Henderson v. Colvin

Filing 22

ORDER: IT IS THEREFORE ORDERED affirming the decision of the Commissioner of Social Security. The Clerk of Court shall enter judgment accordingly. Signed by Magistrate Judge Eileen S Willett on 12/03/2015. (REK)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Isaac Javier Henderson,

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No. CV-14-02594-PHX-ESW

Plaintiff,

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v.

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

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ORDER

Defendant.

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Pending before the Court is Plaintiff Isaac Javier Henderson’s (“Plaintiff”) appeal
of the Social Security Administration’s (“Social Security”) denial of his claim for
disability insurance benefits. Plaintiff filed applications for Disability Insurance Benefits
and Supplemental Security Income under Titles II and XVI of the Social Security Act.
Plaintiff alleges disability beginning on December 21, 2011.
This Court has jurisdiction to decide Plaintiff’s appeal pursuant to 42 U.S.C. §§
405(g), 1383(c). 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. (Doc. 13). After reviewing the Administrative Record (“A.R.”), Plaintiff’s
Opening Brief (Doc. 16), Defendant’s Response Brief (Doc. 20), and Plaintiff’s Reply

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(Doc. 21), 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

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A. Disability Analysis: Five-Step Evaluation

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The Social Security Act (the “Act”) provides for disability insurance benefits to

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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).

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also

provides

for

disabled and have limited income. 42 U.S.C. § 1382. To be eligible for benefits based
on an alleged disability, 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. 42 U.S.C. § 423(d)(1)(A); 42 U.S.C. § 1382c(A)(3)(A).
The claimant must also show that the impairment is expected to cause death or last for a
continuous period of at least 12 months. Id.
To decide if a claimant is entitled to Social Security benefits, an ALJ conducts an
analysis consisting of five questions, which are considered in sequential steps. 20 C.F.R.
§§ 404.1520(a), 416.920(a). The claimant has the burden of proof regarding the first four
steps: 1
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), 416.920(c). If the claimant does not
have a severe impairment or combination of impairments,

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Act

Supplemental Security Income to certain individuals who are aged 65 or older, blind, or

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The

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Parra v. Astrue, 481 F.3d 742,746 (9th Cir. 2007).
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disability benefits are denied at this step. Otherwise, the ALJ
proceeds to step three.

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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), 416.920(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(f), 416.920(f). 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: 2

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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(g), 416.920(g). 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 claimant’s
residual functional capacity, age, education, and work
experience. Id.

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B. Standard of Review Applicable to ALJ’s Determination

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The Court must affirm an ALJ’s decision if it is supported by substantial evidence

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and is based on correct legal standards. Molina v. Astrue, 674 F.3d 1104, 1110 (9th Cir.

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2012); Marcia v. Sullivan, 900 F.2d 172, 174 (9th Cir. 1990). Although “substantial

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Parra, 481 F.3d at 746.
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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.
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. Id.; see also Andrews v. Shalala, 53
F.3d 1035, 1039 (9th Cir. 1995).
The Court also considers 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 was born in 1972, has an eleventh grade education, and has been
employed as a street sweeper, pest control worker, pumper/driver of porta-potties, and
retail manager. (A.R. 34, 50-52).

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In November 2011, Plaintiff filed a Title II application for disability insurance
benefits and a Title XVI application for supplemental security income benefits. (A.R.
223-29). Plaintiff alleges that on December 21, 2011, 3 he became unable to work due to
torn ligaments in his shoulders and loss of strength in his hands and arms. (A.R. 65).
Social Security denied both applications in April 2012. (A.R. 147-54). On October 23,
2012, upon Plaintiff’s request for reconsideration, Social Security affirmed the denial of
Plaintiff’s application. (A.R. 159-65). Plaintiff then requested a hearing before an ALJ.
(A.R. 166-67). After holding an April 2013 hearing, the ALJ found that Plaintiff is not
disabled. (A.R. 9-29, 30-60). The Appeals Council denied Plaintiff’s request for review,
making the ALJ’s decision the final decision of the Social Security Commissioner. (A.R.
1-6). Plaintiff thereafter filed a Complaint (Doc. 1) pursuant to 42 U.S.C. § 405(g)
requesting judicial review and reversal of the ALJ’s decision.

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B. The ALJ’s Application of the Five-Step Disability Analysis
The ALJ completed all five steps of the disability analysis before finding that
Plaintiff is not disabled and entitled to disability benefits.

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1. Step One: Engagement in “Substantial Gainful Activity”
The ALJ determined that Plaintiff has not engaged in substantial gainful activity
since the amended alleged disability onset date. (A.R. 14). Neither party disputes this
determination.

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2. Step Two: Presence of Medically Severe Impairment/Combination
of Impairments

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The ALJ found that Plaintiff has the following severe impairments: (i) lumbar

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degenerative disc disease; (ii) osteoarthritis of the knees, bilaterally; (iii) “[s]tatus post

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left shoulder injury with multiple years and tendinosis”; (iv) morbid obesity, dysthymic

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Plaintiff initially alleged disability beginning on September 15, 2010. (A.R. 33,
65). Plaintiff amended the alleged disability onset date to December 21, 2011. (A.R. 33,
342).
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disorder; and (v) anxiety disorder. (A.R. 14-15). Neither party disputes the ALJ’s
determination at this step.

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3. Step Three: Presence of Listed Impairment(s)
The ALJ determined that Plaintiff does not have an impairment or combination of
impairments that meets or medically equals an impairment listed in 20 C.F.R. Part 404,
Subpart P, Appendix 1 of the Social Security regulations. (A.R. 15). Neither party
disputes the ALJ’s determination at this step.

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4. Step Four: Capacity to Perform Past Relevant Work
At step four, the ALJ found that Plaintiff has retained the residual functional
capacity (“RFC”) to perform light work as defined in 20 C.F.R. §§ 404.1567(b) and
416.967(b), except that Plaintiff is able to frequently stoop, kneel, crouch, crawl, and

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climb ramps and stairs. (A.R. 18). The ALJ assessed additional restrictions as follows:
[Plaintiff] should never be required to climb ladders, ropes,
and scaffolds. [Plaintiff] is also able to frequently lift
overhead with his left upper extremity, as well as frequently
perform fine and gross manipulation, but should avoid
concentrated exposure to hazards such as dangerous
machinery and unprotected heights. [Plaintiff] would also
require the option to sit and stand at-will. [Plaintiff] is also
able to complete simple, unskilled and repetitive tasks in
work environments that require no more than occasional and
superficial contact with co-workers, supervisors, and the
general public, and should not be expected to resolve
conflicts or persuade others.

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(A.R. 18).

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After considering the testimony of a vocational expert (“VE”) and Plaintiff’s

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RFC, the ALJ determined that Plaintiff is unable to perform his past relevant work. (A.R.

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22-23). Plaintiff argues that the ALJ erred at step four in assessing Plaintiff’s RFC by (i)

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misinterpreting the evidence when assigning significant weight to the opinions of

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examining physician Dr. Brian Briggs and reviewing physician Dr. Nadine Keer and (ii)

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improperly rejecting the opinion of Plaintiff’s treating pain management doctor, Dr. O.

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Uhrik. (Doc. 16 at 4-6).

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5. Step Five: Capacity to Perform Other Work
At the final step, the ALJ found that Plaintiff is able to perform the requirements
of work existing in significant numbers in the national economy, such as “CashierParking Lot” and “Office Helper.” (A.R. 23-24).
The issue at this step pertains to Plaintiff’s argument that the ALJ erred at step
four in assessing Plaintiff’s RFC. If the ALJ committed harmful legal error at step four,
then the ALJ’s determination at step five is also erroneous.
D. Plaintiff’s Challenge at Step Four
In weighing medical source opinions in Social Security cases, there are three
categories of physicians: (i) treating physicians, who actually treat the claimant; (ii)
examining physicians, who examine but do not treat the claimant; and (iii) nonexamining physicians, who neither treat nor examine the claimant. Lester v. Chater, 81
F.3d 821, 830 (9th Cir. 1995). An ALJ must provide clear and convincing reasons that
are supported by substantial evidence for rejecting the uncontradicted opinion of a
treating or examining doctor. Id. at 830-31; Bayliss v. Barnhart, 427 F.3d 1211, 1216
(9th Cir. 2005). An ALJ cannot reject a treating or examining physician’s opinion in
favor of another physician’s opinion without first providing specific and legitimate
reasons that are supported by substantial evidence, such as finding that the physician’s
opinion is inconsistent with and not supported by the record as a whole. Bayliss, 427
F.3d at 1216; 20 C.F.R. § 404.1527(c)(4) (an ALJ must consider whether an opinion is
consistent with the record as a whole); see also Batson v. Comm’r of Soc. Sec. Admin.,
359 F.3d 1190, 1195 (9th Cir. 2004); Thomas v. Barnhart, 278 F.3d 947, 957 (9th Cir.
2002); Tommasetti, 533 F.3d at 1041 (finding it not improper for an ALJ to reject a
treating physician’s opinion that is inconsistent with the record).
1. Dr. Brian Briggs
On February 27, 2012, consulting physician Dr. Brian Briggs examined Plaintiff.
(A.R. 465-69). In his report, Dr. Briggs recounted that Plaintiff stated that his pain is
aggravated by standing or sitting for more than thirty minutes, but “is relieved by
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medications.” (A.R. 465). Dr. Briggs assessed that Plaintiff can (i) occasionally lift
twenty pounds; (ii) frequently lift ten pounds; (iii) stand or walk for six to eight hours in
an eight-hour day; and (iv) frequently climb ramps and stairs, stoop, kneel, crouch, crawl,
reach, handle, finger, and feel. (A.R. 468-69). Dr. Briggs further assessed that Plaintiff
has no limitations with respect to sitting, seeing, hearing, and speaking. (A.R. 469).
Finally, Dr. Briggs opined that Plaintiff can never climb ladders, ropes, and scaffolds and
is restricted from working around heights and moving machinery. (Id.). The ALJ gave
Dr. Briggs’ opinion significant weight, stating that it is “fully consistent with the
probative findings of the physical examination conducted by Dr. Briggs, [the ALJ’s]
review of the record and the report of activity testified to by [Plaintiff] and his report that
his pain ‘is relieved by medication.’” (A.R. 21).
Plaintiff argues that the ALJ misinterpreted the evidence by relying on Dr. Briggs’
statement that Plaintiff’s pain is relieved by medication. (Doc. 16 at 4). Plaintiff asserts
that “every chart note” from Plaintiff’s treating pain management physician, Dr. O.
Uhrik, “indicates pain and only partial relief from medications . . . .” (Id.). Dr. Uhrik’s
progress notes, however, state that Plaintiff’s pain is reduced by forty to sixty-five
percent with pain medication. (e.g., A.R. 472-80, 507-09, 588-89, 591-96). Dr. Uhrik’s
most recent progress notes state “Pain control obtained.”

(A.R. 588-89, 591-96).

Further, a number of recent progress notes state “Quality of life with current medications:
Improved.” (e.g., A.R. 589, 592, 593, 595). Because Plaintiff’s reported reduction in
pain is by definition “relief,” 4 Plaintiff has failed to show how the ALJ’s statement that
Plaintiff’s pain is “relieved by medication” misinterprets the evidence in the record.
In addition, Plaintiff argues that the ALJ erroneously assigned significant weight
to Dr. Briggs’ opinion because Dr. Briggs acknowledged that the medical records he
reviewed were not up to date. (A.R. 467). Plaintiff cites to no authority that requires an

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Plaintiff’s argument conflates the definitions of “relieve” and “eliminate.”
“Relieve” is defined as “to reduce or remove (something, such as pain or an unpleasant
feeling).” Meriam-Webster Online, http://www.merriam-webster.com/dictionary/relief
(emphasis added). “Eliminate” is defined as “to put an end to or get rid of.” MeriamWebster Online, http://www.merriam-webster.com/dictionary/eliminate.
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consultative examining physician to review all of a claimant’s medical records, and the
Court finds none. See 20 §§ C.F.R 404.1517, 416.917. Moreover, Plaintiff’s argument
misses two points. First, Dr. Briggs’ opinions are based on an independent physical
examination. Dr. Briggs diagnosed Plaintiff with gross obesity, decreased range of
motion of the left elbow, and degenerative joint disease of the knees. (A.R. 468). In his
medical source statement, Dr. Briggs explained that his conclusions are based on these
diagnoses. (A.R. 468-69).
Second, the ALJ reviewed Dr. Briggs’ opinion in the context of the record and
found that the two comported. (A.R. 21). Plaintiff does not challenge this finding.
Where “the evidence can reasonably support either affirming or reversing a decision, we
may not substitute our judgment for that of the [ALJ].” Garrison v. Colvin, 759 F.3d
995, 1010 (9th Cir. 2014) (quoting Andrews, 53 F.3d at 1039). The Court finds that the
ALJ’s assignment of significant weight to Dr. Briggs’ opinion is supported by substantial
evidence and is based on correct legal standards. 5
For the above reasons, the Court rejects Plaintiff’s arguments that the ALJ
misinterpreted the evidence and improperly weighed Dr. Briggs’ opinion.

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2. Dr. Nadine Keer
On April 17, 2012, state agency physician Dr. Keer reviewed Plaintiff’s medical
records and opined that Plaintiff could (i) occasionally lift and/or carry twenty pounds;
(ii) frequently lift and/or carry ten pounds; (iii) stand and/or walk for about six hours in
an eight-hour workday; and (iv) sit for a total of about six hours in an eight-hour
workday. (A.R. 91-93). Dr. Keer also assessed that Plaintiff could frequently climb

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In his Opening Brief, Plaintiff also argues that the ALJ violated 20 C.F.R. §
1527, which explains that Social Security generally gives more weight to an examining
physician’s opinion than a non-examining physician’s opinion. (Doc. 16 at 6). The basis
for this argument is the ALJ’s statement that “Therefore to [the] extent it is consistent
with the DDS opinion of [non-examining physician] Dr. Keer, significant weight was
afforded to Dr. Briggs’ consultative opinion.” (A.R. 21). The Court finds this statement
inconsequential to the ultimate disability determination. The ALJ did not give Dr. Keer’s
opinion more weight—she assigned significant weight to both Dr. Keer and Briggs’
opinions, which are nearly identical. Further, the ALJ articulated legitimate reasons for
giving Dr. Briggs’ opinion significant weight (e.g. it is consistent with the record).
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ramps and stairs, stoop, kneel, crouch, crawl and has no restrictions with respect to
pushing/pulling, balancing, and feeling (i.e. skin receptors). (A.R. 91-92). Like Dr.
Briggs’ opinion, Dr. Keer found that Plaintiff should never climb ladders, ropes, and
scaffolds and should avoid concentrated exposure to hazards such as machinery and
heights. (A.R. 92-93).

However, unlike Dr. Briggs, Dr. Keer found that Plaintiff is

limited in his ability to reach, handle (i.e. gross manipulation), and finger (i.e. fine
manipulation) due to left arm pain and decreased range of motion in his left forearm.
(A.R. 92).
Plaintiff argues that the ALJ erred in assigning significant weight to Dr. Keer’s
opinion because Dr. Keer’s report predates Plaintiff’s submission of an additional 102
medical documents. (Doc. 16 at 5). Plaintiff, however, does not discuss the content of
these additional medical documents or explain how the additional documents would have
changed the outcome of the administrative proceedings. See Carmickle v. Comm’r, Soc.
Sec. Admin., 533 F.3d 1155, 1161 n. 2 (9th Cir. 2008) (declining to address an issue that
the claimant failed to argue with specificity in his briefing).

Without the requisite

specificity and analysis supported by the record, Plaintiff has not met his burden to show
error, let alone that harmful error. See McLeod v. Astrue, 640 F.3d 881, 887 (9th Cir.
2011) (“Where harmfulness of the error is not apparent from the circumstances, the party
seeking reversal must explain how the error caused harm.”); Ludwig v. Astrue, 681 F.3d
1047, 1054 (9th Cir. 2012) (“The burden is on the party claiming error to demonstrate not
only the error, but also that it affected his ‘substantial rights,’ which is to say, not merely
his procedural rights.”) (citing Shinseki v. Sanders, 556 U.S. 396, 407–09 (2009)).
Nevertheless, the Court has reviewed the additional documents and considered the
merits of Plaintiff’s contention. Although Dr. Keer did not have access to all of Dr.
Uhrik’s records, Dr. Keer explicitly referenced Dr. Uhrik’s March 20, 2012 progress
note, which states that:
HPI: Presents with pain in both arms, elbows, and both
shoulders. The pain is moderate in severity and the pain is

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reduced by 40% with meds and is constant. And, as a result
of the pain the patient is not able to work or do his ADL’s.
....
Medication: does not share ow[n] pain meds with others,
“pain meds enable me to do my ADL’s,” and he states
medication does not affect his driving.

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(A.R. 472). Dr. Uhrik’s March 20, 2012 progress note is representative of Dr. Uhrik’s

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most restrictive progress notes that were submitted after Dr. Keer conducted her review.

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Many of Dr. Uhrik’s progress notes that Dr. Keer did not review indicate that Plaintiff’s

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pain is reduced by fifty percent with medications. (A.R. 473-75, 477, 513-14, 589, 593).6

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Several progress notes state that Plaintiff’s pain is reduced by sixty percent and two

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others state a pain reduction of sixty-five percent. (A.R. 507-09; 479-80). 7 Further,

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almost all of Dr. Uhrik’s progress notes dated after Plaintiff’s amended alleged disability

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onset date (December 21, 2011) state that Plaintiff’s pain medications enable him to do

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his daily activities without impacting his ability to drive. 8 Indeed, the record reflects that

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Plaintiff drives his daughter to school and drove alone to the consultative examinations.

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(A.R. 48, 484-85, 550).

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Regarding the records from other providers that Plaintiff submitted after Dr.

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Keer’s review, a March 17, 2012 exam revealed only mild degenerative changes in

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Plaintiff’s left knee. (A.R. 530). An October 11, 2012 emergency room report states that

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Plaintiff’s chronic pain is resolved and that Plaintiff had normal range of motion. (A.R.

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523). Finally, at a February 2013 intake appointment at TERROS, Inc., Plaintiff stated

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that he is able to complete his daily activities and denied having any medical issues.

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(A.R. 570). Plaintiff stated that “I have depression and anxiety and I don’t have any

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A few of these records predate Plaintiff’s December 21, 2011 alleged disability
onset date. The Court notes that “[m]edical opinions that predate the alleged onset of
disability are of limited relevance.” Carmickle, 533 F.3d at 1165.
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The records at A.R. 479-80 predate Plaintiff’s December 21, 2011 alleged
disability onset date by several months. The records at A.R. 507-09 are from 2012.
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issue.

The progress notes that do not contain these statements are entirely silent on the

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motivation to do anything[].” (Id.). This is in contrast to Plaintiff’s statements at the
April 2013 hearing and throughout the administrative proceedings that chronic pain
prevents him from completing activities. (A.R. 40, 302).
After reviewing the additional documents submitted after Dr. Keer’s April 2012
report, the Court finds that there is no reason to believe a remand would lead to a
different result. See Batson, 359 F.3d at 1197 (applying harmless error standard); see
also Ward v. Comm'r of Soc. Sec., 211 F.3d 652, 656 (1st Cir. 2000) (finding that a
remand is unnecessary if “it will amount to no more than an empty exercise.”); see
also Fisher v. Bowen, 869 F.2d 1055, 1057 (7th Cir. 1989) (“No principle of
administrative law or common sense requires us to remand a case in quest of a perfect
opinion unless there is reason to believe that the remand might lead to a different
result.”).

Moreover, even if Dr. Keer’s opinion is discounted, Dr. Briggs’ opinion

remains, which the ALJ did not improperly weigh. As Dr. Briggs’ opinion is based on
his own examination of Plaintiff, Dr. Briggs’ opinion alone constitutes substantial
evidence supporting the ALJ’s RFC determination. Tonapetyan v. Halter, 242 F.3d
1144, 1149 (9th Cir. 2001) (examining physician’s medical report based on independent
examination of claimant constitutes substantial evidence to support ALJ’s disability
determination).
For the above reasons, the Court finds that any error by the ALJ in assigning
significant weight to Dr. Keer’s opinion is harmless.
3. Dr. O. Uhrik
Plaintiff’s treating pain management physician, Dr. O. Uhrik, provided medical
assessments dated May 15, 2012 and March 20, 2013, which opine that Plaintiff can sit
for less than one hour in an eight-hour workday and stand/walk for less than one hour in
an eight-hour workday. (A.R. 496-98, 585-87). Dr. Uhrik’s May 2012 assessment states
that Plaintiff can occasionally lift up to twenty pounds, while Dr. Uhrik’s May 2013
assessment states that Plaintiff can occasionally lift up to ten pounds. (A.R. 496, 585).
The ALJ gave Dr. Uhrik’s opinions partial weight. (A.R. 22). Because Dr. Uhrik’s
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opinions are contradicted by another acceptable medical source, the Court must
determine whether the ALJ offered specific and legitimate reasons for discounting Dr.
Uhrik’s medical opinion.
The ALJ gave two primary reasons for giving Dr. Uhrik’s opinion partial weight.
The ALJ first explained that “the sitting/standing/walking and postural limitations are not
supported by even Dr. Uhrik’s own treatment records where he has provided that
medications have been effective of eliminating 40-65% of [Plaintiff’s] pain with ‘no side
effects’ and ‘stable for three years on [prior medication] regimen.’” (A.R. 22). Finding
inconsistencies between a treating physician’s opinion and his or her treatment notes is a
specific and legitimate reason for rejecting the treating physician’s opinion. Valentine v.
Comm'r, Soc. Sec. Admin., 574 F.3d 685, 692–93 (9th Cir. 2009); Rollins v.
Massanari, 261 F.3d 853, 856 (9th Cir. 2001) (ALJ permissibly rejected treating
physician's opinion when opinion was contradicted by or inconsistent with treatment
reports); Ghanim v. Colvin, 763 F.3d 1154, 1161 (9th Cir. 2014) (a conflict between
treatment notes and a treating provider’s opinions may constitute an adequate reason to
discredit the opinions of a treating physician); Connett v. Barnhart, 340 F.3d 871, 875
(9th Cir. 2003) (treating doctor’s opinion properly rejected when treatment notes
“provide no basis for the functional restrictions he opined should be imposed on
[claimant]”). Moreover, the ALJ’s finding is supported by substantial evidence in the
record. 9 For example, Dr. Uhrik’s March 20, 2013 assessment opines that Plaintiff has
“moderately severe” and “severe” limitations due to pain and fatigue, but a
contemporaneous progress note states “adequate pain relief with current meds” and
“Impression: . . . Pain control obtained.” (A.R. 587-88). As mentioned, “[p]ain control

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To the extent Plaintiff argues that the record medical evidence actually supports
Dr. Uhrik’s opinions, the Court will not second guess the ALJ’s reasonable determination
to the contrary. See Morgan, 169 F.3d at 599.

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obtained” is found in a number of other recent progress notes along with the statement
“Quality of life with current medications: Improved.” (e.g., A.R. 589, 591-96).
The ALJ also discounted Dr. Uhrik’s opinion because it was “based largely on
[Plaintiff’s] subjective (and improved) pain complaints . . . .” (A.R. 22). “An ALJ may
reject a treating physician’s opinion if it is based ‘to a large extent’ on a claimant’s selfreports that have been properly discounted as incredible.” Tommasetti, 533 F.3d at 1041.
Here, the ALJ discredited Plaintiff’s testimony regarding his symptoms.

Because

Plaintiff’s Opening Brief does not challenge the ALJ’s credibility analysis, the issue is
waived. 10
Finally, the ALJ discounted Dr. Uhrik’s opinion because “it appears to be
sympathetic” to Plaintiff. (A.R. 22). Yet the ALJ did not cite to specific evidence
suggesting that Dr. Uhrik’s alleged sympathy for Plaintiff adversely impacted his
professional judgment. The Court thus finds that the ALJ’s statement that Dr. Uhrik was
sympathetic to Plaintiff is an invalid reason for discounting Dr. Uhrik’s opinion. See
Haulot v. Astrue, 290 F. App’x 53, 54 (9th Cir. 2008) (holding an ALJ’s statement that
treating doctor was “sympathetic” to the claimant did not constitute substantial evidence
for rejecting his considered diagnosis). This error, however, is harmless in light of the
ALJ’s two other valid reasons discussed above. See Molina, 674 F.3d at 1115 (where
some reasons supporting an ALJ’s credibility analysis are found invalid, the error is
harmless if the remaining valid reasons provide substantial evidence to support the ALJ’s

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Meanel v. Apfel, 172 F.3d 1111, 1115(9th Cir. 1999) (at least when claimants
are represented by counsel, they must raise all issues and evidence at their administrative
hearings in order to preserve them on appeal); Bray v. Commissioner of Social Security
Admin, 554 F.3d 1219, 1226 n.7 (9th Cir. 2009) (deeming argument not made in
disability claimant’s Opening Brief waived). The Court does not find that manifest
injustice would occur in deeming the argument waived. Meanel, 172 F.3d at 1115
(failure to comply with waiver rule is only excused when necessary to avoid manifest
injustice).

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credibility determination and “the error does not negate the validity of the ALJ's ultimate
conclusion.”).
III. CONCLUSION

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Based on the foregoing, the Court finds that the ALJ’s decision is supported by
substantial evidence and is 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.

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Dated this 3rd day of December, 2015.

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