Smith v. Saul, No. 2:2019cv00131 - Document 17 (E.D. Wash. 2019)
Court Description: ORDER Denying 14 Plaintiff's Motion for Summary Judgment and Granting 15 Defendant's Motion for Summary Judgment. Signed by Magistrate Judge Mary K. Dimke. (PL, Case Administrator)
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Smith v. Saul Doc. 17 1 2 FI LED I N THE U.S. DI STRI CT COURT EASTERN DI STRI CT OF WASHI NGTON 3 Dec 13, 2019 SEAN F. MCAVOY, CLERK 4 5 UNITED STATES DISTRICT COURT 6 EASTERN DISTRICT OF WASHINGTON 7 DEBRA S.,1 No. 2:19-cv-00131-MKD Plaintiff, 8 vs. 9 ANDREW M. SAUL, 10 COMMISSIONER OF SOCIAL SECURITY,2 11 Defendant. 12 13 ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ECF Nos. 14, 15 Before the Court are the parties’ cross-motions for summary judgment. ECF Nos. 14, 15. The parties consented to proceed before a magistrate judge. ECF No. 14 15 16 1 To protect the privacy of plaintiffs in social security cases, the undersigned 17 identifies them by only their first names and the initial of their last names. 18 2 Andrew M. Saul is now the Commissioner of the Social Security Administration. 19 Accordingly, the Court substitutes Andrew M. Saul as the Defendant and directs 20 the Clerk to update the docket sheet. See Fed. R. Civ. P. 25(d). ORDER - 1 Dockets.Justia.com 1 6. The Court, having reviewed the administrative record and the parties’ briefing, 2 is fully informed. For the reasons discussed below, the Court denies Plaintiff’s 3 motion, ECF No. 14, and grants Defendant’s motion, ECF No. 15. 4 5 JURISDICTION The Court has jurisdiction over this case pursuant to 42 U.S.C. § 405(g). 6 7 STANDARD OF REVIEW A district court’s review of a final decision of the Commissioner of Social 8 Security is governed by 42 U.S.C. § 405(g). The scope of review under § 405(g) is 9 limited; the Commissioner’s decision will be disturbed “only if it is not supported 10 by substantial evidence or is based on legal error.” Hill v. Astrue, 698 F.3d 1153, 11 1158 (9th Cir. 2012). “Substantial evidence” means “relevant evidence that a 12 reasonable mind might accept as adequate to support a conclusion.” Id. at 1159 13 (quotation and citation omitted). Stated differently, substantial evidence equates to 14 “more than a mere scintilla[,] but less than a preponderance.” Id. (quotation and 15 citation omitted). In determining whether the standard has been satisfied, a 16 reviewing court must consider the entire record as a whole rather than searching 17 for supporting evidence in isolation. Id. 18 In reviewing a denial of benefits, a district court may not substitute its 19 judgment for that of the Commissioner. Edlund v. Massanari, 253 F.3d 1152, 20 1156 (9th Cir. 2001). If the evidence in the record “is susceptible to more than one ORDER - 2 1 rational interpretation, [the court] must uphold the ALJ’s findings if they are 2 supported by inferences reasonably drawn from the record.” Molina v. Astrue, 674 3 F.3d 1104, 1111 (9th Cir. 2012). Further, a district court “may not reverse an 4 ALJ’s decision on account of an error that is harmless.” Id. An error is harmless 5 “where it is inconsequential to the [ALJ’s] ultimate nondisability determination.” 6 Id. at 1115 (quotation and citation omitted). The party appealing the ALJ’s 7 decision generally bears the burden of establishing that it was harmed. Shinseki v. 8 Sanders, 556 U.S. 396, 409-10 (2009). 9 10 FIVE-STEP EVALUATION PROCESS A claimant must satisfy two conditions to be considered “disabled” within 11 the meaning of the Social Security Act. First, the claimant must be “unable to 12 engage in any substantial gainful activity by reason of any medically determinable 13 physical or mental impairment which can be expected to result in death or which 14 has lasted or can be expected to last for a continuous period of not less than twelve 15 months.” 42 U.S.C. § 423(d)(1)(A). Second, the claimant’s impairment must be 16 “of such severity that he is not only unable to do his previous work[,] but cannot, 17 considering his age, education, and work experience, engage in any other kind of 18 substantial gainful work which exists in the national economy.” 42 U.S.C. § 19 423(d)(2)(A). 20 ORDER - 3 1 The Commissioner has established a five-step sequential analysis to 2 determine whether a claimant satisfies the above criteria. See 20 C.F.R. § 3 404.1520(a)(4)(i)-(v). At step one, the Commissioner considers the claimant’s 4 work activity. 20 C.F.R. § 404.1520(a)(4)(i). If the claimant is engaged in 5 “substantial gainful activity,” the Commissioner must find that the claimant is not 6 disabled. 20 C.F.R. § 404.1520(b). 7 If the claimant is not engaged in substantial gainful activity, the analysis 8 proceeds to step two. At this step, the Commissioner considers the severity of the 9 claimant’s impairment. 20 C.F.R. § 404.1520(a)(4)(ii). If the claimant suffers 10 from “any impairment or combination of impairments which significantly limits 11 [his or her] physical or mental ability to do basic work activities,” the analysis 12 proceeds to step three. 20 C.F.R. § 404.1520(c). If the claimant’s impairment 13 does not satisfy this severity threshold, however, the Commissioner must find that 14 the claimant is not disabled. 20 C.F.R. § 404.1520(c). 15 At step three, the Commissioner compares the claimant’s impairment to 16 severe impairments recognized by the Commissioner to be so severe as to preclude 17 a person from engaging in substantial gainful activity. 20 C.F.R. § 18 404.1520(a)(4)(iii). If the impairment is as severe or more severe than one of the 19 enumerated impairments, the Commissioner must find the claimant disabled and 20 award benefits. 20 C.F.R. § 404.1520(d). ORDER - 4 1 If the severity of the claimant’s impairment does not meet or exceed the 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), is relevant to both the fourth and fifth steps of the analysis. 7 At step four, the Commissioner considers whether, in view of the claimant’s 8 RFC, the claimant is capable of performing work that he or she has performed in 9 the past (past relevant work). 20 C.F.R. § 404.1520(a)(4)(iv). If the claimant is 10 capable of performing past relevant work, the Commissioner must find that the 11 claimant is not disabled. 20 C.F.R. § 404.1520(f). If the claimant is incapable of 12 performing such work, the analysis proceeds to step five. 13 At step five, the Commissioner considers whether, in view of the claimant’s 14 RFC, the claimant is capable of performing other work in the national economy. 15 20 C.F.R. § 404.1520(a)(4)(v). In making this determination, the Commissioner 16 must also consider vocational factors such as the claimant’s age, education, and 17 past work experience. 20 C.F.R. § 404.1520(a)(4)(v). If the claimant is capable of 18 adjusting to other work, the Commissioner must find that the claimant is not 19 disabled. 20 C.F.R. § 404.1520(g)(1). If the claimant is not capable of adjusting to 20 ORDER - 5 1 other work, the analysis concludes with a finding that the claimant is disabled and 2 is therefore entitled to benefits. 20 C.F.R. § 404.1520(g)(1). 3 The claimant bears the burden of proof at steps one through four above. 4 Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999). If the analysis proceeds to 5 step five, the burden shifts to the Commissioner to establish that 1) the claimant is 6 capable of performing other work; and 2) such work “exists in significant numbers 7 in the national economy.” 20 C.F.R. § 404.1560(c)(2); Beltran v. Astrue, 700 F.3d 8 386, 389 (9th Cir. 2012). 9 10 ALJ’S FINDINGS On May 20, 2016, Plaintiff applied for Title II disability insurance benefits 11 alleging a disability onset date of March 26, 2015. Tr. 167-70. The application 12 was denied initially and on reconsideration. Tr. 92-98, 100-06. Plaintiff appeared 13 before an administrative law judge (ALJ) on February 7, 2018. Tr. 35-63. On 14 April 4, 2018, the ALJ denied Plaintiff’s claim. Tr. 15-34. 15 At step one of the sequential evaluation process, the ALJ found that Plaintiff 16 had not engaged in substantial gainful activity since March 26, 2015. Tr. 20. At 17 step two, the ALJ found that Plaintiff had the following severe impairments: 18 contusion right foot, sprain left foot, complex regional pain syndrome (CRPS), and 19 gout. Tr. 20. 20 ORDER - 6 1 At step three, the ALJ found that Plaintiff did not have an impairment or 2 combination of impairments that met or medically equaled the severity of a listed 3 impairment. Tr. 22. The ALJ then concluded that Plaintiff had the RFC to 4 perform sedentary work with the following limitations: 5 6 7 8 9 [Plaintiff] can occasionally lift and carry a maximum of 10 pounds and can frequently lift and carry a maximum of less than 10 pounds. She can stand and walk for two hours total in an eight-hour workday with normal breaks. She can sit for six hours total in an eight-hour workday with normal breaks. [Plaintiff] can occasionally balance; stoop; crouch; kneel; crawl; and climb ramps and stairs. She can never climb ladders, ropes, or scaffolds. [Plaintiff] can never have exposure to hazards, such as unprotected heights or dangerous heavy machinery. 10 Tr. 23. 11 At step four, the ALJ found Plaintiff was capable of performing her past 12 relevant work as a program aid and employment specialist. Tr. 27. Alternatively, 13 at step five, the ALJ found that considering Plaintiff’s age, education, work 14 experience, RFC, and testimony from the vocational expert, there were jobs that 15 existed in significant numbers in the national economy that Plaintiff could perform, 16 such as charge account clerk and document preparer. Tr. 27-28. Therefore, the 17 ALJ concluded that Plaintiff was not under a disability, as defined in the Social 18 Security Act, from the alleged onset date of March 26, 2015, though the date of the 19 decision. Tr. 28. 20 ORDER - 7 1 On February 21, 2019, the Appeals Council denied review of the ALJ’s 2 decision, Tr. 1-6, making the ALJ’s decision the Commissioner’s final decision for 3 purposes of judicial review. See 42 U.S.C. § 1383(c)(3). 4 ISSUES 5 Plaintiff seeks judicial review of the Commissioner’s final decision denying 6 her disability insurance benefits under Title II of the Social Security Act. Plaintiff 7 raises the following issues for review: 8 1. Whether the ALJ properly evaluated Plaintiff’s symptom claims; and 9 2. Whether the ALJ properly evaluated the medical opinion evidence. 10 ECF No. 14 at 15. 11 12 13 DISCUSSION A. Plaintiff’s Symptom Claims Plaintiff faults the ALJ for failing to rely on clear and convincing reasons in 14 discrediting her symptom claims. ECF No. 14 at 16-19. An ALJ engages in a two15 step analysis to determine whether to discount a claimant’s testimony regarding 16 subjective symptoms. SSR 16–3p, 2016 WL 1119029, at *2. “First, the ALJ must 17 determine whether there is objective medical evidence of an underlying 18 impairment which could reasonably be expected to produce the pain or other 19 symptoms alleged.” Molina, 674 F.3d at 1112 (quotation marks omitted). “The 20 claimant is not required to show that [the claimant’s] impairment could reasonably ORDER - 8 1 be expected to cause the severity of the symptom [the claimant] has alleged; [the 2 claimant] need only show that it could reasonably have caused some degree of the 3 symptom.” Vasquez v. Astrue, 572 F.3d 586, 591 (9th Cir. 2009). 4 Second, “[i]f the claimant meets the first test and there is no evidence of 5 malingering, the ALJ can only reject the claimant’s testimony about the severity of 6 the symptoms if [the ALJ] gives ‘specific, clear and convincing reasons’ for the 7 rejection.” Ghanim v. Colvin, 763 F.3d 1154, 1163 (9th Cir. 2014) (citations 8 omitted). General findings are insufficient; rather, the ALJ must identify what 9 symptom claims are being discounted and what evidence undermines these claims. 10 Id. (quoting Lester v. Chater, 81 F.3d 821, 834 (9th Cir. 1995); Thomas v. 11 Barnhart, 278 F.3d 947, 958 (9th Cir. 2002) (requiring the ALJ to sufficiently 12 explain why it discounted claimant’s symptom claims)). “The clear and 13 convincing [evidence] standard is the most demanding required in Social Security 14 cases.” Garrison v. Colvin, 759 F.3d 995, 1015 (9th Cir. 2014) (quoting Moore v. 15 Comm’r of Soc. Sec. Admin., 278 F.3d 920, 924 (9th Cir. 2002)). 16 Factors to be considered in evaluating the intensity, persistence, and limiting 17 effects of a claimant’s symptoms include: 1) daily activities; 2) the location, 18 duration, frequency, and intensity of pain or other symptoms; 3) factors that 19 precipitate and aggravate the symptoms; 4) the type, dosage, effectiveness, and 20 side effects of any medication an individual takes or has taken to alleviate pain or ORDER - 9 1 other symptoms; 5) treatment, other than medication, an individual receives or has 2 received for relief of pain or other symptoms; 6) any measures other than treatment 3 an individual uses or has used to relieve pain or other symptoms; and 7) any other 4 factors concerning an individual’s functional limitations and restrictions due to 5 pain or other symptoms. SSR 16-3p, 2016 WL 1119029, at *7; 20 C.F.R. § 6 404.1529(c). The ALJ is instructed to “consider all of the evidence in an 7 individual’s record,” “to determine how symptoms limit ability to perform work8 related activities.” SSR 16-3p, 2016 WL 1119029, at *2. 9 The ALJ found that Plaintiff’s medically determinable impairments could 10 reasonably be expected to cause the alleged symptoms, but that Plaintiff’s 11 statements concerning the intensity, persistence, and limiting effects of her 12 symptoms were not entirely consistent with the evidence. Tr. 24. 13 1. Daily Activities 14 The ALJ found that Plaintiff’s activities were inconsistent with the level of 15 impairment Plaintiff alleged. Tr. 24. An ALJ may consider a claimant’s activities 16 that undermine reported symptoms. Rollins v. Massanari, 261 F.3d 853, 857 (9th 17 Cir. 2001). If a claimant can spend a substantial part of the day engaged in 18 pursuits involving the performance of exertional or nonexertional functions, the 19 ALJ may find these activities inconsistent with the reported disabling symptoms. 20 Fair v. Bowen, 885 F.2d 597, 603 (9th Cir. 1989); Molina, 674 F.3d at 1113. ORDER - 10 1 “While a claimant need not vegetate in a dark room in order to be eligible for 2 benefits, the ALJ may discount a claimant’s symptom claims when the claimant 3 reports participation in everyday activities indicating capacities that are 4 transferable to a work setting” or when activities “contradict claims of a totally 5 debilitating impairment.” Molina, 674 F.3d at 1112-13. 6 Here, the ALJ indicated that Plaintiff reported she was unable to work due to 7 a multitude of symptoms, including dizziness, fatigue, difficulty with balance, lack 8 of stamina, numbness, limited range of motion, stiffness, difficulty sleeping, 9 standing, walking, kneeling, lifting, and reaching, difficulty with concentration and 10 memory loss, constant depression with feelings of sadness, lack of interest in 11 activities she used to enjoy, migraines that caused nausea, photosensitivity, and 12 required that she lie down in a dark quiet room, and swelling in her feet and legs 13 that required her to elevate her legs for several hours each day. Tr. 24 (citing Tr. 14 47-56, 216-26, 236, 242, 245-55). However, the ALJ noted that Plaintiff’s 15 allegations of disabling impairments were inconsistent with her active lifestyle. Tr. 16 24. The ALJ observed that Plaintiff stated she spent time each day with people in 17 person or talking on the phone, caring for pets, preparing meals, watching 18 television, and reading. Tr. 24 (citing Tr. 217, 222). The ALJ noted that Plaintiff 19 reported she did household chores in short increments of time, including cleaning, 20 laundry, and dishes. Tr. 24 (citing Tr. 220). The ALJ noted that Plaintiff stated ORDER - 11 1 she drove a car, shopped in stores for groceries each week, spent time baking, and 2 was able to pay bills and mange finances. Tr. 24 (citing Tr. 52, 220-21, 607). The 3 ALJ cited Plaintiff’s report that she was not socially isolated and regularly spent 4 time with her sister, her sister’s husband, a friend, and her daughter. Tr. 24 (citing 5 Tr. 607). Further, the ALJ noted that Plaintiff reported to her primary care 6 provider in August 2016 that she was able to walk her dog every day. Tr. 24 7 (citing Tr. 428). The ALJ also cited Plaintiff’s testimony that she climbed several 8 stairs in her home and three stairs outside her home each day, went out three or 9 four times each week, and frequently spent time outside sitting in her yard. Tr. 25 10 (citing Tr. 52-54). The ALJ reasonably concluded that these activities were 11 inconsistent with the debilitating level of impairment Plaintiff alleged and are 12 consistent with the ALJ’s RFC of limited sedentary work. Tr. 24. 13 Plaintiff challenges the ALJ’s finding by asserting that Plaintiff “did admit 14 that she performs these activities; however, she did not perform these activities for 15 [eight] hours a day.” ECF No. 14 at 17. An ALJ may discount a claimant’s 16 symptom claims when the claimant reports participation in everyday activities that 17 “contradict claims of a totally debilitating impairment.” Molina, 674 F.3d at 111218 13. Here, the ALJ identified Plaintiff’s specific alleged impairments and noted 19 specific activities that indicated Plaintiff was less limited than she alleged. Tr. 2420 ORDER - 12 1 25. This was a clear and convincing reason to give less weight to Plaintiff’s 2 subjective symptom testimony. 3 2. Minimal Treatment and Improvement with Treatment 4 The ALJ found that Plaintiff’s symptom complaints were inconsistent with 5 Plaintiff’s minimal treatment and the level of improvement she showed with 6 treatment. Tr. 25. Evidence of “conservative treatment” is sufficient to discount a 7 claimant’s testimony regarding the severity of an impairment. Parra v. Astrue, 481 8 F.3d 742 (9th Cir. 2007) (citing Johnson v. Shalala, 60 F.3d 1428, 1434 (9th Cir. 9 1995) (treating ailments with an over-the-counter pain medication is evidence of 10 conservative treatment sufficient to discount a claimant’s testimony regarding the 11 severity of an impairment)); see also Tommasetti v. Astrue, 533 F.3d 1035, 1039 12 (9th Cir. 2008) (holding that the ALJ permissibly inferred that the claimant’s “pain 13 was not as all-disabling as he reported in light of the fact that he did not seek an 14 aggressive treatment program” and “responded favorably to conservative treatment 15 including physical therapy and the use of anti-inflammatory medication, a 16 transcutaneous electrical nerve stimulation unit, and a lumbosacral corset”). 17 Further, the effectiveness of treatment is a relevant factor in determining the 18 severity of a claimant’s symptoms. 20 C.F.R. § 404.1529(c)(3); see Warre v. 19 Comm’r of Soc. Sec. Admin., 439 F.3d 1001, 1006 (9th Cir. 2006) (conditions 20 effectively controlled with medication are not disabling for purposes of ORDER - 13 1 determining eligibility for benefits) (internal citations omitted); see also 2 Tommasetti, 533 F.3d at 1040 (a favorable response to treatment can undermine a 3 claimant’s complaints of debilitating pain or other severe limitations). 4 Here, the ALJ found the record evidence showed that Plaintiff did not 5 require significant forms of treatment, as her only podiatric surgical intervention 6 was for the removal of ingrown toenails. Tr. 25. The ALJ also observed that 7 Plaintiff’s swelling improved to a minimum with the use of prescribed pain 8 medication and anti-inflammatory medication for a time, which was consistent 9 with the ability to tolerate the restricted range of sedentary work outlined in the 10 RFC. Tr. 25. Moreover, the ALJ noted that Plaintiff’s allegations of debilitating 11 pain symptoms were inconsistent with her treatment records from physical therapy 12 between April and October 2015, which documented improvement in her foot 13 impairment. Tr. 25; see, e.g., Tr. 318 (April 15, 2015: Plaintiff was given muscle 14 relaxers which helped decrease her right foot pain and symptoms; treatment notes 15 showed “[s]ignificantly decreased irritation in foot today”); Tr. 374 (April 28, 16 2015: treatment notes reported that Plaintiff was in physical therapy, tapering her 17 pain medications, and the muscle relaxers “really are helping”); Tr. 326 (April 29, 18 2015: physical therapy treatment notes showed Plaintiff was “feeling better”); Tr. 19 344 (May 18, 2015: physical therapy treatment notes indicated Plaintiff had 20 “increased tolerance to touch and standing”); Tr. 367 (June 26, 2015: physical ORDER - 14 1 therapy treatment notes reported Plaintiff had “[d]ecreased irritation in foot”). The 2 ALJ reasonably concluded that Plaintiff’s minimal treatment, as well as the 3 improvement in her lower extremity swelling after participating in physical therapy 4 and the use of pain medication and anti-inflammatory medication, supported a 5 finding that Plaintiff was capable of sedentary work with additional functional 6 limitations, which was inconsistent with Plaintiff’s subjective symptom claims. 7 Furthermore, Plaintiff fails to challenge the ALJ’s conclusion, so argument on this 8 issue is waived. See Carmickle v. Comm’r, Soc. Sec. Admin., 533 F.3d 1155, 1161 9 n.2 (9th Cir. 2008) (determining the court may decline to address the merits of 10 issues not argued with specificity); Kim v. Kang, 154 F.3d 996, 1000 (9th Cir. 11 1998) (recognizing the court may not consider on appeal issues not “specifically 12 and distinctly argued” in the party’s opening brief). Plaintiff’s treatment history, 13 documenting both minimal treatment and improvement with treatment, was a clear 14 and convincing reason to discredit Plaintiff’s symptom testimony. 15 3. Lack of Supporting Medical Evidence 16 The ALJ found the level of impairment Plaintiff alleged was not supported 17 by the medical evidence. Tr. 25-26. An ALJ may not discredit a claimant’s 18 symptom testimony and deny benefits solely because the degree of the symptoms 19 alleged is not supported by objective medical evidence. Rollins, 261 F.3d at 857; 20 Bunnell v. Sullivan, 947 F.2d 341, 346-47 (9th Cir. 1991); Fair, 885 F.2d at 601; ORDER - 15 1 Burch v. Barnhart, 400 F.3d 676, 680 (9th Cir. 2005). However, the objective 2 medical evidence is a relevant factor, along with the medical source’s information 3 about the claimant’s pain or other symptoms, in determining the severity of a 4 claimant’s symptoms and their disabling effects. Rollins, 261 F.3d at 857; 20 5 C.F.R. § 404.1529(c)(2). As an initial matter, Plaintiff contends the ALJ 6 improperly discredited her symptom claims “solely because” her testimony was 7 not substantiated by objective medical evidence. ECF No. 14 at 18-19. However, 8 as discussed infra and supra, this contention has no factual basis, as the lack of 9 objective evidence was not the sole basis for the ALJ’s analysis of Plaintiff’s 10 claims. Plaintiff’s argument ignores the three additional reasons set forth by the 11 ALJ which provide permissible reasons for discounting Plaintiff’s symptom 12 claims. 13 Here, the ALJ found the objective medical evidence did not support the 14 disabling musculoskeletal impairments and chronic pain symptoms Plaintiff 15 described. Tr. 25-26; see, e.g., Tr. 300, 302 (March 27, 2015: Plaintiff suffered a 16 right-foot contusion injury without evidence of fracture, as demonstrated from a 17 right foot x-ray); Tr. 453 (April 11, 2015: an x-ray of Plaintiff’s right foot revealed 18 negative findings); Tr. 456-57 (April 11, 2015: an ultrasound of Plaintiff’s right 19 foot demonstrated no evidence of any venous abnormality); Tr. 304 (June 15, 20 2015: a bone scan revealed mild pathology in Plaintiff’s bilateral feet, including ORDER - 16 1 mild increased radiotracer uptake in the left calcaneus, right Achilles tendon, and 2 bilateral mid-foot at the first metatarsophalangeal joint); Tr. 392 (November 20, 3 2015: treatment notes reported that an MRI of Plaintiff’s right foot was consistent 4 with gout); Tr. 418-19 (December 22, 2015: a bone scan demonstrated minimal 5 degeneration in both of Plaintiff’s feet but without any significant changes since 6 the June 2015 bone scan); Tr. 444 (November 19, 2016: an ultrasound of Plaintiff’s 7 right lower extremity was normal and showed no evidence of right leg deep venous 8 thrombosis). 9 Further, the ALJ observed that except for noted swelling of Plaintiff’s feet, 10 the objective findings and clinical observations consistently documented by 11 examining and treating providers in the record were generally mild and 12 unremarkable. Tr. 25-26; see, e.g., Tr. 372 (April 2, 2015: treatment notes reported 13 Plaintiff was “really in no distress,” her right foot was swollen across the dorsum, 14 there was no obvious discoloration, and no crepitus was noted); Tr. 456 (April 11, 15 2015: treatment notes showed no edema or significant bruising or swelling of 16 Plaintiff’s right foot, although she did have tenderness over the metatarsal 17 phalangeal joint region); Tr. 374 (April 28, 2015: treatment notes showed Plaintiff 18 was no longer using crutches, her right foot was a little swollen across the dorsum, 19 there was no obvious discoloration, and no crepitus was noted); Tr. 306 (June 2, 20 2015: an examining podiatrist noted bilateral edema of Plaintiff’s dorsal foot with ORDER - 17 1 an otherwise normal vascular, neurological, and musculoskeletal examination, and 2 CRPS was suggested as a possible diagnosis); Tr. 378 (June 3, 2015: Plaintiff 3 presented wearing flip-flops and ambulating without crutches, her right foot was 4 swollen across the dorsum, there was blotchy discoloration, and no crepitus was 5 noted); Tr. 762 (June 8, 2015: Plaintiff was ambulating normally); Tr. 763 (July 6 22, 2015: Plaintiff had normal gait and station, normal motor strength and tone, 7 and her extremities were unremarkable); Tr. 476, 479 (October 10, 2015: treatment 8 notes stated that Plaintiff reported exacerbation of her foot pain, but a physical 9 examination revealed no obvious deformities or issues with her feet, no peripheral 10 edema, and no clubbing or cyanosis of Plaintiff’s extremities); Tr. 399 (January 12, 11 2016: treatment notes showed that Plaintiff had an independent medical 12 examination with an orthopedist, neurologist, and rheumatologist, and they 13 determined she did not have CRPS and could return to full duty); Tr. 496 14 (September 27, 2016: a physical examination revealed Plaintiff’s upper and lower 15 extremity strength was equal bilaterally, and all joints had active and passive full 16 range of movement and were free from deformity, erythema, warmth, or effusion); 17 Tr. 511 (October 4, 2016: treatment notes showed Plaintiff had good range of 18 motion in all major joints, tenderness down into the left sciatic notch, she moved 19 all four extremities appropriately, was up and ambulatory independently without 20 difficulty, with intact distal pulses, no edema, and no tenderness); Tr. 524 (October ORDER - 18 1 5, 2016: Plaintiff demonstrated good range of motion in all major joints); Tr. 442 2 (November 19, 2016: Plaintiff’s chief complaint was right leg and calf pain, but 3 treatment notes reported Plaintiff noted mild swelling that was “not obvious on 4 inspection,” and upon examination Plaintiff’s right leg was normal in appearance, 5 and there was no discoloration); Tr. 443 (November 19, 2016: an emergency 6 department provider reported that Plaintiff had “a very benign physical exam”); Tr. 7 551 (November 21, 2016: Plaintiff’s upper and lower extremity strength was equal 8 bilaterally, all joints had active and passive full range of movement and were free 9 from deformity, erythema, warmth, or effusion); Tr. 561 (November 22, 2016: 10 Plaintiff had no joint tenderness, deformity, or swelling); Tr. 573 (December 1, 11 2016: Plaintiff denied extremity weakness, joint pain, joint swelling, joint 12 tenderness, joint redness, stiffness, muscle aches, muscle weakness, or muscle 13 cramps); Tr. 649 (June 20, 2017: Plaintiff had no edema and showed good range of 14 motion in all major joints); Tr. 680 (June 30, 2017: Plaintiff had no edema, no 15 tenderness, and good range of motion in all major joints); Tr. 884-85 (January 16, 16 2018: Plaintiff’s primary care physician noted swelling in her bilateral feet, some 17 discoloration in the skin, and tenderness across the metatarsophalangeal joints, but 18 no crepitus). 19 Plaintiff disputes the ALJ’s determination that the objective medical 20 evidence did not support her symptom claims, asserting instead that the medical ORDER - 19 1 evidence of record supported a finding of disability. ECF No. 14 at 18-19. The 2 Court may not reverse the ALJ’s decision based on Plaintiff’s disagreement with 3 the ALJ’s interpretation of the record. See Tommasetti, 533 F.3d at 1038 (“[W]hen 4 the evidence is susceptible to more than one rational interpretation” the court will 5 not reverse the ALJ’s decision). On this record, the ALJ reasonably concluded that 6 the objective medical evidence did not support the level of musculoskeletal 7 impairments and chronic pain symptoms Plaintiff alleged. Tr. 25-26. The lack of 8 support in the medical evidence coupled with the other reasons articulated 9 provided clear and convincing reasons to give less weight to Plaintiff’s subjective 10 symptom testimony. 11 4. Unprescribed Use of a Cane 12 The ALJ also discounted Plaintiff’s symptom allegations because Plaintiff’s 13 treatment notes failed to indicate that her use of a cane was medically prescribed. 14 Tr. 24. An ALJ may discount a claimant’s subjective complaints based on the 15 unprescribed use of an assistive device, such as a cane. See Chaudhry v. Astrue, 16 688 F.3d 661, 671 (9th Cir. 2012); see also Tommasetti, 533 F.3d at 1040. Here, 17 the ALJ noted that although Plaintiff alleged that she used a cane to climb stairs, 18 balance, and prevent falling, Plaintiff also admitted that no doctor had ever 19 prescribed the use of a cane. Tr. 24; see Tr. 254 (Plaintiff reported that her cane 20 was not prescribed). In her opening brief, Plaintiff concedes that no medical ORDER - 20 1 source “specifically advise[d] her to use a cane.” ECF No. 14 at 18. However, 2 Plaintiff argues that her providers “knew that she required a cane to ambulate.” 3 ECF No. 14 at 18. As noted supra, the Court may not reverse the ALJ’s decision 4 based on Plaintiff’s disagreement with the ALJ’s interpretation of the record. See 5 Tommasetti, 533 F.3d at 1038. The ALJ reasonably concluded that Plaintiff’s use 6 of an unprescribed cane did not support the level of musculoskeletal impairments 7 and chronic pain symptoms Plaintiff alleged. Tr. 24. 8 9 B. Medical Opinion Evidence Plaintiff challenges the ALJ’s evaluation of the medical opinions of 10 Alexander Kats, M.D., P.Z. Pearce, M.D., Heather Tick, M.D., Christopher 11 Anderson, M.D., and Mary Gallegos, ARNP. ECF No. 14 at 20; ECF No. 16 at 6, 12 8. Plaintiff only specifically challenges the ALJ’s findings related to the diagnosis 13 of CRPS. ECF No. 14 at 19-20. 14 There are three types of physicians: “(1) those who treat the claimant 15 (treating physicians); (2) those who examine but do not treat the claimant 16 (examining physicians); and (3) those who neither examine nor treat the claimant 17 [but who review the claimant’s file] (nonexamining [or reviewing] physicians).” 18 Holohan v. Massanari, 246 F.3d 1195, 1201-02 (9th Cir. 2001) (citations omitted). 19 Generally, a treating physician’s opinion carries more weight than an examining 20 physician’s opinion, and an examining physician’s opinion carries more weight ORDER - 21 1 than a reviewing physician’s opinion. Id. at 1202. “In addition, the regulations 2 give more weight to opinions that are explained than to those that are not, and to 3 the opinions of specialists concerning matters relating to their specialty over that of 4 nonspecialists.” Id. (citations omitted). 5 If a treating or examining physician’s opinion is uncontradicted, the ALJ 6 may reject it only by offering “clear and convincing reasons that are supported by 7 substantial evidence.” Bayliss v. Barnhart, 427 F.3d 1211, 1216 (9th Cir. 2005). 8 “However, the ALJ need not accept the opinion of any physician, including a 9 treating physician, if that opinion is brief, conclusory, and inadequately supported 10 by clinical findings.” Bray v. Comm’r of Soc. Sec. Admin., 554 F.3d 1219, 1228 11 (9th Cir. 2011) (internal quotation marks and brackets omitted). “If a treating or 12 examining doctor’s opinion is contradicted by another doctor’s opinion, an ALJ 13 may only reject it by providing specific and legitimate reasons that are supported 14 by substantial evidence.” Bayliss, 427 F.3d at 1216 (citing Lester, 81 F.3d at 830– 15 31. The opinion of a nonexamining physician may serve as substantial evidence if 16 it is supported by other independent evidence in the record. Andrews v. Shalala, 17 53 F.3d 1035, 1041 (9th Cir. 1995). 18 “Only physicians and certain other qualified specialists are considered 19 ‘[a]cceptable medical sources.’ ” Ghanim, 763 F.3d at 1161 (alteration in original); 20 ORDER - 22 1 see 20 C.F.R. § 404.1513 (2013).3 However, an ALJ is required to consider 2 evidence from non-acceptable medical sources. Sprague v. Bowen, 812 F.2d 1226, 3 1232 (9th Cir. 1987); 20 C.F.R. § 404.1513(d) (2013). “Other sources” include 4 nurse practitioners, physicians’ assistants, therapists, teachers, social workers, 5 spouses and other non-medical sources. 20 C.F.R. § 404.1513(d) (2013). An ALJ 6 may reject the opinion of a non-acceptable medical source by giving reasons 7 germane to the opinion. Ghanim, 763 F.3d at 1161. 8 1. Dr. Kats 9 On February 24, 2017, state agency medical consultant Alexander Kats, 10 M.D., reviewed the medical record and opined that Plaintiff would be able to 11 occasionally and frequently lift and/or carry 10 pounds, stand and/or walk for two 12 hours, and sit for about six hours in an eight-hour workday. Tr. 78-91. Dr. Kats 13 opined that Plaintiff would be able to occasionally climb ramps, stairs, ladders, 14 ropes, and scaffolds, and occasionally balance, kneel, crouch, and crawl due to 15 obesity and pain in her feet from CRPS. Tr. 88. Dr. Kats determined that Plaintiff 16 would be able to frequently stoop. Tr. 88. He noted that Plaintiff must avoid 17 18 3 For cases filed prior to March 27, 2017, the definition of an acceptable medical 19 source, as well as the requirement that an ALJ consider evidence from non20 acceptable medical sources, are located at 20 C.F.R. § 404.1513(d) (2013). ORDER - 23 1 concentrated exposure to hazards. Tr. 89. The ALJ gave Dr. Kats’ opinion 2 significant weight. Tr. 26. 3 Plaintiff contends the ALJ erred by giving significant weight to the opinion 4 of Dr. Kats, a reviewing physician, and little weight to the diagnosis of CRPS by 5 Plaintiff’s treating and examining providers. ECF No. 14 at 20. The opinion of a 6 nonexamining physician may serve as substantial evidence if it is supported by 7 other evidence in the record and is consistent with it. Andrews, 53 F.3d at 1041. 8 Other cases have upheld the rejection of an examining or treating physician based 9 in part on the testimony of a nonexamining medical advisor when other reasons to 10 reject the opinions of examining and treating physicians exist independent of the 11 nonexamining doctor’s opinion. Lester, 81 F.3d at 831 (citing Magallanes v. 12 Bowen, 881 F.2d 747, 751-55 (9th Cir. 1989) (reliance on laboratory test results, 13 contrary reports from examining physicians and testimony from claimant that 14 conflicted with treating physician’s opinion)); Roberts v. Shalala, 66 F.3d 179, 184 15 (9th Cir. 1995) (rejection of examining psychologist’s functional assessment which 16 conflicted with his own written report and test results). Thus, case law requires not 17 only an opinion from the consulting physician but also substantial evidence (more 18 than a mere scintilla but less than a preponderance), independent of that opinion 19 which supports the rejection of contrary conclusions by examining or treating 20 physicians. Andrews, 53 F.3d at 1039. ORDER - 24 1 The ALJ found that Dr. Kats’ opinion was consistent with the objective 2 medical evidence and with the clinical findings of Plaintiff’s examining medical 3 sources. Tr. 26. The ALJ also determined that Dr. Kats was familiar with Social 4 Security regulations and disability programs and he had the opportunity to review 5 Plaintiff’s medical evidence. Tr. 26. Plaintiff suggests the ALJ should have 6 credited the diagnosis of CRPS by Plaintiff’s treating and examining providers 7 over the opinion of the reviewing doctor. ECF No. 14 at 20. However, Plaintiff 8 fails to articulate how the ALJ erred in weighing the medical source opinions and 9 the CRPS diagnosis, as Dr. Kats assessed limitations based on Plaintiff’s “obesity 10 and feet pain from complex regional pain syndrome,” Tr. 88, and the ALJ found 11 Plaintiff’s CRPS to be a severe impairment which was accounted for in 12 formulating the RFC, Tr. 20, 23. As discussed infra, the ALJ provided a legally 13 sufficient reason for giving less weight to the opinion of Plaintiff’s treating 14 provider, Dr. Pearce, and for giving more weight to Dr. Kats’ opinion. Also 15 discussed infra, the ALJ was not required to weigh the findings of Plaintiff’s other 16 disputed providers. 17 2. Dr. Pearce 18 Plaintiff’s treating provider, P.Z. Pearce, M.D., completed Labor and 19 Industries Activity Prescription Forms from April 2015 to June 2017. Tr. 830-71. 20 The forms prepared by Dr. Pearce indicated that Plaintiff would be limited to ORDER - 25 1 lifting and carrying between five to 10 pounds, sitting for up to six hours, and 2 standing or walking for one hour. Tr. 830-71. Dr. Pearce opined Plaintiff would 3 also have postural and environmental restrictions. Tr. 830-71. Dr. Pearce 4 diagnosed Plaintiff with CRPS. Tr. 843-71. 5 The ALJ gave Dr. Pearce’s opinion some weight, discounting his opined 6 restriction to standing and walking for only one hour. Tr. 26. Because Dr. 7 Pearce’s opinion was contradicted by the nonexamining opinion of Dr. Kats, Tr. 8 88-89, the ALJ was required to provide specific and legitimate reasons for 9 discounting Dr. Pearce’s opinion. Bayliss, 427 F.3d at 1216. In this regard, 10 Plaintiff’s sole contention in her opening brief is that “here, that was not done.” 11 ECF No. 14 at 19-20. However, it is insufficient for Plaintiff to mention this 12 possible argument, but fail to address or challenge the ALJ’s reason for rejecting 13 Dr. Pearce’s opinion.4 See Indep. Towers of Wash. v. Washington, 350 F.3d 925, 14 15 4 Counsel has a duty to substantively brief the issues presented for this Court’s 16 serious and just consideration. Fed. R. Civ. P. 1; LCivR 1; Wash. Rule of Prof’l 17 Conduct 1.3. This Court has previously admonished Plaintiff’s counsel for 18 inadequate briefing. See, e.g., Rainey v. Comm’r of Soc. Sec., No. 2:17-cv-0027119 FVS (E.D. Wash. Sept. 25, 2018) (Report and Recommendation, ECF No. 17 at 620 10) (adopted Oct. 11, 2018). The absence of developed argument is an ORDER - 26 1 930 (9th Cir. 2003) (“We require contentions to be accompanied by reasons.”); 2 McPherson v. Kelsey, 125 F.3d 989, 995–96 (6th Cir. 1997) (“[I]ssues adverted to 3 in a perfunctory manner, unaccompanied by some effort at developed 4 argumentation, are deemed waived. It is not sufficient for a party to mention a 5 possible argument in a most skeletal way, leaving the court to . . . put flesh on its 6 bones.”). Therefore, any challenges are waived, and the Court may decline to 7 review them. See Carmickle, 533 F.3d at 1161 n.2 (determining Court may decline 8 to address on the merits issues not argued with specificity); Kim, 154 F.3d at 1000 9 (the Court may not consider on appeal issues not “specifically and distinctly 10 argued” in the party’s opening brief). 11 Despite Plaintiff’s waiver, the Court has conducted an independent review of 12 the ALJ’s decision and finds the ALJ’s rejection of Dr. Pearce’s standing and 13 walking limitation is supported by specific and legitimate reasons supported by 14 substantial evidence in the record. The ALJ found that Dr. Pearce’s opined 15 restriction to standing and walking for only one hour was internally inconsistent 16 17 unacceptable manner of advocacy and a disservice to Plaintiff and the legal 18 profession. Counsel is cautioned that the opening brief must include analysis 19 supported by citations to the record and an explanation why, in the context of the 20 case, reversible error has occurred. ORDER - 27 1 with Dr. Pearce’s own clinical findings. Tr. 26. Relevant factors to evaluating any 2 medical opinion include the amount of relevant evidence that supports the opinion, 3 the quality of the explanation provided in the opinion, and the consistency of the 4 medical opinion with the record as a whole. Lingenfelter v. Astrue, 504 F.3d 1028, 5 1042 (9th Cir. 2007); Orn v. Astrue, 495 F.3d 625, 631 (9th Cir. 2007). Moreover, 6 a physician’s opinion may be rejected if it is unsupported by the physician’s 7 treatment notes. See Connett v. Barnhart, 340 F.3d 871, 875 (9th Cir. 2003). The 8 ALJ noted that Dr. Pearce’s clinical findings showed Plaintiff had only mild 9 physical abnormalities. Tr. 26; see, e.g., Tr. 878 (August 30, 2017: Dr. Pearce 10 reported Plaintiff was “really in no distress today,” although she was in a 11 wheelchair, both feet were swollen, she was generally tender across the MTP 12 joints, but no crepitus was noted; Plaintiff’s bone scan was unremarkable, an MRI 13 of Plaintiff’s right foot was consistent with gout, and there was effusion of the 14 MTP joints); Tr. 880 (October 11, 2017: Dr. Pearce reported Plaintiff was “really 15 in no distress today,” although she was in a wheelchair, and both feet were 16 swollen); Tr. 882 (December 5, 2017: Dr. Pearce reported Plaintiff was “really in 17 no distress today,” she was walking with a cane, and her right knee was still 18 somewhat swollen from a fall); Tr. 885 (January 16, 2018: Dr. Pearce reported 19 Plaintiff was “really in no distress today,” she was walking with a cane, and her 20 right knee was still somewhat swollen from a fall); Tr. 884-85 (Dr. Pearce ORDER - 28 1 acknowledged that radiology imaging and an EMG nerve conduction study yielded 2 no evidence of significant pathology); Tr. 399 (Dr. Pearce acknowledged that 3 Plaintiff had an independent medical examination with an orthopedist, neurologist, 4 and rheumatologist, and they determined she did not have CRPS and could return 5 to full duty). 6 In her reply brief, Plaintiff states she is not asking this Court to reweigh the 7 evidence or substitute its judgment for the judgment of the ALJ, but rather, 8 Plaintiff asserts “there is only one way” to read the medical records and opinion of 9 Dr. Pearce. ECF No. 16 at 8. To the extent the evidence could be interpreted 10 differently, it is the role of the ALJ to resolve conflicts and ambiguity in the 11 evidence. Morgan v. Comm’r of Soc. Sec. Admin., 169 F.3d 595, 599-600 (9th Cir. 12 1999). Where, as here, evidence is subject to more than one rational interpretation, 13 the ALJ’s conclusion will be upheld. Burch, 400 F.3d at 679; Hill, 698 F.3d at 14 1158 (recognizing the court only disturbs the ALJ’s findings if they are not 15 supported by substantial evidence). The ALJ provided a specific and legitimate 16 reason to discount Dr. Pearce’s opined standing and walking limitation. 17 3. Dr. Tick, Dr. Anderson, Ms. Gallegos 18 On November 18, 2016, Heather Tick, M.D., noted that Plaintiff’s 19 symptoms of pain, numbness, skin color change, and misalignment of her right 20 toes met the criteria for CRPS. Tr. 429. On July 5, 2017, Plaintiff’s right knee ORDER - 29 1 was evaluated by Christopher Anderson, M.D., after she slipped, fell, and injured 2 her right knee. Tr. 873-74. Dr. Anderson recommended that Plaintiff participate 3 in physical therapy, and noted he did “not foresee needing any type of ACL repair 4 work, given her poor preexisting ambulatory condition.” Tr. 874. Treatment notes 5 from July 6, 2017 showed that Mary Gallegos, ARNP, diagnosed Plaintiff with 6 CRPS. Tr. 783. The ALJ discussed Dr. Tick’s CRPS diagnosis and observations, 7 Tr. 25-26, but did not weigh the opinions of Dr. Tick, Dr. Anderson, or Ms. 8 Gallegos. 9 Plaintiff argues that the ALJ erred by not giving controlling weight to the 10 opinions of these providers, as “[e]ach doctor believed that the objective findings 11 supported the diagnosis of [CRPS].” ECF No. 14 at 20. Treatment notes, in 12 general, do not constitute medical opinions. See 20 C.F.R. § 404.1527(a)(2) 13 (“Medical opinions are statements from acceptable medical sources that reflect 14 judgments about the nature and severity of your impairment(s), including your 15 symptoms, diagnosis and prognosis, what you can still do despite impairment(s), 16 and your physical or mental restrictions.”). The Ninth Circuit has found no error in 17 ALJ decisions that do not weigh statements within medical records when those 18 records do not reflect physical or mental limitations or otherwise provide 19 information about the ability to work. See, e.g., Turner v. Comm’r of Soc. Sec., 20 613 F.3d 1217, 1223 (9th Cir. 2010) (recognizing that when a physician’s report ORDER - 30 1 did not assign any specific limitations or opinions regarding the claimant’s ability 2 to work, “the ALJ did not need to provide ‘clear and convincing reasons’ for 3 rejecting [the] report because the ALJ did not reject any of [the report’s] 4 conclusions.”); see also Key v. Heckler, 754 F.2d 1545, 1549 (9th Cir. 1985) (the 5 “mere diagnosis of an impairment ... is not sufficient to sustain a finding of 6 disability.”). Here, the treatment notes, findings, and observations of Dr. Tick, Dr. 7 Anderson, and Ms. Gallegos concern only medical diagnoses and do not address 8 any functional limitations or opinions regarding Plaintiff’s ability to work. Tr. 9 429, 783, 873-74. Therefore, the ALJ did not need to provide reasons to reject the 10 findings of these providers, and did not err in weighing the opinion evidence. 11 Turner, 613 F.3d at 1223. 12 13 CONCLUSION Having reviewed the record and the ALJ’s findings, the Court concludes the 14 ALJ’s decision is supported by substantial evidence and free of harmful legal error. 15 Accordingly, IT IS HEREBY ORDERED: 16 1. The District Court Executive is directed to substitute Andrew M. Saul as 17 the Defendant and update the docket sheet. 18 2. Plaintiff’s Motion for Summary Judgment, ECF No. 14, is DENIED. 19 3. Defendant’s Motion for Summary Judgment, ECF No. 15, is 20 GRANTED. ORDER - 31 1 4. The Clerk’s Office shall enter JUDGMENT in favor of Defendant. 2 The District Court Executive is directed to file this Order, provide copies to 3 counsel, and CLOSE THE FILE. 4 DATED December 13, 2019. 5 s/Mary K. Dimke MARY K. DIMKE UNITED STATES MAGISTRATE JUDGE 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 ORDER - 32
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