Masters v. Colvin (previously Astrue), No. 2:2012cv05077 - Document 24 (E.D. Wash. 2013)
Court Description: ORDER GRANTING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT (ECF No. 19 AND DENYING PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT (ECF No. 17 ). CLOSE FILE. Signed by Magistrate Judge John T. Rodgers. (PH, Case Administrator)
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1 2 3 4 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF WASHINGTON 5 6 7 MARK ADIN MASTERS, 8 No. CV-12-5077-JTR Plaintiff, 9 v. 10 11 CAROLYN W. COLVIN, 1 12 Commissioner of Social Security, 13 ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT AND DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT Defendant. 14 15 BEFORE THE COURT are cross-Motions for Summary Judgment. ECF 16 Nos. 17, 19. Attorney David L. Lybbert represents Plaintiff; Special Assistant 17 United States Attorney Richard M. Rodriguez represents the Commissioner of 18 Social Security (Defendant). The parties have consented to proceed before a 19 magistrate judge. ECF No. 7. After reviewing the administrative record and the 20 briefs filed by the parties, the court GRANTS Defendant’s Motion for Summary 21 Judgment and DENIES Plaintiff’s Motion for Summary Judgment. 22 23 JURISDICTION On February 20, 2009, Plaintiff filed a Title II application for a period of 24 25 1 As of February 14, 2013, Carolyn W. Colvin succeeded Michael J. Astrue 26 as Acting Commissioner of Social Security. Pursuant to FED.R.CIV.P. 25(d), 27 Commissioner Carolyn W. Colvin is substituted as the Defendant, and this lawsuit 28 proceeds without further action by the parties. 42 U.S.C. § 405(g). ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT - 1 1 disability and disability insurance benefits, along with a Title XVI application for 2 supplemental security income, both alleging disability beginning August 1, 2004. 3 Tr. 19; 204. Plaintiff reported that he could not work due to “chronic back pain 4 damage to vertebrae and discs,” carpal tunnel syndrome in his right and left arms, 5 depression, anxiety, knee problems, foot problems, nerve damage in his arms, and 6 Hepatitis C. Tr. 181. Plaintiff’s claim was denied initially and on reconsideration, 7 and he requested a hearing before an administrative law judge (ALJ). Tr. 82-138. 8 A hearing was held on January 27, 2011, at which vocational expert K. Diane 9 Kramer, medical expert Thomas McKnight, Ph.D., medical expert Richard Hutson, 10 M.D., and Plaintiff, who was represented by counsel, testified. Tr. 34-81. ALJ 11 Marie Palachuk presided. Tr. 36. The ALJ denied benefits on April 19, 2011. Tr. 12 19-29. The instant matter is before this court pursuant to 42 U.S.C. § 405(g). 13 14 STATEMENT OF FACTS The facts have been presented in the administrative hearing transcript, the 15 ALJ’s decision, and the briefs of the parties and, thus, they are only briefly 16 summarized here. At the time of the hearing, Plaintiff was 50 years old, divorced, 17 living in a travel trailer in Kennewick, Washington. Tr. 55; 172. He fathered a 9 18 year-old child, who lives in Pasco, Washington. Tr. 54. Plaintiff dropped out of 19 school in the 9th grade, and later earned a GED. Tr. 55. 20 Plaintiff’s past work includes groundskeeper at a trailer park, a construction 21 worker, forklift mechanic, brake technician, warehouse worker, and siding 22 installer. Tr. 55; 76. His most recent job was in 2008, as a groundskeeper, and he 23 was fired after he had a confrontation with one of the tenants. Tr. 57. 24 Plaintiff has not worked since 2008, and he said he has “constant dull pain” 25 in his back, sudden twists cause sharp pain, and about twice per year he “throws” 26 his back out “entirely.” Tr. 63. He also said he has lost strength in his hands and 27 he occasionally loses his grip. Tr. 62. Plaintiff testified that he is anxious and 28 depressed, he feels lethargic, he does not want to be around people, and he dwells ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT - 2 1 on his mother’s death. Tr. 64. He said he is easily distracted, has difficulty 2 remembering things, and he occasionally experiences vertigo. Tr. 66-67; 71. 3 Plaintiff said he has to take breaks to rest while doing household chores such as 4 washing dishes, laundry, vacuuming, and sweeping. Tr. 67. 5 Plaintiff said he had a “drinking problem” in 2005, after his divorce. Tr. 65. 6 He admitted he had two DUIs and as a result, he lost his driver’s license. Tr. 72. 7 Plaintiff said alcohol was a problem until 2008, but the last time he drank alcohol 8 was December, 2009. Tr. 65-66. He said that between August 2008 and 9 December 2009, he drank moderately and smoked marijuana about once per 10 month. Tr. 66. 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 STANDARD OF REVIEW In Edlund v. Massanari, 253 F.3d 1152, 1156 (9th Cir. 2001), the court set out the standard of review: A district court’s order upholding the Commissioner’s denial of benefits is reviewed de novo. Harman v. Apfel, 211 F.3d 1172, 1174 (9th Cir. 2000). The decision of the Commissioner may be reversed only if it is not supported by substantial evidence or if it is based on legal error. Tackett v. Apfel, 180 F.3d 1094, 1097 (9th Cir. 1999). Substantial evidence is defined as being more than a mere scintilla, but less than a preponderance. Id. at 1098. Put another way, substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. Richardson v. Perales, 402 U.S. 389, 401 (1971). If the evidence is susceptible to more than one rational interpretation, the court may not substitute its judgment for that of the Commissioner. Tackett, 180 F.3d at 1097; Morgan v. Commissioner of Social Sec. Admin., 169 F.3d 595, 599 (9th Cir. 1999). The ALJ is responsible for determining credibility, resolving conflicts in 26 medical testimony, and resolving ambiguities. Andrews v. Shalala, 53 F.3d 1035, 27 1039 (9th Cir. 1995). The ALJ’s determinations of law are reviewed de novo, 28 although deference is owed to a reasonable construction of the applicable statutes. ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT - 3 1 2 McNatt v. Apfel, 201 F.3d 1084, 1087 (9th Cir. 2000). It is the role of the trier of fact, not this court, to resolve conflicts in 3 evidence. Richardson, 402 U.S. at 400. If evidence supports more than one 4 rational interpretation, the court may not substitute its judgment for that of the 5 Commissioner. Tackett, 180 F.3d at 1097; Allen v. Heckler, 749 F.2d 577, 579 6 (9th Cir. 1984). Nevertheless, a decision supported by substantial evidence will 7 still be set aside if the proper legal standards were not applied in weighing the 8 evidence and making the decision. Brawner v. Secretary of Health and Human 9 Services, 839 F.2d 432, 433 (9th Cir. 1988). If substantial evidence exists to 10 support the administrative findings, or if conflicting evidence exists that will 11 support a finding of either disability or non-disability, the Commissioner’s 12 determination is conclusive. Sprague v. Bowen, 812 F.2d 1226, 1229-1230 (9th 13 Cir. 1987). 14 15 SEQUENTIAL PROCESS The Commissioner has established a five-step sequential evaluation process 16 for determining whether a person is disabled. 20 C.F.R. §§ 404.1520(a), 17 416.920(a); see Bowen v. Yuckert, 482 U.S. 137, 140-42 (1987). In steps one 18 through four, the burden of proof rests upon the claimant to establish a prima facie 19 case of entitlement to disability benefits. Tackett, 180 F.3d at 1098-99. This 20 burden is met once a claimant establishes that a physical or mental impairment 21 prevents him from engaging in his previous occupation. 22 404.1520(a)(4), 416.920(a)(4). If a claimant cannot do his past relevant work, the 23 ALJ proceeds to step five, and the burden shifts to the Commissioner to show that 24 (1) the claimant can make an adjustment to other work; and (2) specific jobs exist 25 in the national economy which claimant can perform. Batson v. Commissioner of 26 Social Sec. Admin., 359 F.3d 1190, 1193-94 (2004). If a claimant cannot make an 27 adjustment to other work in the national economy, a finding of “disabled” is made. 28 20 C.F.R. §§ 404.1520(a)(4)(I-v), 416.920(a)(4)(I-v). 20 C.F.R. §§ ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT - 4 ALJ’S FINDINGS 1 2 At step one of the sequential evaluation process, the ALJ found Plaintiff has 3 not engaged in substantial gainful activity since August 1, 2008, the amended onset 4 date.2 Tr. 21. At step two, the ALJ found Plaintiff suffered from the severe 5 impairments of degenerative disc disease of the lumbar spine, status post bilateral 6 cubital tunnel release, status post bilateral carpal tunnel release, and mood disorder 7 secondary to medical condition. Tr. 21. At step three, the ALJ found Plaintiff’s 8 impairments, alone and in combination, did not meet or medically equal one of the 9 listed impairments. Tr. 23. The ALJ determined that Plaintiff had the residual 10 11 12 13 14 15 16 17 18 19 20 21 functional capacity (“RFC”) “to perform a narrow range” of light work: Specifically, the claimant can lift 20 pounds occasionally and 10 pounds frequently. He can stand, walk and/or sit for approximately 6 hours in an 8-hour workday. He can frequently balance, stoop, crouch, and kneel, but can only occasionally climb stairs and crawl. He should never climb ladders, ropes, or scaffolds. He can occasionally reach overhead with the right upper extremity, but he can frequently reach overhead with the left upper extremity. He can occasionally handle, finger, and feel with the right upper extremity, but can frequently do so with the left upper extremity. He should avoid concentrated exposure to extreme temperatures, vibrations, unprotected heights, and moving machinery. He can carry out complex multistep tasks, but his contact with the public and coworkers should be limited to only basic, superficial contact. Tr. 23-24. 22 At step four, the ALJ found that Plaintiff is unable to perform any past 23 relevant work. Tr. 28. At step five, the ALJ concluded that considering Plaintiff’s 24 age, education, work experience, and residual functional capacity, jobs exist in 25 significant numbers in the national economy that Plaintiff can perform, such as 26 27 28 2 During the Administrative hearing, Plaintiff amended his onset date to August 1, 2008. Tr. 38. ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT - 5 1 survey worker, mail clerk, and sorter. Tr. 28-29. The ALJ concluded Plaintiff was 2 not disabled as defined by the Social Security Act. Tr. 29. 3 ISSUES Plaintiff contends the ALJ erred by: (1) finding Plaintiff’s testimony about 4 5 the severity of his symptoms was not credible; (2) improperly weighing the 6 medical evidence; and (3) failing to provide a complete hypothetical to the 7 vocational expert.3 ECF No. 18 at 12-18. 8 9 10 DISCUSSION A. Credibility Plaintiff contends that the ALJ erred by relying exclusively upon the absence 11 of supporting objective medical evidence in determining Plaintiff’s credibility. 12 ECF No. 18 at 15. The ALJ is responsible for determining credibility. Andrews, 13 53 F.3d at 1039. Unless affirmative evidence indicates malingering, the ALJ's 14 reasons for rejecting the claimant's testimony must be "clear and convincing." 15 Lester v. Chater, 81 F.3d 821, 834 (9th Cir. 1996). The ALJ's findings must be 16 supported by specific, cogent reasons. Rashad v. Sullivan, 903 F.2d 1229, 1231 17 (9th Cir. 1990). "General findings are insufficient; rather, the ALJ must identify 18 what testimony is not credible and what evidence undermines the claimant's 19 complaints." Reddick v. Chater, 157 F.3d 715, 722 (9th Cir. 1998), quoting Lester, 20 81 F.3d at 834. 21 To determine whether the claimant's testimony regarding the severity of the 22 symptoms is credible, the ALJ may consider, for example: (1) ordinary techniques 23 24 3 Plaintiff’s brief lists four issues for the court’s consideration. Plaintiff’s 25 first issue is an argument that the ALJ erred in the credibility determination by 26 relying solely upon a lack of objective medical evidence to support Plaintiff’s 27 claim. ECF No. 18 at 12-14. In this opinion, Plaintiff’s first argument is addressed 28 in the credibility analysis under section (1)(a) titled “Objective Medical Evidence.” ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT - 6 1 of credibility evaluation, such as the claimant's reputation for lying, prior 2 inconsistent statements concerning the symptoms, and other testimony by the 3 claimant that appears less than candid; (2) unexplained or inadequately explained 4 failure to seek treatment or to follow a prescribed course of treatment; and (3) the 5 claimant's daily activities. See, e.g., Fair v. Bowen, 885 F.2d 597, 602-04 (9th Cir. 6 1989); See Bunnell v. Sullivan, 947 F.2d 341, 346-47 (9th Cir. 1991). 7 In this case, the ALJ stated that Plaintiff’s assertions about the intensity, 8 persistence and limiting effects of his symptoms are not credible, and concluded: 9 “[c]laimant’s credibility is undercut by his inconstant reporting of drug use and 10 work activity as is explained thoroughly below.” Tr. 24. The ALJ’s decision 11 briefly addresses credibility, but the analysis of the medical evidence is 12 interspersed with observations related to Plaintiff’s credibility. Tr. 25-27. 13 1. Objective Medical Evidence 14 An ALJ may not discredit a Plaintiff’s testimony about the severity of 15 symptoms based solely on the conclusion that the assertions are unsupported by 16 objective medical evidence. See Bunnell, 947 F.2d at 347-48. However, conflicts 17 between a Plaintiff’s testimony of subjective complaints and the objective medical 18 evidence in the record can constitute specific and substantial reasons that 19 undermine credibility. Morgan, 169 F.3d at 600. "While subjective pain 20 testimony cannot be rejected on the sole ground that it is not fully corroborated by 21 objective medical evidence, the medical evidence is still a relevant factor in 22 determining the severity of the claimant's pain and its disabling effects." Rollins v. 23 Massanari, 261 F.3d 853, 857 (9th Cir. 2001); see also Burch v. Barnhart, 400 24 F.3d 676, 681 (9th Cir. 2005) ("Although lack of medical evidence cannot form the 25 sole basis for discounting pain testimony, it is a factor that the ALJ can consider in 26 his credibility analysis."); SSR 96-7p (the ALJ "must consider the entire case 27 record, including the objective medical evidence" in determining credibility, but 28 statements "may not be disregarded solely because they are not substantiated by ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT - 7 1 2 objective medical evidence"). In this case, the ALJ concluded that the “objective medical evidence … 3 cannot be fully reconciled with the level of pain and limiting effects of the 4 impairments that the claimant has alleged.” Tr. 25. Contrary to Plaintiff’s 5 contention, the lack of objective medical evidence was only one of the factors the 6 ALJ relied upon in determining credibility. Plaintiff’s confusion is understandable 7 in light of the unusual structure of the ALJ opinion that includes the credibility 8 analysis within medical opinion analysis. Tr. 25-27. Because the ALJ did not rely 9 solely upon this ground, citing the lack of objective medical evidence supporting 10 Plaintiff’s claims about the severity of his symptoms was not error. 11 2. Inconsistent Reporting of Alcohol Use 12 Inconsistent statements regarding alcohol use is a proper factor to consider 13 in determining a Plaintiff’s credibility. Verduzco v. Apfel, 188 F.3d 1087, 1090 14 (9th Cir. 1999) (ALJ properly relied on inconsistent statements regarding the 15 claimant's drinking as a basis to reject his testimony). 16 In discussing the medical evidence, the ALJ noted that Plaintiff denied the 17 use of street drugs or alcohol when he was examined by a cardiologist. Tr. 25. 18 Additionally, the ALJ discredited a November 2008 DSHS evaluation because 19 during the exam Plaintiff denied alcohol use, but the ALJ recalled Plaintiff’s 20 testimony at the administrative hearing as admitting he was “drinking consistently 21 during that period.” Tr. 27. The ALJ concluded, “[a]gain, claimant’s 22 misinformation regarding his substance use to his examiner is another example of 23 him providing inconsistent and inaccurate information to an examining medical 24 source[] which undercuts his credibility.” Tr. 27. 25 The evidence is unclear about the frequency of Plaintiff’s drinking in 2008. 26 At the administrative hearing, Plaintiff testified that alcohol was a problem for him 27 until around 2008. Tr. 65. Plaintiff explained that between August 2008 and 28 December 2009, he was drinking a “moderate amount. I think on a couple of ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT - 8 1 2 occasions I drank.” Tr. 66. The record reveals a June 26, 2009, chart note indicating that Plaintiff 3 denied alcohol use to Iyad Jamaili, M.D., a cardiologist. Tr. 461. 4 later, Plaintiff admitted to a different provider, Robert Davidson, M.S.W., that he 5 had “relapsed and drank alcohol a couple of weeks ago and was binge drinking for 6 3 days.” Tr. 495. 7 Eleven days The evidence does not support the ALJ’s characterization that Plaintiff 8 “drank consistently” during the time period surrounding the November 4, 2008, 9 DSHS Psychological/Psychiatric Evaluation. Tr. 27; 264-65. Notwithstanding the 10 ALJ’s mischaracterization, the evidence reveals that Plaintiff denied using alcohol 11 in late June 2009, and less than two weeks later he admitted he had been drinking 12 during that time frame. As a result, the record supports the ALJ’s conclusion that 13 Plaintiff was inconsistent in reporting his alcohol use. 14 3. Unreported work 15 Failure to disclose post-onset work provides substantial evidence to support 16 a finding of diminished credibility. See 20 C.F.R. § 404.1571 ("Even if the work 17 you have done was not substantial gainful activity, it may show that you are able to 18 do more work than you actually did."). 19 The ALJ noted that Plaintiff described an incident in 2009 related to anxiety 20 that occurred at Plaintiff’s workplace, yet Plaintiff reported no earnings during that 21 period and did not disclose a corresponding job on his work history or during the 22 hearing. Tr. 26. The ALJ concluded, “these types of inconsistencies in the record 23 tend to undercut claimant’s reliability/credibility in any self-reported information.” 24 Tr. 26. 25 The record reveals that during the course of an examination related to an 26 anxiety attack, Plaintiff referenced that he had been working. During an April 17, 27 2009, exam by Greg Klinger, PA-C, Mr. Klinger noted that Plaintiff described an 28 anxiety-related episode “several months ago where the patient was at his work … ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT - 9 1 the patient’s co-worker asked if he should call an ambulance ….” Tr. 452. This is 2 the sole reference in the record to Plaintiff’s working past his two-month job in 3 2008. As the ALJ noted, no job in 2009 is reflected on Plaintiff’s certified 4 earnings record or in his application paperwork. Tr. 165; 182. 5 The record is not perfectly clear, but this notation gives rise to an inference 6 that Plaintiff worked sometime after August 2008, and “a few months” prior to 7 April 17, 2009. Tr. 452. An ALJ may draw inferences "logically flowing from 8 the evidence." Sample v. Schweiker, 694 F.2d 639, 642 (9th Cir. 1982). As a 9 result, the evidence can be viewed as supporting this factor in the ALJ’s credibility 10 determination. Because the ALJ relied upon proper “clear and convincing” factors 11 that were supported by substantial evidence in the record, the ALJ’s credibility 12 determination was not error. 13 B. 14 Medical Evidence The Plaintiff argues that the ALJ erred in weighing the medical evidence. 15 ECF No. 18 at 15-16. As the Defendant points out, Plaintiff’s argument related to 16 this issue lacks detailed legal analysis.4 ECF No. 20 at 14. The court ordinarily 17 will not consider matters on appeal that are not specifically and distinctly argued in 18 an appellant's opening brief. See Carmickle, 533 F.3d at n.2. However, after a 19 careful review of Plaintiff’s brief, it appears Plaintiff intended to raise the issue 20 that the ALJ improperly rejected the opinion of Jan Kouzes, Ed.D. ECF No. 18 at 21 10. 22 The ALJ “discredit[ed]” Dr. Kouzes’ assessment that Plaintiff had several 23 24 4 In Plaintiff’s argument section of his brief, a single sentence of legal 25 analysis is provided related to the medical evidence issue: “The Administrative 26 Law Judge has not provided adequate reasoning to support her decision to 27 disregard the medical information in the file regarding as [sic] the claimant[’]s 28 functional capacities.” ECF No. 18 at 16. ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT - 10 1 marked limitations. Tr. 27. The ALJ concluded that Dr. Kouzes’ assessment was 2 internally inconsistent with the exam and was based on misinformation that 3 Plaintiff had stopped drinking alcohol. Tr. 27. Also, the ALJ stated that Dr. 4 Kouzes “had no description of cognitive limits during the actual evaluation and 5 testing, yet he listed moderate to marked limitations in cognitive areas in the check 6 mark portion of the evaluation.” Tr. 27. 7 On November 4, 2008, Jan Kouzes, Ed.D., completed a Psychological/ 8 Psychiatric Evaluation. Tr. 262-65. Dr. Kouzes assessed Plaintiff with marked 9 functional limitations in the abilities to (1) exercise judgment and make decisions, 10 and (2) relate appropriately to coworkers and supervisors. Tr. 264. Dr. Kouzes 11 also assessed Plaintiff with several moderate social limitations including the ability 12 to interact appropriately in public contacts, respond appropriately to and tolerate 13 the pressure and expectations of a normal work setting, to care for self, including 14 personal hygiene and appearance, and in the ability to control physical or motor 15 movements and maintain appropriate behavior. Tr. 264. 16 First, the ALJ found that the opinions expressed in the evaluation were 17 internally inconsistent with the exam findings. Tr. 27. The ALJ provided no 18 explanation, or examples to support this conclusion, and a review of the evaluation 19 does not support the ALJ’s assertion. Dr. Kouzes’ handwritten narratives do not 20 contradict the ratings in the checked boxes. Tr. 264. Dr. Kouzes’ handwritten 21 notes during the exam reflect observations about Plaintiff as well as his responses. 22 For example, Dr. Kouzes noted Plaintiff’s mood was cooperative but irritable, his 23 mental activity content was depressed, and he reported he has no friends, does not 24 belong to any groups, does not attend church and no longer is interested in his 25 former hobbies. Tr. 266-67. The record does not support the ALJ’s conclusion 26 that Dr. Kouzes’ exam findings were inconsistent with the boxes checked on the 27 evaluation form. 28 Next, the ALJ found that the evaluation was entitled to no weight because it ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT - 11 1 was “based on misinformation” that Plaintiff had stopped drinking alcohol. Tr. 27. 2 As discussed above, the ALJ mischaracterized Plaintiff’s testimony that he was 3 “drinking consistently” in 2008, and the evidence is not clear about the frequency 4 of his drinking in 2008. Moreover, the evaluation reflects in several places that Dr. 5 Kouzes was aware of Plaintiff’s historical problems with alcohol. For example, 6 Dr. Kouzes noted alcohol or drug abuse was indicated, Plaintiff minimized the 7 connection between alcohol and his depression, and Dr. Kouzes recommended 8 relapse prevention and peer group therapy. Tr. 263-65. However, because 9 Plaintiff told Dr. Kouzes that he had quit drinking altogether, which was untrue, 10 the ALJ’s conclusion was reasonable that Dr. Kouzes may have evaluated 11 Plaintiff’s impairments differently if he had accurate information about Plaintiff’s 12 alcohol use. As a result, the ALJ’s discounting Dr. Kouzes opinion because the 13 doctor had inaccurate information is supported by substantial evidence in the 14 record. 15 Finally, the ALJ asserted that the evaluation reflected “no description of 16 cognitive limits during the actual evaluation and testing, yet he listed moderate to 17 marked limitations in cognitive areas in the check mark portion of the evaluation.” 18 Tr. 27. Relevant factors in evaluating a medical opinion are the amount of 19 evidence supporting the opinion and the quality of the explanation provided in the 20 opinion. Orn v. Astrue, 495 F.3d 625, 631 (9th Cir. 2007). Dr. Kouzes examined 21 Plaintiff and administered a diagnostic mental status exam, but did not provide a 22 separate narrative description other than the few sentences on the evaluation form. 23 Tr. 264-67. The lack of supporting evidence in the form of notes or narrative 24 description related to Plaintiff’s cognitive functioning is a proper consideration in 25 determining the weight to give to Dr. Kouzes’ opinion, and the ALJ did not err in 26 considering this factor. See Meanel v. Apfel, 172 F.3d 1111, 1113 (9th Cir.1999) 27 (treating physician's conclusory, minimally supported opinion rejected); see also 28 20 CFR 404.1527(b)(2). ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT - 12 1 One of the three reasons provided by the ALJ for rejecting Dr. Kouzes’ 2 opinion is not supported by the record. Harmless error exists where it is "clear 3 from the record that an ALJ's error was 'inconsequential to the ultimate 4 nondisability determination.'" Robbins v. SSA, 466 F.3d 880, 885 (9th Cir. 2006) 5 (citing Stout v. Comm'r, 454 F.3d 1050, 1055-56 (9th Cir. 2006). The court may 6 not reverse the ALJ's decision if the error was harmless. Batson, 359 F.3d at 1197 7 (error harmless where error does not “negate the validity of the ALJ's ultimate 8 conclusion”). 9 In this case, the single error in analyzing the medical opinion is 10 inconsequential to the ultimate nondisability decision. The ALJ’s remaining 11 reasons for giving little weight to Dr. Kouzes’ opinion were specific and legitimate 12 and supported by substantial evidence in the record and, thus, the error was 13 harmless. 14 Moreover, an ALJ is not bound to a medical source's opinion concerning a 15 claimant's limitations on the ultimate issue of disability. Magallanes v. Bowen, 16 881 F.2d 747, 751 (9th Cir. 1989). If the record as a whole does not support a 17 medical source's opinion, the ALJ may reject that opinion. Batson, 359 F.3d at 18 1195. The ALJ is the final arbiter with respect to resolving ambiguities in the 19 medical evidence. Tommasetti v. Astrue, 533 F.3d 1035, 1041-1042 (9th Cir. 20 2008), citing Andrews, 53 F.3d at 1039-40 (ALJ is responsible for resolving 21 conflicts in medical testimony and ambiguities). 22 Several medical records indicate Plaintiff can sustain work. For example, 23 Dr. Hutson, an orthopedic surgeon, testified Plaintiff does not meet the Listing for 24 degenerative disc disease, and he endorsed the June 5, 2009, physical assessment 25 that indicated a sedentary work limitation was too restrictive and not supported by 26 the objective medical evidence. Tr. 42-43; 448-49. 27 28 Similarly, the record reveals an absence of medical evidence that indicates Plaintiff is incapable of working due to mental impairments. The testifying ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT - 13 1 medical expert Dr. McKnight opined that Plaintiff has “mild anxiety, depression 2 secondary to mild, possibly moderate orthopedic issues ….” Tr. 50. Dr. 3 McKnight noted that “substance abuse is certainly a contributing factor here.” Tr. 4 50. Dr. McKnight concluded that Plaintiff’s mental impairment does not satisfy 5 the diagnostic criteria to meet any Listings. Tr. 50-51. 6 If the ALJ's decision is supported by the reasonable inferences from the 7 record and evidence exists that supports more than one rational interpretation, the 8 court must affirm the ALJ's decision. See Batson, 359 F.3d at 1193. In other 9 words, the court may not substitute its judgment for the judgment of the ALJ. See 10 Batson, 359 F.3d at 1196. In sum, the ALJ’s error in rejecting the opinion of Dr. Kouzes by relying 11 12 upon a single reason that was not supported by the record does not negate the 13 validity of the ALJ’s ultimate conclusion that Plaintiff was not disabled and 14 therefore is harmless error. 15 C. 16 Hypothetical The Plaintiff argues that the ALJ erred by relying upon the Vocational 17 Expert's testimony because the ALJ allegedly posed an incomplete hypothetical 18 based on an inaccurate RFC assessment. ECF No. 18 at 16. Specifically, the 19 Plaintiff contends that the hypothetical was deficient because it failed to include all 20 of Plaintiff’s limitations. ECF No. 18 at 17. 21 The hypothetical that ultimately served as the basis for the ALJ's 22 determination, i.e., the hypothetical that is predicated on the ALJ's final RFC 23 assessment, must account for all of the limitations and restrictions of the particular 24 claimant. Bray v. Comm'r of Soc. Sec. Admin., 554 F.3d 1219, 1228 (9th Cir. 25 2009). "If an ALJ's hypothetical does not reflect all of the claimant's limitations, 26 then the expert's testimony has no evidentiary value to support a finding that the 27 claimant can perform jobs in the national economy." Id. (citation and quotation 28 marks omitted). However, the ALJ "is free to accept or reject restrictions in a ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT - 14 1 hypothetical question that are not supported by substantial evidence ." Greger v. 2 Barnhart, 464 F.3d 968, 973 (9th Cir.2006). 3 Furthermore, as the Ninth Circuit has observed, an ALJ may synthesize and 4 translate assessed limitations into an RFC assessment (and subsequently into a 5 hypothetical to the vocational expert) without repeating each functional limitation 6 verbatim in the RFC assessment or hypothetical. Stubbs-Danielson v. Astrue, 539 7 F.3d 1169, 1173-74 (9th Cir. 2008) (holding that an ALJ's RFC assessment that a 8 claimant could perform simple tasks adequately captured restrictions related to 9 concentration, persistence, or pace, because the assessment was consistent with the 10 medical evidence). A claimant fails to establish that a Step 5 determination is 11 flawed by simply restating argument that the ALJ improperly discounted certain 12 evidence, when the record demonstrates the evidence was properly rejected. 13 Stubbs-Danielson, 539 F.3d at 1175-76. 14 The limitations omitted from the hypothetical in this case were identified in 15 opinions that were properly discounted by the ALJ. Plaintiff fails to articulate an 16 argument, and instead provides record cites without analysis. ECF No. 18 at 16- 17 17, citing Tr. 382;5 477-83;6 452;7 and 526.8 The cited records do not support 18 19 5 Heather L. Phipps, D.O. record from March 30, 2009, indicating MRI 20 revealed “some arthritis impingement” and treatment plan is anti-inflammatory 21 medicine and exercise. 22 6 Chart notes from Kadlec Clinic, noting diagnosis of Hepatitis C and the 23 November 11, 2010, MRI of the lumbar spine results as “similar to his previous 24 lumbar spine MRI which is dated 5/5/2004.” 25 26 27 28 7 Chart note from Greg Klinger, PA-C, dated April 17, 2009, noting Plaintiff’s episodic anxiety attack at unreported workplace. 8 December 10, 2010, chest CT scan revealing thoracic spondylosis and “mild diffuse centrilobular emphysema.” ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT - 15 1 Plaintiff’s argument that the hypothetical was flawed. Accordingly, the proposed 2 hypothetical was not deficient, and the ALJ properly relied upon the vocational 3 expert testimony. 4 5 CONCLUSION Having reviewed the record and the ALJ’s conclusions, this court finds that 6 the ALJ’s decision is supported by substantial evidence and free of legal error. 7 Accordingly, 8 IT IS HEREBY ORDERED: 9 1. Defendant’s Motion for Summary Judgment, ECF No. 19, is 10 GRANTED. 11 2. Plaintiff’s Motion for Summary Judgment (ECF No. 17) is DENIED. 12 IT IS SO ORDERED. The District Court Executive is directed to file this 13 Order, provide copies to the parties, enter judgment in favor of Defendant, and 14 CLOSE this file. 15 DATED December 19, 2013. 16 17 18 _____________________________________ JOHN T. RODGERS UNITED STATES MAGISTRATE JUDGE 19 20 21 22 23 24 25 26 27 28 ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT - 16
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