Scholin v. Colvin

Filing 17

ORDER: The ALJ's decision is AFFIRMED. The Clerk of Court is directed to terminate and enter judgment accordingly. Signed by Judge G Murray Snow on 3/06/2017. (REK)

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1 WO 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE DISTRICT OF ARIZONA 10 11 Theresa K. Scholin, 12 13 No. CV-15-02334-PHX-GMS Plaintiff, ORDER v. 14 15 Commissioner of the Social Security Administration, 16 17 Defendant. 18 19 Pending before the Court is the appeal of Plaintiff Theresa K. Scholin (“Scholin”), 20 which challenges the Social Security Administration’s decision to deny benefits. (Doc. 21 1.) For the reasons set forth below, this Court affirms the decision of the ALJ. 22 BACKGROUND 23 On September 19, 2011, Theresa Scholin filed an application for disability 24 insurance benefits, alleging a disability onset date of February 1, 2005. (Tr. 22.) Her 25 claim was initially denied on January 20, 2012, and it was denied again upon 26 reconsideration on November 21, 2012. (Tr. 22.) Scholin then filed a written request for 27 a hearing and she testified before ALJ Patricia Bucci on January 3, 2014. (Tr. 22.) On 28 March 13, 2014, the ALJ issued a decision finding Scholin not disabled. (Tr. 36.) 1 In evaluating whether Scholin was disabled, the ALJ undertook the five-step 2 sequential evaluation for determining disability.1 (Tr. 12.) At step one, the ALJ found 3 that Scholin had not engaged in substantial gainful activity since her application date. 4 (Tr. 24.) At step two, the ALJ determined that Scholin suffered from the following 5 severe impairments: obesity, diabetes mellitus, chronic dermatitis, chronic obstructive 6 pulmonary disease (“COPD”)/asthma, JOB syndrome, mild cervical degenerative disc 7 disease, depressive disorder, and poly-substance abuse. (Tr. 24.) She also found that 8 Scholin suffered from numerous nonsevere impairments, including status post right knee 9 surgery, gastroesophageal reflux disease, irritable bowel syndrome, right shoulder 10 disorder, restless leg syndrome, osteopenia, and hepatitis C. (Tr. 25.) At step three, the 11 ALJ determined that none of these impairments, either alone or in combination, met or 12 equaled any of the Social Security Administration’s listed impairments. (Id.) 13 At that point, the ALJ reached step four and made a determination of Scholin’s 14 residual functional capacity (“RFC”),2 concluding that Scholin could “perform light work 15 as defined in 20 CFR 404.1567(b), except the Claimant should never climb ladders, ropes 16 17 1 The five-step sequential evaluation of disability is set out in 20 C.F.R. § 404.1520 (governing disability insurance benefits) and 20 C.F.R. § 416.920 (governing supplemental security income). Under the test: 18 A claimant must be found disabled if she proves: (1) that she is not presently engaged in a substantial gainful activity[,] (2) that her disability is severe, and (3) that her impairment meets or equals one of the specific impairments described in the regulations. If the impairment does not meet or equal one of the specific impairments described in the regulations, the claimant can still establish a prima facie case of disability by proving at step four that in addition to the first two requirements, she is not able to perform any work that she has done in the past. Once the claimant establishes a prima facie case, the burden of proof shifts to the agency at step five to demonstrate that the claimant can perform a significant number of other jobs in the national economy. This step-five determination is made on the basis of four factors: the claimant’s residual functional capacity, age, work experience and education. 19 20 21 22 23 24 25 26 27 28 Hoopai v. Astrue, 499 F.3d 1071, 1074–75 (9th Cir. 2007) (internal quotation marks and citations omitted). 2 RFC is the most a claimant can do despite the limitations caused by his impairments. See S.S.R. 96–8p (July 2, 1996). -2- 1 or scaffolds.” (Tr. 27.) In making this finding, the ALJ found that Scholin’s subjective 2 testimony was “not entirely credible.” (Tr. 28.) The ALJ gave little to no weight to the 3 treating physicians, Drs. Drachler, Monroe, Ebner and Brown. (Tr. 33–34.) Instead, she 4 relied on the testimony of state agency’s reviewing physicians, Scholin’s work history, 5 her “generally unpersuasive appearance and demeanor while testifying at the hearing,” 6 and the “greater weight of the entire evidence of record” which demonstrated 7 inconsistencies in Ms. Scholin’s testimony and statements to her health care providers 8 (Tr. 33–34.) 9 assessments of these reviewing physicians, as greater weight is afforded to the treating 10 notes and clinical findings, which reflect the claimant’s mental impairment is indeed 11 severe.” (Id.) However, she noted that “minimal weight is afforded to the mental 12 The Appeals Council declined to review the decision. (Tr. 1–5.) Scholin filed the 13 complaint underlying this action on November 17, 2015 seeking this Court’s review of 14 the ALJ’s denial of benefits. (Doc. 1.) The matter is now fully briefed before this Court. 15 (Docs. 12, 16.) 16 17 18 19 20 21 22 23 24 25 26 DISCUSSION I. Standard of Review A reviewing federal court will only address the issues raised by the claimant in the appeal from the ALJ’s decision.3 See Lewis v. Apfel, 236 F.3d 503, 517 n.13 (9th Cir. 2001). A federal court may set aside a denial of disability benefits only if that denial is either unsupported by substantial evidence or based on legal error. Thomas v. Barnhart, 278 F.3d 947, 954 (9th Cir. 2002). Substantial evidence is “more than a scintilla but less than a preponderance.” Id. (quotation omitted). “Substantial evidence is relevant evidence which, considering the record as a whole, a reasonable person might accept as adequate to support a conclusion.” Id. (quotation omitted). The ALJ is responsible for resolving conflicts in testimony, determining 27 3 28 The ALJ’s determinations that Scholin’s diabetes, spinal degeneration, and obesity did not contribute to any disability were not challenged by the claimant in her opening brief. (Tr. 29–30; Doc. 12.) -3- 1 credibility, and resolving ambiguities. See Andrews v. Shalala, 53 F.3d 1035, 1039 (9th 2 Cir. 1995). “When the evidence before the ALJ is subject to more than one rational 3 interpretation, we must defer to the ALJ’s conclusion.” Batson v. Comm’r of Soc. Sec. 4 Admin., 359 F.3d 1190, 1198 (9th Cir. 2004). This is so because “[t]he [ALJ] and not the 5 reviewing court must resolve conflicts in evidence, and if the evidence can support either 6 outcome, the court may not substitute its judgment for that of the ALJ.” Matney v. 7 Sullivan, 981 F.2d 1016, 1019 (9th Cir. 1992) (citations omitted). 8 II. Analysis A. 9 10 The ALJ Did Not Make a Prejudicial Error in Rejecting the Opinions of the Treating Physicians. 11 “A treating physician’s medical opinion as to the nature and severity of an 12 individual’s impairment must be given controlling weight if that opinion is well- 13 supported and not inconsistent with the other substantial evidence in the case record.” 14 Edlund v. Massanari, 253 F.3d 1152, 1157 (9th Cir. 2001), as amended on reh’g (Aug. 9, 15 2001); see Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1995), as amended (Apr. 9, 1996) 16 (“As a general rule, more weight should be given to the opinion of a treating source than 17 to the opinion of doctors who do not treat the claimant.”). If a treating physician’s 18 opinion is “not contradicted by another doctor, it may be rejected only for clear and 19 convincing reasons.” Lester, 81 F.3d at 830. 20 physician’s opinion which is ‘brief and conclusionary in form with little in the way of 21 clinical findings to support [its] conclusion.’ ” Magallanes v. Bowen, 881 F.2d 747, 751 22 (9th Cir. 1989) (quoting Young v. Heckler, 803 F.2d 963, 968 (9th Cir.1986)). However, 23 even if a treating physician’s “assessments are of the ‘check-box’ form and contain 24 almost no detail or explanation,” they should not be dismissed if the “record supports [the 25 physician’s] opinions because they are consistent both with Claimant’s testimony at the 26 hearing and with [the physician’s] own extensive treatment notes.” Burrell v. Colvin, 775 27 F.3d 1133, 1140 (9th Cir. 2014). 28 /// -4- An “ALJ need not accept a treating 1 If the treating physician’s opinion is contradicted by another doctor, the ALJ still 2 cannot reject the treating physician’s opinion unless she provides “specific and legitimate 3 reasons supported by substantial evidence in the record.” Lester, 81 F.3d at 831 (internal 4 quotations omitted). “Sheer disbelief is no substitute for substantial evidence,” and thus 5 the ALJ must specify what evidence she is relying on to reject the treating physician’s 6 opinion. Benecke v. Barnhart, 379 F.3d 587, 594 (9th Cir. 2004). “The opinion of a 7 nonexamining physician cannot by itself constitute substantial evidence that justifies the 8 rejection of the opinion of either an examining physician or a treating physician.” Lester, 9 81 F.3d at 831. The ALJ may cite to diagnostic test results, contrary reports from 10 examining physicians, and “testimony from the claimant that conflicted with her treating 11 physician’s opinion” to provide specific and legitimate reasons for rejecting the opinion 12 of a treating physician. Id. at 831. 13 If it is determined that an ALJ made an error while considering the weight of a 14 treating physician’s opinion, the next step is to determine whether the error was 15 prejudicial. See Carmickle v. Comm’r, Soc. Sec. Admin., 533 F.3d 1155, 1162 (9th Cir. 16 2008) (applying the harmless error standard after determining that two of the ALJ’s 17 reasons supporting his adverse credibility finding were invalid). Ninth Circuit precedents 18 “do not quantify the degree of certainty needed to conclude that an ALJ’s error was 19 harmless.” Marsh v. Colvin, 792 F.3d 1170, 1173 (9th Cir. 2015). The general rule is that 20 an error is harmless where a court can “conclude from the record that the ALJ would 21 have reached the same result absent the error.” Molina v. Astrue, 674 F.3d 1104, 1115 22 (9th Cir. 2012). Furthermore, “the more serious the ALJ’s error, the more difficult it 23 should be to show the error was harmless.” Id. 24 1. Dr. Drachler 25 On April 29, 2013, Dr. Drachler, Ms. Scholin’s treating pulmonologist, filled out a 26 checkbox questionnaire in which he concluded that Ms. Scholin was not able to sustain a 27 normal work position due to the functional limitations caused by her pulmonary 28 -5- 1 conditions.4 (Tr. 1414.) Dr. Drachler found that Ms. Scholin could not sit or stand for 2 more than an hour at a time during an eight hour work day. (Id.) She also could not lift 3 or carry more than five pounds at a time, and her symptoms were likely to cause frequent 4 interruptions throughout her work day. (Tr. 1412–13.) Ultimately, Dr. Drachler opined 5 that Ms. Scholin’s conditions would require her to be absent from work more than three 6 times a month. (Tr. 1413.) The ALJ rejected the opinion of Dr. Drachler because the 7 ALJ found that 1) the claimant did not see Drachler regularly, 2) Drachler relied too 8 heavily on the claimant’s subjective reports of symptoms, 3) Drachler’s findings were 9 inconsistent with the claimant’s “admitted daily activities,” and 4) Drachler’s findings 10 were contradicted by the opinions of other examining and nonexamining physicians for 11 the state agency. (Tr. 33–34.) 12 Drachler’s findings were contradicted by the state agency physicians, and thus the 13 ALJ needed to provide “specific and legitimate reasons supported by substantial evidence 14 in the record.” Lester, 81 F.3d at 831 (internal quotations omitted). However, the fact 15 that his opinion was contradicted by the state agency physicians “cannot by itself 16 constitute substantial evidence that justifies the rejection of the opinion of either an 17 examining physician or a treating physician.” Id. 18 The ALJ supported her reasoning by other substantial evidence in the record, and 19 thus she did not err in discrediting Dr. Drachler’s findings. 20 claimant’s treating physician for her asthma and COPD for over six years. (Tr. 1534.) 21 However, the ALJ noted that his records indicate that his interactions with Scholin were 22 intermittent and that there were long lapses in treatment, (Tr. 29, 833.) Frequency of 23 examination is a valid factor to consider in determining how much weight to give a 24 medical opinion. See 20 C.F.R. 416.927(c)(2)(ii) (“Generally, the longer a treating 25 source has treated you and the more times you have been seen by a treating source, the 26 more weight we will give to the source’s medical opinion.”). The ALJ further notes that Dr. Drachler was the 27 4 28 Just a month after Dr. Drachler completed his assessment and determined that Ms. Scholin was severely limited, Ms. Scholin told mental health providers that she was the primary caretaker of her fiancé’s parents. (Tr. 1451.) -6- 1 while she rarely met with Dr. Drachler, “[t]he claimant was regularly treated through her 2 primary care physician for acute exacerbations of COPD and, despite these exacerbations 3 she continued smoking cigarettes.” (Tr. 29.) Dr. Drachler notes in January of 2012 that 4 Ms. Scholin quit smoking “about 6 weeks ago.” (Tr. 831.) Yet Ms. Scholin herself 5 testified at the hearing before the ALJ that she didn’t actually quit smoking until “almost 6 a month” prior to the hearing in 2014. (Tr. 49, 60.) To the extent that Dr. Drachler relied 7 on Ms. Scholin’s assertion that she quit smoking in 2012 to form his opinions regarding 8 her limitations in 2013, he relied on information that is contrary to the record—with Ms. 9 Scholin’s own sworn testimony—and the ALJ did not err in considering this 10 inconsistency. See Lester, 81 F.3d at 831 (stating that an ALJ may rely on “contrary 11 reports from examining physicians, and on testimony from the claimant that conflicted 12 with her treating physician's opinion” to discredit a treating physician”); Morgan v. 13 Comm’r of Soc. Sec. Admin., 169 F.3d 595, 601 (9th Cir. 1999) (ALJ may consider 14 whether the claimant’s activities are inconsistent with the limitations outlined in a 15 treating physician’s opinion); Magallanes v. Bowen, 881 F.2d 747, 751 (9th Cir. 1989) 16 (explaining that an ALJ may meet the burden of providing specific, legitimate reasons 17 “by setting out a detailed and thorough summary of the facts and conflicting clinical 18 evidence, stating his interpretation thereof, and making findings.” (internal quotations 19 and citations omitted)). 20 the objective medical record are also valid factors to weigh when considering how much 21 weight to assign to the treating physician’s opinion. See Lester, 81 F.3d at 831 22 (contradictions between the medical evidence and the treating physician’s opinion is a 23 valid consideration); 20 C.F.R. § 416.927(c)(4) (“Generally, the more consistent a 24 medical opinion is with the record as a whole, the more weight we will give to that 25 medical opinion.”) The ALJ cited to medical records reflecting Scholin’s pulmonary 26 function testing, which demonstrated “moderately severe airway obstruction” in October 27 2012 had improved in both December 2012 and October 2013 to show only “moderate 28 obstruction.” (Tr. 29.) These inconsistences are valid considerations, and the ALJ Inconsistencies between the treating physician’s opinion and -7- 1 provided sufficient evidence from the record to support her assertions. 2 The ALJ also discredited Drachler’s opinion by stating that his opinion was 3 “unsupported by the claimant’s admitted daily activities.” (Tr. 33.) Among those daily 4 activities the ALJ found that Ms. Scholin was the primary caregiver for her fiancé’s 5 disabled parents with whom she resided. (Tr. 31, 32, 902, 1451.) In making this finding, 6 the ALJ cited to Ms. Scholin’s mental health care treatment notes with Terros from 7 November 2011 and May 2013, in which Ms. Scholin told her counselor that she lived 8 with her fiancé and was the primary caregiver for his disabled parents. (Tr. 902, 1451). 9 Further, as the ALJ noted, in her function report filled out in December 2011 Ms. Scholin 10 identified herself as a caregiver for Terry and John Ruth—presumably her fiancé’s 11 parents—for whom she made appointments and sometimes prepared lunch and dinner. 12 (Tr. at 302).5 13 independently, utilize public transportation, prepare simple meals, do laundry, go out 14 alone, shop outside the home on a weekly basis, pay bills, count change, handle a savings 15 account and use a checkbook indicated that Scholin was not as limited as the limitations 16 in Drachler’s opinion indicated.6 The ALJ further noted that “[t]he physical and mental 17 capabilities necessary to performing many of the[se] tasks . . . replicate those necessary 18 for obtaining and maintaining employment.” (Tr. at 32). The ALJ noted that this activity as well as her ability to drive 19 Inconsistencies between a claimant’s admitted daily activities and a treating 20 physician’s opinion is an appropriate factor to consider while determining how much 21 weight to give a treating physician’s opinion. See Morgan, 169 F.3d at 601 (favorably 22 5 23 24 25 26 In her hearing testimony Ms. Scholin denied providing care for the disabled parents of her fiancé. Rather she testified that she stayed in her room and had provided no services or work since 2007. (Tr. at 57–58). Yet the ALJ was entitled to rely on the Claimant’s treatment records and her function report, both of which were admitted in evidence, in finding to the contrary. Given these records, the ALJ had an adequate evidentiary basis on which to reject Ms. Scholin’s testimony that she was not the primary caregiver to her fiancé’s parents. 6 27 28 The ALJ included other activities that Scholin participated in on a daily basis, including watching movies, grooming herself, and spending time with others. (Tr. 32.) However, the Court does not find these activities to be indicative of an ability to work or contradictory with Drachler’s finding of disability. See generally Garrison v. Colvin, 759 F.3d 995, 1014–15 (9th Cir. 2014). -8- 1 referring to the ALJ’s consideration of the inconsistencies between the treating 2 physician’s findings of “marked limitations” and the claimant’s admitted activities). 3 Here, the ALJ noted Scholin’s daily activities and their inconsistency with Scholin’s 4 alleged medical impairments early in her opinion. (Tr. 32.) 5 daily activities were inconsistent with the “severe physical and mental impairments” 6 reflected in parts of her medical record, (Id.), and further found them as a basis for 7 discounting Dr. Drachler’s opinion. 8 unsupported by the claimant’s admitted activities of daily living.”).) Therefore, the ALJ 9 did not err in considering the inconsistencies between Scholin’s daily activities and 10 The ALJ found that these (See Tr. 33 (“Moreover, this opinion remains Drachler’s findings while determining how much weight to give his opinion. 11 Based on the present record this Court cannot conclude, however, that the ALJ 12 adequately supported her assertion that Drachler relied too heavily on the claimant’s 13 subjective reports. “An ALJ may reject a treating physician’s opinion if it is based to a 14 large extent on a claimant’s self-reports that have been properly discounted as 15 incredible,” but this generally applies where there is “little independent analysis or 16 diagnosis.” Tommasetti v. Astrue, 533 F.3d 1035, 1041 (9th Cir. 2008). 17 Tommasetti, the record in this case reflects that Scholin was diagnosed with asthma and 18 COPD, which were verified through diagnostic tests beyond the claimant’s self-reported 19 symptoms. (Tr. 429–433, 515–16, 519, 840–41, 1535–46.) Further, the reports indicate 20 at the least that she suffered at least some episodes of “acute COPD exacerbation.” (Tr. 21 429–433.) 22 Scholin’s self-reports while forming his medical opinion when there are at least a few 23 verified instances of “acute COPD exacerbation” supported by the record. Unlike It was therefore improper to assert that Drachler relied too heavily on 24 Even so, however, that error was not prejudicial. The ALJ relied on other proper 25 evidence in the record to find that Drachler’s medical opinion should be given little 26 weight. Specifically, she noted that Scholin did not see Dr. Drachler frequently, that Ms. 27 Scholin did not keep treatment appointments with Dr. Drachler, that she ignored 28 treatment advice and continued smoking, and that Scholin’s daily activities, including -9- 1 being the principal caregivers for her fiancé’s parents, were inconsistent with his 2 findings. (Tr. 33.) Given that the ALJ had other legitimate reasons for discrediting 3 Drachler’s medical opinion, this Court can conclude from the record that the result was 4 unchanged by the ALJ’s error. Molina, 674 F.3d at 1115. The ALJ’s error in asserting 5 that Drachler relied too heavily on Scholin’s self-reports is therefore harmless, and does 6 not merit a remand. 7 2. Dr. Monroe 8 Dr. Monroe filed out a checkbox questionnaire opining that Ms. Scholin cannot sit 9 or stand for more than an hour during an eight-hour work day and is essentially precluded 10 from obtaining employment due to her medical conditions, specifically her chronic 11 dermatitis and COPD. (Tr. 1030, 1032.) Dr. Monroe also found that Scholin cannot lift 12 or carry more than five pounds at a time. (Tr. 1032.) The ALJ discredited the opinion of 13 Scholin’s primary care physician, Dr. Monroe, because she found that 1) the opinion that 14 Scholin was disabled due to dermatitis, COPD and asthma was unsupported by the 15 medical evidence of record, including the physician’s own treating notes, 2) his opinion 16 was internally inconsistent and 3) the course of treatment suggested by Dr. Monroe was 17 inconsistent with his description of Scholin’s limitations. (Tr. 33.) 18 In rejecting Scholin’s claim that she was disabled by her dermatitis, the ALJ 19 properly noted that the objective medical record as well as Scholin’s activities were 20 inconsistent with his finding of severe limitations. See Lester, 81 F.3d at 831 (explaining 21 that “conflict with testimony from the claimant himself and with medical reports 22 contained in the record” is a valid reason for rejecting a treating physician’s medical 23 opinion). The objective medical record indicated that Scholin’s medical conditions 24 improved under treatment, to the point where her conditions did not severely limit her 25 behavior or activities. For example, Scholin’s markedly elevated IgE level of above 6000 26 that resulted in her diagnosis of JOB syndrome decreased to 4,500 under appropriate 27 care, (Tr. at 30, 34, 890, 1018). The ALJ further noted that although Scholin denied any 28 adverse side effects from her dermatitis medication, she was non-compliant with her - 10 - 1 treatment regimen, a choice that is at odds with an individual suffering from severely 2 limiting medical conditions. (Tr. at 30, 34, 882, 1020, 1023.) And that, further, Ms. 3 Scholin failed to attend scheduled appointments which resulted in a gap of treatment 4 from May 12 through January 2013. (Tr. 1403.); see also 20 C.F.R. § 416.927(c)(2) 5 (listing “[l]ength of the treatment relationship and the frequency of examination” as valid 6 factors to consider when weighing a treating physician’s testimony). 7 objective medical record as well as Scholin’s repeated decisions not to follow her 8 treatment regime are at odds with Dr. Monroe’s findings, and inconsistency within the 9 record is a valid consideration for the ALJ to weigh when determining how much weight 10 to assign to a treating physician’s medical opinion. See Andrews v. Shalala, 53 F.3d 11 1035, 1043 (9th Cir. 1995) (inconsistencies in the record and a treating physician’s 12 findings are valid reasons for discrediting a treating physician’s opinion). In sum, both the 13 The presence of discrepancies between a treating physician’s treatment notes and 14 his medical assessment is a valid reason for discrediting his opinion. See Bayliss v. 15 Barnhart, 427 F.3d 1211, 1216 (9th Cir. 2005) (permitting an ALJ to discredit a treating 16 physician’s opinion based on contradictions between his findings and his treatment 17 notes). To the extent that the ALJ limits her acceptance of Dr. Monroe’s opinion based 18 on its inconsistency with his own treatment notes, she does note that “treating physicians 19 consistently observed that she appeared well, alert, and in no acute distress. . . . As well, 20 physical examinations were typically fairly unremarkable.” (Tr. 30, 736, 741, 743, 748, 21 752, 754, 1203, 1212, 1215, 1223, 1225, 1477, 1480, 1488, 1490.) In making this 22 observation the ALJ cited to Dr. Monroe’s treating notes from 2011 onward which in fact 23 reflect no serious malady from claimant. Rather, although she now claims disability from 24 2005 based on her COPD, she consults Dr. Monroe in 2011 for minor matters in which 25 her functionality seems to be reaffirmed, and Dr. Monroe routinely notes that she is in no 26 apparent distress (“nad”). (See, e.g. Tr. 730, 736, 748, 752, 754, 757, 1212, 1215, 1223, 27 1225, 1477, 1480, 1488, 1490.) 28 finding of severe limitation, and the ALJ properly rejected his opinion based upon them. These records are inconsistent with Dr. Monroe’s - 11 - 1 As it pertains to the COPD and asthma, the ALJ rejected Scholin’s claim that she 2 was disabled by her COPD and asthma for the reasons set forth in her decision and 3 reviewed in more complete detail above. (Tr. at 29, 33–34.) 4 However, based on the record currently before the Court, the ALJ did not 5 adequately support her assertion that the course of treatment suggested by Dr. Monroe 6 was inconsistent with his description of Scholin’s limitations. (Tr. 33.) It is unclear 7 exactly what the ALJ meant by asserting that Dr. Monroe did not suggest a course of 8 treatment consistent with the claimant’s alleged limitations: in the record, Dr. Monroe’s 9 assessment lists several medications taken by the claimant, as well as their side effects. 10 (Tr. 1034.) While the ALJ did go through the medical record in detail earlier in her 11 opinion, she did not explain why the medications assigned by Dr. Monroe and listed in 12 his assessment were inconsistent with Scholin’s limitations, or what treatment “one 13 would expect for a totally disabled individual.” (Tr. 28.) Rather, the only support given 14 to bolster this statement is a general citation to Dr. Monroe’s assessment. (Tr. 33.); See 15 Thomas v. Barnhart, 278 F.3d at 954 (“Substantial evidence is relevant evidence which, 16 considering the record as a whole, a reasonable person might accept as adequate to 17 support a conclusion.”).7 Dr. Monroe did prescribe a course of treatment to Scholin, and 18 in the absence of further explanation, it is unclear why his course of treatment was 19 inconsistent with his finding of severe limitation. Therefore, the ALJ erred by failing to 20 provide adequate evidence for relying on this factor, even though it could be a valid 21 consideration when adequately explained. Lester, 81 F.3d at 831 22 Yet the ALJ did provide other substantial evidence to support other specific 23 and legitimate reasons for discrediting Dr. Monroe’s opinion, and thus this error was not 24 prejudicial. 25 specifically the claimant’s activities and the objective medical evidence. The ALJ also 26 properly explained that Dr. Monroe’s assessment was internally inconsistent because it As explained above, the ALJ relied on inconsistencies in the record, 27 7 28 In any event much of Ex. 25F, to which the ALJ generally cites to support this insufficiently explained statement, is not legible and some of the pages are entirely blank. (Tr. 1024–1040.) - 12 - 1 asserted that the claimant is “incapable of even [a] low stress” work environment and yet 2 also “capable of [a] low stress” work environment.” (Tr. 33, 1036.) The presence of 3 internal inconsistencies within a physician’s opinion is a legitimate reason for 4 discrediting their opinion.8 Ghanim v. Colvin, 763 F.3d 1154, 1161 (9th Cir. 2014) (“A 5 conflict between treatment notes and a treating provider's opinions may constitute an 6 adequate reason to discredit the opinions of a treating physician or another treating 7 provider.”). Because the ALJ provided specific and legitimate reasons to discredit Dr. 8 Monroe’s opinion, that were supported by substantial evidence in the record, the Court 9 can determine that the errors did not alter the ALJ’s ultimate determination, and thus the 10 ALJ’s other error in weighing Dr. Monroe’s testimony was not prejudicial. Molina, 674 11 F.3d at 1115. 12 3. Dr. Ebner 13 The ALJ dismissed the opinion of Dr. Ebner, the claimant’s treating dermatologist, 14 because he claimed to treat the claimant monthly and reported “poorly controlled 15 symptoms that would result in an inability to work,” but failed to mention the claimant’s 16 “noncompliance or lapse in care for almost one year.” (Tr. 34.) The ALJ also discredited 17 Dr. Ebner’s opinion because it was conclusory and unsupported by the record. (Tr. 34.) 18 The ALJ properly discredited Dr. Ebner’s opinion due to his failure to note that 19 the claimant neglected to keep her appointments for almost a year, and that when she did 20 take her medication, she improved. (Tr. 34.) Impairments that can be treated effectively 21 through treatment are not grounds for disability. Warre v. Comm’r of Soc. Sec. Admin., 22 439 F.3d 1001, 1006 (9th Cir. 2006). Furthermore, Ebner’s assessment, detailing poorly 23 controlled symptoms that preclude work, is arguably inconsistent with his earlier reports 24 of success with medication, particularly considering Ebner’s failure to mention his 25 patient’s noncompliance with his treatment plan in his assessment. (Tr. 34.) Because this 26 8 27 28 Scholin contests this interpretation of Dr. Monroe’s medical opinion and instead provides her own, but interpretation of the medical record is within the province assigned to the ALJ, not this Court. Therefore, because the “the evidence can support either outcome,” this Court accepts the interpretation provided by the ALJ. Matney, 981 F.2d at 1019. - 13 - 1 is a rational interpretation of the record, “we must defer to the ALJ’s conclusion.” 2 Batson, 359 F.3d at 1198. 3 The ALJ also noted that Ebner’s assessment was “quite conclusory” and provided 4 “very little explanation” for his reasoning. 5 physician's opinion which is ‘brief and conclusionary in form with little in the way of 6 clinical findings to support [its] conclusion.’ ” Magallanes, 881 F.2d at 751 (quoting 7 Young v. Heckler, 803 F.2d 963, 968 (9th Cir.1986)). The ALJ noted the inconsistencies 8 between Dr. Ebner’s “check-box” assessment and treating notes, and thus this is not a 9 situation where the “record supports [the physician’s] opinions because they are 10 consistent both with Claimant's testimony at the hearing and with [the physician’s] own 11 extensive treatment notes.” Burrell, 775 F.3d at 1140. Therefore, the ALJ properly 12 provided specific and legitimate reasons for discrediting Dr. Ebner’s opinion. 13 4. An “ALJ need not accept a treating Dr. Brown 14 The ALJ discredited Dr. Brown, Scholin’s treating psychiatrist, because she 15 determined that his findings were “quite conclusory” and “unsupported by this 16 physician’s own [clinical] findings,” including Scholin’s mental status examinations and 17 the Global Assessment of Functioning (“GAF”) scores. (Tr. 33.) 18 longitudinal review of Plaintiff’s mental health records and noted with citations to the 19 record that “the claimant has not offered the same complaints to treating professionals as 20 she has in connection with this application.” (Tr. 30.) The ALJ noted for example that 21 she avoided people due to her skin condition not her anxiety, and related to other treating 22 physicians that her problems are primarily environmentally related. (Id.) Treating notes 23 through the period reflected that she had no evidence of anxiety or depression and that 24 she maintained compliance with psychotropic medication and that she denied any side 25 effects. (Tr. 30) Ms. Scholin claimed that her mental health was stable in 2012, and she 26 often failed to attend follow-up appointments, “which suggests that her symptoms were 27 not as severe as alleged.” (Tr. 31; 792–793.) The ALJ also noted that while “the 28 claimant’s symptoms increased for brief periods, this was attributed to stress and - 14 - The ALJ did a 1 relationship issues.” (Tr. 31.) This finding is reflected in the ALJ’s limitation of the 2 claimant to “lower stress jobs.” (Tr. 27.) 3 The ALJ properly discredited Dr. Brown’s testimony because it was contrary to 1) 4 Dr. Brown’s mental status examinations and 2) the GAF scores of record. The ALJ noted 5 that Dr. Brown’s mental status examinations of the claimant were “fairly unremarkable.” 6 (Tr. 33, 1045–46, 1290–91.) Earlier in her opinion, she also noted that Scholin’s GAF 7 scores ranged from 50 to 55 ranging from some mental impairment to moderate 8 symptoms of impairment. (Tr. 31.) The ALJ noted that GAF scores are somewhat 9 limited due to their global nature, but they remain a relevant factor in determining a 10 claimant’s mental health. (Id.) These inconsistencies, when coupled with Brown’s 11 failure to “provide any specific work limitations,” constituted specific and legitimate 12 reasons for discrediting Brown’s opinion, and therefore the ALJ did not err in doing so. 13 14 B. The ALJ Provided Specific, Clear and Convincing Reasons for Discrediting Scholin’s Testimony 15 Once a claimant establishes that objective medical evidence illustrates an 16 impairment that could reasonably cause the symptoms alleged, “and there is no evidence 17 of malingering, ‘the ALJ can reject the claimant’s testimony about the severity of her 18 symptoms only by offering specific, clear and convincing reasons for doing so.’ ” 19 Garrison, 759 F.3d at 1014–15 (quoting Smolen v. Chater, 80 F.3d 1273, 1282 (9th Cir. 20 2006)). This is the most stringent standard required in social security cases. Id. In 21 determining whether the claimant’s testimony regarding her symptoms is credible, the 22 ALJ can consider a multitude of factors, including: 27 (1) ordinary techniques of credibility evaluation, such as the claimant’s reputation for lying, prior inconsistent statements concerning the symptoms, and other testimony by the claimant that appears less than candid; (2) unexplained or inadequately explained failure to seek treatment or to follow a prescribed course of treatment; and (3) the claimant’s daily activities. 28 Smolen v. Chater, 80 F.3d at 1284. The ALJ can also consider “the claimant’s prior work 23 24 25 26 - 15 - 1 record . . . and observations by treating and examining physicians and third parties about 2 the claimant’s symptoms and their effects.” Id. at 1285. 3 The ALJ in this case fully explained her reasoning for finding the claimant’s 4 testimony “not entirely credible.” (Tr. 28.) The ALJ provided a detailed summary of the 5 Ms. Scholin’s medical file, including the objective laboratory findings as well as her 6 treating physicians’ observations that were inconsistent with Ms. Scholin’s symptom 7 testimony and demonstrated favorable response to Scholin’s compliance with the 8 Doctor’s prescribed treatment, when she chose to follow it. (Tr. 28–31.) The ALJ noted 9 that despite Scholin’s testimony asserting debilitating COPD/asthma and diabetes, 10 Scholin told her treating physicians that she did not check her blood sugar anymore and, 11 despite having told her doctor’s otherwise, she testified that she continued to smoke up 12 until a few weeks before her January 2014 hearing. (Tr. 29.)9 This sort of inconsistency 13 between the claimant’s compliance with her treatment regimen and her testimony is 14 acceptable for the ALJ to consider during the credibility analysis. Smolen, 80 F.3d at 15 1284. Likewise, the ALJ noted that Scholin “failed to attend scheduled appointments, 16 which resulted in a gap of treatment from May 2012 until January 2013” for her skin 17 disorder. (Tr. 30.) The ALJ further noted large gaps in the treatment of her diabetic 18 condition, (Tr. 29), her lung disorders, (Tr. 29), and her mental health, (Tr. 30–31). 19 These large and unexplained gaps in treatment were inconsistent with the level of 20 discomfort Scholin alleged, and they did “not work in the claimant’s favor” during the 21 ALJ’s credibility analysis. (Tr. 30.) 22 23 24 25 26 27 28 9 In her opening brief Ms. Scholin reiterates the false assertion—apparently also made to Dr. Drachler in early 2012—that she quit smoking sometime in December 2011. (See Doc. 12 at 3 (“When next seen on January 31, 2012, Ms. Scholin had quit smoking about six weeks earlier”)); see also Dr., Drachler’s February 1, 2012 letter to Dr. Monroe (Tr. 831 (“She quit smoking about six weeks ago”).) Nevertheless at her hearing on January 3, 2014 Ms. Scholin testified in response to a question by the ALJ that she had not smoked since December 9, 2013, “so almost for a month” prior to the hearing. (Tr. 60.) Thus, it is not clear that Ms. Scholin ever quit smoking. Despite her earlier statement to Dr. Drachler, the ALJ certainly had the ability based on Ms. Scholin’s hearing testimony to find that Ms. Scholin had not quit smoking since December 2013. Based on that same testimony, the Court rejects the assertion in Scholin’s brief that she quit smoking in December 2011. - 16 - 1 The ALJ also relied on “observations by treating and examining physicians” in 2 making her decision. Id. at 1285. For example, the ALJ cited to several entries in the 3 record and noted that contrary to Scholin’s testimony, her treating physicians’ notes 4 “consistently observed that she appeared well, alert, and in no acute distress” during her 5 examinations. (Tr. 30.) The ALJ noted that this “observation is only one among many 6 being relied upon in reaching a conclusion,” but the “healthy and comfortable appearance 7 demonstrated by the claimant is in sharp contrast” to the debilitating discomfort she 8 alleges. (Tr. 20.) The ALJ also cited to an examining physician, Dr. Bowen, who “did 9 not believe that the claimant was being entirely honest” to him during his exam. (Tr. 32.) 10 Dr. Bowen’s assessment specifically noted that Ms. Scholin “was very dramatic and 11 seemed to be embellishing,” and questioned Ms. Scholin’s honesty while responding to 12 his questions. (Tr. 816.) Relying on the observations of an examining physician is an 13 acceptable method of determining a claimant’s credibility, and therefore the ALJ did not 14 err in considering Dr. Bowen’s notes while assessing Ms. Scholin’s credibility. Smolen 15 v. Chater, 80 F.3d at 1285. 16 The ALJ noted that Scholin’s reported daily activities were inconsistent with her 17 testimony. “ALJs must be especially cautious in concluding that daily activities are 18 inconsistent with testimony about pain, because impairments that would unquestionably 19 preclude work and all the pressures of a workplace environment will often be consistent 20 with doing more than merely resting in bed all day.” Garrison, 759 F.3d at 1016. 21 However, in this case the ALJ found that Scholin’s reported abilities to perform the 22 specific daily duties she mentioned, including acting as a care giver for her fiancé’s 23 parents, “replicated those necessary for obtaining and maintaining employment.” (Tr. 24 32.) Furthermore, the ALJ also noted that Scholin’s daily activities often shifted. (Tr. 25 31.) For example, during the hearing she testified that she stays in her room at all times, 26 but the record illustrates that is not so, as she has also reported that she serves as the 27 caregiver for her fiancé’s parents. (Tr. 31.) Inconsistencies such as these are relevant 28 inquiries into the claimant’s credibility, and the ALJ did not err in considering them or in - 17 - 1 the conclusions she reached because of them. 2 C. 3 “A claimant establishes a prima facie case of disability by showing that his 4 impairments prevent him from doing his previous job. The burden then shifts to the 5 Secretary to show that the claimant can do other substantial gainful activity considering 6 his age, education, and work experience.” DeLorme v. Sullivan, 924 F.2d 841, 849–50 7 (9th Cir. 1991) (internal citations omitted). If an ALJ chooses to rely on a vocational 8 expert when making this determination, “the hypothetical [posed to the vocational expert] 9 must consider all of the claimant’s limitations.” Light v. Soc. Sec. Admin., 119 F.3d 789, 10 793 (9th Cir. 1997), as amended on reh’g (Sept. 17, 1997) (quoting Andrews v. Shalala, 11 53 F.3d 1035, 1044 (9th Cir.1995)). 12 claimant’s limitations. . . . the expert’s testimony has no evidentiary value to support a 13 finding that the claimant can perform jobs in the national economy.” DeLorme, 924 F.2d 14 at 850. 15 claimant adequately captures restrictions related to concentration, persistence, or pace 16 where the assessment is consistent with restrictions identified in the medical testimony.” 17 Stubbs-Danielson v. Astrue, 539 F.3d 1169, 1174 (9th Cir. 2008). The ALJ Did Not Err in Relying on Vocational Testimony “If the hypothetical does not reflect all the However, the Ninth Circuit recently clarified that that “an ALJ's assessment of a 18 The ALJ found that “with regard to concentration, persistence, or pace, the 19 claimant has moderate difficulties.” (Tr. 26.) She further found that Scholin cannot 20 perform any past relevant work. (Tr. 35.) Therefore, the burden shifted “to the Secretary 21 to show that the claimant can do other substantial gainful activity considering [her] age, 22 education, and work experience.” 23 omitted). In finding that the claimant could perform other jobs in the national economy, 24 the ALJ relied on a vocational expert’s testimony. (Tr. 35.) The ALJ did not include all 25 of Scholin’s limitations, namely with regards to “concentration, persistence and pace,” in 26 the hypothetical she posed to the expert. (Tr. 73.) However, as in Stubbs-Danielson, 27 although the ALJ did not include the “restrictions related to concentration, persistence, or 28 pace,” she did include other limitations within her hypothetical that are “consistent with DeLorme, 924 F.2d at 849–50 (internal citations - 18 - 1 restrictions in the medical testimony.” Stubbs-Danielson, 539 F.3d at 1174. The ALJ’s 2 hypothetical stated that individual in question must be restricted to “lower stress” work 3 that is “simple, routine and repetitive,” and that involved only “occasional decision 4 making.” (Tr. 73.) This is in accord with the medical testimony in the record. For 5 example, the state agency physicians that met with Scholin did not note any mental 6 limitations in regards to her concentration. (Tr. 809–819, 1109–1112.) Although Dr. 7 Brown noted that Scholin struggled with “maintaining concentration for extended 8 periods,” (Tr. 1389), the ALJ properly discredited his medical opinion, and thus it did not 9 carry controlling weight in her analysis. Therefore, as in Stubbs-Danielson, the “ALJ's 10 assessment of a claimant adequately captures restrictions related to concentration, 11 persistence, or pace where the assessment is consistent with restrictions identified in the 12 medical testimony,” and thus the ALJ did not rely on flawed vocational expert testimony. 13 Stubbs-Danielson, 539 F.3d at 1174. 14 CONCLUSION 15 While the ALJ made minor errors while determining the weight she should assign 16 to the treating physicians in this case, none of these were prejudicial. Therefore, the 17 ALJ’s decision is affirmed. 18 19 20 IT IS THEREFORE ORDERED that the ALJ’s decision is AFFIRMED. The Clerk of Court is directed to terminate and enter judgment accordingly. Dated this 6th day of March, 2017. 21 22 23 Honorable G. Murray Snow United States District Judge 24 25 26 27 28 - 19 -

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