Bustamante v. Colvin

Filing 18

ORDER, affirming the decision of the Commissioner of Social Security; the Clerk shall enter judgment accordingly. Signed by Magistrate Judge Eileen S Willett on 1/8/15. (REW)

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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-13-02080-PHX-ESW

Carlos J. Bustamante,
Plaintiff,

ORDER

v.
Carolyn W. Colvin, Commissioner of the
Social Security Administration,

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Defendant.

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Pending before the Court is Plaintiff Carlos Jesus Bustamante III’s appeal of the
Social Security Administration’s (“Social Security”) denial of his claim for disability
insurance benefits.

Plaintiff filed his Title II Social Security Disability Insurance

application on July 2, 2010, alleging disability beginning September 1, 2008. This Court
has jurisdiction to decide Plaintiff’s appeal pursuant to 42 U.S.C. § 405(g). Under 42
U.S.C. § 405(g), the Court has the power to enter, based upon the pleadings and transcript
of the record, a judgment affirming, modifying, or reversing the decision of the
Commissioner of Social Security, with or without remanding the case for a rehearing.
Both parties have consented to the exercise of U.S. Magistrate Judge jurisdiction. 1 (Doc.
12). After reviewing the Administrative Record (“A.R.”), Plaintiff’s Opening Brief (Doc.

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This case was reassigned to Hon. Eileen S. Willett on November 14, 2014.

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15) 2, and Defendant’s Response Brief (Doc. 16), 3 the Court finds that the Administrative
Law Judge’s (“ALJ”) decision is supported by substantial evidence and is free of harmful
legal error. The decision is therefore affirmed.

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I. LEGAL STANDARDS
A. Disability Analysis: Five-Step Evaluation
The Social Security Act provides for disability insurance benefits to those who
have contributed to the Social Security program and who suffer from a physical or mental
disability. 42 U.S.C. § 423(a)(1). To be eligible for benefits, the claimant must show that
he or she suffers from a medically determinable physical or mental impairment that
prohibits him or her from engaging in any substantial gainful activity. The claimant must
also show that the impairment is expected to cause death or last for a continuous period
of at least 12 months. 42 U.S.C. § 423(d)(1)(A).
To decide if a claimant is entitled to benefits, an ALJ conducts an analysis
consisting of five questions, which are considered in sequential steps. 20 C.F.R. §
404.1520(a). The claimant has the burden of proof regarding the first four steps: 4

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Step One: Is the claimant engaged in “substantial gainful
activity”? If so, the analysis ends and disability benefits are
denied. Otherwise, the ALJ proceeds to step two.

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Step Two: Does the claimant have a medically severe
impairment or combination of impairments? A severe
impairment is one which significantly limits the claimant’s
physical or mental ability to do basic work activities. 20
C.F.R. § 404.1520(c). If the claimant does not have a severe
impairment or combination of impairments, disability benefits
are denied at this step. Otherwise, the ALJ proceeds to step
three.

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Cited herein as “Pl. Br. at

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Plaintiff did not file a Reply brief.

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Parra v. Astrue, 481 F.3d 742,746 (9th Cir. 2007).

”

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Step Three: Is the impairment equivalent to one of a number
of listed impairments that the Commissioner acknowledges
are so severe as to preclude substantial gainful activity? 20
C.F.R. § 404.1520(d). If the impairment meets or equals one
of the listed impairments, the claimant is conclusively
presumed to be disabled. If the impairment is not one that is
presumed to be disabling, the ALJ proceeds to the fourth step
of the analysis.

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Step Four: Does the impairment prevent the claimant from
performing work which the claimant performed in the past?
If not, the claimant is “not disabled” and disability benefits
are denied without continuing the analysis. 20 C.F.R. §
404.1520(e). Otherwise, the ALJ proceeds to the last step.

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If the analysis proceeds to the final question, the burden of proof shifts to the
Commissioner: 5

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Step Five: Can the claimant perform other work in the
national economy in light of his or her age, education, and
work experience? The claimant is entitled to disability
benefits only if he or she is unable to perform other work. 20
C.F.R. § 404.1520(f). Social Security is responsible for
providing evidence that demonstrates that other work exists in
significant numbers in the national economy that the claimant
can do, given the residual functional capacity, age, education,
and work experience. Id.

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B. Standard of Review Applicable to ALJ’s Determination
The Court must affirm an ALJ’s decision if it is supported by substantial evidence
and is based on correct legal standards. Molina v. Astrue, 674 F.3d 1104, 1110 (9th Cir.
2012); Marcia v. Sullivan, 900 F.2d 172, 174 (9th Cir. 1990). Although “substantial
evidence” is less than a preponderance, it is more than a “mere scintilla.” Richardson v.
Perales, 402 U.S. 389, 401 (1971) (quoting Consolidated Edison v. NLRB, 305 U.S. 197,
229 (1938)). It means such relevant evidence as a reasonable mind might accept as
adequate to support a conclusion. Id.

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Parra, 481 F.3d at 746.
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In determining whether substantial evidence supports the ALJ’s decision, the
Court considers the record as a whole, weighing both the evidence that supports and
detracts from the ALJ’s conclusions. Reddick v. Chater, 157 F.3d 715, 720 (9th Cir.
1998); Tylitzki v. Shalala, 999 F.2d 1411, 1413 (9th Cir. 1993). If there is sufficient
evidence to support the ALJ’s determination, the Court cannot substitute its own
determination. See Morgan v. Comm’r of the Social Sec. Admin., 169 F.3d 595, 599 (9th
Cir.1999) (“Where the evidence is susceptible to more than one rational interpretation, it
is the ALJ's conclusion that must be upheld.”); Magallanes v. Bowen, 881 F.2d 747, 750
(9th Cir. 1989). This is because the ALJ, not the Court, is responsible for resolving
conflicts, ambiguity, and determining credibility. Magallanes, 881 F.2d at 750; see also
Andrews v. Shalala, 53 F.3d 1035, 1039 (9th Cir. 1995).
The Court must also consider the harmless error doctrine when reviewing an
ALJ’s decision. This doctrine provides that an ALJ’s decision need not be remanded or
reversed if it is clear from the record that the error is “inconsequential to the ultimate
nondisability determination.” Tommasetti v. Astrue, 533 F.3d 1035, 1038 (9th Cir. 2008)
(citations omitted); Molina, 674 F.3d at 1115 (an error is harmless so long as there
remains substantial evidence supporting the ALJ’s decision and the error “does not
negate the validity of the ALJ's ultimate conclusion”) (citations omitted).

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II. PLAINTIFF’S APPEAL
A. Procedural Background
Plaintiff, who was born in 1970, has many years of work experience in home
building and project management. Plaintiff alleges that on September 1, 2008, he became
unable to work due to the following ten impairments: (i) brittle diabetes, (ii) statutory
blindness in the right eye, (iii) headaches impairment, (iv) depression, (v) glaucoma, (vi)
multiple joint arthritis, (vii) hypertensive cardiovascular disorder, (viii), hypertension,
(ix) sleep apnea, and (x) acid reflux. (A.R. 74).

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Plaintiff filed his initial application on July 2, 2010 (A.R. 155-58), which Social
Security denied on October 15, 2010. (A.R. 100-02). Social Security denied Plaintiff’s
request for reconsideration on May 16, 2011.

(A.R. 106-08).

Thereafter, Plaintiff

requested a hearing before an ALJ. The ALJ held a hearing on May 8, 2012, during
which Plaintiff was represented by an attorney. (A.R. 40-70). In his June 18, 2012
decision, the ALJ found that Plaintiff is not disabled. (A.R. 19-32). The Appeals
Council denied Plaintiff’s request for review, making the ALJ’s decision the final
decision of the Social Security Commissioner.

(A.R. 1-4).

On October 11, 2013,

Plaintiff filed a Complaint (Doc. 1) pursuant to 42 U.S.C. § 405(g) requesting judicial
review and reversal of the ALJ’s decision.
B. The ALJ’s Application of the Five-Step Disability Analysis
The ALJ completed the first four steps of the analysis before finding that Plaintiff
is not disabled and entitled to disability benefits.
1. Step One: Engagement in “Substantial Gainful Activity”
The ALJ determined that Plaintiff has not engaged in substantial gainful activity
since September 1, 2008, the alleged disability onset date. (A.R. 24). Neither party
disputes this determination.
2. Step Two: Presence of Medically Severe Impairment/Combination
of Impairments
The ALJ found that all of Plaintiff’s alleged impairments were severe except for
Plaintiff’s alleged depression. (A.R. 24-26). As discussed below, Plaintiff argues that
the ALJ erred in determining that Plaintiff’s alleged depression is not severe.
3. Step Three: Presence of Listed Impairment(s)
The ALJ stated that Plaintiff did not have an impairment or combination of
impairments that met or medically equaled an impairment listed in 20 C.F.R. Part 404,
Subpart P, Appendix 1 of the Social Security regulations. (A.R. 27). Neither party
disputes the ALJ’s determination at this step.

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4. Step Four: Capacity to Perform Past Relevant Work
The ALJ found that Plaintiff retained the residual functional capacity to perform
medium work as defined in 20 C.F.R. § 404.1567(c), subject to several limitations.
(A.R. 27). The ALJ found that Plaintiff can only occasionally climb ladders, ropes,
scaffolds, ramps, and stairs, but can frequently balance, stoop, crouch, kneel, and crawl.
Id. The ALJ also found that Plaintiff should avoid concentrated exposure to extreme heat
and workplace hazards such as moving machinery and unprotected heights. Id. Finally,
the ALJ found that Plaintiff is limited to occupations requiring no depth perception. Id.
In making the determination regarding Plaintiff’s residual functional capacity, the
ALJ rejected the opinion of family nurse practitioner Carol Stanford (“NP Stanford”),
who assessed that Plaintiff is unable to work. (A.R. 30). The ALJ explained that NP
Stanford is not an “acceptable medical source” under Social Security regulations and that
her assessment is inconsistent with her own treatment notes and other credible opinion
evidence. Id. The rejection of NP Stanford’s opinion is a major part of Plaintiff’s appeal,
as discussed below. In addition, Plaintiff challenges the ALJ’s rejection of Plaintiff’s
testimony regarding his subjective symptoms.
After determining Plaintiff’s residual functional capacity, the ALJ found that
Plaintiff is capable of performing past relevant work as a project manager and
construction superintendent. (A.R. 31). The ALJ therefore concluded that Plaintiff has
not been under a disability from September 1, 2008 through the date of the ALJ’s
decision (June 18, 2012). (A.R. 31-32). Plaintiff argues that the ALJ should not have
determined that Plaintiff’s work as a project manager constitutes “past relevant work.”
5. Step Five: Capacity to Perform Other Work
The ALJ’s analysis did not proceed to the fifth step as the ALJ found at step four
that Plaintiff is not disabled.

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C. Analysis of Plaintiff’s Appeal
1. Plaintiff’s Challenge to the ALJ’s Analysis at Step Two: The ALJ
Did Not Mischaracterize the Evidence in Determining that
Plaintiff’s Alleged Depression is Not Severe
Plaintiff argues that the ALJ erred at step two of the five-step analysis when the
ALJ found that Plaintiff’s alleged depression is non-severe. For allegations regarding
mental impairments, an ALJ must use the special review technique set forth in 20 C.F.R.
§ 404.1520a. After determining whether an applicant has a medically determinable
mental impairment, the ALJ must rate the degree of functional limitation for four areas:
(i) activities of daily living, (ii) social functioning, (iii) concentration, persistence or pace,
and (iv) episodes of decompensation. Id. at § 404.1520a(c)(3). Next, the ALJ must
determine the severity of the mental impairment. Id. at § 404.1520a(d).
If the degree of limitation in the first three functional areas is “none” or “mild”
and “none” in the fourth area, it is generally concluded that the impairment is not severe
unless the evidence otherwise indicates that there is more than a minimal limitation in the
ability to do basic work activities. Id. at § 404.1520a(d)(1). If the impairment is severe,
the ALJ proceeds to step three of the five-step disability analysis to determine if the
impairment meets or equals a specific listed mental disorder. Id. at § 404.1520a(d)(2).
Keyser v. Comm’r Soc. Sec. Admin., 648 F.3d 721, 725 (9th Cir. 2011).
Here, the ALJ found that Plaintiff has depressive disorder. (A.R. 24-25). The
ALJ then reviewed the evidence to determine if the depression is severe. The ALJ noted
that (i) Plaintiff has consistently denied suicidal or homicidal ideations and reportedly has
a good social support system; (ii) a mental status examination found Plaintiff’s mood
relaxed and affect appropriate; (iii) Plaintiff has had no prior treatment for his condition;
(iv) Plaintiff indicated at hearing that his symptoms have improved due to prescription
medication; and (v) other records report that Plaintiff was “doing well.” (A.R. 25). In
addition, the ALJ cited a psychiatric consultative examination report prepared in 2009 by
Dr. Sharon Steingard, D.O., who found that Plaintiff’s understanding and memory were
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grossly intact. (A.R. 372). The ALJ also cited medical consultant Nicole Lazorwitz’s
reports indicating that Plaintiff’s depression has no significant work-related limitations.
(A.R. 380-397). The ALJ found that the consistency of the opinions, in conjunction with
the lack of treatment records, allowed him to afford the opinions great weight in
considering the effect of Plaintiff’s mental impairments on work-related functioning.
Based on the above considerations, the ALJ found that Plaintiff has no more than a
“mild” limitation in any of the first three functional areas set forth in 20 C.F.R. §
404.1520a (daily living, social functioning, and concentration, persistence or pace).
(A.R. 26). As to the fourth functional area (episodes of decompensation) the ALJ found
that there was no evidence (e.g. psychiatric hospitalizations or intensive outpatient
behavioral health treatment). Id. Due to the finding that Plaintiff’s alleged depressive
disorder does not cause more than minimal limitation in Plaintiff’s ability to perform
basic mental work activities, the ALJ determined that it is not severe. Id.
Plaintiff challenges the ALJ’s determination by arguing that the ALJ both
misquoted and omitted findings from Dr. Steingard’s 2009 report. Plaintiff argues that
the ALJ mischaracterized Dr. Steingard’s report by ignoring Dr. Steingard’s statement
that she expects Plaintiff to have “problems with complicated tasks and multitasking due
to depression.” (Pl. Br. at 13; A.R. 373). The ALJ, however, recognized such comment
when the ALJ wrote that Dr. Steingard opined that Plaintiff “may have some limitations .
. . due to continuing depression.” (A.R. 25).
Plaintiff also argues that the ALJ ignored Dr. Steingard’s statement that Plaintiff’s
“‘tough exterior’ . . . will likely limit him somewhat in dealing with the general public.”
(Pl. Br. at 13; A.R. 373). Although the ALJ’s decision does not specifically use the
phrase “tough exterior,” it does note Dr. Steingard’s finding of Plaintiff’s limitations with
social interaction. The ALJ’s decision states that Dr. Steingard “further found that
[Plaintiff’s] social interaction was not precluded and only affected to a small degree by
his depression, noting that although he described some problems with authority figures,
he has previously maintained long-term employment.” (A.R. 25). Further, the ALJ was
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not required to specifically reference the “tough exterior” finding as it is not significant
and an ALJ is “not required to discuss every piece of evidence.” Hiler v. Astrue, 687
F.3d 1208, 1212 (9th Cir. 2012) (“[T]he ALJ is not required to discuss evidence that is
neither significant nor probative.”) (quoting Howard ex rel. Wolff v. Barnhart, 341 F.3d
1006, 1012 (9th Cir. 2003)).
Plaintiff also contends that the ALJ’s decision mischaracterizes the evidence
where it states that Dr. Steingard “opined that [Plaintiff’s] understanding and memory
was grossly intact and that he would be able to maintain concentration satisfactorily,
although he may have some limitations over the course of a full workday and workweek
due to continuing depression.”

(Pl. Br. at 13; A.R. 25).

Plaintiff argues that this

mischaracterizes Dr. Steingard’s report because (i) Dr. Steingard actually wrote that
Plaintiff was “able to maintain concentration over the course of the interview without
significant difficulty” (emphasis added) and (ii) Dr. Steingard’s report does not predict
whether Plaintiff would be able to maintain concentration satisfactorily in any other
setting. (Pl. Br. at 13; A.R. 372).
Plaintiff, however, fails to mention that Dr. Steingard also indicates that Plaintiff
scored 30 out of 30 on the Mini-Mental State Examination (“MMSE”), which Dr.
Steingard states “does not suggest cognitive impairment.” (A.R. 371). In addition, the
Court does not overlook the fact that Dr. Steingard also does not predict whether Plaintiff
would be unable to maintain concentration satisfactorily in any other setting. The ALJ is
responsible for resolving conflicts, ambiguity, and determining credibility. Andrews, 53
F.3d at 1039. Given Plaintiff’s perfect score on the MMSE, a notation that Plaintiff was
able to maintain concentration satisfactorily during the interview, and no statements
indicating that Plaintiff would be unable to maintain concentration in other settings, the
Court finds that the ALJ reasonably interpreted and did not mischaracterize Dr.
Steingard’s report.

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2. Plaintiff’s Challenges to the ALJ’s Analysis at Step Four

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The ALJ’s Rejection of NP Stanford’s Opinion is Supported
by Substantial Evidence and is Free of Reversible Error

Before a claimant may be awarded disability benefits, there must be evidence from
an “acceptable medical source” that establishes the existence of a medically determinable
impairment.

20 C.F.R. § 404.1513(a). Only licensed physicians and certain other

qualified specialists are considered “acceptable medical sources.” See Ghanim v. Colvin,
763 F.3d 1154, 1161 (9th Cir. 2014) (quoting Molina, 674 F.3d at 1111); see also 20
C.F.R. § 404.1513(a). In order to reject the testimony of an acceptable medical source,
the ALJ must provide specific and legitimate reasons that are based on substantial
evidence in the record. Molina, 674 F.3d at 1111.
A source who is not an acceptable medical source is considered to be an “other
source.” 20 C.F.R. § 404.1513(d). Information from these “other sources” must still be
considered even though the information cannot establish the existence of a medically
determinable impairment. Id. In contrast to an opinion from an acceptable medical
source, an opinion from an other source can be rejected as long as the ALJ provides
“germane” reasons. Ghanim, 763 F.3d at 1161; Molina, 674 F.3d at 1111. Nurse
practitioners and therapists are considered “other sources.” Ghanim, 763 F.3d at 1161;
20 C.F.R. § 404.1513(d).

Opinions from nurse practitioners therefore may be

disregarded by an ALJ upon giving “germane” reasons. Ghanim, 763 F.3d at 1161.
Here, Plaintiff’s treating nurse practitioner, NP Stanford, provided a Multiple
Impairment Questionnaire dated November 7, 2011 (the “Impairment Questionnaire”),
which was co-signed by Dr. Linda Brown. (A.R. 466-73). Plaintiff argues that the ALJ
erred by treating the Impairment Questionnaire as an opinion from an “other source.”
Plaintiff contends that NP Stanford worked closely with and under the supervision of Dr.
Brown and that the Impairment Questionnaire should therefore be treated as if it was
from an acceptable medical source. To support this contention, Plaintiff cites Taylor v.
Comm’r of Soc. Sec. Admin, 659 F.3d 1228 (9th Cir. 2011).
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In Taylor, the Ninth Circuit held that a nurse practitioner’s opinion was properly
considered as part of the opinion of a doctor, an acceptable medical source. Id. at 1234.
Taylor relies on Gomez v. Chater, 74 F.3d 967 (9th Cir. 1996). In Gomez, the Court ruled
that the nurse practitioner’s opinion at issue should be considered an opinion of an
acceptable medical source because the nurse practitioner had worked closely under the
supervision of the physician, had consulted with the physician regarding the claimant’s
treatment numerous times, and was acting as an agent of the doctor. Id. at 971.
First, it is unclear whether Taylor and Gomez remain good law. In Molina, 674
F.3d at 1112 n.3, the Ninth Circuit noted that the regulatory section relied on in Gomez
has since been repealed. 6 The Court, however, did not address its “continued vitality”
because a physician did not supervise the nurse practitioner at issue. Id.
Assuming arguendo that Taylor and Gomez remain good law, the record is not
clear as to whether NP Stanford worked closely under the supervision of Dr. Brown and
was acting as an agent of Dr. Brown. The State of Arizona is one of almost 20 states that
allow nurse practitioners to evaluate patients, diagnose, order and interpret diagnostic
tests, initiate and manage treatments (including prescribe medications) without the
supervision of a physician. 7 In Arizona, a nurse practitioner may “[i]dentify, develop,
implement, and evaluate a plan of care for a patient to promote, maintain, and restore
health.” ARIZ. ADMIN. CODE § R4-19-508
Plaintiff has offered no evidence that (i) Dr. Brown closely supervised NP
Stanford, (ii) NP Stanford regularly consulted with Dr. Brown, or (iii) NP Stanford
otherwise had an agency relationship with Dr. Brown. Contrary to Plaintiff’s assertion,

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The repealed regulation 20 C.F.R. § 416.913(a)(6) stated that a report of an
interdisciplinary team that contains the evaluation and signature of an acceptable medical
source is also considered acceptable medical evidence, which the Gomez court interpreted
as including a nurse practitioner-doctor team.
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Am. Assoc. of Nurse Practitioners, State Practice Environment,
http://www.aanp.org/legislation-regulation/state-legislation-regulation/state-practiceenvironment.
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the evidence in the record does not indicate that Plaintiff treated with NP Stanford and
Dr. Brown “roughly the same number of times.” (Pl. Br. at 10). All of the treatment
records cited by Plaintiff clearly states “Provider: Carol Stanford, FNP.” (A.R. 446, 448,
554, 675, 677, 681, 685, 687). Although many of the reports were signed off by Dr.
Brown, there is no indication that Dr. Brown conducted the examinations or that NP
Stanford consulted with Dr. Brown regarding Plaintiff’s treatment. The mere fact that
Dr. Brown signed off on the Impairment Questionnaire and many of NP Stanford’s
examination reports does not prove that NP Stanford was acting as an agent of Dr.
Brown.
There is, however, evidence in the record supporting that NP Stanford
independently treated Plaintiff. Significantly, Plaintiff testified that he “mainly treat[s]
with [NP Stanford].”

(A.R. 53).

NP Stanford’s own words also suggest that she

independently treated Plaintiff. In her November 9, 2011 letter, NP Stanford states that
“Mr. Bustamante has been a patient of mine for several years” (emphasis added). (A.R.
282). The letter does not mention Dr. Brown and Dr. Brown did not co-sign it. In
addition, Dr. Thomas J. McPhee wrote directly to NP Stanford in regards to Plaintiff’s
eye exam, suggesting that Dr. McPhee considered NP Stanford to be Plaintiff’s primary
treatment provider. (A.R. 525). Finally, Plaintiff chose to list NP Stanford as the
provider on his Authorization for Release of Personal Health-Related Information, further
strengthening Plaintiff’s statement that he mainly treated with NP Stanford. (A.R. 552).
There is thus substantial evidence supporting the ALJ’s determination that NP
Stanford is an “other source” if Taylor and Gomez remain good law. The ALJ gave
germane reasons for rejecting NP Stanford’s opinion when he states that NP Stanford
“cites no objective evidence to corroborate her opinion” and that her opinion is
“inconsistent with her own treatment records as well as other credible opinion evidence
of record.” (A.R. 30). See Molina, 674 F.3d at 1111–12 (recognizing that a conflict with
treatment notes is a germane reason to reject the opinion of a treating physician’s
assistant).
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Even if the ALJ erred in finding that NP Stanford’s opinion was not from an
acceptable medical source, it is a harmless error. If NP Stanford’s opinion should be
treated as if from a treating physician, then the ALJ must provide specific and legitimate
reasons that are supported by substantial evidence in the record for rejecting it in favor of
a contradicting opinion. See Molina, 674 F.3d at 1111. In addition to being a “germane”
reason, a conflict with treatment notes is a “specific and legitimate” reason to reject a
treating physician’s opinion. Valentine v. Comm’r of Soc. Sec. Admin., 574 F.3d 685,
692–93 (9th Cir. 2009). Here, the ALJ correctly stated that NP Stanford’s opinion is
inconsistent with her own treatment notes. (A.R. 30). The ALJ explained such conflict
where he states that:
[NP Stanford] consistently notes the lack of any remarkable
findings on physical examination, but finds his abilities to
stand and/or walk very restricted. As well, she appears to
attribute [Plaintiff’s] inability to sustain work primarily to the
‘fragile nature of his emotional status’ and inability to focus
and concentrate but fails to mention such limitations in her
treatment record. Id.

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Additionally, the ALJ need not accept the opinion of any physician, including a

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treating physician, if that opinion is brief, conclusory, and inadequately supported by

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clinical findings.” Crane v. Shalala, 76 F.3d 251, 253 (9th Cir. 1996) (the ALJ may

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“permissibly reject . . . check-off reports that [do] not contain any explanation of the

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bases of their conclusions”); Thomas v. Barnhart, 278 F.3d 947, 957 (9th Cir. 2002).

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For example, in Batson v. Comm’r of Soc. Sec. Admin., 359 F.3d 1190, 1195 (9th Cir.

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2004), the Court held that the ALJ properly discounted one doctor’s opinion because it

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“was in the form of a checklist, did not have supportive objective evidence, was

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contradicted by other statements and assessments of [plaintiff’s] medical condition, and

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was based on [plaintiff’s] subjective descriptions of pain.” The Court rejected another

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doctor’s opinion because it was also “conclusionary in the form of a checklist” and

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“lack[ed] substantive medical findings to support her conclusion.” Id.

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The Impairment Questionnaire is in the form of a conclusory checklist.

NP

Stanford’s brief November 9, 2011 letter states that Plaintiff “is unable to work due to his
health and the fragile nature of his emotional status. He is on multiple medications that
can cause various side effects and make him incapable of focusing and concentrating at
the task at hand.” (A.R. 282). As noted by the ALJ, the letter fails to cite to objective
medical evidence.

The Court finds the reasons stated by the ALJ in rejecting NP

Stanford’s opinion are specific and legitimate and are supported by substantial evidence.
The Court therefore finds that even if the ALJ erred by treating NP Stanford as an “other
source” opinion, it does not constitute reversible legal error.
ii.

The ALJ Did Not Err in Rejecting Plaintiff’s Testimony

When evaluating credibility of a plaintiff’s testimony regarding subjective pain or
symptoms, the ALJ must engage in a two-step analysis. Vasquez v. Astrue, 572 F.3d 586,
591 (9th Cir. 2009). In the first step, the ALJ must determine whether the claimant has
presented objective medical evidence of an underlying impairment “which could
reasonably be expected to produce the pain or other symptoms alleged.” Lingenfelter v.
Astrue, 504 F.3d 1028, 1036 (9th Cir. 2007). The plaintiff does not have to show that the
impairment could reasonably be expected to cause the severity of the symptoms. Rather,
a plaintiff must only show that it could have caused some degree of the symptoms.
Smolen v. Chater, 80 F.3d 1273, 1282 (9th Cir. 1996).
If a plaintiff meets the first test, and there is no evidence of malingering, the ALJ
can only reject a plaintiff’s testimony about the severity of his or her symptoms by
offering specific, clear and convincing reasons. Lingenfelter, 504 F.3d at 1036. The ALJ
cannot rely on general findings. The ALJ must identify specifically what testimony is not
credible and what evidence undermines the plaintiff’s complaints. Berry v. Astrue, 622
F.3d 1228, 1234 (9th Cir. 2010). In weighing a plaintiff’s credibility, the ALJ can
consider many factors including: a plaintiff’s reputation for truthfulness, prior
inconsistent statements concerning the symptoms, unexplained or inadequately explained
failure to seek treatment, and the plaintiff’s daily activities. Smolen, 80 F.3d at 1284; see
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also 20 C.F.R. §

404.1529(c)(4) (Social Security must consider whether there are

conflicts between a claimant’s statements and the rest of the evidence).
Here, Plaintiff argues that the ALJ erred in discrediting Plaintiff’s testimony
regarding subjective symptoms. The ALJ gave many reasons for finding Plaintiff’s
testimony not credible. First, the ALJ found that records indicate that Plaintiff has a
history of non-compliance with recommended treatment for his diabetes and that when
asked about it at the May 8, 2012 hearing, Plaintiff denied feeling any symptomology that
would prompt him to do so. (A.R. 29). The ALJ also found that Plaintiff’s limited pain
treatment records failed to corroborate the severity of Plaintiff’s alleged symptoms.
(A.R. 29). The ALJ further noted that references in the handful of pain management
visits characterize Plaintiff’s condition as stable and show little progression in Plaintiff’s
treatment beyond very conservative methodology. Id. Additionally, the ALJ found that
examinations, including a CT scan of Plaintiff’s brain, did not show any significant
abnormalities. Id.
The ALJ also identified inconsistencies between Plaintiff’s testimony at the
hearing and the rest of the record. For example, the ALJ noted that Plaintiff previously
stated that he attempts to assist with household chores including cleaning, laundry, and
ironing, as well as assisting with meal preparation and weekly grocery shopping.
Plaintiff also reported watching television and his children play sports and speaking with
his mother daily. The ALJ found that Plaintiff’s testimony at hearing suggesting a
dramatically reduced functioning was inconsistent and unsupported by any treatment or
objective evidence of record. Id.
The above reasons provided by the ALJ for discrediting Plaintiff’s testimony are
specific, clear, convincing, and are supported by substantial evidence in the record. Fair
v. Bowen, 885 F.2d 597, 603-04 (9th Cir. 1989) (evidence regarding claimant’s daily
activities, his lack of more extensive medical treatment, and his failure to follow
prescribed treatment justified ALJ’s decision to disbelieve claimant’s allegation of excess
pain); Orn v. Astrue, 495 F.3d 625, 636 (9th Cir. 2007) (factors that an ALJ may consider
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in weighing a social security disability claimant’s credibility include inconsistencies in
testimony or between testimony and conduct, daily activities, and unexplained, or
inadequately explained, failure to seek treatment or follow a prescribed course of
treatment). The Court therefore finds that the ALJ did not err in discrediting Plaintiff’s
subjective testimony.
iii.

The ALJ Did Not Make Reversible Error in Determining
Plaintiff’s Past Relevant Work

A claimant is not entitled to an award of benefits if he or she has the residual
functional capacity to perform past relevant work. “Past relevant work” is work that a
claimant has done within the past 15 years, that was substantial gainful activity, and that
lasted long enough for the claimant to learn to do it. 20 C.F.R. § 404.1560(b)(1).
Social Security has taken administrative notice of the Dictionary of Occupational
Titles (the “DOT”), which is published by the Department of Labor and gives detailed
physical requirements for a variety of jobs. 20 C.F.R. § 404.1560(b)(2); see also Bray v.
Comm’r of Soc. Sec. Admin., 554 F.3d 1219, 1230 n.3 (9th Cir. 2009). The DOT can be
utilized by an ALJ in determining whether a claimant, given his or her residual functional
capacity, can perform his or her past relevant work. Id. The DOT indicates the specific
vocational preparation (“SVP”) for each job title.
SVP is defined as the amount of lapsed time required by a typical worker to learn
the techniques, acquire the information, and develop the facility needed for average
performance in a specific job-worker situation. (DICTIONARY OF OCCUPATIONAL TITLES,
Appendix C II (4th ed. 1991), http://www.occupationalinfo.org/appendxc_1.html#II). An
SVP can range between one and nine, with one being the lowest amount of training (i.e.,
short demonstration) and nine being the highest (over ten years of education or training).
Id. Specific vocational training includes: (a) vocational education, (b) apprenticeship
training, (c) in-plant training, (d) on-the-job training, and (e) “essential experience in
other jobs (serving in less responsible jobs which lead to the higher grade job or serving
in other jobs which qualify).” Id. (emphasis added).
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Plaintiff argues that the ALJ erred in finding that Plaintiff’s prior work as a project
manager constitutes “past relevant work.” Plaintiff argues that since Plaintiff only held
the position for nine months, it cannot constitute “past relevant work” as project manager
has a SVP of eight. A SVP of eight requires training time of over four years. Plaintiff
contends that he did not hold the position long enough to have sufficiently learned to do
it. SVP, however, does not refer to the length of time a job was held, but the approximate
length of training time it takes to learn how to do it. As noted above, essential experience
in other jobs may constitute vocational training.
Plaintiff became a project manager after approximately ten years of being a
construction superintendent.

construction superintendent, Plaintiff’s time working as a construction superintendent
may be considered as vocational training in preparation for work as a project manager
given the similarities between the two jobs.

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The DOT states that each job entails

directing workers, reviewing plans and status/progress reports, and conferring with
personnel regarding a particular project. 8 The ALJ therefore reasonably concluded that
Plaintiff could return to work as either a superintendent or project manager.
Even if the ALJ erred in finding that project manager constitutes past relevant
work, it is harmless as the ALJ also found that Plaintiff’s work as a superintendent, a job
he held for almost ten years, constituted past relevant work that Plaintiff could perform.
Plaintiff does not dispute the ALJ’s determination that Plaintiff’s work as a
superintendent constitutes past relevant work.
3. New Evidence Submitted to Appeals Council Does Not Warrant Reversal

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Although project manager has a higher SVP than

or Remand
The Appeals Council must consider additional evidence offered on administrative
review of a Social Security disability proceeding if it is (i) new, (ii) material, and (iii)

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8

The DOT classification for the position of “superintendent, construction” (DOT
# 182.167-026) is available at http://www.occupationalinfo.org/18/182167026.html. The
DOT classification for the position of “project manager” (DOT # 189.117-030) is
available at http://www.occupationalinfo.org/18/189117030.html.
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related to the period on or before the date of the ALJ’s decision. 20 C.F.R. § 404.970(b)
(“If new and material evidence is submitted, the Appeals Council shall consider the
additional evidence only where it relates to the period on or before the date of the
administrative law judge hearing decision.”). If the evidence qualifies, it becomes a part
of the record on judicial review. Brewes v. Comm’r of Soc. Sec. Admin., 682 F.3d 1157,
1162 (9th Cir. 2012) (holding that new evidence reviewed by the Appeals Council must
be treated as part of the administrative record). If the Appeals Council was required to
consider additional evidence, but failed to do so, remand to the ALJ is appropriate so that
the ALJ can reconsider its decision in light of the additional evidence. Taylor, 659 F.3d
at 1233; see also 20 C.F.R. § 404.970(b). The Court, however, does not have jurisdiction
to review the Appeals Council’s decision denying Plaintiff’s request for review because it
is a non-final agency action. Taylor, 659 F.3d at 1231; see also Klemm v. Astrue, 543
F.3d 1139, 1144 (9th Cir. 2008) (“The Social Security Act grants to district courts
jurisdiction to review only ‘final decisions’ of the Commissioner.”)
Here, the Appeals Council did not consider new evidence offered by Plaintiff on
the grounds that it is “about a later time” and does not affect the ALJ’s decision. (A.R.
2). The Court will nonetheless consider whether the new evidence warrants a remand
under 42 U.S.C. § 405(g), sentence six. Remand for reconsideration under sentence six
of 42 U.S.C. § 405(g) is appropriate only where a plaintiff submits new evidence and
shows that: (i) the new evidence is material to his disability and (ii) he had good cause for
failing to submit the evidence earlier. 42 U.S.C. § 405(g) (sentence six: a court may
“order additional evidence to be taken before the Commissioner of Social Security, but
only upon a showing that there is new evidence which is material and that there is good
cause for the failure to incorporate such evidence into the record”); see also Mayes, 276
F.3d 453, 462 (9th Cir. 2001).
To be material, the new evidence must bear “directly and substantially on the
matter in dispute,” and the plaintiff must show a “reasonable possibility” that the new

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evidence would have changed the outcome of the administrative hearing. Booz v.
Secretary of Health and Human Serv., 734 F.2d 1378, 1380 (9th Cir. 1984).
With regard to the good cause requirement, “[i]f new information surfaces after
the [Commissioner’s] final decision and the claimant could not have obtained that
evidence at the time of the administrative proceeding, the good cause requirement is
satisfied.” Key v. Heckler, 754 F.2d 1545, 1551 (9th Cir. 1985). However, “[a] claimant
does not meet the good cause requirement simply by obtaining a more favorable report
from an expert witness once his claim is denied . . . The claimant must establish good
cause for not seeking the expert’s opinion prior to the denial of his claim.” Clem, 894
F.2d 328, 332 (9th Cir. 1990) (citing Key, 754 F.2d at 1551). The Ninth Circuit has not
found good cause where the plaintiff offered no reason why he could not have obtained
the evidence earlier. Key, 754 F.2d at 1551.
Here, Plaintiff’s new evidence is in part redundant of the treatment records already
in the Administrative Record and considered by the ALJ.

Additionally, the new

treatment records only show “mild” narrowing of the central canal and “mild to
moderate” foraminal narrowing on Plaintiff’s left side. Evidence of mild degenerative
changes in Plaintiff’s spine is already in the record and was noted by the ALJ in his
decision. (A.R. 29). The Court does not find that such records have a reasonable
possibility of changing the outcome of the administrative proceedings. Plaintiff has
therefore failed to meet his burden of showing that the additional evidence is material to
the question of whether he was disabled on or before September 1, 2008.
Further, Plaintiff offers no explanation why the evidence could not have been
obtained earlier for use by the ALJ. Plaintiff has therefore failed to meet the good cause
requirement under Key, 754 F.2d at 1551. Consequently, remand for consideration of the
additional treatment records is not appropriate.

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III. CONCLUSION
Based on the foregoing, the Court concludes that the ALJ’s decision is supported
by substantial evidence and free from reversible error. Accordingly, the decision of the
Commissioner of Social Security is affirmed.
IT IS THEREFORE ORDERED affirming the decision of the Commissioner of
Social Security. The Clerk of Court shall enter judgment accordingly.

7
8

Dated this 8th day of January, 2015.

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