Sylvester v. Saul, No. 4:2018cv05162 - Document 14 (E.D. Wash. 2019)
Court Description: ORDER GRANTING 12 DEFENDANT'S MOTION FOR SUMMARY JUDGMENT AND DENYING 11 PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT. Case is closed. Signed by Senior Judge Edward F. Shea. (AY, Case Administrator)
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Sylvester v. Saul Doc. 14 1 FI LED I N THE U.S. DI STRI CT COURT EASTERN DI STRI CT OF WASHI NGTON 2 Nov 01, 2019 3 SEAN F. MCAVOY, CLERK 4 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF WASHINGTON 5 6 7 SCOTT S.,1 Plaintiff, 8 9 10 v. ANDREW M. SAUL, the Commissioner of Social Security,2 4:18-CV-05162-EFS ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT AND DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT Defendant. 11 12 13 No. Before the Court, without oral argument, are cross-summary-judgment motions, ECF Nos. 11 & 12. Plaintiff Scott S. appeals the Administrative Law 14 Judge’s (ALJ) denial of benefits.3 Plaintiff contends the ALJ erred by: (1) improperly 15 rejecting the opinions of Plaintiff’s medical providers; (2) improperly rejecting 16 Plaintiff’s subjective testimony; and (3) failing to meet her step five burden.4 Plaintiff 17 further contends that the Appeals Council erred by denying Plaintiff’s request for 18 review when Plaintiff submitted additional evidence after the ALJ issued her 19 20 1 21 2 22 3 23 4 To protect the privacy of social-security plaintiffs, the Court refers to them by first name and last initial. See LCivR 5.2(c). When quoting the Administrative Record in this order, the Court will substitute “Plaintiff” for any other identifier that was used. Andrew M. Saul is now the Commissioner of the Social Security Administration. Accordingly, the Court substitutes Andrew M. Saul as the Defendant. See Fed. R. Civ. P. 25(d). ECF No. 1. ECF No. 11 at 8. 24 ORDER ON CROSS SUMMARY JUDGMENT MOTIONS - 1 Dockets.Justia.com 1 decision.5 The Commissioner of Social Security (“Commissioner”) asks the Court to 2 affirm the ALJ’s decision.6 After reviewing the record and relevant authority, the 3 Court is fully informed. For the reasons set forth below, the Court grants the 4 Commissioner’s Motion for Summary Judgment and denies Plaintiff’s Motion for 5 Summary Judgment. I. 6 Standard of Review 7 On review, the Court must uphold the ALJ’s determination that the claimant 8 is not disabled if the ALJ applied the proper legal standards and there is substantial 9 evidence in the record as a whole to support the decision.7 “Substantial evidence 10 means more than a mere scintilla, but less than a preponderance. It means such 11 relevant evidence as a reasonable mind might accept as adequate to support a 12 conclusion.”8 The Court will also uphold “such inferences and conclusions as the 13 [ALJ] may reasonably draw from the evidence.”9 14 In reviewing a denial of benefits, the Court considers the record as a whole, 15 not just the evidence supporting the ALJ’s decision.10 That said, the Court may not 16 substitute its judgment for that of the Commissioner. If the evidence supports more 17 than one rational interpretation, a reviewing court must uphold the ALJ’s decision.11 18 Further, the Court “may not reverse an ALJ’s decision on account of an error that is 19 5 20 6 7 21 22 8 9 10 23 11 Id. ECF No. 12. Delgado v. Heckler, 722 F.2d 570, 572 (9th Cir. 1983) (citing 42 U.S.C. § 405(g)); Brawner v. Sec’y of Health & Human Servs., 839 F.2d 432, 433 (9th Cir. 1987). Desrosiers v. Sec’y of Health & Human Servs., 846 F.2d 573, 576 (9th Cir. 1988) (citations and internal quotation marks omitted). Mark v. Celebrezze, 348 F.2d 289, 293 (9th Cir. 1965). Weetman v. Sullivan, 877 F.2d 20, 22 (9th Cir. 1989). Allen v. Heckler, 749 F.2d 577, 579 (9th Cir. 1984). 24 ORDER ON CROSS SUMMARY JUDGMENT MOTIONS - 2 1 harmless.”12 An error is harmless “where it is inconsequential to the [ALJ’s] ultimate 2 nondisability determination,”13 and where the reviewing court “can confidently 3 conclude that no reasonable ALJ, when fully crediting the testimony, could have 4 reached a different disability determination.”14 II. Facts, Procedural History, and the ALJ’s Findings15 5 6 Plaintiff Scott S. is 51 years old and lives in Kennewick, Washington. Plaintiff 7 filed an application for supplemental security income on December 16, 2014, alleging 8 a disability onset date of January 1, 1998.16 Sometime thereafter, Plaintiff amended 9 his alleged onset date to December 16, 2014, the date of his application.17 Plaintiff’s 10 claim was denied initially and upon reconsideration.18 Plaintiff requested a hearing 11 before an ALJ which was held on May 18, 2017.19 Plaintiff, impartial medical expert 12 Steven Goldstein, M.D., and an impartial vocational expert appeared and testified 13 at the hearing.20 On August 23, 2017, ALJ Lori L. Freund rendered a decision 14 denying Plaintiff’s claim.21 15 16 17 18 19 12 13 14 20 15 21 16 17 18 22 19 20 23 21 Molina v. Astrue, 674 F.3d 1104, 1111 (9th Cir. 2012). Id. at 1115 (quotations and citation omitted). Marsh v. Colvin, 792 F.3d 1170, 1173 (9th Cir. 2015) (citation omitted). The facts are only briefly summarized. Detailed facts are contained in the administrative hearing transcript, the ALJ’s decision, and the parties’ briefs. AR 15. AR 22. AR 15. Id. Id. AR 28. 24 ORDER ON CROSS SUMMARY JUDGMENT MOTIONS - 3 At step one,22 the ALJ found Plaintiff had not engaged in substantial gainful 1 2 activity since December 16, 2014, the application date.23 3 At step two, the ALJ found Plaintiff had the following severe medical 4 impairments: degenerative disc disease–lumbar spine; morbid obesity; diabetes 5 mellitus with neuropathy; history of right ankle fracture, status post open reduction 6 internal fixation; episodic venous stasis dermatitis; and history of bilateral carpal 7 tunnel syndrome, status post right wrist release surgery.24 At step three, the ALJ found Plaintiff did not have an impairment that met 8 9 the severity of a listed impairment.25 10 At step four, the ALJ found Plaintiff had the residual functional capacity 11 (RFC) to perform light work.26 The ALJ found Plaintiff could stand and/or walk 12 approximately six hours and sit at least six in an eight hour day, with normal breaks 13 every two hours.27 He could also: push and/or pull within the weight restrictions of 14 light exertion; occasionally balance, stoop, kneel, crouch, crawl, and climb ramps or 15 stairs; and never climb ladders, ropes, or scaffolds.28 He should avoid unprotected 16 heights and exposure to airborne irritants, hazards or hazardous machinery, and 17 18 19 22 20 21 23 24 25 22 26 23 28 27 The applicable five-step disability determination process is set forth in the ALJ’s decision, AR 16– 17, and the Court presumes the parties are well acquainted with that standard process. As such, the Court does not restate the five-step process in this order. AR 17. AR 17–18. AR 19. AR 21. Id. Id. 24 ORDER ON CROSS SUMMARY JUDGMENT MOTIONS - 4 1 excessive, industrial-type vibration.29 He can frequently handle with the left, non- 2 dominant, upper extremity.30 3 In reaching these conclusions, the ALJ found Plaintiff’s medically 4 determinable impairments could reasonably be expected to cause the alleged 5 symptoms.31 However, the ALJ found Plaintiff’s statements regarding the intensity, 6 persistence, and limiting effects of these symptoms were not entirely consistent with 7 the evidence presented in the record.32 8 When determining Plaintiff’s RFC, the ALJ examined several opinions by 9 both acceptable and non-acceptable medical sources. When evaluating Plaintiff’s 10 physical impairments, the ALJ afforded little weight to treating physician Dr. David 11 Jones’ October 2016 opinion and some weight to his May 2017 opinion.33 He assigned 12 little weight to non-examining physician Dr. Brent Packer, and some weight to 13 Dr. Travis Peterson.34 He further assigned some weight to state agency evaluators 14 Dr. Jacqueline Farwell and Dr. Olegario Ignacio, Jr, as well as Nurse Joseph 15 Poston.35 He assigned little weight to Dr. Meneleo Lilligan.36 Finally, he assigned 16 great weight to testifying expert Dr. Steven Goldstein, who reviewed the record in 17 its entirety, and Dr. James Opara, an examining physician.37 18 19 29 20 30 31 21 32 33 34 22 35 36 23 37 Id. Id. AR 22. Id. AR 25–26. AR 25. AR 26. AR 23. AR 23–24, 26. 24 ORDER ON CROSS SUMMARY JUDGMENT MOTIONS - 5 1 At step five, the ALJ found Plaintiff was not able to perform any past relevant 2 work, including his jobs as an apartment manager, commercial cleaner, and 3 laborer.38 However, given his age, education, work experience, and RFC, the ALJ 4 found there exist significant numbers of jobs that Plaintiff could perform.39 5 The ALJ issued her decision to deny Plaintiff benefits on August 23, 2017.40 6 The Appeals Council denied Plaintiff’s request for review,41 making the ALJ’s 7 decision the Commissioner’s final decision for the purposes of judicial review.42 8 Plaintiff filed this lawsuit on October 9, 2018.43 III. 9 Applicable Law & Analysis A. The ALJ properly weighed the opinions of Plaintiff’s treating and non-examining physicians. 10 11 Plaintiff alleges that the ALJ improperly weighed treating physician 12 Dr. Jones’ October 2016 and May 2017 reports, as well as non-examining physician 13 Dr. Packer’s report. The Court finds the ALJ appropriately discounted both 14 physicians for reasons supported by substantial evidence in the record. “[W]hatever 15 the meaning of ‘substantial’ in other contexts, the threshold for such evidentiary 16 17 sufficiency is not high . . . It means—and means only—such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.”44 18 19 20 38 21 39 40 41 22 42 43 23 44 AR 27. Id. AR 28. AR 1. See 42 U.S.C. § 1383(c)(3); 20 C.F.R. §§ 416.1481, 422.210. ECF No. 1. Biestek v. Berryhill, 139 S. Ct. 1148, 1154 (2019) (citations omitted). 24 ORDER ON CROSS SUMMARY JUDGMENT MOTIONS - 6 1 1) Dr. David Jones 2 Treating physicians’ opinions are generally assigned greater weight than non- 3 treating physicians.45 However, if the opinions of the treating and non-treating 4 physicians contradict, the opinion of the treating physician may be rejected only if 5 the ALJ articulates “specific, legitimate reasons for doing so that are based on 6 substantial evidence in the record.”46 Although a non-treating physician’s opinion 7 on its own may not constitute “substantial evidence,” an ALJ may reject a treating 8 physician’s opinion if it conflicts with “the overwhelming weight of the other evidence 9 of record.”47 10 Dr. Jones’ opinions were contradicted by evidence from non-examining 11 physician Dr. Goldstein, who testified that Plaintiff could perform a light range of 12 work,48 and examining physician Dr. Opara, who opined that Plaintiff could perform 13 a medium range of work.49 Accordingly, the ALJ need only provide specific and 14 legitimate reasons for discounting Dr. Jones’ testimony. The Court finds that these 15 are specific and legitimate reasons supported by substantial evidence within the 16 record. 17 / 18 / 19 / 20 21 45 46 47 22 48 49 23 Andrews v. Shalala, 53 F.3d 1035, 1041–42 (9th Cir. 1995). Jamerson v. Chater, 112 F.3d 1064, 1066 (9th Cir. 1997) (internal quotations omitted). Lester v. Chater, 81 F.3d 821, 831 (9th Cir. 1996). AR 64. AR 386–90. See also AR 24 (ALJ finding that Dr. Opara’s report was consistent with medium workload). 24 ORDER ON CROSS SUMMARY JUDGMENT MOTIONS - 7 1 i. October 2016 opinion 2 The ALJ rejected Dr. Jones’ October 2016 opinion because (1) Dr. Jones’ own 3 objective findings conflict with his opinion of severe limitation; and (2) Plaintiff’s 4 self-reported activities are inconsistent with such a restriction.50 5 An ALJ may reject a treating physician’s opinion if the opinion conflicts with 6 the physician’s treatment notes and objective findings.51 In October 2016, Dr. Jones 7 examined Plaintiff before filing a disability report.52 Dr. Jones found that despite 8 Plaintiff’s complaints of “significant burning” and cramping in his bilateral feet,53 9 Plaintiff had normal range of motion and muscle tone and had no deformities in his 10 feet.54 He had lighter and atypical sensation in his feet but was still able to sense all 11 eight sites.55 Notably, Dr. Jones also wrote that gabapentin helped Plaintiff with his 12 pain.56 Dr. Jones ultimately concluded: “Result: normal.”57 13 After conducting his physical examination, Dr. Jones opined that Plaintiff’s 14 right ankle pain and history of fracture would cause “mild” or “no significant 15 interference” with Plaintiff’s ability to perform one or more work-related activities.58 16 He further endorsed that Plaintiff would have “moderate” or “significant 17 interference” with his ability to perform one or more basic work-related activities 18 19 50 51 20 52 21 53 54 55 22 56 57 23 58 AR 25. Ghanim v. Colvin, 763 F.3d 1154, 1161 (9th Cir. 2014); Bayliss v. Barnhart, 427 F.3d 1211, 1216 (9th Cir. 2005). See AR 459–72. AR 463. AR 464. Id. AR 463. AR 464. AR 460. 24 ORDER ON CROSS SUMMARY JUDGMENT MOTIONS - 8 1 due to his bilateral feet pain, back pain with sciatica, and peripheral neuralgia.59 2 However, despite these mild and moderate limitations and “normal” objective 3 findings, Dr. Jones opined that Plaintiff would be “severely limited” in his ability to 4 work, meaning Plaintiff would be “unable to meet the demands of sedentary work.”60 5 The ALJ reasonably found the opinion unreliable due to these inconsistencies. 6 The ALJ further found that Plaintiff’s self-reported activities were 7 inconsistent with Dr. Jones’ “severely limited” restrictions.61 An ALJ may discount 8 a medical opinion that is “inconsistent with the level of activity” reported by the 9 claimant.62 Substantial evidence exists to support the ALJ’s reasoning. 10 First, although Dr. Jones marked that Plaintiff would be “unable to meet the 11 demands of sedentary work,” Plaintiff had told physicians that he was “very busy” 12 despite being unemployed.63 Plaintiff also told his physician in June 2016 that 13 despite his back and shoulder pain he “frequently works under his car and is in a 14 strained position under the car.”64 He testified in the administrative hearing that 15 although it is difficult now for him to get under the car he still will “get under the 16 hood and work on the motor.”65 He also does yard work, mows the lawn, goes grocery 17 shopping “when needed,” and drives himself to appointments. 18 around the house such as “cleaning, sweeping, and mopping,”67 and stated he is 66 He does chores 19 59 20 60 61 21 62 63 64 22 65 66 23 67 Id. AR 461. AR 25. Rollins v. Massanari, 261 F.3d 853, 856 (9th Cir. 2001). AR 516. AR 617. AR 81. AR 386–87, 506. AR 387. 24 ORDER ON CROSS SUMMARY JUDGMENT MOTIONS - 9 1 “pretty efficient” when making meals, noting that the time it takes him to is 2 “average, if not quicker than most.”68 He also stated he could walk three quarters of 3 a mile to one mile before needing to stop and rest, but noted he would be sore later 4 if he did so.69 Plaintiff’s self-reported activities undermine Dr. Jones’ opinion that 5 Plaintiff is incapable of performing even sedentary work. Accordingly, the ALJ did 6 not improperly reject Dr. Jones’ October 2016 opinion. 7 ii. 8 The ALJ assigned some weight to Dr. Jones’ May 2017 opinion because it was 9 inconsistent with (1) Dr. Jones’ own internal findings; (2) Dr. Jones’ objective 10 medical findings; and (3) Plaintiff’s self-reported activities.70 The ALJ also 11 discredited Dr. Jones’ opinion because it relied more on Plaintiff’s self-reported 12 complaints.71 An 13 May 2017 opinion ALJ may reject a physician’s opinion that contains internal 14 inconsistencies.72 In the May 2017 opinion, Dr. Jones stated that Plaintiff would be 15 able to perform sedentary work due to his limitations,73 which the ALJ found to be 16 internally inconsistent with other parts of the opinion.74 For example, Dr. Jones 17 opined that Plaintiff would miss most of a normal work week due to pain, yet he 18 opined that Plaintiff could “anticipate returning to work with a more skilled trade” 19 20 68 21 69 70 71 22 72 73 23 74 AR 257. AR 260. AR 26. Id. Morgan v. Comm’r of Soc. Sec. Admin., 169 F.3d 595, 603 (9th Cir. 1999). AR 700. AR 26. 24 ORDER ON CROSS SUMMARY JUDGMENT MOTIONS - 10 1 and was capable of performing sedentary work.75 These internal inconsistencies are 2 specific and legitimate reasons to reject a physician’s finding.76 Nevertheless, the 3 Court notes that the ALJ accounted for Dr. Jones’ assessment of Plaintiff’s handling 4 limitations in the RFC.77 5 Additionally, the ALJ properly weighed Dr. Jones’ opinion because it relied 6 heavily on Plaintiff’s self-reported complaints. “If a treating provider’s opinions are 7 based to a large extent on an applicant’s self-reports and not on clinical evidence, 8 and the ALJ finds the applicant not credible, the ALJ may discount the treating 9 provider’s opinion.”78 As Dr. Jones’ previous notes reflect a “normal” objective 10 assessment,79 his findings regarding Plaintiff’s pain were almost entirely due to 11 Plaintiff’s own self-reports. As analyzed infra, the ALJ properly found Plaintiff’s 12 complaints about his symptoms to not be credible. Accordingly, this was a specific 13 and legitimate reason to discredit the opinion. 14 Finally, as analyzed supra, Dr. Jones’ objective findings and treatment 15 records as well as Plaintiff’s self-reported activities are inconsistent with Dr. Jones’ 16 findings that Plaintiff is limited to sedentary work. The ALJ therefore appropriately 17 weighed Dr. Jones’ May 2017 opinion. 18 / 19 / 20 75 21 22 76 77 78 23 79 AR 700. Morgan, 169 F.3d at 603; Rollins, 261 F.3d at 856. See also, e.g., Khan v. Colvin, No. EDCV 122106-MAN, 2014 WL 2865173 at *7 (C.D. Cal. Jun. 24, 2014) (an ALJ’s finding that a physician’s opinion was internally inconsistent “is specific and legitimate”). See AR 26. Ghanim, 763 F.3d at 1162 (internal quotations omitted). See AR 464. 24 ORDER ON CROSS SUMMARY JUDGMENT MOTIONS - 11 1 2) Dr. Brent Packer 2 Non-examining physicians carry the least weight of all physicians.80 Even so, 3 state agency medical and psychological consultants are “highly qualified medical 4 sources who are also experts in the evaluation of medical issues in disability claims 5 under the Act.”81 ALJs must consider their opinions and “articulate how they 6 considered them in the decision.”82 To reject the opinion of a non-examining 7 physician, the ALJ must refer to “specific evidence in the medical record.”83 However, 8 the ALJ need not repeat the specific evidence in multiple parts of the opinion, so long 9 as “the agency’s path [of analysis] may reasonably be discerned.”84 10 The ALJ rejected Dr. Packer’s opinion because Dr. Packer “reviewed Dr. 11 Jones’ [October 2016] opinion and stated that [Plaintiff’s] conditions actually caused 12 him greater limitations than what Dr. Jones believed, but his opinion is even less 13 supported by the record.”85 The ALJ did not cite any medical evidence when 14 addressing Dr. Packer’s opinion specifically.86 However, the ALJ cited specific 15 medical evidence when refuting Dr. Jones’ October 2016 opinion on which 16 Dr. Packer’s opinion is based.87 Because the ALJ appropriately discounted Dr. Jones’ 17 October 2016 opinion that held fewer limitations than Dr. Packer’s, the ALJ did not 18 err in discounting Dr. Packer’s opinion. 19 20 80 81 21 82 83 84 22 85 86 23 87 Garrison v. Colvin, 759 F.3d 995, 1012 (9th Cir. 2014). SSR 17-2p. Id. Sousa v. Callahan, 143 F.3d 1240, 1244 (9th Cir. 1998). Molina, 674 F.3d at 1121 (internal quotations omitted). AR 25. See id. See id. (citing AR 463–64). 24 ORDER ON CROSS SUMMARY JUDGMENT MOTIONS - 12 B. The ALJ properly discredited Plaintiff’s subjective complaints. 1 2 Plaintiff argues the ALJ offered improper reasons for discrediting Plaintiff’s 3 subjective complaints and testimony regarding the severity of his symptoms.88 The 4 ALJ engages in a two-step analysis to determine whether a claimant’s testimony 5 regarding subjective pain or symptoms is credible.89 “First, the ALJ must determine 6 whether there is objective medical evidence of an underlying impairment which 7 could reasonably be expected to produce the pain or other symptoms alleged.”90 In 8 the present case, because the ALJ determined Plaintiff’s medical impairment could 9 “reasonably be expected to produce the above alleged symptoms,” he has met step 10 one.91 11 “If the claimant meets the first test and there is no evidence of malingering, 12 the ALJ can only reject the claimant’s testimony about the severity of the symptoms 13 if [the ALJ] gives ‘specific, clear and convincing reasons’ for the rejection.”92 The ALJ 14 must make sufficiently specific findings “to permit the court to conclude that the ALJ 15 did not arbitrarily discredit [the] claimant’s testimony.”93 General findings are 16 17 18 19 20 21 88 89 90 22 91 92 23 93 ECF No. 11 at 16–18. Molina, F.3d at 1112. Id. (internal quotations and citations omitted). AR 22. Ghanim, 763 F.3d at 1163 (quoting Lingenfelter v. Astrue, 504 F.3d 1028, 1036 (9th Cir. 2007)). Tommasetti v. Astrue, 533 F.3d 1035, 1039 (9th Cir. 2008) (citation and quotations omitted). 24 ORDER ON CROSS SUMMARY JUDGMENT MOTIONS - 13 1 insufficient.94 Courts may not second-guess ALJ findings that are supported by 2 substantial evidence.95 3 In making an adverse credibility determination, the ALJ may consider, among 4 other things, (1) the claimant’s reputation for truthfulness; (2) inconsistencies in the 5 claimant’s testimony or between his testimony and his conduct; (3) the claimant’s 6 daily living activities; (4) the claimant’s work record; and (5) the nature, severity, 7 and effect of the claimant’s condition.96 8 Substantial evidence exists to show Plaintiff’s allegations were inconsistent 9 with the objective medical evidence. Although Plaintiff complained of chronic and 10 severe pain in his ankle and legs97 and stated he could not sit for longer than 10 11 minutes at a time,98 he regularly presented to physicians as being in “no acute 12 distress” and was able to ambulate “with no assistance” despite an abductory and 13 antalgic gait.99 Plaintiff is also capable of walking on his heels and toes.100 Despite 14 some tenderness and swelling, he consistently demonstrated normal range of 15 motion101 and had presented negative straight leg raises in both seated and supine 16 positions, with no muscle spasms.102 Additionally, Plaintiff’s November 2015 MRI 17 results showed only “moderate disk space narrowing at L5-S1” that “could be causing 18 19 94 95 20 96 21 98 97 22 99 100 101 23 102 Lester, 81 F.3d at 834. Thomas v. Barnhart, 278 F.3d 947, 959 (9th Cir. 2002). Id. at 958–59. See, e.g., AR 350, 463. AR 479. See AR 388, 440, 444. See also Rollins, 261 F.3d at 856 (presenting with “no acute distress” and other benign findings and recommendations is inconsistent with a finding of total disability). AR 388. See, e.g., AR 392, 443, 464. AR 388. 24 ORDER ON CROSS SUMMARY JUDGMENT MOTIONS - 14 1 irritation” but had no nerve compression, as well as “mild degenerative disk disease” 2 at L4-L5 that “does not cause canal stenosis or nerve root compression.”103 3 Plaintiff presented in April 2015 for an evaluation of his alleged carpal tunnel 4 syndrome, wherein he demonstrated a grip strength of 5/5 and was able to tie his 5 shoes and pick up small and large objects with no issue.104 His Phalen’s and Tinel’s 6 signs were negative.105 However, only two weeks later, Plaintiff was seen by another 7 physician and complained that his carpal tunnel syndrome caused him “moderate” 8 symptoms and resulted in “decreased grip strength” and “difficulty with grasping.”106 9 He claimed he had been experiencing these symptoms for 20 years.107 Plaintiff’s 10 allegations regarding his carpal tunnel syndrome are inconsistent with objective 11 medical evidence. 12 Further, as analyzed supra, the ALJ properly found that Plaintiff’s self- 13 reported activities conflicted with the objective medical evidence, as well as 14 Plaintiff’s symptom allegations.108 Plaintiff’s activities—including working with his 15 car and in the yard as well as his ability to walk three quarters of a mile to a mile— 16 are inconsistent with the limitations he has alleged due to his back, leg, and wrist 17 18 19 20 21 103 104 105 22 106 107 23 108 AR 566. AR 386, 388 AR 388. AR 413. Id. See Molina, 674 F.3d at 1112–13. 24 ORDER ON CROSS SUMMARY JUDGMENT MOTIONS - 15 1 pain, and are “physical functions that are transferable to a work setting.”109 2 Accordingly, the ALJ properly discredited Plaintiff for this reason. 3 Finally, substantial evidence shows that Plaintiff’s symptoms resolved with 4 treatment, and impairments that can be controlled effectively with medication are 5 not disabling.110 In October 2016 Plaintiff wrote that he experienced “uncontrollable 6 chronic pain.”111 However, multiple physicians had remarked that his leg pain was 7 improved by taking gabapentin and other pain medications.112 Additionally, Plaintiff 8 underwent carpal tunnel release surgery in his right hand in February 2016113 after 9 complaining primarily of ongoing numbness and tingling in his right hand.114 After 10 the surgery, Plaintiff reported that the numbness in his hand had “completely 11 resolved.”115 Although he reported he experienced “some” aching and pain in his 12 right hand, his physician informed him the pain would gradually resolve over 13 time.116 His physician also recommended therapy to assist in the pain, which 14 Plaintiff declined.117 Failure to seek treatment may also be relied on to discredit a 15 claimant’s alleged symptoms, as it suggests the Plaintiff’s symptoms may not be as 16 17 18 19 109 20 110 111 21 112 113 114 22 115 116 23 117 Fair v. Bowen, 885 F.2d 597, 603 (9th Cir. 1989). Warre v. Comm’r of Soc. Sec. Admin., 439 F.3d 1001, 1006 (9th Cir. 2006). AR 459. See, e.g., AR 463, 513, 517, 627. AR 675. AR 689. AR 675. Id. Id. 24 ORDER ON CROSS SUMMARY JUDGMENT MOTIONS - 16 1 significant as alleged.118 Accordingly, for the aforementioned reasons, the ALJ 2 properly discounted Plaintiff’s subjective testimony. C. The ALJ did not err at step five. 3 4 At step five, the ALJ has the burden to identify specific jobs existing in 5 substantial numbers in the national economy that claimant can perform despite 6 their identified limitations.119 At an administrative hearing, an ALJ may solicit 7 vocational expert testimony as to the availability of jobs in the national economy.120 8 A vocational expert’s testimony may constitute substantial evidence of the number 9 of jobs that exist in the national economy.121 The ALJ’s decision regarding the 10 number of alternative occupations must be supported by substantial evidence.122 11 Plaintiff argues that the ALJ’s hypothetical failed to take into account the 12 limitations set forth by his providers.123 However, this argument merely restates 13 Plaintiff’s earlier allegations of error, which are not supported by the record. 14 Accordingly, the ALJ’s hypothetical properly accounted for the limitations supported 15 by the record.124 16 / 17 / 18 / 19 20 118 119 21 120 121 122 22 123 124 23 Fair, 885 F.2d at 604. Johnson v. Shalala, 60 F.3d 1428, 1432 (9th Cir. 1995); see also 20 C.F.R. § 416.920(g). Tackett v. Apfel, 180 F.3d 1094, 1100–01 (9th Cir. 1999). See Bayliss, 427 F.3d at 1218. Hill v. Astrue, 698 F.3d 1153, 1161–62 (9th Cir. 2012). ECF No. 11 at 19–20. See Magallanes v. Bowen, 881 F.2d 747, 756–57 (9th Cir. 1989) (holding it is proper for the ALJ to limit a hypothetical to those restrictions supported by substantial evidence in the record). 24 ORDER ON CROSS SUMMARY JUDGMENT MOTIONS - 17 2 D. The evidence submitted to the Appeals Council after the ALJ issued her decision does not undermine the substantial evidence supporting the ALJ’s decision. 3 Plaintiff alleges that two pieces of evidence submitted after the ALJ’s decision 4 warrant a finding of disabled or remand.125 Plaintiff submitted two pieces of 5 evidence: (1) a statement from Dr. Jones stating that Plaintiff could not work dated 6 October 6, 2017; and (2) an MRI report dated August 3, 2017.126 The Appeals Council 7 considered the new evidence and found it did not change the outcome of the ALJ’s 8 decision, therefore it denied Plaintiff’s request for review.127 1 9 “When the Appeals Council denies a request for review, it is a non-final agency 10 action not subject to judicial review because the ALJ’s decision becomes the final 11 decision of the Commissioner,” subject to a substantial evidence review based on the 12 record as a whole.128 However, evidence submitted for the first time to the Appeals 13 Council becomes part of the administrative record, which the Court must consider 14 “in determining whether the Commissioner’s decision is supported by substantial 15 evidence.”129 16 The Court finds that the new evidence submitted by Plaintiff does not 17 undermine the substantial evidence supporting the ALJ’s decision. First, the Court 18 agrees that Dr. Jones’ letter generally repeated Dr. Jones’ prior opinions that 19 Plaintiff could not work due to his conditions,130 and the ALJ properly weighed Dr. 20 21 125 126 127 22 128 129 23 130 ECF No. 11 at 18–19. AR 34–36. AR 2. Taylor v. Comm’r of Soc. Sec. Admin., 659 F.3d 1228, 1231 (9th Cir. 2011). Brewes v. Comm’r of Soc. Sec. Admin., 682 F.3d 1157, 1159–60 (9th Cir. 2012). AR 34. 24 ORDER ON CROSS SUMMARY JUDGMENT MOTIONS - 18 1 Jones’ opinions that state the same. Accordingly, the new letter fails to undermine 2 substantial evidence supporting the ALJ’s opinion. 3 The Court similarly finds that the submitted MRI report does not undermine 4 the substantial evidence. Although Plaintiff is correct that the 2017 MRI reflects a 5 new disc protrusion in Plaintiff’s L4-L5, the physician concluded that “overall, there 6 appears to be mild spinal canal narrowing and mild bilateral neural foranimal 7 narrowing” in L4-L5.131 The physician also stated that the findings in L5-S1 “appear 8 unchanged” from prior imaging and still reflected “mild spinal canal narrowing” and 9 “mild-to-moderate bilateral neural foranimal narrowing.”132 Even with the disc 10 protrusion, the 2017 MRI results are not significantly different from the 2015 MRI 11 as they still reflect overall “mild” and “mild-to-moderate” findings.133 The ALJ 12 discussed the 2015 MRI findings and considered them in his opinion.134 Accordingly, 13 the 2017 MRI report does not undermine the substantial evidence supporting the 14 ALJ’s decision. IV. 15 Conclusion 16 Having reviewed the ALJ’s findings and the record as a whole, the Court 17 concludes that the ALJ did not err in weighing medical opinions, rejecting Plaintiff’s 18 subjective testimony, or in issuing findings at step five. The Appeals Council did not 19 err when denying reconsideration. // 20 21 131 22 132 23 134 133 AR 36. Id. Compare AR 35–36 and AR 566. See AR 24. 24 ORDER ON CROSS SUMMARY JUDGMENT MOTIONS - 19 1 Accordingly, IT IS HEREBY ORDERED: 2 1. The Clerk’s Office is directed to substitute Andrew M. Saul, the Commissioner of Social Security, as the Defendant. 3 4 2. Plaintiff’s Motion for Summary Judgment, ECF No. 11, is DENIED. 5 3. The Commissioner’s Motion for Summary Judgment, ECF No. 12, is GRANTED. 6 7 4. The Clerk’s Office is to enter JUDGMENT in favor of Defendant. 8 5. The case shall be CLOSED. 9 IT IS SO ORDERED. The Clerk’s Office is directed to enter this Order and 10 11 12 13 provide copies to all counsel. DATED this 1st day of November 2019. s/Edward F. Shea EDWARD F. SHEA Senior United States District Judge 14 15 16 17 18 19 20 21 22 23 24 ORDER ON CROSS SUMMARY JUDGMENT MOTIONS - 20
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