Rielly v. Colvin (previously Astrue), No. 2:2012cv00527 - Document 21 (E.D. Wash. 2014)
Court Description: ORDER GRANTING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT denying 15 Plaintiff's Motion for Summary Judgment; granting 17 Defendant's Motion for Summary Judgment Signed by Senior Judge Fred Van Sickle. (VR, Courtroom Deputy)
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Rielly v. Colvin (previously Astrue) Doc. 21 1 2 3 4 UNITED STATES DISTRICT COURT 5 EASTERN DISTRICT OF WASHINGTON 6 7 JAMES P. RIELLY, NO: CV-12-527-FVS Plaintiff, 8 v. 9 10 11 CAROLYN W. COLVIN, Acting Commissioner of Social Security, ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT Defendant. 12 Before the Court are cross-motions for summary judgment, ECF Nos. 15, 13 17. The Court has reviewed the motions, the memoranda in support, the Plaintiff’s 14 reply memorandum, and the administrative record. 15 JURISDICTION 16 Plaintiff James P. Rielly filed an application for Supplemental Security 17 Income (“SSI”) and Social Security Disability Insurance (“SSDI”) benefits on 18 January 5, 2009. (Tr. 11, 121-22, 123-26.) Plaintiff alleged an onset date of 19 October 31, 2008, in both applications. (Tr. 121, 123.) Benefits were denied 20 ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 1 Dockets.Justia.com 1 initially and on reconsideration. On April 28, 2009, Plaintiff timely requested a 2 hearing before an administrative law judge (“ALJ”). (Tr. 90-91.) A hearing was 3 held before ALJ Marie Palachuck on February 17, 2010. (Tr. 26-74.) At that 4 hearing, testimony was taken from James Reilly, the claimant; Jinnie Lawson, a 5 vocational expert; Arthur Brovender, MD; and Thomas McKnight, PhD. (Tr. 11, 6 26.) The Plaintiff was represented by attorney Dana Madsen at the hearing. (Tr. 7 26.) On March 23, 2010, the ALJ issued a decision finding Plaintiff not disabled. 8 (Tr. 11-19.) The Appeals Council denied review. (Tr. 1-3.) This matter is 9 properly before this Court under 42 U.S.C. § 405(g). 10 11 STATEMENT OF THE CASE The facts of this case are set forth in the administrative hearing transcripts 12 and record and will only be summarized here. The Plaintiff was forty-seven years 13 old when he applied for benefits and was forty-eight years old when the ALJ 14 issued the decision. The Plaintiff currently is unemployed, lives in an apartment, 15 and is supported through the Washington State Department of Social and Health 16 Services. The Plaintiff has not sustained work since 2008. The Plaintiff describes 17 being unable to find work due to back pain and mental health issues that are the 18 result of a motor vehicle accident he suffered in 1981. 19 20 ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 2 1 2 STANDARD OF REVIEW Congress has provided a limited scope of judicial review of a 3 Commissioner’s decision. 42 U.S.C. § 405(g). A court must uphold the 4 Commissioner’s decision, made through an ALJ, when the determination is not 5 based on legal error and is supported by substantial evidence. See Jones v. 6 Heckler, 760 F.2d 993, 995 (9th Cir. 1985) (citing 42 U.S.C. § 405(g)). “The 7 [Commissioner’s] determination that a claimant is not disabled will be upheld if 8 the findings of fact are supported by substantial evidence.” Delgado v. Heckler, 9 722 F.2d 570, 572 (9th Cir. 1983) (citing 42 U.S.C. § 405(g)). Substantial 10 evidence is more than a mere scintilla, Sorenson v. Weinberger, 514 F.2d 1112, 11 1119 n.10 (9th Cir. 1975), but less than a preponderance. McCallister v. Sullivan, 12 888 F.2d 599, 601-02 (9th Cir. 1989) (citing Desrosiers v. Secretary of Health and 13 Human Services, 846 F.2d 573, 576 (9th Cir. 1988)). Substantial evidence “means 14 such evidence as a reasonable mind might accept as adequate to support a 15 conclusion.” Richardson v. Perales, 402 U.S. 389, 401 (1971) (citations omitted). 16 “[S]uch inferences and conclusions as the [Commissioner] may reasonably draw 17 from the evidence” will also be upheld. Mark v. Celebrezze, 348 F.2d 289, 293 18 (9th Cir. 1965). On review, the court considers the record as a whole, not just the 19 evidence supporting the decisions of the Commissioner. Weetman v. Sullivan, 877 20 ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 3 1 F.2d 20, 22 (9th Cir. 1989) (quoting Kornock v. Harris, 648 F.2d 525, 526 (9th Cir. 2 1980)). 3 It is the role of the trier of fact, not this court, to resolve conflicts in 4 evidence. Richardson, 402 U.S. at 400. If evidence supports more than one 5 rational interpretation, the court may not substitute its judgment for that of the 6 Commissioner. Tackett, 180 F.3d at 1097; Allen v. Heckler, 749 F.2d 577, 579 7 (9th Cir. 1984). Nevertheless, a decision supported by substantial evidence will 8 still be set aside if the proper legal standards were not applied in weighing the 9 evidence and making a decision. Brawner v. Sec’y of Health and Human Services, 10 839 F.2d 432, 433 (9th Cir. 1988). Thus, if there is substantial evidence to support 11 the administrative findings, or if there is conflicting evidence that will support a 12 finding of either disability or nondisability, the finding of the Commissioner is 13 conclusive. Sprague v. Bowen, 812 F.2d 1226, 1229-30 (9th Cir. 1987). 14 15 SEQUENTIAL PROCESS The Social Security Act (the “Act”) defines “disability” as the “inability to 16 engage in any substantial gainful activity by reason of any medically determinable 17 physical or mental impairment which can be expected to result in death or which 18 has lasted or can be expected to last for a continuous period of not less than 12 19 months.” 42 U.S.C. §§ 423(d)(1)(A), 1382c(a)(3)(A). The Act also provides that a 20 Plaintiff shall be determined to be under a disability only if his impairments are of ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 4 1 such severity that Plaintiff is not only unable to do his previous work but cannot, 2 considering Plaintiff’s age, education and work experiences, engage in any other 3 substantial gainful work which exists in the national economy. 42 U.S.C. 4 §§ 423(d)(2)(A), 1382c(a)(3)(B). Thus, the definition of disability consists of both 5 medical and vocational components. Edlund v. Massanari, 253 F.3d 1152, 1156 6 (9th Cir. 2001). 7 The Commissioner has established a five-step sequential evaluation process 8 for determining whether a claimant is disabled. 20 C.F.R. § 416.920. Step one 9 determines if he or she is engaged in substantial gainful activities. If the claimant 10 is engaged in substantial gainful activities, benefits are denied. 20 C.F.R. §§ 11 404.1520(a)(4)(i), 416.920(a)(4)(i). 12 If the claimant is not engaged in substantial gainful activities, the decision 13 maker proceeds to step two and determines whether the claimant has a medically 14 severe impairment or combination of impairments. 20 C.F.R. 15 §§ 404.1520(a)(4)(ii), 416.920(a)(4)(ii). If the claimant does not have a severe 16 impairment or combination of impairments, the disability claim is denied. 17 If the impairment is severe, the evaluation proceeds to the third step, which 18 compares the claimant’s impairment with a number of listed impairments 19 acknowledged by the Commissioner to be so severe as to preclude substantial 20 gainful activity. 20 C.F.R. §§ 404.1520(a)(4)(iii), 416.920(a)(4)(iii); see also 20 ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 5 1 C.F.R. § 404, Subpt. P, App. 1. If the impairment meets or equals one of the listed 2 impairments, the claimant is conclusively presumed to be disabled. 3 If the impairment is not one conclusively presumed to be disabling, the 4 evaluation proceeds to the fourth step, which determines whether the impairment 5 prevents the claimant from performing work he or she has performed in the past. 6 If the plaintiff is able to perform his or her previous work, the claimant is not 7 disabled. 20 C.F.R. §§ 404.1520(a)(4)(iv), 416.920(a)(4)(iv). At this step, the 8 claimant’s residual functional capacity (“RFC”) assessment is considered. 9 If the claimant cannot perform this work, the fifth and final step in the 10 process determines whether the claimant is able to perform other work in the 11 national economy in view of his or her residual functional capacity and age, 12 education and past work experience. 20 C.F.R. §§ 404.1520(a)(4)(v), 13 416.920(a)(4)(v); Bowen v. Yuckert, 482 U.S. 137 (1987). 14 The initial burden of proof rests upon the claimant to establish a prima facie 15 case of entitlement to disability benefits. Rhinehart v. Finch, 438 F.2d 920, 921 16 (9th Cir. 1971); Meanel v. Apfel, 172 F.3d 1111, 1113 (9th Cir. 1999). The initial 17 burden is met once the claimant establishes that a physical or mental impairment 18 prevents him from engaging in his or her previous occupation. The burden then 19 shifts, at step five, to the Commissioner to show that (1) the claimant can perform 20 other substantial gainful activity, and (2) a “significant number of jobs exist in the ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 6 1 national economy” which the claimant can perform. Kail v. Heckler, 722 F.2d 2 1496, 1498 (9th Cir. 1984). 3 4 ALJ’S FINDINGS The ALJ found that the Plaintiff met the insured status requirement through 5 December 31, 2013. (Tr. 13.) At step one of the five-step sequential evaluation 6 process, the ALJ found that Plaintiff has not engaged in substantial gainful activity 7 since October 31, 2008, the alleged date of onset. (Tr. 13.) At step two, the ALJ 8 found that Plaintiff had the severe impairments of: (1) history of fracture C6 in 9 1981, (2) history of concussion and coma in 1981, (3) history of fracture shaft left 10 ulna in 1981, (4) osteophytes C6-7, and (5) moderate degenerative disc disease. 11 (Tr. 13-17) At step three, the ALJ found that none of the Plaintiff’s impairments, 12 taken alone or in combination, met or medically equaled any of the impairments 13 listed in Part 404, Subpart P, Appendix 1 of 20 C.F.R. (Tr. 17.) The ALJ 14 determined that the Plaintiff had the RFC to perform light work subject to some 15 postural and environmental limitations. (Tr. 17-19.) At step four, the ALJ 16 determined that the Plaintiff could perform relevant past work as a cosmetologist 17 and cashier. (Tr. 19.) Accordingly, the ALJ found that the Plaintiff was not under 18 a disability for purposes of the Act. (Tr. 19.) 19 20 ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 7 1 2 ISSUES The Plaintiff argues that the ALJ’s decision is not supported by substantial 3 evidence or free of legal error because (1) the ALJ erred at step two by not finding 4 Mr. Rielly’s mental impairments severe; and (2) the ALJ erred by failing to 5 appropriately support his decision rejecting the opinions of Mr. Reilly’s various 6 treating and examining medical providers. 7 8 9 DISCUSSION Step Two Severity Determination To satisfy step two’s requirement of a severe impairment, the claimant must 10 prove the existence of a physical or mental impairment by providing medical 11 evidence consisting of signs, symptoms, and laboratory findings; the claimant’s 12 own statement of symptoms alone will not suffice. 20 C.F.R. §§ 404.1508, 13 416.908; Taylor v. Heckler, 765 F.2d 872, 876 (9th Cir. 1985). The ALJ then 14 determines whether the medically determinable impairment significantly limits her 15 physical or mental ability to do basic work activities. 20 C.F.R. §§ 404.1520(c); 16 416.920(c). The fact that a medically determinable condition exists does not 17 automatically mean the symptoms are “severe,” or “disabling” as defined by the 18 Social Security regulations. See e.g. Edlund, 253 F.3d at 1159-60; Fair v. Bowen, 19 885 F.2d 597, 603 (9th Cir. 1989); Key v. Heckler, 754 F.2d 1545, 1549-50 (9th 20 Cir. 1985). ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 8 1 An impairment may be found to be non-severe when “medical evidence 2 establishes only a slight abnormality or a combination of slight abnormalities 3 which would have no more than a minimal effect on an individual’s ability to 4 work.” Social Security Ruling (“SSR”) 85-28. Medical evidence alone is 5 evaluated in assessing severity. Id. “The severity requirement cannot be satisfied 6 when medical evidence shows that the person has the ability to perform basic work 7 activities, as required in most jobs.” Id. Basic work activities include: “walking, 8 standing, sitting, lifting, pushing, pulling, reaching, carrying, or handling; seeing, 9 hearing, speaking; understanding, carrying out and remembering simple 10 instructions; responding appropriately to supervision, coworkers, and usual work 11 situation.” Id. 12 “[T]he step-two inquiry is a de minimis screening device to dispose of 13 groundless claims.” Smolen v. Chater, 80 F.3d 1273, 1290 (9th Cir. 1996) (citing 14 Yuckert, 482 U.S. at 153-54). An ALJ may find an impairment not severe “only if 15 the evidence establishes a slight abnormality that has ‘no more than a minimal 16 effect on an individual‘s ability to work.’” Id. (citing SSR 85-28). 17 Mr. Rielly argues that ALJ Palachuk erred in failing to find that Mr. Rielly’s 18 alleged mental impairments were severe. However, the ALJ ultimately found in 19 Mr. Rielly’s favor at step two by finding that Mr. Rielly suffered from severe 20 impairments. (Tr. 13.) Accordingly, any error in failing to find severe mental ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 9 1 impairments was harmless as to step two. Burch v. Barnhart, 400 F.3d 676, 682 2 (9th Cir. 2005). Any harm from that error would be felt instead during the ALJ’s 3 RFC determination affecting steps four and five. Id. Accordingly, the Court will 4 review the ALJ’s weighing of the medical evidence by the ALJ to determine 5 whether Mr. Rielly was prejudiced at steps four and five. 6 Weighing of the Medical Evidence 7 In evaluating a disability claim, the adjudicator must consider all medical 8 evidence provided. A treating or examining physician’s opinion is given more 9 weight than that of a non-examining physician. Benecke v. Barnhart, 379 F.3d 10 587, 592 (9th Cir. 2004). If the treating physician's opinions are not contradicted, 11 they can be rejected by the decision-maker only with clear and convincing reasons. 12 Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1996). If contradicted, the ALJ may 13 reject the opinion with specific, legitimate reasons that are supported by substantial 14 evidence. See Flaten v. Secretary of Health and Human Serv., 44 F.3d 1453, 1463 15 (9th Cir. 1995). In addition to medical reports in the record, the testimony of a 16 non-examining medical expert selected by the ALJ may be helpful in her 17 adjudication. Andrews, 53 F.3d at 1041 (citing Magallanes v. Bowen, 881 F.2d 18 747, 753 (9th Cir. 1989). Testimony of a medical expert may serve as substantial 19 evidence when supported by other evidence in the record. Id. 20 ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 10 1 Historically, the courts have recognized conflicting medical evidence, the 2 absence of regular medical treatment during the alleged period of disability, and 3 the lack of medical support for doctors’ reports based substantially on a claimant’s 4 subjective complaints of pain as specific, legitimate reasons for disregarding the 5 treating physician’s opinion. Flaten, 44 F.3d at 1463-64; Fair v. Bowen, 885 F.2d 6 597, 604 (9th Cir 1989). The ALJ need not accept a treating source opinion that is 7 “brief, conclusory and inadequately supported by clinical finding.” Lingenfelter v. 8 Astrue, 504 F.3d 1028, 1044-45 (citing Thomas v. Barnhart, 278 F.3d 947, 957 (9th 9 Cir. 2002)). Where an ALJ determines a treating or examining physician’s stated 10 opinion is materially inconsistent with the physician’s own treatment notes, 11 legitimate grounds exist for considering the purpose for which the doctor’s report 12 was obtained and for rejecting the inconsistent, unsupported opinion. Nguyen v. 13 Chater, 100 F.3d 1462, 1464 (9th Cir. 1996.) Rejection of an examining medical 14 source opinion is specific and legitimate where the medical source’s opinion is not 15 supported by his or her own medical records and/or objective data. Tommasetti v. 16 Astrue, 533 F.3d 1035, 1041 (9th Cir. 2008). 17 Mr. Rielly was evaluated by Andrew B. Forsyth, PhD, on February 27, 18 2006. Dr. Forsyth diagnosed Mr. Rielly as suffering from an adjustment disorder, 19 an impulse control disorder, and a personality disorder. (Tr. 279.) Dr. Forsyth 20 opined that Mr. Rielly had marked limitations in his ability to exercise judgment ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 11 1 and make decisions, ability to respond appropriately to and tolerate the pressures 2 and expectations of a normal work setting, and ability to control physical or motor 3 movements and maintain appropriate behavior. (Tr. 280.) Dr. Forsyth also found 4 moderate limitations in Mr. Rielly’s ability to relate appropriately to co-workers 5 and supervisors and interact appropriately in public contacts. (Tr. 280.) In the 6 narrative portion of his opinion, Dr. Forsyth opined that Mr. Rielly “appears 7 marginally capable of maintaining employment beyond the short run owing to his 8 poor judgment, deficient impulse control, and antisocial personality traits.” (Tr. 9 283.) 10 Mr. Rielly was evaluated by Allen D. Bostwick, PhD, on May 17, 2007. 11 (Tr. 293.) Dr. Bostwick diagnosed Mr. Rielly with dementia with mild to 12 moderate neurobehavioral residuals and a history of antisocial behavior. (Tr. 307.) 13 In contrast to Dr. Forsyth, Dr. Bostwick did not identify a clinically significant 14 personality disorder. (Tr. 307.) However, Dr. Bostwick opined that Mr. Rielly had 15 a moderate impairment to his left hand that was “indicative of a lateralization of 16 effect implicating comprised right anterior cerebral hemisphere functioning.” (Tr. 17 302.) Mr. Rielly was also mildly impaired in the psychomotor speed of his right 18 hand and moderately impaired in the psychomotor speed of his left hand. (Tr. 305, 19 308.) 20 ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 12 1 Mr. Rielly was evaluated by Kayleen Islam-Zwart, PhD, on February 6, 2 2009. (Tr. 311.) Dr. Islam-Zwart diagnosed Mr. Rielly with antisocial personality 3 disorder. (Tr. 312.) Dr. Islam-Zwart opined that Mr. Rielly would suffer marked 4 limitations in his ability to exercise judgment and make decisions, and in his ability 5 to control physical or motor movements and maintain appropriate behavior. (Tr. 6 313.) Dr. Islam-Zwart further opined that Mr. Rielly would suffer moderate 7 limitations in his ability to relate appropriately to co-workers and supervisors as 8 well as his ability to respond appropriately to and tolerate the pressures and 9 expectations of a normal work setting. (Tr. 313.) 10 Mr. Reilly was evaluated by Dennis R. Pollack, PhD, on February 4, 2010. 11 (Tr. 366.) Dr. Pollack diagnosed Mr. Rielly with dementia due to head trauma and 12 antisocial personality disorder. (Tr. 371.) Dr. Pollack opined that Mr. Rielly 13 would have marked limitations in his ability to perform activities within a 14 schedule, maintain regular attendance, and be punctual within customary 15 tolerances; and his ability to complete a normal workday and workweek without 16 interruption from psychologically based symptoms and to perform at a consistent 17 pace without and unreasonable number and length of rest periods. (Tr. 373.) Dr. 18 Pollack also opined that Mr. Rielly suffered a moderate limitation to his ability to 19 accept instructions and respond appropriately to criticism from supervisors. (Tr. 20 373.) ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 13 1 The ALJ heard testimony from Thomas McKnight, PhD, at the February 17, 2 2010, hearing. (Tr. 38-49.) Dr. McKnight concurred in the diagnoses of dementia 3 due to head trauma and a personality disorder. (Tr. 39.) However, Dr. McKnight 4 noted that Mr. Rielly has suffered the personality disorder since the onset of 5 adulthood, and the dementia and motor movement restrictions have existed since 6 Mr. Rielly’s 1981 car accident. (Tr. 42.) Dr. McKnight noted that Mr. Rielly 7 worked successfully from 2004 until 2007 despite suffering both disorders. (Tr. 8 42.) Accordingly, Dr. McKnight disagreed with the severity determinations made 9 by the other doctors and concluded that Mr. Rielly suffered only mild impairments. 10 11 (Tr. 42-45.) In short, four different examining medical sources found that Mr. Rielly 12 suffered some form of psychological or neurological limitation that could affect his 13 ability to work. Dr. McKnight, a nonexamining and nontreating source, disagreed. 14 The ALJ gave “some weight” to Dr. Bostwick’s findings and gave “little weight” 15 to the findings of Dr. Forsyth, Dr. Islam-Zwart, and Dr. Pollack. (Tr. 14-15.) The 16 ALJ gave “significant weight” to the testimony of Dr. McKnight. (Tr. 16.) The 17 ALJ included no psychological limitations in his RFC. (Tr. 17.) 18 The testimony of Dr. McKnight alone cannot be the sole basis for rejection 19 of the examining medical sources. Lester v. Chater, 81 F.3d 821, 831 (9th Cir. 20 1995). Instead, where the opinion of an examining physician is contradicted by ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 14 1 other medical evidence, the ALJ must provide specific and legitimate reasons for 2 rejecting the examining source. Id. at 830-31. The ALJ relied on the same 3 grounds for discounting each of the examining medical sources: first, that the 4 opinions of the medical experts were not consistent with the objective medical 5 evidence; and second, that the opinions of the medical experts were not consistent 6 with Mr. Rielly’s work history. (Tr. 14-15.) 7 With regard to consistency with the objective medical evidence, the Court 8 concludes that the ALJ failed to provide specific reasons supported by substantial 9 evidence in the record to reject the opinions of the examining sources. Each of the 10 examining sources used various tests to examine Mr. Rielly. (Tr. 284, 293, 317- 11 19, 369-71). The ALJ fails to explain how these tests are deficient or how the 12 conclusions drawn by the examiners are unsupported by the tests. 13 With regard to Mr. Rielly’s work history, the Court finds that the ALJ has 14 provided a specific and legitimate basis for rejecting the testimony of the 15 examining medical sources. The examiners’ opinions that Mr. Rielly would have 16 significant limitations to his ability to work are belied by the fact that Mr. Rielly 17 was employed with few gaps from April of 2004 until October of 2007. (Tr. 158.) 18 None of the examiners’ opinions contradict Dr. McKnight’s testimony that onset of 19 the personality disorder, dementia, and motor limitations occurred prior to 2004. 20 (See Tr. 278-321, 366-75.) Additionally, the record supports the finding that Mr. ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 15 1 Rielly’s loss of employment was due to his criminal history and reports of theft 2 from his employers, not due to any impairment. (Tr. 50-51, 316-17.) None of the 3 medical evidence identifies a new trauma suffered by Mr. Rielly or a basis for 4 expecting that Mr. Rielly’s symptoms have worsened. Given Mr. Rielly’s ability 5 to work despite his impairments, the ALJ’s decision to reject the opinions of Mr. 6 Rielly’s examining mental health professionals was supported by the record. 7 With regard to Mr. Rielly’s physical limitations, Mr. Reilly was examined 8 by William M. Shanks, MD, on April 23, 2009. (Tr. 358.) Dr. Shanks diagnosed 9 Mr. Rielly as suffering multi-level degenerative disc disease of the lumbar spine, 10 mild in degree except at the L2-3 level due likely to an old fracture. (Tr. 360.) Dr. 11 Shanks opined that Mr. Rielly would be limited to sedentary work and would need 12 to be able to move around frequently to prevent stiffness in his spine. (Tr. 360.) 13 Dr. Shanks’ opinion that Mr. Rielly would be limited to sedentary work is 14 contradicted by the testimony of nonexamining medical expert Arthur Brovender, 15 MD. Dr. Brovender concluded, in agreement with state agency medical consultant 16 Alfred Scottolini, MD, that Mr. Rielly could perform at a medium exertional level. 17 (Tr. 36, 331, 356.) 18 In preferring the opinions of the testifying medical expert and the state 19 agency medical consultant over the opinion of Dr. Shanks, ALJ Palachuk noted 20 that despite Dr. Shanks’ opinion that Mr. Rielly would be limited to sedentary ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 16 1 work, Dr. Shanks found no radicular component to Mr. Rielly’s back injury. (Tr. 2 18.) ALJ Palachuk also pointed to Dr. Shanks’ opinion that the injury was not so 3 severe as to require surgery and that Mr. Rielly could be managed conservatively. 4 (Tr. 18.) For these reasons, ALJ Palachuk concluded that Dr. Shanks’ opinion was 5 not consistent with his own objective findings. (Tr. 18.) Such a reason is an 6 appropriate basis to reject the testimony of an examining physician. See Connett v. 7 Barnhart, 340 F.3d 871, 875 (9th Cir. 2003). Accordingly, the ALJ’s decision is 8 supported by substantial evidence in the record and is free of legal error. 9 IT IS HEREBY ORDERED: 10 1. The Plaintiff’s motion for summary judgment, ECF No. 15, is DENIED. 11 2. The Defendant’s motion for summary judgment, ECF No. 17, is 12 GRANTED. 13 3. JUDGMENT shall be entered for the Defendant. 14 IT IS SO ORDERED. 15 The District Court Executive is hereby directed to enter this Order, to 16 provide copies to counsel, and to close this file. 17 DATED this 2nd of January 2014. 18 19 20 s/Fred Van Sickle Fred Van Sickle Senior United States District Judge ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 17
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