 1076. For example, the ALJ 7 found that multiple specialists examined Plaintiff for complaints of pain that 8 radiated into her right arm. Tr. 1076. The ALJ further found that imaging 9 revealed a stable cervical spine, with no abnormalities to explain Plaintiff’s pain 10 complaints. Tr. 1076 (citing e.g., Tr. 497-98) (in 2005, treating physician Peter 11 Ward, M.D., noted no evidence of neurologic impairment and recommended 12 continued conservative treatment only); (citing Tr. 509, 511) (in June and July 13 2007 no structural anatomic abnormalities are seen that would benefit from 14 surgical intervention); (citing Tr. 1613) (in June 2013, treating physician Dr. 15 Stoilova reviewed an October 2012 lumbar MRI and opined there was no 16 significant central canal or neural foraminal stenosis; moreover, no definitive 17 etiology for right L5 radiculopathy was evident). This objective evidence further 18 supports the ALJ’s step three determination that no Listing was met. 19 Significantly, the ALJ also found that Plaintiff’s activities are inconsistent 20 with disabling limitations such as those contained in the Listings. Tr. 1077-78. An 21 ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT - 43 1 ALJ may discount an opinion that is inconsistent with a claimant’s reported 2 functioning. Morgan, 169 F.3d at 601-02. Here, the ALJ noted, for instance, that 3 Plaintiff reported she does all of the shopping for her household, assists in caring 4 for two horses, takes care of household chores, cares for and homeschools her son, 5 and is able to walk one mile and went on a mile-long hike. Tr. 1078 (citing Tr. 6 248-49) (Plaintiff’s Function Report noted she cares for and homeschools son); 7 (Tr. 571) (July 2008 report of activities to Dr. Anderson included ability to walk 8 one mile); (Tr. 928) (in August 2011 Plaintiff told a mental health provider she 9 went on a mile-long hike); (Tr. 1563) (in September 2014, Plaintiff told Dr. 10 Schmitt she takes care of household chores); (Tr. 1359, 1367) (Plaintiff reported to 11 an investigator in February 2015 that she shops, cares for horses, and does 12 household chores). Further, the ALJ found that, inconsistent with Plaintiff’s 13 allegations, the investigator observed no serious problem regarding gait, bending, 14 reaching, or grasping when he observed Plaintiff enter her car and drive away. Tr. 15 1078 (citing Tr. 1364-65). The ALJ’s step three finding that Plaintiff did not meet 16 a Listing is supported by Plaintiff’s functioning. 17 The ALJ accepted Dr. Turner’s and Dr. Hutson’s opinions that Plaintiff did 18 not meet a Listing, Tr. 1080, a finding that is fully supported by the objective 19 evidence and by Plaintiff’s actual functioning. Plaintiff merely cites isolated 20 21 ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT - 44 1 medical findings and contends that these show her condition meets Listing 1.04A. 2 However, Plaintiff fails to meet her burden of establishing that a Listing was met. 3 E. Adverse Credibility Finding 4 Plaintiff faults the ALJ for failing to provide specific findings with clear and 5 convincing reasons for discrediting her symptom claims. ECF No. 22 at 18-21. 6 An ALJ engages in a two-step analysis to determine whether a claimant’s 7 testimony regarding subjective pain or symptoms is credible. “First, the ALJ must 8 determine whether there is objective medical evidence of an underlying 9 impairment which could reasonably be expected to produce the pain or other 10 symptom alleged.” Molina, 674 F.3d at 1112 (internal quotation marks omitted). 11 “The claimant is not required to show that her impairment could reasonably be 12 expected to cause the severity of the symptom she has alleged; she need only show 13 that it could reasonably have caused some degree of the symptom.” Vasquez v. 14 Astrue, 572 F.3d 586, 591 (9th Cir. 2009) (internal quotation marks omitted). 15 Second, “[i]f the claimant meets the first test and there is no evidence of 16 malingering, the ALJ can only reject the claimant’s testimony about the severity of 17 the symptoms if she gives ‘specific, clear and convincing reasons’ for the 18 rejection.” Ghanim v. Colvin, 763 F.3d 1154, 1163 (9th Cir. 2014) (internal 19 citations and quotations omitted). “General findings are insufficient; rather, the 20 ALJ must identify what testimony is not credible and what evidence undermines 21 ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT - 45 1 the claimant’s complaints.” Id. (quoting Lester, 81 F.3d at 834; Thomas, 278 F.3d 2 at 958 (“[T]he ALJ must make a credibility determination with findings 3 sufficiently specific to permit the court to conclude that the ALJ did not arbitrarily 4 discredit claimant’s testimony.”)). “The clear and convincing [evidence] standard 5 is the most demanding required in Social Security cases.” Garrison v. Colvin, 759 6 F.3d 995, 1015 (9th Cir. 2014) (quoting Moore v. Comm’r of Soc. Sec. Admin., 278 7 F.3d 920, 924 (9th Cir. 2002)). 8 In making an adverse credibility determination, the ALJ may consider, inter 9 alia, (1) the claimant’s reputation for truthfulness; (2) inconsistencies in the 10 claimant’s testimony or between her testimony and her conduct; (3) the claimant’s 11 daily living activities; (4) the claimant’s work record; and (5) testimony from 12 physicians or third parties concerning the nature, severity, and effect of the 13 claimant’s condition. Thomas, 278 F.3d at 958-59. 14 This Court finds the ALJ provided specific, clear, and convincing reasons 15 for finding that Plaintiff’s statements concerning the intensity, persistence, and 16 limiting effects of her symptoms “not entirely credible.” Tr. 1074. 17 1. Lack of Objective Evidence 18 First, the ALJ found that the objective evidence is not consistent with and 19 does not support many of Plaintiff’s symptom claims. Tr. 1074-76. An ALJ may 20 not discredit a claimant’s pain testimony and deny benefits solely because the 21 ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT - 46 1 degree of pain alleged is not supported by objective medical evidence. Rollins v. 2 Massanari, 261 F.3d 853, 857 (9th Cir. 2001); Bunnell v. Sullivan, 947 F.2d 341, 3 346-47 (9th Cir. 1991); Fair, 885 F.2d at 601. However, the medical evidence is a 4 relevant factor in determining the severity of a claimant’s pain and its disabling 5 effects. Rollins, 261 F.3d at 857; 20 C.F.R. §§ 404.1529(c)(2), 416.929(c)(2). 6 Here, the ALJ set out, in detail, the medical evidence regarding Plaintiff’s 7 impairments, and ultimately concluded that her allegations were inconsistent with 8 the medical evidence. Tr. 1079-80. The ALJ found, for example, that treatment 9 notes generally showed unremarkable clinical findings regarding a back 10 impairment, including largely normal findings regarding gait, range of motion, and 11 lower extremity strength. Tr. 1080 (citing Tr. 816) (in November 2010, treating 12 physician Dr. Schmitt noted no gait disturbance); (citing Tr. 793) (in July 2011, Dr. 13 Schmitt opined balance and gait were intact, no motor weakness noted); (citing Tr. 14 1623) (in October 2012, treating physician Paul Choi, M.D., noted lower extremity 15 strength was 5/5 bilaterally); (citing Tr. 1694) (in May 2012, treating physician Dr. 16 Friedman noted lower extremity strength was normal); (citing Tr. 1699) (in 17 February 2012, Dr. Friedman noted strength was 5/5 in all extremities). The ALJ 18 additionally found that most of Plaintiff’s records from 2013 to 2015 were for 19 primary complaints other than back pain. Tr. 1080 (citing e.g., Tr. 1626) (in 20 October 2012, treating physician Dr. Heit noted a long history of complaints of left 21 ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT - 47 1 foot pain) (emphasis added); (citing Tr. 1629) (in October 2012, treating physician 2 Julie Hodapp, M.D. saw Plaintiff for complaints of pain and tingling in all fingers 3 in left hand); (citing Tr. 1631) (in January 2015, treating physician Dr. Shors saw 4 Plaintiff for complaints of hand pain). 5 The ALJ further found that Plaintiff’s complaints of needing to recline or lie 6 down during the day due to back pain were rarely if ever reported to treatment 7 providers, lessening the credibility of such complaints. Tr. 1080 (citing generally 8 treatment records at Tr. 1612-1728). The failure to report symptoms to treatment 9 providers is a legitimate consideration when determining the legitimacy of those 10 complaints. See Greger v. Barnhart, 464 F.3d 968, 972 (9th Cir. 2006). The ALJ 11 found Plaintiff’s complaints exceeded and were not supported by objective and 12 physical exam findings. The ALJ also considered Plaintiff’s failure to report 13 symptoms to treatment providers. This was a specific, clear and convincing reason 14 to discount Plaintiff’s testimony. 15 2. Activities of Daily Living 16 The ALJ found that Plaintiff’s activities were inconsistent with the severe 17 limitations Plaintiff alleged. Tr. 1078-79. A claimant’s reported daily activities 18 can form the basis for an adverse credibility determination if they consist of 19 activities that contradict the claimant’s “other testimony” or if those activities are 20 transferable to a work setting. Orn, 495 F.3d at 639; see also Fair, 885 F.2d at 603 21 ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT - 48 1 (daily activities may be grounds for an adverse credibility finding “if a claimant is 2 able to spend a substantial part of his day engaged in pursuits involving the 3 performance of physical functions that are transferable to a work setting.”). 4 “While a claimant need not vegetate in a dark room in order to be eligible for 5 benefits, the ALJ may discredit a claimant’s testimony when the claimant reports 6 participation in everyday activities indicating capacities that are transferable to a 7 work setting” or when activities “contradict claims of a totally debilitating 8 impairment.” Molina, 674 F.3d at 1112-13 (internal quotation marks and citations 9 omitted). 10 Here, the ALJ found Plaintiff’s activities undermine her credibility to the 11 extent they contradict claims of a totally debilitating impairment. The ALJ 12 observed that Plaintiff told the investigator in February 2015 that she did all of the 13 shopping for her household. Tr. 1078 (citing Tr. 1359). Plaintiff reported to the 14 investigator that she drove her sons and some friends when they needed 15 transportation. Tr. 1077-78 (citing Tr. 1359) (Plaintiff’s statements to the 16 investigator regarding her ability to drive). Plaintiff also said she assisted in taking 17 care of two horses. Tr. 1078 (citing Tr. 1359). Plaintiff has also reported that she 18 takes care of household chores. Tr. 1078 (citing Tr. 1563) (in September 2014, 19 Plaintiff told treating physician Dr. Schmitt that she is able to get her housework 20 and other chores done); (citing Tr. 1367) (Plaintiff told the investigator she stayed 21 ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT - 49 1 busy taking care of the house and the two horses). As the ALJ found, Plaintiff’s 2 April 2007 Function Report indicated that she cared for her young son, including 3 homeschooling him. Tr. 1078 (citing Tr. 248-49). Further, Plaintiff reported that 4 she walked a couple of days a week, Tr. 248, and in July 2008, Plaintiff told 5 treating physician Dr. Anderson she was able to walk one mile. Tr. 1078 (citing 6 Tr. 571). On August 30, 2011, Plaintiff even reported to mental health treatment 7 provider Dawn Petre, M.Ed. that she went on a one-mile hiking trip. Tr. 1078 8 (citing Tr. 928). The evidence of Plaintiff’s daily activities in this case may be 9 interpreted more favorably to the Plaintiff, however, such evidence is susceptible 10 to more than one rational interpretation, and therefore the ALJ’s conclusion must 11 be upheld. See Burch, 400 F.3d at 679. Here, Plaintiff’s daily activities were 12 reasonably considered by the ALJ to be inconsistent with Plaintiff’s allegations of 13 disabling functional limitations. Ultimately, the record supports that Plaintiff’s 14 daily activities “contradict claims of a totally debilitating impairment.” Molina, 15 674 F.3d at 1112-13 (internal quotation marks and citations omitted). The ALJ 16 reasonably determined that Plaintiff’s daily activities were inconsistent with her 17 allegations of disabling symptoms. This was a specific, clear and convincing 18 reason to discount Plaintiff’s testimony. 19 20 21 ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT - 50 1 3. Evidence of Exaggeration/Secondary Gain 2 The ALJ noted that evidence of symptom exaggeration or secondary gain 3 erodes the credibility of Plaintiff’s allegations. Tr. 1079. The tendency to 4 exaggerate is a permissible reason for discounting a Plaintiff’s credibility. See 5 Tonapetyan, 242 F.3d at 1148 (the ALJ appropriately considered Plaintiff’s 6 tendency to exaggerate when assessing Plaintiff’s credibility, which was shown in 7 a doctor’s observation that Plaintiff was uncooperative during cognitive testing but 8 was “much better” when giving reasons for being unable to work); see also 9 Thomas, 278 F. 3d at 959 (An ALJ may properly rely on a claimant’s efforts to 10 impede accurate testing of a claimant’s limitations when finding a claimant less 11 than credible). Similarly, evidence of motivation to obtain social security benefits 12 may be considered in making a credibility determination. See Matney v. Sullivan, 13 981 F.2d 1016, 1020 (9th Cir. 1992). 14 The ALJ noted that examining psychologist Dr. Toews reported in January 15 2008 that Plaintiff said that she would scream in pain if she had to write anything. 16 Tr. 1079 (citing Tr. 537). However, the ALJ pointed out, Dr. Toews noted that 17 Plaintiff was able to complete the information forms in an average amount of time, 18 and Dr. Toews made no mention of Plaintiff screaming in pain as she did so. Tr. 19 1079 (citing Tr. 541). The ALJ further found that Dr. Toews noted that Plaintiff 20 exhibited excessive audible and physical pain behavior during the evaluation, and 21 ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT - 51 1 was loud and quite dramatic. Tr. 1079 (citing Tr. 537) (noting a significant amount 2 of overt pain behavior); (citing Tr. 541) (exhibited excessive audible and physical 3 pain behavior . . . was loud and quite dramatic). At the same time, the ALJ notes, 4 Dr. Toews found that Plaintiff was cognitively intact. Ultimately, Dr. Toews’ 5 diagnoses included possible symptom exaggeration-secondary gain. Tr. 1079 6 (citing Tr. 543) (Dr. Toews indicated a rule out diagnosis of symptom 7 exaggeration-secondary gain). 8 Similarly, the ALJ found that Plaintiff asked treating hand surgeon Dr. Shors 9 to write a statement that Plaintiff was disabled because she could not use her hand 10 eight hours a day. Tr. 1075 (citing Tr. 1631). As the ALJ observed, Dr. Shors 11 refused and instead opined that using her hand would in fact be beneficial to 12 Plaintiff’s condition. Tr. 1075 (citing Tr. 1632). 13 Because an ALJ may account for a Plaintiff’s exaggeration of symptoms 14 during an evaluation and motivation for secondary in assessing credibility, this was 15 a specific, clear and convincing reason to discount her testimony. 16 4. Reason Employment Ended 17 Next, the ALJ found that Plaintiff’s unemployment during at least part of the 18 relevant period was due to factors other than Plaintiff’s alleged impairments. Tr. 19 1078. When considering a claimant’s contention that she cannot work because of 20 her impairments, it is appropriate to consider whether the claimant has not worked 21 ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT - 52 1 for reasons unrelated to his alleged disability. See Bruton v. Massanari, 268 F.3d 2 824, 828 (9th Cir. 2001) (the fact that the claimant left his job because he was laid 3 off, rather than because he was injured, was a clear and convincing reason to find 4 him not credible); Tommasetti v. Astrue, 533 F.3d 1035, 1040 (9th Cir. 2008) (the 5 ALJ properly discounted claimant’s credibility based, in part, on the fact that the 6 claimant’s reason for stopping work was not his disability). Here, the ALJ noted 7 Plaintiff reported in her Functioning Report that she homeschooled her son because 8 she believes in it, a factor that “would interfere with working but is unrelated to 9 disability.” Tr. 1078. Thus, Plaintiff was not working because she chose to 10 homeschool her son, not because of her impairments. This was a clear and 11 convincing reason to discredit Plaintiff’s testimony. 12 F. Recusal/Full and Fair Hearing 13 Plaintiff contends the ALJ should have recused herself because, Plaintiff 14 alleges, the ALJ requested an investigation by the CDIU. ECF No. 20 at 18-21. 15 Plaintiff asserts that the CDIU report indicates that Plaintiff was referred to the 16 CDIU because ODAR found inconsistencies in the record. Tr. 1062. From this, 17 the ALJ stated, Plaintiff’s counsel inferred that the ALJ sent the referral, and 18 because the report indicated that ODAR found inconsistencies, Plaintiff alleged the 19 ALJ had already made a finding regarding the claimant’s credibility and was, 20 therefore, biased. Tr. 1062 (referring to hearing testimony at Tr. 1101-03). 21 ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT - 53 1 Moreover, Plaintiff contends she was deprived of the right to a full and fair 2 hearing, because, she argues, the ALJ’s actions were biased. ECF No. 20 at 18-21. 3 ALJs who decide social security claims are presumed to be unbiased. 4 Schweiker v. McClure, 456 U.S. 188, 195 (1982); Rollins, 261 F.3d at 857-58 5 (citing Verduzco v. Apfel, 188 F.3d 1087, 1089 (9th Cir. 1999)). The presumption 6 can be rebutted by showing a conflict of interest or another specific reason for 7 disqualification. Verduzco, 188 F.3d at 1089. Expressions of sarcasm, impatience, 8 dissatisfaction, annoyance, and even anger, “that are within the bounds of what 9 imperfect men and women . . . sometimes display” do not establish bias. Rollins, 10 261 F.3d at 858 (quoting Liteky v. United States, 510 U.S. 540, 555-56 (1994)). A 11 claimant asserting bias must “show that the ALJ’s behavior, in the context of the 12 whole case, was ‘so extreme as to display clear inability to render fair judgment.’” 13 Rollins, 261 F.3d at 858 (quoting Liteky, 510 U.S. at 551). The burden of 14 establishing a specific reason for disqualification is on the party making the 15 assertion. Schweiker, 456 U.S. at 196. 16 Plaintiff contends the ALJ improperly prejudged Plaintiff’s credibility and 17 should have referred the case to another ALJ for that reason. ECF No. 20 at 18 18 (citing Tr. 1359) (“The claim on [Plaintiff] was referred to the Cooperative 19 Disability Investigations Unit (CDIU) after the Office of Disability Adjudication 20 21 ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT - 54 1 and Review (ODAR) found inconsistencies in [Plaintiff’s] allegations and 2 presentations throughout the file.”). 3 The ALJ correctly observed that an ALJ may disqualify herself if she 4 believes her participation in the case would give the appearance of impropriety. 5 Tr. 1062 (citing HALLEX I-2-1-60). These instances include, for example, 6 sharing an acquaintance with, but not knowing, the claimant, or when the ALJ has 7 particular knowledge about the claimant from an extrajudicial source. The ALJ did 8 not have these as proper bases to grant recusal. Tr. 1062. 9 The claimant raised a similar claim in Valentine, 574 F. 3d at 690. The 10 Court held that “ALJ’s are presumed to be unbiased.” Moreover, prejudging does 11 not establish bias: “Valentine does not allege that the ALJ was biased against him. 12 Instead, he merely suggests that the ALJ had prejudged his case in some way. We 13 can find no legal authority for the proposition that general preconceptions that do 14 not amount to bias violate the Due Process Clause.” Valentine, 574 F.3d at 690. 15 Here, Plaintiff similarly alleges that the ALJ “prejudged” Plaintiff’s credibility and 16 this somehow deprived her of a full and fair hearing. However, this general 17 assertion does not establish or amount to a claim of actual bias or deprivation of 18 due process by the ALJ. Accordingly, Plaintiff’s allegation is without merit. 19 In addition, Plaintiff contends the CDIU investigation was unreasonable. 20 Plaintiff contends the investigating agent used “deceptive tactics” that shock the 21 ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT - 55 1 conscience.” ECF No. 22 at 9-11. However, the authority Plaintiff cites does not 2 support her contention. 3 First, Plaintiff cites Wyman v. James, 400 U.S. 309, 318-23 (1971). There, 4 the Supreme Court considered a home visit that was required as a condition for 5 assistance under the Aid to Families of Dependent Children (AFDC) program. The 6 Court held that even if such a visit by a caseworker possessed some characteristics 7 of a search in a traditional criminal law sense, the visit did not fall within the 8 Fourth Amendment’s proscription against unreasonable searches and seizures. 9 Wyman, 400 U.S. at 317-18. Notably, the home visitation which state statutes 10 prescribed as a condition for assistance under the AFDC program was a reasonable 11 administrative tool and served a valid and proper administrative purpose for 12 dispensation of the program. Wyman, 400 U.S. at 318-19 (observing that the 13 agency is fulfilling a public trust). The Court found the home visits are not a 14 search, nor are they unreasonable; the home visit is not a criminal investigation, 15 does not equate with a criminal investigation, and is not in aid of any criminal 16 proceeding; accordingly criminal law protections are not applicable. Wyman, 400 17 U.S. at 317-18, 323-24. 18 Similarly, the investigator’s actions in this case did not involve a search, 19 were not unreasonable, and were not conducted in aid of any criminal proceeding. 20 Similar to Wyman, in this case, utilizing the administrative tool of an investigator 21 ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT - 56 1 does not trigger criminal law protections. And, importantly, like Wyman, the 2 agency here is fulfilling a public trust: “The State, working through its qualified 3 welfare agency, has appropriate and paramount interest and concern in seeing and 4 assuring that the intended and proper objects of that tax-produced assistance are 5 the ones who benefit from the aid it dispenses.” See Wyman, 400 U.S. at 318-19. 6 Here, the SSA is similarly fulfilling a public trust to assure that the intended and 7 proper objects of tax-produced assistance are the ones who benefit from the aid it 8 dispenses. 9 The only other authority Plaintiff cites is an unpublished case that aids 10 Plaintiff even less. ECF No. 22 at 9 (citing Elmore v. Colvin, 617 F.App’x 755, 11 757 (9th Cir. 2015) (unpublished)). In Elmore, the claimant argued that the ALJ 12 erred in relying on evidence related to the CDIU investigation. Elmore, 617 13 F.App’x at 757. Specifically, Elmore asserted that the CDIU’s use of a pretext 14 interview was both inconsistent with the broad remedial purpose of the Social 15 Security Act and the type of arbitrary government action that “shocks the 16 conscience.” Id. The Court held that this argument had “no merit,” and pointed 17 out that the Social Security Act expressly authorizes the Commissioner to “conduct 18 such investigations and other proceedings as the Commissioner may deem 19 necessary or proper.” Id. (citing 42 U.S.C. § 405(b)(1)); see also Fair, 885 F.2d at 20 603 (“The Disability Insurance and Supplemental Security Income programs are 21 ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT - 57 1 intended to provide benefits to people who are unable to work; awarding benefits 2 in cases of nondisabling pain would expand the class of recipients far beyond that 3 contemplated by the statute.”). The Elmore Court explicitly found that the tactics 4 used were neither “shocking” nor arbitrary. Elmore, 617 F.App’x at 757 (citing 5 Shaw v. Winters, 796 F.2d 1124, 1125 (9th Cir .1986) (“Government agents are 6 permitted to assume false identities in order to gain the confidence of their 7 targets.”)). The Elmore court concluded its discussion by citing the clear policy 8 behind investigative techniques: there is nothing nefarious about ensuring that only 9 deserving claimants receive benefits. Elmore, 617 F.App’x at 757. 10 Here, Plaintiff contends the CDIU agent entered Plaintiff’s home using a 11 ruse and this was a deceptive practice such that “the report itself should be excised 12 from the record.” ECF No. 22 at 9-10. As in Elmore, there was nothing nefarious 13 about the CDIU investigating to ensure that only deserving claimants receive 14 benefits pursuant to the Social Security Act. Plaintiff’s contention is without 15 merit. 16 In sum, the ALJ carefully considered the voluminous record and weighed 17 the contradictory evidence and opinions, including the lay testimony and Listing 18 evidence; determined the severe impairments at step two; assessed Plaintiff’s 19 credibility; considered the investigator’s report; was not required to recuse herself; 20 and provided Plaintiff a full and fair hearing. 21 ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT - 58 1 2 CONCLUSION After review, the Court finds that the ALJ’s decision is supported by 3 substantial evidence and free of harmful legal error. 4 IT IS ORDERED: 5 1. Plaintiff’s motion for summary judgment (ECF No. 20) is DENIED. 6 2. Defendant’s motion for summary judgment (ECF No. 21) GRANTED. 7 The District Court Executive is directed to file this Order, enter 8 JUDGMENT FOR THE DEFENDANT, provide copies to counsel, and 9 CLOSE THE FILE. 10 11 12 DATED this September 21, 2017. s/ Mary K. Dimke MARY K. DIMKE U.S. MAGISTRATE JUDGE 13 14 15 16 17 18 19 20 21 ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT - 59

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