Kilwien v. Saul, No. 1:2019cv03200 - Document 19 (E.D. Wash. 2020)

Court Description: ORDER DENYING PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT (ECF No. 16 ) AND GRANTING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT (ECF No. 17 ). File closed. Signed by Magistrate Judge Mary K. Dimke. (PH, Case Administrator)

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Kilwien v. Saul Doc. 19 Case 1:19-cv-03200-MKD ECF No. 19 filed 04/22/20 PageID.627 Page 1 of 36 1 2 3 FILED IN THE U.S. DISTRICT COURT EASTERN DISTRICT OF WASHINGTON 4 Apr 22, 2020 SEAN F. MCAVOY, CLERK 5 UNITED STATES DISTRICT COURT 6 EASTERN DISTRICT OF WASHINGTON 7 WILLIAM K.,1 No. 1:19-cv-03200-MKD Plaintiff, 8 vs. 9 ANDREW M. SAUL, 10 COMMISSIONER OF SOCIAL SECURITY, 11 Defendant. ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ECF Nos. 16, 17 12 13 Before the Court are the parties’ cross-motions for summary judgment. ECF 14 Nos. 16, 17. The parties consented to proceed before a magistrate judge. ECF No. 15 6. The Court, having reviewed the administrative record and the parties’ briefing, 16 17 18 1 To protect the privacy of plaintiffs in social security cases, the undersigned 19 identifies them by only their first names and the initial of their last names. See 20 LCivR 5.2(c). 2 ORDER - 1 Dockets.Justia.com Case 1:19-cv-03200-MKD ECF No. 19 filed 04/22/20 PageID.628 Page 2 of 36 1 is fully informed. For the reasons discussed below, the Court denies Plaintiff’s 2 motion, ECF No. 16, and grants Defendant’s motion, ECF No. 17. 3 4 JURISDICTION The Court has jurisdiction over this case pursuant to 42 U.S.C. § 1383(c)(3). 5 6 STANDARD OF REVIEW A district court’s review of a final decision of the Commissioner of Social 7 Security is governed by 42 U.S.C. § 405(g). The scope of review under § 405(g) is 8 limited; the Commissioner’s decision will be disturbed “only if it is not supported 9 by substantial evidence or is based on legal error.” Hill v. Astrue, 698 F.3d 1153, 10 1158 (9th Cir. 2012). “Substantial evidence” means “relevant evidence that a 11 reasonable mind might accept as adequate to support a conclusion.” Id. at 1159 12 (quotation and citation omitted). Stated differently, substantial evidence equates to 13 “more than a mere scintilla[,] but less than a preponderance.” Id. (quotation and 14 citation omitted). In determining whether the standard has been satisfied, a 15 reviewing court must consider the entire record as a whole rather than searching 16 for supporting evidence in isolation. Id. 17 In reviewing a denial of benefits, a district court may not substitute its 18 judgment for that of the Commissioner. Edlund v. Massanari, 253 F.3d 1152, 19 1156 (9th Cir. 2001). If the evidence in the record “is susceptible to more than one 20 rational interpretation, [the court] must uphold the ALJ’s findings if they are 2 ORDER - 2 Case 1:19-cv-03200-MKD ECF No. 19 filed 04/22/20 PageID.629 Page 3 of 36 1 supported by inferences reasonably drawn from the record.” Molina v. Astrue, 674 2 F.3d 1104, 1111 (9th Cir. 2012). Further, a district court “may not reverse an 3 ALJ’s decision on account of an error that is harmless.” Id. An error is harmless 4 “where it is inconsequential to the [ALJ’s] ultimate nondisability determination.” 5 Id. at 1115 (quotation and citation omitted). The party appealing the ALJ’s 6 decision generally bears the burden of establishing that it was harmed. Shinseki v. 7 Sanders, 556 U.S. 396, 409-10 (2009). 8 9 FIVE-STEP EVALUATION PROCESS A claimant must satisfy two conditions to be considered “disabled” within 10 the meaning of the Social Security Act. First, the claimant must be “unable to 11 engage in any substantial gainful activity by reason of any medically determinable 12 physical or mental impairment which can be expected to result in death or which 13 has lasted or can be expected to last for a continuous period of not less than twelve 14 months.” 42 U.S.C. § 1382c(a)(3)(A). Second, the claimant’s impairment must be 15 “of such severity that he is not only unable to do his previous work[,] but cannot, 16 considering his age, education, and work experience, engage in any other kind of 17 substantial gainful work which exists in the national economy.” 42 U.S.C. § 18 1382c(a)(3)(B). 19 The Commissioner has established a five-step sequential analysis to 20 determine whether a claimant satisfies the above criteria. See 20 C.F.R. § 2 ORDER - 3 Case 1:19-cv-03200-MKD ECF No. 19 filed 04/22/20 PageID.630 Page 4 of 36 1 416.920(a)(4)(i)-(v). At step one, the Commissioner considers the claimant’s work 2 activity. 20 C.F.R. § 416.920(a)(4)(i). If the claimant is engaged in “substantial 3 gainful activity,” the Commissioner must find that the claimant is not disabled. 20 4 C.F.R. § 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. § 416.920(a)(4)(ii). If the claimant suffers from 8 “any impairment or combination of impairments which significantly limits [his or 9 her] physical or mental ability to do basic work activities,” the analysis proceeds to 10 step three. 20 C.F.R. § 416.920(c). If the claimant’s impairment does not satisfy 11 this severity threshold, however, the Commissioner must find that the claimant is 12 not disabled. 20 C.F.R. § 416.920(c). 13 At step three, the Commissioner compares the claimant’s impairment to 14 severe impairments recognized by the Commissioner to be so severe as to preclude 15 a person from engaging in substantial gainful activity. 20 C.F.R. § 16 416.920(a)(4)(iii). If the impairment is as severe or more severe than one of the 17 enumerated impairments, the Commissioner must find the claimant disabled and 18 award benefits. 20 C.F.R. § 416.920(d). 19 If the severity of the claimant’s impairment does not meet or exceed the 20 severity of the enumerated impairments, the Commissioner must pause to assess 2 ORDER - 4 Case 1:19-cv-03200-MKD ECF No. 19 filed 04/22/20 PageID.631 Page 5 of 36 1 the claimant’s “residual functional capacity.” Residual functional capacity (RFC), 2 defined generally as the claimant’s ability to perform physical and mental work 3 activities on a sustained basis despite his or her limitations, 20 C.F.R. § 4 416.945(a)(1), is relevant to both the fourth and fifth steps of the analysis. 5 At step four, the Commissioner considers whether, in view of the claimant’s 6 RFC, the claimant is capable of performing work that he or she has performed in 7 the past (past relevant work). 20 C.F.R. § 416.920(a)(4)(iv). If the claimant is 8 capable of performing past relevant work, the Commissioner must find that the 9 claimant is not disabled. 20 C.F.R. § 416.920(f). If the claimant is incapable of 10 performing such work, the analysis proceeds to step five. 11 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. § 416.920(a)(4)(v). In making this determination, the Commissioner 14 must also consider vocational factors such as the claimant’s age, education and 15 past work experience. Id. If the claimant is capable of adjusting to other work, the 16 Commissioner must find that the claimant is not disabled. 20 C.F.R. § 17 416.920(g)(1). If the claimant is not capable of adjusting to other work, analysis 18 concludes with a finding that the claimant is disabled and is therefore entitled to 19 benefits. Id. 20 2 ORDER - 5 Case 1:19-cv-03200-MKD 1 ECF No. 19 filed 04/22/20 PageID.632 Page 6 of 36 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. § 416.960(c)(2); Beltran v. Astrue, 6 700 F.3d 386, 389 (9th Cir. 2012). 7 ALJ’S FINDINGS 8 On November 10, 2016, Plaintiff applied for Title XVI supplemental 9 security income benefits alleging a disability onset date of November 1, 2016.2 Tr. 10 91, 194-99. The application was denied initially, and on reconsideration. Tr. 12411 32; Tr. 136-42. Plaintiff appeared before an administrative law judge (ALJ) on 12 May 2, 2018. Tr. 31-61. On September 10, 2018, the ALJ denied Plaintiff’s 13 claim. Tr. 12-30. 14 15 16 2 Plaintiff previously filed applications for benefits in 1999, 2001 and 2009, which 17 were denied at the initial level and the Plaintiff did not pursue appeals. Tr. 65. 18 Plaintiff again filed for Title II and Title XVI benefits on January 9, 2013; that 19 application was denied by an ALJ on May 24, 2015, Tr. 62-84, and by the Appeals 20 Council on September 9, 2016, Tr. 85-90. 2 ORDER - 6 Case 1:19-cv-03200-MKD 1 ECF No. 19 filed 04/22/20 PageID.633 Page 7 of 36 At step one of the sequential evaluation process, the ALJ found Plaintiff has 2 not engaged in substantial gainful activity since November 10, 2016. Tr. 17. At 3 step two, the ALJ found that Plaintiff has the following severe impairments: 4 degenerative disc disease of the cervical spine, bipolar disorder, anxiety related 5 disorders, personality disorder, and obesity. Tr. 18. 6 At step three, the ALJ found Plaintiff does not have an impairment or 7 combination of impairments that meets or medically equals the severity of a listed 8 impairment. Id. The ALJ then concluded that Plaintiff has the RFC to perform 9 medium work with the following limitations: 10 11 12 13 14 15 16 17 [Plaintiff] can lift and/or carry up to twenty-five pounds occasionally and up to fifteen pounds frequently; stand, walk, and sit without limitation; never climb ladders, ropes, or scaffolds; occasionally crawl; and avoid concentrated exposure to vibration. [Plaintiff] can perform simple, routine tasks and follow short, simple instructions. He can do work that needs little or no judgment and can perform simple duties that can be learned on the job in a short period. He can work in proximity to coworkers, but not in a cooperative or team efforts. He requires a work environment that has no more than superficial interactions with coworkers. [Plaintiff] requires a work environment that is predictable and with few work setting changes. He would not deal with the public, as in a sales position, or where the public is encountered frequently as an essential element of the work process. Incidental contact of a superficial nature with the public is not precluded. 18 Tr. 20. 19 At step four, the ALJ found Plaintiff is unable to perform any past relevant 20 work. Tr. 24. At step five, the ALJ found that, considering Plaintiff’s age, 2 ORDER - 7 Case 1:19-cv-03200-MKD ECF No. 19 filed 04/22/20 PageID.634 Page 8 of 36 1 education, work experience, RFC, and testimony from the vocational expert, there 2 were jobs that existed in significant numbers in the national economy that Plaintiff 3 could perform, such as small products assembler, marker, and garment folder. Tr. 4 25. Therefore, the ALJ concluded Plaintiff was not under a disability, as defined in 5 the Social Security Act, from the date of the application through the date of the 6 decision. Id. 7 On August 19, 2019, the Appeals Council denied review of the ALJ’s 8 decision, Tr. 1-6, making the ALJ’s decision the Commissioner’s final decision for 9 purposes of judicial review. See 42 U.S.C. § 1383(c)(3). 10 11 ISSUES Plaintiff seeks judicial review of the Commissioner’s final decision denying 12 him supplemental security income benefits under Title XVI of the Social Security 13 Act. Plaintiff raises the following issues for review: 14 1. Whether the ALJ conducted a proper step-two analysis; 15 2. Whether the ALJ properly evaluated Plaintiff’s symptom claims; 16 3. Whether the ALJ properly evaluated the medical opinion evidence; and 17 4. Whether the ALJ properly evaluated lay witness evidence. 18 ECF No. 16 at 2. 19 20 2 ORDER - 8 Case 1:19-cv-03200-MKD 1 2 3 ECF No. 19 filed 04/22/20 PageID.635 Page 9 of 36 DISCUSSION A. Step Two Plaintiff contends the ALJ erred at step two by failing to identify his 4 peripheral neuropathy as a severe impairment. ECF No. 16 at 3-6. At step two of 5 the sequential process, the ALJ must determine whether claimant suffers from a 6 “severe” impairment, i.e., one that significantly limits her physical or mental 7 ability to do basic work activities. 20 C.F.R. § 416.920(c). 8 To establish a severe impairment, the claimant must first demonstrate that 9 the impairment results from anatomical, physiological, or psychological 10 abnormalities that can be shown by medically acceptable clinical or laboratory 11 diagnostic techniques. 20 C.F.R. § 416.921. In other words, the claimant must 12 establish the existence of the physical or mental impairment through objective 13 medical evidence (i.e., signs, laboratory findings, or both) from an acceptable 14 medical source; the medical impairment cannot be established by the claimant’s 15 statement of symptoms, a diagnosis, or a medical opinion. Id. 16 An impairment may be found to be not severe when “medical evidence 17 establishes only a slight abnormality or a combination of slight abnormalities 18 which would have no more than a minimal effect on an individual’s ability to 19 work….” Social Security Ruling (SSR) 85-28 at *3. Similarly, an impairment is 20 not severe if it does not significantly limit a claimant’s physical or mental ability to 2 ORDER - 9 Case 1:19-cv-03200-MKD ECF No. 19 filed 04/22/20 PageID.636 Page 10 of 36 1 do basic work activities; which include walking, standing, sitting, lifting, pushing, 2 pulling, reaching, carrying, or handling; seeing, hearing, and speaking; 3 understanding, carrying out and remembering simple instructions; responding 4 appropriately to supervision, coworkers and usual work situations; and dealing 5 with changes in a routine work setting. 20 C.F.R. § 416.922(a); SSR 85-28.3 6 Step two is “a de minimus screening device [used] to dispose of groundless 7 claims.” Smolen v. Chater, 80 F.3d 1273, 1290 (9th Cir. 1996). “Thus, applying 8 our normal standard of review to the requirements of step two, [the Court] must 9 determine whether the ALJ had substantial evidence to find that the medical 10 evidence clearly established that [Plaintiff] did not have a medically severe 11 impairment or combination of impairments.” Webb v. Barnhart, 433 F.3d 683, 687 12 (9th Cir. 2005). 13 The ALJ found Plaintiff’s peripheral neuropathy and hand pain are not 14 medically determinable impairments. Tr. 18. While Plaintiff has reported hand 15 pain and diminished sensation, the ALJ found the objective evidence, including 16 17 18 3 19 20 2 The Supreme Court upheld the validity of the Commissioner’s severity regulation, as clarified in SSR 85-28, in Bowen v. Yuckert, 482 U.S. 137, 153-54 (1987). ORDER - 10 Case 1:19-cv-03200-MKD ECF No. 19 filed 04/22/20 PageID.637 Page 11 of 36 1 Plaintiff’s normal electromyography and nerve conduction study, did not establish 2 a source of the symptoms. Id. (citing Tr. 426-36, 437-50, 451-53, 462-63, 465-70). 3 Plaintiff argues the ALJ erred because the source of Plaintiff’s impairment is 4 irrelevant, and the ALJ should have found peripheral neuropathy to be a severe 5 impairment because Dr. Nyatsatsang diagnosed Plaintiff with peripheral 6 neuropathy and Dr. Jackson opined Plaintiff had workplace imitations due to his 7 peripheral neuropathy symptoms. ECF No. 16 at 4-6. 8 Dr. Nyatsatsang saw Plaintiff in September 2017 for an infectious disease 9 appointment, after Plaintiff had a positive serology for syphilis. Tr. 465. At the 10 exam, Plaintiff reported left neck numbness, a shock-like sensation through his 11 thumb, and some numbness in his feet. Id. Dr. Nyatsatsang noted Plaintiff has 12 experienced peripheral neuropathy since 2012, though the etiology is unclear, and 13 noted Plaintiff saw Dr. Elliott for a “battery of tests for neuropathy,” but did not 14 mention that all of the tests were normal. Id. Dr. Nyatsatsang diagnosed Plaintiff 15 with peripheral neuropathy. Id. He stated he was not convinced the symptoms 16 were due to syphilis complication, and though Plaintiff had a positive FTA 17 antibody test, Dr. Nyatsatsang believed this was a false positive. Tr. 465-68. 18 Dr. Nyatsatsang’s examination of Plaintiff does not contain any reference to 19 Plaintiff’s sensation or pain related to neuropathy. Outside of Plaintiff’s visit with 20 Dr. Nyatsatsang, there are no references in any treating records to a diagnosis of 2 ORDER - 11 Case 1:19-cv-03200-MKD ECF No. 19 filed 04/22/20 PageID.638 Page 12 of 36 1 peripheral neuropathy; rather Plaintiff’s reported symptoms are generally assessed 2 as hand pain. Tr. 440-41, 443. There are references to neuropathy as a symptom, 3 but the reported symptoms are not accompanied by physical exams demonstrating 4 any evidence of neuropathy. Tr. 428-29, 446. Plaintiff’s hand and wrist x-rays 5 were normal, and his cervical x-ray showed only mild spondylosis with small 6 osteophyte formation. Tr. 443. While the State agency found Plaintiff’s 7 neuropathy to be a severe impairment, the medical consultant, Dr. Rubio, opined 8 Plaintiff did not have any manipulative limitations. Tr. 112, 115. 9 Dr. Jackson completed a questionnaire in which she stated Plaintiff has hand 10 pain and spasms that prevent him from being able to handle continuously and 11 would cause him to miss four or more days per month. Tr. 451-52. When asked to 12 cite evidence of Plaintiff’s condition, such as “relevant clinical findings, test 13 results, etc.”, Dr. Jackson cited only to Dr. Elliott’s treatment records. Tr. 451. 14 Records from Dr. Elliott, a neurologist, state Plaintiff’s labs, electromyography, 15 nerve conduction study, and MRI of the cervical spine were all normal. Tr. 453. 16 Dr. Elliott noted Plaintiff reported numbness and spasms in his hands. Tr. 325. On 17 exam in March 2016, Plaintiff had normal strength, sensation, gait, and reflexes, 18 Tr. 326-27, though he had decreased sensation in his hands, with normal strength, 19 in September 2016, Tr. 323. Dr. Elliott assessed Plaintiff with bilateral hand 20 numbness and pain of uncertain etiology and probable extrapyramidal side effects 2 ORDER - 12 Case 1:19-cv-03200-MKD ECF No. 19 filed 04/22/20 PageID.639 Page 13 of 36 1 from risperidone; he did not diagnose neuropathy. Tr. 324, 327. In September 2 2017, Plaintiff had decreased sensation in his hands and normal strength except 3 four out of five grip strength in his hands. Tr. 453. Dr. Elliott again diagnosed 4 “hand numbness and pain” of uncertain etiology. Id. 5 While Dr. Nyatsasang diagnosed Plaintiff with peripheral neuropathy, a 6 diagnosis alone is not enough to establish a severe medically determinable 7 impairment at step two. See 20 C.F.R. § 416.921. The treatment records 8 demonstrate that Plaintiff reported symptoms of neuropathy, had mildly decreased 9 strength on one occasion, and decreased sensation at some appointments, but he 10 also had normal strength and sensation at other appointments. The only 11 appointment where neuropathy was diagnosed was not accompanied by any 12 physical evidence of the condition, and the neurologist did not diagnose Plaintiff 13 with neuropathy. Further, even if the condition is medically determinable, there is 14 no evidence outside of Dr. Jackson’s opinion, which is addressed infra, of 15 Plaintiff’s hand symptoms causing limitations, given the generally normal tests and 16 exams. 17 Additionally, the prior ALJ also found the evidence did not establish a 18 severe impairment related to Plaintiff’s reported bilateral hand pain. Tr. 68. The 19 ALJ here properly considered the prior ALJ determination and adopted much of 20 the prior findings. Tr. 15; see Chavez v. Bowen, 844 F.2d 691 (9th Cir. 1988). As 2 ORDER - 13 Case 1:19-cv-03200-MKD ECF No. 19 filed 04/22/20 PageID.640 Page 14 of 36 1 such, the ALJ did not error in finding peripheral neuropathy is not a severe 2 medically determinable impairment. Any error would be harmless as the step was 3 resolved in Plaintiff’s favor, and Plaintiff has not demonstrated that peripheral 4 neuropathy created limitations not accounted for in the RFC. See Stout v. Comm'r 5 of Soc. Sec. Admin., 454 F.3d 1050, 1055 (9th Cir. 2006); Burch v. Barnhart, 400 6 F.3d 676, 682 (9th Cir. 2005); Shinseki, 556 U.S. at 409-10. 7 8 B. Plaintiff’s Symptom Claims Plaintiff faults the ALJ for failing to rely on reasons that were clear and 9 convincing in discrediting his symptom claims. ECF No. 16 at 6-14. An ALJ 10 engages in a two-step analysis to determine whether to discount a claimant’s 11 testimony regarding subjective symptoms. SSR 16–3p, 2016 WL 1119029, at *2. 12 “First, the ALJ must determine whether there is objective medical evidence of an 13 underlying impairment which could reasonably be expected to produce the pain or 14 other symptoms alleged.” Molina, 674 F.3d at 1112 (quotation marks omitted). 15 “The claimant is not required to show that [the claimant’s] impairment could 16 reasonably be expected to cause the severity of the symptom [the claimant] has 17 alleged; [the claimant] need only show that it could reasonably have caused some 18 degree of the symptom.” Vasquez v. Astrue, 572 F.3d 586, 591 (9th Cir. 2009). 19 Second, “[i]f the claimant meets the first test and there is no evidence of 20 malingering, the ALJ can only reject the claimant’s testimony about the severity of 2 ORDER - 14 Case 1:19-cv-03200-MKD ECF No. 19 filed 04/22/20 PageID.641 Page 15 of 36 1 the symptoms if [the ALJ] gives ‘specific, clear and convincing reasons’ for the 2 rejection.” Ghanim v. Colvin, 763 F.3d 1154, 1163 (9th Cir. 2014) (citations 3 omitted). General findings are insufficient; rather, the ALJ must identify what 4 symptom claims are being discounted and what evidence undermines these claims. 5 Id. (quoting Lester v. Chater, 81 F.3d 821, 834 (9th Cir. 1995)); Thomas v. 6 Barnhart, 278 F.3d 947, 958 (9th Cir. 2002) (requiring the ALJ to sufficiently 7 explain why it discounted claimant’s symptom claims)). “The clear and 8 convincing [evidence] standard is the most demanding required in Social Security 9 cases.” Garrison v. Colvin, 759 F.3d 995, 1015 (9th Cir. 2014) (quoting Moore v. 10 Comm’r of Soc. Sec. Admin., 278 F.3d 920, 924 (9th Cir. 2002)). 11 Factors to be considered in evaluating the intensity, persistence, and limiting 12 effects of a claimant’s symptoms include: 1) daily activities; 2) the location, 13 duration, frequency, and intensity of pain or other symptoms; 3) factors that 14 precipitate and aggravate the symptoms; 4) the type, dosage, effectiveness, and 15 side effects of any medication an individual takes or has taken to alleviate pain or 16 other symptoms; 5) treatment, other than medication, an individual receives or has 17 received for relief of pain or other symptoms; 6) any measures other than treatment 18 an individual uses or has used to relieve pain or other symptoms; and 7) any other 19 factors concerning an individual’s functional limitations and restrictions due to 20 pain or other symptoms. SSR 16-3p, 2016 WL 1119029, at *7; 20 C.F.R. § 2 ORDER - 15 Case 1:19-cv-03200-MKD ECF No. 19 filed 04/22/20 PageID.642 Page 16 of 36 1 416.929 (c). The ALJ is instructed to “consider all of the evidence in an 2 individual’s record,” to “determine how symptoms limit ability to perform work3 related activities.” SSR 16-3p, 2016 WL 1119029, at *2. 4 The ALJ found that Plaintiff’s medically determinable impairments could 5 reasonably be expected to cause some of the alleged symptoms, but that Plaintiff’s 6 statements concerning the intensity, persistence, and limiting effects of his 7 symptoms were not entirely consistent with the evidence. Tr. 21. 8 First, the ALJ found the objective evidence is inconsistent with Plaintiff’s 9 symptom claims. Tr. 21. An ALJ may not discredit a claimant’s symptom 10 testimony and deny benefits solely because the degree of the symptoms alleged is 11 not supported by objective medical evidence. Rollins v. Massanari, 261 F.3d 853, 12 857 (9th Cir. 2001); Bunnell v. Sullivan, 947 F.2d 341, 346-47 (9th Cir. 1991); 13 Fair v. Bowen, 885 F.2d 597, 601 (9th Cir. 1989); Burch, 400 F.3d at 680. 14 However, the objective medical evidence is a relevant factor, along with the 15 medical source’s information about the claimant’s pain or other symptoms, in 16 determining the severity of a claimant’s symptoms and their disabling effects. 17 Rollins, 261 F.3d at 857; 20 C.F.R. § 416.929(c)(2). 18 The ALJ found Plaintiff had generally normal physical examinations and 19 imaging. Tr. 21 (citing Tr. 323, 338-42, 446, 453). While Plaintiff has reported 20 hand symptoms and limitations, his electromyography, nerve conduction study, 2 ORDER - 16 Case 1:19-cv-03200-MKD ECF No. 19 filed 04/22/20 PageID.643 Page 17 of 36 1 labs, imaging and physical exam were normal. Tr. 326-27, 453. As to his mental 2 impairments, Dr. Cline’s psychological examination demonstrated Plaintiff made 3 some errors on serial sevens, but accurately completed serial threes, recalled three 4 of three words immediately and two after a delay, and he had fair concentration. 5 Tr. 21 (citing Tr. 314-20). Plaintiff’s mental status exams demonstrated some 6 abnormalities, including impaired concentration and slowed thinking, but he also 7 had a stable mood, denied depressive or manic symptoms, and he was cooperative. 8 Tr. 21 (citing Tr. 427-28, 490, 512). 9 Plaintiff argues the objective evidence supports his symptom complaints. 10 ECF No. 16 at 6-11. While Plaintiff cites to evidence to support his argument the 11 objective evidence supports his complaints related to peripheral neuropathy, the 12 cited records include Plaintiff’s testimony and self-report of hand symptoms, his 13 normal electromyography/nerve conduction testing, normal labs, a cervical MRI 14 that did not demonstrate any findings related to hand symptoms, and normal 15 physical exams except grip strength of four out of five at one exam. ECF No. 16 at 16 9 (citing Tr. 44-45, 323, 327, 453, 465, 467). As discussed supra, the ALJ 17 reasonably rejected Plaintiff’s complaints regarding his hand symptoms. 18 Plaintiff also argues the objective evidence supports his mental health 19 symptom claims. ECF No. 16 at 9-11 (citing Tr. 346-47, 351, 353, 363, 367, 42820 29, 476-77, 481-82, 488-91, 503-04, 512-13). Plaintiff had circumstantial, slowed 2 ORDER - 17 Case 1:19-cv-03200-MKD ECF No. 19 filed 04/22/20 PageID.644 Page 18 of 36 1 thoughts, constricted affect, impaired attention/concentration, and depressive self2 deprecating thoughts, but he also generally had normal mood, memory, speech, 3 perception, intelligence, insight, judgment, motor activity, behavior, orientation, 4 and improved sleep. Tr. 346-47, 351, 353, 363, 367, 428-29, 476-77, 481-82, 4885 91 (duplicative records); Tr. 503-04 (duplicative records); Tr. 512-13. Dr. Cline’s 6 exam found Plaintiff had only mild depression and anxiety symptoms, causing no 7 more than moderate limitations. Tr. 316-17. 8 The ALJ reasonably found the objective evidence inconsistent with 9 Plaintiff’s symptom claims. While Plaintiff contends this was the only reason 10 given by the ALJ to reject his statements, this was one of three clear and 11 convincing reasons to reject Plaintiff’s symptom claims, as discussed infra. 12 Second, the ALJ found Plaintiff’s treatment inconsistent with his symptom 13 complaints. Tr. 19, 21. Evidence of “conservative treatment” is sufficient to 14 discount a claimant’s testimony regarding the severity of an impairment. Parra v. 15 Astrue, 481 F.3d 742 (9th Cir. 2007) (citing Johnson v. Shalala, 60 F.3d 1428, 16 1434 (9th Cir. 1995) (treating ailments with an over-the-counter pain medication is 17 evidence of conservative treatment sufficient to discount a claimant’s testimony 18 regarding the severity of an impairment)); see also Tommasetti v. Astrue, 533 F.3d 19 1035, 1039 (9th Cir. 2008) (holding that the ALJ permissibly inferred that the 20 claimant’s “pain was not as all-disabling as he reported in light of the fact that he 2 ORDER - 18 Case 1:19-cv-03200-MKD ECF No. 19 filed 04/22/20 PageID.645 Page 19 of 36 1 did not seek an aggressive treatment program” and “responded favorably to 2 conservative treatment including physical therapy and the use of anti-inflammatory 3 medication, a transcutaneous electrical nerve stimulation unit, and a lumbosacral 4 corset”). Further, the effectiveness of treatment is a relevant factor in determining 5 the severity of a claimant’s symptoms. 20 C.F.R. § 416.929(c)(3); see Warre v. 6 Comm’r of Soc. Sec. Admin., 439 F.3d 1001, 1006 (9th Cir. 2006); Tommasetti, 7 533 F.3d at 1040 (a favorable response to treatment can undermine a claimant’s 8 complaints of debilitating pain or other severe limitations). 9 Additionally, an unexplained, or inadequately explained, failure to seek 10 treatment or follow a prescribed course of treatment may be considered when 11 evaluating the claimant’s subjective symptoms. Orn v. Astrue, 495 F.3d 625, 638 12 (9th Cir. 2007). And evidence of a claimant’s self-limitation and lack of 13 motivation to seek treatment are appropriate considerations in determining the 14 credibility of a claimant’s subjective symptom reports. Osenbrock v. Apfel, 240 15 F.3d 1157, 1165-66 (9th Cir. 2001); Bell-Shier v. Astrue, 312 F. App’x 45, *3 (9th 16 Cir. 2009) (unpublished opinion) (considering why plaintiff was not seeking 17 treatment). When there is no evidence suggesting that the failure to seek or 18 participate in treatment is attributable to a mental impairment rather than a 19 personal preference, it is reasonable for the ALJ to conclude that the level or 20 frequency of treatment is inconsistent with the alleged severity of complaints. 2 ORDER - 19 Case 1:19-cv-03200-MKD ECF No. 19 filed 04/22/20 PageID.646 Page 20 of 36 1 Molina, 674 F.3d at 1113-14. But when the evidence suggests lack of mental 2 health treatment is partly due to a claimant’s mental health condition, it may be 3 inappropriate to consider a claimant’s lack of mental health treatment when 4 evaluating the claimant’s failure to participate in treatment. Nguyen v. Chater, 100 5 F.3d 1462, 1465 (9th Cir. 1996). 6 Here, the ALJ found Plaintiff received only conservative treatment for his 7 impairments. Tr. 19, 22, 24. The ALJ reasoned Plaintiff did not require inpatient 8 treatment, nor emergency or urgent care. Tr. 22. Further, the ALJ found 9 Plaintiff’s mental health symptoms improved with treatment. Tr. 23. Plaintiff 10 reported good control of his symptoms with medication, and reported improved 11 symptoms including a stable mood. Tr. 21 (citing Tr. 427-28, 490, 512). After his 12 reported improvement with treatment, Plaintiff did not receive further mental 13 health treatment for over a year. Tr. 21, 24. 14 Plaintiff does not set forth any arguments as to the ALJ’s finding that his 15 treatment was conservative in nature. However, Plaintiff argues he did not have 16 improvement with treatment, as he had continued anxiety even with treatment. 17 ECF No. 16 at 9-11. Plaintiff further argues the ALJ did not explain what specific 18 testimony is inconsistent with the evidence of improvement. Id. Plaintiff argues 19 the ALJ improperly considered his lack of mental health treatment but does not 20 provide any reasoning for the lack of treatment. ECF No. 16 at 12-13. Plaintiff 2 ORDER - 20 Case 1:19-cv-03200-MKD ECF No. 19 filed 04/22/20 PageID.647 Page 21 of 36 1 reported to Dr. Cline that he found counseling was “somewhat helpful in 2 controlling his anxiety” and he stopped seeing his counselor once he was “doing 3 ok.” Tr. 315. 4 Although Plaintiff alleges only his depressive symptoms improved, the 5 treatment records indicate Plaintiff’s medications and counseling also improved his 6 anxiety. Tr. 315, 489-90. Plaintiff reported that with medication, he had 7 improvement in his eating, sleep, relationship with his girlfriend, and he was 8 engaging in activities like walking his dog. Tr. 314, 489-90. The ALJ reasonably 9 found that Plaintiff’s treatment history, including his improvement with treatment, 10 is inconsistent with his symptom allegations. This was a clear and convincing 11 reason to reject Plaintiff’s symptom claims. 12 Third, the ALJ found Plaintiff made inconsistent statements about his 13 symptoms. Tr. 21-22. In evaluating a claimant’s symptom claims, an ALJ may 14 consider the consistency of an individual’s own statements made in connection 15 with the disability-review process with any other existing statements or conduct 16 under other circumstances. Smolen, 80 F.3d at 1284 (The ALJ may consider 17 “ordinary techniques of credibility evaluation,” such as reputation for lying, prior 18 inconsistent statements concerning symptoms, and other testimony that “appears 19 less than candid.”). 20 2 ORDER - 21 Case 1:19-cv-03200-MKD 1 ECF No. 19 filed 04/22/20 PageID.648 Page 22 of 36 While Plaintiff alleges disabling mental health symptoms, the ALJ found 2 Plaintiff reported stable moods on multiple occasions and reported only mild to 3 moderate symptoms on questionnaires. Tr. 21-22 (citing Tr. 430, 442, 474). As 4 discussed supra, Plaintiff also reported improvement in his symptoms with 5 medication. Plaintiff does not challenge the ALJ’s finding and as such, any 6 challenge is waived. See Carmickle, 533 F.3d at 1161 n.2. The ALJ reasonably 7 found that Plaintiff’s allegation of disabling mental health symptoms inconsistent 8 with prior reports of stability and mild to moderate symptoms. 9 The ALJ gave clear and convincing reasons to reject Plaintiff’s symptom 10 claims. Plaintiff is not entitled to remand on these grounds. 11 12 C. Medical Opinion Evidence Plaintiff challenges the ALJ’s evaluation of the medical opinions of Joanna 13 Kass, ARNP, and Caryn Jackson, M.D. ECF No. 16 at 14-19. 14 There are three types of physicians: “(1) those who treat the claimant 15 (treating physicians); (2) those who examine but do not treat the claimant 16 (examining physicians); and (3) those who neither examine nor treat the claimant 17 [but who review the claimant’s file] (nonexamining [or reviewing] physicians).” 18 Holohan v. Massanari, 246 F.3d 1195, 1201-02 (9th Cir. 2001) (citations omitted). 19 Generally, a treating physician’s opinion carries more weight than an examining 20 physician’s, and an examining physician’s opinion carries more weight than a 2 ORDER - 22 Case 1:19-cv-03200-MKD ECF No. 19 filed 04/22/20 PageID.649 Page 23 of 36 1 reviewing physician’s. Id. at 1202. “In addition, the regulations give more weight 2 to opinions that are explained than to those that are not, and to the opinions of 3 specialists concerning matters relating to their specialty over that of 4 nonspecialists.” Id. (citations omitted). 5 If a treating or examining physician’s opinion is uncontradicted, the ALJ 6 may reject it only by offering “clear and convincing reasons that are supported by 7 substantial evidence.” Bayliss v. Barnhart, 427 F.3d 1211, 1216 (9th Cir. 2005). 8 “However, the ALJ need not accept the opinion of any physician, including a 9 treating physician, if that opinion is brief, conclusory and inadequately supported 10 by clinical findings.” Bray v. Comm’r of Soc. Sec. Admin., 554 F.3d 1219, 1228 11 (9th Cir. 2009) (internal quotation marks and brackets omitted). “If a treating or 12 examining doctor’s opinion is contradicted by another doctor’s opinion, an ALJ 13 may only reject it by providing specific and legitimate reasons that are supported 14 by substantial evidence.” Bayliss, 427 F.3d at 1216 (citing Lester, 81 F.3d at 83015 31). The opinion of a nonexamining physician may serve as substantial evidence if 16 it is supported by other independent evidence in the record. Andrews v. Shalala, 17 53 F.3d 1035, 1041 (9th Cir. 1995). 18 “Only physicians and certain other qualified specialists are considered 19 ‘[a]cceptable medical sources.’” Ghanim, 763 F.3d at 1161 (alteration in original); 20 2 ORDER - 23 Case 1:19-cv-03200-MKD ECF No. 19 filed 04/22/20 PageID.650 Page 24 of 36 1 see 20 C.F.R. § 416.913 (2013).4 However, an ALJ is required to consider 2 evidence from non-acceptable medical sources, such as therapists. 20 C.F.R. § 3 416.913(d)(2013).5 An ALJ may reject the opinion of a non-acceptable medical 4 source by giving reasons germane to the opinion. Ghanim, 763 F.3d at 1161. 5 1. Ms. Kass 6 Ms. Kass, a treating nurse practitioner, opined Plaintiff has mild difficulties 7 in activities of daily living; moderate difficulties maintaining social functioning 8 and moderate limitations in his ability to: remember locations and work-like 9 procedures; understand and remember very short and simple instructions; 10 understand and remember detailed instructions; carry out very short, simple 11 instructions; perform activities within a schedule, maintain regular attendance, and 12 be punctual within customary tolerances; work in coordination with or proximity to 13 others without being distracted by them; make simple work-related decisions; 14 15 4 The regulation that defines acceptable medical sources is found at 20 C.F.R. § 16 416.902 for claims filed after March 27, 2017. The Court applies the regulation in 17 effect at the time the claim was filed. 18 5 The regulation that requires an ALJ’s consider opinions from non-acceptable 19 medical sources is found at 20 C.F.R. § 416.927(f) for claims filed after March 27, 20 2017. The Court applies the regulation in effect at the time the claim was filed. 2 ORDER - 24 Case 1:19-cv-03200-MKD ECF No. 19 filed 04/22/20 PageID.651 Page 25 of 36 1 complete a normal workday/workweek without interruptions from psychological 2 symptoms, and perform at a consistent pace without an unreasonable number and 3 length of rest periods; interact appropriately with the general public; ask simple 4 questions or request assistance; accept instructions and respond appropriately to 5 criticism from supervisors; get along with co-workers or peers without distracting 6 them or exhibiting behavioral extremes; be aware of normal hazards and take 7 appropriate precautions; and marked difficulties in maintaining concentration, 8 persistence or pace and marked limitations in his ability to: carry out detailed 9 instructions; maintain attention and concentration for extended periods; respond 10 appropriately to changes in the work setting; travel in unfamiliar places or use 11 public transportation; and set realistic goals or make plans independently of others. 12 Tr. 421-23. Ms. Kass also opined Plaintiff would be off-task over 30 percent of 13 the time in a 40-hour workweek, would miss four or more days per month, and his 14 residual disease process has resulted in such marginal adjustment that even a 15 minimal increase in demands or change in the environment would be predicted to 16 cause Plaintiff to decompensate. Tr. 423. 17 The ALJ gave Ms. Kass’ opinion slight weight. Tr. 23. While Ms. Kass 18 indicated that Plaintiff is treated by a treatment team, which has at least one 19 member holding a doctorate in medicine or a PhD, only Ms. Kass, a non20 acceptable medical source, signed the opinion. Tr. 423. Plaintiff argues the 2 ORDER - 25 Case 1:19-cv-03200-MKD ECF No. 19 filed 04/22/20 PageID.652 Page 26 of 36 1 specific and legitimate standard should apply, under Gomez v. Chater. ECF No. 16 2 at 15. However, Gomez, 74 F.3d 867, 871 (9th Cir. 1996), is no longer good law 3 regarding whether the opinion of an “other source,” who is part of an 4 interdisciplinary team, is to be given controlling weight. The holding in Gomez 5 was dependent on 20 C.F.R. § 416.913(a)(6)(1993), which stated that a “report of 6 an interdisciplinary team that contains the evaluation and signature of an 7 acceptable medical source is also considered acceptable medical evidence.” The 8 regulation was amended in 2000 to remove the language regarding 9 interdisciplinary teams, and the version applicable to this case contains no such 10 language. 20 C.F.R. § 416.913 (2013). Following the amendment, courts have 11 found that opinions of non-acceptable medical source are not transformed into 12 acceptable medical evidence merely by the signature of an acceptable medical 13 source. See Vega v. Colvin, No. 14cv1485-LAB (DHB), 2015 WL 7769663 (S.D. 14 Cal. Nov. 12, 2015); Olney v. Colvin, No. 12-CV-0547-TOR, 2013 WL 4525402, 15 at *4 (E.D. Wash. Aug. 27, 2013). Instead, because the social security regulations 16 do not provide for the opinion of an “other source” to be given controlling weight 17 even if the other source is supervised by a physician or acts as part of an 18 interdisciplinary team, 20 C.F.R. § 416.913(d), Ms. Kass’ opinion is still 19 considered an “other source” opinion and thus, the ALJ need only have provided 20 “germane reasons” for rejecting Ms. Kass’ findings, see Molina, 674 F.3d at 1111. 2 ORDER - 26 Case 1:19-cv-03200-MKD 1 ECF No. 19 filed 04/22/20 PageID.653 Page 27 of 36 First, the ALJ found Ms. Kass’ opinion was not supported the objective 2 evidence. Tr. 23. A medical opinion may be rejected if it is unsupported by 3 medical findings. Bray, 554 F.3d at 1228; Batson v. Comm’r of Soc. Sec. Admin., 4 359 F.3d 1190, 1195 (9th Cir. 2004); Thomas, 278 F.3d at 957; Tonapetyan v. 5 Halter, 242 F.3d 1144, 1149 (9th Cir. 2001); Matney v. Sullivan, 981 F.2d 1016, 6 1019 (9th Cir. 1992). An ALJ may discredit physicians’ opinions that are 7 unsupported by the record as a whole. Batson, 359 F.3d at 1195. Moreover, an 8 ALJ is not obliged to credit medical opinions that are unsupported by the medical 9 source’s own data and/or contradicted by the opinions of other examining medical 10 sources. Tommasetti, 533 F.3d at 1041. 11 The ALJ summarized Ms. Kass’ opinion, including the marked limitations 12 and opinion that Plaintiff had marginal adjustment and would be off-task more 13 than 30 percent of a workday. Tr. 23. The ALJ found the evidence does not 14 demonstrate symptom exacerbation indicative of marginal adjustment or the 15 inability to handle simple changes, and the records from Dr. Cline’s evaluation and 16 Ms. Kass’ own treatment records demonstrate Plaintiff had fair attention, mood 17 stability, and improved symptoms with treatment. Id. (citing Tr. 427). Although 18 Ms. Kass opined Plaintiff had marked difficulty in maintaining attention and 19 concentration, Dr. Cline found Plaintiff had fair attention and could perform serial 20 threes. Tr. 23. As discussed supra, while Plaintiff had some abnormalities on 2 ORDER - 27 Case 1:19-cv-03200-MKD ECF No. 19 filed 04/22/20 PageID.654 Page 28 of 36 1 exam, he had many normal findings on mental status exams, had improvement 2 with treatment, and reported he discontinued treatment because he was doing well. 3 While Plaintiff argues the objective evidence is not inconsistent with Ms. Kass’ 4 opinion, the ALJ’s interpretation of the evidence is reasonable in finding the 5 treatment records are inconsistent with Ms. Kass’ opinion that Plaintiff has 6 disabling mental health symptoms. This was a germane reason to reject Ms. Kass’ 7 opinion. 8 Second, the ALJ found Ms. Kass’ opinion was not supported by Plaintiff’s 9 treatment history. Tr. 23. An ALJ may discredit a claimant’s symptom complaints 10 if the claimant fails to show good reason for failing to follow treatment 11 recommendations. Smolen, 80 F.3d at 1284. However, the fact that a claimant 12 fails to pursue treatment is not directly relevant to the weight of a medical 13 provider’s opinion. See 20 C.F.R. § 416.927(c). But the consistency of a medical 14 opinion with the record as a whole is a relevant factor in evaluating a medical 15 opinion. Lingenfelter, 504 F.3d at 1042; Orn, 495 F.3d at 631. 16 The ALJ found Ms. Kass’ opinion inconsistent with Plaintiff’s periodic 17 medication management appointments, and his lack of symptom exacerbation at 18 any time. Tr. 23. As discussed supra, Plaintiff also discontinued mental health 19 treatment for over a year, after he reported improvement with treatment. While 20 Plaintiff argues the ALJ did not properly consider any reason for his lack of care, 2 ORDER - 28 Case 1:19-cv-03200-MKD ECF No. 19 filed 04/22/20 PageID.655 Page 29 of 36 1 ECF No. 16 at 16, Plaintiff does not offer any explanation for the lack of treatment. 2 Plaintiff’s treatment history, including his conservative treatment, period with no 3 treatment, and lack of exacerbation of his symptoms even without treatment, is a 4 germane reason to reject Ms. Kass’ opinion. 5 Plaintiff argues the ALJ failed to address Ms. Kass’ opinion that Plaintiff 6 had moderate limitations. ECF No. 16 at 14-16 Plaintiff argues this was a harmful 7 error as the vocational expert testified the moderate limitations were work8 preclusive. Id. (citing Tr. 57-58). While the ALJ summarized only the marked 9 limitations, the ALJ’s analysis refers to the evidence of record not supporting Ms. 10 Kass’ opinion as a whole, rather than specific portions of the opinion. As such, the 11 ALJ gave germane reasons to reject Ms. Kass’ opinion. 12 2. Dr. Jackson 13 Dr. Jackson, a treating doctor, opined Plaintiff’s hand pain and spasm 14 prevent him from being able to handle continuously and he would miss four or 15 more days per month due to his symptoms. Tr. 452. She opined Plaintiff’s 16 limitations have existed since December 2012 and he has a good prognosis. Id. 17 The ALJ gave Dr. Jackson’s opinion slight weight. Tr. 22. As the opinion is 18 contradicted, the ALJ was required to give specific and legitimate reasons, 19 supported by substantial evidence, to reject the opinion. See Bayliss, 427 F.3d at 20 1216. 2 ORDER - 29 Case 1:19-cv-03200-MKD 1 ECF No. 19 filed 04/22/20 PageID.656 Page 30 of 36 Plaintiff challenged only one of the ALJ’s three reasons for rejecting Dr. 2 Jackson’s opinion. ECF No. 16 at 19. Thus, any challenge to the two unaddressed 3 findings is waived. See Carmickle v. Comm’r, Soc. Sec. Admin., 533 F.3d 1155, 4 1161 n.2 (9th Cir. 2008) (determining Court may decline to address on the merits 5 issues not argued with specificity); Kim v. Kang, 154 F.3d 996, 1000 (9th Cir. 6 1998) (the Court may not consider on appeal issues not “specifically and distinctly 7 argued” in the party’s opening brief). However, the Court conducted an 8 independent review of the ALJ’s analysis of Dr. Jackson’s opinion and finds the 9 ALJ’s reasoning is supported by substantial evidence in the record. 10 First, the ALJ found Dr. Jackson’s opinion lacked a narrative explanation for 11 her opinion. Tr. 22. The Social Security regulations “give more weight to 12 opinions that are explained than to those that are not.” Holohan, 246 F.3d at 1202. 13 “[T]he ALJ need not accept the opinion of any physician, including a treating 14 physician, if that opinion is brief, conclusory and inadequately supported by 15 clinical findings.” Bray, 554 at 1228. While Dr. Jackson opined Plaintiff would 16 miss four or more days per month due to his hand symptoms, she did not provide 17 any explanation as to the cause of his symptoms, nor why he would miss these 18 days when the symptoms were managed with medication and he had a good 19 prognosis. Tr. 22, 451-52. Dr. Jackson indicated the medical records should be 20 reviewed for evidence of Plaintiff’s symptoms, signs and diagnoses, however, the 2 ORDER - 30 Case 1:19-cv-03200-MKD ECF No. 19 filed 04/22/20 PageID.657 Page 31 of 36 1 records do not provide further support for Dr. Jackson’s opinion, as further 2 explained infra. Tr. 451-52. This was a specific and legitimate reasons to reject 3 Dr. Jackson’s opinion. 4 Second, the ALJ found Dr. Jackson’s opinion is inconsistent with the 5 medical evidence. Tr. 22. A medical opinion may be rejected if it is unsupported 6 by medical findings. Bray, 554 F.3d at 1228; Batson, 359 F.3d at 1195; Thomas, 7 278 F.3d at 957; Tonapetyan, 242 F.3d at 1149; Matney, 981 F.2d at 1019. An 8 ALJ may discredit physicians’ opinions that are unsupported by the record as a 9 whole. Batson, 359 F.3d at 1195. Moreover, an ALJ is not obliged to credit 10 medical opinions that are unsupported by the medical source’s own data and/or 11 contradicted by the opinions of other examining medical sources. Tommasetti, 533 12 F.3d at 1041. The ALJ found Dr. Jackson’s opinion was based on Plaintiff’s hand 13 symptoms, although there is no medically determinable impairment to account for 14 the symptoms. Tr. 22. As discussed supra, the ALJ’s finding that Plaintiff’s hand 15 impairment is not a medically determinable impairment is supported by the record. 16 Further, the ALJ found Dr. Jackson’s opinion is inconsistent with the medical 17 evidence, including the normal labs, tests, and imaging, and Dr. Elliott’s 18 conclusion that Plaintiff’s symptoms were due to an “uncertain etiology.” Id., Tr. 19 426-36, 437-50, 451-52, 453, 462-63, 465-70. While the medical records 20 demonstrate Plaintiff reported hand symptoms, the records generally demonstrate 2 ORDER - 31 Case 1:19-cv-03200-MKD ECF No. 19 filed 04/22/20 PageID.658 Page 32 of 36 1 little to no objective evidence of a hand impairment or ongoing limitations caused 2 by any hand impairment. Tr. 323 (decreased sensation but normal strength); 3263 27 (normal strength, sensation and reflexes); Tr. 453 (decreased sensation, but 4 normal strength except a grip strength of four out of five). This was a specific and 5 legitimate reason to reject Dr. Jackson’s opinion. 6 Third, the ALJ found Dr. Jackson’s opinion inconsistent with Plaintiff’s 7 treatment history. Tr. 22. An ALJ may discredit a claimant’s symptom complaints 8 if the claimant fails to show good reason for failing to follow treatment 9 recommendations. Smolen, 80 F.3d at 1284. However, the fact that a claimant 10 fails to pursue treatment is not directly relevant to the weight of a medical 11 provider’s opinion. See 20 C.F.R. § 416.927(c). Further, the ALJ may discount a 12 physician’s opinion that is inconsistent with the conservative nature of the 13 claimant’s treatment. Rollins, 261 F.3d at 856; see also Parra, 481 F.3d at 750-51 14 (treating pain with over-the-counter medication is conservative treatment); 15 Garrison, 759 F.3d at 1015 (casting doubt on characterizing epidural injections and 16 physical therapy as “conservative treatment”). “Any evaluation of the 17 aggressiveness of a treatment regimen must take into account the condition being 18 treated.” Revels v. Berryhill, 874 F.3d 648, 667 (9th Cir. 2017). 19 The ALJ found Plaintiff received conservative treatment, without any 20 emergency, urgent or inpatient care. Tr. 22. Plaintiff’s had symptoms were 2 ORDER - 32 Case 1:19-cv-03200-MKD ECF No. 19 filed 04/22/20 PageID.659 Page 33 of 36 1 managed with medication, Tr. 451, and there is no evidence his symptoms required 2 any emergency or urgent care, nor that any treatment was recommended beyond 3 medication. While Plaintiff was referred for additional testing, all of the testing 4 came back normal, as discussed supra. This was a specific and legitimate reason 5 to reject Dr. Jackson’s opinion. Plaintiff is not entitled to remand on these 6 grounds. 7 8 D. Lay Witness Evidence Plaintiff contends the ALJ improperly rejected the lay witness statement of 9 Angela Potter. ECF No. 16 at 19-21. An ALJ must consider the statement of lay 10 witnesses in determining whether a claimant is disabled. Stout, 454 F.3d at 1053. 11 Lay witness evidence cannot establish the existence of medically determinable 12 impairments, but lay witness evidence is “competent evidence” as to “how an 13 impairment affects [a claimant's] ability to work.” Id.; 20 C.F.R. § 416.913; see 14 also Dodrill v. Shalala, 12 F.3d 915, 918-19 (9th Cir. 1993) (“[F]riends and family 15 members in a position to observe a claimant's symptoms and daily activities are 16 competent to testify as to her condition.”). If a lay witness statement is rejected, 17 the ALJ “‘must give reasons that are germane to each witness.’” Nguyen, 100 F.3d 18 at 1467 (citing Dodrill, 12 F.3d at 919). 19 Ms. Potter, Plaintiff’s girlfriend, stated Plaintiff “most [sic] wouldn’t be 20 likely to work” because of his depression, bipolar disorder, and primarily due to his 2 ORDER - 33 Case 1:19-cv-03200-MKD ECF No. 19 filed 04/22/20 PageID.660 Page 34 of 36 1 anxiety. Tr. 233. She stated Plaintiff independently cares for pets, handles his 2 personal care but needs reminders to bathe, shave and sometimes to take 3 medication, prepares his own meals daily, he has sleep issues, handles his own 4 household chores and repairs though he needs reminders, he can go out alone and 5 drive a car, shops for his own groceries, has difficulty managing his money, he has 6 some difficulty with his hobbies of RC cars and watching television due to anxiety, 7 he talks to his children on the phone but does not regularly socialize otherwise, he 8 has difficulty with his memory, talking, completing tasks, concentration and using 9 his hands, he can walk up to half of a mile before needing a thirty-minute break, he 10 can pay attention for thirty minutes, he does not finish things he starts due to 11 anxiety, he has difficulty understanding instructions, he does not handle change or 12 stress well, he has some unusual behaviors, and he gets along well with others. Tr. 13 234-39. The ALJ gave greater weight to the objective medical evidence and 14 opinion evidence he found credible than to Ms. Potter’s statement. Tr. 23-24. 15 First, the ALJ found Ms. Potter’s statement inconsistent with the record. Tr. 16 23-24. Inconsistency with the medical evidence is a germane reason for rejecting 17 lay witness testimony. See Bayliss, 427 F.3d at 1218; Lewis v. Apfel, 236 F.3d 18 503, 511-12 (9th Cir. 2001) (germane reasons include inconsistency with medical 19 evidence, activities, and reports). The ALJ reasoned the medical records and 20 2 ORDER - 34 Case 1:19-cv-03200-MKD ECF No. 19 filed 04/22/20 PageID.661 Page 35 of 36 1 opinion evidence discredited the severity of the limitations set forth by Ms. Potter. 2 Tr. 23-24. 3 While Ms. Potter stated Plaintiff cannot pay attention longer than thirty 4 minutes, and struggles with some memory issues, completing activities and 5 engaging in his hobbies, the ALJ considered evidence from several sources that 6 indicated Plaintiff’s mental health symptoms are not as limiting as alleged. 7 Plaintiff had fair concentration during his exam with Dr. Cline, where he recalled 8 three words immediately and two after a delay, performed five digits forward and 9 three backward, and could not complete serial sevens but did complete serial 10 threes. Tr. 21 (citing Tr. 314-20). At appointments with Ms. Kass, Plaintiff had 11 impaired concentration, but generally no documented issues with memory and he 12 reported control of his symptoms with medication. Tr. 21 (citing Tr. 427-28, 512). 13 The State agency consultants opined Plaintiff is capable of sustaining simple, 14 routine tasks, despite the limitations caused by his mental health symptoms. Tr. 15 22, 100-02, 116-18. The inconsistency between Ms. Potter’s statement and the 16 evidence of record was a germane reason to reject Ms. Potter’s statement. 17 Second, the ALJ rejected Ms. Potter’s statement that Plaintiff cannot work 18 because it is an issue reserved to the Commissioner. Tr. 23. Opinions on the 19 ultimate issue of disability are an issue reserved to the Commissioner. 20 C.F.R. § 20 416.927(c); see also Wickramasekera v. Astrue, No. CV 09-449-TUC-HCE, 2010 2 ORDER - 35 Case 1:19-cv-03200-MKD ECF No. 19 filed 04/22/20 PageID.662 Page 36 of 36 1 WL 3883241, at *34 (D. Ariz. Sept. 29, 2010) (applying regulation to lay witness 2 testimony). The ALJ reasonably rejected Ms. Potter’s statement as an issue 3 reserved to the Commissioner. This was a germane reason to discredit this portion 4 of Ms. Potter’s statement. Plaintiff is not entitled to remand on these grounds. 5 6 CONCLUSION Having reviewed the record and the ALJ’s findings, the Court concludes the 7 ALJ’s decision is supported by substantial evidence and free of harmful legal error. 8 Accordingly, IT IS HEREBY ORDERED: 9 10 1. Plaintiff’s Motion for Summary Judgment, ECF No. 16, is DENIED. 2. Defendant’s Motion for Summary Judgment, ECF No. 17, is 11 GRANTED. 12 3. The Clerk’s Office shall enter JUDGMENT in favor of Defendant. 13 The District Court Executive is directed to file this Order, provide copies to 14 counsel, and CLOSE THE FILE. 15 DATED April 22, 2020. 16 s/Mary K. Dimke MARY K. DIMKE UNITED STATES MAGISTRATE JUDGE 17 18 19 20 2 ORDER - 36

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