Wade v. Astrue

Filing 23

ORDER that Defendant's administrative decision is affirmed. The Clerk is directed to enter judgment accordingly and terminate this matter. Signed by Judge David G Campbell on 1/25/2013. (LFIG)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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No. CV-12-0186-PHX-DGC

Teresa Wade,

Plaintiff,

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v.

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ORDER

Michael J. Astrue, Commissioner of Social
Security,

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Defendant.

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Plaintiff Teresa Wade applied for disability insurance benefits and supplemental

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security income in August 2007 (Tr. 197-206), claiming to have been disabled since

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November 5, 2003 (id. at 207). The applications were denied initially on February 1,

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2008, (Tr. 138-139, 142-49), and upon reconsideration on September 18, 2008 (Tr. 140-

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141, 151-57). A hearing before an Administrative Law Judge (“ALJ”) was held on

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June 21, 2010. Tr. 78. The ALJ issued a written decision on October 8, 2010, finding

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that Plaintiff was not disabled within the meaning of the Social Security Act. Tr. 43-67.

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The ALJ’s decision became Defendant’s final decision when the Appeals Council denied

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review. Tr. 1-12. Plaintiff then commenced this action for judicial review pursuant to 42

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U.S.C. § 405(g). Doc. 1. The Parties have not requested oral argument. For reasons that

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follow, the Court will affirm Defendant’s decision.

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I.

Standard of Review.

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Defendant’s decision to deny benefits will be vacated “only if it is not supported

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by substantial evidence or is based on legal error.” Robbins v. Soc. Sec. Admin., 466 F.3d

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880, 882 (9th Cir. 2006). “‘Substantial evidence’ means more than a mere scintilla, but

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less than a preponderance, i.e., such relevant evidence as a reasonable mind might accept

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as adequate to support a conclusion.”

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supported by substantial evidence, the Court must consider the record as a whole,

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weighing both the evidence that supports the decision and the evidence that detracts from

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it. Reddick v. Charter, 157 F.3d 715, 720 (9th Cir. 1998). The Court cannot affirm the

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decision “simply by isolating a specific quantum of supporting evidence.”

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Weinberger, 522 F.2d 1154, 1156 (9th Cir. 1975); see Robbins, 466 F.3d at 882.

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II.

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Id.

In determining whether the decision is

Day v.

Analysis.
Whether a claimant is disabled is determined using a five-step sequential

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evaluation process.

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establish disability the claimant must show (1) she is not currently working, (2) she has a

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severe medically determinable physical or mental impairment, and (3) the impairment

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meets or equals a listed impairment or (4) her residual functional capacity (“RFC”)

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precludes him from performing her past work.1 At step five, the Commissioner bears the

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burden of showing that the claimant has the RFC to perform other work that exists in

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substantial numbers in the national economy. 20 C.F.R. § 416.920(a)(4)(i)-(iv); see 20

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C.F.R. pt. 404, subpt. P, app. 1 (Listing of Impairments). “The Commissioner can meet

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this burden through the testimony of a vocational expert or by reference to the Medical

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Vocational Guidelines[.]” Thomas v. Barnhart, 278 F.3d 947, 955 (9th Cir. 2002) (citing

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Tackett v. Apfel, 180 F.3d 1094, 1099 (9th Cir. 1999)).

The claimant bears the burden in steps one through four.

To

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Plaintiff has not worked since the alleged onset date of disability. Tr. 80-81. The

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ALJ found that Plaintiff has the following severe combination of impairments:

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degenerative disc disease, fibromyalgia, chronic pain disorder, obesity, and affective

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disorder. Tr. 48-53. The ALJ determined that these impairments are not severe enough

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RFC is the most a claimant can do in light of the limitations caused by her
impairments. See Rodriguez v. Bowen, 876 F.2d 759, 762 (9th Cir. 1989); 20 C.F.R.
§ 416.927(a); SSR 96-8p, 1996 WL 374184 (July 2, 1996).

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to meet or equal a listed impairment. Tr. 53-54. The ALJ concluded that while Plaintiff

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is not able to perform her past work (Tr. 60-62), she is not disabled because she has the

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RFC to perform sedentary work (Tr. 54) which works exists in substantial numbers in the

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national economy (Tr. 60-62).

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Plaintiff argues that the ALJ erred by discounting Plaintiff’s testimony (Doc. 17 at

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9-17), by failing to properly weigh medical source opinion evidence (id. at 17-23), by

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discounting third party evidence (id. at 23-24), and by relying upon inaccurate and

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unreliable vocational expert testimony (id. at 24-26). Defendant contends the decision is

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supported by substantial evidence and free from legal error. Doc. 18 at 9.

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A.

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Plaintiff testified that on November 5, 2003, her alleged onset date, she suffered

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from back pain, seasonal depression, and aches and pains of her entire body. Tr. 80-82.

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Plaintiff stated that on November 5, 2003, she could walk for approximately 30 minutes,

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stand for approximately 45-60 minutes, and sit for approximately 60-90 minutes before

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pain or fatigue would force her to stop. Tr. 83-84. She stated that 20 pounds was the

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most she could lift and carry with her right or left arm. Tr. 84.

Plaintiff’s Testimony.

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Plaintiff testified that her health, and specifically her back pain and depression, has

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worsened from her alleged onset date. Tr. 88. Plaintiff stated that she has been informed

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by doctors that she is not a candidate for back surgery because her pain is not severe

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enough. Tr. 88-89.

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(“P.A.”) Robert S. Dawson about twice a month for a Teradol pain shot injection in her

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back. Tr. 90. As of the date of the hearing, Plaintiff testified that she could walk for

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approximately 20 minutes, stand for approximately 20-25 minutes, and sit for

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approximately 15-45 minutes before she would have to stop. Tr. 84-86. Plaintiff stated

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that she could carry 5-10 pounds with both arms, but that she could not bend and lift any

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weight off the ground, although she could lift a 5-10 pound object from table height.

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Tr. 86-87.

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Since 2009, Plaintiff stated that she has seen physicians’ assistant

Plaintiff testified that she last worked in security for a county courthouse. Tr. 97.
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She stated that she was fired because she would cry at work due to her depression and ask

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to leave early in order to lie down due to her back pain. Tr. 97-100. Plaintiff stated that

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at the time she was fired in November 2003, she would need to lie down for

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approximately 90 minutes. Tr. 100. Plaintiff testified that she still needs to lie down

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during the day because of her back pain. Tr. 100. Plaintiff stated that on average she

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needs to lie down five times a day for approximately 20-30 minutes. Tr. 101.

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Plaintiff testified that she has lost approximately 17 pounds because of changes

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made to her diet. Tr. 102. Plaintiff testified that she does not exercise and has not done

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any regular exercise since her alleged onset date. Id.

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Plaintiff testified that she last saw Dr. Monica Taylor-Desir, a psychiatrist, in

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November 2005, and that she then began seeing Lezlie Duckett, a registered nurse

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practitioner (“R.N.P.”). Tr. 93-94. Plaintiff testified that the last time she saw Duckett

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was in September or October of 2009 and that she has not seen a doctor or nurse since

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then. Tr. 95.

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The ALJ found that Plaintiff’s statements concerning the intensity, persistence,

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and limiting effects of her symptoms were not credible to the extent they are inconsistent

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with the RFC assessment. In reaching this conclusion, the ALJ evaluated Plaintiff’s

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testimony using the two-step analysis established by the Ninth Circuit. See Smolen v.

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Chater, 80 F.3d 1273, 1281 (9th Cir. 1996). Applying the test of Cotton v. Bowen, 799

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F.2d 1403 (9th Cir. 1986), the ALJ first determined that Plaintiff’s impairments could

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reasonably produce the symptoms alleged. Tr. 56. Given this conclusion, and because

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there is no evidence of malingering,2 the ALJ was required to present “specific, clear and

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convincing reasons” for finding Plaintiff not entirely credible. Smolen, 80 F.3d at 1281.

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This clear and convincing standard “is the most demanding required in Social Security

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cases.” Moore v. Comm’r Soc. Sec. Admin., 278 F.3d 920, 924 (9th Cir. 2002).

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The Commissioner contends that the “clear and convincing” standard should not
apply in part because there was evidence of malingering. Doc. 18 at 11, n. 11. While the
record may have supported the ALJ making such a finding, the ALJ did not.

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“Pain of sufficient severity caused by a medically diagnosed ‘anatomical,

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physiological, or psychological abnormality’ may provide the basis for determining that a

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claimant is disabled.” Light v. SSA, 119 F.3d 789, 792 (9th Cir. 1997) (citing 42 U.S.C.

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§ 423(d)(5)(A)); Bunnell v. Sullivan, 947 F.2d 341, 344-45 (9th Cir. 1991)). “Once a

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claimant produces objective medical evidence of an underlying impairment, an ALJ may

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not reject a claimant’s subjective complaints based solely on lack of objective medical

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evidence to fully corroborate the alleged severity of pain.” Moisa v. Barnhart, 367 F.3d

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882, 885 (9th Cir. 2004) (citation and alterations omitted); see 20 C.F.R.

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§ 404.1529(c)(2); SSR 96-7p, 1996 WL 374186, at *1 (July 2, 1996).

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Additionally, although “[a]n ALJ’s finding that a claimant generally lacked

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credibility is a permissible basis to reject excess pain testimony, . . . a finding that the

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claimant lacks credibility cannot be premised wholly on a lack of medical support for the

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severity of the pain.” Light, 119 F.3d at 792 (citations omitted). General assertions that

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the claimant's testimony is not credible are insufficient. See Parra v. Astrue, 481 F.3d

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742, 750 (9th Cir.2007). The ALJ must identify “what testimony is not credible and what

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evidence undermines the claimant’s complaints.” Id. (quoting Lester, 81 F.3d at 834). In

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weighing a claimant’s credibility, the ALJ may consider some of the following factors:

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claimant’s reputation for truthfulness, inconsistencies either in claimant’s testimony or

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between her testimony and her conduct, unexplained or inadequately explained failure to

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seek treatment or to follow a prescribed course of treatment, claimant’s daily activities,

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claimant’s work record, and the compatibility of claimant’s testimony with the medical

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evidence. Thomas, 278 F.3d at 958-59.

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In this case, the ALJ rejected Plaintiff’s testimony on four grounds. First, the ALJ

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found that Plaintiff’s pain and other symptom allegations “exceed the limitations

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reasonably expected from the medical findings,” (Tr. 56), and noted the following

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objective evidence as support for his finding: (1) spinal imaging and clinical findings are

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generally described as “mild,” “minimal,” and “small”; (2) a February 2006 MRI of the

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thoracic spine showed mild disc degeneration in the lower thoracic spine with no
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evidence of disc herniation; (3) a MRI of the lumbar spine showed disc space narrowing

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and disc degeneration at the L2-3, L4-5 and L5-S1 levels; (4) mild central narrowing was

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seen at L2-3; (4) no neural foraminal compromise was identified; (5) small central disc

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herniation was seen at L5-S1 causing no significant central stenosis or neural foraminal

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compromise; (6) facet degenerative changes at L4-5 and L5-S1 bilaterally; and (7)

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Physician’s Assistant Robert S. Dawson noted in February 2010 that x-rays of the spine

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showed “mild degenerative changes throughout.” Tr. 56.

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Second, the ALJ noted that the objective evidence did not show that Plaintiff

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suffered two common side effects of prolonged and/or chronic pervasive pain: weight

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loss and diffuse atrophy or muscle-wasting. Tr. 56. The record did show that Plaintiff

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lost about 17 pounds from her alleged onset date, but the ALJ found that this was not a

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significant amount of weight loss, particularly given Plaintiff’s statement that this weight

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loss was due to diet changes. Id.; Tr. 102. The ALJ noted that there was no evidence in

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the record regarding diffuse atrophy or muscle-wasting. T.R. 56. From this the ALJ

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inferred that “although [Plaintiff] undoubtedly experiences some degree of pain, that pain

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has apparently not altered the use of muscles and joints to the extent that it has resulted in

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diffuse atrophy or muscle-wasting.” Id.

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Third, the ALJ noted Plaintiff’s testimony that she is able to handle daily activities

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that are inconsistent with her complaints of disabling symptoms and limitations. Tr. 56.

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These activities include handling her personal care, preparing simple meals, taking care

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of others and pets, handling personal finances, shopping in stores and by computer,

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driving, visiting with friends, watching television, walking, reading, participating in yoga

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sessions, and attending school for approximately four months. Tr. 56-57. The ALJ

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further noted that “the physical and mental requirements of these household tasks and

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social interaction are consistent with a significant degree of overall functioning.” Tr. 57.

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Fourth, the ALJ found that Plaintiff was non-compliant with a prescribed course of

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treatment. Tr. 57. The ALJ noted that in March 2005, Melanie Dunham, family nurse

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practitioner (“F.N.P.”), addressed Plaintiff’s fibromyalgia diagnosis by suggesting that
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exercise and activities of daily living were strongly encouraged but needed to start slowly

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and gradually increase with time. Id. The ALJ found, however, that Plaintiff had not

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undertaken regular exercise from her alleged onset date to the date of the hearing. Id.

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The ALJ concluded that Plaintiff was “less than credible with respect to the extent to

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which her impairments preclude the performance of work-related activities, especially

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when she has failed to follow the [] recommendations.” Id.

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Plaintiff argues that the ALJ improperly rejected her subjective symptom

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testimony due to a lack of supporting evidence. Doc. 17 at 7. Plaintiff notes that

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“fibromyalgia is not expected to result in the abnormal objective data sought by the ALJ

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herein” and cites to SSR 12-2P, 2012 WL 3104869 (July 25, 2010), Preston v. Secretary

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of Health and Human Services, 854 F.2d 815, 817-19 (6th Cir. 1988) (referring to

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fibromyalgia as “fibrositis”), and Sarchet v. Chater, 78 F.3d 305, 307 (7th Cir. 1996)

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(ALJ misunderstood fibromyalgia and the disease’s symptoms) for support. Doc. 17 at 7-

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8. Moreover Plaintiff contends that fibromyalgia pain cannot be objectively quantified

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and that she need not do so to establish disability. Id. at 11.

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SSR 12-2P provides that once a person is determined to have fibromyalgia her

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statements about symptoms and functional limitations are to be evaluated according to

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the two-step process set forth in SSR 96-7P. These policies provide that “[i]f objective

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medical evidence does not substantiate the person’s statements about the intensity,

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persistence, and functionally limiting effects of symptoms, we consider all other evidence

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in the case record.” SSR 12-2P, 2012 WL 3104869 at *5. Here, the ALJ’s finding was

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based in part on a lack of objective medical evidence – that Plaintiff had mild, minimal,

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or small disc degeneration, narrowing, or herniation in her back. Tr. 56; see Carmickle v.

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Comm’r, Soc. Sec. Admin., 533 F.3d 1155, 1161 (9th Cir.2008) (“Contradiction with the

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medical record is a sufficient basis for rejecting the claimant’s subjective testimony.”)

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(citation omitted); Batson v. Comm’r Soc. Sec. Admin., 359 F.3d 1190, 1197 (9th

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Cir.2004) (lack of objective medical evidence supporting claimant’s allegations

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supported ALJ’s finding that claimant was not credible). But the ALJ did not stop there.
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As noted above, he also found that Plaintiff’s daily activities were not consistent with her

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alleged level of symptoms, that she did not show the weight loss and muscle compromise

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associated with the levels of pain she alleged, and that she did not comply with exercise

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recommendations made for treatment of her fibromyalgia. The Court concludes that the

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ALJ’s conclusion is consistent with SSR 12-2P and SSR 96-7P and was not erroneous.

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Plaintiff also raises specific objections to the ALJ’s credibility determinations

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based on Plaintiff’s daily activities and alleged non-compliance with medical

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recommendations. Doc. 17 at 12-15. As to Plaintiff’s daily activities, the Court finds

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that the ALJ “properly considered Plaintiff’s daily activities in finding [her] testimony

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incredible.” Curry v. Astrue, No. 09-CV-2580-PHX-GMS, 2010 WL 3789535, at *6 (D.

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Ariz. Sept. 22, 2010); see Thomas, 278 F.3d at 958-59 (the ALJ did not err in rejecting

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the claimant’s pain testimony where the claimant “was able to perform various household

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chores such as cooking, laundry, washing dishes, and shopping”). “Although evidence of

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[the claimant’s] daily activities may also admit of an interpretation more favorable to [the

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claimant], the ALJ’s interpretation was rational, and we must uphold the ALJ’s decision

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where the evidence is susceptible to more than one rational interpretation.” Burch v.

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Barnhart, 400 F.3d 676, 680-81 (9th Cir. 2005) (quotation marks and citations omitted)

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(ALJ found claimant “able to care for her own personal needs, cook, clean and ship” and

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concluded that these activities “suggest she is quote functional.”).

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Plaintiff argues that the ALJ erred in discrediting her testimony due to her non-

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compliance with medical advice. Doc. 17 at 13. Plaintiff contends that she followed

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“doctor advice to exercise, but same was no longer beneficial and therefore she did not

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continue to exercise ‘regularly.’” Id. Plaintiff points to evidence in the record that she

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followed advice to exercise during her alleged disability period, but when asked at the

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hearing if she had “done any regular exercise whatsoever” between November of 2003

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and the present, she testified she does not do regular exercise. Tr. 102. Given this direct

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evidence, the ALJ did not err in discrediting Plaintiff’s testimony due to her failure to

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follow a course of treatment prescribed in 2005.
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The Court concludes that substantial evidence supports the ALJ’s credibility

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determination, and that the ALJ provided clear and convincing reasons for discounting

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Plaintiff’s credibility.

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B.

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“The ALJ must consider all medical opinion evidence.” Tommasetti v. Astrue,

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533 F.3d 1035, 1041 (9th Cir. 2008); 20 C.F.R. § 404.1527(b); SSR 96-5p, 1996 WL

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374183, at *2 (July 2, 1996). The Ninth Circuit distinguishes between the opinions of

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treating physicians, examining physicians, and non-examining physicians. See Lester v.

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Chater, 81 F.3d 821, 830 (9th Cir. 1996). Generally, an ALJ should give greatest weight

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to a treating physician’s opinion and more weight to the opinion of an examining

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physician than a non-examining physician. See Andrews v. Shalala, 53 F.3d 1035, 1040-

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41 (9th Cir. 1995); 20 C.F.R. § 416.927(d)(1), (2). A treating physician’s opinion is not

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necessarily conclusive of a physical impairment or the ultimate issue of disability,

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however, and an ALJ need not accept such an opinion if it is brief, conclusory, and

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unsupported by clinical findings. See Thomas, 278 F.3d at 956-57 (citing Matney v.

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Sullivan, 981 F.2d 1016, 1019 (9th Cir. 1992)).

Medical Source Opinions.

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Where the treating physician’s opinion is credible and uncontroverted, the ALJ

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must provide clear and convincing reasons for rejecting it. Id.; Regennitter v. Comm’r

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Soc. Sec. Admin., 166 F.3d 1294, 1298-99 (9th Cir. 1999). Even if a treating physician’s

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opinion is controverted by a non-treating physician’s opinion, the ALJ must make

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findings setting forth “‘specific, legitimate reasons’ supported by substantial evidence in

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the record” for rejecting it. Lester, 81 F.3d at 830 (quoting Murray v. Heckler, 722 F.2d

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499, 502 (9th Cir. 1983)); see Thomas, 278 F.3d at 957. “The ALJ can ‘meet this burden

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by setting out a detailed and thorough summary of the facts and conflicting clinical

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evidence, stating his interpretation thereof, and making findings.’” Thomas, 278 F.3d at

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957 (quoting Magallanes v. Bowen, 881 F.2d 747, 751 (9th Cir. 1989)). One specific,

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legitimate reason is where the treating physician’s opinion is premised on the claimant’s

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subjective complaints, which the ALJ had already properly discounted. See Fair v.
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Bowen, 885 F.2d 597, 605 (9th Cir. 1989). Where the treating physician’s opinion is

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controverted by a non-treating physician’s opinion based on independent clinical

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findings, the non-treating physician’s opinion itself may be substantial evidence. See

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Thomas, 278 F.3d at 957 (citing Morgan v. Comm’r Soc. Sec. Admin., 169 F.3d 595, 600

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(9th Cir. 1999)). “‘When there is conflicting medical evidence, the [ALJ] must determine

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credibility and resolve the conflict.’” Id. (quoting Matney, 981 F.2d at 1019); see also

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Andrews, 53 F.3d at 1041 (citing Magallanes, 881 F.2d at 751).

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Opinions of examining or consulting physicians alone may constitute substantial

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evidence supporting the ALJ’s decision when they are consistent with other evidence in

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the record. See Magallanes, 881 F.2d at 752 (“[T]he reports of consultative physicians . .

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. may serve as substantial evidence.”); Thomas, 278 F.3d at 957 (“The opinions of non-

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treating or non-examining physicians may . . . serve as substantial evidence when the

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opinions are consistent with independent clinical findings or other evidence in the

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record.”); see also 20 C.F.R. § 404.1527(e) (stating that the opinions of non-examining

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physicians constitute medical evidence).

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Physicians’ assistants and nurse practitioners are considered “other sources,”

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20 C.F.R. § 404.1513(d)(1), and although not “acceptable medical sources,” 20 C.F.R.

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§ 404.1513(a), an ALJ must take into account other source opinion evidence unless he or

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she expressly determines to disregard it and provides germane reasons for doing so. Cole

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v. Astrue, 395 Fed. Appx. 387, 389 (9th Cir. 2010); see also Turner v. Comm’r Soc. Sec.,

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613 F.3d 1217, 1224 (9th Cir. 2010); Lewis v. Apfel, 236 F.3d 503, 511 (9th Cir. 2001).

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Melanie Dunham, F.N.P.

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Melanie Dunham, F.N.P., stated in a letter dated March 7, 2005, that “exercise and

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activities of daily living were strongly encouraged, but need to start slowly and gradually

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increase such activities with time.” Tr. 487. At the time, Dunham also indicated that

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Plaintiff “may need to start working gradually, less than 12 hours per work,” but that

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“[a]fter a period of time hopefully this number can increase.” Id. In a letter dated

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May 16, 2006, Dunham noted that Plaintiff experienced chronic pain and extreme
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fatigue, and opined that “an ideal work setting for [Plaintiff] would be one that is flexible

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and not at all strenuous. A part time job with no expectations of lifting anything greater

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than 5-10 pounds would be a reasonable employment arrangement.” Tr. 466. In a letter

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dated July 12, 2006, Dunham again noted that Plaintiff “has a chronic condition that

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limits her ability to work at full capacity or forty hours a week.” Tr. 461. At that time,

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Dunham indicated that “[a] part-time, flexible position would be more appropriate [for

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Plaintiff].”

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conclusory and are not adequately supported by clinical signs and laboratory findings in

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the contemporaneous treatment notes.” Tr. 58. The ALJ also noted that as a nurse

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practitioner, Dunham was not an “acceptable medical source,” and that she had opined

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that Plaintiff was capable of working, albeit with restrictions. Id. Plaintiff does not

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appear to object to the weight the ALJ afforded Dunham’s opinion.

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Id.

2.

The ALJ gave these opinions limited weight because “they are

Robert S. Dawson, P.A.

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Robert S. Dawson, P.A., saw Plaintiff six times from January through May 2010.

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Tr. 776-94. During this treatment period, Dawson noted impairments and diagnoses of

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nausea, vomiting, inability to take medications, possible upper gastrointestinal

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dysmotility which significantly worsens fibromyalgia, depression, hypothyroidism,

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irritable bowel syndrome, and non-inflammatory gastroesophageal reflux disease. Id. On

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February 4, 2010, Dawson noted that x-rays of Plaintiff’s spine showed “[m]ild

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[d]egenerative changes throughout.” Tr. 778. On March 30, 2010, Dawson opined that

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Plaintiff was unable to work eight hours a day, five days a week on a regular and

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consistent basis. Tr. 872. Specifically, Dawson opined that Plaintiff would be limited to

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less than two hours per day of sitting, standing or walking, and that she could not lift or

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carry more than 15 pounds. Id. His assessment noted that at the time Plaintiff was “not

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able to take medications,” which “significantly worsens [her diagnoses].” Id. The ALJ

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gave Dawson’s opinion “limited weight” because it is inconsistent with the “sparse

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contemporaneous treatment records, which provided very limited clinical findings and

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basically list [Plaintiff]’s subjective complaints and past medical assessments.” Tr. 58.
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The ALJ also noted that Dawson, a physician’s assistant, is not an “acceptable medical

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source.” Id.

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Plaintiff argues that the ALJ erred in not considering the factors set forth in SSR

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06-03p for evaluating the opinion of a non-acceptable medical source. Doc. 17 at 22.

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Plaintiff also submits that limiting the weight afforded Dawson’s opinion because of the

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“limited clinical findings” is an improper rational regarding the effect of fibromyalgia

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pain. Id. Defendant responds that the ALJ reasonably discounted Dawson’s opinions

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because Dawson treated Plaintiff at a time when her symptoms were at their very worst,

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and thus Dawson could not provide a “detailed, longitudinal picture” of Plaintiff’s

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impairments pursuant to 20 C.F.R. § 404.1527(c)(2). Doc. 18 at 17.

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As noted above, an ALJ need only provide germane reasons for discounting “other

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source” opinion evidence. The Court concludes that the ALJ’s weighing of Dawson’s

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opinion, in which he identified sparse treatment records, limited clinical findings, and

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reliance on Plaintiff’s subjective complaints as problematic (Tr. 58), satisfies this modest

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standard.

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3.

Dr. Robert Barker.

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On January 29, 2008, Dr. Robert Barker, state agency medical examiner,

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examined Plaintiff. Tr. 51518-24. He concluded that Plaintiff “has a normal physical

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examination except for being overweight” (Tr. 520), and opined that Plaintiff’s obesity

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diagnosis did not constitute a condition that would impose any limitations on Plaintiff for

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12 continuous months (Tr. 521).

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The ALJ gave this opinion “limited weight as previous examinations have

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demonstrated limitations of back range or motion and tender points.” Tr. 58. Plaintiff

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argues the ALJ found some limitations in Plaintiff’s RFC (Tr. 54) and thus the ALJ

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actually rejected Dr. Barker’s opinion (Doc. 17 at 22-23). The Court concludes that any

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error in how the ALJ weighed Dr. Barker’s opinion is harmless because the ALJ imposed

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more limitations in Plaintiff’s RFC than Dr. Barker recommended, and these additional

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limitations benefit Plaintiff. Tommasetti, 533 F.3d at 1038 (“the court will not reverse an
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ALJ’s decision for harmless error, which exists when it is clear from the record that the

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ALJ’s error was inconsequential to the ultimate nondisability determination.” (quotation

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marks and citations omitted)).

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4.

Dr. Ernest Griffith.

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Dr. Ernest Griffith, a state agency medical consultant, opined that Plaintiff could

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stand, walk, or sit for six hours in an eight-hour workday and lift and carry 5-10 pounds.

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Tr. 525-32. The ALJ gave this opinion significant weight because it was consistent with

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the evidence overall. Tr. 58. Plaintiff objects to the weight afforded this opinion,

9

arguing that Dr. Griffith’s assessment does not reflect an examination or review of actual

10

treatment notes and rather relies on reports rejected by the ALJ. Doc. 17 at 23.

11

Although the ALJ gave “substantial” weight to the opinion of Dr. Griffith (Tr. 58),

12

this constitutes legal error only if his opinion is not consistent with independent clinical

13

findings or other evidence in the record. See Thomas, 278 F.3d at 957. Dr. Griffith’s

14

opinion is consistent with other evidence in the record (Tr. 56-59), but it is also at odds

15

with the other source treating opinion of Dawson (Tr. 872). The Court found previously

16

that the ALJ stated germane reasons for discounting Dawson’s opinion, and thus the ALJ

17

did not err in giving substantial weight to Dr. Griffith’s opinion when other evidence in

18

the record supported it. See Morgan, 169 F.3d at 600 (“Opinions of nonexamining,

19

testifying medical advisor may serve as substantial evidence when they are supported by

20

other evidence in the record and are consistent with it.”). Further, any error in the ALJ’s

21

weighing of Dr. Griffith’s opinion is harmless because the ALJ imposed a sedentary RFC

22

and thus imposed greater limitations on Plaintiff’s RFC than recommended by Dr.

23

Griffith. See Tommasetti, 533 F.3d at 1038.

24

5.

Lezlie Duckett, R.N.P.

25

Lezlie Duckett opined in November 2008 that Plaintiff had several psychiatric

26

limitations and restrictions, including that she was severely limited in her ability to relate

27

to other people; to understand, carry out and remember instructions; to respond

28

appropriately to supervisors, co-workers and customary work pressures; to perform
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complex tasks; and to perform varied tasks. Tr. 734-35. Duckett indicated that the level

2

of severity existed as of August 2003. Tr. 735. The ALJ gave this assessment “limited

3

weight” because “although [Duckett] acknowledges and has considered [Plaintiff]’s

4

treatment history[,] . . . the contemporaneous treatment notes do not support such a

5

restrictive assessment.” Tr. 58-59. The ALJ noted Plaintiff’s long treatment history, but

6

concluded that Plaintiff’s depression and anxiety “appeared to be well controlled by

7

medication for significant periods of time.” Tr. 59. The ALJ supported this conclusion

8

by Dr. Taylor Desir’s August 2007 notes indicating that Plaintiff had limited medication

9

adjustments (Tr. 638), from which the ALJ concluded that Plaintiff’s treatment was

10

effective (Tr. 59).

11

Plaintiff argues that the ALJ erred in limiting the weight afforded to Duckett’s

12

opinion and submits that the treatment notes are actually consistent with disability.

13

Doc. 17 at 20-22. Defendant argues the ALJ did not err in limiting the weight given to

14

Duckett’s opinion because the more recent records showed the symptoms as moderate

15

(Tr. 769-72), which is inconsistent with Duckett’s opinion (Doc. 18 at 19). The Court

16

will not consider Defendant’s “post hoc rationalizations that attempt to intuit what the

17

ALJ may have been thinking,” Bray v. Comm’r Soc. Sec. Admin., 554 F.3d 1219, 1225

18

(9th Cir. 2009), but the Court nonetheless finds that the ALJ stated germane reasons for

19

discrediting Duckett’s “other source” opinion.

20

6.

Dr. Patricia Rose, Ed.D.

21

Dr. Patricia Rose, doctor of education (“Ed.D”), a board certified state

22

consultative psychological examiner, opined that Plaintiff has the understanding and

23

intellect to work because she did so in the past. Tr. 493, 496. Dr. Rose further opined

24

that Plaintiff would have difficulty completing work tasks. Tr. 493, 498. Dr. Rose

25

concluded that Plaintiff would need work adjustment assistance before being able to

26

maintain work (Tr. 498), and that Plaintiff could possibly work on a part-time basis

27

(Tr. 497). The ALJ gave Dr. Rose’s opinion “some weight” because he found it “based

28

on a thorough examination and . . . consistent with the objective evidence.” Tr. 59.
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Plaintiff argues that the ALJ did not afford Dr. Rose’s opinion any weight, and in

2

fact disregarded the opinion, because Dr. Rose’s opinion supports a finding of disability

3

since under SSR 96-8p, 1996 WL 374184, at *2 (July 2, 1996), the inability to complete a

4

full time work schedule constitutes a disability. Doc. 17 at 18. Defendant argues that the

5

ALJ gave Dr. Rose’s opinion some weight because he did not accept Dr. Rose’s

6

recommendation that Plaintiff return to work initially on a part-time basis (Doc. 18 at 20),

7

and that this conclusion was reasonable and supported by substantial evidence (id.). The

8

ALJ did not “pick and choose” from Dr. Rose’s opinion as Plaintiff claims. Rather, the

9

ALJ gave the state consultant’s opinion weight where it was “consistent with the

10
11

objective evidence.” Tr. 59. This does not constitute legal error.
7.

Dr. David Yandell, Ph.D.

12

Dr. David Yandell, a state agency psychological consultant, reviewed Plaintiff’s

13

medical records and completed a mental RFC assessment in January 2008. Tr. 500-517.

14

Dr. Yandell opined that Plaintiff “retains the capacity to perform simple and probably

15

some detailed job tasks on a sustained basis.” Tr. 502. The ALJ gave “substantial

16

weight” to this opinion because “it is consistent with the overall evidence.” Tr. 58.

17

Plaintiff argues Dr. Yandell’s opinion is entitled to the least amount of weight

18

(Doc. 17 at 19), and that it is unclear why his opinion is given more weight than Dr.

19

Rose’s opinions, especially when Dr. Yandell appears to have relied only on the report of

20

Dr. Rose (Tr. 502, 516). Defendant argues that the medical opinion of Dr. Yandell is still

21

entitled to great weight even though it is not based on an independent examination

22

(Doc. 18 at 18), and that any error in the weight given the opinion is harmless because the

23

ALJ imposed more limitations on Plaintiff’s RFC than recommended by Dr. Yandell

24

(id.). The Court agrees with Defendant. See Tommasetti, 533 F.3d at 1038.

25

8.

Dr. Steven Patrick, Ph.D.

26

Dr. Steven Patrick, consultative psychological examiner, examined Plaintiff in

27

August 2008 (Tr. 710) and opined that Plaintiff’s “current mental health [is] unlikely to

28

prevent [her] from sustaining gainful employment for the next 12 + months” (Tr. 713,
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715). Dr. Patrick opined that Plaintiff “exhibits no impairment in cognitive and memory

2

functioning” (Tr. 715), that she “appears to get along adequately with others” (id.), and

3

that she “is able to communicate” (id.). Dr. Patrick also opined that Plaintiff’s “attention

4

is evaluated as fair and her concentration is poor to fair.” Tr. 713.

5

The ALJ noted that he gave some weight to Dr. Patrick’s opinion “to the extent it

6

is consistent with the residual capacity assessment.” Tr. 59. Plaintiff contends that this

7

statement is meaningless (Doc. 17 at 18-19), and that the ALJ rejected Dr. Patrick’s

8

assessment in finding that Plaintiff has “moderate difficulties” with concentration and

9

that she has difficulty in interacting with people (Tr. 54). On the other hand, Plaintiff

10

also argues the ALJ failed to explain why he rejected most of Dr. Patrick’s opinions when

11

he found Plaintiff to be more restricted than Dr. Patrick opined (Doc. 17 at 19), and that

12

the ALJ failed to explain why Dr. Patrick’s opinion is entitled to “some weight” when he

13

is not a treating physician (id.).

14

evaluated Dr. Patrick’s opinion is harmless because the ALJ concluded that Plaintiff’s

15

RFC was more limited than Dr. Patrick’s assessment. Doc. 18 at 21. The Court agrees

16

and finds that the ALJ’s weighing of Dr. Patrick’s opinion does not constitute legal error.

Defendant argues that any error in how the ALJ

17

C.

18

Plaintiff argues that the ALJ failed to consider the report of Christina Barton,

Lay Witness Testimony.

19

Plaintiff’s cousin-in-law.

20

“basically corroborated” Plaintiff’s symptoms and daily activities. Tr. 55. Plaintiff

21

contends that the ALJ implicitly discredited Ms. Barton’s report without having provided

22

germane reasons for doing so. Doc. 17 at 34. Defendant argues that the ALJ’s error in

23

not giving individualized reasons for rejecting Ms. Barton’s report constitutes harmless

24

error. Doc. 18 at 15 (citing Molina v. Astrue, 674 F.3d 1104, 1117 (9th Cir. 2012)

25

(“Where lay witness testimony does not describe any limitations not already described by

26

the claimant, and the ALJ’s well-supported reasons for rejecting the claimant’s testimony

27

apply equally well to the lay witness testimony, it would be inconsistent with our prior

28

harmless error precedent to deem the ALJ’s failure to discuss the lay witness testimony to

Tr. 17 at 23.

The ALJ found that Ms. Barton’s report

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be prejudicial per se.”)).

2

To discount competent lay witness testimony, “the ALJ must give reasons that are

3

germane to each witness.” Molina, 674 F.3d at 1114 (quotation marks and citations

4

omitted). But if the ALJ “gives germane reasons for rejecting testimony by one witness,

5

the ALJ need only point to those reasons when rejecting similar testimony by a different

6

witness.” Id. Having found that the ALJ did not err in discrediting Plaintiff’s testimony,

7

the Court finds that the ALJ’s discounting of Ms. Barton’s report – that “basically

8

corroborated” Plaintiff’s testimony – does not constitute legal error. Id. at 1117.

9

D.

Vocational Expert Testimony.

10

At step five, the Commissioner has the burden of demonstrating that the claimant

11

can perform some work that exists in “significant numbers” in the national or regional

12

economy, taking into account the claimant’s RFC, age, education, and work experience.

13

Tackett, 180 F.3d at 1100; 42 U.S.C. § 423(d)(2)(A); 20 C.F.R. § 404.1560(c). The

14

Commissioner may satisfy that burden either through the testimony of a vocational expert

15

or by reference to the Medical-Vocational Guidelines appearing in 20 C.F.R. Part 404,

16

Subpart P, Appendix 2. Tackett, 180 F.3d at 1100-01; see also Hill v. Astrue, 638 F.3d

17

1144, 1152 (9th Cir. 2012) (“The ALJ may meet his burden at step five by asking a

18

vocational expert a hypothetical question based on medical assumptions supported by

19

substantial evidence in the record and reflecting all the claimant's limitations, both

20

physical and mental, supported by the record.”). “If a vocational expert’s hypothetical

21

does not reflect all the claimant’s limitations, then the expert’s testimony has no

22

evidentiary value to support a finding that the claimant can perform jobs in the national

23

economy.” Matthews v. Shalala, 10 F.3d 678, 681 (9th Cir. 1993).

24

At the hearing, the ALJ asked vocational expert Tracy Young whether jobs exist in

25

the national economy for an individual with Plaintiff’s age, education, work experience,

26

and RFC. Tr. 104-07. The vocational expert responded that that there are jobs that exist

27

in the national economy for such a hypothetical person, and gave examples of hand

28

packager, job number 559.687-014 in the Dictionary of Occupational Titles (“DOT”);
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production worker, job number 713.687-018 in the DOT; and inspector, job number

2

716.687-030 in the DOT. Tr. 108-09. The vocational expert further testified that 21,640

3

hand packer jobs exist in the national economy and approximately 340 in the Arizona

4

economy, that 28,290 production worker jobs exist in the national economy and 275 in

5

the Arizona economy, and that 13,200 inspector jobs exist in the national economy and

6

220 in the Arizona economy. Id. The Occupational Employment Quarterly (“OEQ”), the

7

source relied on by the vocational expert to provide the numbers of jobs that exist in the

8

national and regional economies, aggregates jobs with similar limitations to show the

9

numbers that exist in the respective economies. Tr. 124-29. The ALJ accepted the

10

vocational expert’s testimony and determined that “[Plaintiff] is capable of making a

11

successful adjustment to other work that exits in significant numbers in the national

12

economy.” Tr. 62.

13

Plaintiff argues that the vocational expert’s testimony regarding job numbers was

14

unreliable because the OEQ’s job groupings include jobs that exceed Plaintiff’s

15

limitations. Doc. 17 at 25. Plaintiff raised similar arguments before the ALJ, but the ALJ

16

determined that the OEQ was a reliable source and accepted the vocational expert’s

17

testimony. Tr. 61-62. The ALJ determined that “the vocational expert’s testimony is

18

consistent with the information contained in the Dictionary of Occupational Titles.” T.R.

19

61. Because the vocational expert’s testimony comports with the DOT, the Court cannot

20

find that the ALJ’s acceptance of the vocational expert’s testimony constitutes legal error.

21

Massachi v. Astrue, 486 F.3d 1149, 1153 (9th Cir. 2007) (holding that where a conflict

22

exists between DOT and vocational expert testimony, “the ALJ must then determine

23

whether the vocational expert’s explanation for the conflict is reasonable and whether a

24

basis exists for relying on the expert rather than the Dictionary of Occupational Titles.”).

25

Plaintiff also argues that the vocational expert did not provide numbers for a

26

region of Arizona, and instead provided numbers for the entire State. Doc. 17 at 26. The

27

Court finds, however, that even if the numbers provided by the vocational expert for the

28

Arizona economy do not demonstrate that a significant number of jobs were available in
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1

the regional economy, the numbers provided for the national economy do indicate the

2

existence of a significant number of jobs. Beltran v. Astrue, 700 F.3d 386, 390 (9th Cir.

3

2012) (“If we find either of the two numbers [for jobs available in the national economy

4

or in the regional economy] “significant,” then we must uphold the ALJ’s decision.”

5

(emphasis in original)). The ALJ’s decision at step five is supported by substantial

6

evidence and his reliance on the vocational expert’s testimony does not constitute legal

7

error.

8

IT IS ORDERED:

9

1.

Defendant’s administrative decision is affirmed.

10

2.

The Clerk is directed to enter judgment accordingly and terminate this

11
12

matter.
Dated this 25th day of January, 2013.

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