Hobbs v. Colvin

Filing 21

ORDER, the decision of the ALJ and the Commissioner of Social Security is affirmed; the Clerk shall enter judgment accordingly; the judgment will serve as the mandate of this Court. Signed by Magistrate Judge Michelle H Burns on 11/7/13. (REW)

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1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 10 11 12 13 14 ) ) ) Plaintiff, ) ) vs. ) Carolyn W. Colvin, Commissioner of the) ) Social Security Administration, ) ) Defendant. ) Morris Garland Hobbs, CIV 13-640-PHX-MHB ORDER 15 Pending before the Court is Plaintiff Morris Garland Hobbs’ appeal from the Social 16 Security Administration’s final decision to deny his claim for disability insurance benefits. 17 After reviewing the administrative record and the arguments of the parties, the Court now 18 issues the following ruling. 19 I. PROCEDURAL HISTORY 20 On February 5, 2010, Plaintiff filed an application for disability insurance benefits 21 pursuant to Title II of the Social Security Act, alleging disability beginning November 11, 22 2008. (Transcript of Administrative Record (“Tr.”) at 130-32, 11.) His application was 23 denied initially and on reconsideration. (Tr. at 74-76, 82-84, 11.) On November 9, 2010, he 24 requested a hearing before an Administrative Law Judge (“ALJ”). (Tr. at 85-86, 11.) A 25 hearing was held on September 6, 2011. (Tr. at 23-60.) On September 15, 2011, the ALJ 26 issued a decision in which he found that Plaintiff was not disabled. (Tr. at 8-22.) Thereafter, 27 Plaintiff requested review of the ALJ’s decision. (Tr. at 5-7.) 28 1 The Appeals Council denied Plaintiff’s request, (Tr. at 1-4), thereby rendering the 2 ALJ’s decision the final decision of the Commissioner. Plaintiff then sought judicial review 3 of the ALJ’s decision pursuant to 42 U.S.C. § 405(g). 4 II. STANDARD OF REVIEW 5 The Court must affirm the ALJ’s findings if the findings are supported by substantial 6 evidence and are free from reversible legal error. See Reddick v. Chater, 157 F.3d 715, 720 7 (9th Cir. 1998); Marcia v. Sullivan, 900 F.2d 172, 174 (9th Cir. 1990). Substantial evidence 8 means “more than a mere scintilla” and “such relevant evidence as a reasonable mind might 9 accept as adequate to support a conclusion.” Richardson v. Perales, 402 U.S. 389, 401 10 (1971); see Reddick, 157 F.3d at 720. 11 In determining whether substantial evidence supports a decision, the Court considers 12 the administrative record as a whole, weighing both the evidence that supports and the 13 evidence that detracts from the ALJ’s conclusion. See Reddick, 157 F.3d at 720. “The ALJ 14 is responsible for determining credibility, resolving conflicts in medical testimony, and for 15 resolving ambiguities.” Andrews v. Shalala, 53 F.3d 1035, 1039 (9th Cir. 1995); see 16 Magallanes v. Bowen, 881 F.2d 747, 750 (9th Cir. 1989). “If the evidence can reasonably 17 support either affirming or reversing the [Commissioner’s] conclusion, the court may not 18 substitute its judgment for that of the [Commissioner].” Reddick, 157 F.3d at 720-21. 19 III. THE ALJ’S FINDINGS 20 In order to be eligible for disability or social security benefits, a claimant must 21 demonstrate an “inability to engage in any substantial gainful activity by reason of any 22 medically determinable physical or mental impairment which can be expected to result in 23 death or which has lasted or can be expected to last for a continuous period of not less than 24 12 months.” 42 U.S.C. § 423(d)(1)(A). An ALJ determines a claimant’s eligibility for 25 benefits by following a five-step sequential evaluation: 26 (1) determine whether the applicant is engaged in “substantial gainful activity”; 27 (2) determine whether the applicant has a medically severe impairment or combination of impairments; 28 -2- 1 2 3 4 (3) determine whether the applicant’s impairment equals one of a number of listed impairments that the Commissioner acknowledges as so severe as to preclude the applicant from engaging in substantial gainful activity; (4) if the applicant’s impairment does not equal one of the listed impairments, determine whether the applicant is capable of performing his or her past relevant work; 6 (5) if the applicant is not capable of performing his or her past relevant work, determine whether the applicant is able to perform other work in the national economy in view of his age, education, and work experience. 7 See Bowen v. Yuckert, 482 U.S. 137, 140-42 (1987) (citing 20 C.F.R. §§ 404.1520, 8 416.920). At the fifth stage, the burden of proof shifts to the Commissioner to show that the 9 claimant can perform other substantial gainful work. See Penny v. Sullivan, 2 F.3d 953, 956 5 10 (9th Cir. 1993). 11 At step one, the ALJ determined that Plaintiff had not engaged in substantial gainful 12 activity between November 11, 2008, his alleged onset date, and February 15, 2010. (Tr. at 13 13.) At step two, he found that Plaintiff had the following severe impairment: left shoulder 14 degenerative joint disease and status post left shoulder surgeries on March 6, 2009 and 15 September 25, 2009. (Tr. at 13-14.) At step three, the ALJ stated that Plaintiff did not have 16 an impairment or combination of impairments that met or medically equaled an impairment 17 listed in 20 C.F.R. Part 404, Subpart P, Appendix 1 of the Commissioner’s regulations. (Tr. 18 at 14.) After consideration of the entire record, the ALJ found that Plaintiff retained “the 19 residual functional capacity to perform light work as defined in 20 CFR 404.1567(b) except 20 that the claimant is limited to occasional pushing and pulling with his left arm; cannot 21 perform overhead reaching with his left arm; cannot perform fine manipulations with his left 22 hand; and cannot climb ladders, ropes or scaffolds.”1 (Tr. at 14-16.) The ALJ determined 23 that Plaintiff was unable to perform any past relevant work, but based on his age, education, 24 work experience, and residual functional capacity, there were jobs that existed in significant 25 numbers in the national economy that Plaintiff could perform between November 11, 2008 26 1 27 28 “Residual functional capacity” is defined as the most a claimant can do after considering the effects of physical and/or mental limitations that affect the ability to perform work-related tasks. -3- 1 and February 15, 2010. (Tr. at 18-19.) Therefore, the ALJ concluded that Plaintiff has not 2 been under a disability from November 11, 2008, through the date of his decision. (Tr. at 3 19.) 4 IV. DISCUSSION 5 In his brief, Plaintiff contends that the ALJ erred by: (1) failing to properly consider 6 his subjective complaints; (2) failing to properly weigh medical source opinion evidence; and 7 (3) failing to properly evaluate whether his shoulder impairment met Listing 1.07 (fracture 8 of an upper extremity) or Listing 1.08 (soft tissue injury). Plaintiff requests that the Court 9 vacate the decision of the ALJ and “grant his finite period of disability from November 11, 10 2008 though February 15, 2010.” 11 A. Plaintiff’s Subjective Complaints 12 Plaintiff argues that the ALJ erred in rejecting his subjective complaints in the absence 13 of clear and convincing reasons for doing so. Specifically, Plaintiff states that the ALJ failed 14 to provide legitimate reasons, “either because he did not rely on information during the 15 timeframe in question or because he failed to understand why information or acquisition of 16 information after the timeframe in question was not relevant.” 17 To determine whether a claimant’s testimony regarding subjective pain or symptoms 18 is credible, the ALJ must engage in a two-step analysis. “First, the ALJ must determine 19 whether the claimant has presented objective medical evidence of an underlying impairment 20 ‘which could reasonably be expected to produce the pain or other symptoms alleged.’ The 21 claimant, however, ‘need not show that her impairment could reasonably be expected to 22 cause the severity of the symptom she has alleged; she need only show that it could 23 reasonably have caused some degree of the symptom.’” Lingenfelter v. Astrue, 504 F.3d 24 1028, 1036-37 (9th Cir. 2007) (citations omitted). “Second, if the claimant meets this first 25 test, and there is no evidence of malingering, ‘the ALJ can reject the claimant’s testimony 26 about the severity of her symptoms only by offering specific, clear and convincing reasons 27 for doing so.’” Id. at 1037 (citations omitted). General assertions that the claimant’s 28 testimony is not credible are insufficient. See Parra v. Astrue, 481 F.3d 742, 750 (9th Cir. -4- 1 2007). The ALJ must identify “what testimony is not credible and what evidence undermines 2 the claimant’s complaints.” Id. (quoting Lester v. Chater, 81 F.3d 821, 834 (9th Cir. 1995)). 3 In weighing a claimant’s credibility, the ALJ may consider many factors, including, 4 “(1) ordinary techniques of credibility evaluation, such as the claimant’s reputation for lying, 5 prior inconsistent statements concerning the symptoms, and other testimony by the claimant 6 that appears less than candid; (2) unexplained or inadequately explained failure to seek 7 treatment or to follow a prescribed course of treatment; and (3) the claimant’s daily 8 activities.” Smolen v. Chater, 80 F.3d 1273, 1284 (9th Cir. 1996); see Orn v. Astrue, 495 9 F.3d 624, 637-39 (9th Cir. 2007).2 The ALJ also considers “the claimant’s work record and 10 observations of treating and examining physicians and other third parties regarding, among 11 other matters, the nature, onset, duration, and frequency of the claimant’s symptom; 12 precipitating and aggravating factors; [and] functional restrictions caused by the symptoms 13 ... .” Smolen, 80 F.3d at 1284 (citation omitted). 14 At the administrative hearing, Plaintiff testified that he was right-handed. (Tr. at 37.) 15 The ALJ noted that Plaintiff was alleging disability for a limited period between November 16 11, 2008 and February 15, 2010, and asked him to describe his abilities during this time 17 period. (Tr. at 39.) Plaintiff denied any trouble sitting or standing. (Tr. at 41.) However, 18 he testified that, between November 11, 2008 and February 15, 2010, he had “a real bad 19 weakness” in his left arm, and that he could not have used that arm to reach above his head 20 or lift a gallon of milk. (Tr. at 40-42.) Plaintiff testified that he would have been able to 21 grasp and pick up a pen with his left hand, but that he would have had trouble lifting 22 “anything heavier” with his left hand. (Tr. at 42.) He estimated that he could lift 20 pounds 23 24 25 26 27 28 2 With respect to the claimant’s daily activities, the ALJ may reject a claimant’s symptom testimony if the claimant is able to spend a substantial part of her day performing household chores or other activities that are transferable to a work setting. See Fair v. Bowen, 885 F.2d 597, 603 (9th Cir. 1989). The Social Security Act, however, does not require that claimants be utterly incapacitated to be eligible for benefits, and many home activities may not be easily transferable to a work environment where it might be impossible to rest periodically or take medication. See id. -5- 1 overall. (Tr. at 39.) Plaintiff admitted that, between November 2008 and February 2010, he 2 was able to wash dishes, vacuum, and do “light grocery shopping” (such as going to the store 3 to buy milk). (Tr. at 44-45.) In response to questioning from his attorney, Plaintiff asserted 4 that he had performed these activities using only his right hand. (Tr. at 47.) 5 Having reviewed the record along with the ALJ’s credibility analysis, the Court finds 6 that the ALJ made extensive credibility findings and identified several clear and convincing 7 reasons supported by the record for discounting Plaintiff’s statements regarding his pain and 8 limitations. 9 impairments could reasonably be expected to cause the alleged symptoms, he also found that 10 Plaintiff’s statements concerning the intensity, persistence, and limiting effects of the 11 symptoms were not fully credible. (Tr. at 14-16.) Although the ALJ recognized that Plaintiff’s medically determinable 12 In his evaluation of Plaintiff’s testimony, the ALJ first referenced Plaintiff’s daily 13 activities finding that “claimant’s activities of daily living during the requested closed period 14 were broader than one would expect of a disabled individual, ... and tends to diminish the 15 claimant’s credibility in connection with his disability claim ... .” (Tr. at 15.) “[I]f the 16 claimant engages in numerous daily activities involving skills that could be transferred to the 17 workplace, an adjudicator may discredit the claimant’s allegations upon making specific 18 findings relating to the claimant’s daily activities.” Bunnell v. Sullivan, 947 F.2d 341, 346 19 (9th Cir. 1991) (citing Fair, 885 F.2d at 603); see Berry v. Astrue, 622 F.3d 1228, 1234-35 20 (9th Cir. 2010) (claimant’s activities suggested a greater functional capacity than alleged). 21 Specifically, the ALJ found that Plaintiff reported (and testified to) being able to do wash 22 dishes, vacuum, and go grocery shopping between November 2008 and February 2010. (Tr. 23 at 15, 44-45.) 24 While not alone conclusive on the issue of disability, an ALJ can reasonably consider 25 a claimant’s daily activities in evaluating the credibility of his subjective complaints. See, 26 e.g., Stubbs-Danielson v. Astrue, 539 F.3d 1169, 1175 (9th Cir. 2008) (upholding ALJ’s 27 credibility determination based in part of the claimant’s abilities to cook, clean, do laundry, 28 and help her husband with the finances); Burch v. Barnhart, 400 F.3d 676, 680-81 (9th Cir. -6- 1 2005) (upholding ALJ’s credibility determination based in part on the claimant’s abilities to 2 cook, clean, shop, and handle finances). 3 Next, the ALJ addressed the fact that Plaintiff failed to cooperate with the processing 4 of his Social Security claim, in that Plaintiff (through counsel) did not respond to requests 5 to identify additional medical sources from which medical records during the closed period 6 at issue could be obtained. (Tr. at 15-16, 173); see 20 C.F.R. § 404.1529(c)(4); Tonapetyan 7 v. Halter, 242 F.3d 1144, 1148 (9th Cir. 2001) (claimant’s lack of cooperation at the hearing 8 supported adverse credibility finding); see also Fair, 885 F.2d at 604 n.5 (In assessing the 9 claimant’s credibility, the ALJ may use “ordinary techniques of credibility evaluation,” such 10 as considering the claimant’s reputation for truthfulness and any inconsistent statements in 11 her testimony.); Bunnell, 947 F.2d at 346. 12 Finally, the ALJ discussed the objective medical evidence finding that said evidence 13 did not support Plaintiff’s allegations of disabling symptoms and limitations. (Tr. at 15-16); 14 see Carmickle v. Comm’r, Soc. Sec. Admin., 533 F.3d 1155, 1161 (9th Cir. 2008) 15 (“Contradiction with the medical record is a sufficient basis for rejecting the claimant’s 16 subjective testimony.”) (citation omitted); Batson v. Comm’r of Social Security, 359 F.3d 17 1190, 1197 (9th Cir. 2004) (lack of objective medical evidence supporting claimant’s 18 allegations supported ALJ’s finding that claimant was not credible). Specifically, the ALJ 19 documented medical evidence demonstrating that Plaintiff’s condition improved after the 20 March 2009 operation and that, although a suture anchor came loose in July 2009, Plaintiff 21 experienced a marked decrease of preoperative complaints following the September 2009 22 operation. (Tr. at 15-16, 231-32, 240-42.) Further, Plaintiff’s allegations of disability 23 between November 2008 and February 2010 were also inconsistent with evidence that 24 orthopedist M.S. MacCollum, M.D., repeatedly released him to perform a reduced range of 25 light duty work during this time period. (Tr. at 15-16; Tr. at 225, 228, 230-31, 241-42, 248.) 26 In summary, the Court finds that the ALJ provided a sufficient basis to find Plaintiff’s 27 allegations not entirely credible. While perhaps the individual factors, viewed in isolation, 28 are not sufficient to uphold the ALJ’s decision to discredit Plaintiff’s allegations, each factor -7- 1 is relevant to the ALJ’s overall analysis, and it was the cumulative effect of all the factors 2 that led to the ALJ’s decision. The Court concludes that the ALJ has supported his decision 3 to discredit Plaintiff’s allegations with specific, clear and convincing reasons and, therefore, 4 the Court finds no error. 5 B. Medical Source Opinion Evidence 6 Plaintiff contends that the ALJ erred by failing to properly weigh medical source 7 opinion evidence. Plaintiff argues that the ALJ did not provide “clear and convincing” 8 reasons based on substantial evidence in the record for rejecting Dr. MacCollum’s opinion 9 and erred in accepting the opinions of the State agency reviewing physicians – who Plaintiff 10 alleges were not looking at his claim from a closed period perspective but from an ongoing 11 disability perspective. 12 “The ALJ is responsible for resolving conflicts in the medical record.” Carmickle, 13 533 F.3d at 1164. Such conflicts may arise between a treating physician’s medical opinion 14 and other evidence in the claimant’s record. In weighing medical source opinions in Social 15 Security cases, the Ninth Circuit distinguishes among three types of physicians: (1) treating 16 physicians, who actually treat the claimant; (2) examining physicians, who examine but do 17 not treat the claimant; and (3) non-examining physicians, who neither treat nor examine the 18 claimant. See Lester, 81 F.3d at 830. Generally, more weight should be given to the opinion 19 of a treating physician than to the opinions of non-treating physicians. See id. Where a 20 treating physician’s opinion is not contradicted by another physician, it may be rejected only 21 for “clear and convincing” reasons, and where it is contradicted, it may not be rejected 22 without “specific and legitimate reasons” supported by substantial evidence in the record. 23 See id. Moreover, the Commissioner must give weight to the treating physician’s subjective 24 judgments in addition to his clinical findings and interpretation of test results. See id. at 832- 25 33. 26 The opinion of a non-examining physician is not itself substantial evidence that 27 justifies the rejection of the opinion of either a treating physician or an examining physician. 28 See id. at 831. “The opinions of non-treating or non-examining physicians may also serve -8- 1 as substantial evidence when the opinions are consistent with independent clinical findings 2 or other evidence in the record.” Thomas v. Barnhart, 278 F.3d 947, 957 (9th Cir. 2002). 3 Factors that an ALJ may consider when evaluating any medical opinion include “the amount 4 of relevant evidence that supports the opinion and the quality of the explanation provided; 5 the consistency of the medical opinion with the record as a whole; [and] the specialty of the 6 physician providing the opinion.” Orn, 495 F.3d at 631. 7 Plaintiff argues that the ALJ erred in giving “little weight” to Dr. MacCollum’s 8 November 2, 2009 and October 5, 2009 assessments. On November 2, 2009, Dr. MacCollum 9 opined that Plaintiff was unable to lift more than 5 pounds or perform repetitive overhead 10 motion with his left arm. On October 4, 2009, Dr. MacCollum opined that Plaintiff “is not 11 yet capable of a release to work.” Since these assessments were ultimately contradicted by 12 the State agency reviewing physicians, as well as, the medical evidence of record, the 13 specific and legitimate standard applies. 14 Historically, the courts have recognized the following as specific, legitimate reasons 15 for disregarding a treating or examining physician’s opinion: conflicting medical evidence; 16 the absence of regular medical treatment during the alleged period of disability; the lack of 17 medical support for doctors’ reports based substantially on a claimant’s subjective complaints 18 of pain; and medical opinions that are brief, conclusory, and inadequately supported by 19 medical evidence. See, e.g., Bayliss v. Barnhart, 427 F.3d 1211, 1216 (9th Cir. 2005); Flaten 20 v. Secretary of Health and Human Servs., 44 F.3d 1453, 1463-64 (9th Cir. 1995); Fair, 885 21 F.2d at 604. Here, the Court finds that the ALJ properly gave specific and legitimate reasons, 22 based on substantial evidence in the record, for discounting Dr. MacCollum’s November 2, 23 2009 and October 5, 2009 assessments. Further, the Court finds that the ALJ properly gave 24 weight to the opinions of the state agency reviewing physicians who analyzed the medical 25 evidence during the relevant time frame and issued assessments. 26 According to the record, Plaintiff indicated that he injured his left shoulder in August 27 2008, when he was helping move a refrigerator. He stated that he was prescribed steroid 28 medication in August 2008, and physical therapy in October 2008. (Tr. at 247-48.) -9- 1 On examination in December 2008, Dr. MacCollum noted some atrophy of the 2 suprasinatous muscle on the left side of Plaintiff’s upper back (when compared to the right), 3 and decreased strength and internal rotation of his left arm. Despite reported discomfort, 4 Plaintiff had full elevation of his left arm and full external rotation. Dr. MacCollum 5 diagnosed a rotator cuff tear and restricted Plaintiff to light duty work with limited use of his 6 left arm. (Tr. at 247-48.) 7 In March 2009, Dr. MacCollum performed left shoulder surgery. (Tr. at 207-08.) 8 About two months after the operation, in May 2009, Plaintiff reported increased range of 9 motion and reduced pain. Dr. MacCollum released him to light duty work with the following 10 restrictions: no use of his left arm away from his side, and no lifting more than five pounds 11 with his left arm. (Tr. at 242.) 12 In July 2009, Plaintiff reported new symptoms (sharp pain with forward elevation and 13 abduction) but a decrease of his preoperative pain. Imaging showed that a suture anchor had 14 come loose. (Tr. at 240-41.) Nevertheless, Dr. MacCollum maintained Plaintiff on light duty 15 work through July and August 2009. (Tr. at 239, 241.) 16 In September 2009, Dr. MacCollum performed a second shoulder surgery. (Tr. at 17 189-90.) In October 2009, Plaintiff reported improved motion and a decrease in pain from 18 the September 2009 surgery. According to the record, Dr. MacCollum opined that Plaintiff 19 was not yet ready for a release to work, but encouraged him to be very aggressive with his 20 range of motion exercises at home. (Tr. at 232.) In early November 2009, Plaintiff reported 21 “a marked decrease of his preoperative complaints.” Dr. MacCollum noted that Plaintiff was 22 making good progress and released him to work with no lifting greater than five pounds and 23 no repetitive overhead use of the left arm. (Tr. at 231.) 24 In late November 2009, Plaintiff reported a sharp pain with internal rotation behind 25 his back. Dr. MacCollum found that Plaintiff’s reported symptoms could be related to the 26 progression of his strengthening exercises in physical therapy. He maintained Plaintiff’s 27 work status and advised him to back off on the strengthening exercises. (Tr. at 229-30.) In 28 December 2009, Plaintiff reported that he had plateaued since his last visit. Dr. MacCollum - 10 - 1 administered an injection, instructed Plaintiff to restart physical therapy, and maintained his 2 work status. (Tr. at 228.) 3 In February 2010, Dr. MacCollum opined that Plaintiff had a 6% left upper extremity 4 impairment and a 4% whole person impairment, and specified that Plaintiff should not use 5 his left arm over his head and could lift up to 20 pounds with his left shoulder. (Tr. at 225.) 6 That same month, Plaintiff completed a questionnaire about his activities in relation to his 7 Social Security claims. When asked to describe how his shoulder impairment prevented him 8 from working, Plaintiff said, “no above shoulder use of left arm.” Plaintiff stated that he 9 shopped for groceries, washed dishes, vacuumed, and drove (for up to 90 miles at a time). 10 (Tr. 154-56.) 11 In April 2010, state agency physician William Backlund, M.D., analyzed the record 12 for the time period in question and opined that Plaintiff could do light work with limited use 13 of the left arm and occasional overhead reaching. (Tr. at 64-65.) Then, in October 2010, 14 state agency physician L.A. Woodward, D.O., reviewed Plaintiff’s file, noted a lack of recent 15 medical evidence, and opined that the record was insufficient for a medical assessment. (Tr. 16 at 70-71.) However, based on records available during the time period in question, Dr. 17 Woodward signed off on a finding that Plaintiff had abilities consistent with light work. (Tr. 18 at 72-73.) 19 Therefore, the Court finds that the ALJ reasonably found that Dr. MacCollum’s 20 opinions supported a finding that Plaintiff’s shoulder impairment did not prevent Plaintiff 21 from engaging in substantial gainful activity for 12 or more continuous months. (Tr. at 16.) 22 Further, the ALJ correctly observed that, at the same time that Dr. MacCollum gave his 23 October 2009 opinion, he instructed Plaintiff to be very aggressive with range of motion 24 exercises at home. (Tr. at 16, 232.) And, a month later, in November 2009, Plaintiff 25 reported a “marked decrease of his preoperative complaints.” (Tr. at 16, 231.) Thus, the ALJ 26 reasonably discounted Dr. MacCollum’s October 2009 and November 2009 opinions. (Tr. 27 at 16); see 20 C.F.R. § 404.1527(d)(4) (ALJ must consider consistency of opinion with the 28 - 11 - 1 record as a whole); Batson, 359 F.3d at 1195 (ALJ may discredit treating physician opinions 2 that are conclusory, brief, and unsupported by the record as a whole). 3 Moreover, contrary to Plaintiff’s belief, the opinions from reviewing State agency 4 physicians, Dr. Backlund and Dr. Woodward, finding that Plaintiff had abilities consistent 5 with light work were congruent with the medical evidence and with evidence of Plaintiff’s 6 activities during the relevant time period. (Tr. at 16.) The ALJ reasonably gave weight to 7 their opinions. See 20 C.F.R. § 404.1527(f)(2)(i) (“State agency medical ... consultants ... 8 are highly qualified physicians ... who are also experts in Social Security disability 9 evaluation.”); Thomas, 278 F.3d at 957 (reviewing source opinions may serve as substantial 10 evidence when they are consistent with independent clinical findings or other evidence in the 11 record). 12 C. Listing 1.07 and Listing 1.08 13 Plaintiff alleges that the ALJ erred in failing to properly evaluate whether his shoulder 14 impairment met Listing 1.07 (fracture of an upper extremity) or Listing 1.08 (soft tissue 15 injury). The Court disagrees. 16 If a claimant has an impairment or combination of impairments that meets or equals 17 an impairment found in the Listing of Impairments, then the ALJ must find the claimant 18 disabled. See 20 C.F.R. § 404.1520(d). For a claimant’s impairment to match a listing, it 19 must, for a period of twelve continuous months, “meet all of the specified medical criteria. 20 An impairment that manifests only some of those criteria, no matter how severely, does not 21 qualify.” Sullivan v. Zebley, 493 U.S. 521, 530 (1990); see 20 C.F.R. § 404.1525(d) (“To 22 meet the requirements of a listing, [the claimant] must have a medically determinable 23 impairment(s) that satisfies all of the criteria in the listing.”); 20 C.F.R. pt. 404, subpt. P, 24 app’x. 1 (stating the twelve-month rule). Similarly, for a claimant to show that an 25 impairment is “equivalent” to a listed impairment, he “must present medical findings equal 26 in severity to all the criteria for the one most similar listed impairment.” Zebley, 493 U.S. 27 at 531 (citing 20 C.F.R. § 416.926). A claimant must offer a plausible theory of how his 28 combination of impairments equals a listing before the failure to consider the issue will be - 12 - 1 error. See id. at 514; Burch, 400 F.3d at 683 (“An ALJ is not required to discuss the 2 combined effects of a claimant’s impairments or compare them to any listing in an 3 equivalency determination, unless the claimant presents evidence in an effort to establish 4 equivalence.”). 5 Here, Plaintiff failed to mention, present any argument or evidence, or offer any 6 plausible theory to the ALJ regarding Listing 1.07 or 1.08. Instead, Plaintiff, through 7 counsel, merely asked the ALJ to find that his shoulder impairment met Listing 1.02 – which 8 the ALJ addressed in his opinion. (Tr. at 185, 14.) This fact undermines Plaintiff’s present 9 claim that the ALJ should have discussed Listings 1.07 and 1.08. See Zebley, 493 U.S. at 10 530-31; Burch, 400 F.3d at 683; see also Branum v. Barnhart, 385 F.3d 1268, 1271 (10th Cir. 11 2004) (rejecting a represented claimant’s argument that the ALJ failed to develop the record 12 where “plaintiff’s counsel did not indicate or suggest to the ALJ that any medical records 13 were missing from the administrative record, nor did counsel ask for the ALJ’s assistance in 14 obtaining any additional medical records”); Gonzalez v. Sullivan, 914 F.2d 1197, 1201 (9th 15 Cir. 1990) (“It is unnecessary to require the [Commissioner], as a matter of law, to state why 16 a claimant failed to satisfy every different section of the listing of impairments.”). Thus, the 17 Court finds no error. V. CONCLUSION 18 19 Substantial evidence supports the ALJ’s decision to deny Plaintiff’s claim for 20 disability insurance benefits in this case. The ALJ properly discredited Plaintiff’s credibility 21 providing clear and convincing reasons supported by substantial evidence; the ALJ provided 22 specific and legitimate reasons, based on substantial evidence, for discounting Dr. 23 MacCollum’s November 2, 2009 and October 5, 2009 assessments; the ALJ properly gave 24 weight to the opinions of the State agency reviewing physicians who analyzed the medical 25 evidence during the relevant time frame and issued assessments; and the ALJ was not 26 required to evaluate whether Plaintiff’s shoulder impairment met Listing 1.07 (fracture of an 27 upper extremity) or Listing 1.08 (soft tissue injury). Consequently, the ALJ’s decision is 28 affirmed. - 13 - 1 Based upon the foregoing discussion, 2 IT IS ORDERED that the decision of the ALJ and the Commissioner of Social 3 4 5 6 Security be affirmed; IT IS FURTHER ORDERED that the Clerk of the Court shall enter judgment accordingly. The judgment will serve as the mandate of this Court. DATED this 7th day of November, 2013. 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 - 14 -

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