Rappe v. Commissioner of Social Security, No. 1:2017cv03213 - Document 24 (E.D. Wash. 2019)
Court Description: ORDER Denying 15 Plaintiff's Motion for Summary Judgment and Granting 21 Defendant's Motion for Summary Judgment. Signed by Magistrate Judge Mary K. Dimke. (PL, Case Administrator)
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Rappe v. Commissioner of Social Security Doc. 24 1 2 FI LED I N THE U.S. DI STRI CT COURT EASTERN DI STRI CT OF WASHI NGTON 3 Jan 14, 2019 4 SEAN F. MCAVOY, CLERK 5 UNITED STATES DISTRICT COURT 6 EASTERN DISTRICT OF WASHINGTON 7 LEAH R., No. 1:17-cv-03213-MKD Plaintiff, 8 vs. 9 COMMISSIONER OF SOCIAL 10 SECURITY, Defendant. 11 ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ECF Nos. 15, 21 12 13 Before the Court are the parties’ cross-motions for summary judgment. ECF 14 Nos. 15, 21. The parties consented to proceed before a magistrate judge. ECF No. 15 7. The Court, having reviewed the administrative record and the parties’ briefing, 16 is fully informed. For the reasons discussed below, the Court denies Plaintiff’s 17 Motion, ECF No. 15, and grants Defendant’s Motion, ECF No. 21. 18 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 October 18, 2011, Plaintiff protectively filed applications for Title II 13 disability insurance benefits and Title XVI supplemental security income, alleging 14 an onset date of September 13, 2011. Tr. 158-66. The applications were denied 15 initially, Tr. 107-10, and on reconsideration, Tr. 113-16. Plaintiff appeared at a 16 hearing before an administrative law judge (ALJ) on April 30, 2013. Tr. 33-68. 17 On May 17, 2013, the ALJ issued a decision finding that Plaintiff was not 18 disabled. Tr. 17-32. The Appeals Council denied review. Tr. 1-6. Plaintiff 19 sought relief in District Court, and the Court remanded the case for further 20 21 ORDER - 6 1 proceedings. Tr. 464-481. Plaintiff appeared at a second hearing on July 21, 2017. 2 Tr. 427-52. On September 22, 2017, the ALJ denied Plaintiff’s claim. Tr. 402-26. 3 At step one, the ALJ found Plaintiff had not engaged in substantial gainful 4 activity since September 13, 2011, the alleged onset date. Tr. 408. At step two, 5 the ALJ found Plaintiff had the following severe impairments: multilevel spinal 6 disorders, carpal tunnel syndrome, and obesity. Id. At step three, the ALJ found 7 Plaintiff did not have an impairment or combination of impairments that met or 8 medically equaled the severity of a listed impairment. Tr. 408-09. The ALJ then 9 concluded that Plaintiff had the RFC to perform work with the following 10 limitations: 11 12 13 14 15 16 17 [Plaintiff] retains the residual functional capacity for work that involves lifting no more than 20 pounds at a time with frequent lifting or carrying of objects weighing up to 10 pounds; pushing or pulling similar amounts; no more than two hours of standing and/or walking in an eight-hour day; sitting for a total of six hours in an eight-hour workday; the option to stand for up to five minutes at the workstation every 30 minutes before returning to a seated position; no climbing of ladders, ropes, or scaffolds; no more than occasional ability to perform all other postural activity; no foot pedal operation; no more than frequent reaching, but no overhead reaching; no more than frequent handling and fingering; no exposure to hazards, such as dangerous moving machinery and unprotected heights; and no more than occasional exposure to environmental extremes such as dust, gas, fumes, heat, cold, or humidity. 18 Tr. 409. 19 At step four, the ALJ made no finding regarding past relevant work because 20 all applicable grid rules would direct a finding of not disabled. Tr. 417. At step 21 ORDER - 7 1 five, the ALJ found that considering Plaintiff’s age, education, work experience, 2 RFC, and testimony from a vocational expert, there are jobs that exist in significant 3 numbers in the national economy that Plaintiff could perform, such as charge 4 account clerk, telephone quotation clerk, and addresser. Tr. 417-18. The ALJ 5 concluded Plaintiff had not been under a disability as defined in the Social Security 6 Act from September 13, 2011 through the date of the decision. Tr. 418. On 7 January 12, 2016, the Appeals Council denied review, Tr. 487-91, making the 8 ALJ’s decision the Commissioner’s final decision for purposes of judicial review. 9 See 42 U.S.C. § 1383(c)(3); 20 C.F.R. §§ 404.981, 422.210. 10 11 ISSUES Plaintiff seeks judicial review of the Commissioner’s final decision denying 12 her disability income benefits under Title II and supplemental security income 13 benefits under Title XVI of the Social Security Act. Plaintiff raises the following 14 issues for review: 15 16 1. Whether the ALJ properly evaluated at steps two and three whether Plaintiff had a medically determinable intellectual disorder; 17 2. Whether the ALJ properly weighed Plaintiff’s symptom testimony; and 18 3. Whether the ALJ properly weighed the medical opinion evidence. 19 ECF No. 15 at 1. 20 21 ORDER - 8 1 2 3 DISCUSSION A. Intellectual Disorder Plaintiff faults the ALJ for failing to find intellectual disorder as a severe 4 impairment at step two and for failing to find Plaintiff met listing 12.05 for 5 intellectual disorder at step three. ECF No. 15 at 5-9. 6 At step two of the sequential process, the ALJ must determine whether 7 claimant suffers from a “severe” impairment, i.e., one that significantly limits her 8 physical or mental ability to do basic work activities. 20 C.F.R. §§ 404.1505, 9 416.920(c). When a claimant alleges a severe mental impairment, the ALJ must 10 follow a two-step “special technique” at steps two and three. First, the ALJ must 11 evaluate the claimant’s “pertinent symptoms, signs, and laboratory findings to 12 determine whether [he or she has] a medically determinable impairment.” 20 13 C.F.R. §§ 404.1520a, 416.920a. Second, the “degree of functional limitation 14 resulting from [the claimant’s] impairments” in four broad areas of functioning: 15 activities of daily living; social functioning; concentration, persistence or pace; and 16 episodes of decompensation. Functional limitation is measured as “none, mild, 17 moderate, marked, and extreme.” If limitation is found to be “none” or “mild,” the 18 impairment is generally considered to not be severe. If the impairment is severe, 19 the ALJ proceeds to determine whether the impairment meets or is equivalent in 20 severity to a listed mental disorder. 21 ORDER - 9 1 Step two is “a de minimus screening device [used] to dispose of groundless 2 claims.” Smolen v. Chater, 80 F.3d 1273, 1290 (9th Cir. 1996). “Thus, applying 3 our normal standard of review to the requirements of step two, [the Court] must 4 determine whether the ALJ had substantial evidence to find that the medical 5 evidence clearly established that [Plaintiff] did not have a medically severe 6 impairment or combination of impairments.” Webb v. Barnhart, 433 F.3d 683, 687 7 (9th Cir. 2005). 8 Plaintiff asserts the ALJ should have found Plaintiff had the severe 9 impairment of intellectual disorder at step two based on Dr. Dougherty’s 10 psychological evaluation. ECF No. 15 at 5-8. Dr. Dougherty examined Plaintiff 11 on May 22, 2014 and assessed a series of personality traits and features. Tr. 92212 36. Dr. Dougherty diagnosed Plaintiff with “rule out Cognitive disorder, NOS.” 13 Tr. 934. “A ‘rule-out’ diagnosis is by no means a diagnosis. In the medical 14 context, a ‘rule-out’ diagnosis means there is evidence for a diagnosis may be met, 15 but more information is needed in order to rule it out.” Carrasco v. Astrue, No. 16 ED CV 10-0043 JCG, 2011 WL 499346, at *4 (C.D. Cal. Feb. 8, 2011) (emphasis 17 in original) (internal citations omitted). A “rule out” diagnosis, standing alone, is 18 not sufficient to establish the existence of a severe impairment. See, e.g., 19 Crawford v. Colvin, No. C13-1786-JCC, 2014 WL 2216115, at *5 (W.D. Wash. 20 May 29, 2014); Jackson v. Astrue, No. ED CV 09-677-PJW, 2010 WL 1734912, at 21 ORDER - 10 1 *2 (C.D. Cal. Apr. 28, 2010); Simpson v. Comm’r, Soc. Sec. Admin., No. Civ. 992 1816-JO, 2001 WL 213762, at *8 (D. Or. Feb. 8, 2001). The ALJ considered Dr. 3 Dougherty’s report and concluded that “these are not diagnoses and do not 4 constitute medically determinable impairments.” Tr. 408. 5 The ALJ’s conclusion is supported by substantial evidence in the record. 6 Plaintiff bears the burden of proof to establish that she has a severe impairment. 7 Tackett, 180 F.3d at 1098. Although Plaintiff now asserts that she has the severe 8 impairment of intellectual disorder, Plaintiff did not allege any mental impairment 9 or associated functional limitation in her disability report, Tr. 186-93, her function 10 report, Tr. 206-13, in her appeal of the initial determination, Tr. 214-22, or at either 11 administrative hearing, Tr. 40-57, 432-43. The record does not indicate that 12 Plaintiff sought any treatment or support services for intellectual disorder. No 13 medical source diagnosed an intellectual disorder or opined that Plaintiff had any 14 functional limitations associated with an intellectual disorder. The ALJ did not err 15 in failing to identify intellectual disorder as a severe impairment. 16 Despite not identifying intellectual disorder as a severe impairment, Plaintiff 17 asserts the ALJ should have found Plaintiff met the requirements of the listed 18 impairment of intellectual disorder at Listing 12.05B. ECF No. 15 at 5-7. Listing 19 12.05B is met when the claimant can demonstrate: 20 21 (1) A full scale (or comparable) IQ score of 70 or below on an individua 4 1 decision in the context of “the entire record as a whole,” and if the “evidence is 2 susceptible to more than one rational interpretation, the ALJ’s decision should be 3 upheld.” Ryan, 528 F.3d at 1198 (internal quotation marks omitted). The ALJ 4 reasonably interpreted the evidence as showing improvement in Plaintiff’s 5 condition with conservative treatment. This finding is supported by substantial 6 evidence. 7 3. Daily Activities 8 The ALJ found Plaintiff’s symptom testimony was inconsistent with her 9 daily activities. Tr. 414-15. A claimant’s reported daily activities can form the 10 basis for an adverse credibility determination if they consist of activities that 11 contradict the claimant’s “other testimony” or if those activities are transferable to 12 a work setting. Orn v. Astrue, 495 F.3d 625, 639 (9th Cir. 2007); see also Fair, 13 885 F.2d at 603 (daily activities may be grounds for an adverse credibility finding 14 “if a claimant is able to spend a substantial part of his day engaged in pursuits 15 involving the performance of physical functions that are transferable to a work 16 setting.”). “While a claimant need not vegetate in a dark room in order to be 17 eligible for benefits, the ALJ may discredit a claimant’s testimony when the 18 claimant reports participation in everyday activities indicating capacities that are 19 transferable to a work setting” or when activities “contradict claims of a totally 20 21 ORDER - 25 1 debilitating impairment.” Molina, 674 F.3d at 1112-13 (internal quotation marks 2 and citations omitted). 3 Additionally, the ability to care for others without help has been considered 4 an activity that may undermine claims of totally disabling pain. Rollins, 261 F.3d 5 at 857. However, if the care activities are to serve as a basis for the ALJ to 6 discredit the Plaintiff’s symptom claims, the record must identify the nature, scope, 7 and duration of the care involved and this care must be “hands on” rather than a 8 “one-off” care activity. Trevizo v. Berryhill, 871 F.3d 664, 675-76 (9th Cir. 2017). 9 Here, the ALJ found that Plaintiff’s ability to care for her children, perform 10 household tasks, and perform some seasonal work was inconsistent with the level 11 of impairment Plaintiff alleged. Tr. 414-15. The ALJ noted that Plaintiff reported 12 performing household activities including cooking, cleaning, and caring for her 13 children. Tr. 414; see Tr. 206-13. The ALJ also observed that Plaintiff reported 14 walking daily for exercise, Tr. 1001, and that her pain did not affect her 15 functioning as a parent, Tr. 928. 16 The ALJ further found Plaintiff’s ability to complete seasonal work at H&R 17 Block during the relevant period was inconsistent with the level of impairment she 18 alleged. Tr. 415. In some instances, short-term work may be considered an 19 unsuccessful work attempt instead of substantial gainful activity. See Gatliff v. 20 Comm’r Soc. Sec. Admin., 172 F.3d 69, 694 (9th Cir. 1999). The concept was 21 ORDER - 26 1 designed as an equitable means of disregarding work that does not demonstrate 2 sustained substantial gainful employment. Id.; see also Reddick v. Chater, 157 3 F.3d 715, 722 (9th Cir. 1998) (“Several courts, including this one, have recognized 4 that disability claimants should not be penalized for attempting to lead normal lives 5 in the face of their limitations.”). Plaintiff testified at the 2013 hearing that she 6 worked at H&R Block between January 2013 and March 2013, that she worked 30 7 hours or less per week, and that she often missed work due to pain. Tr. 42-43. The 8 limitations in Plaintiff’s seasonal work do not provide clear and convincing reason 9 to discredit Plaintiff’s symptom testimony. 10 Even if the ALJ erred in evaluating Plaintiff’s daily activities, such error is 11 harmless. Error is harmless where the ALJ lists additional reasons, supported by 12 substantial evidence, for discrediting Plaintiff’s symptom complaints. See 13 Carmickle v. Comm’r of Soc. Sec. Admin., 533 F.3d 1155, 1162-63 (9th Cir. 2008); 14 Molina, 674 F.3d at 1115 (“[S]everal of our cases have held that an ALJ’s error 15 was harmless where the ALJ provided one or more invalid reasons for disbelieving 16 a claimant’s testimony, but also provided valid reasons that were supported by the 17 record.”); Batson v. Comm’r of Soc. Sec. Admin., 359 F.3d 1190, 1197 (9th Cir. 18 2004) (holding that any error the ALJ committed in asserting one impermissible 19 reason for claimant’s lack of credibility did not negate the validity of the ALJ’s 20 ultimate conclusion that the claimant’s testimony was not credible). Here, as 21 ORDER - 27 1 discussed supra, the ALJ identified several other reasons, supported by substantial 2 evidence, to find Plaintiff’s symptom testimony not credible. The Court “may not 3 reverse an ALJ’s decision on account of an error that is harmless.” Molina, 674 4 F.3d at 1111. Plaintiff is not entitled to relief on these grounds. 5 6 C. Medical Opinion Evidence Plaintiff challenges the ALJ’s evaluation of the medical opinions of Troy 7 Witherrite, M.D., and Roland Dougherty, Ph.D. ECF No. 15 at 8-16. 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 - 28 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. Witherrite 11 Dr. Witherrite treated Plaintiff between February 2011 and November 2011. 12 Tr. 336-62. On August 15, 2012, Dr. Witherrite diagnosed Plaintiff with chronic 13 neck pain and opined that it was unknown whether work on a regular and 14 continuous basis would cause Plaintiff’s condition to deteriorate and that Plaintiff’s 15 impairment would cause her to miss four or more days of work per month. Tr. 16 380-81. On June 12, 2013, Dr. Witherrite diagnosed Plaintiff with neck pain and 17 low back pain and opined that work on a regular and continuous basis would not 18 cause Plaintiff’s condition to deteriorate, that Plaintiff’s impairment would cause 19 her to miss four or more days of work per month, that Plaintiff was capable of 20 performing sedentary work, and that Plaintiff could engage in frequent use of her 21 ORDER - 29 1 upper extremities. Tr. 709-11. The ALJ gave some weight to Dr. Witherrite’s 2 opinion that Plaintiff was limited to sedentary work with frequent postural 3 limitations, but gave no weight to Dr. Witherrite’s opinion that Plaintiff would 4 miss four or more days of work per month. Tr. 415-16. Because Dr. Witherrite’s 5 opinion was contradicted1 by Dr. Petruso, Tr. 74-76, and Dr. Ignacio, Tr. 93-95, 6 the ALJ was required to provide specific and legitimate reasons to reject Dr. 7 Witherrite’s opinion. Bayliss, 427 F.3d at 1216. First, the ALJ found Dr. Witherrite’s opinion was inconsistent with the 8 9 medical evidence. Tr. 415-16. Relevant factors to evaluating any medical opinion 10 include the amount of relevant evidence that supports the opinion, the quality of 11 the explanation provided in the opinion, and the consistency of the medical opinion 12 with the record as a whole. Lingenfelter v. Astrue, 504 F.3d 1028, 1042 (9th Cir. 13 2007); Orn, 495 F.3d at 631. An ALJ may choose to give more weight to an 14 opinion that is more consistent with the evidence in the record. 20 C.F.R. §§ 15 16 1 Plaintiff asserts Dr. Witherrite’s opinion was uncontradicted because no other 17 provider rendered an opinion as to how many days of work Plaintiff would miss 18 per month due to her impairments. ECF No. 15 at 10. However, Dr. Petruso and 19 Dr. Ignacio each opined Plaintiff was capable of performing light work, which 20 contradicts the disabling level of missing days of work that Dr. Witherrite opined. 21 ORDER - 30 1 404.1527(c)(4) 416.927(c)(4) (“the more consistent an opinion is with the record as 2 a whole, the more weight we will give to that opinion”). As discussed supra, the 3 ALJ noted that the medical evidence, including Dr. Witherrite’s treatment notes, 4 documented generally mild findings. See Tr. 336 (February 23, 2011: reports of 5 tenderness, normal range of motion, normal strength and sensation in bilateral 6 upper extremities); Tr. 340 (September 8, 2011: normal strength and sensation in 7 extremities, negative straight leg raise); Tr. 344 (September 26, 2011: normal 8 range of motion, muscle strength, and stability in all extremities with no pain on 9 inspection; normal strength and sensation of bilateral upper extremities; normal 10 range of motion of neck); Tr. 353 (November 1, 2011: musculoskeletal 11 examination revealed normal range of motion, muscle strength, and stability in all 12 extremities with no pain on inspection); Tr. 333 (November 18, 2011: tenderness 13 to palpation over right sacroiliac joint, negative straight leg test and Patrick test 14 bilaterally, some discomfort with full back extension, tenderness to palpation over 15 the central and mid to lower cervical spine, minimal decreased range of motion in 16 neck); Tr. 364 (December 24, 2011: musculoskeletal examination showed normal 17 range of motion, normal strength, no tenderness, normal back alignment, and 18 decreased range of motion in back); Tr. 369 (March 21, 2012: physical 19 examination unremarkable, normal gait, normal toe- and heel-walking, Plaintiff 20 could squat and raise without difficulty); Tr. 865 (August 5, 2012: back 21 ORDER - 31 1 examination included findings of normal inspection, normal range of motion, 2 tenderness medial to the scapula on the left side trapezius area; upper extremities 3 normal upon physical examination); Tr. 782 (June 21, 2013: tenderness at C4/C5, 4 no tenderness at thoracic or lumbar spine, normal straight leg raise, normal gait); 5 Tr. 731-34 (July 10, 2014: palpation tenderness over midline lumbar spine, no 6 restriction in lumbar range of motion, negative straight leg tests, hip range of 7 motion normal. Dr. Hurtarte did not recommend opioid therapy due to mild nature 8 of Plaintiff’s spine pathology); Tr. 744, 747 (July 18, 2014: decreased range of 9 motion in neck, negative straight leg tests, normal inspection of neck and back, no 10 neck or back tenderness, range of motion in neck and back within normal limits); 11 Tr. 730 (August 7, 2014: gait non-antalgic and full range of motion in cervical, 12 thoracic, and lumbar flexion, extension, and rotation); Tr. 831-32 (June 14, 2015: 13 negative straight leg test, full muscle strength, normal muscle tone, sensation 14 intact, normal gait, Plaintiff was able to walk on tiptoes, heels, and tandem walk 15 without difficulties); Tr. 908 (July 28, 2015: soft tissue tenderness in the lower 16 central lumbar area and normal range of motion); Tr. 952 (August 6, 2015: 17 tenderness to palpation at L4-5, normal sensation, motor strength, balance, and 18 gait); Tr. 996-97 (January 24, 2017: moving all extremities well, easily gets on and 19 off exam table, pain on palpation over midline lumbar spine, Plaintiff able to bend 20 forward and touch toes, pain on palpation midline cervical spine. Dr. Plotts found 21 ORDER - 32 1 no alarming symptoms by examination); Tr. 1004 (February 21, 2017: normal 2 physical examination); Tr. 1015 (April 21, 2017: normal physical examination); 3 Tr. 1018 (May 1, 2017: Plaintiff appeared well and in no distress, but declined 4 further physical examination because “It’s just going to hurt, I don’t see why that’s 5 necessary”); Tr. 1021 (July 3, 2017: negative straight leg raise, full muscle strength 6 in upper and lower extremities, full range of motion, symmetrical gait). The ALJ 7 reasonably concluded that the relatively mild physical findings in the record were 8 inconsistent with Dr. Witherrite’s opinion that Plaintiff’s pain would cause her to 9 miss four or more days of work per month. Plaintiff challenges the ALJ’s conclusion by offering evidence that Plaintiff 10 11 asserts supports Dr. Witherrite’s opined limitation.2 ECF No. 15 at 11; see, e.g., 12 13 2 Plaintiff argues again that this Court is bound by its previous finding that the 14 medical evidence was consistent with Plaintiff’s symptom reporting and Dr. 15 Witherrite’s subsequent opinion. ECF No. 15 at 11; see Tr. 478. As discussed 16 supra, the current record is substantially different than the record at the time of this 17 Court’s 2015 review, thus, the law of the case doctrine does not apply. Stacy, 825 18 F.3d at 567. This Court finds that the current record as a whole is less consistent 19 with Plaintiff’s symptom reporting and Dr. Witherrite’s opined limitation than the 20 previous record. 21 ORDER - 33 1 Tr. 328 (March 2011: reduced range of motion); Tr. 376 (December 2011: straight 2 leg test positive); Tr. 785 (September 2014 MRI of cervical spine showed right 3 posterior disc bulge at C5-6 level appeared to have slightly decreased in size, very 4 mild spinal canal narrowing, slight interval increase in size of the broad-based disc 5 bulge at C6-7 level touching upon the anterior surface of the cervical spinal cord, 6 mild neuroforaminal narrowing on the left and right which have not significantly 7 changed since 2011 MRI, and no abnormal signal intensity within the cervical 8 spinal cord); Tr. 884 (April 2015 mild positive electrodiagnostic test); Tr. 981 9 (December 2016: muscle spasm observed). It is the ALJ’s responsibility to resolve 10 conflicts in the medical evidence. Andrews, 53 F.3d at 1039. Where the ALJ’s 11 interpretation of the record is reasonable, as it is here, it should not be second12 guessed. Rollins, 261 F.3d at 857. The Court must consider the ALJ’s decision in 13 the context of “the entire record as a whole,” and if the “evidence is susceptible to 14 more than one rational interpretation, the ALJ’s decision should be upheld.” Ryan, 15 528 F.3d at 1198 (internal quotation marks omitted). The ALJ reasonably 16 concluded that the evidence as a whole was inconsistent with Dr. Witherrite’s 17 opined limitation, and this finding is supported by substantial evidence. 18 Second, the ALJ found Dr. Witherrite’s opinion was based on Plaintiff’s 19 self-reports. Tr. 416. A physician’s opinion may be rejected if it based on a 20 claimant’s subjective complaints which were properly discounted. Tonapetyan v. 21 ORDER - 34 1 Halter, 242 F.3d 1144, 1149 (9th Cir. 2001); Morgan v. Comm’r of Soc. Sec 2 Admin., 169 F.3d 595, 602 (9th Cir. 1999); Fair, 885 F.2d at 604. “[W]hen an 3 opinion is not more heavily based on a patient’s self-reports than on clinical 4 observations, [this] is no evidentiary basis for rejecting the opinion.” Ghanim, 763 5 F.3d at 1162. Here, the ALJ noted that Dr. Witherrite’s 2013 opinion that Plaintiff 6 would miss four or more days of work per month was “based on [her] prior 7 experience with working.” Tr. 416; see Tr. 710. Plaintiff’s prior experience with 8 working was information that Plaintiff reported to Dr. Witherrite. Because the 9 ALJ provided clear and convincing reasons to discredit Plaintiff’s subjective 10 symptom reporting, discussed supra, the ALJ reasonably discredited Dr. 11 Witherrite’s limitation for being based on Plaintiff’s self-reporting. 12 Third, the ALJ found Dr. Witherrite’s opinion was not sufficiently explained 13 or supported. Tr. 416. A medical opinion may be rejected by the ALJ if it is 14 conclusory or inadequately supported. Bray, 554 F.3d at 1228; Thomas, 278 F.3d 15 at 957. Also, individual medical opinions are preferred over check-box reports. 16 See Crane v. Shalala, 76 F.3d 251, 253 (9th Cir. 1996); Murray v. Heckler, 722 17 F.2d 499, 501 (9th Cir. 1983). An ALJ may permissibly reject check-box reports 18 that do not contain any explanation of the bases for their conclusions. Crane, 76 19 F.3d at 253. However, if treatment notes are consistent with the opinion, a check20 box form may not automatically be rejected. See Garrison, 759 F.3d at 1014 n.17; 21 ORDER - 35 1 see also Trevizo, 871 F.3d at 667 n.4 (“[T]here is no authority that a ‘check-the2 box’ form is any less reliable than any other type of form”). Here, the ALJ 3 concluded that Dr. Witherrite’s opined limitation was not sufficiently explained 4 because Dr. Witherrite’s opinion does not explain the basis for the opined 5 limitation and because the medical evidence, including Dr. Witherrite’s own 6 treatment notes, did not document pain reports or symptom exacerbation to support 7 a finding that Plaintiff would miss four or more days of work per month. Tr. 416. 8 This was a specific and legitimate reason to discredit Dr. Witherrite’s opinion. 9 Finally, the ALJ noted that Dr. Witherrite did not treat Plaintiff for some 10 time before rendering his opinions. Tr. 416. The number of visits a claimant had 11 with a particular provider is a relevant factor in assigning weight to an opinion. 20 12 C.F.R. §§ 404.1527(c), 416.927(c). Additionally, the extent to which a medical 13 source is “familiar with the other information in [the claimant’s] case record” is 14 relevant in assessing the weight of that source’s medical opinion. See id. The 15 record reflects treatment notes from Dr. Witherrite from between February 2011 16 and November 2011, Tr. 336-62, and once again in July 2015 when Plaintiff 17 presented to reestablish care and Dr. Witherrite declined to accept her as a patient. 18 Tr. 849-51. Although the record does not reflect that Plaintiff continued to see Dr. 19 Witherrite before he rendered his opinions in August 2012 and June 2013, Dr. 20 Witherrite is a treating provider, and the record reflects that Dr. Witherrite was 21 ORDER - 36 1 provided with treatment notes from Plaintiff’s other providers. See Tr. 368-77, 2 872-74. Accordingly, this was not a specific and legitimate reason to discredit Dr. 3 Witherrite’s opinion. However, because the ALJ provided other specific and 4 legitimate reasons to reject Dr. Witherrite’s opinion that are supported by 5 substantial evidence, this error is harmless. See Tommasetti, 533 F.3d at 1038 (an 6 error is harmless when “it is clear from the record that the . . . error was 7 inconsequential to the ultimate nondisability determination”). Plaintiff is not 8 entitled to relief on these grounds. 9 10 2. Dr. Dougherty Dr. Dougherty examined Plaintiff on May 22, 2014 and assessed a series of 11 personality traits and features. Tr. 922-36. Dr. Dougherty diagnosed Plaintiff with 12 “rule out Cognitive disorder, NOS.” Tr. 934. The ALJ noted the presence of Dr. 13 Dougherty’s report in the record and concluded that “these are not diagnoses and 14 do not constitute medically determinable impairments.” Tr. 408. 15 Plaintiff asserts the ALJ should have given weight to Dr. Dougherty’s 16 findings that Plaintiff had a tendency to reject authority, that she may have 17 conflicts over rules, that she would likely have disturbed interpersonal 18 relationships and would especially have difficulty with men, that she may develop 19 physical symptoms when under stress, that she may have difficulty engaging 20 effectively in counseling, and that her memory issues would require adjustments 21 ORDER - 37 1 for her to retain information. ECF No. 15 at 15, see Tr. 931, 935-36. However, 2 Dr. Dougherty’s observations are not medical opinions on functional limitations. 3 “Medical opinions are statements from acceptable medical sources that 4 reflect judgments about the nature and severity of your impairment(s), including 5 your symptoms, diagnosis and prognosis, what you can still do despite 6 impairment(s), and your physical or mental restrictions.” 20 C.F.R. §§ 7 404.1527(a), 416.927(a). The Ninth Circuit has found no error in ALJ decisions 8 that do not weigh statements within medical records when those records do not 9 reflect physical or mental limitations or otherwise provide information about the 10 ability to work. See, e.g., Turner v. Comm’r of Soc. Sec., 613 F.3d 1217, 1223 (9th 11 Cir. 2010) (recognizing that when a physician’s report did not assign any specific 12 limitations or opinions regarding the claimant’s ability to work, “the ALJ did not 13 need to provide ‘clear and convincing reasons’ for rejecting [the] report because 14 the ALJ did not reject any of [the report’s] conclusions.”). Dr. Dougherty’s report 15 is a psychological evaluation that documented personality profile observations, did 16 not diagnose any severe impairments, and did not opine any limitations regarding 17 Plaintiff’s specific functioning. The ALJ did not err in failing to credit Dr. 18 Dougherty’s report because the report contained no opinions to credit. 19 20 21 ORDER - 38 1 2 CONCLUSION Having reviewed the record and the ALJ’s findings, this court concludes the 3 ALJ’s decision is supported by substantial evidence and free of harmful legal error. 4 Accordingly, IT IS HEREBY ORDERED: 5 1. Plaintiff’s Motion for Summary Judgment, ECF No. 15, is DENIED. 6 2. Defendant’s Motion for Summary Judgment, ECF No. 21, is GRANTED. 7 3. The Court enter JUDGMENT in favor of Defendant. 8 The District Court Executive is directed to file this Order, provide copies to 9 counsel, and CLOSE THE FILE. 10 DATED January 14, 2019. 11 s/Mary K. Dimke MARY K. DIMKE UNITED STATES MAGISTRATE JUDGE 12 13 14 15 16 17 18 19 20 21 ORDER - 39
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