McBean v. Commissioner of Social Security, No. 1:2017cv03092 - Document 17 (E.D. Wash. 2018)
Court Description: ORDER DENYING PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT (ECF No. 14 ) AND GRANTING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT (ECF No. 15 ). FILE CLOSED. Signed by Magistrate Judge Mary K. Dimke. (PH, Case Administrator)
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McBean v. Commissioner of Social Security Doc. 17 1 2 3 FI LED I N THE U.S. DI STRI CT COURT EASTERN DI STRI CT OF WASHI NGTON 4 Aug 14, 2018 SEAN F. MCAVOY, CLERK 5 UNITED STATES DISTRICT COURT 6 EASTERN DISTRICT OF WASHINGTON 7 DANIEL M., 8 No. 1:17-cv-03092-MKD Plaintiff, 10 COMMISSIONER OF SOCIAL ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT 11 SECURITY, ECF Nos. 14, 15 9 vs. 12 Defendant. BEFORE THE COURT are the parties’ Cross-motions for Summary 13 14 Judgment. ECF Nos. 14, 15. The parties consented to proceed before a magistrate 15 judge. ECF No. 7. The Court, having reviewed the administrative record and the 16 parties’ briefing, is fully informed. For the reasons discussed below, the Court 17 denies Plaintiff’s Motion (ECF No. 14) and grants Defendant’s Motion (ECF No. 18 15). 19 20 21 ORDER - 1 Dockets.Justia.com 1 2 JURISDICTION The Court has jurisdiction over this case pursuant to 42 U.S.C. §§ 405(g); 3 1383(c)(3). 4 5 STANDARD OF REVIEW A district court’s review of a final decision of the Commissioner of Social 6 Security is governed by 42 U.S.C. § 405(g). The scope of review under § 405(g) is 7 limited; the Commissioner’s decision will be disturbed “only if it is not supported 8 by substantial evidence or is based on legal error.” Hill v. Astrue, 698 F.3d 1153, 9 1158 (9th Cir. 2012). “Substantial evidence” means “relevant evidence that a 10 reasonable mind might accept as adequate to support a conclusion.” Id. at 1159 11 (quotation and citation omitted). Stated differently, substantial evidence equates to 12 “more than a mere scintilla[,] but less than a preponderance.” Id. (quotation and 13 citation omitted). In determining whether the standard has been satisfied, a 14 reviewing court must consider the entire record as a whole rather than searching 15 for supporting evidence in isolation. Id. 16 In reviewing a denial of benefits, a district court may not substitute its 17 judgment for that of the Commissioner. Edlund v. Massanari, 253 F.3d 1152, 18 1156 (9th Cir. 2001). If the evidence in the record “is susceptible to more than one 19 rational interpretation, [the court] must uphold the ALJ’s findings if they are 20 supported by inferences reasonably drawn from the record.” Molina v. Astrue, 674 21 ORDER - 2 1 F.3d 1104, 1111 (9th Cir. 2012). Further, a district court “may not reverse an 2 ALJ’s decision on account of an error that is harmless.” Id. An error is harmless 3 “where it is inconsequential to the [ALJ’s] ultimate nondisability determination.” 4 Id. at 1115 (quotation and citation omitted). The party appealing the ALJ’s 5 decision generally bears the burden of establishing that it was harmed. Shinseki v. 6 Sanders, 556 U.S. 396, 409-10 (2009). 7 8 FIVE-STEP EVALUATION PROCESS A claimant must satisfy two conditions to be considered “disabled” within 9 the meaning of the Social Security Act. First, the claimant must be “unable to 10 engage in any substantial gainful activity by reason of any medically determinable 11 physical or mental impairment which can be expected to result in death or which 12 has lasted or can be expected to last for a continuous period of not less than twelve 13 months.” 42 U.S.C. §§ 423(d)(1)(A); 1382c(a)(3)(A). Second, the claimant’s 14 impairment must be “of such severity that he is not only unable to do his previous 15 work[,] but cannot, considering his age, education, and work experience, engage in 16 any other kind of substantial gainful work which exists in the national economy.” 17 42 U.S.C. §§ 423(d)(2)(A); 1382c(a)(3)(B). 18 The Commissioner has established a five-step sequential analysis to 19 determine whether a claimant satisfies the above criteria. See 20 C.F.R. §§ 20 404.1520(a)(4)(i)-(v); 416.920(a)(4)(i)-(v). At step one, the Commissioner 21 ORDER - 3 1 considers the claimant’s work activity. 20 C.F.R. §§ 404.1520(a)(4)(i); 2 416.920(a)(4)(i). If the claimant is engaged in “substantial gainful activity,” the 3 Commissioner must find that the claimant is not disabled. 20 C.F.R. §§ 4 404.1520(b); 416.920(b). 5 If the claimant is not engaged in substantial gainful activity, the analysis 6 proceeds to step two. At this step, the Commissioner considers the severity of the 7 claimant’s impairment. 20 C.F.R. §§ 404.1520(a)(4)(ii); 416.920(a)(4)(ii). If the 8 claimant suffers from “any impairment or combination of impairments which 9 significantly limits [his or her] physical or mental ability to do basic work 10 activities,” the analysis proceeds to step three. 20 C.F.R. §§ 404.1520(c); 11 416.920(c). If the claimant’s impairment does not satisfy this severity threshold, 12 however, the Commissioner must find that the claimant is not disabled. 20 C.F.R. 13 §§ 404.1520(c); 416.920(c). 14 At step three, the Commissioner compares the claimant’s impairment to 15 severe impairments recognized by the Commissioner to be so severe as to preclude 16 a person from engaging in substantial gainful activity. 20 C.F.R. §§ 17 404.1520(a)(4)(iii); 416.920(a)(4)(iii). If the impairment is as severe or more 18 severe than one of the enumerated impairments, the Commissioner must find the 19 claimant disabled and award benefits. 20 C.F.R. §§ 404.1520(d); 416.920(d). 20 21 ORDER - 4 If the severity of the claimant’s impairment does not meet or exceed the 1 2 severity of the enumerated impairments, the Commissioner must pause to assess 3 the claimant’s “residual functional capacity.” Residual functional capacity (RFC), 4 defined generally as the claimant’s ability to perform physical and mental work 5 activities on a sustained basis despite his or her limitations, 20 C.F.R. §§ 6 404.1545(a)(1); 416.945(a)(1), is relevant to both the fourth and fifth steps of the 7 analysis. At step four, the Commissioner considers whether, in view of the claimant’s 8 9 RFC, the claimant is capable of performing work that he or she has performed in 10 the past (past relevant work). 20 C.F.R. §§ 404.1520(a)(4)(iv); 416.920(a)(4)(iv). 11 If the claimant is capable of performing past relevant work, the Commissioner 12 must find that the claimant is not disabled. 20 C.F.R. §§ 404.1520(f); 416.920(f). 13 If the claimant is incapable of performing such work, the analysis proceeds to step 14 five. 15 At step five, the Commissioner considers whether, in view of the claimant’s 16 RFC, the claimant is capable of performing other work in the national economy. 17 20 C.F.R. §§ 404.1520(a)(4)(v); 416.920(a)(4)(v). In making this determination, 18 the Commissioner must also consider vocational factors such as the claimant’s age, 19 education and past work experience. 20 C.F.R. §§ 404.1520(a)(4)(v); 20 416.920(a)(4)(v). If the claimant is capable of adjusting to other work, the 21 ORDER - 5 1 Commissioner must find that the claimant is not disabled. 20 C.F.R. §§ 2 404.1520(g)(1); 416.920(g)(1). If the claimant is not capable of adjusting to other 3 work, analysis concludes with a finding that the claimant is disabled and is 4 therefore entitled to benefits. 20 C.F.R. §§ 404.1520(g)(1); 416.920(g)(1). 5 The claimant bears the burden of proof at steps one through four above. 6 Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999). If the analysis proceeds to 7 step five, the burden shifts to the Commissioner to establish that (1) the claimant is 8 capable of performing other work; and (2) such work “exists in significant 9 numbers in the national economy.” 20 C.F.R. §§ 404.1560(c)(2); 416.960(c)(2); 10 Beltran v. Astrue, 700 F.3d 386, 389 (9th Cir. 2012). 11 ALJ’S FINDINGS 12 On January 23, 2014, Plaintiff protectively filed applications for Title II 13 disability insurance benefits and Title XVI supplemental security income benefits, 14 alleging an onset date of September 15, 2012. Tr. 195-217. The applications were 15 denied initially, Tr. 127-35, and on reconsideration, Tr. 138-47. Plaintiff appeared 16 at a hearing before an administrative law judge (ALJ) on October 14, 2015. Tr. 17 43-74. On November 27, 2015, the ALJ denied Plaintiff’s claim. Tr. 23-36. 18 At step one of the sequential evaluation process, the ALJ found Plaintiff has 19 not engaged in substantial gainful activity since September 15, 2012. Tr. 26. At 20 step two, the ALJ found Plaintiff has the following severe impairments: 21 ORDER - 6 1 degenerative disc disease of the spine, obesity, organic mental disorder, major 2 depressive disorder, and antisocial personality disorder. Id. At step three, the ALJ 3 found Plaintiff does not have an impairment or combination of impairments that 4 meets or medically equals the severity of a listed impairment. Tr. 25. The ALJ 5 then concluded that Plaintiff has the RFC to perform light work with the following 6 limitations: 7 8 9 10 He can perform simple, routine tasks and follow short, simple instructions. He can do work that needs little or no judgment and can perform simple duties that can be learned on the job in a short period of less than thirty days. He can respond appropriately to supervision, but should not be required to work in close coordination with coworkers where teamwork is required. He can deal with occasional changes in the work environment. He can do work that requires no contact with the general public to perform the work tasks. 11 Tr. 28. 12 At step four, the ALJ found Plaintiff is unable to perform any past relevant 13 work. Tr. 34. At step five, the ALJ found there are jobs that exist in significant 14 numbers in the national economy that Plaintiff can perform, such as assembler, 15 production; packing line worker; and cleaner, housekeeping. Tr. 35. The ALJ 16 concluded Plaintiff was not under a disability, as defined in the Social Security 17 Act, from September 15, 2012, through November 27, 2015, the date of the ALJ’s 18 decision. Tr. 35. 19 20 21 ORDER - 7 1 On March 30, 2017, the Appeals Council denied review of the ALJ’s 2 decision, Tr. 1-7, making the ALJ’s decision the Commissioner’s final decision for 3 purposes of judicial review. See 42 U.S.C. § 1383(c)(3). 4 5 ISSUES Plaintiff seeks judicial review of the Commissioner’s final decision denying 6 him disability insurance benefits under Title II and supplemental security income 7 benefits under Title XVI of the Social Security Act. Plaintiff raises the following 8 issues for review: 9 10 1. Whether the ALJ properly evaluated Plaintiff’s symptom complaints; and 2. Whether the ALJ properly evaluated the medical opinion evidence. 11 ECF No. 14 at 4. 12 13 14 DISCUSSION A. Plaintiff’s Symptom Testimony Plaintiff faults the ALJ for failing to rely on reasons that were clear and 15 convincing in discrediting his symptom claims. ECF No. 14 at 6-12. An ALJ 16 engages in a two-step analysis to determine whether a claimant’s testimony 17 regarding subjective pain or symptoms is credible. “First, the ALJ must determine 18 whether there is objective medical evidence of an underlying impairment which 19 could reasonably be expected to produce the pain or other symptoms alleged.” 20 Molina, 674 F.3d at 1112 (internal quotation marks omitted). “The claimant is not 21 ORDER - 8 1 required to show that [his] impairment could reasonably be expected to cause the 2 severity of the symptom []he has alleged; []he need only show that it could 3 reasonably have caused some degree of the symptom.” Vasquez v. Astrue, 572 4 F.3d 586, 591(9th Cir. 2009) (internal quotation marks omitted). 5 Second, “[i]f the claimant meets the first test and there is no evidence of 6 malingering, the ALJ can only reject the claimant’s testimony about the severity of 7 the symptoms if [the ALJ] gives ‘specific, clear and convincing reasons’ for the 8 rejection.” Ghanim v. Colvin, 763 F.3d 1154, 1163 (9th Cir. 2014) (quoting 9 Lingenfelter v. Astrue, 504 F.3d 1028, 1036 (9th Cir. 2007)). “General findings are 10 insufficient; rather, the ALJ must identify what testimony is not credible and what 11 evidence undermines the claimant’s complaints.” Id. (quoting Lester v. Chater, 81 12 F.3d 821, 834 (9th Cir. 1995)); Thomas v. Barnhart, 278 F.3d 947, 958 (9th Cir. 13 2002) (“[T]he ALJ must make a credibility determination with findings sufficiently 14 specific to permit the court to conclude that the ALJ did not arbitrarily discredit 15 claimant’s testimony.”). “The clear and convincing [evidence] standard is the most 16 demanding required in Social Security cases.” Garrison v. Colvin, 759 F.3d 995, 17 1015 (9th Cir. 2014) (quoting Moore v. Comm’r of Soc. Sec. Admin., 278 F.3d 920, 18 924 (9th Cir. 2002)). 19 In making an adverse credibility determination, the ALJ may consider, inter 20 alia, (1) the claimant’s reputation for truthfulness; (2) inconsistencies in the 21 ORDER - 9 1 claimant’s testimony or between his testimony and his conduct; (3) the claimant’s 2 daily living activities; (4) the claimant’s work record; and (5) testimony from 3 physicians or third parties concerning the nature, severity, and effect of the 4 claimant’s condition. Thomas, 278 F.3d at 958-59. 5 The ALJ concluded that Plaintiff’s medically determinable impairments 6 could reasonably be expected to cause Plaintiff’s alleged symptoms, but that 7 Plaintiff’s testimony about the intensity, persistence, and limiting effects of his 8 symptoms were only partially credible. Tr. 29. 9 10 1. Inconsistent with Medical Evidence The ALJ found that Plaintiff’s subjective symptom complaints were not 11 supported by the medical evidence. Tr. 29. An ALJ may not discredit a claimant’s 12 pain testimony and deny benefits solely because the degree of pain alleged is not 13 supported by objective medical evidence. Rollins v. Massanari, 261 F.3d 853, 856 14 (9th Cir. 2001); Bunnell v. Sullivan, 947 F.2d 341, 346-47 (9th Cir. 1991); Fair v. 15 Bowen, 885 F.2d 597, 601 (9th Cir. 1989). Medical evidence is a relevant factor, 16 however, in determining the severity of a claimant’s pain and its disabling effects. 17 Rollins, 261 F.3d at 857; 20 C.F.R. §§ 404.1529(c)(2), 416.929(c)(2). Minimal 18 objective evidence is a factor which may be relied upon in discrediting a claimant’s 19 testimony, although it may not be the only factor. See Burch v. Barnhart, 400 F.3d 20 676, 680 (9th Cir. 2005). 21 ORDER - 10 1 The ALJ found that Plaintiff’s symptom complaints were not corroborated 2 by the objective imaging in the record. Tr. 29. MRI imaging of Plaintiff’s back 3 showed mostly mild results. See Tr. 333, 357 (May 21, 2013 lumbar spine CT 4 showed L4-L5 disk bulge with mild stenosis of the canal, otherwise 5 unremarkable); Tr. 360, 407 (November 25, 2013 MRI showed left paracentral 6 disc bulging with an annular tear at L4-5 mildly narrowing the central canal, left 7 lateral recess, and neural foramen; mild degenerative changes at L2-3, L3-4, L5-S1 8 without significant stenosis or nerve root impingement); Tr. 378 (MRI showed 9 lateral disc herniation at L3-4 on the left side on February 3, 2014); Tr. 482 (July 10 22, 2014 imaging shows satisfactory position of hardware and disc materials 11 following surgery); Tr. 583 (March 9, 2015 x-rays look satisfactory); Tr. 586 12 (April 29, 2015 MRI showed postoperative changes and L2-3 diffuse disc bulging 13 resulting in mild narrowing of the central canal and encroachment of the lateral 14 recesses); Tr. 771 (September 18, 2015 MRI showed progression of mild to 15 moderate degenerative disc disease L2-3 and stable mild degenerative disc disease 16 L5-S1). Plaintiff argues that the objective imaging corroborates Plaintiff’s pain 17 allegations. ECF No. 14 at 6-7. However, the Court may not reverse the ALJ’s 18 decision based on Plaintiff’s disagreement with the ALJ’s interpretation of the 19 record. See Tommasetti v. Astrue, 533 F.3d 1035, 1038 (9th Cir. 2008) (“[W]hen 20 the evidence is susceptible to more than one rational interpretation” the court will 21 ORDER - 11 1 not reverse the ALJ’s decision). The ALJ rationally concluded that the objective 2 imaging showed mostly mild results, which were inconsistent with the degree of 3 pain Plaintiff alleged. 4 The ALJ also found that Plaintiff’s physical examinations did not 5 substantiate Plaintiff’s testimony about his back symptoms. Tr. 29. Plaintiff 6 alleged that his back pain caused significant limitations in his ability to walk, sit, 7 and twist. See Tr. 48 (Plaintiff testified that he could not walk for several days 8 approximately six to eight months before his July 2014 surgery); Tr. 52 (Plaintiff 9 testified that he is unable to sustain walking or sitting for long periods of time); Tr. 10 56 (Plaintiff testified he could sit in a soft chair for four to six hours so long as he 11 didn’t twist or move around much, and that walking causes such paint hat he has to 12 lay down for six to eight hours); Tr. 58 (Plaintiff testified that he could not bend 13 down and stand back up). However, Plaintiff’s physical examinations largely 14 showed normal physical functioning. See Tr. 315-16 (April 3, 2013 examination 15 showed back range of motion limited by pain but normal gait, Achilles and patellar 16 deep tendon reflexes normal, no focal motor or focal sensory deficits, and Plaintiff 17 was ambulating without assistance); Tr. 333 (June 30, 2013 examination showed 18 intact sensory and motor in the lower extremities); Tr. 370 (January 6, 2014 range 19 of motion exam showed only slightly reduced range of motion in back extension, 20 back flexion, left lateral flexion, and left hip abduction); Tr. 387 (January 13, 2014 21 ORDER - 12 1 examination showed normal gait, heel walk, toe walk, tandem walk, and active 2 pain free range of motion in hips, shoulders, ankles, elbows, and knees); Tr. 4633 64 (July 12, 2014 examination showed normal range of motion in extremities and 4 back, and Plaintiff was ambulatory without assistance); Tr. 474 (July 21, 2014 5 examination showed Plaintiff was able to toe walk, heel walk, and squat without 6 difficulty; able to bend side to side and rotate side to side to 45 degrees and extend 7 to 30 degrees while seated; hips, knees, and ankles showed excellent pain-free 8 range of motion; and motor strength 5/5 with hip flexion and extension, adduction, 9 and abduction, knee flexion and extension, dorsiflexion, and plantarflexion of the 10 foot and dorsiflexion of the great toe bilaterally); Tr. 579 (November 5, 2014 11 examination showed normal musculoskeletal overview and Plaintiff was 12 ambulatory); Tr. 582 (March 9, 2015 examinations showed active and passive pain 13 free range of motion, normal gait, and normal lumbar examination); Tr. 585 (May 14 7, 2015 normal physical examination); Tr. 567 (May 15, 2015 range of motion 15 examination showed normal hip extension and adduction); Tr. 676 (July 4, 2015 16 examination showed normal range of motion in back following motorcycle 17 accident). The ALJ reasonably concluded that the physical examination evidence 18 did not corroborate Plaintiff’s subjective symptom reports. 19 20 21 ORDER - 13 1 2. Positive Response to Treatment 2 The ALJ found Plaintiff’s symptom complaints were inconsistent with the 3 evidence showing Plaintiff’s conditions responded well to treatment. Tr. 30-31. 4 The effectiveness of medication and treatment is a relevant factor in determining 5 the severity of a claimant’s symptoms. 20 C.F.R. §§ 404.1529(c)(3), 416.929(c)(3) 6 (2011); see Warre v. Comm’r of Soc. Sec. Admin., 439 F.3d 1001, 1006 (9th Cir. 7 2006) (conditions effectively controlled with medication are not disabling for 8 purposes of determining eligibility for benefits) (internal citations omitted); see 9 also Tommasetti, 533 F.3d at 1040 (a favorable response to treatment can 10 undermine a claimant’s complaints of debilitating pain or other severe limitations). 11 Here, the ALJ noted that medication and treatment were effective at 12 reducing Plaintiff’s physical pain symptoms. Tr. 30. The record shows Plaintiff 13 reported an improvement in his pain symptoms with medication and other forms of 14 treatment. See Tr. 332 (Plaintiff reported on June 30, 2013 that medication 15 provided moderate pain relief and his current pain was 3/10); Tr. 380, 502 16 (Plaintiff reported on February 3, 2014 that his pain was a 3/10 after receiving pain 17 relief injections); Tr. 392 (Plaintiff reported on May 22, 2014 that he experienced a 18 60-70% improvement for a few days after pain relief injection); Tr. 575 (Plaintiff 19 reported on August 1, 2014 that he is doing well after back surgery and 20 experiences daily improvement in his pain); Tr. 579 (Plaintiff reported on 21 ORDER - 14 1 November 5, 2014 that he continued to experience pain; Dr. Chang recommended 2 a back brace and physical therapy); Tr. 584-85 (Plaintiff reported on May 7, 2015 3 that overall he is better than before surgery but that he still feels he significantly 4 limited by pain; Dr. Chang recommended continued nonoperative treatment). 5 Plaintiff argues that the record shows he experienced incomplete pain relief. ECF 6 No. 14 at 9 (citing Tr. 485, 575, 578-79, 581, 584, 600). However, the Court may 7 not reverse the ALJ’s decision based on Plaintiff’s disagreement with the ALJ’s 8 interpretation of the record. See Tommasetti, 533 F.3d at 1038 (“[W]hen the 9 evidence is susceptible to more than one rational interpretation” the court will not 10 reverse the ALJ’s decision). Here, the ALJ reasonably concluded that the evidence 11 showed Plaintiff responded favorably to treatment, which undermined Plaintiff’s 12 allegations of completely disabling pain. 13 The ALJ also observed that medication and treatment were effective in 14 controlling Plaintiff’s mental health symptoms. Tr. 30-31. Plaintiff took mental 15 health medication and attended therapy throughout the relevant period. See Tr. 16 354 (Plaintiff was current on Seroquel and Bupropion on May 24, 2013); Tr. 435 17 (Plaintiff was taking Seroquel and Bupropion and receiving individual therapy on 18 January 22, 2014) Tr. 416 (Plaintiff was taking Seroquel and Bupropion on 19 January 24, 2014); Tr. 379 (Plaintiff was taking Seroquel and Bupropion on 20 February 3, 2014); Tr. 401-403 (Plaintiff’s March 2014 medical records showed 21 ORDER - 15 1 Plaintiff was taking Bupropion, Clonazepam, and Seroquel, and was receiving 2 individual therapy); Tr. 405 (same). 3 During this time period, Plaintiff was observed as having largely normal 4 psychiatric conditions while receiving medical treatment. See Tr. 314 (Plaintiff 5 presented to the emergency department on April 3, 2013; normal affect observed); 6 Tr. 326, 329 (testing on June 18, 2013 showed Plaintiff had moderate depression, 7 no anxiety, and mental status exam was entirely within normal limits; Plaintiff was 8 observed with appropriate hygiene, cooperative manner, normal thought process 9 and content, normal insight and judgment, and average to above average range of 10 intelligence); Tr. 332 (Plaintiff “alert and oriented x3” on June 30, 2013). 11 Although Plaintiff’s mental status examinations between January and March 2014 12 showed constricted affect and anxious and depressed mood, they also consistently 13 showed fair reasoning, fair judgment, fair insight, fair impulse control, appropriate 14 appearance and speech, full orientation, unremarkable behavior, intact memory, 15 maintained attention, average intellect, clear consciousness, cooperative and 16 hopeful attitude, realistic perception of self, logical thought process, unremarkable 17 thought content, and no suicidal ideation. Tr. 427-28, 432-33, 436-37. Plaintiff’s 18 mental status examinations between April 2014 and May 2015 consistently showed 19 Plaintiff was oriented to person, place, time, and situation, and he displayed 20 appropriate mood, normal affect, normal speech, normal memory, normal insight, 21 ORDER - 16 1 and normal judgment. Tr. 390, 392, 394, 463, 473, 495, 576, 579, 585. On 2 January 23, 2015, Dr. Jackson noted Plaintiff’s bipolar symptoms improved with 3 Seroquel. Tr. 620. On April 24, 2015, Dr. Jackson noted Plaintiff’s mental health 4 conditions were “pretty much stable on current meds” and his “significant mental 5 health/behavioral issues [were] under reasonable control on current meds.” Tr. 6 569-70. During an examination just weeks before the administrative hearing, 7 Plaintiff was again observed to have appropriate mood and affect, full orientation, 8 logical thought process, sufficient fund of knowledge, clear speech, average 9 intelligence, and no agitation, no compulsive behavior, no fear, no flight of ideas, 10 no forgetfulness, no hallucinations, no mood swings, no obsessive thoughts, no 11 pressured speech, and no suicidal ideation. Tr. 731. The ALJ reasonably 12 concluded that this record indicated Plaintiff’s symptoms responded well to 13 treatment, which undermined his symptom testimony. Tr. 31. Plaintiff’s positive 14 response to treatment in both his physical and mental symptoms constitutes a clear 15 and convincing reason to discredit Plaintiff’s subjective symptom testimony. 16 3. Daily Activities 17 The ALJ found Plaintiff’s daily activities were inconsistent with the level of 18 impairment Plaintiff alleged. Tr. 31. A claimant’s reported daily activities can 19 form the basis for an adverse credibility determination if they consist of activities 20 that contradict the claimant’s “other testimony” or if those activities are 21 ORDER - 17 1 transferable to a work setting. Orn v. Astrue, 495 F.3d 625, 639 (9th Cir. 2007); 2 see also Fair, 885 F.2d at 603 (daily activities may be grounds for an adverse 3 credibility finding “if a claimant is able to spend a substantial part of his day 4 engaged in pursuits involving the performance of physical functions that are 5 transferable to a work setting.”). “While a claimant need not vegetate in a dark 6 room in order to be eligible for benefits, the ALJ may discredit a claimant’s 7 testimony when the claimant reports participation in everyday activities indicating 8 capacities that are transferable to a work setting” or when activities “contradict 9 claims of a totally debilitating impairment.” Molina, 674 F.3d at 1112-13 (internal 10 quotation marks and citations omitted). 11 Here, the ALJ noted that Plaintiff’s ability to ride his motorcycle was 12 inconsistent with the level of back pain he alleged. Tr. 31. Plaintiff testified that 13 he was able to ride his motorcycle for 20 to 30 minutes at a time. Tr. 66. 14 However, Plaintiff also testified that his limitations in sitting included needing to 15 sit on a soft surface with back support without twisting, that he could not twist his 16 back, and that sitting with his arms outstretched in front of him aggravated his back 17 pain. Tr. 56-58. The ALJ reasonably concluded that Plaintiff’s ability to ride a 18 motorcycle, even if only for short periods of time, was inconsistent with the 19 specific limitations Plaintiff alleged. 20 21 ORDER - 18 1 Additionally, the ALJ observed that Plaintiff performed several work 2 activities during the relevant period that were inconsistent with the level of 3 impairment he alleged. Tr. 31. Plaintiff attributes his back pain to an injury that 4 occurred in September 2012. Tr. 46. However, Plaintiff reported being able to cut 5 down trees and lift logs in approximately January 2013. Tr. 314-15. Plaintiff was 6 able to drive a truck for 40 hours per week for one month following his September 7 2012 injury. Tr. 234. These work activities are inconsistent with Plaintiff’s 8 testimony that he is unable to consistently sit for more than four to six hours at a 9 time, is unable to lift and twist, and unable to sit with his arms outstretched. Tr. 10 57-58. The ALJ reasonably concluded that Plaintiff’s ability to perform these 11 activities after the date of his allegedly disabling accident was inconsistent with the 12 level of impairment Plaintiff alleged. This was a clear and convincing reason to 13 discredit Plaintiff’s subjective symptom testimony. 14 4. Inconsistent Statements 15 The ALJ found Plaintiff’s subjective symptom testimony was less credible 16 because the record contained inconsistent statements by Plaintiff. Tr. 31-32. In 17 evaluating the credibility of symptom testimony, the ALJ may utilize ordinary 18 techniques of credibility evaluation, including prior inconsistent statements. See 19 Smolen v. Chater, 80 F.3d 1273, 1284 (9th Cir. 1996). Moreover, it is well-settled 20 21 ORDER - 19 1 in the Ninth Circuit that conflicting or inconsistent statements concerning drug use 2 can contribute to an adverse credibility finding. Thomas, 278 F.3d at 959. 3 Here, the ALJ found that the record indicated Plaintiff inconsistently 4 reported his narcotics use. Tr. 31-32. A chart note from Plaintiff’s April 3, 2013 5 visit to the emergency department indicates “Patient currently uses drugs, abuses 6 opiate, Drug history notes: Pt states last used oxycontin yesterday. ‘I use whatever 7 I can find when I need it.’” Tr. 315. After this visit to the emergency department, 8 Plaintiff’s primary care provider increased his pain medication from Vicodin to 9 four daily doses of Percocet. Tr. 351. During a June 18, 2013 psychological 10 examination, Plaintiff did not report opiate abuse, although he did report Vicodin 11 as a current medication. Tr. 325-26. During an April 15, 2014 appointment, 12 Plaintiff reported that his last opioid use was that same day, and he had a 13 prescription for Oxycodone at the time. Tr. 494-95. A chart note from Plaintiff’s 14 July 12, 2014 visit to the emergency department for over sedation states “Patient 15 currently uses drugs, abuses opiate, at this time. (Denies drug use on 7/12/14 16 visit).” Tr. 462. Plaintiff did not have any prescriptions recorded with the hospital 17 during that visit. Tr. 463. Plaintiff reported that he did not feel that his symptoms 18 19 20 21 ORDER - 20 1 at the time were a “normal reaction” to taking two doses of Ambien with 2 Oxycodone. Tr. 464.1 3 This record is ambiguous as to whether Plaintiff affirmatively 4 misrepresented his opioid use. Plaintiff argues that his reporting was not 5 inaccurate because he was prescribed opioids during this time frame, meaning his 6 opioid use was not opioid abuse. ECF No. 14 at 11-12. However, the record also 7 reflects that different medications were reported at different times, and opiate 8 abuse was specifically documented during Plaintiff’s visits to the emergency 9 department. See Tr. 315, 464. Even if the ALJ did err in making this finding, such 10 error is harmless. As discussed supra, the ALJ provided several other reasons, 11 supported by substantial evidence, for discrediting Plaintiff’s symptom complaints. 12 See Carmickle v. Comm’r of Soc. Sec. Admin., 533 F.3d 1155, 1162-63 (9th Cir. 13 2008); Molina, 674 F.3d at 1115 (“[S]everal of our cases have held that an ALJ’s 14 error was harmless where the ALJ provided one or more invalid reasons for 15 disbelieving a claimant’s testimony, but also provided valid reasons that were 16 supported by the record.”); Batson v. Comm’r of Soc. Sec. Admin., 359 F.3d 1190, 17 1197 (9th Cir. 2004) (holding that any error the ALJ committed in asserting one 18 19 1 Plaintiff accurately notes that the ALJ misattributed this statement in the chart 20 note to a medical provider rather than to Plaintiff. ECF No. 14 at 12. 21 ORDER - 21 1 impermissible reason for claimant’s lack of credibility did not negate the validity 2 of the ALJ’s ultimate conclusion that the claimant’s testimony was not credible). 3 Overall, the ALJ’s evaluation of Plaintiff’s symptom testimony is supported by 4 substantial evidence. 5 6 B. Medical Opinion Evidence Plaintiff challenges the ALJ’s consideration of the medical opinions of 7 Caryn Jackson, M.D., and Aaron Burdge, Ph.D. ECF No. 14 at 14-20. 8 There are three types of physicians: “(1) those who treat the claimant 9 (treating physicians); (2) those who examine but do not treat the claimant 10 (examining physicians); and (3) those who neither examine nor treat the claimant 11 [but who review the claimant’s file] (nonexamining [or reviewing] physicians).” 12 Holohan v. Massanari, 246 F.3d 1195, 1201-02 (9th Cir. 2001) (citations omitted). 13 Generally, a treating physician’s opinion carries more weight than an examining 14 physician’s, and an examining physician’s opinion carries more weight than a 15 reviewing physician’s. Id. at 1202. “In addition, the regulations give more weight 16 to opinions that are explained than to those that are not, and to the opinions of 17 specialists concerning matters relating to their specialty over that of 18 nonspecialists.” Id. (citations omitted). 19 If a treating or examining physician’s opinion is uncontradicted, the ALJ 20 may reject it only by offering “clear and convincing reasons that are supported by 21 ORDER - 22 1 substantial evidence.” Bayliss v. Barnhart, 427 F.3d 1211, 1216 (9th Cir. 2005). 2 “However, the ALJ need not accept the opinion of any physician, including a 3 treating physician, if that opinion is brief, conclusory and inadequately supported 4 by clinical findings.” Bray v. Comm’r of Soc. Sec. Admin., 554 F.3d 1219, 1228 5 (9th Cir. 2009) (internal quotation marks and brackets omitted). “If a treating or 6 examining doctor’s opinion is contradicted by another doctor’s opinion, an ALJ 7 may only reject it by providing specific and legitimate reasons that are supported 8 by substantial evidence.” Bayliss, 427 F.3d at 1216 (citing Lester, 81 F.3d at 8309 831). 10 1. Dr. Jackson – Physical Opinions 11 Dr. Jackson is Plaintiff’s primary care provider and treated Plaintiff from 12 September 28, 2012 to July 29, 2015. See Tr. 377, 659. Plaintiff challenges the 13 ALJ’s treatment of three separate opinions Dr. Jackson rendered regarding 14 Plaintiff’s physical impairments. ECF No. 14 at 14-16. 15 On January 6, 2014, Dr. Jackson opined Plaintiff’s lumbar radiculopathy 16 would cause severe impairments in Plaintiff’s ability to sit, stand, lift, carry, stoop, 17 and crouch; that Plaintiff’s annular tear and disc bulge would cause severe 18 impairments in basic work-related activities; that Plaintiff’s testicular hypofunction 19 would cause moderate interference with basic work-related activities; that 20 Plaintiff’s anxiety and depression would cause marked impairments in basic work21 ORDER - 23 1 related activities; and that Plaintiff was severely limited, meaning he was unable to 2 meet the demands of sedentary work (defined as the ability to lift a maximum of 10 3 pounds or being able to walk or stand only for brief periods). Tr. 367-71. On May 15, 2015, Dr. Jackson opined Plaintiff’s lumbar disc disease would 4 5 cause severe impairment in Plaintiff’s ability to perform basic work-related 6 activities and that Plaintiff was severely limited, meaning he was unable to meet 7 the demands of sedentary work (defined as the ability to lift a maximum of 10 8 pounds or being able to walk or stand only for brief periods). Tr. 564-66. 9 On July 29, 2015, Dr. Jackson opined Plaintiff would miss four days or more 10 of work per month; that Plaintiff was severely limited, meaning he was unable to 11 lift at least two pounds or unable to stand or walk; that Plaintiff was limited to 12 occasional handling and reaching in his upper extremities; and that Plaintiff’s 13 physical and mental health together make any work schedule impossible. Tr. 65914 61. 15 The ALJ gave all three opinions little weight. Tr. 32. Because Dr. 16 Jackson’s opinions were contradicted by Dr. Thompson, Tr. 589-90, the ALJ was 17 required to provide specific and legitimate reasons for rejecting the opinion. 18 Bayliss, 427 F.3d at 1216. 19 First, the ALJ found Dr. Jackson’s opinions were inconsistent with 20 Plaintiff’s examination findings. Tr. 32. An ALJ may discredit a physician’s 21 ORDER - 24 1 opinions that are unsupported by the record as a whole. Batson, 359 F.3d at 1195. 2 As discussed supra, Plaintiff’s objective imaging and physical examinations 3 yielded results that were consistent with the ALJ’s RFC formulation. See Tr. 333, 4 357 (May 21, 2013 lumbar spine CT showed L4-L5 disk bulge with mild stenosis 5 of the canal, otherwise unremarkable); Tr. 360, 407 (November 25, 2013 MRI 6 showed left paracentral disc bulging with an annular tear at L4-5 mildly narrowing 7 the central canal, left lateral recess, and neural foramen; mild degenerative changes 8 at L2-3, L3-4, L5-S1 without significant stenosis or nerve root impingement); Tr. 9 378 (MRI showed lateral disc herniation at L3-4 on the left side on February 3, 10 2014); Tr. 482 (July 22, 2014 imaging shows satisfactory position of hardware and 11 disc materials following surgery); Tr. 583 (March 9, 2015 x-rays look satisfactory); 12 Tr. 586 (April 29, 2015 MRI showed postoperative changes and L2-3 diffuse disc 13 bulging resulting in mild narrowing of the central canal and encroachment of the 14 lateral recesses); Tr. 771 (September 18, 2015 MRI showed progression of mild to 15 moderate degenerative disc disease L2-3 and stable mild degenerative disc disease 16 L5-S1); see also Tr. 315-16 (April 3, 2013 examination showed back range of 17 motion limited by pain but normal gait, Achilles and patellar deep tendon reflexes, 18 no focal motor or focal sensory deficits, and ambulating without assistance); Tr. 19 333 (June 30, 2013 examination showed intact sensory and motor in the lower 20 extremities); Tr. 370 (January 6, 2014 range of motion exam showed only slightly 21 ORDER - 25 1 reduced range of motion in back extension, back flexion, left lateral flexion, and 2 left hip abduction); Tr. 387 (January 13, 2014 examination showed normal gait, 3 heel walk, toe walk, tandem walk, and active pain free range of motion in hips, 4 shoulders, ankles, elbows, and knees); Tr. 463-64 (July 12, 2014 examination 5 showed normal range of motion in extremities and back, and Plaintiff was 6 ambulatory without assistance); Tr. 474 (July 21, 2014 examination showed 7 Plaintiff was able to toe walk, heel walk, and squat without difficulty; able to bend 8 side to side and rotate side to side to 45 degrees and extend to 30 degrees while 9 seated; hips, knees, and ankles showed excellent pain-free range of motion; and 10 motor strength 5/5 with hip flexion and extension, adduction, and abduction, knee 11 flexion and extension, dorsiflexion, and plantarflexion of the foot and dorsiflexion 12 of the great toe bilaterally); Tr. 579 (November 5, 2014 examination shows normal 13 musculoskeletal overview and Plaintiff was ambulatory); Tr. 582 (March 9, 2015 14 examinations showed active and passive pain free range of motion, normal gait, 15 and normal lumbar examination); Tr. 585 (May 7, 2015 normal physical 16 examination); Tr. 567 (May 15, 2015 range of motion exam showed normal hip 17 extension and adduction); Tr. 676 (July 4, 2015 normal range of motion in back 18 following motorcycle accident). The ALJ reasonably concluded that the medical 19 evidence did not support Dr. Jackson’s opinion that Plaintiff was severely limited, 20 meaning he was unable to lift 10 pounds and unable to walk or stand for brief 21 ORDER - 26 1 periods. Tr. 32; see Tr. 369. Contrary to Plaintiff’s assertion, the ALJ did 2 summarize the evidence and explain why the ALJ’s RFC formulation was 3 supported by the evidence. Tr. 28-34. Although Plaintiff argues for a different 4 interpretation of the evidence, the Court may not reverse the ALJ’s decision based 5 on Plaintiff’s disagreement with the ALJ’s interpretation of the record. See 6 Tommasetti, 533 F.3d at 1038. This inconsistency with the medical evidence was a 7 specific and legitimate reason to discredit Dr. Jackson’s opinion. 8 Second, the ALJ found Dr. Jackson’s opinions were inconsistent with 9 Plaintiff’s longitudinal treatment history. Tr. 32. An ALJ may discredit 10 physicians’ opinions that are unsupported by the record as a whole. Batson, 359 11 F.3d at 1195. As discussed supra, Plaintiff’s physical symptoms showed a positive 12 response to surgical and pharmaceutical treatment. See Tr. 332 (Plaintiff reported 13 on June 30, 2013 that medication provided moderate pain relief and his current 14 pain was 3/10); Tr. 380, 502 (Plaintiff reported on February 3, 2014 that his pain 15 was a 3/10 after receiving pain relief injections); Tr. 392 (Plaintiff reported on May 16 22, 2014 that he experienced a 60-70% improvement for a few days after pain 17 relief injection); Tr. 575 (Plaintiff reported on August 1, 2014 that he is doing well 18 after back surgery and experiences daily improvement in his pain); Tr. 579 19 (Plaintiff reported on November 5, 2014 that he continued to experience pain; Dr. 20 Chang recommended a back brace and physical therapy); Tr. 584-85 (Plaintiff 21 ORDER - 27 1 reported on May 7, 2015 that overall he is better than before surgery but that he 2 still feels he significantly limited by pain; Dr. Chang recommended continued 3 nonoperative treatment). The ALJ reasonably concluded that this record of a 4 positive response to treatment was inconsistent with Dr. Jackson’s opinion that 5 Plaintiff was incapable of meeting the demands of sedentary work. Tr. 32. 6 Although Plaintiff argues for a different interpretation of the evidence, the Court 7 may not reverse the ALJ’s decision based on Plaintiff’s disagreement with the 8 ALJ’s interpretation of the record. See Tommasetti, 533 F.3d at 1038. This was a 9 specific and legitimate reason to discredit Dr. Jackson’s opinions. 10 Third, the ALJ found Dr. Jackson’s opinions were inconsistent with 11 Plaintiff’s daily activities. Tr. 32. An ALJ may discount a medical source opinion 12 to the extent it conflicts with the claimant’s daily activities. Morgan v. Comm’r of 13 Soc. Sec. Admin., 169 F.3d 595, 601-02 (9th Cir. 1999). As discussed supra, 14 Plaintiff testified that he was able to ride his motorcycle for 20 to 30 minutes at a 15 time and reported performing work activities including cutting down trees, lifting 16 logs, and driving a truck after experiencing his disabling injury. Tr. 66, 234, 31417 15. The ALJ reasonably concluded that these activities were inconsistent with Dr. 18 Jackson’s opinion that Plaintiff would not be able to lift a maximum of ten pounds 19 and would be able to walk or stand for only brief periods. Tr. 32. This was a 20 specific and legitimate reason to discredit Dr. Jackson’s opinions. 21 ORDER - 28 1 Fourth, the ALJ found Dr. Jackson’s May 2015 and July 2015 opinions were 2 not explained. Tr. 32. The Social Security regulations “give more weight to 3 opinions that are explained than to those that are not.” Holohan, 246 F.3d at 1202. 4 The ALJ found that Dr. Jackson did not explain why Plaintiff’s diagnoses 5 supported the severe restrictions she opined. Tr. 32. Dr. Jackson’s May 2015 6 opinion indicated Plaintiff experienced ongoing low back pain since surgery, 7 mental health issues, and included a range of motion examination that indicated 8 some impairment in left hip flexion and abduction. Tr. 564-68. Dr. Jackson’s July 9 2015 opinion listed Plaintiff’s diagnoses, treatment, and medication side effects. 10 Tr. 659-61. However, neither opinion explained why Plaintiff’s diagnoses and 11 symptoms supported the level of limitation Dr. Jackson opined. The “mere 12 diagnosis of an impairment … is not sufficient to sustain a finding of disability.” 13 Key v. Heckler, 754 F.2d 1545, 1549 (9th Cir. 1985). Without further explanation 14 of how Plaintiff’s impairments supported Dr. Jackson’s opined limitations, the ALJ 15 reasonably concluded that Dr. Jackson’s opinions were not sufficiently explained. 16 This was a specific and legitimate reason to discredit her opinions. 17 2. Dr. Jackson – Mental Opinions 18 Plaintiff also challenges Dr. Jackson’s July 2015 opinions regarding 19 Plaintiff’s mental limitations. On July 29, 2015, Dr. Jackson opined Plaintiff was 20 mildly limited in his ability to carry out very short simple instructions; that 21 ORDER - 29 1 Plaintiff was moderately limited in his ability to carry out detailed instructions, be 2 aware of normal hazards and take appropriate precautions, and travel in unfamiliar 3 places or use public transportation; that Plaintiff was markedly limited in his 4 ability to maintain attention and concentration for extended periods, perform 5 activities within a schedule, maintain regular attendance and be punctual within 6 customary tolerances, sustain an ordinary routine without supervision, make simple 7 work related decisions, complete a normal workday and workweek without 8 interruptions from psychologically based symptoms, perform at a consistent pace 9 without an unreasonable number and length of rest periods, interact appropriately 10 with the general public, ask simple questions or request assistance, respond 11 appropriately to changes in the work setting, and set realistic goals or make plans 12 independently of others; that Plaintiff was severely limited in his ability to work in 13 coordination with or proximity to others without being distracted by them, accept 14 instructions and respond appropriately to criticism from supervisors, get along with 15 coworkers or peers without distracting them or exhibiting behavioral extremes, and 16 maintain socially appropriate behavior and adhere to basic standards of neatness 17 and cleanliness; that Plaintiff would be off-task over 30% of a 40-hour week 18 schedule; that Plaintiff would miss 4 or more days of work per month; and that 19 Plaintiff’s physical and mental health together make any work schedule 20 impossible. Tr. 659-64. The ALJ assigned this opinion no weight. Tr. 34. 21 ORDER - 30 1 Because Dr. Jackson’s opinion was contradicted by Dr. van Dam, Tr. 94-95, and 2 Dr. Fitterrer, Tr. 122-23, the ALJ was required to provide specific and legitimate 3 reasons for rejecting the opinion. Bayliss, 427 F.3d at 1216. 4 First, the ALJ found Dr. Jackson’s opinion was internally inconsistent. Tr. 5 34. Incongruity between a doctor’s medical opinion and treatment records or notes 6 is a specific and legitimate reason to discount a doctor’s opinion. Tommasetti, 533 7 F.3d at 1041. Although Dr. Jackson opined a range of mild, moderate, marked, 8 and severe limitations in Plaintiff’s mental functioning, the ALJ noted Dr. Jackson 9 consistently noted Plaintiff’s mental symptoms were controlled with medication. 10 Tr. 34; see Tr. 570 (“significant mental health/behavioral issues under reasonable 11 control on current meds”); Tr. 600 (Bipolar Disorder and Antisocial Personality 12 Disorder “pretty much stable on current meds … medications have been critical in 13 stabilizing him and he has not had significant manic or depressive symptoms”); Tr. 14 620 (continue current medications; noted improvement of initial mental health 15 symptoms). The ALJ reasonably concluded that Dr. Jackson’s observations of 16 Plaintiff’s symptoms over his course of treatment with her were inconsistent with 17 the level of impairment Dr. Jackson opined. This was a specific and legitimate 18 reason to discredit Dr. Jackson’s opinion. 19 Second, the ALJ found Dr. Jackson’s opinion was inconsistent with the 20 medical evidence as a whole. Tr. 34. An ALJ may discredit physicians’ opinions 21 ORDER - 31 1 that are unsupported by the record as a whole. Batson, 359 F.3d at 1195. 2 Although Dr. Jackson opined a range of mild, moderate, marked, and severe 3 limitations in Plaintiff’s mental functioning, the ALJ noted these limitations were 4 inconsistent with Plaintiff’s history of performance on mental status examinations. 5 Tr. 34; see Tr. 427-28, 432-33, 436-37 (although showing constricted affect, 6 anxious and depressed mood, the provider observed fair reasoning, fair judgment, 7 fair insight, fair impulse control, appropriate appearance and speech, full 8 orientation, unremarkable behavior, intact memory, maintained attention, average 9 intellect, clear consciousness, cooperative and hopeful attitude, realistic perception 10 of self, logical thought process, unremarkable thought content, and no suicidal 11 ideation); see also Tr. 390, 392, 394, 463, 473, 495, 576, 579, 585 (all showing 12 Plaintiff was oriented to person, place, time, and situation, and he displayed 13 appropriate mood, normal affect, normal speech, normal memory, normal insight, 14 and normal judgment). The ALJ reasonably concluded that these mild findings on 15 Plaintiff’s mental status examinations throughout the record were inconsistent with 16 the level of impairment Dr. Jackson opined. This was a specific and legitimate 17 reason to discredit Dr. Jackson’s opinion. 18 Third, the ALJ found Dr. Jackson’s opinion was entitled to less weight 19 because she was not a qualified mental health specialist. Tr. 34. A medical 20 provider’s specialization is a relevant consideration in weighing medical opinion 21 ORDER - 32 1 evidence. 20 C.F.R. §§ 404.1527(c)(5), 416.927(c)(5). Dr. Jackson’s specialty is 2 internal medicine. Tr. 661. It was reasonable for the ALJ to consider Dr. 3 Jackson’s specialty in evaluating her opinions. Tr. 34. 4 Fourth, the ALJ found Dr. Jackson’s opinion that Plaintiff was unable to 5 work was entitled to no weight because it was an opinion on an issue reserved to 6 the Commissioner. Tr. 34. The regulations provide that a statement by a medical 7 source that a Plaintiff is “unable to work” is not a medical opinion and is not due 8 any special significance because the legal conclusion of disability is reserved to the 9 Commissioner. 20 C.F.R. § 404.1527(d)(3) (“We will not give any special 10 significance to the source of an opinion on issues reserved to the 11 Commissioner . . . ”); 20 C.F.R. § 416.927(d). The legal conclusion of disability is 12 reserved exclusively to the Commissioner. See 20 C.F.R. §§ 404.1527(d), 13 416.927(d); see also McLeod v. Astrue, 640 F.3d 881, 884 (9th Cir. 2011) 14 (“Although a treating physician’s opinion is generally afforded the greatest weight 15 in disability cases, it is not binding on an ALJ with respect to the existence of an 16 impairment or the ultimate issue of disability.”). Nevertheless, the ALJ is required 17 to “carefully consider medical source opinions about any issue, including opinion 18 about issues that are reserved to the Commissioner.” Social Security Ruling (SSR) 19 96-5p, 1996 WL 374183, at *2 (July 2, 1996); Holohan, 246 F.3d at 1203-04 (“If 20 the treating physician’s opinion on the issue of disability is controverted, the ALJ 21 ORDER - 33 1 must still provide ‘specific and legitimate’ reasons in order to reject the treating 2 physician’s opinion.”). In addition to specific physical and mental functional 3 limitations, Dr. Jackson opined Plaintiff’s “physical + mental health together 4 makes any work schedule impossible.” Tr. 661. This is an opinion as to Plaintiff’s 5 ability to work, which is an opinion on the ultimate issue of disability. See 42 6 U.S.C. §§ 423(d)(1)(A); 1382c(a)(3)(A). Therefore, the ALJ was not required to 7 assign this opinion any particular weight. As discussed supra, the ALJ considered 8 the full scope of Dr. Jackson’s opinion and discredited it for several specific and 9 legitimate reasons. The ALJ did not err in discrediting Dr. Jackson’s opinion on 10 the ultimate issue of disability. 11 3. Dr. Burdge 12 Dr. Burdge examined Plaintiff on June 18, 2013, and opined Plaintiff’s 13 depression would affect Plaintiff’s ability to work; that Plaintiff had severe 14 impairment in his ability to complete a normal work day and work week without 15 interruptions from psychologically based symptoms; that Plaintiff had marked 16 impairments in his ability to perform activities within a schedule, maintain regular 17 attendance; and be punctual within customary tolerances without special 18 supervision; that Plaintiff had marked impairments in his ability to maintain 19 appropriate behavior in a work setting; and that Plaintiff had moderate impairment 20 in his ability to maintain appropriate behavior in a work setting. Tr. 325-31. The 21 ORDER - 34 1 ALJ gave this opinion little weight. Tr. 33. Because Dr. Burdge’s opinion was 2 contradicted by Dr. van Dam, Tr. 94-95, and Dr. Fitterrer, Tr. 122-23, the ALJ was 3 required to provide specific and legitimate reasons for rejecting the opinion. 4 Bayliss, 427 F.3d at 1216. 5 First, the ALJ found Dr. Burdge’s opinion was internally inconsistent. Tr. 6 33. A medical opinion may be rejected if it is unsupported by medical findings. 7 Bray, 554 F.3d at 1228; Batson, 359 F.3d at 1195; Thomas, 278 F.3d at 957; 8 Tonapetyan v. Halter, 242 F.3d 1144, 1149 (9th Cir. 2001); Matney v. Sullivan, 9 981 F.2d 1016, 1019 (9th Cir. 1992). Furthermore, a physician’s opinion may be 10 rejected if it is unsupported by the physician’s treatment notes. See Connett v. 11 Barnhart, 340 F.3d 871, 875 (9th Cir. 2003). Here, the ALJ found Dr. Burdge’s 12 opined limitations were inconsistent with Dr. Burdge’s mental status examination 13 findings. Tr. 33. Dr. Burdge’s mental status testing showed Trial Making Tests A 14 & B results within the normal range, HAM-D results showing moderate 15 depression, HAM-A results showing normal findings, and PAI results showing 16 some indications of negative impression management. Tr. 326. Dr. Burdge’s 17 mental status examination of Plaintiff showed appropriate hygiene, normal tone, 18 normal rate of speech, demonstrated adequate comprehension, cooperative and 19 friendly attitude and behavior, frequent eye contact, alert and attentive behavior, 20 adequate effort, functioning in the average to above average range of intelligence, 21 ORDER - 35 1 dysphoric mood, variable affect, and thought process and content, orientation, 2 perception, memory, fund of knowledge, concentration, abstract thinking, and 3 insight and judgment all within normal limits. Tr. 329-30. The ALJ reasonably 4 concluded that these mild test results were inconsistent with the marked and severe 5 limitations Dr. Burdge opined. This was a specific and legitimate reason to 6 discredit Dr. Burdge’s opinion. 7 Second, the ALJ found Dr. Burdge’s opinion was not explained. Tr. 33. 8 Relevant factors to evaluating any medical opinion include the amount of relevant 9 evidence that supports the opinion, the quality of the explanation provided in the 10 opinion, and the consistency of the medical opinion with the record as a whole. 11 Lingenfelter, 504 F.3d at 1042; Orn, 495 F.3d at 631. Dr. Burdge’s report contains 12 several test results, but does not explain how those test results support the level of 13 impairment Dr. Burdge opined. Tr. 325-30. Plaintiff argues that the test results 14 support Dr. Burdge’s opined limitations and therefore explain the opinion. ECF 15 No. 14 at 20. However, as discussed supra, the ALJ reasonably concluded that Dr. 16 Burdge’s opined limitations were inconsistent with the results of the testing he 17 conducted. Furthermore, the Court may not reverse the ALJ’s decision based on 18 Plaintiff’s disagreement with the ALJ’s interpretation of the record. See 19 Tommasetti, 533 F.3d at 1038. The ALJ reasonably concluded that Dr. Burdge did 20 not sufficiently explain the differences between his examination results and the 21 ORDER - 36 1 limitations he opined. This was a specific and legitimate reason to discredit Dr. 2 Burdge’s opinion. 3 4 C. Substantial Evidence Plaintiff contends the ALJ’s step four and step five findings were based on 5 an improper RFC formulation and encourages the Court to remand this case for an 6 award of benefits. ECF No. 14 at 20. However, Plaintiff’s argument is based 7 entirely on the assumption that the ALJ erred in considering the medical opinion 8 evidence and Plaintiff’s symptom claims. Id. For reasons discussed throughout 9 this decision, the ALJ’s consideration of Plaintiff’s symptom claims and 10 consideration of the medical opinion evidence are legally sufficient and supported 11 by substantial evidence. Thus, the ALJ did not err in assessing the RFC or finding 12 Plaintiff capable of performing work existing in the national economy. 13 14 CONCLUSION After review, the Court finds that the ALJ’s decision is supported by 15 substantial evidence and free of harmful legal error. 16 IT IS ORDERED: 17 1. Plaintiff’s motion for summary judgment (ECF No. 14) is DENIED. 18 2. Defendant’s motion for summary judgment (ECF No. 15) is GRANTED. 19 20 21 ORDER - 37 1 The District Court Executive is directed to file this Order, enter 2 JUDGMENT FOR THE DEFENDANT, provide copies to counsel, and CLOSE 3 THE FILE. 4 DATED August 14, 2018. 5 s/Mary K. Dimke MARY K. DIMKE UNITED STATES MAGISTRATE JUDGE 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 ORDER - 38
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