Glenn v. Colvin

Filing 13

ORDER - IT IS ORDERED that the final decision of the Commissioner of Social Security is affirmed. The Clerk is directed to terminate this action. (See document for further details). Signed by Judge David G Campbell on 10/2/17. (SLQ)

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1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 George Glenn, Jr., No. CV-16-04268-PHX-DGC Plaintiff, 10 11 v. 12 Commissioner Administration, ORDER 13 of Social Security Defendant. 14 15 Plaintiff George Glenn seeks review under 42 U.S.C. § 405(g) of the final decision 16 of the Commissioner of Social Security which denied his disability insurance benefits 17 under §§ 216(i) and 223(d) of the Social Security Act. Because the decision of the 18 Administrative Law Judge (“ALJ”) is supported by substantial evidence and is not based 19 on reversible legal error, the Commissioner’s decision will be affirmed. 20 I. Background. 21 Plaintiff is a 59 year-old male who previously worked as a warehouse supervisor. 22 A.R. 143, 167. On April 23, 2013, Plaintiff applied for disability insurance benefits, 23 alleging disability beginning May 12, 2012. 24 appeared with his attorney and testified at a hearing before the ALJ. A.R. 31-55. A 25 vocational expert also testified. A.R. 49-55. On June 11, 2015, the ALJ issued a decision 26 that Plaintiff was not disabled within the meaning of the Social Security Act. A.R. 15-25. 27 This became the Commissioner’s final decision when the Appeals Council denied 28 Plaintiff’s request for review. A.R. 1. A.R. 143-44. On April 15, 2015, he 1 II. Legal Standard. 2 The district court reviews only those issues raised by the party challenging the 3 ALJ’s decision. See Lewis v. Apfel, 236 F.3d 503, 517 n.13 (9th Cir. 2001). The court 4 may set aside the Commissioner’s disability determination only if the determination is 5 not supported by substantial evidence or is based on legal error. Orn v. Astrue, 495 F.3d 6 625, 630 (9th Cir. 2007). Substantial evidence is more than a scintilla, less than a 7 preponderance, and relevant evidence that a reasonable person might accept as adequate 8 to support a conclusion considering the record as a whole. Id. In determining whether 9 substantial evidence supports a decision, the court must consider the record as a whole 10 and may not affirm simply by isolating a “specific quantum of supporting evidence.” Id. 11 (internal citations and quotation marks omitted). As a general rule, “[w]here the evidence 12 is susceptible to more than one rational interpretation, one of which supports the ALJ’s 13 decision, the ALJ’s conclusion must be upheld.” Thomas v. Barnhart, 278 F.3d 947, 954 14 (9th Cir. 2002) (citations omitted). Harmless error principles apply in the Social Security 15 context. Molina v. Astrue, 674 F.3d 1104, 1115 (9th Cir. 2012). An error is harmless if 16 there remains substantial evidence supporting the ALJ’s decision and the error does not 17 affect the ultimate nondisability determination. Id. 18 The ALJ is responsible for resolving conflicts in medical testimony, determining 19 credibility, and resolving ambiguities. Andrews v. Shalala, 53 F.3d 1035, 1039 (9th Cir. 20 1995). In reviewing the ALJ’s reasoning, the Court is “not deprived of [its] faculties for 21 drawing specific and legitimate inferences from the ALJ’s opinion.” Magallanes v. 22 Bowen, 881 F.2d 747, 755 (9th Cir. 1989). 23 III. The ALJ’s Five-Step Evaluation Process. 24 To determine whether a claimant is disabled for purposes of the Social Security 25 Act, the ALJ follows a five-step process. 20 C.F.R. § 404.1520(a). The claimant bears 26 the burden of proof on the first four steps, and the burden shifts to the Commissioner at 27 step five. Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999). To establish disability, 28 the claimant must show that (1) he is not currently working, (2) he has a severe -2- 1 impairment, and (3) this impairment meets or equals a listed impairment or (4) his 2 residual functional capacity (“RFC”) prevents his performance of any past relevant work. 3 If the claimant meets his burden through step three, the Commissioner must find him 4 disabled. If the inquiry proceeds to step four and the claimant shows that he is incapable 5 of performing past relevant work, the Commissioner must show in the fifth step that the 6 claimant nonetheless is capable of other work suitable for his RFC, age, education, and 7 work experience. 20 C.F.R. § 404.1520(a)(4). 8 At step one, the ALJ found that Plaintiff meets the insured status requirements of 9 the Social Security Act through December 31, 2017, and that he has not engaged in 10 substantial gainful activity since May 12, 2012. A.R. 17. At step two, the ALJ found 11 that Plaintiff has the following severe impairments: lumbar degenerative disc disease 12 with radiculopathy status post surgery, degenerative disc disease of the thoracic spine, 13 status post cervical discectomy, knee osteoarthritis, diabetes, and obesity. 14 Although the ALJ acknowledged that the record contains evidence of hypertension and 15 gastritis, she found that these conditions are not severe impairments. A.R. 18. At step 16 three, the ALJ determined that Plaintiff does not have an impairment or combination of 17 impairments that meets or medically equals an impairment listed in Appendix 1 to 18 Subpart P of 20 C.F.R. Pt. 404. A.R. 18. At step four, the ALJ found that Plaintiff has 19 the RFC to perform light work, except that Plaintiff cannot operate foot controls with his 20 left foot. A.R. 18. The ALJ then concluded that, considering Plaintiff’s age, education, 21 work experience, and RFC, he is able to perform past relevant work as a warehouse 22 supervisor. A.R. 24-25. 23 IV. A.R. 17. Analysis. 24 Plaintiff argues that the ALJ’s decision is based on legal error. Doc. 10 at 1. 25 Specifically, Plaintiff argues that the ALJ (1) improperly discredited his symptom 26 testimony, (2) based her opinion on an incomplete and inaccurate review of the evidence, 27 and (3) improperly discredited the medical opinions of two treating physicians. Id. For 28 reasons stated below, the Court finds no reversible error. -3- 1 A. 2 In evaluating a claimant’s symptom testimony, the ALJ must engage in a two-step 3 analysis. First, the ALJ must determine whether the claimant presented objective medical 4 evidence of an impairment that could reasonably be expected to produce the symptoms 5 alleged. Garrison v. Colvin, 759 F.3d 995, 1014 (9th Cir. 2014). The claimant is not 6 required to show that her impairment could reasonably be expected to cause the severity 7 of the symptoms she has alleged, only that it could reasonably have caused some degree 8 of the symptoms. Id. Second, if there is no evidence of malingering, the ALJ may reject 9 the claimant’s symptom testimony only by giving specific, clear, and convincing reasons. 10 Id. at 1015. “This is not an easy requirement to meet: ‘The clear and convincing standard 11 is the most demanding required in Social Security cases.’” 12 Comm’r of Soc. Sec. Admin., 278 F.3d 920, 924 (9th Cir. 2002)).1 Symptom Testimony. Id. (quoting Moore v. 13 The ALJ summarized Plaintiff’s symptom testimony in her opinion: 14 At his hearing, the claimant testified that he is unable to walk or sit for extended periods due to bilateral knee pain, which is worse on the left, and back pain. The claimant stated that he only drives short distances. Moreover, the claimant testified that he has to lie down 2 to 3 times a day to stretch. He stated that he uses a recliner 2 to 3 times a day to raise his feet up for 15 to 20 minutes at a time. The claimant also reported he can lift 25 to 30 pounds but can only carry up to 15 pounds. Additionally, the claimant said that he cannot tie his shoes on his own and that his wife needs to put on his socks and shoes. In a function report, the claimant stated that he can only walk 100 yards at a time before he needs to rest. 15 16 17 18 19 20 21 A.R. 19 (internal citation omitted). 22 The ALJ determined that Plaintiff’s medically determinable impairments could 23 reasonably be expected to cause the alleged symptoms, but that his statements concerning 24 the intensity, persistence, and limiting effects of the symptoms were not entirely credible. 25 A.R. 19. Because the ALJ made no finding of malingering, she could discredit the 26 symptom testimony only with clear and convincing reasons. Garrison, 759 F.3d at 1015. 27 1 28 Defendant opposes the clear and convincing standard of review (Doc. 11 at 13 n.3), but the Ninth Circuit has held that defendant’s position “lacks any support in precedent and must be rejected,” Garrison, 759 F.3d at 1015 n.18. -4- 1 Plaintiff relies on Brown-Hunter v. Colvin, 806 F.3d 487 (9th Cir. 2015), to 2 challenge this credibility determination. In Brown-Hunter, the Ninth Circuit held that an 3 ALJ commits legal error by making a general credibility finding supported only by a 4 recitation of medical evidence. Id. at 489, 494. But that aspect of the Ninth Circuit’s 5 holding is distinguishable. Although the ALJ’s opinion could have been organized more 6 clearly to highlight its specific reasons, they are identified in the decision: (1) Plaintiff’s 7 relatively normal examination results, (2) Plaintiff’s non-compliance with medical advice 8 to lose weight and stop smoking, and (3) Plaintiff’s daily activities. A.R. 19-22. The 9 Court will address each of these reasons. 10 1. Relatively Normal Examination Results. 11 The Ninth Circuit has made clear that if “the claimant produces objective medical 12 evidence of an underlying impairment, an adjudicator may not reject a claimant’s 13 subjective complaints based solely on a lack of objective medical evidence to fully 14 corroborate the alleged severity of pain.” Bunnell v. Sullivan, 947 F.2d 341, 345 (9th Cir. 15 1991); Garrison, 759 F.3d at 1014 (a claimant need not produce “objective medical 16 evidence of the pain or fatigue itself, or the severity thereof”) (quoting Smolen, 80 F.3d at 17 1282). But an ALJ may rely on contradictory medical evidence to discredit symptom 18 testimony, so long as she “make[s] specific findings justifying [her] decision.” 19 Carmickle v. Comm’r, Soc. Sec. Admin., 533 F.3d 1155, 1161 (9th Cir. 2008). “‘General 20 findings are insufficient; rather, the ALJ must identify what testimony is not credible and 21 what evidence undermines the claimant’s complaints.’” Brown-Hunter, 806 F.3d at 493 22 (quoting Reddick v. Chater, 157 F.3d 715, 722 (9th Cir. 1998)). 23 As noted above, Plaintiff testified that his disability is related to bilateral knee pain 24 and back pain. 25 examinations, as reflected in the medical records, showed little or no evidence of 26 significant knee or back pain. A.R. 20-22. A.R. 19. The ALJ noted, however, that many of his physical 27 28 -5- 1 With respect to knee pain, the ALJ noted that Plaintiff was repeatedly able to squat 2 without difficulty during physical examinations, despite the fact that Plaintiff is obese.2 3 These findings were made in examinations in October 2012, November 2012, January 4 2013, May 2013, July 2013, October 2013, and February 2014. A.R. 21-22. In March 5 2013 and November 2014, Plaintiff had full range of motion in both knees without 6 warmth, erythema, or effusion present. A.R. 21-22. The ALJ noted that Plaintiff showed 7 persistent effusion and crepitation throughout the arc of motion in both knees in May 8 2015, but this was a different result from other exams. A.R. 22. The ALJ further noted 9 that Plaintiff had normal motor function and a steady gait in August 2012, January 2013, 10 May 2013, July 2013, and October 2013. A.R. 21-22. The October 2012 examinations 11 reflected that Plaintiff had a “minimally” antalgic gait with left leg avoidance, but this 12 finding was outweighed by the many instances noted by the ALJ where Plaintiff’s gait 13 and walking movements were normal. A.R. 21. 14 With respect to back pain, the ALJ noted that in May 2012 – about the time of 15 onset for Plaintiff’s alleged disability – an examination of Plaintiff showed normal 16 alignment and mobility of his neck and head, no spinal tenderness, normal alignment and 17 mobility of the spine, and a normal range of motion and strength in all extremities. 18 A.R. 20. In June 2012, no pain was elicited upon palpitation of the spine posteriorly. Id. 19 In August 2012, although extension of the lumbar spine was limited, Plaintiff had good 20 range of bending motion. A.R. 21. Plaintiff underwent a denervation of lumbar facet 21 joint nerves in late 2012, and showed some tenderness in October of that year. Id. 22 Nevertheless, toe and heel walking as well as a squat were performed without difficulty, 23 and Plaintiff had no significant limitation of lumbar spine range of motion. Id. Plaintiff 24 underwent a lumbar laminectomy at L4-5 in November 2012, and two weeks later 25 appeared in fair condition. Id. He had a mildly antalgic gait with limitation on truncal 26 motion and diminished sensation in his left leg, but he had good posture and equal 27 28 2 The ALJ noted that Plaintiff is obese with a body mass index ranging from 46 to 54, indicating class III obesity. A.R 22. -6- 1 weight-bearing and was able to perform toe and heel walking and a squat without 2 difficulty. Id. In July 2013, Plaintiff was able to get up quickly from a seated position, 3 had a normal-paced and normal-appearing gait, and was able to hop normally. Id. He 4 was also able to bend forward at the waist and could nearly touch his toes without pain. 5 Id. In October 2013, Plaintiff’s lumbar range of motion was restricted “voluntarily” and 6 he had tenderness of the lumbar spine and decreased sensation in his left foot. Id. But he 7 had a non-antalgic gait, toe and heel walking that were normal, and he performed a squat 8 without difficulty. A.R. 21-22. In February 2014, Plaintiff had an antalgic gait and 9 voluntarily reduced range of lumbar spine motion, but had normal muscle strength and 10 could perform a squat and rise without difficulty. A.R. 22. In September 2014, Plaintiff 11 had low back tenderness, but full range of extremity motion. Id. 12 In summarizing her findings, the ALJ noted that in most of these examinations 13 Plaintiff had a non-antalgic to “mildly” antalgic gait, maintained normal strength and 14 extremity motion, had no effusion in his knees, had good bilateral knee motion, was able 15 consistently to perform a squat and toe-heel walk, and required no assistive device such 16 as a cane or wheelchair. Id. 17 The Court views these findings as specific. The ALJ cited precise medical 18 examinations and the result of those examinations. Although the results clearly reflect 19 that Plaintiff has had some difficulty with his knees and back, the medical examinations 20 cited by the ALJ largely demonstrate that Plaintiff is able to function. Thomas, 278 F.3d 21 at 954 (“Where the evidence is susceptible to more than one rational interpretation, one 22 of which supports the ALJ’s decision, the ALJ’s conclusion must be upheld.”). The 23 Court finds this recitation of the evidenced by the ALJ to be a clear and convincing basis 24 for concluding that Plaintiff’s testimony regarding the severity of his symptoms was not 25 fully credible. 26 27 28 -7- 1 2. Non-Compliance with Medical Advice. 2 Social Security Ruling 96-7p counsels that a claimant’s symptom testimony may 3 be less credible “if the medical reports or records show that the individual is not 4 following the treatment as prescribed and there are no good reasons for this failure.” SSR 5 96-7p (July 2, 1996) (subsequently superseded, but still in effect at the time of the ALJ 6 decision). The ALJ reasoned that “the claimant did not follow his doctor’s advice to stop 7 smoking or lose weight, which is not entirely consistent with his allegation of disability.” 8 A.R. 22. This suggests that Plaintiff chose not to lose weight or stop smoking, but the 9 hearing testimony reflects that Plaintiff made failed attempts to lose weight (A.R. 37) and 10 reduced his smoking by approximately 50 percent (A.R. 38-39). Plaintiff attributed his 11 failure to lose weight to his general lack of mobility caused by his severe impairments. 12 A.R. 37. Absent more specific and clear reasoning, this is not a convincing reason to 13 discredit Plaintiff’s symptom testimony. 14 3. Daily Activities. 15 An ALJ may reject a claimant’s symptom testimony if it is inconsistent with the 16 claimant’s daily activities. See Burch v. Barnhart, 400 F.3d 676, 681 (9th Cir. 2005). 17 But “ALJs must be especially cautious in concluding that daily activities are inconsistent 18 with testimony about pain, because impairments that would unquestionably preclude 19 work and all the pressures of a workplace environment will often be consistent with 20 doing more than merely resting in bed all day.” Garrison, 759 F.3d at 1016. Thus, an 21 ALJ may use a claimant’s daily activities to discredit symptom testimony only if the 22 claimant “spend[s] a substantial part of his day engaged in pursuits involving the 23 performance of physical functions that are transferable to a work setting.” Orn, 495 F.3d 24 at 639 (emphasis added); Reddick, 157 F.3d at 722 (“Only if the level of activity were 25 inconsistent with Claimant’s claimed limitations would these activities have any bearing 26 on Claimant’s credibility.”). 27 28 The ALJ declared that Plaintiff’s daily activities support the RFC. A.R. 22. Specifically, the ALJ emphasized that Plaintiff (1) does not require assistance with -8- 1 bathing, grooming, dressing, or feeding; (2) walks and swims for exercise three times per 2 week; (3) babysits his 4-year-old granddaughter for three to four hours almost every day, 3 plays games with her, and gets her ready for school; (4) drives to the gym to perform leg 4 exercises; and (5) vacuums, mows the yard, prepares simple meals, and shops in stores. 5 A.R. 22-23. With the exception of the babysitting, however, the ALJ did not find that 6 Plaintiff spent a substantial part of his day engaged in these activities. See A.R. 22-23. 7 Moreover, she did not explain how they are inconsistent with Plaintiff’s claimed 8 limitations, but simply concluded that they “support[] the exertional limitations in the 9 residual functional capacity” and “suggest[] that he can perform work within the above 10 11 residual functional capacity.” A.R. 22-23. What is more, the same daily activities on which the ALJ relied actually reveal 12 significant limitations that are consistent with Plaintiff’s symptom testimony. 13 A.R. 37 (doctors recommended low-impact exercise, walking, and swimming to treat his 14 pain); A.R. 38 (walking any distance at all causes Plaintiff’s back to hurt); A.R. 38 15 (Plaintiff can drive, but “not long distances without stopping”); A.R. 38 (Plaintiff mows 16 the lawn only once every 10.5 days); A.R. 42 (Plaintiff goes to the gym as a substitute for 17 the physical therapy he cannot afford; he mostly stretches, but also does light-weight 18 exercises to strengthen his legs and back); A.R. 43 (Plaintiff has tried the treadmill for a 19 few minutes, but it aggravates his pain for about a week); A.R. 46 (Plaintiff can lift 25 to 20 30 pounds, so long as he does not need to pick it up off the ground); A.R. 46 (Plaintiff 21 cannot carry 25 to 30 pounds, but he might be able to carry 15 pounds comfortably if he 22 is careful); A.R. 47 (testimony suggests that Plaintiff’s babysitting consists of playing 23 computer games on his granddaughter’s iPad, feeding her, and getting her ready for 24 school). The Court accordingly finds that this is not a convincing reason to discredit 25 Plaintiff’s symptom testimony. 26 4. See Whether Error was Harmless. 27 Even if the ALJ commits error, that error is harmless if the Court can “conclude 28 from the record that the ALJ would have reached the same result absent the error.” -9- 1 Molina, 674 F.3d at 1115; Marsh v. Colvin, 792 F.3d 1170, 1172 (9th Cir. 2015). Here, 2 the ALJ presented three reasons to discredit Plaintiff’s symptom testimony. Two of those 3 reasons were not convincing. But the ALJ’s detailed review of substantial medical 4 evidence was sufficiently specific, clear, and convincing to provide an independent basis 5 for discrediting Plaintiff’s symptom testimony. The Court accordingly finds that any 6 error in the ALJ’s reliance on Plaintiff’s daily activities and non-compliance with medical 7 advice is harmless. 8 B. 9 Plaintiff argues that the ALJ erred in her treatment of two radiology studies. 10 Doc. 10 at 14. First, the ALJ did not mention a November 2013 electromyography 11 (“EMG”) study, which revealed “[c]hronic left L5 radiculopathy with evidence of 12 ongoing denervation.” Id.; A.R. 385. Second, the ALJ acknowledged that a January 13 2014 magnetic resonance imaging (“MRI”) study showed a “left L4-5 paracentral-neural 14 foraminal disc extrusion” (A.R. 20), but neglected to elaborate that this extrusion 15 “contacts and displaces the left S1 nerve root sleeve” (A.R. 512). Doc. 10 at 14. The 16 Court finds no reversible error. Review of Record Evidence. 17 The ALJ must make detailed findings in her opinion, but she need not address 18 evidence that is neither significant nor probative. Vincent v. Heckler, 739 F.2d 1393, 19 1394-95 (9th Cir. 1984) (per curiam); see Robinson v. Berryhill, 690 F. App’x 520 (9th 20 Cir. 2017). It is impractical for an ALJ to address every finding and every statement in 21 the record. An ALJ must simply consider the record as a whole and avoid selectively 22 focusing on only that evidence which supports the ALJ’s decision. See Garrison, 759 23 F.3d at 1017 & n.23. 24 Plaintiff contends that these omissions are significant because they highlight the 25 severity of his condition after his November 2012 surgery, which is something neither the 26 ALJ nor the state-agency physicians considered. Doc. 10 at 14-15. But this is inaccurate. 27 The ALJ and state-agency physicians did consider his condition after the surgery. The 28 ALJ opinion summarizes the post-surgery medical evidence at length, including the - 10 - 1 January 2014 MRI study. 2 physician, examined Plaintiff approximately eight to nine months after his surgery. 3 A.R. 310-317. 4 physician relied, at least in part, on Dr. Levinson’s findings. Doc. 10 at 16; see also 5 A.R. 59, 73 (both non-examining physicians received Dr. Levinson’s report). Plaintiff’s 6 theory of significance is therefore unpersuasive. A.R. 21-22. Dr. Levinson, the state-agency examining And Plaintiff concedes that at least one state-agency non-examining 7 Plaintiff likewise does not demonstrate the probative value of the omitted studies. 8 Plaintiff simply declares that the omission of the November 2013 EMG is “material” 9 because it supports the severity of his post-surgical condition. Doc. 10 at 14. Absent a 10 more clear explanation, the Court cannot find this study probative, especially where the 11 ALJ noted another EMG study with a similar result. A.R. 20. Plaintiff contends that Dr. 12 Gause relied on the January 2014 MRI study to conclude that Plaintiff has a “great deal 13 of low back pain” with intense burning and pain in the left foot. Doc. 10 at 14. This 14 misreads Dr. Gause’s records. Dr. Gause noted that the MRI revealed a protrusion that 15 impinges on the S1 nerve-root sleeve (A.R. 485), but only opined that this study 16 correlates with “what appears to be an S1 distribution in the left lower extremity” 17 (A.R. 486). Plaintiff instead styles Dr. Gause’s notes – on a previous page – regarding 18 his patient’s subjective complaints of pain as a medical opinion. A.R. 484. Because Dr. 19 Gause did not make a clear medical finding regarding the severity of Plaintiff’s pain, the 20 Court cannot find that this study is probative. 21 What is more, the ALJ’s recitation of medical evidence was extensive. A.R. 19- 22 22. And Plaintiff does not argue – beyond reciting a general rule statement – that the 23 omissions were part of a pattern of cherry-picking evidence that supported her 24 conclusion. See Doc. 10 at 17-19. For these reasons, the Court finds no reversible error 25 on this issue. 26 27 28 - 11 - 1 C. 2 Plaintiff argues that the ALJ improperly discredited the medical opinions of two 3 treating physicians: Jonathan Landsman, M.D., and Paul Gause, M.D. Id. at 19-21. The 4 Court finds no reversible error. 5 1. Discrediting Treating Physician Opinions Legal Standard. 6 The Commissioner is responsible for determining whether a claimant meets the 7 statutory definition of disability, and need not credit a physician’s conclusion that the 8 claimant is “disabled” or “unable to work.” 9 Commissioner generally must defer to a physician’s medical opinion, such as statements 10 concerning the nature or severity of the claimant’s impairments, what the claimant can 11 do, and the claimant’s physical or mental restrictions. § 404.1527(a)(2), (c). 20 C.F.R. § 404.1527(d)(1). But the 12 In determining how much deference to give a physician’s medical opinion, the 13 Ninth Circuit distinguishes between the opinions of treating physicians, examining 14 physicians, and non-examining physicians. See Lester v. Chater, 81 F.3d 821, 830 (9th 15 Cir. 1995). Generally, an ALJ should give the greatest weight to a treating physician’s 16 opinion and more weight to the opinion of an examining physician than a non-examining 17 physician. See Andrews, 53 F.3d at 1040-41; see also 20 C.F.R. § 404.1527(c)(2)-(6) 18 (listing factors to be considered when evaluating opinion evidence, including length of 19 examining or treating relationship, frequency of examination, consistency with the 20 record, and support from objective evidence). 21 If a treating or examining physician’s medical opinion is not contradicted by 22 another doctor, the opinion can be rejected only for clear and convincing reasons. Lester, 23 81 F.3d at 830 (citation omitted). Under this standard, the ALJ may reject a treating or 24 examining physician’s opinion if it is “conclusory, brief, and unsupported by the record 25 as a whole[] or by objective medical findings,” Batson v. Commissioner, 359 F.3d 1190, 26 1195 (9th Cir. 2004), or if there are significant discrepancies between the physician’s 27 opinion and her clinical records, Bayliss v. Barnhart, 427 F.3d 1211, 1216 (9th Cir. 28 2005). - 12 - 1 When a treating or examining physician’s opinion is contradicted by another 2 doctor, it can be rejected “for specific and legitimate reasons that are supported by 3 substantial evidence in the record.” Lester, 81 F.3d at 830–31 (citation omitted). To 4 satisfy this requirement, the ALJ must set out “a detailed and thorough summary of the 5 facts and conflicting clinical evidence, stating his interpretation thereof, and making 6 findings.” Cotton v. Bowen, 799 F.2d 1403, 1408 (9th Cir. 1986). 7 Under either standard, “[t]he ALJ must do more than offer his conclusions. He 8 must set forth his own interpretations and explain why they, rather than the doctors’, are 9 correct.” Embrey v. Bowen, 849 F.2d 418, 421-22 (9th Cir. 1988). 10 2. Dr. Landsman. 11 Dr. Landsman has been Plaintiff’s treating physician since at least May 2012. 12 A.R. 399. Plaintiff claims the ALJ erred in discrediting two of his opinions. Doc. 10 at 13 19. 14 a. The First Opinion. 15 In September 2012, Dr. Landsman completed a disability-claim form on which he 16 indicated that Plaintiff could (1) only occasionally sit, stand, or walk; and (2) never push, 17 pull, bend, twist, climb, lift any weight, or carry any weight. A.R. 263-64. The ALJ 18 assigned “little weight” to this opinion, finding that it was inconsistent with the record as 19 a whole. A.R. 23. The ALJ found that this medical opinion was inconsistent with 20 (1) Plaintiff’s hearing testimony that he could lift approximately 20 to 25 pounds, and 21 (2) Plaintiff’s consultative examination in which he “could bend at his waist and nearly 22 touch his toes without pain.” A.R. 23. Because Dr. Landsman’s opinion is inconsistent 23 with those of the state-agency physicians (A.R. 57-68, 70-80, 310-17), the Court must 24 determine whether the ALJ’s reasons for rejecting it are specific and legitimate and 25 supported by substantial evidence. Cotton, 799 F.2d at 1408. 26 The ALJ clearly articulated her reasons for discrediting this opinion. A.R. 23. 27 Plaintiff challenges neither the sufficiency of the reasons nor the incompatibility of Dr. 28 Landsman’s opinion with Plaintiff’s ability to lift and bend. Plaintiff simply declares that - 13 - 1 the ALJ erred and recites the relevant legal standard. Doc. 10 at 19-21. Absent any 2 specific challenge to the ALJ’s reasoning or the evidentiary support it has in the record, 3 the Court finds that the ALJ properly discredited this opinion. 4 b. The Second Opinion. 5 In August 2012, Dr. Landsman opined in a treatment note that Plaintiff “is unable 6 to work at this point secondary to the severe pain that he has.” A.R. 396 (the ALJ 7 incorrectly dates this opinion as October 2012). The ALJ assigned “little weight” to this 8 opinion because it (1) addressed a legal issue reserved for the Commissioner, (2) failed to 9 provide specific work limitations, (3) unduly relied on Plaintiff’s subjective reports of 10 symptoms and limitations, (4) was inconsistent with Dr. Gause’s treatment notes, and 11 (5) was inconsistent with Plaintiff’s daily activities. A.R. 23. Because Dr. Landsman’s 12 opinion is inconsistent with opinions of the state-agency physicians (A.R. 57-68, 70-80, 13 310-17), the Court must determine whether the ALJ’s reasons for rejecting it are specific 14 and legitimate and supported by substantial evidence. Cotton, 799 F.2d at 1408. 15 The ALJ clearly articulated her reasons for discrediting this opinion. Plaintiff only 16 challenges the ALJ’s reliance on his daily activities, arguing that her rationale relies on 17 the assumption that isolated daily activities could translate to an ability to compete in a 18 grueling professional environment. Doc. 10 at 21. For the reasons discussed above, this 19 reason alone would be insufficient to discredit Dr. Landsman’s opinion. But given the 20 four unchallenged reasons, the Court finds that the ALJ properly discredited this opinion 21 with specific and legitimate reasons supported by substantial evidence. 22 3. Dr. Gause. 23 Dr. Gause has been Plaintiff’s treating physician since at least October 2012 24 (A.R. 297), and Plaintiff claims the ALJ erred in discrediting two of his opinions. 25 Doc. 10 at 19. In March 2013, Dr. Gause completed a disability form on which he listed 26 Plaintiff’s physical restrictions: (1) no lifting, carrying, pushing, or pulling weight greater 27 than five pounds; (2) no sitting, standing, or walking more than 30 minutes without a 28 positional change; (3) no bending, twisting, or stooping more than two times per hour; - 14 - 1 and (4) no climbing or crawling. A.R. 305. Dr. Gause indicated that these restrictions 2 would last from March 26, 2013, until June, 11, 2013. A.R. 305. In June 2013, Dr. 3 Gause updated Plaintiff’s physical restrictions: (1) no lifting, carrying, pushing, or pulling 4 weight greater than 10 pounds; (2) no sitting, standing, or walking for more than 30 5 minutes without a positional change; (3) no bending, twisting, or stooping more than five 6 times per hour; and (4) no climbing or crawling. A.R. 308. Dr. Gause indicated that 7 these restrictions would last from May 21, 2013, until July 30, 2013. A.R. 308. 8 The ALJ assigned “little weight” to these opinions, finding that they were 9 inconsistent with the record as a whole. A.R. 24. The ALJ noted that the opinions were 10 inconsistent with (1) Plaintiff’s hearing testimony that he can lift 20 to 25 pounds and 11 carry 15 pounds; (2) Plaintiff’s consultative examination in which he could bend at the 12 waist and nearly touch his toes without pain, and had a normal gait without using an 13 assistive device for ambulation; and (3) Plaintiff’s daily activities. A.R. 24. Because Dr. 14 Gause’s opinion is inconsistent with opinions of the state-agency physicians (A.R. 57-68, 15 70-80, 310-17), the Court must determine whether the ALJ’s reasons for rejecting it are 16 specific and legitimate and supported by substantial evidence. Cotton, 799 F.2d at 1408. 17 Plaintiff does not challenge the incompatibility of Dr. Gause’s opinions with 18 Plaintiff’s ability to lift 20 to 25 pounds and bend at the waist. Plaintiff challenges only 19 the ALJ’s reliance on his daily activities, arguing that her rationale relies on the 20 assumption that isolated daily activities could translate to an ability to sustain such 21 activity in a more grueling professional environment. Doc. 10 at 21. For the reasons 22 discussed above, this reason alone would be insufficient to discredit Dr. Gause’s opinion. 23 But given the two unchallenged reasons, the Court finds that the ALJ properly discredited 24 Dr. Gause’s opinion with specific and legitimate reasons supported by substantial 25 evidence. 26 27 28 - 15 - 1 2 3 IT IS ORDERED that the final decision of the Commissioner of Social Security is affirmed. The Clerk is directed to terminate this action. Dated this 2nd day of October, 2017. 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 - 16 -

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