Farino v. Commissioner of Social Security, No. 1:2019cv03099 - Document 15 (E.D. Wash. 2019)

Court Description: ORDER GRANTING DEFENDANTS MOTION FOR SUMMARY JUDGMENT. Plaintiffs Motion for Summary Judgment ECF No. 11 is DENIED. Defendants Motion for Summary Judgment ECF No. 12 is GRANTED. The case is CLOSED. Signed by Chief Judge Thomas O. Rice. (LLH, Courtroom Deputy)

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Farino v. Commissioner of Social Security Doc. 15 1 2 3 4 5 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF WASHINGTON 6 7 ANTHONY F., NO. 1:19-CV-3099-TOR Plaintiff, 8 v. 9 10 ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT COMMISSIONER OF SOCIAL SECURITY, 11 Defendant. 12 13 BEFORE THE COURT are the parties’ cross-motions for summary 14 judgment (ECF Nos. 11, 12). The Court has reviewed the administrative record 15 and the parties’ completed briefing, and is fully informed. For the reasons 16 discussed below, the Court DENIES Plaintiff’s motion and GRANTS Defendant’s 17 motion. 18 JURISDICTION 19 The Court has jurisdiction pursuant to 42 U.S.C. §§ 405(g), 1383(c)(3). 20 ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 1 Dockets.Justia.com 1 2 STANDARD OF REVIEW A district court’s review of a final decision of the Commissioner of Social 3 Security is governed by 42 U.S.C. § 405(g). The scope of review under § 405(g) is 4 limited: the Commissioner’s decision will be disturbed “only if it is not supported 5 by substantial evidence or is based on legal error.” Hill v. Astrue, 698 F.3d 1153, 6 1158-59 (9th Cir. 2012) (citing 42 U.S.C. § 405(g)). “Substantial evidence” means 7 relevant evidence that “a reasonable mind might accept as adequate to support a 8 conclusion.” Id. at 1159 (quotation and citation omitted). Stated differently, 9 substantial evidence equates to “more than a mere scintilla[,] but less than a 10 preponderance.” Id. (quotation and citation omitted). In determining whether this 11 standard has been satisfied, a reviewing court must consider the entire record as a 12 whole rather than searching for supporting evidence in isolation. Id. 13 In reviewing a denial of benefits, a district court may not substitute its 14 judgment for that of the Commissioner. Edlund v. Massanari, 253 F.3d 1152, 15 1156 (9th Cir. 2001). If the evidence in the record “is susceptible to more than one 16 rational interpretation, [the court] must uphold the ALJ’s findings if they are 17 supported by inferences reasonably drawn from the record.” Molina v. Astrue, 674 18 F.3d 1104, 1111 (9th Cir. 2012). Further, a district court “may not reverse an 19 ALJ’s decision on account of an error that is harmless.” Id. An error is harmless 20 “where it is inconsequential to the [ALJ’s] ultimate nondisability determination.” ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 2 1 Id. at 1115 (quotation and citation omitted). The party appealing the ALJ’s 2 decision generally bears the burden of establishing that it was harmed. Shinseki v. 3 Sanders, 556 U.S. 396, 409-10 (2009). 4 5 FIVE STEP SEQUENTIAL EVALUATION PROCESS A claimant must satisfy two conditions to be considered “disabled” within 6 the meaning of the Social Security Act. First, the claimant must be “unable to 7 engage in any substantial gainful activity by reason of any medically determinable 8 physical or mental impairment which can be expected to result in death or which 9 has lasted or can be expected to last for a continuous period of not less than twelve 10 months.” 42 U.S.C. §§ 423(d)(1)(A), 1382c(a)(3)(A). Second, the claimant’s 11 impairment must be “of such severity that [he or she] is not only unable to do [his 12 or her] previous work[,] but cannot, considering [his or her] age, education, and 13 work experience, engage in any other kind of substantial gainful work which exists 14 in the national economy.” 42 U.S.C. §§ 423(d)(2)(A), 1382c(a)(3)(B). 15 The Commissioner has established a five-step sequential analysis to 16 determine whether a claimant satisfies the above criteria. See 20 C.F.R. §§ 17 404.1520(a)(4)(i)-(v), 416.920(a)(4)(i)-(v). At step one, the Commissioner 18 considers the claimant’s work activity. 20 C.F.R. §§ 404.1520(a)(4)(i), 19 416.920(a)(4)(i). If the claimant is engaged in “substantial gainful activity,” the 20 ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 3 1 Commissioner must find that the claimant is not disabled. 20 C.F.R. §§ 2 404.1520(b), 416.920(b). 3 If the claimant is not engaged in substantial gainful activities, the analysis 4 proceeds to step two. At this step, the Commissioner considers the severity of the 5 claimant’s impairment. 20 C.F.R. §§ 404.1520(a)(4)(ii), 416.920(a)(4)(ii). If the 6 claimant suffers from “any impairment or combination of impairments which 7 significantly limits [his or her] physical or mental ability to do basic work 8 activities,” the analysis proceeds to step three. 20 C.F.R. §§ 404.1520(c), 9 416.920(c). If the claimant’s impairment does not satisfy this severity threshold, 10 11 however, the Commissioner must find that the claimant is not disabled. Id. At step three, the Commissioner compares the claimant’s impairment to 12 several impairments recognized by the Commissioner to be so severe as to 13 preclude a person from engaging in substantial gainful activity. 20 C.F.R. §§ 14 404.1520(a)(4)(iii), 416.920(a)(4)(iii). If the impairment is as severe or more 15 severe than one of the enumerated impairments, the Commissioner must find the 16 claimant disabled and award benefits. 20 C.F.R. §§ 404.1520(d), 416.920(d). 17 If the severity of the claimant’s impairment does meet or exceed the severity 18 of the enumerated impairments, the Commissioner must pause to assess the 19 claimant’s “residual functional capacity.” Residual functional capacity (“RFC”), 20 defined generally as the claimant’s ability to perform physical and mental work ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 4 1 activities on a sustained basis despite his or her limitations (20 C.F.R. §§ 2 404.1545(a)(1), 416.945(a)(1)), is relevant to both the fourth and fifth steps of the 3 analysis. 4 At step four, the Commissioner considers whether, in view of the claimant’s 5 RFC, the claimant is capable of performing work that he or she has performed in 6 the past (“past relevant work”). 20 C.F.R. §§ 404.1520(a)(4)(iv), 7 416.920(a)(4)(iv). If the claimant is capable of performing past relevant work, the 8 Commissioner must find that the claimant is not disabled. 20 C.F.R. §§ 9 404.1520(f), 416.920(f). If the claimant is incapable of performing such work, the 10 11 analysis proceeds to step five. At step five, the Commissioner considers whether, in view of the claimant’s 12 RFC, the claimant is capable of performing other work in the national economy. 13 20 C.F.R. §§ 404.1520(a)(4)(v), 416.920(a)(4)(v). In making this determination, 14 the Commissioner must also consider vocational factors such as the claimant’s age, 15 education and work experience. Id. If the claimant is capable of adjusting to other 16 work, the Commissioner must find that the claimant is not disabled. 20 C.F.R. §§ 17 404.1520(g)(1), 416.920(g)(1). If the claimant is not capable of adjusting to other 18 work, the analysis concludes with a finding that the claimant is disabled and is 19 therefore entitled to benefits. Id. 20 ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 5 1 The claimant bears the burden of proof at steps one through four above. 2 Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999). If the analysis proceeds to 3 step five, the burden shifts to the Commissioner to establish that (1) the claimant is 4 capable of performing other work; and (2) such work “exists in significant 5 numbers in the national economy.” 20 C.F.R. §§ 404.1560(c)(2), 416.960(c)(2); 6 Beltran v. Astrue, 700 F.3d 386, 389 (9th Cir. 2012). 7 ALJ’S FINDINGS 8 On January 6, 2016, Plaintiff filed applications for Title II disability 9 insurance benefits and Title XVI supplemental security income benefits, alleging 10 an amended onset date of August 1, 2014. Tr. 45, 261-67.1 The applications were 11 denied initially, Tr. 174-82, and on reconsideration, Tr. 186-98. Plaintiff appeared 12 at a hearing before an administrative law judge (“ALJ”) on January 30, 2018. Tr. 13 41-77. On May 9, 2018, the ALJ denied Plaintiff’s claim. Tr. 17-39. 14 As a preliminary matter, the ALJ found Plaintiff met the insured status 15 requirements of the Social Security Act through December 31, 2017. Tr. 23. At 16 step one, the ALJ found Plaintiff had not engaged in substantial gainful activity 17 since August 1, 2014, the amended alleged onset date. Id. At step two, the ALJ 18 19 20 1 Plaintiff filed a prior application for benefits, which alleged an amended onset date of April 18, 2012 and was denied on October 24, 2013. Tr. 81-96. ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 6 1 found Plaintiff had the following severe impairments: chronic obstructive 2 pulmonary disorder (COPD), cervical and lumbar degenerative disc disease with 3 stenosis, bipolar disorder, and posttraumatic stress disorder (PTSD). Id. At step 4 three, the ALJ found Plaintiff did not have an impairment or combination of 5 impairments that meets or medically equals the severity of a listed impairment. Tr. 6 24. The ALJ then found Plaintiff had the RFC to perform work with the following 7 limitations: 8 9 10 11 12 [Plaintiff] has the residual functional capacity to lift and/or carry 20 pounds occasionally and 10 pounds frequently, sit about 6 hours, and stand and/or walk about 6 hours in an 8-hour day with regular breaks. He has the unlimited ability to push and/or pull within those exertional limits. He can occasionally climb ramps and stairs, but never climb ladders, ropes, or scaffolds. He can occasionally balance, stoop, kneel, crouch, and crawl. He should avoid concentrated exposure to extreme cold, vibration, hazards, and fumes, odors, dusts, gases and poor ventilation. He can understand, remember and carry out simple and routine tasks and have occasional brief superficial contact with coworkers and the general public. 13 14 15 Tr. 26. At step four, the ALJ found Plaintiff was unable to perform any past relevant 16 work. Tr. 32. At step five, the ALJ found that, considering Plaintiff’s age, 17 education, work experience, RFC, and testimony from a vocational expert, there 18 were other jobs that existed in significant numbers in the national economy that 19 Plaintiff could perform, such as production assembler, inspector hand packager, 20 and machine feeder. Tr. 33, 35. The ALJ concluded that Plaintiff was not under a ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 7 1 disability, as defined in the Social Security Act, from August 1, 2014 through May 2 9, 2018, the date of the ALJ’s decision. Tr. 35. 3 On March 8, 2019, the Appeals Council denied review, Tr. 1-7, making the 4 ALJ’s decision the Commissioner’s final decision for the purposes of judicial 5 review. See 20 C.F.R. §§ 404.981, 416.1484, and 422.210. 6 7 ISSUES Plaintiff seeks judicial review of the Commissioner’s final decision denying 8 him disability insurance benefits under Title II and supplemental security income 9 benefits under Title XVI of the Social Security Act. Plaintiff raises the following 10 issues for this Court’s review: 11 1. Whether the ALJ properly weighed Plaintiff’s symptom testimony; and 12 2. Whether the ALJ properly weighed the medical opinion evidence. 13 14 15 16 17 18 ECF No. 11 at 2. DISCUSSION A. Plaintiff’s Symptom Testimony Plaintiff contends the ALJ failed to rely on clear and convincing reasons to discredit his symptom testimony. ECF No. 11 at 4-15. An ALJ engages in a two-step analysis to determine whether to discount a 19 claimant’s testimony regarding subjective symptoms. SSR 16-3p, 2016 WL 20 1119029, at *2. “First, the ALJ must determine whether there is ‘objective ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 8 1 medical evidence of an underlying impairment which could reasonably be 2 expected to produce the pain or other symptoms alleged.’” Molina, 674 F.3d at 3 1112 (quoting Vasquez v. Astrue, 572 F.3d 586, 591 (9th Cir. 2009)). “The 4 claimant is not required to show that [the claimant’s] impairment ‘could reasonably 5 be expected to cause the severity of the symptom [the claimant] has alleged; [the 6 claimant] need only show that it could reasonably have caused some degree of the 7 symptom.’” Vasquez, 572 F.3d at 591 (quoting Lingenfelter v. Astrue, 504 F.3d 8 1028, 1035-36 (9th Cir. 2007)). 9 Second, “[i]f the claimant meets the first test and there is no evidence of 10 malingering, the ALJ can only reject the claimant’s testimony about the severity of 11 the symptoms if [the ALJ] gives ‘specific, clear and convincing reasons’ for the 12 rejection.” Ghanim v. Colvin, 763 F.3d 1154, 1163 (9th Cir. 2014) (citations 13 omitted). General findings are insufficient; rather, the ALJ must identify what 14 symptom claims are being discounted and what evidence undermines these claims. 15 Id. (quoting Lester v. Chater, 81 F.3d 821, 834 (9th Cir. 1995)); Thomas v. 16 Barnhart, 278 F.3d 947, 958 (9th Cir. 2002) (requiring the ALJ to sufficiently 17 explain why he or she discounted claimant’s symptom claims). “The clear and 18 convincing [evidence] standard is the most demanding required in Social Security 19 cases.” Garrison v. Colvin, 759 F.3d 995, 1015 (9th Cir. 2014) (quoting Moore v. 20 Comm’r of Soc. Sec. Admin., 278 F.3d 920, 924 (9th Cir. 2002)). ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 9 1 Factors to be considered in evaluating the intensity, persistence, and limiting 2 effects of a claimant’s symptoms include: (1) daily activities; (2) the location, 3 duration, frequency, and intensity of pain or other symptoms; (3) factors that 4 precipitate and aggravate the symptoms; (4) the type, dosage, effectiveness, and 5 side effects of any medication an individual takes or has taken to alleviate pain or 6 other symptoms; (5) treatment, other than medication, an individual receives or has 7 received for relief of pain or other symptoms; (6) any measures other than 8 treatment an individual uses or has used to relieve pain or other symptoms; and (7) 9 any other factors concerning an individual’s functional limitations and restrictions 10 due to pain or other symptoms. SSR 16-3p, 2016 WL 1119029, at *7-*8; 20 11 C.F.R. §§ 404.1529(c), 416.929(c). The ALJ is instructed to “consider all of the 12 evidence in an individual’s record,” “to determine how symptoms limit ability to 13 perform work-related activities.” SSR 16-3p, 2016 WL 1119029, at *2. 14 The ALJ found Plaintiff’s impairments could reasonably be expected to 15 cause the alleged symptoms; however, Plaintiff’s statements concerning the 16 intensity, persistence, and limiting effects of those symptoms were not entirely 17 consistent with the evidence. Tr. 25. 18 1. Inconsistent Medical Evidence 19 The ALJ found Plaintiff’s symptom reporting was inconsistent with the 20 medical evidence in the record. Tr. 27-30. An ALJ may not discredit a claimant’s ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 10 1 symptom testimony and deny benefits solely because the degree of the symptoms 2 alleged is not supported by objective medical evidence. Burch v. Barnhart, 400 3 F.3d 676, 680 (9th Cir. 2005); Rollins v. Massanari, 261 F.3d 853, 857 (9th Cir. 4 2001); Bunnell v. Sullivan, 947 F.2d 341, 346-47 (9th Cir. 1991); Fair v. Bowen, 5 885 F.2d 597, 601 (9th Cir. 1989). However, the objective medical evidence is a 6 relevant factor, along with the medical source’s information about the claimant’s 7 pain or other symptoms, in determining the severity of a claimant’s symptoms and 8 their disabling effects. Rollins, 261 F.3d at 857; 20 C.F.R. §§ 404.1529(c)(2), 9 416.929(c)(2). 10 11 a. Breathing Impairments First, the ALJ found that Plaintiff’s allegations about shortness of breath and 12 needing an oxygen tank at all times were inconsistent with the objective evidence, 13 which showed normal examination findings and permission to discontinue using 14 the oxygen tank. Tr. 28; see Tr. 524 (May 30, 2014: normal lung examination; 15 Plaintiff advised he could stop using oxygen); Tr. 521 (July 1, 2014: Plaintiff’s 16 oxygen saturations “have all been greater than 90% in the past so it is unclear why 17 he was on Home O2 to begin with”); Tr. 410, 412 (January 8, 2015: diminished 18 breath sounds, no wheezing, oxygen at 97%, good lung function observed); Tr. 479 19 (January 20, 2015: breathing unlabored, no wheezing or crackles, oxygen at 96% 20 on room air); Tr. 509 (March 26, 2015: decreased breath sounds, no wheezing or ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 11 1 crackles); Tr. 507 (April 30, 2015: no wheezing or crackles); Tr. 504-05 (August 2 17, 2015: breathing unlabored, no wheezing or crackles, oxygen at 95% on room 3 air); Tr. 501-02 (November 6, 2015: same); Tr. 499 (February 18, 2016: breathing 4 unlabored, no wheezing or crackles); Tr. 497 (February 19, 2016: breathing 5 unlabored, no wheezing or crackles, oxygen at 94% on room air); Tr. 900 (January 6 27, 2017: oxygen at 96% on room air); Tr. 881 (July 7, 2017: breathing unlabored, 7 mild wheezing, oxygen at 95% on room air); Tr. 874 (August 4, 2017: breathing 8 unlabored with mild wheezing). The ALJ reasonably concluded that this evidence 9 did not support the significant limitations Plaintiff alleged. This finding is 10 11 12 supported by substantial evidence. b. Back Pain Second, the ALJ found that Plaintiff’s testimony about severe back, neck, 13 and limb pain were not supported by the objective imaging and physical 14 examination evidence, which the ALJ found showed more moderate findings. Tr. 15 27; see Tr. 429 (June 19, 2014: intact motor in lower extremities, normal deep 16 tendon reflexes, able to walk on toes but not on heels); Tr. 425 (September 4, 17 2014: normal reflexes in knees and ankles and bilateral lower extremities motor 18 intact); Tr. 384-85 (November 5, 2014: CT imaging showed disc herniations that 19 “could be” significant for nerve root impingement but did not correlate to 20 Plaintiff’s complaints, mild central canal stenoses, and severe right foraminal ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 12 1 stenosis potentially significant for right-sided radiculopathy); Tr. 383 (November 2 11, 2014: physical examination showed poor range of motion in lower back but 3 normal gait, ability to heel/toe walk, full strength in lower extremities, normal 4 reflexes, and negative straight leg raise); Tr. 417-18 (November 13, 2014: negative 5 straight leg raise bilaterally); Tr. 414-15 (December 11, 2014: positive Faber test 6 on the right but negative straight leg raise bilaterally and able to do full squat from 7 standing position); Tr. 941 (April 4, 2017: Plaintiff ambulated without assistance); 8 Tr. 933 (May 30, 2017: Plaintiff ambulated without assistance, hip range of motion 9 intact, lower extremities motor intact); Tr. 929 (July 25, 2017: Plaintiff ambulated 10 without assistance, cervical range of motion severely restricted); Tr. 921 11 (September 28, 2017: Plaintiff ambulated without assistance, motor intact and full 12 strength in lower extremities); Tr. 958-59 (December 11, 2017: MRI imaging 13 showed multilevel degenerative changes demonstrating moderate stenosis, 14 moderate narrowing of neural foramen, small disc protrusion, and mild increase of 15 degenerative spondylosis of the cervical spine since 2015 imaging). The ALJ’s 16 conclusion that the evidence did not support Plaintiff’s subjective symptom 17 complaints is supported by substantial evidence. 18 In response to the ALJ’s findings, Plaintiff argues that his imaging and 19 examination results do support his symptom allegations. ECF No. 11 at 9-12; see 20 Tr. 385 (November 5, 2014: MRI showed left-sided disc herniations that could be ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 13 1 significant for nerve root impingement); Tr. 382 (October 3, 2014: positive straight 2 leg raise); Tr. 908 (October 11, 2016: Plaintiff observed constantly rocking back 3 and forth in his chair); Tr. 801 (July 28, 2017: Plaintiff exhibited slight wincing 4 because of possible acute back pain when standing from a seated position); Tr. 794 5 (September 8, 2017: same); Tr. 786 (October 17, 2017: Plaintiff exhibited rocking 6 and restlessness “possibly due to pain”); Tr. 776 (November 28, 2017: Plaintiff 7 exhibited slight rocking and restlessness “possibly due to pain and anxiety”). 8 It is the ALJ’s responsibility to resolve conflicts in the medical evidence. 9 Andrews, 53 F.3d at 1039. The Court must consider the ALJ’s decision in the 10 context of “the entire record as a whole,” and if the “evidence is susceptible to 11 more than one rational interpretation, the ALJ’s decision should be upheld.” Ryan 12 v. Comm’r of Soc. Sec., 528 F.3d 1194, 1198 (9th Cir. 2008) (internal quotation 13 marks omitted). Here, because the ALJ’s conclusion is based on a rational 14 interpretation of the evidence, the ALJ’s finding is upheld. 15 c. Mental Impairments 16 Finally, the ALJ found that Plaintiff’s allegations of significant memory loss 17 were inconsistent with the longitudinal evidence, which did not document memory 18 impairments until later 2017 and did not document severe impairments. Tr. 29-30; 19 see, e.g., Tr. 626 (August 28, 2014: mental status examination showed no obvious 20 impairment of memory of intellectual functioning); Tr. 586 (May 8, 2015: same); ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 14 1 Tr. 573 (September 25, 2015: same); Tr. 563 (February 3, 2016: same); Tr. 558 2 (April 12, 2016: same); Tr. 553 (May 18, 2016: same); Tr. 721 (July 27, 2016: 3 same); Tr. 758 (July 12, 2017: cognitive testing showed mild impairment in 4 attention, executive functions, and visuospatial skills, and moderate impairment in 5 memory). 6 Plaintiff argues that observations in the record by his medical providers 7 support Plaintiff’s allegations of severe memory loss. ECF No. 11 at 5-6; see Tr. 8 375 (Dr. Chang found inconsistencies in Plaintiff’s history and insistence that he 9 did not have a prior appointment “worrisome”); Tr. 534 (Dr. Siddiqui did not find 10 Plaintiff to be a reliable historian). Plaintiff also argues that the ALJ erred in 11 failing to discuss Plaintiff’s MOCA test results. ECF No. 11 at 6-7; see Tr. 893 12 (April 11, 2017: Plaintiff’s MOCA score indicated significant cognitive 13 impairment); Tr. 871 (October 13, 2017: MOCA score unchanged from prior test). 14 “[I]n interpreting the evidence and developing the record, the ALJ does not 15 need to ‘discuss every piece of evidence.’” Howard ex rel. Wolff v. Barnhart, 341 16 F.3d 1006, 1012 (9th Cir. 2003) (citation omitted). Even where evidence is subject 17 to more than one rational interpretation, the ALJ’s conclusion will be upheld. 18 Burch, 400 F.3d at 679. The Court will only disturb the ALJ’s findings if they are 19 not supported by substantial evidence. Hill, 698 F.3d at 1158. Although Plaintiff 20 identifies some evidence that supports Plaintiff’s symptom allegations, the ALJ’s ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 15 1 conclusion remains supported by substantial evidence. Moreover, even if the ALJ 2 erred in concluding that Plaintiff’s allegations of memory impairments were not 3 supported by the medical evidence, such error would be harmless because the 4 ALJ’s other findings about Plaintiff’s symptom allegations compared to the 5 medical evidence were supported by substantial evidence. See Carmickle v. 6 Comm’r of Soc. Sec. Admin., 533 F.3d 1155, 1162-63 (9th Cir. 2008); Molina, 674 7 F.3d at 1115 (“[S]everal of our cases have held that an ALJ’s error was harmless 8 where the ALJ provided one or more invalid reasons for disbelieving a claimant’s 9 testimony, but also provided valid reasons that were supported by the record.”); 10 Batson v. Comm’r of Soc. Sec. Admin., 359 F.3d 1190, 1197 (9th Cir. 2004) 11 (holding that any error the ALJ committed in asserting one impermissible reason 12 for claimant’s lack of credibility did not negate the validity of the ALJ’s ultimate 13 conclusion that the claimant’s testimony was not credible). Plaintiff is not entitled 14 to relief on these grounds. 15 2. Improvement with Treatment 16 The ALJ found Plaintiff’s symptom reports were inconsistent with evidence 17 documenting improvement with treatment. Tr. 27-30. The effectiveness of 18 treatment is a relevant factor in determining the severity of a claimant’s symptoms. 19 20 C.F.R. § 404.1529(c)(3), 416.929(c)(3); see Warre v. Comm’r of Soc. Sec. 20 Admin., 439 F.3d 1001, 1006 (9th Cir. 2006); Tommasetti v. Astrue, 533 F.3d ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 16 1 1035, 1040 (9th Cir. 2008) (a favorable response to treatment can undermine a 2 claimant’s complaints of debilitating pain or other severe limitations). 3 Here, the ALJ noted that Plaintiff reported improvements in his pain 4 symptoms with medication. Tr. 27; see Tr. 404 (March 4, 2015: Plaintiff reported 5 Percocet, gabapentin, and Flexeril helped keep his pain manageable); Tr. 401 6 (April 29, 2015: Plaintiff reported pain medication helped reduce his overall level 7 of pain and increase his functioning during daily activities). The ALJ also 8 observed that Plaintiff learned strategies in speech therapy that “significantly 9 improved” his immediate memory. Tr. 29; see Tr. 761. Additionally, the ALJ 10 found that Plaintiff repeatedly reported improvement in anxiety, depression, and 11 nightmares when compliant with medication and treatment. Tr. 29-30; see Tr. 625 12 (August 28, 2014: Plaintiff reported decreased nightmares with Prazosin); Tr. 608 13 (January 22, 2015: Plaintiff’s anxiety starting to resolve as Plaintiff decreases his 14 isolation); Tr. 585 (May 8, 2015: Plaintiff reported trauma therapy, coping skills, 15 and improved sleep hygiene improved his mental health symptoms and decreased 16 nightmares with Prazosin); Tr. 567 (December 1, 2015: Plaintiff reported 17 improvements in mental health symptoms after starting Latuda); Tr. 562 (February 18 3, 2016: Plaintiff’s wife reported a “big change” in Plaintiff’s symptoms since 19 starting Latuda); Tr. 552 (May 18, 2016: Plaintiff reported doing “quite a bit 20 better” after increasing his dose of Latuda). Relatedly, the ALJ noted that ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 17 1 Plaintiff’s symptoms worsened at times when he was not compliant with 2 medication. Tr. 29; see Tr. 597 (February 24, 2015: Plaintiff reported worse sleep 3 and nightmares and was not taking his increased dose of Prazosin); Tr. 510 (March 4 11, 2015: Plaintiff reported increased suicidal ideation, hearing voices, and 5 unwanted thoughts and feelings at a time when he was unable to take medications 6 or see his therapist). Plaintiff contends that the ALJ improperly relied on isolated 7 instances of improvement among cycles of improvement and decompensation, but 8 he fails to identify evidence in the record to support this argument. ECF No. 11 at 9 13-14. The ALJ reasonably concluded that Plaintiff’s record of improvement with 10 treatment was inconsistent with his symptom allegations. This finding is supported 11 by substantial evidence. 12 3. Treatment Gap 13 The ALJ found Plaintiff’s symptom reports were inconsistent with the 14 significant gap Plaintiff experienced in his treatment. Tr. 27-28. An unexplained, 15 or inadequately explained, failure to seek treatment or follow a prescribed course 16 of treatment may be considered when evaluating the claimant’s subjective 17 symptoms. Orn v. Astrue, 495 F.3d 625, 638 (9th Cir. 2007). And evidence of a 18 claimant’s self-limitation and lack of motivation to seek treatment are appropriate 19 considerations in determining the credibility of a claimant’s subjective symptom 20 ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 18 1 reports. Osenbrock v. Apfel, 240 F.3d 1157, 1166 (9th Cir. 2001); see also Bell- 2 Shier v. Astrue, 312 F. App’x 45, 49 (9th Cir. 2009) (unpublished opinion). 3 Here, the ALJ noted that Plaintiff stopped pursuing pain management 4 treatment between October 2015 and December 2017 after Plaintiff was 5 discontinued from opioid therapy due to marijuana use and other risk factors. Tr. 6 27; see Tr. 392 (October 7, 2015: repeat urine tests indicated active regular 7 marijuana use); Tr. 863 (December 12, 2017: noting Plaintiff was discontinued on 8 chronic opioid therapy in 2015 due to marijuana use and overall high risk factors; 9 Plaintiff left the pain clinic in 2015 to pursue treating his pain with marijuana). 10 During this pain clinic treatment gap, Plaintiff sought treatment elsewhere for other 11 diagnoses but largely went without pain treatment. Tr. 27; see Tr. 492-93, 870. 12 The ALJ reasonably concluded that this failure to pursue pain treatment for an 13 extended period was inconsistent with Plaintiff’s allegations of severely limiting 14 back pain. This finding is supported by substantial evidence. 15 4. Inconsistent Statements 16 The ALJ found Plaintiff’s symptom reports were less credible because 17 Plaintiff inconsistently reported his oxygen use. Tr. 28. In evaluating a claimant’s 18 symptom claims, an ALJ may consider the consistency of an individual’s own 19 statements made in connection with the disability-review process with any other 20 existing statements or conduct under other circumstances. Smolen v. Chater, 80 ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 19 1 F.3d 1273, 1284 (9th Cir. 1996) (The ALJ may consider “ordinary techniques of 2 credibility evaluation,” such as reputation for lying, prior inconsistent statements 3 concerning symptoms, and other testimony that “appears less than candid.”). Here, 4 the ALJ noted that despite Plaintiff’s hearing testimony that he used oxygen at all 5 times, Plaintiff reported at other times that he was not using oxygen all of the time. 6 Tr. 28; compare Tr. 60-61 (Plaintiff testified that he used oxygen at all times for 7 the last four years) with Tr. 523-24 (May 30, 2014: Plaintiff reported using oxygen 8 as needed; Plaintiff advised he can discontinue oxygen use and use as needed); Tr. 9 902 (January 24, 2017: Plaintiff reported using oxygen all night and sometimes 10 during the day); Tr. 897 (March 14, 2017: Plaintiff reported using home oxygen 11 85% of the time). The ALJ reasonably concluded that Plaintiff’s inconsistently 12 reported oxygen use undermined the credibility of Plaintiff’s subjective symptom 13 reporting. This finding is supported by substantial evidence. 14 5. Daily Activities 15 The ALJ found Plaintiff’s daily activities were inconsistent with specific 16 limitations Plaintiff alleged. Tr. 30. The ALJ may consider a claimant’s activities 17 that undermine reported symptoms. Rollins, 261 F.3d at 857. If a claimant can 18 spend a substantial part of the day engaged in pursuits involving the performance 19 of exertional or non-exertional functions, the ALJ may find these activities 20 inconsistent with the reported disabling symptoms. Fair, 885 F.2d at 603; Molina, ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 20 1 674 F.3d at 1113. “While a claimant need not vegetate in a dark room in order to 2 be eligible for benefits, the ALJ may discount a claimant’s symptom claims when 3 the claimant reports participation in everyday activities indicating capacities that 4 are transferable to a work setting” or when activities “contradict claims of a totally 5 debilitating impairment.” Molina, 674 F.3d at 1112-13. 6 Here, the ALJ noted that although Plaintiff reported doing minimal 7 household activities, Plaintiff reported at other times that his wife was “totally 8 disabled” so all household activities fell to him. Tr. 30; compare Tr. 326-29 with 9 Tr. 411, 449. Although Plaintiff alleged that he struggled to be around others, 10 Plaintiff also reported volunteering at his children’s school. Tr. 30; compare Tr. 11 53-54, 290 with Tr. 629. While Plaintiff testified at the hearing that his 12 impairments and medications caused him to stop driving three years ago, the 13 record indicated Plaintiff was driving as recently as one month prior to the hearing. 14 Tr. 30; compare Tr. 65 with Tr. 862. The ALJ reasonably concluded that 15 Plaintiff’s activities were inconsistent with the specific limitations he alleged. 16 Molina, 674 F.3d at 1113. This finding is supported by substantial evidence. 17 6. Situational Stressors 18 The ALJ found Plaintiff’s symptom reports were less credible because 19 Plaintiff’s mental impairments were partially attributable to situational stressors. 20 Tr. 29-30. An ALJ may reasonably find a claimant’s symptom testimony less ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 21 1 credible where the evidence “squarely support[s]” a finding that the claimant’s 2 impairments are attributable to situational stressors rather than impairments. 3 Wright v. Colvin, No. 13-CV-3068-TOR, 2014 WL 3729142, at *5 (E.D. Wash. 4 July 25, 2014) (“Plaintiff testified that she would likely be able to maintain full- 5 time employment but for the ‘overwhelming’ stress caused by caring for her family 6 members.”). However, “because mental health conditions may presumably cause 7 strained personal relations or other life stressors, the Court is not inclined to opine 8 that one has caused the other based only on the fact that they occur 9 simultaneously.” Brendan J. G. v. Comm’r, Soc. Sec. Admin., No. 6:17-CV-742- 10 SI, 2018 WL 3090200, at *7 (D. Or. June 20, 2018) (emphasis in original). Here, 11 the ALJ noted that reports in the record indicated that the severity of Plaintiff’s 12 mental health symptoms was increased by situational factors, including 13 environment and family relationships. Tr. 29. The ALJ did not identify any 14 evidence to indicate that Plaintiff’s symptoms were attributable to these situational 15 stressors rather than his impairments. Id. Because the Court cannot determine 16 causation between Plaintiff’s mental impairments and situational stressors based on 17 this record, this finding is not supported by substantial evidence. However, the 18 ALJ’s error is harmless because the ALJ provided several other clear and 19 convincing reasons, supported by substantial evidence, to discredit Plaintiff’s 20 subjective symptom testimony. Molina, 674 F.3d at 1115 (“[S]everal of our cases ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 22 1 have held that an ALJ’s error was harmless where the ALJ provided one or more 2 invalid reasons for disbelieving a claimant’s testimony, but also provided valid 3 reasons that were supported by the record.”). Plaintiff is not entitled to relief on 4 these grounds. 5 6 B. Medical Opinion Evidence Plaintiff challenges the ALJ’s evaluation of the medical opinions of Bruce 7 Eather, Ph.D.; Eugene Kester, M.D.; Faisal Siddiqui, M.D.; and Shilpa Muddasani, 8 M.D. Tr. 15-20. 9 There are three types of physicians: “(1) those who treat the claimant 10 (treating physicians); (2) those who examine but do not treat the claimant 11 (examining physicians); and (3) those who neither examine nor treat the claimant 12 [but who review the claimant's file] (nonexamining [or reviewing] physicians).” 13 Holohan v. Massanari, 246 F.3d 1195, 1201-02 (9th Cir. 2001) (citations omitted). 14 Generally, the opinion of a treating physician carries more weight than the opinion 15 of an examining physician, and the opinion of an examining physician carries more 16 weight than the opinion of a reviewing physician. Id. In addition, the 17 Commissioner’s regulations give more weight to opinions that are explained than 18 to opinions that are not, and to the opinions of specialists on matters relating to 19 their area of expertise over the opinions of non-specialists. Id. (citations omitted). 20 ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 23 1 If a treating or examining physician’s opinion is uncontradicted, an ALJ may 2 reject it only by offering “clear and convincing reasons that are supported by 3 substantial evidence.” Bayliss v. Barnhart, 427 F.3d 1211, 1216 (9th Cir. 2005). 4 “However, the ALJ need not accept the opinion of any physician, including a 5 treating physician, if that opinion is brief, conclusory and inadequately supported 6 by clinical findings.” Bray v. Comm’r of Soc. Sec. Admin., 554 F.3d 1219, 1228 7 (9th Cir. 2009) (internal quotation marks and brackets omitted). “If a treating or 8 examining doctor’s opinion is contradicted by another doctor’s opinion, an ALJ 9 may only reject it by providing specific and legitimate reasons that are supported 10 by substantial evidence.” Id. (citing Lester, 81 F.3d at 830-831). The opinion of a 11 nonexamining physician may serve as substantial evidence if it is supported by 12 other independent evidence in the record. Andrews v. Shalala, 53 F.3d 1035, 1041 13 (9th Cir. 1995). 14 1. Dr. Eather and Dr. Kester 15 Dr. Eather reviewed the record on June 30, 2016, and opined Plaintiff was 16 moderately limited in his ability to understand and remember detailed instructions; 17 that Plaintiff would not have issues with simple, routine tasks but more fast paced 18 work would need to be given more time to adjust to; that Plaintiff was moderately 19 limited in his ability to carry out detailed instructions; that Plaintiff was moderately 20 limited in his ability to maintain attention and concentration for extended periods; ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 24 1 that Plaintiff was moderately limited in his ability to perform activities within a 2 schedule, maintain regular attendance, and be punctual within customary 3 tolerances; that Plaintiff was moderately limited in his ability to work in 4 coordination with or in proximity to others without being distracted by them; that 5 Plaintiff was moderately limited in his ability to complete a normal workday and 6 workweek without interruptions from psychologically based symptoms and to 7 perform at a consistent pace without an unreasonable number and length of rest 8 periods; that Plaintiff’s concentration, persistence, and pace would be diminished 9 due to elevated anxiety and PTSD symptoms; that Plaintiff was moderately limited 10 in his ability to interact appropriately with the general public; that Plaintiff was 11 moderately limited in his ability to accept instructions and respond appropriately to 12 criticism from supervisors; that Plaintiff was moderately limited in his ability to 13 get along with coworkers or peers without distracting them or exhibiting 14 behavioral extremes; and that Plaintiff would need to have superficial contact with 15 the general public and with co-workers but would do well with supervisors who are 16 not critical. Tr. 113-15. 17 Dr. Kester reviewed the record on October 4, 2016, opined the same 18 functional limitations as Dr. Eather opined, and further opined that Plaintiff was 19 capable of carrying out simple, routine tasks in a work environment that only 20 requires occasional coworker contact, and that Plaintiff would experience ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 25 1 intermittent interruption of concentration, persistence, and pace due to 2 psychological symptoms, but that Plaintiff could complete a normal workweek 3 with customary breaks. Tr. 147-49. 4 The ALJ gave great weight to both opinions, although the ALJ gave greater 5 weight to Dr. Kester’s opinion over Dr. Eather’s opinion. Tr. 32. Plaintiff 6 challenges the ALJ’s evaluation of these opinions, arguing that they should have 7 been given less weight because both opinions were rendered before other evidence 8 of Plaintiff’s mental impairments became part of the record. ECF No. 11 at 15-16. 9 Plaintiff essentially invites this Court to reweigh the evidence. The Court “may 10 neither reweigh the evidence nor substitute its judgment for that of the 11 Commissioner.” Blacktongue v. Berryhill, 229 F. Supp. 3d 1216, 1218 (W.D. 12 Wash. 2017) (citing Thomas, 278 F.3d at 954); see also Tommasetti, 533 F.3d at 13 1038 (“[W]hen the evidence is susceptible to more than one rational interpretation” 14 the court will not reverse the ALJ’s decision). The Court may not reverse the 15 ALJ’s decision based on Plaintiff’s disagreement with the ALJ’s interpretation of 16 the record. 17 Plaintiff also argues that the ALJ had a duty to further develop the record on 18 Plaintiff’s cognitive functioning and that the ALJ did not have the expertise to 19 translate the medical evidence into functional terms. ECF No. 11 at 16 (citing 20 Nguyen v. Chater, 172 F.3d 31, 35 (1st Cir. 1999); Schmidt v. Sullivan, 914 F.2d ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 26 1 117, 118 (7th Cir. 1990)). Plaintiff’s argument is contrary to this circuit’s case 2 law, which instructs that “the ALJ is responsible for translating and incorporating 3 clinical findings into a succinct RFC.” Rounds v. Comm’r Soc. Sec. Admin., 807 4 F.3d 996, 1006 (9th Cir. 2015). Additionally, the ALJ’s duty to develop the record 5 is triggered by ambiguous evidence or the ALJ’s own finding that the record is 6 “inadequate to allow for proper evaluation of the evidence.” Tonapetyan v. Halter, 7 242 F.3d 1144, 1150 (9th Cir. 2001). The ALJ did not make a finding that the 8 record was inadequate, and Plaintiff fails to identify how the challenged evidence 9 presents an ambiguity. ECF No. 11 at 16. The ALJ’s evaluation of the reviewing 10 sources’ opinions is supported by substantial evidence. 11 2. Dr. Siddiqui 12 Dr. Siddiqui, a treating provider, opined on January 8, 2015 2 that Plaintiff’s 13 diagnoses included lumbar disc herniation with mild central canal stenosis, COPD, 14 schizoaffective disorder, and PTSD; that Plaintiff was limited in his ability to lift 15 heavy objects, stand or sit for long periods of time, bend over, reach above, 16 concentrate for extended periods of time, and interact with people; that Plaintiff 17 was unable to participate in work; that Plaintiff was unable to lift at least 2 pounds 18 or unable to stand or walk; and that Plaintiff’s condition limited his ability to work, 19 20 2 Dr. Siddiqui incorrectly dated the from as January 8, 2014. Tr. 390. ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 27 1 look for work, or train to work. Tr. 388-90. The ALJ gave this opinion little 2 weight. Tr. 31. Because Dr. Siddiqui’s opinion was contradicted by Dr. Martin, 3 Tr. 111-13, and Dr. Irwin, Tr. 145-47, the ALJ was required to provide specific 4 and legitimate reasons for rejecting Dr. Siddiqui’s opinion. Bayliss, 427 F.3d at 5 1216. 6 First, the ALJ found that Dr. Siddiqui’s opinion was entitled to less weight 7 because it was inconsistent with his contemporaneous examination. Tr. 31. A 8 physician’s opinion may be rejected if it is unsupported by the physician’s 9 treatment notes. See Connett v. Barnhart, 340 F.3d 871, 875 (9th Cir. 2003). 10 Here, the ALJ found that Dr. Siddiqui’s severe limitations were inconsistent with 11 his physical examination of Plaintiff, showing breathing without wheezing or 12 crackles, no acute distress, and oxygen saturation at 96% on room air. Tr. 31; see 13 Tr. 479. During this examination Plaintiff also disclosed that he only used his 14 albuterol inhaler after smoking and that he only used his oxygen tank as needed. 15 Tr. 478. The ALJ reasonably concluded that this physical examination evidence 16 was inconsistent with the significant limitations Dr. Siddiqui opined, such as being 17 unable to lift 2 pounds or stand or walk. Tr. 31. This finding is supported by 18 substantial evidence. 19 20 Second, the ALJ also found that Dr. Siddiqui’s opinion was entitled to less weight because it was inconsistent with Plaintiff’s other physical examinations. ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 28 1 Tr. 31. Relevant factors to evaluating any medical opinion include the amount of 2 relevant evidence that supports the opinion, the quality of the explanation provided 3 in the opinion, and the consistency of the medical opinion with the record as a 4 whole. Lingenfelter, 504 F.3d at 1042; Orn, 495 F.3d at 631. Here, the ALJ found 5 that Dr. Siddiqui’s significant opined limitations were inconsistent with other 6 physical examinations that showed less severe respiratory symptoms and measures 7 of back pain limitations in the record. Tr. 31; see Tr. 479 (January 20, 2015: 8 breathing unlabored, no wheezing or crackles, oxygen at 96% on room air); Tr. 9 509 (March 26, 2015: decreased breath sounds, no wheezing or crackles); Tr. 507 10 (April 30, 2015: no wheezing or crackles); Tr. 504-05 (August 17, 2015: breathing 11 unlabored, no wheezing or crackles, oxygen at 95% on room air); Tr. 501-02 12 (November 6, 2015: same); Tr. 499 (February 18, 2016: breathing unlabored, no 13 wheezing or crackles); Tr. 497 (February 19, 2016: breathing unlabored, no 14 wheezing or crackles, oxygen at 94% on room air); Tr. 900 (January 27, 2017: 15 oxygen at 96% on room air); Tr. 881 (July 7, 2017: breathing unlabored, mild 16 wheezing, oxygen at 95% on room air); Tr. 874 (August 4, 2017: breathing 17 unlabored with mild wheezing); see also Tr. 383 (November 11, 2014: physical 18 examination showed poor range of motion in lower back but normal gait, ability to 19 heel/toe walk, full strength in lower extremities, normal reflexes, and negative 20 straight leg raise); Tr. 417-18 (November 13, 2014: negative straight leg raise ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 29 1 bilaterally); Tr. 414-15 (December 11, 2014: positive Faber test on the right but 2 negative straight leg raise bilaterally and able to do full squat from standing 3 position); Tr. 941 (April 4, 2017: Plaintiff ambulated without assistance); Tr. 933 4 (May 30, 2017: Plaintiff ambulated without assistance, hip range of motion intact, 5 lower extremities motor intact); Tr. 929 (July 25, 2017: Plaintiff ambulated without 6 assistance, cervical range of motion severely restricted); Tr. 921 (September 28, 7 2017: Plaintiff ambulated without assistance, motor intact and full strength in 8 lower extremities). The ALJ reasonably concluded that this physical examination 9 evidence was inconsistent with the significant limitations Dr. Siddiqui opined. 10 This finding is supported by substantial evidence. 11 Third, the ALJ found that Dr. Siddiqui’s opinion on Plaintiff’s mental and 12 other physical impairments was entitled to less weight because Dr. Siddiqui was 13 only treating Plaintiff for COPD. Tr. 31. A medical provider’s specialization is a 14 relevant consideration in weighing medical opinion evidence. 20 C.F.R. §§ 15 404.1527(c)(5), 416.927(c)(5). In response to a subsequent request to complete 16 more paperwork, Dr. Siddiqui explicitly noted that he was “only managing 17 [Plaintiff’s] COPD and cannot speak for [Plaintiff’s] other diagnoses.” Tr. 509. 18 The ALJ reasonably concluded that Dr. Siddiqui was less qualified to render 19 opinions on Plaintiff’s functioning aside from those caused by COPD. This 20 finding is supported by substantial evidence. ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 30 1 3. Dr. Muddasani 2 Dr. Muddasani, a treating source, rendered three opinions in this record. On 3 October 11, 2016, Dr. Muddasani opined Plaintiff’s diagnoses included bipolar 4 depression, schizophrenia, PTSD, and chronic back pain; that Plaintiff would need 5 to lie down for 20-30 minutes at a time, 4-5 times per day; that Plaintiff could not 6 stand or sit for extended periods and needed to continuously move; that Plaintiff’s 7 diagnoses were reasonably likely to cause pain; that Plaintiff would not be able to 8 tolerate work that requires extended periods of sitting or standing; that Plaintiff 9 would miss an average of 4 or more days of work per month; that Plaintiff was 10 unable to meet the demands of full time sedentary work; and that Plaintiff was 11 limited more from his psychiatric impairments than his physical impairments. Tr. 12 725-27. 13 On November 10, 2016, Dr. Muddasani opined Plaintiff’s diagnoses 14 included COPD, PTSD, schizoaffective disorder, lumbar disc herniation at 15 multiple levels, and mild central canal stenosis; that Plaintiff’s medications caused 16 sedation and drowsiness that limited his activities; that Plaintiff’s impairments 17 were reasonably likely to cause pain; that regular work could worsen Plaintiff’s 18 disc herniation; that Plaintiff was likely to miss 4 or more days of work per month 19 due to pain; and that Plaintiff was unable to meet the demands of full time 20 sedentary work. Tr. 728-30. ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 31 1 On August 16, 2017, Dr. Muddasani opined Plaintiff’s diagnoses included 2 lumbar disc herniation, mild central canal stenosis, schizoaffective disorder, 3 anxiety and depression, severe COPD, memory impairment, and PTSD; that 4 Plaintiff’s impairments limited his ability to lift heavy objects, stand or sit for long 5 periods of time, follow instructions, bend over, concentrate for extended periods of 6 time, retain memory, make and keep appointments, use transportation, stand in 7 line, and participate in interviews; that Plaintiff was unable to participate in work; 8 that Plaintiff was unable to lift at least two pounds or unable to stand or walk; and 9 that Plaintiff’s condition was permanent and likely to limit his ability to work, look 10 for work, or train for work. Tr. 749-51. 11 The ALJ gave Dr. Muddasani’s opinions little weight. Tr. 31. Because Dr. 12 Muddasani’s opinions were contradicted by Dr. Martin, Tr. 111-13, and Dr. Irwin, 13 Tr. 145-47, the ALJ was required to provide specific and legitimate reasons for 14 rejecting Dr. Muddasani’s opinions. Bayliss, 427 F.3d at 1216. 15 First, the ALJ found Dr. Muddasani’s opinions were internally inconsistent. 16 Tr. 31. An ALJ may reject opinions that are internally inconsistent. Morgan v. 17 Comm’r of Soc. Sec. Admin., 169 F.3d 595, 603 (9th Cir. 1999). Additionally, the 18 ALJ may properly reject a medical opinion that gives no explanation for deviating 19 from the provider’s prior medical opinion. See Morgan v. Sullivan, 945 F.2d 1079, 20 1081 (9th Cir. 1991). Here, the ALJ noted that despite opining that Plaintiff’s ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 32 1 physical impairments caused significant limitations, Dr. Muddasani concluded her 2 October 2016 report by remarking that Plaintiff was more limited by his mental 3 impairments than his physical impairments. Tr. 31; see Tr. 727. Additionally, the 4 ALJ noted that despite opining in October 2016 that Plaintiff would need to lie 5 down for extended periods multiple times per day, Dr. Muddasani did not reiterate 6 this opinion in her November 2016 report when responding to the same question. 7 Tr. 31; compare Tr. 725 with Tr. 728. Dr. Muddasani’s reports do not explain why 8 she did not give the same opinion in November 2016. The ALJ reasonably 9 concluded that Dr. Muddasani’s opinions were internally inconsistent. This 10 11 finding is supported by substantial evidence. Second, the ALJ found Dr. Muddasani’s opinions were not supported by her 12 own treatment notes. Tr. 31. A physician’s opinion may be rejected if it is 13 unsupported by the physician’s treatment notes. See Connett, 340 F.3d at 875. 14 Here, the ALJ noted that Dr. Muddasani’s contemporaneous treatment notes do not 15 document physical findings that indicate Plaintiff would need to lie down during 16 the day. Tr. 31; see Tr. 874-75 (August 4, 2017: no musculoskeletal examination 17 findings); Tr. 908-09 (October 11, 2016: Plaintiff observed rocking in chair, which 18 he states distracts from his pain; Dr. Muddasani notes his disability appears to be 19 more psychiatric than physical). The ALJ reasonably concluded that Dr. 20 ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 33 1 Muddasani’s opinions were not supported by her treatment notes. This finding is 2 supported by substantial evidence. 3 Third, the ALJ found Dr. Muddasani’s opinions reflected Plaintiff’s 4 functioning without treatment. Tr. 31. The fact that a claimant fails to pursue 5 treatment is not directly relevant to the weight of a medical provider’s opinion. 6 See 20 C.F.R. §§ 404.1527(c), 416.927(c). However, the consistency of a medical 7 opinion with the record as a whole is a relevant factor in evaluating a medical 8 opinion. Lingenfelter, 504 F.3d at 1042; Orn, 495 F.3d at 631. As discussed 9 supra, the ALJ observed Plaintiff experienced improvement when compliant with 10 treatment. See, e.g., Tr. 404 (March 4, 2015: Plaintiff reported Percocet, 11 gabapentin, and Flexeril helped keep his pain manageable); Tr. 401 (April 29, 12 2015: Plaintiff reported pain medication helped reduce his overall level of pain and 13 increase his functioning during daily activities). While Dr. Muddasani’s opinions 14 were rendered in 2016 and 2017, the ALJ noted that Plaintiff stopped opioid 15 therapy in 2015. Tr. 31; see Tr. 906. The ALJ reasonably concluded Dr. 16 Muddasani’s opinions were entitled to less weight because they reflected 17 Plaintiff’s functioning without the benefit of treatment. This finding is supported 18 by substantial evidence. 19 // 20 // ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 34 1 CONCLUSION 2 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. 11) is DENIED. 6 2. Defendant’s Motion for Summary Judgment (ECF No. 12) is 7 8 9 10 GRANTED. The District Court Executive is directed to enter this Order, enter judgment accordingly, furnish copies to counsel, and close the file. DATED December 11, 2019. 11 12 THOMAS O. RICE Chief United States District Judge 13 14 15 16 17 18 19 20 ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 35

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