McDonnell v. Colvin
Filing
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ORDER the final decision of the Commissioner of Social Security is affirmed. The Clerk shall enter judgment accordingly and shall terminate this case. Signed by Judge Neil V Wake on 4/17/2015. (LFIG)
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IN THE UNITED STATES DISTRICT COURT
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FOR THE DISTRICT OF ARIZONA
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Laura Eugenia McDonnell,
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Plaintiff,
No. CV-14-01707-PHX-NVW
ORDER
v.
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Carolyn W. Colvin, Acting Commissioner
of Social Security,
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Defendant.
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Plaintiff Laura Eugenia McDonnell seeks review under 42 U.S.C. § 405(g) of the
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final decision of the Commissioner of Social Security (“the Commissioner”), which
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denied her supplemental security income under section 1614(a)(3)(A) of the Social
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Security Act.
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supported by substantial evidence and is not based on legal error, the Commissioner’s
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decision will be affirmed.
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I.
Because the decision of the Administrative Law Judge (“ALJ”) is
BACKGROUND
Plaintiff alleges both physical and mental impairments.
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She was born in
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November 1985, graduated from high school, and completed three years of college. She
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withdrew from most of her classes during her fourth year because she developed postural
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orthostatic tachycardia syndrome (a condition that causes an abnormally large increase in
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heart rate upon standing up from a lying down position, which often results in
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lightheadedness and fainting). She has been taking Wellbutrin for depression since she
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was in high school, and she was diagnosed with Asperger’s syndrome while in high
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school.
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Although Plaintiff did not complete her intended course load for a double major in
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English and statistics, she was able to receive a B.A. degree in English. In 2009-2010,
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she worked part-time for a business that produced a free directory of resources for seniors
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and disabled individuals.
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advertising.
She received commissions for assisting with the sale of
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On March 7, 2012, Plaintiff applied for supplemental security income, alleging
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disability beginning August 1, 2006. On December 30, 2013, she appeared with her
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attorney and testified at a hearing before the ALJ. A vocational expert also testified. On
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February 7, 2014, the ALJ issued a decision that Plaintiff was not disabled within the
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meaning of the Social Security Act. The Appeals Council denied Plaintiff’s request for
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review of the hearing decision, making the ALJ’s decision the Commissioner’s final
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decision. On July 29, 2014, Plaintiff sought review by this Court.
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II.
STANDARD OF REVIEW
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The district court reviews only those issues raised by the party challenging the
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ALJ’s decision. See Lewis v. Apfel, 236 F.3d 503, 517 n.13 (9th Cir. 2001). The court
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may set aside the Commissioner’s disability determination only if the determination is
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not supported by substantial evidence or is based on legal error. Orn v. Astrue, 495 F.3d
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625, 630 (9th Cir. 2007). Substantial evidence is more than a scintilla, less than a
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preponderance, and relevant evidence that a reasonable person might accept as adequate
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to support a conclusion considering the record as a whole. Id. In determining whether
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substantial evidence supports a decision, the court must consider the record as a whole
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and may not affirm simply by isolating a “specific quantum of supporting evidence.” Id.
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As a general rule, “[w]here the evidence is susceptible to more than one rational
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interpretation, one of which supports the ALJ’s decision, the ALJ’s conclusion must be
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upheld.” Thomas v. Barnhart, 278 F.3d 947, 954 (9th Cir. 2002) (citations omitted);
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accord Molina v. Astrue, 674 F.3d 1104, 1111 (9th Cir. 2012) (“Even when the evidence
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is susceptible to more than one rational interpretation, we must uphold the ALJ’s findings
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if they are supported by inferences reasonably drawn from the record.”).
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III.
FIVE-STEP SEQUENTIAL EVALUATION PROCESS
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To determine whether a claimant is disabled for purposes of the Social Security
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Act, the ALJ follows a five-step process. 20 C.F.R. § 404.1520(a). The claimant bears
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the burden of proof on the first four steps, but the burden shifts to the Commissioner at
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step five. Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999).
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At the first step, the ALJ determines whether the claimant is engaging in
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substantial gainful activity. 20 C.F.R. § 404.1520(a)(4)(i). If so, the claimant is not
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disabled and the inquiry ends. Id. At step two, the ALJ determines whether the claimant
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has
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§ 404.1520(a)(4)(ii). If not, the claimant is not disabled and the inquiry ends. Id. At step
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three, the ALJ considers whether the claimant’s impairment or combination of
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impairments meets or medically equals an impairment listed in Appendix 1 to Subpart P
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of 20 C.F.R. Pt. 404. § 404.1520(a)(4)(iii). If so, the claimant is automatically found to
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be disabled. Id. If not, the ALJ proceeds to step four. At step four, the ALJ assesses the
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claimant’s residual functional capacity and determines whether the claimant is still
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capable of performing past relevant work. § 404.1520(a)(4)(iv). If so, the claimant is not
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disabled and the inquiry ends. Id. If not, the ALJ proceeds to the fifth and final step,
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where he determines whether the claimant can perform any other work based on the
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claimant’s residual functional capacity, age, education, and work experience.
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§ 404.1520(a)(4)(v). If so, the claimant is not disabled. Id. If not, the claimant is
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disabled. Id.
a
“severe”
medically
determinable
physical
or
mental
impairment.
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At step one, the ALJ found that Plaintiff has not engaged in substantial gainful
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activity since March 7, 2012, the application date. At step two, the ALJ found that
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Plaintiff has the following severe impairments:
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syndrome (“POTS”), depression, Asperger’s syndrome, and chronic fatigue syndrome.
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At step three, the ALJ determined that Plaintiff does not have an impairment or
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postural orthostatic tachycardia
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combination of impairments that meets or medically equals an impairment listed in 20
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C.F.R. Part 404, Subpart P, Appendix 1.
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At step four, the ALJ found that Plaintiff:
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has the residual functional capacity to perform light work as defined in 20
CFR 416.967(b) except: she is limited to unskilled work in a non-public
setting involving simple, routine, and repetitive tasks that are no more than
three steps; she cannot perform fast-paced work such as assembly line type
work; she is limited to occasional postural activities with no climbing of
ladders, ropes, or scaffolds; and she should avoid exposure to hazards.
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The ALJ further found that Plaintiff has no past relevant work. At step five, the ALJ
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concluded that, considering Plaintiff’s age, education, work experience, and residual
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functional capacity, there are jobs that exist in significant numbers in the national
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economy that Plaintiff can perform, such as garment sorter, packager, and inspector/hand
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packager.
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IV.
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ANALYSIS
A.
The ALJ Did Not Err in Weighing Medical Source Opinion Evidence.
1.
Legal Standard
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In weighing medical source opinions in Social Security cases, the Ninth Circuit
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distinguishes among three types of physicians: (1) treating physicians, who actually treat
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the claimant; (2) examining physicians, who examine but do not treat the claimant; and
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(3) non-examining physicians, who neither treat nor examine the claimant. Lester v.
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Chater, 81 F.3d 821, 830 (9th Cir. 1995). The Commissioner must give weight to the
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treating physician’s subjective judgments in addition to his clinical findings and
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interpretation of test results. Id. at 832-33. Where a treating physician’s opinion is not
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contradicted by another physician, it may be rejected only for “clear and convincing”
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reasons, and where it is contradicted, it may not be rejected without “specific and
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legitimate reasons” supported by substantial evidence in the record. Id. at 830; Orn v.
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Astrue, 495 F.3d 625, 632 (9th Cir. 2007) (where there is a conflict between the opinion
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of a treating physician and an examining physician, the ALJ may not reject the opinion of
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the treating physician without setting forth specific, legitimate reasons supported by
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substantial evidence in the record).
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Further, an examining physician’s opinion generally must be given greater weight
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than that of a non-examining physician. Lester, 81 F.3d at 830. As with a treating
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physician, there must be clear and convincing reasons for rejecting the uncontradicted
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opinion of an examining physician, and specific and legitimate reasons, supported by
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substantial evidence in the record, for rejecting an examining physician’s contradicted
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opinion. Id. at 830-31.
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Factors that an ALJ may consider when evaluating any medical opinion include
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“the amount of relevant evidence that supports the opinion and the quality of the
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explanation provided; the consistency of the medical opinion with the record as a whole;
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[and] the specialty of the physician providing the opinion.” Orn, 495 F.3d at 631. The
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ALJ may discount a physician’s opinion that is based only the claimant’s subjective
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complaints without objective evidence. Batson v. Comm’r of Soc. Sec. Admin., 359 F.3d
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1190, 1195 (9th Cir. 2004). The opinion of any physician, including that of a treating
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physician, need not be accepted “if that opinion is brief, conclusory, and inadequately
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supported by clinical findings.” Bray v. Comm’r of Soc. Sec. Admin., 554 F.3d 1219,
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1228 (9th Cir. 2009). An ALJ may reject standardized, check-the-box forms that do not
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contain any explanation of the bases for conclusions. Molina v. Astrue, 674 F.3d 1104,
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1111 (9th Cir. 2012).
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2.
Treating Physician Daniel Bradford, M.D.
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Plaintiff first saw Dr. Bradford on July 1, 2013, and her chief complaint was
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chronic fatigue. Dr. Bradford noted “no dizziness, no fainting, and no vertigo.” Plaintiff
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saw Dr. Bradford on August 8 and September 16, 2013, for a gynecological problem. On
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September 24, 2013, Plaintiff saw Dr. Bradford to fill out disability forms. Dr. Bradford
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noted that he “sat with patient for 15 min to fill out forms,” during which he completed
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an Impairment Questionnaire. Dr. Bradford reported Plaintiff’s primary symptoms as
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depression and fatigue and said she has continuous headache and chronic muscle pain in
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her back, arms, and leg. He said that physical therapy did not affect her pain and she
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cannot afford psychological counseling. He opined that Plaintiff can perform a job in a
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seated position for two hours and standing/walking for one hour in an 8-hour workday.
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He said it was medically necessary for Plaintiff to get up from a seated position to move
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around every two hours. Dr. Bradford said Plaintiff could frequently carry/lift up to 10
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pounds and occasionally lift up to 20 pounds. He opined that Plaintiff has significant
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limitations on both right and left upper extremities in reaching, handling, and fingering,
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and she can never or rarely grasp, turn, and twist objects; use hands/fingers for fine
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manipulations; or use arms for reaching. Dr. Bradford opined that Plaintiff is likely to be
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absent from work as a result of her impairments more than three times a month on
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average.
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For clinical and laboratory findings in support of his September 24, 2013 opinion,
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Dr. Bradford wrote two words: “tilt test.” The record does not include the results of a tilt
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table test before September 2013, but the Tilt Table Test Report attached to Dr.
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Bradford’s opinion describes the results of a procedure performed on December 9, 2013,
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more than two months after Dr. Bradford wrote his opinion. During the test, Plaintiff’s
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heart rate increased, and she displayed flushing, dizziness, chest pressure, and tingling.
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Results of the test were “suggestive of postural orthostatic tachycardia.”
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The ALJ stated that he gave little weight to Dr. Bradford’s opinion because it was
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not supported by the objective medical evidence or the record as a whole, which showed
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she received limited treatment for her alleged physical impairments, the limited physical
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examination findings during this period were generally unremarkable, and the exertional
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and manipulative limitations opined by Dr. Bradford were not supported by any
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diagnostic, physical, or clinical findings. According to Dr. Bradford’s treatment notes,
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Plaintiff did not report postural orthostatic tachycardia, and she reported no generalized
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pain, no dizziness, no fainting, and no vertigo. Even during the administrative hearing,
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Plaintiff did not mention any difficulty using her hands or arms. The ALJ expressly
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considered Plaintiff’s “ongoing clinical presentation, type of and response to treatment,
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daily activities, frequency of treatment, alleged symptoms and limitations, and the
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objective evidence” before concluding that Dr. Bradford’s opinion imposed too
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restrictive limitations that were not supported by the objective medical evidence or the
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record as a whole.
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Thus, the ALJ provided clear, convincing, specific, and legitimate reasons for
giving little weight to Dr. Bradford’s opinion regarding severe functional limitations.
3.
Examining Psychologist Patricia Masuda-Story, Psy.D.
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On December 16, 2013, Dr. Masuda-Story performed an extensive psychological
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Independent Medical Evaluation of Plaintiff. On December 26, 2013, Dr. Masuda-Story
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prepared a 22-page narrative report and completed a Mental Impairment Questionnaire.
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The report quoted Plaintiff’s statements to Dr. Masuda-Story at length, but also included
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detailed descriptions of Dr. Masuda-Story’s observations, clinical findings, diagnoses,
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and treatment recommendations. Dr. Masuda-Story diagnosed Plaintiff with Asperger’s
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Disorder and Mood Disorder Due to General Medical Conditions. She explicitly did not
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diagnose Plaintiff with Major Depressive Disorder or any specific anxiety disorder
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because Plaintiff did not meet full criteria for those disorders. She opined that Plaintiff’s
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symptoms of depression and anxiety are secondary to Asperger’s syndrome, postural
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orthostatic tachycardia syndrome, and chronic fatigue syndrome. She recommended
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psychiatric medication management by a psychiatrist, cognitive behavioral therapy with a
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licensed clinical psychologist, and group psychotherapy for social reintegration and
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family support.
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Dr. Masuda-Story assessed marked limitations in Plaintiff’s ability to sustain
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ordinary routine without supervision, work in coordination with or near others without
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being distracted by them, complete a workday without interruptions from psychological
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symptoms, perform at a consistent pace without rest periods of unreasonable length or
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frequency, and get along with coworkers or peers without distracting them. She assessed
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moderate to marked limitations in Plaintiff’s ability to maintain attention and
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concentration for extended periods, perform activities within a schedule and consistently
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be punctual, interact appropriately with the public, accept instructions and respond
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appropriately to criticism from supervisors, and respond to workplace changes.
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Regarding additional mental activities, Dr. Masuda-Story assessed moderate or less
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limitation. She opined that Plaintiff is likely to be absent from work as a result of her
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impairments more than three times a month.
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The ALJ stated that he gave some weight to Dr. Masuda-Story’s opinion because
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she personally observed and examined Plaintiff, and the positive objective clinical
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findings in the medical evidence are from her examination. The ALJ gave greater weight
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to Dr. Masuda-Story’s findings than he did to those of consultative examiner Dr.
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Reynaldo Abejuela, who is Board certified in psychiatry and neurology. Dr. Abejuela
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diagnosed Plaintiff as having mild depression and mild anxiety. He assessed Plaintiff’s
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impairments as none to mild and opined that Plaintiff’s psychiatric prognosis is fair to
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good. The ALJ gave only limited weight to Dr. Abejuela’s opinion and found functional
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limitations due to Asperger’s syndrome and depression primarily based on Plaintiff’s
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testimony and Dr. Masuda-Story’s assessment.
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Although Plaintiff received limited mental health treatment during the relevant
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period and Dr. Masuda-Story did not treat Plaintiff, the ALJ relied substantially on Dr.
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Masuda-Story’s findings for Plaintiff’s mental residual functional capacity assessment.
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Viewing the evidence in the light most favorable to Plaintiff, the ALJ found Plaintiff
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capable of only unskilled, nonpublic, simple, routine, and repetitive tasks of no more than
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three steps with no fast-paced work. Substantial evidence supports the ALJ’s conclusion
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that his mental residual functional capacity assessment adequately addressed Dr. Masuda-
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Story’s findings as well as Plaintiff’s allegations. There were no treatment records from
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a mental health provider for the ALJ to consider other than two medication management
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progress notes from 2011. He was not required to provide further reasons for not giving
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greater weight to Dr. Masuda-Story’s opinion because the opinion was not supported by
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substantial evidence.
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B.
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In evaluating the credibility of a claimant’s testimony regarding subjective pain or
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other symptoms, the ALJ is required to engage in a two-step analysis: (1) determine
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whether the claimant presented objective medical evidence of an impairment that could
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reasonably be expected to produce some degree of the pain or other symptoms alleged;
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and, if so with no evidence of malingering, (2) reject the claimant’s testimony about the
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severity of the symptoms only by giving specific, clear, and convincing reasons for the
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rejection. Vasquez v. Astrue, 572 F.3d 586, 591 (9th Cir. 2009).
The ALJ Did Not Err in Evaluating Plaintiff’s Credibility.
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In making a credibility determination, an ALJ “may not reject a claimant’s
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subjective complaints based solely on a lack of objective medical evidence to fully
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corroborate the claimant’s allegations.” Bray v. Comm’r of Soc. Sec. Admin., 554 F.3d
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1219, 1227 (9th Cir. 2009) (internal quotation marks and citation omitted). But “an ALJ
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may weigh inconsistencies between the claimant’s testimony and his or her conduct,
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daily activities, and work record, among other factors.” Id. The ALJ must make findings
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“sufficiently specific to permit the court to conclude that the ALJ did not arbitrarily
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discredit claimant’s testimony.” Thomas v. Barnhart, 278 F.3d 947, 958 (9th Cir. 2002);
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accord Tommasetti v. Astrue, 533 F.3d 1035, 1039 (9th Cir. 2008).
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First, the ALJ found that Plaintiff’s medically determinable impairments could
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reasonably be expected to cause the alleged symptoms.
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Plaintiff’s statements regarding the intensity, persistence, and limiting effects of the
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symptoms not credible to the extent they are inconsistent with the ALJ’s residual
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functional capacity assessment.
Second, the ALJ found
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Plaintiff alleged spending 22 hours a day lying down, mostly reading, and sleeping
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eight or nine hours per night. She alleged that sitting up makes her head feel cloudy,
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standing is difficult, but sometimes walking around makes her feel better. She alleged
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that she has difficulty with concentration, memory, alertness, multi-tasking, and social
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interactions.
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The ALJ identified inconsistencies between the degree of limitations Plaintiff
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claimed and her reports of daily activities, such as cooking at least one meal daily, going
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for walks to the store or at the shopping mall, doing some household cleaning, socializing
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with friends, and traveling to Costa Rica with her family. The ALJ also identified
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inconsistencies between the degree of limitations Plaintiff claimed and the objective
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medical evidence or the record as a whole, such as relatively infrequent visits to a
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medical provider for the allegedly disabling symptoms. The ALJ found Plaintiff had a
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limited medical treatment history related to chronic fatigue syndrome and postural
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orthostatic tachycardia syndrome, and treatment was limited to prescribed medication,
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exercises, and compression clothing. The ALJ further found that Plaintiff did not receive
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treatment from a mental health specialist during the relevant period, and treatment for
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alleged mental impairments was provided by a general practitioner. Although she was
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prescribed medication for depression, she had not received psychiatric treatment during
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the relevant period.
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Thus, the ALJ’s decision is sufficiently detailed to show he did not arbitrarily
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discredit Plaintiff’s testimony.
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provided specific, clear, and convincing reasons for concluding that Plaintiff is not a fully
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reliable source of evidence regarding the extent of her limitations.1
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Substantial evidence supports finding that the ALJ
IT IS THEREFORE ORDERED that the final decision of the Commissioner of
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Social Security is affirmed.
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terminate this case.
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The Clerk shall enter judgment accordingly and shall
Dated this 17th day of April, 2015.
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Both counsel are commended for very well-written briefs.
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