Walker v. Commissioner of Social Security, No. 2:2018cv00052 - Document 18 (E.D. Wash. 2019)
Court Description: ORDER Denying 15 Plaintiff's Motion for Summary Judgment and Granting 16 Defendant's Motion for Summary Judgment. Signed by Magistrate Judge Mary K. Dimke. (MO, Courtroom Deputy)
Download PDF
<![CDATA[
Walker v. Commissioner of Social Security Doc. 18 1 2 3 FI LED I N THE U.S. DI STRI CT COURT EASTERN DI STRI CT OF WASHI NGTON 4 Feb 06, 2019 SEAN F. MCAVOY, CLERK 5 UNITED STATES DISTRICT COURT 6 EASTERN DISTRICT OF WASHINGTON 7 STEPHANIE W. O/B/O JONATHAN W., 8 Plaintiff, 9 vs. 10 COMMISSIONER OF SOCIAL SECURITY, 11 Defendant. No. 2:18-cv-00052-MKD ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ECF Nos. 15, 16 12 13 Before the Court are the parties’ cross-motions for summary judgment. ECF 14 Nos. 15, 16. The parties consented to proceed before a magistrate judge. ECF No. 15 7. The Court, having reviewed the administrative record and the parties’ briefing, 16 is fully informed. For the reasons discussed below, the Court denies Plaintiff’s 17 Motion, ECF No. 15, and grants Defendant’s Motion, ECF No. 16. 18 19 20 2 ORDER - 1 Dockets.Justia.com 1 2 JURISDICTION The Court has jurisdiction over this case pursuant to 42 U.S.C. §§ 405(g); 3 1383(c)(3). 4 5 STANDARD OF REVIEW A district court’s review of a final decision of the Commissioner of Social 6 Security is governed by 42 U.S.C. § 405(g). The scope of review under § 405(g) is 7 limited; the Commissioner’s decision will be disturbed “only if it is not supported 8 by substantial evidence or is based on legal error.” Hill v. Astrue, 698 F.3d 1153, 9 1158 (9th Cir. 2012). “Substantial evidence” means “relevant evidence that a 10 reasonable mind might accept as adequate to support a conclusion.” Id. at 1159 11 (quotation and citation omitted). Stated differently, substantial evidence equates to 12 “more than a mere scintilla[,] but less than a preponderance.” Id. (quotation and 13 citation omitted). In determining whether the standard has been satisfied, a 14 reviewing court must consider the entire record as a whole rather than searching 15 for supporting evidence in isolation. Id. 16 In reviewing a denial of benefits, a district court may not substitute its 17 judgment for that of the Commissioner. Edlund v. Massanari, 253 F.3d 1152, 18 1156 (9th Cir. 2001). If the evidence in the record “is susceptible to more than one 19 rational interpretation, [the court] must uphold the ALJ’s findings if they are 20 supported by inferences reasonably drawn from the record.” Molina v. Astrue, 674 2 ORDER - 2 1 F.3d 1104, 1111 (9th Cir. 2012). Further, a district court “may not reverse an 2 ALJ’s decision on account of an error that is harmless.” Id. An error is harmless 3 “where it is inconsequential to the [ALJ’s] ultimate nondisability determination.” 4 Id. at 1115 (quotation and citation omitted). The party appealing the ALJ’s 5 decision generally bears the burden of establishing that it was harmed. Shinseki v. 6 Sanders, 556 U.S. 396, 409-10 (2009). 7 8 FIVE-STEP EVALUATION PROCESS A claimant must satisfy two conditions to be considered “disabled” within 9 the meaning of the Social Security Act. First, the claimant must be “unable to 10 engage in any substantial gainful activity by reason of any medically determinable 11 physical or mental impairment which can be expected to result in death or which 12 has lasted or can be expected to last for a continuous period of not less than twelve 13 months.” 42 U.S.C. §§ 423(d)(1)(A), 1382c(a)(3)(A). Second, the claimant’s 14 impairment must be “of such severity that he is not only unable to do his previous 15 work[,] but cannot, considering his age, education, and work experience, engage in 16 any other kind of substantial gainful work which exists in the national economy.” 17 42 U.S.C. §§ 423(d)(2)(A), 1382c(a)(3)(B). 18 The Commissioner has established a five-step sequential analysis to 19 determine whether a claimant satisfies the above criteria. See 20 C.F.R. §§ 20 404.1520(a)(4)(i)-(v), 416.920(a)(4)(i)-(v). At step one, the Commissioner 2 ORDER - 3 1 considers the claimant’s work activity. 20 C.F.R. §§ 404.1520(a)(4)(i), 2 416.920(a)(4)(i). If the claimant is engaged in “substantial gainful activity,” the 3 Commissioner must find that the claimant is not disabled. 20 C.F.R. §§ 4 404.1520(b), 416.920(b). 5 If the claimant is not engaged in substantial gainful activity, the analysis 6 proceeds to step two. At this step, the Commissioner considers the severity of the 7 claimant’s impairment. 20 C.F.R. §§ 404.1520(a)(4)(ii), 416.920(a)(4)(ii). If the 8 claimant suffers from “any impairment or combination of impairments which 9 significantly limits [his or her] physical or mental ability to do basic work 10 activities,” the analysis proceeds to step three. 20 C.F.R. §§ 404.1520(c), 11 416.920(c). If the claimant’s impairment does not satisfy this severity threshold, 12 however, the Commissioner must find that the claimant is not disabled. 20 C.F.R. 13 §§ 404.1520(c), 416.920(c). 14 At step three, the Commissioner compares the claimant’s impairment to 15 severe impairments recognized by the Commissioner to be so severe as to preclude 16 a person from engaging in substantial gainful activity. 20 C.F.R. §§ 17 404.1520(a)(4)(iii), 416.920(a)(4)(iii). If the impairment is as severe or more 18 severe than one of the enumerated impairments, the Commissioner must find the 19 claimant disabled and award benefits. 20 C.F.R. §§ 404.1520(d), 416.920(d). 20 2 ORDER - 4 If the severity of the claimant’s impairment does not meet or exceed the 1 2 severity of the enumerated impairments, the Commissioner must pause to assess 3 the claimant’s “residual functional capacity.” Residual functional capacity (RFC), 4 defined generally as the claimant’s ability to perform physical and mental work 5 activities on a sustained basis despite his or her limitations, 20 C.F.R. §§ 6 404.1545(a)(1), 416.945(a)(1), is relevant to both the fourth and fifth steps of the 7 analysis. At step four, the Commissioner considers whether, in view of the claimant’s 8 9 RFC, the claimant is capable of performing work that he or she has performed in 10 the past (past relevant work). 20 C.F.R. §§ 404.1520(a)(4)(iv), 416.920(a)(4)(iv). 11 If the claimant is capable of performing past relevant work, the Commissioner 12 must find that the claimant is not disabled. 20 C.F.R. §§ 404.1520(f), 416.920(f). 13 If the claimant is incapable of performing such work, the analysis proceeds to step 14 five. 15 At step five, the Commissioner considers whether, in view of the claimant’s 16 RFC, the claimant is capable of performing other work in the national economy. 17 20 C.F.R. §§ 404.1520(a)(4)(v), 416.920(a)(4)(v). In making this determination, 18 the Commissioner must also consider vocational factors such as the claimant’s age, 19 education and past work experience. 20 C.F.R. §§ 404.1520(a)(4)(v), 20 416.920(a)(4)(v). If the claimant is capable of adjusting to other work, the 2 ORDER - 5 1 Commissioner must find that the claimant is not disabled. 20 C.F.R. §§ 2 404.1520(g)(1), 416.920(g)(1). If the claimant is not capable of adjusting to other 3 work, analysis concludes with a finding that the claimant is disabled and is 4 therefore entitled to benefits. 20 C.F.R. §§ 404.1520(g)(1), 416.920(g)(1). 5 The claimant bears the burden of proof at steps one through four above. 6 Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999). If the analysis proceeds to 7 step five, the burden shifts to the Commissioner to establish that (1) the claimant is 8 capable of performing other work; and (2) such work “exists in significant 9 numbers in the national economy.” 20 C.F.R. §§ 404.1560(c)(2), 416.960(c)(2); 10 Beltran v. Astrue, 700 F.3d 386, 389 (9th Cir. 2012). ALJ’S FINDINGS 11 On March 31, 2014, Plaintiff1 filed applications for Title II disability 12 13 insurance benefits and Title XVI supplemental security income benefits, alleging 14 on onset date of March 31, 2014. Tr. 1119-38. The applications were denied 15 initially, Tr. 1062-66, and on reconsideration, Tr. 1068-71. Plaintiff appeared at a 16 hearing before an administrative law judge (ALJ) on September 22, 2016. Tr. 95917 1013. On October 18, 2016, the ALJ denied Plaintiff’s claims. Tr. 51-77. 18 19 1 The claimant died on May 12, 2017. ECF No. 15 at 8. This opinion will refer to 20 the claimant as Plaintiff. 2 ORDER - 6 1 At step one, the ALJ found Plaintiff had not engaged in substantial gainful 2 activity since March 31, 2014, the alleged onset date. Tr. 57. At step two, the ALJ 3 found Plaintiff had the following severe impairments: lumbar and cervical 4 degenerative disc disease, left shoulder acromioclavicular joint osteoarthrosis, 5 osteoarthritis of the bilateral hands, IBS, bilateral carpal tunnel and ulnar 6 neuropathy, COPD, and GERD. Id. At step three, the ALJ found Plaintiff did not 7 have an impairment or combination of impairments that meets or medically equals 8 the severity of a listed impairment. Tr. 61. The ALJ then concluded that Plaintiff 9 had the RFC to perform light work with the following limitations: 10 11 12 13 14 [Plaintiff] is able to walk for four hours total in an eight-hour workday with normal breaks; he cannot climb ladders, ropes, or scaffolds, and can only occasionally perform all other postural activities; he is limited to occasional overhead reaching with the left upper extremity; he is limited to frequent fingering and occasional feeling; he is limited to handling no more than fifty percent of the workday; he requires ready access to a restroom throughout the workday; he can have only occasional exposure to extreme cold or heat, vibration, or pulmonary irritants; and he can have no exposure to hazards, such as unprotected heights or moving mechanical parts. 15 Tr. 62. 16 At step four, the ALJ found Plaintiff was unable to perform any past relevant 17 work. Tr. 70. At step five, the ALJ found that, considering Plaintiff’s age, 18 education, work experience, RFC, and testimony from a vocational expert, there 19 were other jobs that existed in significant numbers in the national economy that 20 Plaintiff could perform, such as production assembler, electronics worker, or mail 2 ORDER - 7 1 clerk. Tr. 71. The ALJ concluded Plaintiff was not under a disability, as defined 2 in the Social Security Act, from March 31, 2014, through October 18, 2016, the 3 date of the ALJ’s decision. Tr. 72. 4 On December 13, 2017, the Appeals Council denied review, Tr. 1-7, making 5 the ALJ’s decision the Commissioner’s final decision for purposes of judicial 6 review. See 42 U.S.C. § 1383(c)(3). 7 8 ISSUES Plaintiff seeks judicial review of the Commissioner’s final decision denying 9 him disability income benefits under Title II and supplemental security income 10 benefits under Title XVI of the Social Security Act. Plaintiff raises the following 11 issues for this Court’s review: 12 1. Whether the ALJ properly weighed Plaintiff’s symptom claims; 13 2. Whether the ALJ properly weighed the medical opinion evidence; 14 3. Whether the ALJ properly found depression was not a severe impairment 15 16 17 at step two; and 4. Whether the ALJ properly found at step five that Plaintiff was capable of performing other work in the national economy. 18 ECF No. 15 at 11. 19 20 2 ORDER - 8 1 DISCUSSION A. Plaintiff’s Symptom Claims 2 3 Plaintiff faults the ALJ for failing to rely on reasons that were clear and 4 convincing in discrediting his subjective symptom claims. ECF No. 15 at 15-16. 5 An ALJ engages in a two-step analysis to determine whether to discount a 6 claimant’s testimony regarding subjective symptoms.2 SSR 16-3p, 2016 WL 7 1119029, at *2. “First, the ALJ must determine whether there is objective medical 8 evidence of an underlying impairment which could reasonably be expected to 9 produce the pain or other symptoms alleged.” Molina, 674 F.3d at 1112 (quotation 10 marks omitted). “The claimant is not required to show that [his] impairment could 11 reasonably be expected to cause the severity of the symptom []he has alleged; []he 12 13 14 2 At the time of the ALJ’s decision in October 2016, the regulation that governed 15 the evaluation of symptom claims was SSR 16-3p, which superseded SSR 96-7p 16 effective March 24, 2016. SSR 16-3p; Titles II and XVI: Evaluation of Symptoms 17 in Disability Claims, 81 Fed. Reg. 15776, 15776 (Mar. 24, 2016). The ALJ’s 18 decision did not cite SSR 16-3p, but cited SSR 96-4p, which was rescinded 19 effective June 14, 2018, in favor of the more comprehensive SSR 16-3p. Neither 20 party argued any error in this regard. 2 ORDER - 9 1 need only show that it could reasonably have caused some degree of the 2 symptom.” Vasquez v. Astrue, 572 F.3d 586, 591 (9th Cir. 2009). 3 Second, “[i]f the claimant meets the first test and there is no evidence of 4 malingering, the ALJ can only reject the claimant’s testimony about the severity of 5 the symptoms if [the ALJ] gives ‘specific, clear and convincing reasons’ for the 6 rejection.” Ghanim v. Colvin, 763 F.3d 1154, 1163 (9th Cir. 2014) (citations 7 omitted). General findings are insufficient; rather, the ALJ must identify what 8 symptom claims are being discounted and what evidence undermines these claims. 9 Id. (quoting Lester v. Chater, 81 F.3d 821, 834 (9th Cir. 1995)); Thomas v. 10 Barnhart, 278 F.3d 947, 958 (9th Cir. 2002) (requiring the ALJ to sufficiently 11 explain why it discounted claimant’s symptom claims). “The clear and convincing 12 [evidence] standard is the most demanding required in Social Security cases.” 13 Garrison v. Colvin, 759 F.3d 995, 1015 (9th Cir. 2014) (quoting Moore v. Comm’r 14 of Soc. Sec. Admin., 278 F.3d 920, 924 (9th Cir. 2002)). 15 Factors to be considered in evaluating the intensity, persistence, and limiting 16 effects of an individual’s symptoms include: 1) daily activities; 2) the location, 17 duration, frequency, and intensity of pain or other symptoms; 3) factors that 18 precipitate and aggravate the symptoms; 4) the type, dosage, effectiveness, and 19 side effects of any medication an individual takes or has taken to alleviate pain or 20 other symptoms; 5) treatment, other than medication, an individual receives or has 2 ORDER - 10 1 received for relief of pain or other symptoms; 6) any measures other than treatment 2 an individual uses or has used to relieve pain or other symptoms; and 7) any other 3 factors concerning an individual’s functional limitations and restrictions due to 4 pain or other symptoms. SSR 16-3p, 2016 WL 1119029, at *7; 20 C.F.R. §§ 5 404.1529, 416.929 (2011). The ALJ is instructed to “consider all of the evidence 6 in an individual’s record,” “to determine how symptoms limit ability to perform 7 work-related activities.” SSR 16-3p, 2016 WL 1119029, at *2. 8 The ALJ found that Plaintiff’s medically determinable impairments could 9 reasonably be expected to cause the alleged symptoms, but that Plaintiff’s 10 statements concerning the intensity, persistence, and limiting effects of his 11 symptoms were not entirely consistent with the evidence. Tr. 63. 12 1. Lack of Supporting Medical Evidence 13 The ALJ found Plaintiff’s symptom complaints were not supported by the 14 objective medical evidence. Tr. 63-65. An ALJ may not discredit a claimant’s 15 symptom testimony and deny benefits solely because the degree of the symptoms 16 alleged is not supported by objective medical evidence. Rollins v. Massanari, 261 17 F.3d 853, 857 (9th Cir. 2001); Bunnell v. Sullivan, 947 F.2d 341, 346-47 (9th Cir. 18 1991); Fair v. Bowen, 885 F.2d 597, 601 (9th Cir. 1989); Burch v. Barnhart, 400 19 F.3d 676, 680 (9th Cir. 2005). However, the medical evidence is a relevant factor 20 in determining the severity of a claimant’s symptoms and their disabling effects. 2 ORDER - 11 1 Rollins, 261 F.3d at 857; 20 C.F.R. §§ 404.1529(c)(2), 416.929(c)(2) (2011). 2 Here, the ALJ considered Plaintiff’s individual symptom complaints and noted 3 where the medical evidence failed to corroborate Plaintiff’s symptom complaints. 4 Tr. 63-65; see, e.g., Tr. 1219 (normal gait); Tr. 1251 (full range of motion in 5 extremities and spine; full strength); Tr. 1265 (mildly decreased range of motion in 6 back); Tr. 1276 (full range of motion in knees); Tr. 1282 (mildly reduced range of 7 motion in back); Tr. 1422 (mildly decreased range of motion in shoulder). Plaintiff 8 failed to challenge the ALJ’s findings, thus, challenge to those findings is waived. 9 See Carmickle v. Comm’r, Soc. Sec. Admin., 533 F.3d 1155, 1161 n.2 (9th Cir. 10 2008) (determining Court may decline to address on the merits issues not argued 11 with specificity); Kim v. Kang, 154 F.3d 996, 1000 (9th Cir. 1998) (the Court may 12 not consider on appeal issues not “specifically and distinctly argued” in the party’s 13 opening brief). Plaintiff’s only assignment of error to the ALJ’s evaluation of Plaintiff’s 14 15 symptom testimony is to argue that the ALJ failed to discuss Plaintiff’s allegations 16 of nausea and to cite medical evidence3 to support Plaintiff’s claims. ECF No. 15 17 18 3 The Court notes that a substantial portion of the evidence Plaintiff cites is 19 evidence that the Appeals Council declined to consider and exhibit. Tr. 2. Where 20 the Appeals Council refuses to consider additional evidence, the evidence is not 2 ORDER - 12 1 at 16. Even if Plaintiff were to establish error here, such error would be harmless 2 because the ALJ provided other legally sufficient reasons, discussed infra, to 3 discount Plaintiff’s symptom claims. See Carmickle, 533 F.3d at 1163 (upholding 4 an adverse credibility finding where the ALJ provided four reasons to discredit the 5 claimant, two of which were invalid); Batson v. Comm’r of Soc. Sec. Admin., 359 6 F.3d 1190, 1197 (9th Cir. 2004) (affirming a credibility finding where one of 7 several reasons was unsupported by the record); Tommasetti v. Astrue, 533 F.3d 8 1035, 1038 (9th Cir. 2008) (an error is harmless when “it is clear from the record 9 that the . . . error was inconsequential to the ultimate nondisability determination”). 10 Additionally, the ALJ did address Plaintiff’s nausea symptoms by incorporating a 11 limitation into the RFC that required Plaintiff to have ready access to a restroom 12 13 made part of the evidence contained in the administrative record that is subject to 14 this Court’s substantial evidence review. Brewes v. Comm’r of Soc. Sec. Admin., 15 682 F.3d 1157, 1163 (9th Cir. 2012); see Ruth v. Berryhill, No. 1:16-CV-0872-PK, 16 2017 WL 4855400, at *8-*11 (D. Or. Oct. 26, 2017) (citing other district court 17 decisions in the Ninth Circuit holding that that new evidence that the Appeals 18 Council looked at and then rejected did not become part of the administrative 19 record subject to the Court’s substantial evidence review). Plaintiff did not 20 challenge the Appeals Council’s rejection of the evidence. ECF No. 15 at 11-20. 2 ORDER - 13 1 throughout the workday. Tr. 62. Plaintiff has not established harmful error in the 2 ALJ’s evaluation of Plaintiff’s symptom testimony. 3 2. Improvement with Treatment 4 The ALJ found Plaintiff’s symptom complaints were inconsistent with 5 Plaintiff’s record of improvement with treatment. Tr. 63-64. The effectiveness of 6 treatment is a relevant factor in determining the severity of a claimant’s symptoms. 7 20 C.F.R. §§ 404.1529(c)(3), 416.929(c)(3) (2011); Warre v. Comm’r of Soc. Sec. 8 Admin., 439 F.3d 1001, 1006 (9th Cir. 2006) (determining that conditions 9 effectively controlled with medication are not disabling for purposes of 10 determining eligibility for benefits); Tommasetti, 533 F.3d at 1040 (recognizing 11 that a favorable response to treatment can undermine a claimant’s complaints of 12 debilitating pain or other severe limitations). Here, the ALJ noted that several of 13 Plaintiff’s impairments showed improvement with treatment. Tr. 63-64; see, e.g., 14 Tr. 1263 (Plaintiff reported past relief from physical therapy); Tr. 1284 (Plaintiff 15 reported some present improvement in left shoulder pain with physical therapy); 16 Tr. 1311 (range of motion and grip strength improved after carpal tunnel release 17 surgery). Plaintiff failed to challenge this finding and thus has not demonstrated 18 that the ALJ erred. ECF No. 15 at 15-16; see Carmickle, 533 F.3d at 1161 n.2; 19 Kim, 154 F.3d at 1000. The ALJ reasonably concluded that Plaintiff’s record of 20 improvement was inconsistent with the level of impairment he alleged. 2 ORDER - 14 1 3. Failure to Follow Treatment Recommendations 2 The ALJ found Plaintiff’s symptom complaints were inconsistent with his 3 failure to follow treatment recommendations. Tr. 64. Noncompliance with 4 medical care or unexplained or inadequately explained reasons for failing to seek 5 medical treatment cast doubt on a claimant’s subjective complaints. Fair, 885 F.2d 6 at 603; Macri v. Chater, 93 F.3d 540, 544 (9th Cir. 1996). Here, the ALJ noted 7 that Plaintiff declined to wear the wrist braces his physician recommended for 8 carpal tunnel syndrome. Tr. 64; see Tr. 1268, 1273. Plaintiff failed to challenge 9 this finding and thus has not demonstrated that the ALJ erred. ECF No. 15 at 1510 16; see Carmickle, 533 F.3d at 1161 n.2; Kim, 154 F.3d at 1000. The ALJ 11 reasonably concluded that Plaintiff’s failure to comply with recommended 12 treatment was inconsistent with his symptom testimony. 13 4. Inconsistent Statements 14 The ALJ found Plaintiff’s symptom reporting was undermined by his 15 inconsistent statements in the record. Tr. 65. In evaluating a claimant’s symptom 16 claims, an ALJ may consider the consistency of an individual’s own statements 17 made in connection with the disability review process with any other existing 18 statements or conduct made under other circumstances. Smolen v. Chater, 80 F.3d 19 1273, 1284 (9th Cir. 1996) (The ALJ may consider “ordinary techniques of 20 credibility evaluation,” such as reputation for lying, prior inconsistent statements 2 ORDER - 15 1 concerning symptoms, and other testimony that “appears less than candid.”); 2 Thomas, 278 F.3d at 958-59. Additionally, it is well-settled in the Ninth Circuit 3 that conflicting or inconsistent statements concerning drug use can contribute to an 4 adverse credibility finding. Thomas, 278 F.3d at 959. 5 Here, the ALJ observed several instances where Plaintiff’s statements were 6 inconsistent. For example, the ALJ noted Plaintiff inconsistently reported his 7 marijuana use. Tr. 65; see Tr. 1244 (Plaintiff reported he had tried marijuana in 8 the past); Tr. 1233 (Plaintiff reported self-medicating with marijuana); Tr. 1236 9 (Plaintiff reported smoking marijuana in the past); Tr. 1250 (Plaintiff reported 10 occasional marijuana use); Tr. 1299 (Plaintiff reported weekly marijuana use); Tr. 11 1306-07 (same); Tr. 1368 (Plaintiff reported he has smoked a little marijuana and 12 his last use was six months ago). The ALJ also noted that Plaintiff gave 13 inconsistent explanations for why he left his last job. Tr. 65; compare Tr. 1233 14 (Plaintiff reported he “voluntarily terminated his employment because he felt his 15 employer was not being honest with him”) with Tr. 1165 (Plaintiff reported to the 16 SSA that he stopped working because of his conditions). Plaintiff failed to 17 challenge these findings and thus has not demonstrated that the ALJ erred. ECF 18 No. 15 at 15-16; see Carmickle, 533 F.3d at 1161 n.2; Kim, 154 F.3d at 1000. The 19 ALJ reasonably concluded that Plaintiff’s inconsistent statements undermined his 20 overall symptom testimony. 2 ORDER - 16 1 5. Symptom Exaggeration 2 The ALJ found Plaintiff’s symptom reporting was undermined by evidence 3 in the record that Plaintiff exaggerated his symptoms. Tr. 65. The tendency to 4 exaggerate provided a permissible reason for discounting Plaintiff’s reported 5 symptoms. See Tonapetyan v. Halter, 242 F.3d 1144, 1148 (9th Cir. 2001) (the 6 ALJ appropriately considered Plaintiff’s tendency to exaggerate when assessing 7 Plaintiff’s credibility, which was shown in a doctor’s observation that Plaintiff was 8 uncooperative during cognitive testing but was “much better” when giving reasons 9 for being unable to work.). Here, the ALJ identified a treatment note where 10 Plaintiff’s Owestry score placed him in a category where Plaintiff was either bed11 bound or exaggerating his symptoms. Tr. 65; see Tr. 1399. In light of Plaintiff’s 12 robust daily activities, discussed infra, the ALJ reasonably relied on this evidence 13 to conclude Plaintiff had exaggerated his symptoms. Tr. 65. Additionally, the ALJ 14 noted that although Plaintiff reported that his orthopedist wanted to perform neck 15 surgery prior to Plaintiff’s carpal tunnel release surgery, Tr. 1001, Plaintiff’s 16 treatment records did not corroborate this report. Tr. 65; see Tr. 1403 (“At some 17 point the patient could become a candidate for surgical intervention for the neck 18 but I think that it would be reasonable for the patient to have physical therapy.”). 19 Plaintiff failed to challenge these findings and thus has not demonstrated that the 20 ALJ erred. ECF No. 15 at 15-16; see Carmickle, 533 F.3d at 1161 n.2; Kim, 154 2 ORDER - 17 1 F.3d at 1000. The ALJ reasonably concluded that Plaintiff’s exaggerated 2 statements undermined his overall symptom testimony. 3 6. Daily Activities 4 The ALJ found Plaintiff’s symptom reporting was inconsistent with the 5 evidence of Plaintiff’s daily activities. Tr. 65. The ALJ may consider a claimant’s 6 activities that undermine reported symptoms. Rollins, 261 F.3d at 857. If a 7 claimant can spend a substantial part of the day engaged in pursuits involving the 8 performance of exertional or non-exertional functions, the ALJ may find these 9 activities inconsistent with the reported disabling symptoms. Fair, 885 F.2d at 10 603; Molina, 674 F.3d at 1113. “While a claimant need not vegetate in a dark 11 room in order to be eligible for benefits, the ALJ may discount a claimant’s 12 symptom claims when the claimant reports participation in everyday activities 13 indicating capacities that are transferable to a work setting” or when activities 14 “contradict claims of a totally debilitating impairment.” Molina, 674 F.3d at 111215 13. Here, the ALJ found that Plaintiff’s alleged limitations were inconsistent with 16 Plaintiff’s daily activities, which included personal care, performing housework 17 and yardwork, caring for his grandchildren, building and repairing fences, 18 performing household repairs, gardening, and riding a motorbike. Tr. 65; see Tr. 19 993-95, 1192-97. Plaintiff failed to challenge these findings and thus has not 20 demonstrated that the ALJ erred. ECF No. 15 at 15-16; see Carmickle, 533 F.3d at 2 ORDER - 18 1 1161 n.2; Kim, 154 F.3d at 1000. The ALJ reasonably concluded that Plaintiff’s 2 alleged limitations were inconsistent with his daily activities. 3 4 B. Medical Opinion Evidence Plaintiff challenges the ALJ’s evaluation of the medical opinions of Miguel 5 Schmitz, M.D., Kayleen Islam-Zwart, Ph.D., Patricia Benn, LMHC, and Debra 6 Harris, M. Ed., LMHC. ECF No. 15 at 16-19. 7 There are three types of physicians: “(1) those who treat the claimant 8 (treating physicians); (2) those who examine but do not treat the claimant 9 (examining physicians); and (3) those who neither examine nor treat the claimant 10 [but who review the claimant’s file] (nonexamining [or reviewing] physicians).” 11 Holohan v. Massanari, 246 F.3d 1195, 1201-02 (9th Cir. 2001) (citations omitted). 12 Generally, a treating physician’s opinion carries more weight than an examining 13 physician’s, and an examining physician’s opinion carries more weight than a 14 reviewing physician’s. Id. at 1202. “In addition, the regulations give more weight 15 to opinions that are explained than to those that are not, and to the opinions of 16 specialists concerning matters relating to their specialty over that of 17 nonspecialists.” Id. (citations omitted). 18 If a treating or examining physician’s opinion is uncontradicted, the ALJ 19 may reject it only by offering “clear and convincing reasons that are supported by 20 substantial evidence.” Bayliss v. Barnhart, 427 F.3d 1211, 1216 (9th Cir. 2005). 2 ORDER - 19 1 “However, the ALJ need not accept the opinion of any physician, including a 2 treating physician, if that opinion is brief, conclusory and inadequately supported 3 by clinical findings.” Bray v. Comm’r of Soc. Sec. Admin., 554 F.3d 1219, 1228 4 (9th Cir. 2009) (internal quotation marks and brackets omitted). “If a treating or 5 examining doctor’s opinion is contradicted by another doctor’s opinion, an ALJ 6 may only reject it by providing specific and legitimate reasons that are supported 7 by substantial evidence.” Bayliss, 427 F.3d at 1216 (citing Lester, 81 F.3d at 8308 831). 9 10 1. Dr. Schmitz Dr. Schmitz, Plaintiff’s treating orthopedic surgeon, opined on an 11 unspecified date that Plaintiff was capable of lifting less than ten pounds on an 12 occasional or frequent basis, that Plaintiff was capable of standing or walking for 13 four hours in an eight hour workday, that Plaintiff was capable of sitting for six 14 hours in an eight hour workday, that Plaintiff was capable of sitting for 20 minutes 15 before changing position, that Plaintiff was capable of standing and walking for ten 16 minutes before changing position, that Plaintiff needed the opportunity to shift at 17 will from sitting or standing/walking, that Plaintiff had no manipulative limitations 18 in the upper extremities, that Plaintiff would be off task for 16-25% of the 19 workday, that Plaintiff needed to lie down at unpredictable intervals during an 20 eight hour workday, that Plaintiff could occasionally twist and stoop, that Plaintiff 2 ORDER - 20 1 could never crouch or climb stairs or ladders, that Plaintiff could perform sedentary 2 and less than sedentary work, and that Plaintiff’s impairments would cause him to 3 miss three days of work per month. Tr. 1470-72. The ALJ gave this opinion little 4 weight. Tr. 68. Because Dr. Schmitz’s opinion was contradicted by Dr. Panek, Tr. 5 981-83, the ALJ was required to provide specific and legitimate reasons to reject 6 Dr. Schmitz’s opinion. Bayliss, 427 F.3d at 1216. 7 First, the ALJ found Dr. Schmitz’s opinion was inconsistent with the 8 longitudinal evidence, including Dr. Panek’s hearing testimony. Tr. 67. An ALJ 9 may discredit physicians’ opinions that are unsupported by the record as a whole. 10 Batson v. Comm’r of Soc. Sec. Admin., 359 F.3d 1190, 1195 (9th Cir. 2004). 11 Additionally, an ALJ may credit the opinion of nonexamining expert who testifies 12 at hearing and is subject to cross-examination. See Andrews v. Shalala, 53 F.3d 13 1035, 1042 (9th Cir. 1995) (citing Torres v. Sec’y of H.H.S., 870 F.2d 742, 744 (1st 14 Cir. 1989)). The opinion of a nonexamining physician may serve as substantial 15 evidence if it is supported by other evidence in the record and is consistent with it. 16 Andrews, 53 F.3d at 1041. Other cases have upheld the rejection of an examining 17 or treating physician based in part on the testimony of a non-examining medical 18 advisor when other reasons to reject the opinions of examining and treating 19 physicians exist independent of the non-examining doctor’s opinion. Lester, 81 20 F.3d at 831 (citing Magallanes v. Bowen, 881 F.2d 747, 751-55 (9th Cir. 1989) 2 ORDER - 21 1 (reliance on laboratory test results, contrary reports from examining physicians and 2 testimony from claimant that conflicted with treating physician’s opinion)); 3 Roberts v. Shalala, 66 F.3d 179, 184 (9th Cir. 1995) (rejection of examining 4 psychologist’s functional assessment which conflicted with his own written report 5 and test results). Thus, case law requires not only an opinion from the consulting 6 physician but also substantial evidence (more than a mere scintilla but less than a 7 preponderance), independent of that opinion which supports the rejection of 8 contrary conclusions by examining or treating physicians. Andrews, 53 F.3d at 9 1039. 10 Here, the ALJ found Dr. Schmitz’s opinion was inconsistent with the 11 longitudinal record. Tr. 67. The ALJ found that the longitudinal evidence showed 12 “[Plaintiff’s] body has worn down to the point that he can no longer do [heavy 13 labor],” but that the medical evidence did not support a finding of complete 14 disability. Tr. 63-65; see, e.g., Tr. 1219 (normal gait); Tr. 1251 (full range of 15 motion in extremities and spine; full strength); Tr. 1265 (mildly decreased range of 16 motion in back); Tr. 1276 (full range of motion in knees); Tr. 1282 (mildly reduced 17 range of motion in back); Tr. 1422 (mildly decreased range of motion in shoulder). 18 Additionally, the ALJ reasonably relied on the opinion of Dr. Panek, a reviewing 19 expert who testified at the hearing and was subject to cross-examination. Tr. 6620 67; see Tr. 972-85. Although Plaintiff challenges the ALJ’s evaluation of Dr. 2 ORDER - 22 1 Schimtz’s opinion, Plaintiff identifies no evidence to undermine the ALJ’s 2 finding.4 ECF No. 15 at 17-18. The ALJ reasonably concluded that Dr. Schmitz’s 3 opinion was inconsistent with the longitudinal record, including Dr. Panek’s 4 testimony. Second, the ALJ found Dr. Schmitz’s opinion was unsupported. Tr. 67. The 5 6 Social Security regulations “give more weight to opinions that are explained than 7 to those that are not.” Holohan, 246 F.3d at 1202. “[T]he ALJ need not accept the 8 opinion of any physician, including a treating physician, if that opinion is brief, 9 conclusory and inadequately supported by clinical findings.” Bray, 554 at 1228. 10 Here, the ALJ noted that Dr. Schmitz’s opinion did not indicate what medical 11 findings supported his opinion. Tr. 67; see Tr. 1470-72. Additionally, the ALJ 12 noted that Dr. Schmitz’s opinion was not supported by his own treatment records. 13 14 4 Plaintiff argues that the ALJ had a duty to recontact Dr. Schmitz under SSR 96- 15 5p. ECF No. 15 at 17. SSR 96-5p pertains to the ALJ’s obligation to recontact a 16 treating source “if the evidence does not support a treating source’s opinion on any 17 issue reserved to the Commissioner and the adjudicator cannot ascertain the basis 18 of the opinion from the case record.” SSR 96-5p, 1996 WL 374183, at *6. 19 Because Dr. Schmitz did not render an opinion on an issue reserved to the 20 Commissioner, Tr. 1470-72, SSR 96-5p does not apply. 2 ORDER - 23 1 Tr. 67; see, e.g., Tr. 1403 (observing mild stenosis and recommending physical 2 therapy); Tr. 1406-07 (physical examination showing full motor strength, normal 3 gait, and negative Waddell’s); Tr. 1423 (physical examination showing same and 4 recommending physical therapy and epidural injection). Plaintiff failed to 5 challenge this finding and thus has not demonstrated that the ALJ erred. ECF No. 6 15 at 17-18; see Carmickle, 533 F.3d at 1161 n.2; Kim, 154 F.3d at 1000. The ALJ 7 reasonably concluded that Dr. Schmitz’s opinion was entitled to less weight 8 because it was not supported. 9 Third, the ALJ found Dr. Schmitz’s opinion was entitled to less weight 10 because Dr. Schmitz did not review collateral treatment records before offering his 11 opinion. Tr. 67-68. The extent to which a medical source is “familiar with the 12 other information in [the claimant’s] case record” is relevant in assessing the 13 weight of that source’s medical opinion. See 20 C.F.R. §§ 404.1527(c)(6), 14 416.927(c)(6) (2012). Here, the ALJ noted that Dr. Schmitz’s opinion does not 15 indicate that he reviewed any collateral treatment notes before rendering his 16 opinion. Tr. 67-68; see Tr. 1470-72. In contrast, the ALJ relied on the opinion of 17 Dr. Panek, who reviewed the record in its entirety at the time of the hearing. Tr. 18 66; see Tr. 972. Plaintiff failed to challenge this finding and thus has not 19 demonstrated that the ALJ erred. ECF No. 15 at 17-18; see Carmickle, 533 F.3d at 20 1161 n.2; Kim, 154 F.3d at 1000. The ALJ reasonably concluded that Dr. 2 ORDER - 24 1 Schmitz’s opinion was entitled to less weight because he did not review other 2 evidence in the record. 3 2. Dr. Islam-Zwart 4 Dr. Islam-Zwart evaluated Plaintiff on September 8, 2014, and opined 5 Plaintiff had moderate impairments in his ability to understand, remember, and 6 persist in tasks by following very short and simple instructions; perform activities 7 within a schedule, maintain regular attendance, and be punctual within customary 8 tolerances without special stereovision; learn new tasks; adapt to changes in a 9 routine work setting; make simple work-related decisions; communicate and 10 perform effectively in a work setting; maintain appropriate behavior in a work 11 setting; that Plaintiff would have marked impairments in his ability to understand, 12 remember, and persist in tasks by following detailed instructions; and complete a 13 normal work day and work week without interruptions from psychologically based 14 symptoms; and that Plaintiff’s impairment would last for six months to 15 indefinitely. Tr. 1365. The ALJ gave this opinion little weight. Tr. 69. Because 16 Dr. Islam-Zwart’s opinion was contradicted by Dr. Dowell, Tr. 1238-39, Dr. 17 Eather, Tr. 1019, and Dr. Kraft, Tr. 1042, the ALJ was required to provide specific 18 and legitimate reasons to reject Dr. Islam-Zwart’s opinion. Bayliss, 427 F.3d at 19 1216. 20 2 ORDER - 25 Although Plaintiff challenges the ALJ’s evaluation of Dr. Islam-Zwart’s 1 2 opinion, Plaintiff does not develop any argument at all as to how the ALJ erred. 3 ECF No. 15 at 18-19. As such, the Court is not required to address this reason. 4 See Carmickle, 533 F.3d at 1161 n.2 (9th Cir. 2008). The Ninth Circuit explained 5 the necessity for providing specific argument: 6 The art of advocacy is not one of mystery. Our adversarial system relies on the advocates to inform the discussion and raise the issues to the court. Particularly on appeal, we have held firm against considering arguments that are not briefed. But the term “brief” in the appellate context does not mean opaque nor is it an exercise in issue spotting. However much we may importune lawyers to be brief and to get to the point, we have never suggested that they skip the substance of their argument in order to do so. It is no accident that the Federal Rules of Appellate Procedure require the opening brief to contain the “appellant’s contentions and the reasons for them, with citations to the authorities and parts of the record on which the appellant relies.” Fed. R. App. P. 28(a)(9)(A). We require contentions to be accompanied by reasons. 7 8 9 10 11 12 Independent Towers of Wash. v. Wash., 350 F.3d 925, 929 (9th Cir. 2003).5 13 Moreover, the Ninth Circuit has repeatedly admonished that the court will not 14 15 16 “manufacture arguments for an appellant” and therefore will not consider claims that were not actually argued in appellant’s opening brief. Greenwood v. Fed. Aviation Admin., 28 F.3d 971, 977 (9th Cir. 1994). Despite Plaintiff’s failure to 17 18 19 5 Under the current version of the Federal Rules of Appellate Procedure, the 20 appropriate citation would be to FED. R. APP. P. 28(a)(8)(A). 2 ORDER - 26 1 brief the issue with specificity, the Court considered the ALJ’s findings and 2 concludes they are legally sufficient. 3 First, the ALJ found Dr. Islam-Zwart’s opinion was internally inconsistent. 4 Tr. 68. An ALJ may reject opinions that are internally inconsistent. Nguyen v. 5 Chater, 100 F.3d 1462, 1464 (9th Cir. 1996). An ALJ is not obliged to credit 6 medical opinions that are unsupported by the medical source’s own data. 7 Tommasetti, 533 F.3d at 1041. The ALJ noted Dr. Islam-Zwart’s opinion that 8 Plaintiff had significant limitations in his ability to learn and perform tasks was 9 inconsistent with her opinion that Plaintiff could “minimize or eliminate” his 10 barriers to employment through vocational training or services. Tr. 68; see Tr. 11 1365. Additionally, the ALJ found that Dr. Islam-Zwart’s opinion that Plaintiff 12 had marked cognitive limitations was inconsistent with her recommendation that 13 Plaintiff did not need a protective payee. Id. Plaintiff failed to challenge this 14 finding and thus has not demonstrated that the ALJ erred. ECF No. 15 at 18-19; 15 see Carmickle, 533 F.3d at 1161 n.2; Kim, 154 F.3d at 1000. The ALJ reasonably 16 concluded that Dr. Islam-Zwart’s opinion was internally inconsistent. 17 Second, the ALJ found Dr. Islam-Zwart’s opinion was inconsistent with the 18 longitudinal medical evidence, including evidence that Plaintiff’s condition 19 improved with treatment. Tr. 69. A medical opinion may be rejected if it is 20 unsupported by medical findings. Bray, 554 F.3d at 1228; Batson, 359 F.3d at 2 ORDER - 27 1 1195; Thomas, 278 F.3d at 957; Tonapetyan, 242 F.3d at 1149; Matney v. Sullivan, 2 981 F.2d 1016, 1019 (9th Cir. 1992). The ALJ found Dr. Islam-Zwart’s opined 3 limitations were inconsistent with Plaintiff’s treatment record, which showed 4 inconsistent medication compliance and improvement with medication and 5 counseling. Tr. 69; see, e.g., Tr. 1254 (Plaintiff inconsistently taking Zoloft); Tr. 6 1257 (Xanax prescribed for use as needed); Tr. 1258 (Plaintiff has been off Zoloft 7 for 1-2 weeks after Zoloft was increased at last visit); Tr. 1273 (mood improved 8 with medication and counseling); Tr. 1278 (same); Tr. 1284 (same). The ALJ also 9 noted that Plaintiff’s performance on Dr. Islam-Zwart’s mental status examination 10 showed some improvement over his performance on the same examination 11 administered by Dr. Dowell, who opined Plaintiff had no psychological limitations. 12 Tr. 69; compare Tr. 1370 with Tr. 1238. Plaintiff failed to challenge these findings 13 and thus has not demonstrated that the ALJ erred. ECF No. 15 at 18-19; see 14 Carmickle, 533 F.3d at 1161 n.2; Kim, 154 F.3d at 1000. The ALJ reasonably 15 concluded Dr. Islam-Zwart’s opinion was inconsistent with the longitudinal 16 treatment record, including Plaintiff’s record of improvement. 17 Third, the ALJ found Dr. Islam-Zwart’s opinion was inconsistent with 18 Plaintiff’s daily activities. Tr. 69. An ALJ may discount a medical source opinion 19 to the extent it conflicts with the claimant’s daily activities. Morgan v. Comm’r of 20 Soc. Sec. Admin., 169 F.3d 595, 601-02 (9th Cir. 1999). Here, the ALJ noted that 2 ORDER - 28 1 Plaintiff reported good activities of daily living to Dr. Islam-Zwart, including 2 independent self-care, household chores, cooking, grocery shopping, playing cards, 3 watching television, gardening, and spending time with his children and 4 grandchildren. Tr. 1369. Plaintiff failed to challenge this finding and thus has not 5 demonstrated that the ALJ erred. ECF No. 15 at 18-19; see Carmickle, 533 F.3d at 6 1161 n.2; Kim, 154 F.3d at 1000. The ALJ reasonably concluded that these daily 7 activities were inconsistent with the level of impairment Dr. Islam-Zwart opined. 8 3. Ms. Benn and Ms. Harris 9 Ms. Benn counseled Plaintiff between February and April 2014, and opined 10 on June 18, 2014 that Plaintiff had difficulty controlling his anger, feeling 11 motivated, and managing his emotions, and that Plaintiff would have difficulty 12 maintaining a consistent work schedule and being a reliable, productive employee. 13 Tr. 1232-34. Ms. Harris counseled Plaintiff between January and December 2015, 14 and opined on August 23, 2016 that Plaintiff was a physical safety risk due to his 15 lack of sense of danger or potential risk when engaging in activities and that 16 Plaintiff showed improvement when taking medications but would self-discontinue 17 his medication. Tr. 1352-53. The ALJ gave both opinions little weight. Tr. 69-70. 18 As LMHCs, Ms. Benn and Ms. Harris are not acceptable medical sources. 20 19 20 2 ORDER - 29 1 C.F.R. §§ 404.1502, 416.9026 (acceptable medical sources are licensed physicians, 2 licensed or certified psychologists, licensed optometrists, licensed podiatrists, 3 qualified speech-language pathologists, licensed audiologists, licensed advanced 4 practice registered nurses, and licensed physician assistants). An ALJ is required 5 to consider evidence from non-acceptable medical sources. 20 C.F.R. §§ 6 404.1527(f), 416.927(f).7 An ALJ must give reasons “germane” to each source in 7 order to discount evidence from non-acceptable medical sources. Ghanim, 763 8 F.3d at 1161. Plaintiff challenges the ALJ’s evaluation of these opinions but fails to 9 10 identify error in the ALJ’s analysis. ECF No. 15 at 18-19. Plaintiff misconstrues 11 the ALJ’s findings to argue that the ALJ rejected the opinions of Ms. Benn and Ms. 12 Harris because they are not medically acceptable sources. Id. To the contrary, the 13 ALJ identified these sources as “other sources,” and then proceeded to identify 14 several germane reasons to reject each opinion. Tr. 69-70. 15 16 6 Prior to March 27, 2017, the definition of an acceptable medical source was 17 located at 20 C.F.R. §§ 404.1513, 416.913 (2013). 18 7 Prior to March 27, 2017, the requirement that an ALJ consider evidence from 19 non-acceptable medical sources was located at 20 C.F.R. §§ 404.1513(d), 20 416.913(d) (2013). 2 ORDER - 30 1 First, the ALJ rejected both Ms. Benn’s opinion and Ms. Harris’ opinion 2 because they were not supported. Tr. 69-70. Failure to provide support or 3 explanation is a germane reason to discredit opinion of nonacceptable medical 4 source. Molina, 674 F.3d at 1111-12. Here, the ALJ observed that although both 5 Ms. Benn and Ms. Harris counseled Plaintiff for a period of time, neither source 6 released any counseling treatment notes to support their opinions. Tr. 69. 7 Additionally, the ALJ noted that Ms. Harris failed to explain the durational level of 8 the impairments she opined. Tr. 70. Plaintiff failed to challenge these findings and 9 thus has not demonstrated that the ALJ erred. ECF No. 15 at 18-19; see 10 Carmickle, 533 F.3d at 1161 n.2; Kim, 154 F.3d at 1000. Ms. Benn’s and Ms. 11 Harris’ failure to provide support for their opinions was a germane reason to 12 discredit both opinions. 13 Second, the ALJ rejected both Ms. Benn’s opinion and Ms. Harris’ opinion 14 because they were inconsistent with the medical evidence. Tr. 69-70. 15 Inconsistency with the medical evidence is a germane reason for rejecting lay 16 witness testimony. Bayliss, 427 F.3d at 1218. Here, the ALJ found that the severe 17 limitations in both opinions were inconsistent with Plaintiff’s longitudinal 18 treatment record, which showed minimal mental health problems and improvement 19 with treatment. Tr. 69-70; see, e.g., Tr. 1273 (mood improved with medication and 20 counseling); Tr. 1278 (same); Tr. 1284 (same). The ALJ specifically noted that the 2 ORDER - 31 1 assessed limitations were inconsistent with Dr. Dowell’s examination, who is an 2 acceptable medical source, which examination found no psychological limitations. 3 Tr. 69. Plaintiff failed to challenge this finding and thus has not demonstrated that 4 the ALJ erred. ECF No. 15 at 18-19; see Carmickle, 533 F.3d at 1161 n.2; Kim, 5 154 F.3d at 1000. The inconsistencies between the medical evidence and Ms. 6 Benn’s and Ms. Harris’ opinions provide germane reason to discredit both 7 opinions. 8 9 C. Step Two Plaintiff challenges the ALJ’s failure to identify depression as a severe 10 impairment at step two. ECF No. 15 at 13-15. 11 At step two of the sequential process, the ALJ must determine whether 12 claimant suffers from a “severe” impairment, i.e., one that significantly limits his 13 physical or mental ability to do basic work activities. 20 C.F.R. §§ 404.1520(c), 14 416.920(c) (2012). When a claimant alleges a severe mental impairment, the ALJ 15 must follow a two-step “special technique” at steps two and three. First, the ALJ 16 must evaluate the claimant’s “pertinent symptoms, signs, and laboratory findings 17 to determine whether [he or she has] a medically determinable impairment.” 20 18 C.F.R. §§ 404.1520a, 416.920a (2011). Second, the “degree of functional 19 limitation resulting from [the claimant’s] impairments” in four broad areas of 20 functioning: activities of daily living; social functioning; concentration, persistence 2 ORDER - 32 1 or pace; and episodes of decompensation. Id. Functional limitation is measured as 2 “none, mild, moderate, marked, and extreme.” Id. If limitation is found to be 3 “none” or “mild,” the impairment is generally considered to not be severe. Id. If 4 the impairment is severe, the ALJ proceeds to determine whether the impairment 5 meets or is equivalent in severity to a listed mental disorder. Id. 6 Step two is “a de minimus screening device [used] to dispose of groundless 7 claims.” Smolen, 80 F.3d at 1290. “Thus, applying our normal standard of review 8 to the requirements of step two, [the Court] must determine whether the ALJ had 9 substantial evidence to find that the medical evidence clearly established that 10 [Plaintiff] did not have a medically severe impairment or combination of 11 impairments.” Webb v. Barnhart, 433 F.3d 683, 687 (9th Cir. 2005). 12 Plaintiff asserts the ALJ should have identified depression as a severe 13 impairment at step two. ECF No. 15 at 13-14. However, Plaintiff’s argument is 14 based entirely on the assumption that the ALJ should have credited the opinions of 15 Dr. Islam-Zwart, Ms. Benn, and Ms. Harris. Id. As discussed supra, Plaintiff 16 failed to develop any argument to support Plaintiff’s assertion that the ALJ erred in 17 evaluating the mental impairment opinion evidence. Carmickle, 533 F.3d at 1161 18 n.2; Kim, 154 F.3d at 1000. Therefore, Plaintiff does not establish subsequent 19 error in the ALJ’s step two analysis. The ALJ reasonably relied on the opinions of 20 2 ORDER - 33 1 Dr. Dowell, Dr. Eather, and Dr. Kraft to conclude depression was not a severe 2 impairment. Tr. 59-60, 68. 3 4 D. Step Five Plaintiff challenges the ALJ’s step five analysis for being based on an RFC 5 Plaintiff argues fails to incorporate all of Plaintiff’s limitations. ECF No. 15 at 196 20. However, Plaintiff’s argument is based entirely on the assumption that the ALJ 7 erred in considering the medical opinion evidence and Plaintiff’s symptom claims. 8 Id. For reasons discussed throughout this decision, the ALJ’s consideration of 9 Plaintiff’s symptom testimony and the medical opinion evidence is legally 10 sufficient. Thus, the vocational expert’s testimony was not based on an incomplete 11 hypothetical, and the ALJ did not err in determining Plaintiff was capable of 12 performing other work in the national economy. 13 14 CONCLUSION Having reviewed the record and the ALJ’s findings, this court concludes the 15 ALJ’s decision is supported by substantial evidence and free of harmful legal error. 16 Accordingly, IT IS HEREBY ORDERED: 17 1. Plaintiff’s Motion for Summary Judgment, ECF No. 15, is DENIED. 18 2. Defendant’s Motion for Summary Judgment, ECF No. 16, is GRANTED. 19 3. The Court enter JUDGMENT in favor of Defendant. 20 2 ORDER - 34 1 The District Court Executive is directed to file this Order, provide copies to 2 counsel, and CLOSE THE FILE. 3 DATED February 6, 2019. 4 s/Mary K. Dimke MARY K. DIMKE UNITED STATES MAGISTRATE JUDGE 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 2 ORDER - 35
]]>
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You
should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google
Privacy Policy and
Terms of Service apply.
