Hahn Jr v. Commissioner of Social Security, No. 2:2018cv00091 - Document 16 (E.D. Wash. 2019)
Court Description: ORDER GRANTING 14 DEFENDANT'S MOTION FOR SUMMARY JUDGMENT; denying 12 Plaintiff's Motion for Summary Judgment. Case is closed. Signed by Senior Judge Robert H. Whaley. (AY, Case Administrator)
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Hahn Jr v. Commissioner of Social Security Doc. 16 1 FI LED I N THE U.S. DI STRI CT COURT EASTERN DI STRI CT OF WASHI NGTON 2 Jul 24, 2019 SEAN F. MCAVOY, CLERK 3 4 5 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF WASHINGTON 6 7 DANIEL WILLIAM H., JR., 8 Plaintiff, No. 2:18-CV-00091-RHW 9 v. ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT 10 11 12 13 COMMISSIONER OF SOCIAL SECURITY, Defendant. Before the Court are the parties’ cross-motions for summary judgment. ECF 14 Nos. 12, 14. Plaintiff brings this action seeking judicial review pursuant to 42 15 U.S.C. § 405(g) of the Commissioner of Social Security’s final decision, which 16 denied his application for Disability Insurance Benefits under Title II of the Social 17 Security Act, 42 U.S.C. § 401-434, and his application for Supplemental Security 18 Income under Title XVI of the Act, 42 U.S.C. §1381-1383F. See Administrative 19 Record (AR) at 20. After reviewing the administrative record and briefs filed by 20 the parties, the Court is now fully informed. For the reasons set forth below, the ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 1 Dockets.Justia.com 1 Court GRANTS Defendant’s Motion for Summary Judgment and DENIES 2 Plaintiff’s Motion for Summary Judgment. 3 I. 4 Jurisdiction Plaintiff filed his application for Disability Insurance Benefits on June 28, 5 2014, and his application for Supplemental Security Income on September 23, 6 2014. See AR 282-283, 285-300. His alleged onset date of disability was April 12, 7 2010. AR 282, 285. Plaintiff’s applications were initially denied on December 1, 8 2014, see AR 127-156, and on reconsideration on March 26, 2015. See AR 157- 9 186. A hearing with Administrative Law Judge (“ALJ”) Stewart Stallings occurred 10 on February 16, 2017.1 AR 59. On August 30, 2017, the ALJ issued a decision 11 concluding that Plaintiff was not disabled as defined in the Act and was therefore 12 ineligible for disability benefits or supplemental security income. AR 17-33. On 13 January 10, 2018, the Appeals Council denied Plaintiff’s request for review, thus 14 making the ALJ’s ruling the final decision of the Commissioner. AR 1-6. 15 On March 9, 2018, Plaintiff timely filed the present action challenging the 16 denial of benefits. ECF No. 3. Accordingly, Plaintiff’s claims are properly before 17 this Court pursuant to 42 U.S.C. § 405(g). 18 /// 19 20 1 Plaintiff proceeded pro se at the hearing and obtained representation about a month after the ALJ issued the opinion. See AR 13, 59. ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 2 1 2 II. Five-Step Sequential Evaluation Process The Social Security Act defines disability as the “inability to engage in any 3 substantial gainful activity by reason of any medically determinable physical or 4 mental impairment which can be expected to result in death or which has lasted or 5 can be expected to last for a continuous period of not less than twelve months.” 42 6 U.S.C. §§ 423(d)(1)(A), 1382c(a)(3)(A). A claimant shall be determined to be 7 under a disability only if the claimant’s impairments are so severe that the claimant 8 is not only unable to do his or her previous work, but cannot, considering 9 claimant’s age, education, and work experience, engage in any other substantial 10 11 gainful work that exists in the national economy. 42 U.S.C. § 1382c(a)(3)(B). The Commissioner has established a five-step sequential evaluation process 12 for determining whether a claimant is disabled within the meaning of the Social 13 Security Act. 20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4); Lounsburry v. Barnhart, 14 468 F.3d 1111, 1114 (9th Cir. 2006). 15 Step one inquires whether the claimant is presently engaged in “substantial 16 gainful activity.” 20 C.F.R. §§ 404.1520(b), 416.920(b). Substantial gainful 17 activity is defined as significant physical or mental activities done or usually done 18 for profit. 20 C.F.R. §§ 404.1572, 416.972. If the claimant is engaged in substantial 19 activity, he or she is not entitled to disability benefits. 20 C.F.R. §§ 404.1571, 20 416.920(b). If not, the ALJ proceeds to step two. ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 3 1 Step two asks whether the claimant has a severe impairment, or combination 2 of impairments, that significantly limits the claimant’s physical or mental ability to 3 do basic work activities. 20 C.F.R. §§ 404.1520(c), 416.920(c). A severe 4 impairment is one that has lasted or is expected to last for at least twelve months, 5 and must be proven by objective medical evidence. 20 C.F.R. §§ 404.1508-09, 6 416.908-09. If the claimant does not have a severe impairment, or combination of 7 impairments, the disability claim is denied and no further evaluative steps are 8 required. Otherwise, the evaluation proceeds to the third step. 9 Step three involves a determination of whether one of the claimant’s severe 10 impairments “meets or equals” one of the listed impairments acknowledged by the 11 Commissioner to be sufficiently severe as to preclude substantial gainful activity. 12 20 C.F.R. §§ 404.1520(d), 404.1525, 404.1526 & 416.920(d), 416.925, 416.926; 13 20 C.F.R. § 404 Subpt. P. App. 1 (“the Listings”). If the impairment meets or 14 equals one of the listed impairments, the claimant is per se disabled and qualifies 15 for benefits. Id. If the claimant is not per se disabled, the evaluation proceeds to the 16 fourth step. 17 Step four examines whether the claimant’s residual functional capacity 18 enables the claimant to perform past relevant work. 20 C.F.R. §§ 404.1520(e)-(f), 19 416.920(e)-(f). If the claimant can still perform past relevant work, the claimant is 20 not entitled to disability benefits and the inquiry ends. Id. ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 4 1 Step five shifts the burden to the Commissioner to prove that the claimant is 2 able to perform other work in the national economy, taking into account the 3 claimant’s age, education, and work experience. See 20 C.F.R. §§ 404.1512(f), 4 404.1520(g), 404.1560(c) & 416.912(f), 416.920(g), 416.960(c). To meet this 5 burden, the Commissioner must establish that (1) the claimant is capable of 6 performing other work; and (2) such work exists in “significant numbers in the 7 national economy.” 20 C.F.R. §§ 404.1560(c)(2); 416.960(c)(2); Beltran v. Astrue, 8 676 F.3d 1203, 1206 (9th Cir. 2012). 9 10 III. Standard of Review A district court’s review of a final decision of the Commissioner is governed 11 by 42 U.S.C. § 405(g). The scope of review under § 405(g) is limited, and the 12 Commissioner’s decision will be disturbed “only if it is not supported by 13 substantial evidence or is based on legal error.” Hill v. Astrue, 698 F.3d 1144, 14 1158-59 (9th Cir. 2012) (citing § 405(g)). Substantial evidence means “more than a 15 mere scintilla but less than a preponderance; it is such relevant evidence as a 16 reasonable mind might accept as adequate to support a conclusion.” Id. at 1159. 17 In reviewing a denial of benefits, a district court may not substitute its 18 judgment for that of the ALJ. Matney v. Sullivan, 981 F.2d 1016, 1019 (9th Cir. 19 1992). When the ALJ presents a reasonable interpretation that is supported by the 20 evidence, it is not the role of the courts to second-guess it. Rollins v. Massanari, ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 5 1 261 F.3d 853, 857 (9th Cir. 2001). Even if the evidence in the record is susceptible 2 to more than one rational interpretation, if inferences reasonably drawn from the 3 record support the ALJ’s decision, then the court must uphold that decision. 4 Molina v. Astrue, 674 F.3d 1104, 1111 (9th Cir. 2012); see also Thomas v. 5 Barnhart, 278 F.3d 947, 954 (9th Cir. 2002). 6 7 IV. Statement of Facts The facts of the case are set forth in detail in the transcript of proceedings 8 and only briefly summarized here. Plaintiff was 41 years old on the alleged date of 9 onset. AR 128. He graduated from high school, attended some college, and can 10 communicate in English. AR 31, 68, 1010. Plaintiff has past work in electronics 11 sales, cellular telephone sales, and as a limousine driver. AR 31, 357, 363. 12 13 V. The ALJ’s Findings The ALJ determined that Plaintiff was not under a disability within the 14 meaning of the Act at any time from April 12, 2010 (the alleged onset date) 15 through August 30, 2017 (the date the ALJ issued his decision). AR 20, 32-33. 16 At step one, the ALJ found that Plaintiff had engaged in substantial gainful 17 activity for three months in 2014, but had not throughout the remainder of the 18 relevant period (citing 20 C.F.R. § 404.1571 et seq.). AR 22. 19 20 At step two, the ALJ found Plaintiff had the following severe impairments: morbid obesity, diabetes mellitus with neuropathy, sleep apnea, chronic pain, ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 6 1 hypertension, history of gout (currently well-controlled), hearing loss with good 2 speech discrimination, chronic sinus issues, medication side effects, depression, 3 and anxiety (citing 20 C.F.R. § 404.1520(c)). AR 23. 4 At step three, the ALJ found that Plaintiff did not have an impairment or 5 combination of impairments that met or medically equaled the severity of one of 6 the listed impairments in 20 C.F.R. § 404, Subpt. P, Appendix 1. AR 26. 7 At step four, the ALJ found that Plaintiff had the residual functional 8 capacity to perform medium work as defined in 20 C.F.R. § 404.1567(c), including 9 the abilities to lift up to 50 pounds occasionally and lift and carry up to 25 pounds 10 frequently. AR 27. The ALJ found that Plaintiff would need a sit/stand option at 11 his workstation for 5 minutes every half hour. AR 27. However, the ALJ found 12 that Plaintiff could never climb ladders, ropes, or scaffolds, and would need to 13 avoid any exposure to extreme cold, extreme heat, extreme wetness and humidity, 14 and unprotected heights. AR 27. With respect to Plaintiff’s mental abilities, the 15 ALJ found that Plaintiff would need to work a low stress job and could not work in 16 positions that involved dangerous circumstances, managing others, sales, or 17 customer service. AR 27. The ALJ found that Plaintiff could only have brief and 18 superficial interaction with the public and with coworkers, could not work on a 19 team or in tandem, and could only occasionally interact with supervisors. AR 27. 20 ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 7 1 Given these physical and psychological limitations, the ALJ found that Plaintiff 2 was unable to perform any past relevant work. AR 31. 3 At step five, the ALJ found that in light of Plaintiff’s age, education, work 4 experience, and residual functional capacity, there were jobs that existed in 5 significant numbers in the national economy that he could perform. AR 31. These 6 included a production assembler, electronics worker, and cannery worker. AR 32. 7 8 9 VI. Issues for Review Plaintiff argues that the Commissioner’s decision is not free of legal error and not supported by substantial evidence. ECF No. 12 at 11. Specifically, he 10 argues the ALJ: (1) did not fulfill his duty to fully and fairly develop the record; 11 (2) improperly discredited his subjective pain complaint testimony; and (3) 12 improperly evaluated and weighed the medical opinion evidence. Id. 13 VII. Discussion 14 A. 15 Plaintiff argues that the ALJ failed to fully and fairly develop the record The ALJ Fully and Fairly Developed the Record 16 because the ALJ did not obtain reports from two mental health providers. See ECF 17 No. 12 at 11-12. Plaintiff also contends that the ALJ failed to question him about 18 all his physical and mental symptoms and limitations. Id. at 12. 19 20 ALJs have an independent duty to fully and fairly develop the record and assure the claimant’s interests are considered. See 20 C.F.R. § 404.1545(a)(3); 20 ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 8 1 C.F.R. § 404.1512(b); Tonapetyan v. Halter, 242 F.3d 1144, 1150 (9th Cir. 2001). 2 This duty is heightened if a claimant is not represented by counsel. Celaya v. 3 Halter, 332 F.3d 1177, 1183 (9th Cir. 2003). ALJs may discharge this duty to 4 develop the record by subpoenaing the claimant’s physicians, submitting questions 5 to the claimant’s physicians, continuing the hearing, or keeping the record open 6 after the hearing to allow for supplementation of the record. See Tonapetyan, 242 7 F.3d at 1150. 8 9 However, ALJs do not have a duty to develop the record about issues that claimants themselves do not raise. Mayes v. Massanari, 276 F.3d 453, 459 (9th 10 Cir. 2001); Littlejohn v. Astrue, No. ED CV 07-1614-SH, 2009 WL 700031, at *3 11 (C.D. Cal. 2009). Claimants also have a duty to inform ALJs of evidence 12 supporting their claims. Rachel S. v. Berryhill, No. C18-5377 RSL, 2019 WL 13 1013469, at *6 (W.D. Wash. 2019). For example, when a claimant indicates at a 14 hearing that a medical provider has no additional records, the ALJ is entitled to 15 rely on that representation and is not required to investigate further. See id.; 16 Jackson v. Astrue, No. ED CV-07-1609 PJW, 2009 WL 1740679, at *2 (C.D. Cal. 17 2009). 18 /// 19 /// 20 ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 9 1 Plaintiff argues that the ALJ failed to fully develop the record because the 2 ALJ did not obtain: (1) the report of Kristen Sims-Cutler, Ph.D. (dated October 20, 3 2017), AR 43-44; and (2) the report of John Arnold, Ph.D. (dated January 10, 4 2017), AR 45-49. See ECF No. 12 at 11-12. 5 As an initial matter, the first report Plaintiff argues the ALJ failed to 6 obtain—the report of Dr. Sims-Cutler—is dated October 20, 2017. See AR 43. 7 This was nearly two months after the ALJ issued his opinion. See AR 17 (opinion 8 dated August 30, 2017). It is unclear how the ALJ could have obtained and 9 considered this report when it did not yet exist. 10 But in any event, the ALJ did not fail to fully develop the record because 11 Plaintiff did not identify these two providers to the ALJ, despite being specifically 12 asked. At the beginning of the hearing, the ALJ asked Plaintiff if he had any more 13 recent medical records in addition to the ones contained in the file, which had been 14 previously organized and given to him. AR 64-65. Plaintiff said he did, from 15 Spokane Ear Nose & Throat, Unified Family Clinic, Sacred Heart Medical Center, 16 and Rockwood Eye Clinic. AR 66. The ALJ advised Plaintiff that he would obtain 17 these additional records and might schedule another hearing, depending on what 18 the records revealed. AR 66. Later, during the discussion of Plaintiff’s mental 19 health, Plaintiff advised that he had an onsite counselor for his depression at 20 Unified Family Clinic. AR 76. The ALJ again stated that he would obtain these ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 10 1 records and asked Plaintiff to send a letter if he remembered having any additional 2 medical records that were not mentioned or in the file. AR 77, 87. At the 3 conclusion of the hearing, Plaintiff said he remembered one additional provider he 4 had seen: Dr. Todd Green, a sleep specialist at Providence Pulmonary. AR 102. 5 After the hearing, the ALJ obtained all of these medical records from the additional 6 providers Plaintiff identified and then analyzed them in the written decision. See 7 AR 26, 1231-1526. 8 9 To summarize: the ALJ asked Plaintiff what counselor he saw for depression, Plaintiff identified Unified Family Clinic, and the ALJ then obtained 10 these records and appropriately analyzed them in the decision. See AR 26, 76, 11 1269-1475. Plaintiff argues that the ALJ never obtained reports from Dr. Sims- 12 Cutler or Dr. Arnold, but Plaintiff never identified these providers despite being 13 asked specifically if any additional records existed. Because the ALJ conducted a 14 thorough inquiry to ensure the record was complete and was entitled to rely on 15 Plaintiff’s representations, the ALJ fulfilled his duty to fully develop the record. 16 See Rachel S., 2019 WL 1013469, at *6; Jackson, 2009 WL 1740679, at *2. 17 Plaintiff also argues that the ALJ failed to question him about all his 18 physical and mental symptoms and limitations. ECF No. 12 at 12. This is incorrect. 19 The ALJ first asked Plaintiff what mental issues, if any, impacted his ability to 20 work. AR 71. After Plaintiff identified depression and anxiety, the ALJ asked ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 11 1 Plaintiff to describe his symptoms to the best of his ability, and then asked, “How 2 does it feel to you?” AR 72. The ALJ asked follow-up questions, such as whether 3 Plaintiff had any issues interacting with people. AR 72. The ALJ then repeated 4 Plaintiff’s answers to ensure he understood correctly. AR 73. 5 After the psychologist testified, the ALJ then asked Plaintiff what his 6 physical problems were. AR 89. Plaintiff described his diabetes, neuropathy, and 7 gout, and the ALJ then specifically asked Plaintiff what conditions kept him from 8 being able to work full time. AR 89. The ALJ asked follow-up questions in 9 response to Plaintiff’s answers, inquiring about the status of Plaintiff’s 10 gastrointestinal issues and asking him to define medical terms. See AR 90-91. The 11 ALJ also asked Plaintiff very specific questions about his diabetes, such as when 12 he was diagnosed, what type he had, and whether he was insulin-dependent. AR 13 93. Plaintiff testified regarding his various conditions and symptoms at length and 14 in detail. See AR 89-92. The ALJ again repeated Plaintiff’s answers to ensure he 15 understood correctly. AR 92. 16 Because the ALJ thoroughly inquired into the completeness of the medical 17 record and was entitled to rely on Plaintiff’s representations, and also thoroughly 18 inquired into Plaintiff’s physical and mental symptoms and limitations, the ALJ 19 fulfilled his duty to fully and fairly develop the record. 20 /// ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 12 1 B. The ALJ did not Improperly Reject Plaintiff’s Subjective Complaints 2 Plaintiff argues the ALJ erred by discounting the credibility of his testimony 3 regarding his subjective symptoms. ECF No. 12 at 12. 4 An ALJ engages in a two-step analysis to determine whether a claimant’s 5 testimony regarding subjective symptoms is credible. Tommasetti v. Astrue, 533 6 F.3d 1035, 1039 (9th Cir. 2008). First, the claimant must produce objective 7 medical evidence of an underlying impairment or impairments that could 8 reasonably be expected to produce some degree of the symptoms alleged. Id. 9 Second, if the claimant meets this threshold, and there is no affirmative evidence 10 suggesting malingering, the ALJ can reject the claimant’s testimony about the 11 severity of his symptoms only by offering “specific, clear, and convincing reasons” 12 for doing so. Id. 13 Here, the ALJ found that the medically determinable impairments could 14 reasonably be expected to produce some degree of the symptoms Plaintiff alleged. 15 AR 28. However, the ALJ determined that the objective medical evidence did not 16 explain the very limited lifestyle Plaintiff alleged at the hearing. AR 29. 17 In weighing a claimant’s credibility, the ALJ may consider many factors, 18 including, “(1) ordinary techniques of credibility evaluation, such as the claimant’s 19 reputation for lying, prior inconsistent statements concerning the symptoms, and 20 other testimony by the claimant that appears less than candid; (2) unexplained or ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 13 1 inadequately explained failure to seek treatment or to follow a prescribed course of 2 treatment; and (3) the claimant’s daily activities.” Smolen v. Chater, 80 F.3d 1273, 3 1284 (9th Cir. 1996). 4 Here, the ALJ provided multiple clear and convincing reasons for 5 discrediting Plaintiff’s subjective complaint testimony. AR 29. First, the ALJ 6 reasoned that Plaintiff’s allegations of completely debilitating physical limitations 7 were inconsistent with his examination findings that his gait was normal. AR 29; 8 see AR 541, 547, 591. An ALJ may discount a claimant’s subjective symptom 9 testimony when it is inconsistent with the medical evidence. Carmickle v. Comm’r 10 of Soc. Sec. Admin., 533 F.3d 1155, 1161 (9th Cir. 2008); Tonapetyan, 242 F.3d at 11 1148. 12 Second, the ALJ discounted Plaintiff’s subjective complaint testimony 13 because of his noncompliance with recommended treatment. AR 29. Plaintiff’s 14 nurse practitioner opined that there was a direct correlation between Plaintiff’s out- 15 of-control diabetes and many of his physical conditions. AR 973. Despite this, the 16 record contains numerous references to his lack of compliance with his providers’ 17 diabetes recommendations, such as not changing his diet or exercising. See AR 18 976, 1270, 1272, 1274, 1277, 1280, 1285, 1289, 1291, 1293, 1305, 1308, 1312, 19 1314. Plaintiff admitted he did not take his blood sugar very often, sometimes for 20 up to two weeks at a time. AR 1288, 1304, 1308, 1314. He also stated he struggled ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 14 1 to control his blood sugar because unhealthy foods were “a pleasure for him” and 2 made him feel better. AR 1291. He acknowledged this was because of his “poor 3 choices.” AR 1308. Dr. Nicholas Wiarda concluded that Plaintiff avoided positive 4 health behaviors in part because of lack of motivation and poor follow-through. 5 AR 1270. Dr. Wiarda also described Plaintiff’s behavior as “learned helplessness.” 6 AR 1293. Plaintiff also did not take the medication his gastroenterologist 7 prescribed, stating that he “[did] not understand the results of his tests and he [felt] 8 ‘overwhelmed’ by all the medications he [was] on.” AR 1270; see also AR 1274. 9 He described his prescription medications as “poisons.” AR 1272. Despite alleging 10 debilitating depression, he also declined a mental health referral. AR 1310. His 11 nurse practitioner noted that he was “not willing to be responsible for his 12 behavior.” AR 973. An ALJ may discount a claimant’s subjective complaints when 13 treatment is inconsistent with the level of complaints or a claimant is not following 14 prescribed treatment without good reason. Molina, 674 F.3d at 1114; Fair v. 15 Bowen, 885 F.2d 597, 603 (9th Cir. 1989). If a claimant’s condition is not severe 16 enough to motivate them to follow the prescribed course of treatment, this calls 17 their alleged limitations into question. Burch v. Barnhart, 400 F.3d 676, 681 (9th 18 Cir. 2005) 19 Importantly, the ALJ noted that when Plaintiff followed his providers’ 20 advice by improving his diet and exercising regularly, his conditions improved and ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 15 1 he felt better. AR 29; see AR 504, 1294. An ALJ may find a claimant’s subjective 2 symptom testimony not credible based on evidence of effective responses to 3 treatment. See, e.g., Burch, 400 F.3d at 681; 20 C.F.R. §§ 404.1529(c)(3)(v), 4 416.929(c)(3). 5 Third, the ALJ discounted Plaintiff’s subjective complaints of completely 6 disabling limitations because they were belied by his daily activities. AR 29. For 7 example, in 2015 Plaintiff was able to load and unload his truck full of car parts for 8 work. AR 1289. He was able to walk his four dogs. AR 1012, 1289. He was able 9 to work outside. AR 1289. He was able to go to the YMCA and swim on a regular 10 basis. AR 1012, 1294. He was able to go to the gym and tried to go regularly, but 11 was “lacking energy.” AR 474; accord AR 504, 1270, 1274, 1289. He was able to 12 care for his young daughter every other weekend, AR 978, 1004, 1011, and do 13 household chores like cooking, grilling, preparing sauces, carrying dirty laundry 14 downstairs, putting the laundry away, doing the dishes, shopping, driving, caring 15 for his dogs, and organizing and sorting boxes in his garage. AR 1011-12. He also 16 maintained gainful employment during parts of the period for which he claims 17 disability. See infra at 17. Activities inconsistent with the alleged symptoms—even 18 when they suggest some difficulty functioning—are proper grounds for 19 questioning the credibility of subjective complaints when the person claims a 20 ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 16 1 totally disabling impairment. Molina, 674 F.3d at 1113; see also Rollins, 261 F.3d 2 at 857; 20 C.F.R. §§ 404.1529(c)(3)(i). 3 Finally, the ALJ discounted Plaintiff’s subjective complaints because 4 Plaintiff’s lack of ongoing employment was likely due to factors unrelated to his 5 allegedly disabling impairments. AR 29. Plaintiff worked in 2014 but was laid off 6 after two months for not making sales quotas. AR 70-71, 1010. He then worked at 7 an assisted living facility in 2016, but was laid off when “a new director came in 8 and brought their own team.” AR 70; see also AR 1312-13. After he was laid off, 9 he sought new employment. AR 1313. Lack of ongoing employment due to factors 10 unrelated to one’s allegedly disabling impairments is a sufficient basis to discredit 11 subjective pain testimony. Bruton v. Massanari, 268 F.3d 824, 828 (9th Cir. 2001). 12 Plaintiff fails to explain how the ALJ erred in relying on any of the above 13 reasons for discrediting his subjective pain testimony. See ECF No. 12 at 12. 14 Instead, Plaintiff argues that the ALJ erred by: (1) relying solely on the testimony 15 of a non-examining, non-treating psychologist; and (2) not calling a physician at 16 the hearing to testify about his physical diagnoses and limitations. Id. These 17 arguments are unrelated to the issue of the ALJ discounting Plaintiff’s subjective 18 complaint testimony. Rather, they relate to the way the ALJ evaluated and weighed 19 the medical opinion evidence. Accordingly, they are addressed in the appropriate 20 section below. See infra at 20-22. ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 17 1 For the reasons discussed above, the ALJ did not err when discounting 2 Plaintiff’s subjective complaint testimony because the ALJ provided multiple clear 3 and convincing reasons for doing so. 4 C. 5 Plaintiff argues that the ALJ erred in evaluating and weighing the medical The ALJ did not Err in Weighing the Medical Opinion Evidence 6 opinion evidence. ECF No. 12 at 12-14. Other than the two arguments outlined 7 above, Plaintiff does not identify any actual provider or opinion that he believes 8 the ALJ improperly considered. Id. Rather, Plaintiff articulates the standard for 9 rejecting the contradicted testimony of a treating or examining doctor (the “specific 10 and legitimate” standard) and then simply states, “here, that was not done.” ECF 11 No. 12 at 14. 12 Title II’s implementing regulations distinguish among the opinions of three 13 types of physicians: (1) those who treat the claimant (treating physicians); (2) those 14 who examine but do not treat the claimant (examining physicians); and (3) those 15 who neither examine nor treat the claimant but who review the claimant’s file 16 (non-examining physicians). Holohan v. Massanari, 246 F.3d 1195, 1201-02 (9th 17 Cir. 2001); see 20 C.F.R. § 404.1527(c)(1)-(2). Generally, a treating physician’s 18 opinion carries more weight than an examining physician’s, and an examining 19 physician’s opinion carries more weight than a non-examining physician’s. 20 Holohan, 246 F.3d at 1202. In addition, the regulations give more weight to ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 18 1 opinions that are explained than to those that are not, and to the opinions of 2 specialists concerning matters relating to their specialty over those of non- 3 specialists. Id. 4 If a treating or examining physician’s opinion is uncontradicted, an ALJ 5 may reject it only by offering “clear and convincing reasons that are supported by 6 substantial evidence.” Bayliss v. Barnhart, 427 F.3d 1211, 1216 (9th Cir. 2005) 7 (citation omitted). If a treating or examining doctor’s opinion is contradicted by 8 another doctor’s opinion, an ALJ may only reject it by providing “specific and 9 legitimate reasons that are supported by substantial evidence.” Id. 10 An ALJ satisfies the “specific and legitimate” standard by “setting out a 11 detailed and thorough summary of the facts and conflicting clinical evidence, 12 stating his [or her] interpretation thereof, and making findings.” Garrison v. 13 Colvin, 759 F.3d 995, 1012 (9th Cir. 2014) (internal quotation marks omitted). In 14 contrast, an ALJ fails to satisfy the standard when he or she “rejects a medical 15 opinion or assigns it little weight while doing nothing more than ignoring it, 16 asserting without explanation that another medical opinion is more persuasive, or 17 criticizing it with boilerplate language that fails to offer a substantive basis for his 18 [or her] conclusion.” Id. at 1012-13. 19 Plaintiff baldly asserts, without explanation, that adherence to the “specific 20 and legitimate” standard “was not done” here. ECF No. 12 at 14. Plaintiff fails to ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 19 1 specify which treating or examining doctor’s opinion was contradicted or rejected. 2 See id. But in any event, the ALJ still satisfied the “specific and legitimate” 3 standard. The ALJ, over nine single-spaced pages, summarized Plaintiff’s 4 voluminous treatment records and the findings and opinions of his many medical 5 providers. See AR 23-31. The ALJ explained in detail which medical opinions he 6 found persuasive, which ones he did not, and why he found each one either 7 persuasive or unpersuasive. See AR 29-31. For example, the ALJ assigned great 8 weight to the opinions of providers who treated Plaintiff, who were particularly 9 credentialed, who were specialists, who had extensive Social Security program 10 knowledge, or who had access to the longitudinal treatment record. See AR 29-31. 11 The ALJ gave less weight to the opinions of medical providers whose opinions 12 conflicted with their own examination findings or were not sufficiently explained. 13 See AR 30. Contrary to Plaintiff’s conclusory assertion, the ALJ set out a detailed 14 and thorough summary of the facts and conflicting evidence, stated his 15 interpretation thereof, and made findings. The ALJ therefore satisfied the “specific 16 and legitimate” standard. 17 As noted above, Plaintiff also argues the ALJ erred by relying solely on the 18 testimony of Nancy Winfrey, Ph.D.—a non-examining, non-treating 19 psychologist—in evaluating his mental limitations. ECF No. 12 at 12. He argues 20 that a “non-examining physician’s opinion cannot by itself constitute substantial ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 20 1 evidence that justifies the rejection of the opinion of either an examining physician 2 or a treating physician.” Id. (citing Lester v. Chater, 81 F.3d 821, 831 (9th Cir. 3 1995)). While true, an ALJ may reject the opinion of a treating or examining 4 doctor based in part on the testimony of a non-examining provider. Lester, 81 F.3d 5 at 831. An ALJ only errs when he or she relies on a non-examining provider’s 6 opinion “with nothing more.” Id. For example, an ALJ may properly reject a 7 treating doctor’s opinion when he or she relies on a combination of a non- 8 examining provider’s opinion, the claimant’s test results, contrary reports from 9 other doctors, and the claimant’s testimony. Id. 10 That is what happened here. The ALJ relied heavily on non-examining 11 psychologist Dr. Winfrey’s testimony. AR 30. However, the ALJ also referenced 12 the chart notes, examination findings, and observations of many other treating and 13 examining providers, who all documented Plaintiff’s normal mental status 14 examinations, alertness and cooperation, normal mood, appropriate affect, normal 15 attention span and concentration, normal judgment and insight, intact memory, 16 organized thought, and denial of psychological symptoms. AR 30; see AR 472-73, 17 475-76 (Dr. Andrew Githaiga); 502-03, 508-09, 537-38 (Dr. Sean LaSalle); 590, 18 592 (Dr. Jeffrey Markin); 853, 856 (Dr. Mark Bauer); 972-73, 980-81 (Samantha 19 Lowderback, ARNP); 1295, 1298, 1300, 1302, 1334 (Christie Ceballos, PA-C). 20 The ALJ also relied in part on the opinion of examining psychologist Dr. John ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 21 1 Arnold, who opined that Plaintiff’s prognosis was fair to guarded. 2 AR 30; see AR 2 1009-1012. Accordingly, Plaintiff’s claim that the ALJ relied solely on the opinion 3 of a non-examining provider fails. 4 Finally, as noted above, Plaintiff also argues that the ALJ erred by not 5 calling a physician at the hearing to testify live about his physical diagnoses and 6 limitations. ECF No. 12 at 12. However, when the medical record is sufficient to 7 determine the extent of a claimant’s impairments, live testimony from a medical 8 expert is not required. Crane v. Barnhart, 224 F. App’x 574, 578 (9th Cir. 2007); 9 Albidrez v. Astrue, 504 F. Supp. 2d 814, 820 (C.D. Cal. 2007). Here, the medical 10 record contained extensive evidence of Plaintiff’s physical limitations, including 11 the opinion of his treating physician who opined that he could return to work at a 12 desk job. AR 23-31, 517. The ALJ did not err by not calling a physician at the 13 hearing to testify live about Plaintiff’s physical diagnoses and limitations. 14 /// 15 /// 16 /// 17 /// 18 /// 19 2 20 This is a different report than the one referenced earlier in this order. See infra at 10. Dr. Arnold completed two separate reports: one dated November 12, 2014, AR 1009-1012 (the one referenced here), and one dated January 10, 2017 (the one discussed earlier). See AR 45-49. ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 22 1 VIII. Order 2 Having reviewed the record and the ALJ’s findings, the Court finds the 3 ALJ’s decision is supported by substantial evidence and is free from legal error. 4 Accordingly, IT IS ORDERED: 5 1. Plaintiff’s Motion for Summary Judgment, ECF No. 12, is DENIED. 6 2. Defendant’s Motion for Summary Judgment, ECF No. 14, is 7 GRANTED. 8 3. Judgment shall be entered in favor of Defendant and the file shall be 9 CLOSED. 10 IT IS SO ORDERED. The District Court Executive is directed to enter this Order, 11 forward copies to counsel, and close the file. 12 13 14 DATED this 24th day of July, 2019. s/Robert H. Whaley ROBERT H. WHALEY Senior United States District Judge 15 16 17 18 19 20 ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 23
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