Smith v. Saul, No. 4:2020cv05075 - Document 23 (E.D. Wash. 2021)
Court Description: ORDER DENYING 20 PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT AND GRANTING 21 DEFENDANT'S MOTION FOR SUMMARY JUDGMENT. This file is CLOSED. Signed by Magistrate Judge Mary K. Dimke. (CLP, Case Administrator)
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Smith v. Saul Doc. 23 FI LED I N THE U.S. DI STRI CT COURT EASTERN DI STRI CT OF WASHI NGTON 1 Mar 29, 2021 2 SEAN F. MCAVOY, CLERK 3 4 5 UNITED STATES DISTRICT COURT 6 EASTERN DISTRICT OF WASHINGTON 7 JOSEPH S.,1 No. 4:20-cv-05075-MKD Plaintiff, 8 vs. 9 ANDREW M. SAUL, 10 COMMISSIONER OF SOCIAL SECURITY, 11 Defendant. 12 13 14 ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ECF Nos. 20, 21 Before the Court are the parties’ cross-motions for summary judgment. ECF Nos. 20, 21. The parties consented to proceed before a magistrate judge. ECF No. 6. The Court, having reviewed the administrative record and the parties’ briefing, 15 16 17 18 1 To protect the privacy of plaintiffs in social security cases, the undersigned 19 identifies them by only their first names and the initial of their last names. See 20 LCivR 5.2(c). ORDER - 1 Dockets.Justia.com 1 is fully informed. For the reasons discussed below, the Court denies Plaintiff’s 2 motion, ECF No. 20, and grants Defendant’s motion, ECF No. 21. 3 4 JURISDICTION The Court has jurisdiction over this case pursuant to 42 U.S.C. § 405(g). 5 6 STANDARD OF REVIEW A district court’s review of a final decision of the Commissioner of Social 7 Security is governed by 42 U.S.C. § 405(g). The scope of review under § 405(g) is 8 limited; the Commissioner’s decision will be disturbed “only if it is not supported 9 by substantial evidence or is based on legal error.” Hill v. Astrue, 698 F.3d 1153, 10 1158 (9th Cir. 2012). “Substantial evidence” means “relevant evidence that a 11 reasonable mind might accept as adequate to support a conclusion.” Id. at 1159 12 (quotation and citation omitted). Stated differently, substantial evidence equates to 13 “more than a mere scintilla[,] but less than a preponderance.” Id. (quotation and 14 citation omitted). In determining whether the standard has been satisfied, a 15 reviewing court must consider the entire record as a whole rather than searching 16 for supporting evidence in isolation. Id. 17 In reviewing a denial of benefits, a district court may not substitute its 18 judgment for that of the Commissioner. Edlund v. Massanari, 253 F.3d 1152, 19 1156 (9th Cir. 2001). If the evidence in the record “is susceptible to more than one 20 rational interpretation, [the court] must uphold the ALJ’s findings if they are ORDER - 2 1 supported by inferences reasonably drawn from the record.” Molina v. Astrue, 674 2 F.3d 1104, 1111 (9th Cir. 2012). Further, a district court “may not reverse an 3 ALJ’s decision on account of an error that is harmless.” Id. An error is harmless 4 “where it is inconsequential to the [ALJ’s] ultimate nondisability determination.” 5 Id. at 1115 (quotation and citation omitted). The party appealing the ALJ’s 6 decision generally bears the burden of establishing that it was harmed. Shinseki v. 7 Sanders, 556 U.S. 396, 409-10 (2009). 8 9 FIVE-STEP EVALUATION PROCESS A claimant must satisfy two conditions to be considered “disabled” within 10 the meaning of the Social Security Act. First, the claimant must be “unable to 11 engage in any substantial gainful activity by reason of any medically determinable 12 physical or mental impairment which can be expected to result in death or which 13 has lasted or can be expected to last for a continuous period of not less than twelve 14 months.” 42 U.S.C. § 423(d)(1)(A). Second, the claimant’s impairment must be 15 “of such severity that he is not only unable to do his previous work[,] but cannot, 16 considering his age, education, and work experience, engage in any other kind of 17 substantial gainful work which exists in the national economy.” 42 U.S.C. § 18 423(d)(2)(A). 19 The Commissioner has established a five-step sequential analysis to 20 determine whether a claimant satisfies the above criteria. See 20 C.F.R. § ORDER - 3 1 404.1520(a)(4)(i)-(v). At step one, the Commissioner considers the claimant’s 2 work activity. 20 C.F.R. § 404.1520(a)(4)(i). If the claimant is engaged in 3 “substantial gainful activity,” the Commissioner must find that the claimant is not 4 disabled. 20 C.F.R. § 404.1520(b). 5 If the claimant is not engaged in substantial gainful activity, the analysis 6 proceeds to step two. At this step, the Commissioner considers the severity of the 7 claimant’s impairment. 20 C.F.R. § 404.1520(a)(4)(ii). If the claimant suffers 8 from “any impairment or combination of impairments which significantly limits 9 [his or her] physical or mental ability to do basic work activities,” the analysis 10 proceeds to step three. 20 C.F.R. § 404.1520(c). If the claimant’s impairment 11 does not satisfy this severity threshold, however, the Commissioner must find that 12 the claimant is not disabled. Id. 13 At step three, the Commissioner compares the claimant’s impairment to 14 severe impairments recognized by the Commissioner to be so severe as to preclude 15 a person from engaging in substantial gainful activity. 20 C.F.R. § 16 404.1520(a)(4)(iii). If the impairment is as severe or more severe than one of the 17 enumerated impairments, the Commissioner must find the claimant disabled and 18 award benefits. 20 C.F.R. § 404.1520(d). 19 If the severity of the claimant’s impairment does not meet or exceed the 20 severity of the enumerated impairments, the Commissioner must pause to assess ORDER - 4 1 the claimant’s “residual functional capacity.” Residual functional capacity (RFC), 2 defined generally as the claimant’s ability to perform physical and mental work 3 activities on a sustained basis despite his or her limitations, 20 C.F.R. § 4 404.1545(a)(1), is relevant to both the fourth and fifth steps of the analysis. 5 At step four, the Commissioner considers whether, in view of the claimant’s 6 RFC, the claimant is capable of performing work that he or she has performed in 7 the past (past relevant work). 20 C.F.R. § 404.1520(a)(4)(iv). If the claimant is 8 capable of performing past relevant work, the Commissioner must find that the 9 claimant is not disabled. 20 C.F.R. § 404.1520(f). If the claimant is incapable of 10 performing such work, the analysis proceeds to step five. 11 At step five, the Commissioner considers whether, in view of the claimant’s 12 RFC, the claimant is capable of performing other work in the national economy. 13 20 C.F.R. § 404.1520(a)(4)(v). In making this determination, the Commissioner 14 must also consider vocational factors such as the claimant’s age, education, and 15 past work experience. Id. If the claimant is capable of adjusting to other work, the 16 Commissioner must find that the claimant is not disabled. 20 C.F.R. § 17 404.1520(g)(1). If the claimant is not capable of adjusting to other work, analysis 18 concludes with a finding that the claimant is disabled and is therefore entitled to 19 benefits. Id. 20 ORDER - 5 1 The claimant bears the burden of proof at steps one through four above. 2 Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999). If the analysis proceeds to 3 step five, the burden shifts to the Commissioner to establish that 1) the claimant is 4 capable of performing other work; and 2) such work “exists in significant numbers 5 in the national economy.” 20 C.F.R. § 404.1560(c)(2); Beltran v. Astrue, 700 F.3d 6 386, 389 (9th Cir. 2012). 7 ALJ’S FINDINGS 8 On February 14, 2017 Plaintiff applied for Title II disability insurance 9 benefits alleging a disability onset date of January 24, 2011.2 Tr. 16, 69, 181-82. 10 The application was denied initially and on reconsideration. Tr. 94-100, 102-08. 11 Plaintiff requested a hearing after the deadline, and his request for a hearing was 12 dismissed on January 25, 2018. Tr. 82-86. Plaintiff appealed the dismissal, and on 13 September 14, 2018, the Appeals Council remanded the case for a hearing. Tr. 8714 15 16 2 Plaintiff previously applied for benefits on May 2, 2011, which resulted in an 17 initial denial; Plaintiff did not appeal the decision. Tr. 59. Plaintiff again applied 18 for benefits on July 24, 2013, which resulted in denials on initial and 19 reconsideration; Plaintiff requested a hearing but then withdrew the request for 20 hearing, resulting in a March 13, 2015 order of dismissal. Tr. 57, 59. ORDER - 6 1 90. Plaintiff appeared before an administrative law judge (ALJ) on March 13, 2 2019. Tr. 36-53. On April 19, 2019, the ALJ denied Plaintiff’s claim. Tr. 13-33. 3 At step one of the sequential evaluation process, the ALJ found Plaintiff, 4 who met the insured status requirements through September 30, 2016, has not 5 engaged in substantial gainful activity since January 24, 2011. Tr. 18-19. At step 6 two, the ALJ found that Plaintiff had the following severe impairments: status post 7 bilateral carpal tunnel releases in 2011 and left cubital tunnel release in 2015, and 8 mild osteoarthritis in the bilateral thumbs. Tr. 19. 9 At step three, the ALJ found Plaintiff did not have an impairment or 10 combination of impairments that met or medically equaled the severity of a listed 11 impairment. Tr. 20. The ALJ then concluded that Plaintiff had the RFC to 12 perform light work with the following limitations: 13 14 15 [Plaintiff could] frequently climb stairs and ramps, balance, stoop, kneel, crouch, or crawl, and never climb ropes, ladders, or scaffolds. He [could] occasionally finger and handle with his non-dominate left hand. He should avoid concentrated exposure to extreme cold, industrial vibrations and hazards. 16 Tr. 20. 17 At step four, the ALJ found Plaintiff was unable to perform any of his past 18 relevant work. Tr. 26. At step five, the ALJ found that, considering Plaintiff’s 19 age, education, work experience, RFC, and testimony from the vocational expert, 20 there were jobs that existed in significant numbers in the national economy that ORDER - 7 1 Plaintiff could perform, such as usher, counter clerk, sandwich board carrier, and 2 call out operator. Tr. 27. Therefore, the ALJ concluded Plaintiff was not under a 3 disability, as defined in the Social Security Act, from the alleged onset date of 4 January 24, 2011, through the date last insured. Tr. 28. 5 On March 11, 2020, the Appeals Council denied review of the ALJ’s 6 decision, Tr. 1-6, making the ALJ’s decision the Commissioner’s final decision for 7 purposes of judicial review. See 42 U.S.C. § 1383(c)(3). 8 9 ISSUES Plaintiff seeks judicial review of the Commissioner’s final decision denying 10 him disability insurance benefits under Title II of the Social Security Act. Plaintiff 11 raises the following issues for review: 12 1. Whether the ALJ properly evaluated the medical opinion evidence; 13 2. Whether the ALJ conducted a proper step-two analysis; 14 3. Whether the ALJ properly evaluated Plaintiff’s symptom claims; and 15 4. Whether the ALJ conducted a proper step-five analysis. 16 ECF No. 20 at 6. 17 18 19 DISCUSSION A. Medical Opinion Evidence Plaintiff contends the ALJ erred in her consideration of the opinion of 20 Robert Smiley, M.D. ECF No. 20 at 8-10. ORDER - 8 1 There are three types of physicians: “(1) those who treat the claimant 2 (treating physicians); (2) those who examine but do not treat the claimant 3 (examining physicians); and (3) those who neither examine nor treat the claimant 4 [but who review the claimant’s file] (nonexamining [or reviewing] physicians).” 5 Holohan v. Massanari, 246 F.3d 1195, 1201-02 (9th Cir. 2001) (citations omitted). 6 Generally, a treating physician’s opinion carries more weight than an examining 7 physician’s, and an examining physician’s opinion carries more weight than a 8 reviewing physician’s. Id. at 1202. “In addition, the regulations give more weight 9 to opinions that are explained than to those that are not, and to the opinions of 10 specialists concerning matters relating to their specialty over that of 11 nonspecialists.” Id. (citations omitted). 12 If a treating or examining physician’s opinion is uncontradicted, the ALJ 13 may reject it only by offering “clear and convincing reasons that are supported by 14 substantial evidence.” Bayliss v. Barnhart, 427 F.3d 1211, 1216 (9th Cir. 2005). 15 “However, the ALJ need not accept the opinion of any physician, including a 16 treating physician, if that opinion is brief, conclusory and inadequately supported 17 by clinical findings.” Bray v. Comm’r of Soc. Sec. Admin., 554 F.3d 1219, 1228 18 (9th Cir. 2009) (internal quotation marks and brackets omitted). “If a treating or 19 examining doctor’s opinion is contradicted by another doctor’s opinion, an ALJ 20 may only reject it by providing specific and legitimate reasons that are supported ORDER - 9 1 by substantial evidence.” Bayliss, 427 F.3d at 1216 (citing Lester v. Chater, 81 2 F.3d 821, 830-31 (9th Cir. 1995)). The opinion of a nonexamining physician may 3 serve as substantial evidence if it is supported by other independent evidence in the 4 record. Andrews v. Shalala, 53 F.3d 1035, 1041 (9th Cir. 1995). 5 Dr. Smiley testified at Plaintiff’s hearing and rendered an opinion on 6 Plaintiff’s functioning. Tr. 38-43. Dr. Smiley diagnosed Plaintiff with bilateral 7 carpel tunnel status post release in 2012, cubital tunnel syndrome status post 2015 8 release, and noted Plaintiff has complained of chronic pain and there are notes of 9 somatoform-related problems. Tr. 40-42. Dr. Smiley opined that during the time 10 prior to the date last insured, Plaintiff should have been able to function at the light 11 level, and he would have only been able to do things with his left hand on an 12 occasional basis. Tr. 43. Dr. Smiley also testified that he knows he is not 13 supposed to testify regarding Plaintiff’s somatoform problems, but he suspects 14 Plaintiff would have had “an awful lot of days where he couldn’t or wouldn’t 15 work” because of his “chronic pain and somatoform problems.” Id. The ALJ gave 16 Dr. Smiley’s opinion significant weight. Tr. 24. As Dr. Smiley is a non17 examining source, the ALJ must consider the opinion and whether it is consistent 18 with other independent evidence in the record. See 20 C.F.R. § 404.1527(b),(c)(1); 19 Tonapetyan v. Holter, 242 F.3d 1144, 1149 (9th Cir. 2001); Lester, 81 F.3d at 83020 31. ORDER - 10 1 Plaintiff argues the ALJ erred in rejecting Dr. Smiley’s opinion that Plaintiff 2 would miss work. ECF No. 20 at 9. However, Dr. Smiley opined that based on 3 the objective evidence, Plaintiff should have been able to function at the light level. 4 Tr. 42-43. Dr. Smiley stated, “I suspect” Plaintiff would have had a lot of days 5 where he “couldn’t or wouldn’t” work, due to his somatoform problems and 6 chronic pain. Tr. 43. Dr. Smiley’s statement indicated he only suspected Plaintiff 7 would have missed work, and it indicates the objective evidence does not support 8 his suspicion. See Tr. 42-43. Dr. Smiley also did not state how many days he 9 thought Plaintiff would have been unable to work, versus how many days he was 10 simply unwilling to work. 11 Further, the ALJ gave supported reasons why he found the diagnoses of 12 somatoform disorder and chronic pain syndrome were not severe impairments. 13 The ALJ found Plaintiff has no more than mild limitations due to any 14 psychological conditions, and thus found Plaintiff’s psychological conditions, 15 including somatoform disorder, non-severe. Tr. 19. Plaintiff argues the ALJ failed 16 to address Plaintiff’s somatoform disorder, ECF No. 20 at 10, however the ALJ 17 addressed it and the finding was supported by substantial evidence, as discussed 18 infra. Additionally, the ALJ found Dr. Smiley’s diagnosis of chronic pain 19 syndrome was not supported by the evidence. Tr. 25. Plaintiff does not challenge 20 the ALJ’s finding regarding chronic pain syndrome. As the ALJ’s finding that ORDER - 11 1 Plaintiff’s somatoform disorder and chronic pain syndrome are not severe 2 impairments is supported by substantial evidence, the ALJ reasonably rejected Dr. 3 Smiley’s opinion that Plaintiff would have missed work due to those conditions. 4 The ALJ reasonably interpreted Dr. Smiley’s opinion as supporting a light 5 RFC with additional limitations. Further, any error in rejecting Dr. Smiley’s 6 opinion would be harmless as Dr. Smiley stated he only suspected Plaintiff would 7 have missed work, and did not specify how many days of work Plaintiff would 8 have missed due to an inability to work. See Molina, 674 F.3d at 1115. 9 10 B. Step Two Plaintiff contends the ALJ erred in failing to find Plaintiff’s somatoform 11 symptom disorder is a severe impairment at step two. ECF No. 20 at 10-12. 12 At step two of the sequential process, the ALJ must determine whether the 13 claimant suffers from a “severe” impairment, i.e., one that significantly limits his 14 physical or mental ability to do basic work activities. 20 C.F.R. § 404.1505. 15 When a claimant alleges a severe mental impairment, the ALJ must follow a two16 step “special technique” at steps two and three. 20 C.F.R. § 404.1520a. First, the 17 ALJ must evaluate the claimant’s “pertinent symptoms, signs, and laboratory 18 findings to determine whether [he or she has] a medically determinable 19 impairment.” 20 C.F.R. § 404.1520a(b)(1). Second, the ALJ must assess and rate 20 the “degree of functional limitation resulting from [the claimant’s] impairments” in ORDER - 12 1 four broad areas of functioning: understand, remember, or apply information; 2 interact with others; concentrate, persist, or maintain pace; and adapt or manage 3 oneself. 20 C.F.R. § 404.1520a(b)(2)-(c)(4). Functional limitation is measured as 4 “none, mild, moderate, marked, and extreme.” 20 C.F.R. § 404.1520a(c)(4). If 5 limitation is found to be “none” or “mild,” the impairment is generally considered 6 to not be severe. 20 C.F.R. § 404.1520a(d)(1). If the impairment is severe, the 7 ALJ proceeds to determine whether the impairment meets or is equivalent in 8 severity to a listed mental disorder. 20 C.F.R. § 404.1520a(d)(2)-(3). 9 Step two is “a de minimus screening device [used] to dispose of groundless 10 claims.” Smolen v. Chater, 80 F.3d 1273, 1290 (9th Cir. 1996). “Thus, applying 11 our normal standard of review to the requirements of step two, [the Court] must 12 determine whether the ALJ had substantial evidence to find that the medical 13 evidence clearly established that [Plaintiff] did not have a medically severe 14 impairment or combination of impairments.” Webb v. Barnhart, 433 F.3d 683, 687 15 (9th Cir. 2005). 16 The ALJ found Plaintiff’s somatoform symptom disorder is not a severe 17 impairment. Tr. 19. Plaintiff contends the ALJ failed to mention Plaintiff’s 18 somatoform symptom disorder, ECF No. 20 at 11, ECF No. 22 at 3, 6, however the 19 ALJ explicitly addressed the condition, see Tr. 19. The ALJ considered the four 20 broad areas of functioning and determined Plaintiff’s psychological conditions ORDER - 13 1 cause no more than mild limitations. Id. The ALJ relied on the opinion of the 2 State agency consultant, Dr. Kraft, who opined Plaintiff has only mild limitations 3 in understanding, remembering, or applying information, interacting with others, 4 and concentrating, persisting, or maintaining pace, and no limitations in adapting 5 or managing oneself. Id. (citing Tr. 74). Dr. Kraft’s opinion is consistent with the 6 other State agency consultant’s opinion. Tr. 62. The ALJ also found Dr. Kraft’s 7 opinion is consistent with Plaintiff not seeking any mental health treatment, and 8 Plaintiff generally having normal mental status examinations. Tr. 19. 9 The ALJ’s finding is also supported by the opinions of examining sources. 10 While Plaintiff contends the ALJ ignored Dr. Friedman’s examination findings, 11 ECF No. 22 at 3, the ALJ considered the opinion of Dr. Friedman, who performed 12 a psychiatric independent medical examination in May 2015. Tr. 24. Dr. 13 Friedman diagnosed Plaintiff with somatic symptom disorder, and opined there is 14 no reason Plaintiff could not be gainfully opined. Id. (citing Tr. 356-57). While 15 Plaintiff argues Dr. Friedman’s examination supports the argument that the 16 condition is a severe impairment, ECF No. 20 at 12, Dr. Friedman found Plaintiff 17 has no psychological limitations, which supports a finding the condition is not 18 severe. Dr. Genthe also performed a psychological examination of Plaintiff in 19 2013. Tr. 324-28. Dr. Genthe did not diagnose Plaintiff with somatoform 20 symptom disorder, and opined Plaintiff does not have any limitations due to ORDER - 14 1 psychological conditions. Tr. 25 (citing Tr. 327-28). The ALJ’s finding that 2 somatoform symptom disorder is not a severe impairment is supported by 3 substantial evidence. 4 Further, any error in finding the condition non-severe would be harmless. 5 Plaintiff does not point to any limitations caused by somatoform symptom disorder 6 that were not already incorporated in the RFC. Plaintiff points only to Dr. 7 Smiley’s opinion that Plaintiff may have missed work, ECF No. 20 at 12, however 8 the ALJ rejection of Dr. Smiley’s opinion is supported by substantial evidence, as 9 discussed supra. Additionally, the ALJ took Plaintiff’s somatoform symptom 10 disorder into consideration when crafting the RFC, as the ALJ included limitations 11 “over and above what was supported by his physical condition.” Tr. 24-26. As 12 such, any error is harmless. See Molina, 674 F.3d at 1115. 13 14 C. Plaintiff’s Symptom Claims Plaintiff faults the ALJ for failing to rely on reasons that were clear and 15 convincing in discrediting his symptom claims. ECF No. 20 at 12-17. An ALJ 16 engages in a two-step analysis to determine whether to discount a claimant’s 17 testimony regarding subjective symptoms. SSR 16–3p, 2016 WL 1119029, at *2. 18 “First, the ALJ must determine whether there is objective medical evidence of an 19 underlying impairment which could reasonably be expected to produce the pain or 20 other symptoms alleged.” Molina, 674 F.3d at 1112 (quotation marks omitted). ORDER - 15 1 “The claimant is not required to show that [the claimant’s] impairment could 2 reasonably be expected to cause the severity of the symptom [the claimant] has 3 alleged; [the claimant] need only show that it could reasonably have caused some 4 degree of the symptom.” Vasquez v. Astrue, 572 F.3d 586, 591 (9th Cir. 2009). 5 Second, “[i]f the claimant meets the first test and there is no evidence of 6 malingering, the ALJ can only reject the claimant’s testimony about the severity of 7 the symptoms if [the ALJ] gives ‘specific, clear and convincing reasons’ for the 8 rejection.” Ghanim v. Colvin, 763 F.3d 1154, 1163 (9th Cir. 2014) (citations 9 omitted). General findings are insufficient; rather, the ALJ must identify what 10 symptom claims are being discounted and what evidence undermines these claims. 11 Id. (quoting Lester, 81 F.3d at 834; Thomas v. Barnhart, 278 F.3d 947, 958 (9th 12 Cir. 2002) (requiring the ALJ to sufficiently explain why it discounted claimant’s 13 symptom claims)). “The clear and convincing [evidence] standard is the most 14 demanding required in Social Security cases.” Garrison v. Colvin, 759 F.3d 995, 15 1015 (9th Cir. 2014) (quoting Moore v. Comm’r of Soc. Sec. Admin., 278 F.3d 920, 16 924 (9th Cir. 2002)). 17 Factors to be considered in evaluating the intensity, persistence, and limiting 18 effects of a claimant’s symptoms include: 1) daily activities; 2) the location, 19 duration, frequency, and intensity of pain or other symptoms; 3) factors that 20 precipitate and aggravate the symptoms; 4) the type, dosage, effectiveness, and ORDER - 16 1 side effects of any medication an individual takes or has taken to alleviate pain or 2 other symptoms; 5) treatment, other than medication, an individual receives or has 3 received for relief of pain or other symptoms; 6) any measures other than treatment 4 an individual uses or has used to relieve pain or other symptoms; and 7) any other 5 factors concerning an individual’s functional limitations and restrictions due to 6 pain or other symptoms. SSR 16-3p, 2016 WL 1119029, at *7; 20 C.F.R. §§ 7 404.1529(c). The ALJ is instructed to “consider all of the evidence in an 8 individual’s record,” to “determine how symptoms limit ability to perform work9 related activities.” SSR 16-3p, 2016 WL 1119029, at *2. 10 The ALJ found that Plaintiff’s medically determinable impairments could 11 reasonably be expected to cause some of the alleged symptoms, but that Plaintiff’s 12 statements concerning the intensity, persistence, and limiting effects of his 13 symptoms were not entirely consistent with the evidence. Tr. 22. 14 1. Inconsistent Objective Medical Evidence 15 The ALJ found the objective medical evidence is inconsistent with 16 Plaintiff’s symptom claims. Tr. 22-24. An ALJ may not discredit a claimant’s 17 symptom testimony and deny benefits solely because the degree of the symptoms 18 alleged is not supported by objective medical evidence. Rollins v. Massanari, 261 19 F.3d 853, 857 (9th Cir. 2001); Bunnell v. Sullivan, 947 F.2d 341, 346-47 (9th Cir. 20 1991); Fair v. Bowen, 885 F.2d 597, 601 (9th Cir. 1989); Burch v. Barnhart, 400 ORDER - 17 1 F.3d 676, 680 (9th Cir. 2005). However, the objective medical evidence is a 2 relevant factor, along with the medical source’s information about the claimant’s 3 pain or other symptoms, in determining the severity of a claimant’s symptoms and 4 their disabling effects. Rollins, 261 F.3d at 857; 20 C.F.R. § 404.1529(c)(2). 5 Here, the ALJ found that Plaintiff’s reported physical symptoms and 6 limitations are not consistent with the objective evidence. Tr. 22-24. The ALJ 7 considered the generally normal examination findings, and multiple opinions from 8 examining providers who opined Plaintiff did not have any limitations due to his 9 physical impairments, and stated Plaintiff could return to work or pursue typing 10 and school activities. Tr. 22, 271-90, 298, 318-19, 334-49, 376, 380. Plaintiff’s 11 EMG showed only mild to moderate ulnar nerve palsy, and he then underwent a 12 nerve decompression. Tr. 24 (citing Tr. 379, 442). The ALJ also noted that when 13 Plaintiff was establishing care at a new clinic in December 2014, he did not 14 mention any issues with his hands. Tr. 24 (citing Tr. 627). 15 The ALJ also found Plaintiff’s reported psychological symptoms and 16 limitations are not consistent with the objective evidence. Tr. 24. Plaintiff’s May 17 2015 psychiatric examination was generally normal, and the provider opined 18 Plaintiff had no limitations due to any psychological symptoms. Tr. 24 (citing Tr. 19 350-67). Plaintiff also did not pursue mental health treatment, and his mental 20 status was generally noted as normal. Tr. 19 (citing Tr. 407, 472, 474, 476). ORDER - 18 1 Plaintiff offers an alternative interpretation of the evidence, ECF No. 20 at 2 13-15, however, the ALJ’s finding that the objective findings were out of 3 proportion with and did not corroborate Plaintiff’s report of severe physical and 4 psychological restrictions is reasonable. This was a clear and convincing reason, 5 along with the other reason offered, to discount Plaintiff’s symptom reports. 6 2. Activities of Daily Living 7 The ALJ found Plaintiff’s activities of daily living were inconsistent with his 8 symptom claims. Tr. 24. The ALJ may consider a claimant’s activities that 9 undermine reported symptoms. Rollins, 261 F.3d at 857. If a claimant can spend a 10 substantial part of the day engaged in pursuits involving the performance of 11 exertional or non-exertional functions, the ALJ may find these activities 12 inconsistent with the reported disabling symptoms. Fair, 885 F.2d at 603; Molina, 13 674 F.3d at 1113. “While a claimant need not vegetate in a dark room in order to 14 be eligible for benefits, the ALJ may discount a claimant’s symptom claims when 15 the claimant reports participation in everyday activities indicating capacities that 16 are transferable to a work setting” or when activities “contradict claims of a totally 17 debilitating impairment.” Molina, 674 F.3d at 1112-13. Additionally, the ability 18 to care for others without help has been considered an activity that may undermine 19 claims of totally disabling pain. Rollins, 261 F.3d at 857. However, if the care 20 activities are to serve as a basis for the ALJ to discredit the Plaintiff’s symptom ORDER - 19 1 claims, the record must identify the nature, scope, and duration of the care 2 involved and this care must be “hands on” rather than a “one-off” care activity. 3 Trevizo v. Berryhill, 871 F.3d 664, 675-76 (9th Cir. 2017). 4 Plaintiff argues his activities of daily living are not inconsistent with his 5 claims, ECF No. 20 at 15, however Plaintiff reported significant limitations, such 6 as an inability to walk further than one block before needing to rest for a minute, 7 and an inability to pay attention for longer than 10 minutes, Tr. 227, and he 8 reported difficulties using his hands for more than a couple minutes before needing 9 to rest his hands for an hour, Tr. 21 (citing Tr. 266). These statements are 10 inconsistent with Plaintiff’s reported ability to drive, handle his personal care, 11 grocery shop one to two times per week, mow the lawn, bicycle, independently 12 handle household tasks including laundry, dishes, vacuuming, dusting, cooking, 13 and yardwork, and provide care for his young child. Tr. 24, 222-28, 300, 326, 330, 14 636. While the ALJ did not obtain specific information about the nature, duration, 15 and scope of Plaintiff’s childcare activities, Plaintiff repeatedly explained he 16 spends his days providing care for a toddler. Any error in the ALJ’s consideration 17 of Plaintiff’s childcare activities would be harmless, as the ALJ articulated other 18 activities inconsistent with his symptom complaints. See Molina, 674 F.3d at 19 1115. 20 ORDER - 20 1 2 D. Step Five Plaintiff contends the ALJ erred at step five because the vocational 3 testimony was based on an incomplete hypothetical. ECF No. 20 at 17. At step 4 five of the sequential evaluation analysis, the burden shifts to the Commissioner to 5 establish that 1) the claimant can perform other work, and 2) such work “exists in 6 significant numbers in the national economy.” 20 C.F.R. §§ 404.1560(c)(2); 7 Beltran, 700 F.3d at 389. In assessing whether there is work available, the ALJ 8 must rely on complete hypotheticals posed to a vocational expert. Nguyen v. 9 Chater, 100 F.3d 1462, 1467 (9th Cir. 1996). The ALJ’s hypothetical must be 10 based on medical assumptions supported by substantial evidence in the record that 11 reflects all of the claimant’s limitations. Osenbrook v. Apfel, 240 F.3d 1157, 1165 12 (9th Cir. 2001). The hypothetical should be “accurate, detailed, and supported by 13 the medical record.” Tackett, 180 F.3d at 1101. 14 The hypothetical that ultimately serves as the basis for the ALJ’s 15 determination, i.e., the hypothetical that is predicated on the ALJ’s final RFC 16 assessment, must account for all the limitations and restrictions of the claimant. 17 Bray, 554 F.3d at 1228. As discussed above, the ALJ’s RFC need only include 18 those limitations found credible and supported by substantial evidence. Bayliss, 19 427 F.3d at 1217 (“The hypothetical that the ALJ posed to the VE contained all of 20 the limitations that the ALJ found credible and supported by substantial evidence ORDER - 21 1 in the record.”). “If an ALJ’s hypothetical does not reflect all of the claimant’s 2 limitations, then the expert’s testimony has no evidentiary value to support a 3 finding that the claimant can perform jobs in the national economy.” Id. However, 4 the ALJ “is free to accept or reject restrictions in a hypothetical question that are 5 not supported by substantial evidence.” Greger v. Barnhart, 464 F.3d 968, 973 6 (9th Cir. 2006). Therefore, the ALJ is not bound to accept as true the restrictions 7 presented in a hypothetical question propounded by a claimant’s counsel if they are 8 not supported by substantial evidence. Magallanes v. Bowen, 881 F.2d 747, 7569 57 (9th Cir. 1989); Martinez v. Heckler, 807 F.2d 771, 773 (9th Cir. 1986). A 10 claimant fails to establish that a step five determination is flawed by simply 11 restating argument that the ALJ improperly discounted certain evidence, when the 12 record demonstrates the evidence was properly rejected. Stubbs-Danielson v. 13 Astrue, 539 F.3d 1169, 1175-76 (9th Cir. 2006). 14 Plaintiff’s argument is based entirely on the assumption that the ALJ erred in 15 considering Plaintiff’s severe impairments, the opinion evidence, and Plaintiff’s 16 symptom claims. For the reasons discussed throughout this decision, the ALJ’s 17 consideration of Plaintiff’s severe impairments, the opinion evidence, and 18 Plaintiff’s symptom claims was legally sufficient and supported by substantial 19 evidence. Thus, the ALJ did not err in assessing the RFC or finding Plaintiff 20 capable of performing work existing in the national economy. ORDER - 22 1 2 CONCLUSION Having reviewed the record and the ALJ’s findings, the Court concludes the 3 ALJ’s decision is supported by substantial evidence and free of harmful legal error. 4 Accordingly, IT IS HEREBY ORDERED: 5 1. Plaintiff’s Motion for Summary Judgment, ECF No. 20, is DENIED. 6 2. Defendant’s Motion for Summary Judgment, ECF No. 21, is GRANTED. 7 3. The Clerk’s Office shall enter JUDGMENT in favor of Defendant. 8 The District Court Executive is directed to file this Order, provide copies to 9 counsel, and CLOSE THE FILE. 10 DATED March 29, 2021. 11 s/Mary K. Dimke MARY K. DIMKE UNITED STATES MAGISTRATE JUDGE 12 13 14 15 16 17 18 19 20 ORDER - 23
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