Dingman v. Commissioner of the Social Security Administration

Filing 26

ORDER - The final decision of the Commissioner of Social Security is affirmed. The Clerk shall enter judgment accordingly and terminate this case. See document for complete details. Signed by Magistrate Judge John Z Boyle on 9/27/18. (MSA)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Patrick Dingman,

No. CV-17-02167-PHX-JZB

Plaintiff,

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v.

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Commissioner
Administration,

ORDER

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of

Social

Security

Defendant.

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Plaintiff Patrick Keith Dingman seeks review under 42 U.S.C. § 405(g) of the final

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decision of the Commissioner of Social Security (“the Commissioner”), which denied him

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disability insurance benefits under sections 216(i), 223(d), and 1614(a)(3)(A) of the Social

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Security Act. Because the decision of the Administrative Law Judge (“ALJ”) is supported

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by substantial evidence and is not based on legal error, the Commissioner’s decision will

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be affirmed.

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I.

Background.

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On February 11, 2011, Plaintiff applied for disability insurance benefits and

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supplemental security income, alleging disability beginning June 1, 2006. On October 3,

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2012, he appeared with his attorney and testified at a hearing before the ALJ. A vocational

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expert also testified. At the hearing, Plaintiff’s counsel requested an amended onset date of

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December 1, 2009. On October 23, 2012, the ALJ issued a decision that Plaintiff was not

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disabled within the meaning of the Social Security Act. The Appeals Council denied

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Plaintiff’s request for review of the hearing decision, making the ALJ’s decision the

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Commissioner’s final decision.

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II.

Legal Standard.

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The district court reviews only those issues raised by the party challenging the ALJ’s

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decision. See Lewis v. Apfel, 236 F.3d 503, 517 n.13 (9th Cir. 2001). The court may set

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aside the Commissioner’s disability determination only if the determination is not

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supported by substantial evidence or is based on legal error. Orn v. Astrue, 495 F.3d 625,

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630 (9th Cir. 2007). Substantial evidence is more than a scintilla, less than a preponderance,

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and relevant evidence that a reasonable person might accept as adequate to support a

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conclusion considering the record as a whole. Id. In determining whether substantial

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evidence supports a decision, the court must consider the record as a whole and may not

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affirm simply by isolating a “specific quantum of supporting evidence.” Id. As a general

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rule, “[w]here the evidence is susceptible to more than one rational interpretation, one of

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which supports the ALJ’s decision, the ALJ’s conclusion must be upheld.” Thomas v.

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Barnhart, 278 F.3d 947, 954 (9th Cir. 2002) (citations omitted).

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Harmless error principles apply in the Social Security Act context. Molina v. Astrue,

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674 F.3d 1104, 1115 (9th Cir. 2012). An error is harmless if there remains substantial

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evidence supporting the ALJ’s decision and the error does not affect the ultimate non-

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disability determination. Id. The claimant usually bears the burden of showing that an error

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is harmful. Id. at 1111.

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The ALJ is responsible for resolving conflicts in medical testimony, determining

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credibility, and resolving ambiguities. Andrews v. Shalala, 53 F.3d 1035, 1039 (9th Cir.

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1995). In reviewing the ALJ’s reasoning, the court is “not deprived of [its] faculties for

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drawing specific and legitimate inferences from the ALJ’s opinion.” Magallanes v. Bowen,

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881 F.2d 747, 755 (9th Cir. 1989).

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III.

The ALJ’s Five-Step Evaluation Process.

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To determine whether a claimant is disabled for purposes of the Social Security Act,

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the ALJ follows a five-step process. 20 C.F.R. § 404.1520(a). The claimant bears the

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burden of proof on the first four steps, but at step five, the burden shifts to the

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Commissioner. Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999).

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At the first step, the ALJ determines whether the claimant is engaging in substantial

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gainful activity. 20 C.F.R. § 404.1520(a)(4)(i). If so, the claimant is not disabled and the

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inquiry ends. Id. At step two, the ALJ determines whether the claimant has a “severe”

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medically determinable physical or mental impairment. § 404.1520(a)(4)(ii). If not, the

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claimant is not disabled and the inquiry ends. Id. At step three, the ALJ considers whether

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the claimant’s impairment or combination of impairments meets or medically equals an

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impairment listed in Appendix 1 to Subpart P of 20 C.F.R. Pt. 404. § 404.1520(a)(4)(iii).

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If so, the claimant is automatically found to be disabled. Id. If not, the ALJ proceeds to step

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four. At step four, the ALJ assesses the claimant’s residual functional capacity (“RFC”)

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and determines whether the claimant is still capable of performing past relevant work. §

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404.1520(a)(4)(iv). If so, the claimant is not disabled and the inquiry ends. Id. If not, the

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ALJ proceeds to the fifth and final step, where he determines whether the claimant can

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perform any other work based on the claimant’s RFC, age, education, and work experience.

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§ 404.1520(a)(4)(v). If so, the claimant is not disabled. Id. If not, the claimant is disabled.

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Id.

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At step one, the ALJ found that Plaintiff meets the insured status requirements of

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the Social Security Act through December 31, 2011, and that he has not engaged in

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substantial gainful activity since June 1, 2006. At step two, the ALJ found that Plaintiff has

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the following severe impairments: “narcolepsy, sleep apnea, and obesity (20 CFR

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404.1420(c)).” (AR 407.)

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At step three, the ALJ determined that, through the date of last insured, Plaintiff did

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not have an impairment or combination of impairments that meets or medically equals an

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impairment listed in Appendix 1 to Subpart P of 20 C.F.R. Pt. 404. At step four, the ALJ

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found that Plaintiff has the RFC to perform:

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at least light work and some medium exertion jobs as defined in 20 CFR
404.1567(c) except the claimant could never climb ladders, ropes or
scaffolds. He must avoid hazards such as moving machinery or unprotected
heights.
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(AR 408.)

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The ALJ further found that Plaintiff, through the date of last insured, was unable to

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perform any of his past relevant work. At step five, the ALJ concluded that, considering

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Plaintiff’s age, education, work experience, and residual functional capacity, through the

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date last insured, “there were jobs that existed in significant numbers in the national

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economy that Plaintiff could have performed.” (AR 414.)

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IV.

Analysis.

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Plaintiff argues the ALJ’s decision is defective for four reasons: (1) “[t]he ALJ erred

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by omitting/rejecting the medical opinions of Dr. Anderson, treating neurologist/sleep

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specialist” (doc. 14 at 9-20); (2) the ALJ erred by crediting two non-examining physician

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opinions with significant weight (id. at 20); (3) “[t]he ALJ erred by rejecting [Plaintiff’s]

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symptom testimony” (id. at 22-27); and (4) the ALJ erred “by not finding cataplexy and

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hypersomnia were ‘severe’” medical impairments at step two (id. at 9 n.5). The Court will

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address each argument below;

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b.

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Plaintiff first argues that the ALJ improperly weighed the medical opinions of his

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treating physician, Dr. Troy Anderson, and examining physicians Drs. Larry Nichols, and

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Brian Briggs.

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Weighing of Medical Source Evidence.

1.

Legal Standard.

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The Ninth Circuit distinguishes between the opinions of treating physicians,

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examining physicians, and non-examining physicians. See Lester v. Chater, 81 F.3d 821,

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830 (9th Cir. 1995). Generally, an ALJ should give greatest weight to a treating physician’s

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opinion and more weight to the opinion of an examining physician than to one of a non-

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examining physician. See Andrews v. Shalala, 53 F.3d 1035, 1040-41 (9th Cir. 1995); see

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also 20 C.F.R. § 404.1527(c)(2)-(6) (listing factors to be considered when evaluating

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opinion evidence, including length of examining or treating relationship, frequency of

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examination, consistency with the record, and support from objective evidence). If it is not

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contradicted by another doctor’s opinion, the opinion of a treating or examining physician

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can be rejected only for “clear and convincing” reasons. Lester, 81 F.3d at 830 (citing

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Embrey v. Bowen, 849 F.2d 418, 422 (9th Cir. 1988)). A contradicted opinion of a treating

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or examining physician “can only be rejected for specific and legitimate reasons that are

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supported by substantial evidence in the record.” Lester, 81 F.3d at 830-31 (citing Andrews,

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53 F.3d at 1043).

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An ALJ can meet the “specific and legitimate reasons” standard “by setting out a

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detailed and thorough summary of the facts and conflicting clinical evidence, stating his

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interpretation thereof, and making findings.” Cotton v. Bowen, 799 F.2d 1403, 1408 (9th

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Cir. 1986). But “[t]he ALJ must do more than offer [her] conclusions. [She] must set forth

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[her] own interpretations and explain why they, rather than the doctors’, are correct.”

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Embrey, 849 F.2d at 421-22. The Commissioner is responsible for determining whether a

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claimant meets the statutory definition of disability and does not give significance to a

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statement by a medical source that the claimant is “disabled” or “unable to work.” 20

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C.F.R. § 416.927(d).

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2.

Dr. Troy Anderson, M.D.
A.

Treatment History and Medical Opinions.

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Dr. Anderson is a neurologist and sleep specialist who treated Plaintiff from 2011

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through 2016. (AR 238-66, 273-96, 385-93, 301-02, 691-713.) Dr. Anderson rendered

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eight medical opinions on Plaintiff’s functional limitations during that time frame:

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 In July 2011, Dr. Anderson opined that Plaintiff could not be gainfully employed

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because of his daytime sleepiness. Dr. Anderson also notes that, at that time,

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Plaintiff had failed multiple medications for narcolepsy and his daytime sleepiness

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persisted. (AR 301-02.)

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 In April 2012, Dr. Anderson assessed work limitations from narcolepsy and sleep

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apnea with four narcoleptic episodes daily, symptoms lasting more than three hours,

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severe daytime sleepiness, and a total restriction from unprotected heights/moving

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machinery/driving automotive equipment. Dr. Anderson again noted that

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medications had failed. (AR 305-06.)

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 In July 2012, Dr. Anderson again assessed that Plaintiff’s impairments would limit

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his ability to perform work related activities. He notes that Plaintiff was still

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suffering from narcolepsy and daytime sleepiness, having one episode daily with

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symptoms lasting more than three hours, and advising total restriction from

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unprotected heights/moving machinery/driving automotive equipment. (AR 307-

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08.)

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 In September 2012, Dr. Anderson assessed that Plaintiff continued to have

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difficulties with daytime sleepiness and cataplexy, and noted that Plaintiff could

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not afford his medication. Nor could Plaintiff afford the “MR angiogram” that

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Dr. Anderson ordered six months prior. Dr. Anderson concludes that Plaintiff

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“cannot perform work given his difficulties with severe daytime sleepiness” and

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state that “[h]e is to continue to refrain from driving and work with dangerous

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equipment as well as work at heights.” (AR 385-86.)

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 In August 2014, Dr. Anderson assessed that Plaintiff “has improved in terms of

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enjoying his life but has not improved to [sic] he can’t go to work.” (AR 702.)

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Dr. Anderson noted that Plaintiff experienced no side effects with Provigil, and that

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he increased the prescribed dosage of the drug to twice per day “to see if we can

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get up to this point.” (Id.) “In the meantime, we continue to support disability.” (Id.)

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 In August 2016, Dr. Anderson completed a Medical Assessment of Ability to do

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Work-Related Physical Activities. (AR 740-41.) Therein, he found that Plaintiff’s

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severe sleepiness precluded an 8-hour work day. (AR 740.) Additionally, he found

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that Plaintiff, in an 8-hour work day, had the following limitations: Plaintiff can sit

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for six hours, stand/walk for six hours, lift 50 pounds or more, carry 50 pounds or

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more, and Plaintiff’s moderately severe symptoms would cause him to miss 4-5

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days of work per month. (AR 740-41.) Dr. Anderson also notes that Plaintiff’s

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medication causes side effects including “chest pain” and “palpation[.]” (AR 741.)

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 In September 2016, Dr. Anderson completed another Medical Assessment of

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Ability to do Work-Related Physical Activities. (AR 742-43.) Therein, he found

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that Plaintiff’s Hypersomnia, which causes severe daytime sleepiness, precluded

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Plaintiff from completing an 8-hour work day. (AR 742.) Dr. Anderson added that

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Plaintiff’s symptoms severely impacted Plaintiff’s concentration and ability to stay

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on task, and that he would miss 5+ days of work per month due to his medical

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condition. (AR 742-43.) Dr. Anderson also circled “None” in response to the

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question “Is the patient additionally limited by Pain or fatigue? If yes, set forth the

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degree of limitation.” (AR 743.)

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 In October 2016, Dr. Anderson completed a third Medical Assessment of Ability

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to do Work Related Physical Activities. (AR 744-45.) In this assessment, Dr.

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Anderson again opined that Plaintiff’s conditions – in this instance listed as

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“narcolepsy” and “uncontrolled sleepiness” – preclude an 8-hour work day.

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(AR 744.) Dr. Anderson notes that Plaintiff experiences seen episodes on

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“sleepiness” a day, and that the average episode is 2+ hours in duration. (Id.) Dr.

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Anderson represents that Plaintiff’s fatigue is a moderately severe limitation,

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Plaintiff will miss work 5+ days per month, Plaintiff’s medication does not cause

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him side-effectsm and the medical limitations were in existence as of June 1, 2006.

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(AR 745.)

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B.

ALJ Assessment.

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Dr. Anderson’s opinions are controverted by the opinion of consultative examiner,

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Dr. Brian Briggs. (AR 413.) Dr. Briggs examined Plaintiff on May 3, 2016, and opined

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that Plaintiff had fewer limitations than those assessed by Dr. Anderson. (AR 653.) In his

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report, Dr. Briggs concluded that Plaintiff’s conditions would not impose limitations for

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12 continuous months. (AR 657.) Additionally, Dr. Briggs found that Plaintiff had no

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physical limitations, with the exception that Plaintiff can tolerate only occasional exposure

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to unprotected heights, or frequent exposure to moving mechanical parts, and can only

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frequently climb ladders or scaffolds. (AR 660-61.) Dr. Briggs also found that Plaintiff’s

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narcolepsy had improved to the point that it “is no longer an issue.” (AR 657.) Because

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Dr. Anderson’s opinions were contradicted by Dr. Briggs’s opinion, the ALJ may discount

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Dr. Anderson’s opinions for specific and legitimate reasons supported by substantial

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evidence. Lester, 81 F.3d at 830-31.

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In his decision, the ALJ affords Dr. Anderson’s opinions, as a whole, “little weight.”

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(AR 412.) Because Dr. Anderson provided multiple opinions spanning roughly five years,

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the ALJ attempts to address each of Dr. Anderson’s opinions by grouping them into three

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“batches”: (1) the opinion from prior to Plaintiff’s date of last insured, December 31, 2011,

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(2) the opinions made in April and July of 2012, and (3) the opinions made in August and

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September of 2016. (AR 412-413.) The ALJ does not address Dr. Anderson’s medical

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opinions from August 2014, or from October 2016. (See id.) The Court will address the

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ALJ’s reasoning for each batch below.

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C.

July 2011 Opinion.

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The ALJ first addresses Dr. Anderson’s July 2011 opinion. (AR 412-13.) In that

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opinion, Dr. Anderson records Plaintiff’s subjective report that “because of his daytime

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sleepiness he still cannot be gainfully employed,” then proceeds to provide a physical

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assessment of Plaintiff, diagnose him with Narcolepsy with Cataplexy, and state in the

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discussion portion of the report that “[w]e support this patient’s disability claim.”

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(AR 301-02.)

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The ALJ provided the following reasons for discounting Dr. Anderson’s July 2011

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opinion: (1) Dr. Anderson “did not provide an assessment of the claimant’s functional

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limitations at that time” (id.); (2) Dr. Anderson’s “opinion is inconsistent with the

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treatment record noting improvement with medication and a normal physical and

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neurological examination[,]” (id.); and (3) that Dr. Anderson’s opinion is “inconsistent

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with the claimant’s significant activities of daily living during the period” (AR 412-13).

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The Court finds that the ALJ’s decision to discount Dr. Anderson’s opinions was [not]

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based on specific and legitimate reasons.

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The ALJ’s first reason for discounting Dr. Anderson’s July 2011 medical opinion is

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that Dr. Anderson failed to provide a functional assessment supporting his conclusion.

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(AR 412.) This reason is not legitimate for rejecting a treating physician’s opinion, because

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in July 2012, Dr. Anderson provided Plaintiff with a functional assessment specifically

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noting that the restrictions therein were in existence prior to December 31, 2011. (AR 307-

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08.)

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The ALJ’s second reason for discounting Dr. Anderson’s July 2011 medical opinion

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is that the “opinion is inconsistent with treatment record noting improvement with

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medication and a normal physical and neurological examination.” (AR 412.) An ALJ may

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rely on notes indicating a condition responded well to treatment, and impairments that can

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be controlled with treatment are not disabling. See Crane v. Shalala, 76 F.3d 251, 254 (9th

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Cir. 1996) (upholding credibility finding where notes from treating therapist suggested

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depression responded well to treatment); Warre ex rel. E.T. IV v. Barnhart, 439 F.3d 1001,

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1006 (9th Cir. 2006) (“Impairments that can be controlled effectively with medication are

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not disabling for the purpose of determining eligibility for SSI benefits.”).

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In its response, the Commissioner cites to the record showing Plaintiff’s

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impairments were controllable with treatment. Specifically, the record shows

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improvement of Plaintiff’s cataplexy with Xyrem (AR 301, 411), and improvement in

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Plaintiff’s narcolepsy on Nuvigil, after the date of last insured (AR 411, 691). Further, Dr.

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Briggs examination notes that narcolepsy “was no longer an issue” due to Nuvigil

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(AR 411, 653, 655). (Doc. 15 at 14.)

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Plaintiff argues that the Commissioner’s citations are misleading and incomplete

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because Plaintiff’s improvement with Xyrem is noted as being limited to his cataplexy.

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(AR 301), and although Plaintiff was afforded some relief from his narcolepsy with

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Nuvigil, it was “not enough to increase his daytime sleepiness for employment” (AR 691).

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(Doc. 25 at 8-9.) But, in that same treatment record, Dr. Anderson notes that he increased

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Plaintiff’s dosage of Nuvigil to 250mg, and found that with the increased dosage,

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“[Plaintiff] has potential of gaining employment” and “is trying to find work.” (AR 691.)

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And although Plaintiff “had difficulty getting [Nuvigil] approved” by insurance

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(AR 691), the record shows that he was still taking the medication as of July 4, 2016 (AR

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732). The record does not show that Plaintiff was denied coverage for Nuvigil, or that he

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was unable to continue procuring it for himself, as he apparently did for several months

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between at least February 2016 and July 2016. (See AR 691, 732.) Additionally, when Dr.

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Briggs examined Plaintiff in May 2016, during the time frame that he was on Nuvigil,

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Dr. Briggs observed that Plaintiff’s narcolepsy was “no longer an issue” due to the

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Nuvigil. (AR 653, 655.) Accordingly, the Court finds that the ALJ’s second reason for

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discounting Dr. Anderson’s July 2011 opinion is supported by specific and legitimate

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reasons, and was not error.

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D.

April and July 2012 Opinions.

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In April and July 2012, Dr. Anderson completed functional assessments of

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Plaintiff’s capacity to engage in work related activities. (AR 305-06, 307-08.) Therein, Dr.

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Anderson indicates that Plaintiff has between one and four narcoleptic episodes per day,

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with each episode lasting more than three hours. (AR 305, 307.) Dr. Anderson opined

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Plaintiff should have no exposure to unprotected heights, moving machinery, or driving.

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(AR 306, 308.) He further opined Plaintiff’s “degree of restriction” was “moderately

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severe,” defined as seriously affecting ability to function, and “severe,” defines as extreme

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impairment in ability to function. (Id.) Dr. Anderson opined that Plaintiff’s restrictions

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existed at that level on or before the date of last insured. (AR 308.)

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In his decision, the ALJ discounts these opinions for three reasons: (1) the “opinions

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are inconsistent with the medical evidence of record discussed above, including noted

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improvement with Xyrem” (AR 413); (2) the “opinion that claimant experienced

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symptoms four times a day and symptoms lasted for three hours or more is inconsistent

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with the evidence that the claimant was the primary care provider for his young son while

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his wife was at work” (id.); and (3) “these opinions were written after the date last insured”

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(id.). The Commissioner concedes that the ALJ’s third reason is error (doc. 15 at 17 n.5),

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but argues that the ALJ’s first and second reasons are sufficient for the Court to affirm the

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ALJ’s decision. (Id. at 17.) The Court agrees.

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The ALJ’s first reason, that the opinions are inconsistent with the medical evidence

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of record discussed above, is supported by the fact that Plaintiff showed marked

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improvement with medication in treating both his cataplexy and his narcolepsy. (See

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AR 301, 691, 732.) As discussed above, impairments that can be controlled with treatment

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are not disabling. See Warre, 439 F.3d at 1006.

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The ALJ’s second reason, that the statement Plaintiff has symptoms lasting at least

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three or more hours at a time is inconsistent with Plaintiff’s childcare activities, is also

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specific and legitimate. This finding is reasonable. As stated by The Honorable Judge G.

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Murray Snow, in previous review of this case, “If Dingman’s testimony is true, his four-

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year-old child lacks supervision during much of the day. Thus, Dingman’s testimony is

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not credible unless one believes that he and his wife neglect the care of their small child

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during these significant lapses.” (AR 495.) Dr. Anderson’s opinions on this daily

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frequency was necessarily based on Plaintiff’s personal reporting of symptoms. The Court

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agrees with Judge Snow, and finds that the ALJ’s second reason is supported by specific

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and legitimate reasons.

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Plaintiff argues that “the District Court decision overstated symptoms,” that

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“Dingman is easily arousable” and that “even if this level of sleep would be neglect, this

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is not proof that Dingman’s sleep requirements lack credibility” because “Children can be

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neglected.” (Doc. 25 at 3-4.) Plaintiff’s points are not persuasive. Even assuming,

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arguendo, the ALJ’s second reason was not legitimate, and that Plaintiff’s testimony – and

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thus Dr. Anderson’s report – of the frequency of his narcoleptic episodes is true, the ALJ’s

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decision to discount Dr. Anderson’s 2012 medical opinions is still supported by specific

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and legitimate evidence, as noted above in the Court’s analysis of the ALJ’s first reason

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for discounting the opinions. Accordingly, the Court finds that the ALJ provided specific

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and legitimate reasons for discounting Dr. Anderson’s 2012 medical opinions.

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E.

August and September 2016 Opinions.

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Almost five years after Plaintiff’s date of last insured, Dr. Anderson completed three

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functional assessments of Plaintiff. (See AR 740-41 (August 2016); AR 742-43

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(September 2016); AR 744-45 (October 2016).) In his decision, the ALJ only expressly

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addresses the functional assessments from August and September 2016. (See AR 413.) In

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August 2016, Dr. Anderson opined Plaintiff had “moderately severe” fatigue that would

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cause him to be off-task 16-20% of a day and that he would miss 4-5 days of work per

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month. (AR 741.) In September 2016, Dr. Anderson opined Plaintiff had “no” limitation

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from his fatigue but would miss over 5 days of work per month. (AR 743.)

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The ALJ provides the following three reasons for discounting Dr. Anderson’s

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August and September 2016 opinions: (1) Dr. Anderson’s opinions are inconsistent with

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the medical evidence in the record, including Dr. Briggs’ observation that the claimant’s

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narcolepsy was well controlled with medication and was no longer a problem; (2) the

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opinions are inconsistent with records indicating the claimant was cleared to return to work

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with no restrictions in January 2015 (AR 413, 704, 705); and (3) Dr. Anderson’s statement

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identifying chest pain as a side effect from Plaintiff’s medication (AR 741) is inconsistent

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with his treatment records which indicate that the only side effects from Nuvigil were

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tolerable headaches (AR 691). The Court need only address the first reason, which is both

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specific and legitimate for discounting the opinions of Dr. Anderson.

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As discussed above, there is sufficient evidence in the record that Plaintiff’s

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impairments are under control with medication. (See, e.g., AR 655, 691.) The ALJ did not

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err by relying on Dr. Briggs’s concurrent evaluation that Plaintiff’s narcolepsy was well

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controlled with medication and no longer a problem. See Batson v. Comm’r of Soc. Sec.,

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359 F.3d 1190, 1195 (9th Cir. 2004) (holding that the ALJ did not err in giving minimal

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weight to the views of treating physicians whose opinions were conclusory, in the form of

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a check list, lacked substantive medical findings, and conflicted with the “results of a

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consultative medical evaluation”); Warre, 439 F.3d at 1006 (“Impairments that can be

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controlled effectively with medication are not disabling for the purpose of determining

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eligibility for SSI benefits.”).

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Plaintiff argues that the ALJ “did not explain why the conflict [that Dr. Briggs

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observed Plaintiff’s narcolepsy was well controlled with medication and was no longer a

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problem] was substantial evidence for disregarding Dr. Anderson’s opinions” and also that

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“Dr. Briggs’s opinion did not constitute substantial evidence.” (Doc. 14 at 18.) Plaintiff’s

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arguments fail.

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As explained above, the fact that Plaintiff improved on Nuvigil to the point that he

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was capable of seeking employment is a matter of Dr. Anderson’s records. (See AR 691.)

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Dr. Briggs evaluated Plaintiff while he was on that medication, prescribed by

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Dr. Anderson, and found Plaintiff’s narcolepsy to be controlled. (AR 653-64.) Plaintiff’s

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contention that Dr. Briggs’s opinion is not substantial evidence because his evaluation was

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conducted four years after the date of last insured, and he did not review any of Plaintiff’s

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prior medical records, is without merit. See Orn, 495 F.3d at 632 (when an examining

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physician provides “independent clinical findings that differ from the findings of the

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treating physician,” such findings are “substantial evidence.”).

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Accordingly, the Court finds that the ALJ’s decision to discount Dr. Anderson’s

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opinions as inconsistent with the medical evidence in the record was both specific and

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legitimate, and is supported by substantial evidence.

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F.

Opinions from August 2014 and October 2016.

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Plaintiff asserts that the ALJ committed harmful error by failing to address

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Dr. Anderson’s opinions from August 2014 and October 2016. (Doc. 14 at 9.) The

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Commissioner concedes that the ALJ did not specifically address these opinions, but

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argues that the error is harmless because these opinions are nearly identical to other

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opinions of Dr. Anderson that the ALJ did address. (Doc. 15 at 16 n.4, 18 n.6.) The Court

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agrees. See Marsh v. Colvin, 792 F.3d 1170, 1173 (9th Cir. 2015) (“We reject the idea that

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not mentioning a treating source’s medical opinion precludes use of harmless error

22

doctrine,” but “an ALJ must discuss the relevant views of a treating source.”).

23

Here, Dr. Anderson’s August 2014 and October 2016 opinions are nearly identical

24

to other opinion evidence that the ALJ did expressly evaluate. (Compare AR 702 with

25

AR 386; compare AR 744-45 with AR 742-43.) The ALJ’s failure to mention these

26

opinions is error, but that error is harmless because the relevant views of the treating source

27

were discussed and the error does not affect the ultimate nondisability determination of

28

the ALJ. See Marsh, 792 F.3d at 1173; Molina, 674 F.3d at 1111.

- 13 -

1

3.

Dr. Larry Nichols, M.D.

2

In May 2011, prior to the date of last insured, Dr. Nichols examined Plaintiff after

3

conducting a review of his neurological treatment notes. (AR 267.) Dr. Nichols opined

4

Plaintiff could sit for six to eight hours per day, stand/walk for three hours per day, and had

5

a medium lifting capacity. (AR 270.) Dr. Nichols further opined Plaintiff had occasional

6

postural restrictions, and some environmental limitations. (AR 271.)

7
8
9
10
11
12
13
14
15
16
17
18

The ALJ afforded Dr. Nichols’s opinion “partial weight.” (AR 411.) In his decision,
the ALJ provided the following analysis:
Dr. Nichols indicated that the claimant could lift 50 pounds
occasionally and 25 pounds frequently and that he could sit for six to eight
hours in an eight-hour workday. This opinion is consistent with the medical
evidence of record discussed above and the claimant’s activities of daily
living during the relevant period. However, Dr. Nichols also indicated that
the claimant could stand or walk for three hours in an eight-hour workday
and that the claimant would have limitations in climbing, stooping, kneeling,
crouching, crawling, and reaching as well as working
[Dr. Nichols’s] opinions appear to be based on the claimant’s
subjective complaints of exhaustion rather than objective medical signs or
laboratory findings. As discussed in more detail above, the claimant’s
physical examination during the consultative examination was normal.
Moreover, the opinions regarding the claimant’s standing/walking, postural,
and environmental limitations are inconsistent with the claimant’s significant
activities of daily living during the relevant period. Therefore, the
undersigned has determined that the claimant was not limited to the extent
found by Dr. Nichols.

19

(Id.) In sum, the only material portion of Dr. Nichols opinion rejected by the ALJ, was

20

Dr. Nichols’s conclusion that Plaintiff was limited to standing/walking for three hours per

21

day and occasional reaching. (Id.)

22

Plaintiff challenges the ALJ’s decision to give “partial weight” to the opinion of

23

Dr. Nichols, arguing that “the ALJ’s evaluation of Dr. Nichol[s]’s opinion lacked

24

specificity, and he improperly cherry-picked from Dr. Nichols’s findings to support his

25

non-disability finding.” (Doc. 14 at 20-21.) But, Dr. Nichols’s assessment indicated that

26

Plaintiff could walk normally, take his shoes off without difficulty, get in and out of a chair

27

without difficulty, get on and off of a table without difficulty, tandem walk normally, heel-

28

toe walk normally, hop and squat normally, walk without an assistive device, and that

- 14 -

1

Plaintiff has a normal range of motion in every joint and spinal region. (AR 269-70.) These

2

independent findings are inconsistent with Dr. Nichols’s conclusion that Plaintiff can only

3

stand/walk up to three hours in a day.

4

Plaintiff argues that the ALJ “cherry-picked” the record (doc. 14 at 21), and notes

5

that Dr. Nichols made reference to Plaintiff’s exhaustion (doc. 25 at 11). Plaintiff’s

6

argument fails. Plaintiff ignores that the ALJ identified Plaintiff’s subjective complaint of

7

exhaustion, and stated that Dr. Nichols’s limitation assessments “appear to be based on

8

[Plaintiff’s] subjective complaints of exhaustion rather than objective medical signs or

9

laboratory findings.” (AR 412.) An ALJ may discount a physician’s opinion if it is based

10

to a large extent on the Plaintiff’s incredible self-reports. Ghanim v. Colvin, 763 F.3d 1154,

11

1162 (9th Cir. 2014.) The ALJ did not err by assessing partial weight to Dr. Nichols’s

12

opinion.

13

4.

Dr. Brian Briggs, M.D.

14

As mentioned above, Dr. Briggs examined Plaintiff on May 3, 2016. (AR 653.) In

15

his report, Dr. Briggs concluded that Plaintiff’s conditions would not impose limitations

16

for 12 continuous months. (AR 657.) Additionally, Dr. Briggs found that Plaintiff had no

17

physical limitations, with the exception that Plaintiff can tolerate only occasional exposure

18

to unprotected heights, or frequent exposure to moving mechanical parts, and can only

19

frequently climb ladders or scaffolds. (AR 660-61.) Dr. Briggs also found that Plaintiff’s

20

narcolepsy had improved to the point that it “is no longer an issue.” (Id.)

21
22
23
24
25
26
27
28

In his decision, the ALJ assessed “some” weight to Dr. Briggs’s opinion. (AR 412.)
Specifically, the ALJ provided:
Some weight is given the opinions of the consultative examiner, Brian
Briggs, M.D. (Exhibits 15F; 16F). Dr. Briggs indicated that the claimant had
no limitations. However, he also completed a residual functional capacity
assessment indicating that the claimant could occasionally lift and carry up
to 100 pounds occasionally and up to 50 pounds frequently, sit for four hours
at a time, stand for two hours at a time, and walk for two hours at a time. Dr.
Briggs further indicated that the claimant could frequently climb ladders or
scaffolds and continuously perform other postural activities. Although this
opinion is consistent with the finding that the claimant was not disabled, Dr.
Briggs did not have the opportunity to examine the claimant prior to the date
last insured. The undersigned finds that the claimant was more limited in his
ability to lift and carry and his ability to climb ladders, ropes, and scaffolds
- 15 -

1
2
3
4

during the relevant period and that the opinions of the State agency
consultants are more probative regarding the claimant’s limitations at that
time. Further, the limitations in sitting and standing are not consistent with
the normal physical examination. However, Dr. Briggs’ examination and
opinion show that the claimant continued to improve with medication.
Specifically, Dr. Briggs indicated that the claimant’s narcolepsy improved
with medication and was no longer an issue. Additionally, the claimant’s
physical examination remained normal.

5
6

(Id.) In sum, the ALJ rejected portions of Dr. Briggs’s opinion stating that Plaintiff had no

7

limitations climbing ladders, or scaffolds, or performing other postural activities, and

8

instead only gave weight to the portions of Dr. Briggs’s opinion that showed Plaintiff’s

9

impairments had improved with medication – particularly that Plaintiff’s narcolepsy was

10

no longer an issue. (Id.)

11

Plaintiff again argues that the ALJ cherry-picked from Dr. Briggs’s opinion to

12

support his non-disability finding. (Doc. 14 at 21-22.) But the ALJ considered Dr. Briggs’s

13

opinion as a whole, and only rejected the physical examination portions of Dr. Briggs’s

14

opinion, instead finding that Plaintiff “was more limited in his ability to lift and carry and

15

his ability to climb ladders, ropes, and scaffolds during the relevant period[,] and that the

16

opinions of the State agency consultants are more probative regarding the claimant’s

17

limitations at that time.” (AR 412.) Plaintiff’s argument that the ALJ cherry-picked from

18

Dr. Briggs’s opinion fails.

19

Plaintiff argues that Dr. Briggs’s opinion is not probative of whether Plaintiff was

20

disabled during the relevant time period because it is based on an examination that took

21

place after Plaintiff’s date last insured. (Doc. 14 at 21-22.) But, Ninth Circuit case law

22

provides that “medical evaluations made after the expiration of a claimant’s insured status

23

are relevant to an evaluation of the pre-expiration condition.” Smith v. Bowen, 849 F.2d

24

1222, 1225 (9th Cir. 1988) (citing cases from the Eighth, Eleventh, Fourth, Second, and

25

Seventh Circuits); see also Lingenfelter v. Astrue, 504 F.3d 1028, 1033 n.3 (9th Cir. 2007)

26

(noting that medical reports made after the plaintiff’s disability insurance lapsed were

27

relevant and were properly considered by the ALJ and the Appeals Council under Smith).

28

Additionally, in this instance, Dr. Briggs’s opinion shows that Plaintiff’s impairments are

- 16 -

1

controllable with treatment. And “[i]mpairments that can be controlled effectively with

2

medication are not disabling for the purpose of determining eligibility for SSI benefits.”

3

Warre, 439 F.3d at 1006.

4

Lastly, Plaintiff complains that the ALJ did not allow questioning of the authors of

5

the reports the ALJ cherry-picked from, and argues that “[i]n such circumstances, those

6

reports do not constitute substantial evidence on which treating physician opinion can be

7

rejected.” (Doc. 14 at 22 (citing Richardson v. Perales, 402 U.S. 389, 397 (1971).)

8

Plaintiff’s argument is not persuasive. Richardson stands for the proposition that a

9

physician’s report can constitute substantial evidence when a claimant has not exercised

10

the right to seek a subpoena. See Richardson, 402 U.S. at 397. Plaintiff improperly infers

11

that because a physician’s opinion may be treated as substantial evidence, despite that a

12

plaintiff has not sought a subpoena to depose that individual, the reverse must also be true,

13

and not granting a subpoena request means that the physicians’ opinion report is no longer

14

substantial evidence. The ALJ’s partial reliance on Dr. Briggs’s opinion was reasonable.

15

5.

Crediting Non-Examining Physician.

16

Non-examining physicians, Drs. Rowse and Schenk, each opined that Plaintiff could

17

perform medium work, with postural limitations. (AR 64-66, 76-79.) The ALJ gave the

18

opinions of Drs. Rowse and Schenk “significant weight” because “[t]hese opinions are

19

consistent with the medical evidence discussed above including [Plaintiff’s] normal

20

physical and mental exams and his noted improvement with medication.” (AR 411.) The

21

ALJ adds that “these opinions are consistent with [Plaintiff’s] activities of daily living

22

during the relevant period which included caring for his young son during the day, driving,

23

and shopping in stores. (Id.)

24

Plaintiff argues that the ALJ committed legal error by according the opinions of

25

Drs. Rowse and Shenk significant weight because the ALJ’s justification for the assigned

26

weight is conclusory. (Doc. 14 at 20.) Plaintiff cites Garrison, 759 F.3d at 1012-13, for the

27

proposition that an “ALJ errors when he rejects opinion while doing nothing more than

28

asserting without explanation that another opinion is more persuasive.” (Doc. 14 at 20.)

- 17 -

1

Plaintiff’s argument is not persuasive.

2

Plaintiff’s argument contemplates a case dealing with the rejection of a medical

3

opinion, to argue that the ALJ needed to provide “clear, specific, [and] legitimate” reasons

4

for accepting the opinions of Drs. Rowse and Schenk. (See id.) But, the ALJ did not err in

5

failing to more fully explain why he credited the opinions of Drs. Rowse and Schenk,

6

because “the ALJ is under no obligation to provide reasons for interpreting and

7

incorporating medical opinions into the RFC assessment.” See Corthion v. Colvin, No. CV-

8

15-00837-PHX-GMS, 2017 WL 68910, at *6 (D. Ariz. Jan. 6, 2017) citing Turner v.

9

Comm’r of Soc. Sec., 613 F.3d 1217, 1223 (9th Cir. 2010); Orteza v. Shalala, 50 F.3d 748,

10

750 (9th Cir. 1995).

11

Plaintiff cites no authority stating that an ALJ commits legal error by giving weight

12

to a medical opinion, and the Court finds none. The Court concludes that the ALJ’s decision

13

to credit the opinions of Drs. Rowse and Schenk was not legal error.

14

c.

15

In evaluating the credibility of a claimant’s testimony regarding subjective pain or

16

other symptoms, the ALJ is required to engage in a two-step analysis: (1) determine

17

whether the claimant presented objective medical evidence of an impairment that could

18

reasonably be expected to produce some degree of the pain or other symptoms alleged;

19

and, if so with no evidence of malingering, (2) reject the claimant’s testimony about the

20

severity of the symptoms only by giving specific, clear, and convincing reasons for the

21

rejection. Vasquez v. Astrue, 572 F.3d 586, 591 (9th Cir. 2009).

The ALJ Did Not Err in Evaluating Plaintiff’s Credibility.

22

First, the ALJ found that Plaintiff’s medically determinable impairments could

23

reasonably be expected to cause the alleged symptoms. Second, the ALJ found Plaintiff’s

24

statements regarding the intensity, persistence, and limiting effects of the symptoms not

25

credible to the extent they are inconsistent with the ALJ’s residual functional capacity

26

assessment. In other words, the ALJ found Plaintiff’s statements not credible to the extent

27

he claims she is unable to perform in a competitive work environment.

28

At the first hearing, in October 2012, Plaintiff testified that he suffered from two

- 18 -

1

cataplexy episodes per day, causing him to lose muscle control for 5 to 30 seconds.

2

(AR 38.) He testified that his narcolepsy causes him to fall asleep three to four times per

3

day, for 20 to 45 minutes at a time, for a total of at least three 3 hours and 45 minutes during

4

the day, and up to 5 hours and 45 minutes. (AR 39-42.) Plaintiff testified that his

5

medications were ineffective. (AR 39-40.) Plaintiff states that his typical daily activities

6

include waking up, drinking coffee, talking with his kids, watching cartoons, picking up

7

“something that needs to be picked up,” and washing dishes. (AR 39-43.) Plaintiff also will

8

do chores around the house, including folding laundry, doing “a little” yard work, going

9

shopping, driving to the gas station, and cooking dinner occasionally. (AR 45-46.) Plaintiff

10

also testified that he was the sole caregiver for his four-year old son during the day while

11

his wife works. (AR 43, 47.)

12

At his second hearing, in September 2016, Plaintiff testified that his youngest son

13

was eight-years’ old at that time, which would make him about three-years’ old on the date

14

last insured. (AR 432, 436.) Plaintiff testified that, during the day, he had to “take naps

15

very regularly” and that he “can’t make it through long extended periods of time, like a

16

regular workday, without falling asleep.” (AR 436.) When asked how he was able to watch

17

a small child with his condition, Plaintiff responded “[w]ell, I would just take my naps at

18

the same time my child is taking his naps.” (AR 436.) Plaintiff testified that when his

19

narcolepsy “comes on” he feels “just extremely tired, oh, like a person that had been up all

20

day long, at the end of a long day.” (AR 442.) He stated that he “get[s] the same feeling

21

many times a day[,]” but noted that he “generally” gets a warning of “between maybe five

22

minutes, at the most, and less.” (Id.) He stated that he was able to take care of his child

23

during the day because “most definitely, unfortunately, I’m an incredibly light sleeper, so

24

I’m . . . the doorbell/the phone, anything would cause me to wake up.” (AR 443.)

25

Plaintiff also testified that he would take his kids to school, but that he would limit

26

himself on how much time he would be on the road at any one point. (AR 444.)

27

Specifically, Plaintiff would drive “a max of about two miles, at absolute most.” (Id.)

28

Plaintiff noted that his daughter’s school is “a mile and a half” away. (Id.) Plaintiff also

- 19 -

1

testified that if he received a narcoleptic warning, he would pull over and take a nap. (Id.)

2

Plaintiff also explained that the extreme cataplexy was not an issue, because it is caused by

3

“extreme emotion[,]” and Plaintiff asserts that if he is feeling emotional, he just does not

4

drive. (AR 444-45.)

5

Plaintiff asserts that he maintains a regular sleep schedule, per doctors’

6

recommendations, and that “sometimes . . . [he] would doze off in addition to the regular

7

schedule.” (AR 445.) He also asserts that he was never able to “get through a day without

8

taking a nap or falling asleep.” (Id.) Plaintiff testified that he was currently taking the

9

medication, Nuvigil. (AR 446.) Plaintiff testified that “it’s helped my symptoms. It’s not

10

eradicated them or however, you know, it’s . . . not a cure, but it’s definitely been beneficial

11

to me to . . . have the medicine.” (Id.) He testified that on the medication, he is able to take

12

a nap between noon and 1:00 pm each day, for about a half-hour, and another nap in the

13

afternoon. (AR 446-47.) Plaintiff also testified that the periods where he just falls asleep

14

are less frequent than before, and that now “it’s more isolated toward the afternoon.” (AR

15

447.) Plaintiff testified that he continues to use his CPAP machine for treatment of his sleep

16

apnea. (Id.)

17

The ALJ gave the following reasons for finding Plaintiff’s testimony not fully

18

credible: (1) Plaintiff’s daily activities are inconsistent with his alleged severity of

19

symptoms, and (2) Plaintiff’s statements regarding his symptoms and limitations “are

20

inconsistent with the evidence of record,” and (3) Plaintiff has received successful

21

treatment for narcolepsy with cataplexy. (AR 409-11.)

22

A.

Daily Activities.

23

An ALJ may reject a claimant’s symptom testimony if it is inconsistent with the

24

claimant’s daily activities. See Burch v. Barnhart, 400 F.3d 676, 681 (9th Cir. 2005). But

25

“ALJs must be especially cautious in concluding that daily activities are inconsistent with

26

testimony” about subjective symptoms, like pain or fatigue, “because impairments that

27

would unquestionably preclude work and all the pressures of a workplace environment will

28

often be consistent with doing more than merely resting in bed all day.” Garrison, 759 F.3d

- 20 -

1

at 1016. Thus, an ALJ may use a claimant’s daily activities to discredit symptom testimony

2

only if the claimant “spend[s] a substantial part of his day engaged in pursuits involving

3

the performance of physical functions that are transferable to a work setting.” Orn, 495

4

F.3d at 639 (emphasis added); Reddick, 157 F.3d at 722 (“Only if the level of activity were

5

inconsistent with Claimant’s claimed limitations would these activities have any bearing

6

on Claimant’s credibility.”).

7

Here, the ALJ found that Plaintiff’s daily activities were inconsistent with his

8

symptom testimony. Specifically, the ALJ states that Plaintiff’s testimony that he is able to

9

take care of his son by “tak[ing] [his] naps at the same time [his] child is taking his naps”

10

is inconsistent with the Plaintiff’s “allegations that he would fall asleep four to five times

11

a day in addition to a two-hour nap and that he could fall asleep in public” and that he will

12

“fall[] asleep at inappropriate times and fall[] asleep unplanned” (AR 409). The ALJ makes

13

a second similar observation, stating that Plaintiff’s “daily activities of caring for his young

14

son, taking his other children to school, shopping in stores, and driving are inconsistent

15

with [Plaintiff’s] allegations of unplanned sleeping and uncontrolled cataleptic attacks.

16

(AR 410.) The ALJ also states that Plaintiff’s symptom testimony is inconsistent with the

17

fact that “[Plaintiff] continued to show improvement after the date last insured.” (AR 411

18

(identifying that “[Dr. Briggs] indicated that narcolepsy was no longer an issue due to

19

improvement with Nuvigil.”).) The Court agrees, and finds that the reasoning provided by

20

the ALJ for discounting Plaintiff’s symptom testimony is sufficient.

21

Plaintiff argues that the ALJ’s reasoning fails because it does not explain how these

22

daily activities conflict with Plaintiff’s testimony. (See doc. 25 at 15.) Plaintiff argues that

23

it is clear that Plaintiff’s condition is not a “totally debilitating impairment.” (Id.) Plaintiff

24

asserts that he has testified that his impairments permit him to “exercise to some amount,

25

read, watch television, and spend time with children[,]” but they also cause him to “need

26

to nap[,]” which creates “a lack of consistency in sustaining activities due to exhaustion.”

27

(Id.) But, Plaintiff asserts, the ALJ does nothing to explain how the daily activities he

28

describes show that Plaintiff’s symptoms are less severe than he has testified. (Id.)

- 21 -

1

Plaintiff’s argument is unavailing.

2

The ALJ identifies specific inconsistencies between Plaintiff’s testimony and the

3

record, including that (1) Plaintiff’s testimony that he would fall asleep unplanned and

4

uncontrolled is inconsistent with being the sole caretaker for his young son; and

5

(2) Plaintiff’s testimony that he would fall asleep in public places while sitting is

6

inconsistent with his testimony that he does not fall asleep in traffic. This is a clear and

7

convincing reason to discredit Plaintiff’s testimony regarding the severity of his symptoms.

8

See Thomas, 278 F.3d at 954 (“Where the evidence is susceptible to more than one rational

9

interpretation, one of which supports the ALJ’s decision, the ALJ’s conclusion must be

10
11

upheld.”).
B.

Inconsistent with the Medical Record.

12

The ALJ next found that Plaintiff’s statements regarding his symptoms and

13

limitations “are inconsistent with the evidence of record.” (AR 410.) Specifically, the ALJ

14

observes that “[i]n a sleep history questionnaire, [Plaintiff] reported a high chance of falling

15

asleep while sitting and reading, watching television, lying down to rest, and sitting quietly

16

after a meal (Exhibit 3F/23).” (Id.) “[Plaintiff] also reported a moderate chance of falling

17

asleep when while sitting inactive in a public place, as a passenger in a car for one hour

18

without a break, and while sitting and talking to someone (Exhibit 3F/23).” (Id.) But

19

“[Plaintiff] reported no chance of falling asleep while driving in a car stopped in a few

20

minutes of traffic (Exhibit 3F/23).” (Id.) The ALJ opines that “[Plaintiff’s] allegations of

21

uncontrolled sleepiness and falling asleep in public places or while sitting are inconsistent

22

with his allegation that he would not fall asleep while sitting in traffic.” (Id.)

23

Plaintiff argues that the questionnaire “addressed falling asleep while driving and

24

stopped in a few minutes of traffic. [(AR 259-61.)]” (Doc. 14 at 26.) “Driving is not

25

comparable to sitting inactive.” (Id.) Plaintiff has also argues that he has reduced his

26

driving to only 1-2 miles at a time, and has stated on multiple occasions that he has been

27

forced to pull over and rest. (See AR 45-46, 443-44, 385, 709, 707, 700, 693.) As discussed

28

above, the Court agrees with the ALJ that Plaintiff’s testimony regarding his ability to drive

- 22 -

1

is inconsistent with his testimony of falling asleep while sitting inactive. But this does not

2

show an inconsistency between Plaintiff’s testimony and the medical records.

3

The ALJ also notes that

4

although the claimant alleged falling asleep in inappropriate places such as
doctor’s offices (Exhibit 4E), he was routinely observed to be awake, alert,
and oriented during medical appointments and he had normal orientation,
memory, attention, language, and fund of knowledge (Exhibits 2F/2, 4, 6;
3F/l, 4; SF/2, 5; 7F/2; l lF/29). Moreover, while the claimant alleged that he
did not walk regularly or exercise because he was too tired (Exhibit 4E), he
told a treatment provider that he exercised two to three times a week (Exhibit
SF/4). The claimant was also encouraged to be physically active for at least
30 minutes on most or all days of the week (Exhibit SF/2). Specifically, it
was suggested that the claimant set a goal for moderate intensity physical
activities such as walking at a brisk pace and that he take the stairs rather
than the elevator and go for a walk after dinner (Exhibit SF/2). Accordingly,
the evidence does not support that the claimant was limited to the extent he
alleged.

5
6
7
8
9
10
11
12

(Id.) Each of these “inconsistencies with the medical record” identified by the ALJ are

13

taken out of context, and in a vacuum. Plaintiff has testified that he is easily aroused from

14

sleep, and that he has forewarning before a narcoleptic episode forces him to lie down.

15

Thus, it is not inconceivable that Plaintiff would fall asleep in a doctor’s office while

16

waiting, and be woken when his name is called. Or that he would avoid exercise because

17

he felt a narcoleptic episode coming on. Additionally, Plaintiff’s testimony is not

18

inconsistent with the medical record because physicians have advised him to be physically

19

active, park far from the door at stores, or to take the stairs instead of the elevator. In fact,

20

those recommendations and advisements do not speak to Plaintiff’s symptoms at all.

21

The Court finds that the ALJ’s reasoning that Plaintiff’s symptom testimony is

22

inconsistent with the medical record is not supported by substantial evidence that “is

23

specific, clear, and convincing.” See Vasquez, 572 F.3d at 591. Accordingly, this reasoning

24

by the ALJ fails to justify discrediting Plaintiff’s symptom testimony.

25

C.

Plaintiff has received Successful Treatment.

26

The ALJ’s third reason for discounting Plaintiff’s symptom testimony is that the

27

record shows he has “received treatment for narcolepsy with cataplexy.” (AR 410.)

28

Initially, Plaintiff’s progress was stunted because he either was not on medication, or would

- 23 -

1

fail to consistently take the medication when prescribed. (AR 410.) Specifically, the ALJ

2

states that

3
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

In August 2008, the claimant told a treating physician that he had at 15-year
history of narcolepsy and cataplexy, but he had not received treatment for
these conditions (Exhibit lF/2). In December 2009, it was noted that the
claimant was not currently on medication (Exhibit 2F/5). The claimant was
prescribed medication for his narcolepsy with cataplexy (Exhibit 2F/7). After
beginning medication, it was noted that the claimant was no longer falling
down due to cataplexy (Exhibit 2F/l). However, the claimant was
inconsistent with taking his medication. In May 2010, it was noted that the
claimant stopped taking his medication after one month because he felt it did
not help him (Exhibit 2F/4). Further, a treatment provider indicated that it
was difficult to assess the efficacy of the medication Xyrem because the
claimant stopped using it (Exhibit 13F/5). Subsequently, it was noted that the
claimant’s symptoms improved with Xyrem (Exhibit 7F/l).
(AR 410-411.) The ALJ also notes that “[Plaintiff] continued to show improvement after
the date last insured. Specifically, it was noted that the claimant had relief from Nuvigil
and that he was doing well with Nuvigil (Exhibit 18F/l, 17).” (AR 411.) Further, it was
observed by consultative examiner, Dr. Briggs, “that narcolepsy was no longer an issue
due to improvement with Nuvigil.” (AR 411; 653.)
The Commissioner argues that this evidence cited by the ALJ shows that Plaintiff’s
narcolepsy was controlled with treatment after Plaintiff’s date last insured, and that “the
salient question under Warre is whether the condition could be controlled with medication.
Here, the consultative examination, as well as Dr. Anderson’s treatment notes . . . support
the ALJ’s finding.” (Doc. 15 at 11.) The Court agrees.
Plaintiff argues that the ALJ’s opinion is identifying a “lack” of evidence as a reason
for discounting Plaintiff’s testimony, and that the Commissioner is engaging in improper
post hoc reasoning. (Doc. 25 at 17 (citing Bray v. Comm’r of Soc. Sec. Admin., 554 F.3d
1219, 1225 (9th Cir. 2009) (“Longstanding principles of administrative law require us to
review the ALJ’s decision based on the reasoning and factual findings offered by the ALJ
– not post hoc rationalizations that attempted to intuit what the adjudicator may have been
thinking.”). Plaintiff’s argument is not persuasive.
This is not post hoc reasoning. In his decision, the ALJ clearly indicates that
Plaintiff’s condition was controlled with treatment. (See AR 411.) The ALJ also indicates
- 24 -

1

that Plaintiff showed improvement with the medication Xyrem before he stopped taking it

2

because “he felt it did not help him.” (Id.) The ALJ also notes that, when treated with

3

Nuvigil, Plaintiff’s narcolepsy “was no longer an issue[,]” according to Dr. Briggs. (Id.)

4

The Court finds the ALJ’s reasoning to present specific clear, and convincing reasons for

5

discounting Plaintiff’s testimony. See Vasquez, 572 F.3d at 591.

6

V.

Conclusion.

7

The ALJ has provided sufficient, clear and convincing reasons for discounting

8

Plaintiff’s symptom testimony. Specifically, The ALJ’s reasoning that (1) Plaintiff’s daily

9

activities are inconsistent with his alleged severity of symptoms, and (2) Plaintiff has

10

received successful treatment for narcolepsy with cataplexy (AR 409-11), constitute clear

11

and convincing reasons to discount Plaintiff’s testimony. Additionally, the ALJ has

12

provided specific and legitimate reasons for discounting the opinion evidence of Plaintiff’s

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treating physician, Dr. Anderson. Accordingly, the Court finds that the ALJ did not engage

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in legal error and that his decision is supported by substantial evidence. Accordingly,

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IT IS ORDERED that the final decision of the Commissioner of Social Security is
affirmed. The Clerk shall enter judgment accordingly and terminate this case.
Dated this 27th day of September, 2018.

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Honorable John Z. Boyle
United States Magistrate Judge

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