Rolston v. Colvin

Filing 21

ORDER, the Commissioner's disability determination is affirmed; the Clerk is directed to enter judgment in favor of the Commissioner and against Plaintiff and to terminate this action. Signed by Magistrate Judge Bridget S Bade on 2/17/15. (REW)

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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 Jolene Mae Rolston, No. CV-14-08040-PCT-BSB Plaintiff, 10 11 v. 12 ORDER Carolyn W. Colvin, Acting Commissioner of Social Security, 13 Defendant. 14 15 Plaintiff Jolene Mae Rolston seeks judicial review of the final decision of the 16 Commissioner of Social Security (the Commissioner) denying her application for 17 disability insurance benefits under the Social Security Act (the Act). The parties have 18 consented to proceed before a United States Magistrate Judge pursuant to 28 19 U.S.C. § 636(b), and have filed briefs in accordance with Local Rule of Civil Procedure 20 16.1. For the following reasons, the Court affirms the Commissioner’s decision. 21 I. Procedural Background 22 On November 4, 2010, Plaintiff applied for disability insurance benefits under 23 Title XVI of the Act. (Tr. 21.)1 Plaintiff alleged disability beginning November 1, 2010. 24 (Id.) After the Social Security Administration (SSA) denied Plaintiff’s initial application 25 and her request for reconsideration, she requested a hearing before an administrative law 26 judge (ALJ). After conducting a hearing, the ALJ issued a decision finding Plaintiff not 27 28 1 (Doc. 17.) Citations to “Tr.” are to the certified administrative transcript of record. 1 disabled under the Act. (Tr. 21-29.) This decision became the final decision of the 2 Commissioner when the Social Security Administration Appeals Council denied 3 Plaintiff’s request for review. (Tr. 1-6); see 20 C.F.R. §§ 404.981, 416.1481 (explaining 4 the effect of a disposition by the Appeals Council.)2 Plaintiff now seeks judicial review 5 of this decision pursuant to 42 U.S.C. § 405(g). 6 II. Administrative Record 7 The record before the Court establishes the following history of diagnosis and 8 treatment related to Plaintiff’s health. The record also includes opinions of state agency 9 physicians who examined Plaintiff and reviewed the records related to Plaintiff’s 10 11 impairments, but who did not provide treatment. A. Treatment Records 1. 12 North Country Health Care and Urgent Care 13 Since approximately 2006, Plaintiff has received primary health care from North 14 Country Health Care (North Country). (Tr. 256-89.) On October 11, 2010, Plaintiff saw 15 Nurse Practitioner (NP) Susan Collins at North Country primarily for “breathing issues.” 16 (Tr. 260.)3 Plaintiff complained of depression and anxiety (fear of leaving the house and 17 panic attacks), back and hip pain, difficulty breathing, and shortness of breath with 18 activity. (Tr. 262.) NP Collins noted that Plaintiff was accompanied by her daughter, 19 granddaughter, and young grandson. (Id.) Plaintiff reported that her family was with her 20 “for support and to assure she [did not] wiggle out of being seen as she [was] very 21 anxious and agoraphobic by nature and coming to the doctor’s office [was] a terror 22 producing thought.” (Id.) NP Collins noted that Plaintiff described panic attacks when 23 she was in the shower and that she “flit[ted] from one thought to another and was very 24 nervous.” (Tr. 262-63.) 25 26 27 28 2 20 C.F.R. part 404 addresses Title II of the Act, and has parallel citations in part 416, which addresses Title XVI. 3 The October 11, 2010 treatment notes also appear at Tr. 278-81. -2- 1 Plaintiff reported that she started smoking when she was seventeen and was 2 smoking forty cigarettes per day. (Tr. 261-62.) Plaintiff reported being eager to quit 3 smoking. (Tr. 262.) She reported that she was “a poor house cleaner because the effort 4 cause[d] her to have a hard time breathing.” (Id.) On examination, Plaintiff was in “no 5 acute distress,” and had “no rales, rhonchi, or wheezes.” (Id.) NP Collins assessed 6 shortness of breath, anxiety, panic attack, and tobacco abuse. (Tr. 263.) She prescribed 7 Advair and Proair inhalers and referred Plaintiff for spirometry testing and to “a mental 8 health facility for her depression fears, [and] phobias.” (Tr. 263.) She also discussed a 9 smoking cessation plan. (Id.) 10 Spirometry testing performed on October 25, 2010 showed evidence of 11 “moderate” Chronic Obstructive Pulmonary Disease (COPD). (Tr. 407-08, 287-90.) 12 During an October 25, 2010 appointment with Dr. Shipra Bonsal, Plaintiff reported that 13 her prescribed inhaler QVAR was not “working,” and she was still using ProAir up to 14 five to seven times a day. (Tr. 258.) On examination, Plaintiff had a “wheeze” and 15 “reduced breath sounds diffusely.” (Id.) Dr. Bonsal indicated that Plaintiff had “no 16 depression, anxiety, or agitation.” (Id.) Dr. Bonsal recommended that Plaintiff, who 17 reported smoking seven cigarettes per day, stop smoking, use a humidifier, and stay 18 hydrated. (Id.) She also prescribed Atrovent and Adviar inhalers, and removed QVAR. 19 During a November 1, 2010 appointment, NP Collins noted that spirometry testing 20 revealed “moderate COPD.” (Tr. 271.)4 During that appointment, Plaintiff reported that 21 she had been smoking two packs of cigarettes per day, but she had reduced her cigarette 22 intake. (Id.) Plaintiff reported shortness of breath “only when doing activities.” (Id.) 23 Plaintiff denied dizziness and fatigue. (Id.) Plaintiff reported doing better on ProAir and 24 said that her insurance had denied the Advair and recommended QVAR or Flovent. (Id.) 25 On examination, Plaintiff was in “no acute distress,” and had “no rales, rhonchi, or 26 27 28 4 Treatment notes from the November 1, 2010 appointment are duplicated at Tr. 283-85 and Tr. 287-89. -3- 1 wheezes.” (Tr. 272.) NP Collins assessed COPD, prescribed a QVAR inhaler, and 2 discussed a smoking cessation plan with Plaintiff. (Id.) 3 On May 16, 2011, Plaintiff saw Dr. Bansal for complaints of continued shortness 4 of breath. (Tr. 401.) Plaintiff reported using ProAir five to seven times per day and that 5 she had cut back to seven cigarettes a day. (Id.) On examination, Dr. Bansal found left 6 upper quadrant wheezing and reduced breath sounds diffusely. (Tr. 402.) She also noted 7 that Plaintiff had no “depression, anxiety, or agitation.” (Id.) Dr. Banal found that 8 Plaintiff’s COPD was inadequately controlled and adjusted her medication. (Tr. 401.) 9 She prescribed an Atrovent inhaler in place of QVAR. (Tr. 402-03.) She recommended 10 that Plaintiff stop smoking, use a humidifier, and stay hydrated. (Tr. 402.) 11 During a July 18, 2011 appointment with Dr. Bansal, Plaintiff reported that the 12 Advair was “working.” (Tr. 398.) Plaintiff reported that she was down to two cigarettes 13 a day and was “doing better.” (Tr. 399.) On examination, Plaintiff was in no acute 14 distress, she had “no rales, rhonci, or wheezes,” but had “reduced breath sounds 15 diffusely.” (Id.) Dr. Banal noted that Plaintiff’s COPD had improved significantly on 16 Advair and Atrovent and that she was “off [the] emergency inhaler entirely.” (Id.) She 17 also noted that Plaintiff’s tobacco abuse had improved and that Plaintiff was down to two 18 cigarettes a day. (Id.) Dr. Bansal prescribed Atrovent, Advair, and ProAir. (Id.) 19 On March 23, 2012, Plaintiff presented to Urgent Care for bronchitis. (Tr. 318.) 20 She was prescribed a cough suppressant and a course of antibiotics and was advised to 21 “rest and get plenty of fluids.” (Id.) 22 2. Matthew Wise, M.D. 23 On June 11, 2012, Plaintiff saw Dr. Wise to establish primary medical care. 24 (Tr. 361-63.) She reported difficulty walking due to shortness of breath, coughing, and 25 wheezing. (Tr. 361.) Plaintiff reported that she had been a heavy smoker for years but 26 that she was down to two cigarettes daily. (Id.) She also reported “severe anxiety,” 27 explaining that meeting new people or going to the grocery store had been a challenge for 28 her for the last ten years. (Id.) Plaintiff reported fatigue, weakness, shortness of breath, -4- 1 wheezing, coughing, anxiety, and agoraphobia. (Tr. 361-62.) On examination, Plaintiff 2 was in no apparent distress, her breath sounds were “clear to auscultation bilaterally,” and 3 she had no rales or wheezes. (Tr. 362.) Dr. Wise diagnosed COPD, anxiety disorder, 4 tobacco abuse, and back pain, and prescribed Advair, ProAir, and sertraline (Zoloft) for 5 anxiety. (Tr. 363.) He encouraged Plaintiff to cut back to one cigarette per day and to try 6 to quit entirely. (Id.) Dr. Wise noted that Plaintiff attended the appointment with her 7 sister. 8 During a July 3, 2012 appointment, Plaintiff reported no change in her anxiety on 9 the Zoloft and said that she had not been sleeping well. (Tr. 359.) Plaintiff reported 10 shortness of breath on exertion and wheezing. (Id.) On examination, Plaintiff was in no 11 acute distress and was comfortable. (Id.) Dr. Wise assessed COPD, anxiety disorder, 12 and back pain. (Id.) He prescribed Advair, Atrovent, ProAir, and sertraline. (Tr. 360.) 13 He advised Plaintiff to quit smoking. (Id.) 14 On August 14, 2012, Plaintiff reported that the Zoloft was “helping some,” but 15 that she “still ha[d] enough anxiety that her stomach [was] upset.” (Tr. 357.) She 16 reported that her anxiety was “especially bad” when she was told she had to go to Tucson 17 to see a doctor for her disability claim. (Id.) She reported that she did not take trips due 18 to her anxiety and that going anywhere, including Dr. Wise’s office or to the store, 19 caused anxiety. (Id.) On examination, Plaintiff was pleasant, comfortable, and in no 20 acute distress. (Tr. 358.) She had “nonlabored breathing, no distress, CTA bilaterally 21 with no w/r/r [wheeze/rales/rhoncitis], [and] good air movement.” 22 assessed COPD, anxiety disorder NOS (not otherwise specified), back pain, and tobacco 23 abuse. (Id.) Dr. Wise increased the dosage of Zoloft and recommended counseling. 24 (Tr. 358.) Plaintiff reported that she was “too anxious to go” to counseling, but could 25 attend counseling “perhaps after she [was] on a higher dose of meds.” (Id.) Dr. Wise 26 continued Advair, ProAir, and Atrovent, and recommended smoking cessation. (Id.) (Id.) Dr. Wise 27 During an August 28, 2012 appointment, Plaintiff reported that the increased 28 dosage of Zoloft had caused diarrhea and requested a different medication. (Tr. 354.) -5- 1 Dr. Wise changed Plaintiff’s antidepressant to citalopram (Celexa). (Tr. 355.) Plaintiff 2 also reported that she used her inhalers with activities such as vacuuming and that she 3 had cut down to two cigarettes total in the preceding week. (Tr. 354.) She reported 4 having an appointment to see a psychologist in connection with her disability claim. (Tr. 5 355.) On examination, Plaintiff was in no acute distress, pleasant, comfortable, and alert. 6 (Id.) She had “nonlabored breathing, no distress, CTA bilaterally, no w/r/r, [and] good 7 air movement.” (Id.) “Psychologically,” she had “good eye contact, normal insight, no 8 thought disturbances,” and was “slightly anxious appearing.” (Id.) 9 On September 20, 2012, Plaintiff reported that she had completed “her disability 10 test with a psychologist in Scottsdale,” and that she “had a panic attack there in the 11 office.” (Tr. 446.) She reported that her anxiety attacks continued, and she remained 12 housebound. (Id.) Plaintiff stated that she had cut back to smoking one cigarette every 13 fews day. (Id.) Plaintiff reported shortness of breath with exertion and wheezing. 14 (Tr. 447.) On examination, Plaintiff was in no acute distress and was pleasant. (Tr. 448.) 15 Her “breath sounds were clear to auscultation bilaterally,” and she had no rales or 16 wheezes. (Id.) Dr. Wise assessed COPD, tobacco abuse, anxiety disorder NOS, back 17 pain, and diarrhea. (Id.) He continued Plaintiff’s prescription for her Atrovent, ProAir, 18 Advair, and Celexa. (Tr. 449.) He encouraged Plaintiff to quit smoking. (Tr. 448.) 19 20 B. Medical Opinions 1. Patricia Rose, ED.D 21 On January 4, 2011, a state agency licensed psychologist, Dr. Rose, examined 22 Plaintiff for her disability benefits application. (Tr. 296-301.) Plaintiff attended the 23 examination alone, but reported that a friend drove her to the doctor’s office. (Tr. 296.) 24 Plaintiff reported that she was unable to work due to symptoms arising from anxiety and 25 COPD. (Id.) She reported that she had been anxious and afraid to drive for the six years, 26 since her involvement in a car accident, and stated that she had difficulty waitressing due 27 to breathing problems, and because she periodically got boils on her legs. (Tr. 297, 299.) 28 -6- 1 Plaintiff also stated that although she experienced anxiety daily, she could go out in 2 public when she had to do so. (Tr. 297-98.) 3 On examination, Plaintiff was oriented, had good short-term memory, and normal 4 attention and concentration. (Tr. 296.) She was pleasant, cooperative, friendly, and had 5 good interpersonal skills. (Tr. 297.) During the mental status examination, Plaintiff 6 made three mistakes on “serial threes from forty,” and mistakes on simple arithmetic 7 problems, which was indicative of possible mild intellectual deficits. (Tr. 296.) Dr. Rose 8 noted that Plaintiff had no signs of psychosis, depression, or anxiety. (Id.) 9 Dr. Rose opined that Plaintiff had “avoid[ed] dealing with the world for a long 10 period of time, and she ha[d] developed a sense of anxiety about dealing with new 11 situations.” (Tr. 299.) Dr. Rose also noted that, based on Plaintiff’s report, although she 12 experienced anxiety at times during her waitressing job, she was able to “work through 13 it” by getting help from her coworkers. (Tr. 299.) Dr. Rose, opined that Plaintiff “could 14 probably [work through anxiety at work] currently.” (Id.) Dr. Rose diagnosed anxiety 15 disorder and ruled out agoraphobia because of Plaintiff’s ability to go out in public or 16 ride in a car “when necessary.” (Tr. 300.) She also diagnosed possible mild intellectual 17 deficits and COPD. (Id.) On a Psychological/Psychiatric Medical Source Statement, 18 Dr. Rose opined that Plaintiff did “not present with any significant psychiatric barriers to 19 employment.” (Id.) 20 2. Mark Brecheisen, D.O. 21 On January 11, 2011, state agency physician Dr. Brecheisen examined Plaintiff for 22 her disability benefits application. (Tr. 304-07.) Plaintiff reported a history of COPD 23 and emphysema. (Tr. 304.) Plaintiff reported that she used inhalers daily, chronically 24 felt short of breath, and tried to stay home to avoid exposure to things that aggravated her 25 condition. (Id.) Plaintiff reported that she could perform all activities of daily living and 26 that she could drive. (Tr. 305.) 27 On examination, Dr. Brecheisen noted that Plaintiff walked around the 28 examination room without assistance. (Id.) Dr. Brecheisen noted that Plaintiff had -7- 1 coarse and diminished breath sounds with a mild expiratory wheeze. (Tr. 306.) Plaintiff 2 had a normal gait, full range of motion in all joints, full muscle strength, no sensory 3 deficits, and normal reflexes. (Tr. 306-07.) 4 He conducted a pulmonary function test and found that Plaintiff “gave inadequate 5 effort.” (Tr. 302.) Dr. Brecheisen interpreted the pulmonary function test as consistent 6 with “mild obstructive pulmonary disease.” (Tr. 302, 307.) Dr. Brecheisen diagnosed a 7 history of COPD, anxiety, and cervical cancer. (Tr. 307.) He found “no objective 8 medical evidence to support [Plaintiff’s] allegations of permanent disability for a period 9 of no less than 12 continuous months of this exam date.” (Id.) He did not identify any 10 functional limitations. (Id.). 11 3. Matthew Wise, M.D. 12 On June 11, 2012, the date of his first appointment with Plaintiff, treating 13 physician Dr. Wise completed a Multiple Impairment Questionnaire. (Tr. 319-26.) He 14 identified his diagnoses as COPD and chronic anxiety. (Tr. 319.) He stated that his 15 diagnoses were supported by testing that showed moderate COPD in 2010 and Plaintiff’s 16 complaints of shortness of breath with ambulation. (Tr. 319-20.) He identified Plaintiff’s 17 primary symptoms as shortness of breath and “severe anxiety with agoraphobia.” 18 (Tr. 320.) 19 Plaintiff’s physical functional limitations. (Tr. 322-23.) Additionally, he did not indicate 20 how often Plaintiff’s symptoms would interfere with attention and concentration. 21 (Tr. 324.) However, he noted Plaintiff’s anxiety would worsen if she were placed in a 22 competitive work environment (Tr. 323), and that “emotional factors contribut[ed] to the 23 severity of [Plaintifff’s] symptoms and functional limitations.” (Tr. 324.) He explained 24 that due to her “severe anxiety,” Plaintiff’s “family ha[d] to convince her to go to 25 app[ointmen]ts or even shopping and [had] to accompany her or she [would not] go.” 26 (Id.) 27 environment due to her anxiety. (Id.) Dr. Wise did not complete the portions of the questionnaire regarding Dr. Wise opined that Plaintiff was “incapable of even low stress” in a work 28 -8- 1 One month later, on July 12, 2012, Dr. Wise completed a 2 Psychiatric/Psychological Impairment Questionnaire. (Tr. 343-50.) Dr. Wise identified 3 Plaintiff’s diagnoses as anxiety disorder, COPD, and back pain. (Tr. 343.) He identified 4 her primary symptoms as anxiety and difficulty breathing. (Tr. 345.) To support the 5 limitations identified on the questionnaire, Dr. Wise cited Plaintiff’s appetite disturbance 6 with weight change, recurrent panic attacks, difficulty thinking or concentrating, social 7 withdrawal or isolation, decreased energy, persistent irrational fears, and generalized 8 persistent anxiety. (Tr. 344.) He opined that Plaintiff was “markedly limited” in her 9 abilities to work in coordination with others without being distracted by them, complete a 10 normal workweek without interruption from psychologically based symptoms, perform at 11 a consistent pace, to interact appropriately with the public, to get along with co-workers 12 without distracting them or exhibiting behavioral extremes, and to travel to unfamiliar 13 places or use public transportation. (Tr. 345-48.) He explained that Plaintiff had severe 14 anxiety when meeting new people and did not go to the store without a family member. 15 (Tr. 348.) He concluded that Plaintiff could not tolerate a “low stress” work environment 16 and that she would likely miss more than three workdays a month due to her 17 impairments. (Tr. 349-50.) 18 On September 20, 2012, Dr. Wise wrote a letter “to whom it may concern” 19 summarizing his treatment of Plaintiff. (Tr. 455-56.) He stated that he had treated 20 Plaintiff for COPD and “severe anxiety” since June 2012. (Id.) He stated that Plaintiff’s 21 anxiety “is such that she has agoraphobia and does not go to public places including 22 stores.” (Tr. 455.) He noted that Plaintiff’s agoraphobia had interfered with her medical 23 care in that she would not attend an appointment for a colonoscopy due to anxiety. (Id.) 24 Dr. Wise also stated that COPD further limited Plaintiff’s activities. 25 Dr. Wise noted that the damage to Plaintiff’s lungs was “not reversible” and that 26 medications could “help to improve some of the reactive airway component.” (Id.) He 27 stated that Plaintiff’s anxiety was exacerbated by the shortness of breath related to her 28 COPD, and opined that she would continue to require counseling and medication. (Id.) -9- (Id.) 1 He concluded that, due to those impairments, Plaintiff would be “unable to work” for 2 longer than twelve months. (Id.) 4. 3 Shannon Tromp, Ph.D. 4 On recommendation from her attorney (Doc. 18 at 8, Tr. 365), on September 17, 5 2012, Plaintiff was examined by Dr. Tromp for her claim for mental impairments. 6 (Tr. 365-71.) Dr. Tromp examined Plaintiff and reviewed the medical record related to 7 Plaintiff’s mental impairments. (Tr. 365.) Dr. Tromp noted that Plaintiff’s sister took her 8 to the appointment, but that Plaintiff “presented for the exam[ination] alone.” (Tr. 366.) 9 Plaintiff reported that she had experienced panic attacks most of her life, which 10 had gotten particularly “out of control” over the preceding seven years. (Tr. 366.) 11 Plaintiff reported that she rarely left her home except when her sister or daughter took her 12 to her doctors’ appointments about twice a month. (Tr. 366-67.) She reported that, since 13 a car accident, she was afraid to drive. (Tr. 366.) Plaintiff reported that the three-hour 14 drive to the exam caused her a great deal of panic symptoms. (Tr. 369.) She reported 15 that her sleep was interrupted and limited, and her energy was low. (Id.) Plaintiff stated 16 that she had not seen a psychiatrist or a counselor because it “would make [her] panic.” 17 (Tr. 367.) 18 Dr. Tromp observed that Plaintiff was teary-eyed on initial presentation and 19 appeared “mildly anxious” during the examination. (Tr. 369.) On examination, 20 Dr. Tromp found that Plaintiff had good eye contact, was “friendly and laughed a lot”, 21 her thoughts were “logical and goal directed,” her comprehension was “good,” her mood 22 was “a little panicky, a little nervous but comfortable?” her affect was “appropriate and 23 cheerful,” her memory was “adequate,” she had “good” concentration, and a “good” fund 24 of information. (Tr. 368.) Dr. Tromp diagnosed panic disorder with agoraphobia and 25 social anxiety disorder. (Id.) 26 On September 17, 2012, Dr. Tromp completed a Psychiatric/Psychological 27 Impairment Questionnaire based on her examination of Plaintiff and her review of 28 Plaintiff’s records. (Tr. 437-44.) She opined that Plaintiff was markedly limited in her - 10 - 1 abilities to maintain attention and concentration for extended periods, to perform 2 activities within a schedule and maintain regular attendance, to work with others without 3 being distracted by them, to complete a normal workweek, to perform at a consistent pace 4 without unreasonably long rest periods, to interact with the public, to accept instructions 5 and respond appropriately to criticism from supervisors, to get along with coworkers or 6 peers, and to travel to unfamiliar places or use public transportation. (Tr. 440-42.) She 7 added that Plaintiff could not tolerate “even [a] low stress” work environment due to her 8 intolerance of exposure to conflict and because leaving home and going places caused 9 panic attacks. (Tr. 443.) She opined that Plaintiff would likely miss more than three 10 workdays a month. (Tr. 443-44.) 11 III. Administrative Hearing Testimony 12 Plaintiff was in her early fifties at the time of the administrative hearing. (Tr.162.) 13 Plaintiff had a high school education. (Tr. 43.) Her past relevant work included waitress, 14 hostess, and snack-shop supervisor. (Tr. 43-44.) Plaintiff testified that she lived in a 15 room she rented at a friend’s house. (Tr. 41.) 16 Plaintiff testified that she smoked up to fifty cigarettes a day for about thirty years, 17 but had recently cut back to one cigarette a day and was trying to stop smoking. (Tr. 45.) 18 Plaintiff testified that she stopped working in 2002 because “it got too hard for [her] to 19 drive to get to work” (Tr. 44), and later testified that she quit because it was hard for her 20 to carry dishes because of her breathing. (Tr. 45.) She also testified that she had not 21 worked since 2002 because it was hard for her to leave home. (Tr. 44.) Plaintiff 22 explained that she waited until 2010 to file for disability insurance benefits because she 23 “was really scared” of “going out of the house to do the paperwork and stuff.” (Tr. 61.) 24 Plaintiff testified that she had not driven since 2002, and that she was scared to drive after 25 having been in car accidents in 1998 and 2002. (Tr. 42-43.) She relied on her sister to 26 drive her places. (Id.) 27 Plaintiff testified that she experienced panic attacks that made her shake and cry 28 two to three times a month, and which were generally triggered by having to leave the - 11 - 1 house or “have a test done.” (Tr. 50.) Plaintiff stated that, during an anxiety attack, she 2 got shaky, cried, felt like her “heart[] [was coming] out of [her] chest,” and could not 3 breathe. (Tr. 47.) Plaintiff further testified that she could not focus or concentrate during 4 a panic attack, and she usually relied on her sister to “talk [her] out of” an attack. 5 (Tr. 49.) Plaintiff claimed she had panic attacks when she went somewhere in a car, and 6 stated that she had a panic attack the morning of the administrative hearing. (Tr. 48-49.) 7 She testified that she had “talked [her]self out of doctors’ appointments because of [her] 8 anxiety.” (Tr. 48.) Plaintiff stated that her doctor was trying to adjust her medications to 9 “find one that work[ed]” for her. (Id.) To prevent panic attacks, Plaintiff avoided leaving 10 home. (Tr. 49.) The ALJ noted that Plaintiff was shaking and she stated that it was 11 because she felt nervous. (Id.) 12 When testifying about her COPD, Plaintiff stated that her doctors advised that her 13 lungs were damaged from years of smoking, but that quitting would help her symptoms. 14 (Tr. 50.) Plaintiff testified that she had cut back to one cigarette a day for about one 15 month, but she still had difficulty carrying things, such as taking her laundry basket from 16 her bedroom to the washing machine, vacuuming, or moping. (Tr. 50-51.) She testified 17 that she could mop for about half an hour but then had to sit down and use her inhaler to 18 recover her breathing before she finished the job. (Tr. 51.) Plaintiff also testified that 19 walking without carrying anything made her short of breath. (Id.) She stated that she did 20 not have problems breathing if she was standing still. (Id.) 21 Administrative expert Sandra Richter also testified at the administrative hearing. 22 (Tr. 52-59.) She identified Plaintiff’s past relevant work as (1) counter supervisor, 23 classified under the Dictionary of Occupational Titles (DOT) as an exertionally light, 24 skilled job (DOT 311.137-010), (2) hostess, a light, semi-skilled job (DOT 352.667-010), 25 and (3) waitress, a light, semi-skilled job (DOT 311.477-030). (Tr. 52.) 26 In response to the ALJ’s questions, the vocational expert testified that an 27 individual who was limited to unskilled light work would be unable to perform any of 28 Plaintiff’s past relevant work. (Tr. 53.) However, the vocational expert testified that an - 12 - 1 individual limited to unskilled light work, and who was also precluded from all 2 interaction with the public and exposure to any respiratory irritants, could perform light, 3 unskilled work as a mail clerk who sorted mail, a packager, and a bottle packager. 4 (Tr. 53-54.) 5 The vocational expert further testified that an individual with marked limitations 6 in the ability to work with or in proximity to others, to complete a normal workweek, and 7 to perform at a consistent pace without unreasonably long rest periods, would be unable 8 to perform any competitive work activity. 9 individual with marked limitations in the ability to maintain attention and concentration 10 for extended periods, to maintain a schedule, and to be reasonably punctual, would be 11 unable to sustain any work activity. (Tr. 58-59.) 12 IV. (Tr. 57-58.) She also testified that an The ALJ’s Decision 13 A claimant is considered disabled under the Social Security Act if she is unable 14 “to engage in any substantial gainful activity by reason of any medically determinable 15 physical or mental impairment which can be expected to result in death or which has 16 lasted or can be expected to last for a continuous period of not less than 12 months.” 42 17 U.S.C. § 423(d)(1)(A); see also 42 U.S.C. § 1382c(a)(3)(A) (nearly identical standard for 18 supplemental security income disability insurance benefits). To determine whether a 19 claimant is disabled, the ALJ uses a five-step sequential evaluation process. See 20 20 C.F.R. §§ 404.1520, 416.920. 21 A. The Five Step Sequential Evaluation Process 22 In the first two steps, a claimant seeking disability benefits must initially 23 demonstrate (1) that she is not presently engaged in a substantial gainful activity, and 24 (2) that her disability is severe. 20 C.F.R. § 404.1520(a)(4)(i) and (ii). If a claimant 25 meets steps one and two, there are two ways in which she may be found disabled at steps 26 three through five. At step three, she may prove that her impairment or combination of 27 impairments meets or equals an impairment in the Listing of Impairments found in 28 Appendix 1 to Subpart P of 20 C.F.R. Part 404. 20 C.F.R. § 404.1520(a)(4)(iii). If so, the - 13 - 1 claimant is presumptively disabled. If not, the ALJ determines the claimant’s residual 2 functional capacity (RFC). At step four, the ALJ determines whether a claimant’s RFC 3 precludes her from performing her past work. 20 C.F.R. § 404.1520(a)(4)(iv). If the 4 claimant establishes this prima facie case, the burden shifts to the government at step five 5 to establish that the claimant can perform other jobs that exist in significant number in the 6 national economy, considering the claimant’s RFC, age, work experience, and education. 7 20 C.F.R. § 404.1520(a)(4)(v). If the government does not meet this burden, then the 8 claimant is considered disabled within the meaning of the Act. 9 B. The ALJ’s Application of the Five Step Evaluation Process 10 Applying the five-step sequential evaluation process, the ALJ found that Plaintiff 11 had not engaged in substantial gainful activity during the relevant period. (Tr. 23.) At 12 step two, the ALJ found that Plaintiff had the following severe impairments: “shortness 13 of breath, Chronic Obstructive Pulmonary Disease (COPD), emphysema, tobacco abuse; 14 and an anxiety disorder with panic attacks (20 C.F.R. § 416.920(c)).” (Id.) At the third 15 step, the ALJ found that the severity of Plaintiff’s impairments did not meet or medically 16 equal the criteria of an impairment listed in 20 C.F.R. Part 404, Subpart P, Appendix 1. 17 (Id.) The ALJ next concluded that Plaintiff retained “the residual functional capacity to 18 perform light work with restrictions as light work is defined in 20 C.F.R. § 416.967(b).” 19 (Tr. 25.) The ALJ found that Plaintiff was limited to unskilled work and work with no 20 requirement for interaction with the public. (Id.) He further found that Plaintiff should 21 avoid exposure to extreme temperatures, humidity, dust, gases, or fumes. (Id.) 22 At step four, the ALJ concluded that Plaintiff could not perform her past relevant 23 work. (Tr. 28.) At step five, the ALJ found that considering Plaintiff’s age, education, 24 work experience, and RFC, she could perform other “jobs that exist in significant 25 numbers in the national economy.” (Tr. 28-29.) The ALJ concluded that Plaintiff had 26 not been under a disability within the meaning of the Act since November 4, 2010 27 through the date of the decision. (Tr. 29.) 28 - 14 - 1 V. Standard of Review 2 The district court has the “power to enter, upon the pleadings and transcript of 3 record, a judgment affirming, modifying, or reversing the decision of the Commissioner, 4 with or without remanding the cause for a rehearing.” 42 U.S.C. § 405(g). The district 5 court reviews the Commissioner’s final decision under the substantial evidence standard 6 and must affirm the Commissioner’s decision if it is supported by substantial evidence 7 and it is free from legal error. Smolen v. Chater, 80 F.3d 1273, 1279 (9th Cir. 1996); 8 Ryan v. Comm’r of Soc. Sec. Admin., 528 F.3d 1194, 1198 (9th Cir. 2008). Even if the 9 ALJ erred, however, “[a] decision of the ALJ will not be reversed for errors that are 10 harmless.” Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005). 11 Substantial evidence means more than a mere scintilla, but less than a 12 preponderance; it is “such relevant evidence as a reasonable mind might accept as 13 adequate to support a conclusion.” Richardson v. Perales, 402 U.S. 389, 401 (1971) 14 (citations omitted); see also Webb v Barnhart, 433 F.3d 683, 686 (9th Cir. 2005). In 15 determining whether substantial evidence supports a decision, the court considers the 16 record as a whole and “may not affirm simply by isolating a specific quantum of 17 supporting evidence.” 18 quotation and citation omitted). 19 testimony, determining credibility, and resolving ambiguities. See Andrews v. Shalala, 20 53 F.3d 1035, 1039 (9th Cir. 1995). “When the evidence before the ALJ is subject to 21 more than one rational interpretation, [the court] must defer to the ALJ’s conclusion.” 22 Batson v. Comm’r of Soc. Sec. Admin., 359 F.3d 1190, 1198 (9th Cir. 2004) (citing 23 Andrews, 53 F.3d at 1041). 24 VI. 25 Orn v. Astrue, 495 F.3d 625, 630 (9th Cir. 2007) (internal The ALJ is responsible for resolving conflicts in Plaintiff’s Claims Plaintiff asserts that the ALJ erred in assigning little weight to the opinions of 26 treating physician Dr. Wise and examining physician Dr. Tromp. 27 Plaintiff also argues that ALJ erred by finding her subjective complaints not credible. 28 (Id. at 15.) In response, the Commissioner argues that the ALJ’s decision is free from - 15 - (Doc. 18 at 11.) 1 legal error and is supported by substantial evidence in the record. (Doc. 19.) Plaintiff 2 has not filed a reply in opposition to the Commissioner’s response and the deadline to do 3 so has passed. (See Doc. 11.) 4 A. Assessing a Claimant’s Credibility 5 Plaintiff asserts that the ALJ erred by discrediting her symptom testimony. 6 (Doc. 18 at 15.) An ALJ engages in a two-step analysis to determine whether a 7 claimant’s testimony regarding subjective pain or symptoms is credible. Garrison v. 8 Colvin, 759 F.3d 995, 1014 (9th Cir. 2014) (citing Lingenfelter v. Astrue, 504 F.3d 1028, 9 1035-36 (9th Cir. 2007)). 10 “First, the ALJ must determine whether the claimant has presented objective 11 medical evidence of an underlying impairment ‘which could reasonably be expected to 12 produce the pain or other symptoms alleged.’” Lingenfelter, 504 F.3d at 1036 (quoting 13 Bunnell v. Sullivan, 947 F.2d 341, 344 (9th Cir. 1991) (en banc)). The claimant is not 14 required to show objective medical evidence of the pain itself or of a causal relationship 15 between the impairment and the symptom. Smolen, 80 F.3d at 1282. Instead, the 16 claimant must only show that an objectively verifiable impairment “could reasonably be 17 expected” to produce his pain. Lingenfelter, 504 F.3d at 1036 (quoting Smolen, 80 F.3d 18 at 1282); see also Carmickle v. Comm’r of Soc. Sec., 533 F.3d at 1160B61 (9th Cir. 2008) 19 (“requiring that the medical impairment ‘could reasonably be expected to produce’ pain 20 or another symptom . . . requires only that the causal relationship be a reasonable 21 inference, not a medically proven phenomenon”). 22 Second, if a claimant shows that she suffers from an underlying medical 23 impairment that could reasonably be expected to produce her pain or other symptoms, the 24 ALJ must “evaluate the intensity and persistence of [the] symptoms” to determine how 25 the symptoms, including pain, limit the claimant’s ability to work. 26 C.F.R. § 404.1529(c)(1). In making this evaluation, the ALJ may consider the objective 27 medical evidence, the claimant’s daily activities, the location, duration, frequency, and 28 intensity of the claimant’s pain or other symptoms, precipitating and aggravating factors, - 16 - See 20 1 medication taken, and treatments for relief of pain or other symptoms. 2 See 20 C.F.R. § 404.1529(c); Bunnell, 947 F.2d at 346. 3 At this second evaluative step, the ALJ may reject a claimant’s testimony 4 regarding the severity of her symptoms only if the ALJ “makes a finding of malingering 5 based on affirmative evidence,” Lingenfelter, 504 F.3d at 1036 (quoting Robbins v. Soc. 6 Sec. Admin., 466 F.3d 880, 883 (9th Cir. 2006)), or if the ALJ offers “clear and 7 convincing reasons” for finding the claimant not credible.5 Carmickle, 533 F.3d at 1160 8 (quoting Lingenfelter, 504 F.3d at 1036). “‘The clear and convincing standard is the 9 most demanding required in Social Security Cases.’” Garrison, 759 F.3d at 1015 10 (quoting Moore v. Soc. Sec. Admin., 278 F.3d 920, 924 (9th Cir. 2002)). Because there 11 was no record evidence of malingering, the ALJ was required to provide clear and 12 convincing reasons for concluding that Plaintiff’s subjective complaints were not wholly 13 credible. Plaintiff argues that the ALJ failed to do so. 1. 14 Reasons for Discrediting Plaintiff’s Symptom Testimony a. 15 The Objective Medical Evidence 16 The ALJ discounted Plaintiff’s allegations about the severity of her symptoms and 17 limitations as unsupported by the objective medical record. (Tr. 24-25.) The record 18 supports the ALJ’s determination. For example, as the ALJ noted, spirometry testing in 19 October 2010 showed “moderate COPD.” (Tr. 27, 271, 288, 339, 408.) The ALJ also 20 found that the evidence of Plaintiff’s anxiety and related symptoms was based on 21 Plaintiff’s self-reporting, not objective testing. (See Section II.A.) However, the absence 22 of fully corroborative medical evidence cannot form the sole basis for rejecting the 23 credibility of a claimant’s subjective complaints. See Cotton v. Bowen, 799 F.2d 1403, 24 1407 (9th Cir. 1986) (it is legal error for “an ALJ to discredit excess pain testimony 25 solely on the ground that it is not fully corroborated by objective medical findings”), 26 superseded by statute on other grounds as stated in Bunnell v. Sullivan, 912 F.2d 1149 27 5 28 The Ninth Circuit has rejected the Commissioner’s suggestion (Doc. 19 at 11) that a lesser standard than “clear and convincing” should apply. Garrison, 759 F.3d at 1015 n.18. - 17 - 1 (9th Cir. 1990); see also Burch, 400 F.3d at 681 (explaining that the “lack of medical 2 evidence” can be “a factor” in rejecting credibility, but cannot “form the sole basis”); 3 Rollins v. Massanari, 261 F.3d 853, 856-57 (9th Cir. 2001) (same). Thus, absent some 4 other stated legally sufficient reason for discrediting Plaintiff, the ALJ’s credibility 5 determination cannot stand. However, as discussed below, the ALJ provided additional 6 legally sufficient reasons for discounting Plaintiff’s symptom testimony. 7 b. Lack of Full Cooperation 8 The ALJ found that Plaintiff did not fully cooperate with spirometry testing during 9 a January 2011 appointment with state agency examining physician Dr. Breicheisen. 10 (Tr. 27.) The record supports that finding. (Tr. 302 (noting that Plaintiff did “gave 11 inadequate effort” during a pulmonary function test).) The ALJ properly considered 12 Plaintiff’s lack of full effort during testing with state agency physician Dr. Brecheisen to 13 support his adverse credibility determination. See Thomas v. Barnhart, 278 F.3d 947, 14 959 (9th Cir. 2002) (an ALJ may rely on lack of cooperation or poor effort during 15 examinations to discount a claimant’s credibility); Tonapetyan v. Halter, 242 F.3d 1144, 16 1148 (9th Cir. 2001) (the ALJ did not err in discrediting the claimant’s symptom 17 testimony based on her lack of cooperation during consultative examination in support of 18 his adverse credibility determination). Plaintiff’s failure to participate fully in testing 19 conducted by a state agency physician is a clear and convincing reason for discounting 20 her credibility that is supported by substantial evidence in the record. 21 c. Improvement in Symptoms 22 The ALJ also discounted Plaintiff’s symptom testimony because treatment notes 23 showed that Plaintiff’s respiratory condition improved with reduced smoking. (Tr. 27.) 24 In assessing a claimant’s credibility about her symptoms, the ALJ may consider “the 25 type, dosage, effectiveness, and side effects of any medication,” and treatment other than 26 medication, that the claimant has received for relief of pain or other symptoms. 20 27 C.F.R. § 404.1529(c)(3)(iv) and (v). Evidence that treatment can effectively control a 28 claimant’s symptoms may be a clear and convincing reason to find a claimant less - 18 - 1 credible. See Warre v. Comm’r of Soc. Sec. Admin., 439 F.3d 1001, 1006 (9th Cir. 2006) 2 (stating that “[i]mpairments that can be controlled effectively with medication are not 3 disabling for purposes of determining eligibility for SSI benefits.”). 4 As the ALJ noted (Tr. 27), the record reflects that Plaintiff’s COPD symptoms 5 improved with treatment and with reduced smoking. 6 improvement on advair/atrovent,” “down to 2 cig/day,” and noting that Plaintiff had 7 made “enormous strides in weaning herself” from cigarettes and had “significant 8 improvement” in cardio-pulmonary functioning).) 9 Plaintiff’s symptoms with reduced smoking was a clear and convincing reason for 10 (Tr. 335 (noting “significant Accordingly, the improvement of discounting her credibility that is supported by substantial evidence in the record. d. 11 Conservative Treatment 12 The ALJ also discounted Plaintiff’s testimony because he found that she had 13 “moderate COPD” for which she received conservative treatment, noting that she was not 14 hospitalized for COPD symptoms. 15 conservative course of treatment to reject her complaints of disabling limitations or pain. 16 See Fair v. Bowen, 885 F.2d 597, 604 (9th Cir. 1989); Johnson v. Shalala, 60 F.3d 1428, 17 1434 (9th Cir. 1995) (the claimant’s course of conservative treatment for a back injury 18 was a clear and convincing reason for disregarding testimony that the claimant was 19 disabled). (Tr. 27.) An ALJ may rely on a claimant’s 20 The record reflects that Plaintiff complained of shortness of breath with activity, 21 and stated that she did not have any problems if she was standing still. (Tr. 51, 262, 271.) 22 Treatment notes described Plaintiff’s COPD as “moderate.”6 (Tr. 271, 288, 339, 408.) 23 Because the medical record described Plaintiff’s COPD as moderate, the ALJ did not err 24 by characterizing Plaintiff’s COPD as moderate. 25 26 6 27 28 The grading system for COPD defines “moderate” as the second of four grades of severity. See; see also (“If you’ve reached Stage II, you are probably just noticing your symptoms – primarily shortness of breath that worsens with activity.”) (Last visited 2/17/2015.) - 19 - 1 Additionally, the ALJ’s characterization of Plaintiff’s treatment as conservative is 2 supported by substantial evidence in the record. Between 2010 and 2012, Plaintiff 3 received regular treatment for COPD-related breathing difficulties. (Section II.A.1 and 4 A.2.) That treatment typically resulted in a prescription of inhalers, recommendations 5 that Plaintiff stay hydrated and use a humidifier, and that she quit smoking. (Tr. 258, 6 263, 271, 360, 363, 358, 399, 402-03, 449.) See Hayes v. Colvin, 2014 WL 7405647, at 7 *3 (D. Or. Dec. 30, 2014) (concluding that ALJ properly characterized as conservative 8 the claimant’s treatment for COPD, which included prescription anti-inflammatory 9 medication, pain medication, aerosol inhalers, and a recommendation to quit smoking). 10 The record also reflects that Plaintiff was not hospitalized for COPD. As Plaintiff points 11 out, she visited Urgent Care in March 2012. (Doc. 18 at 14.) However, the primary 12 diagnosis on that visit was bronchitis for which treatment providers prescribed antibiotics 13 and an over-the-counter pain reliever and advised Plaintiff to rest and drink fluids. 14 (Tr. 318.) Accordingly, the conservative nature of Plaintiff’s treatment for moderate 15 COPD was a clear and convincing reason for discounting her credibility that is supported 16 by substantial evidence in the record. e. 17 Lack of Treatment with a Specialist 18 To support his adverse credibility determination, the ALJ also noted that there was 19 no evidence of treatment with a mental health professional. (Tr. 27.) The Commissioner 20 argues that this was a legally sufficient reason for discounting Plaintiff’s credibility that 21 is supported by the record (Tr. 19 at 11), and Plaintiff has not replied in opposition to that 22 assertion. 23 Plaintiff contends that the ALJ erroneously discounted her credibility based on her 24 failure to seek treatment from a specialist. (Doc. 18 at 19.) In Regennitter v. Comm’r of 25 Soc. Sec. Admin., 166 F.3d 1294, 1299-1300 (9th Cir. 1999), the Ninth Circuit “criticized 26 the use of a lack of treatment to reject mental complaints” and again noted that “‘it is a 27 questionable practice to chastise one with a mental impairment for the exercise of poor 28 judgment in seeking rehabilitation.’” Id. (quoting Blankenship v. Bowen, 874 F.2d 1116, - 20 - 1 1124 (9th Cir. 1989)). In Regennitter and similar cases, however, the plaintiff failed to 2 seek any mental health treatment at all. 3 (concluding that the ALJ improperly discounted an examining physician’s opinion based 4 on the plaintiff’s “failure, because of his poverty, to seek treatment by any mental 5 professional”) (internal quotation marks omitted)); Nguyen v. Chater, 100 F.3d 1462, 6 1465 (9th Cir. 1996) (“the fact that claimant may be one of millions of people who did 7 not seek treatment for a mental disorder until late in the day is not a substantial basis on 8 which to conclude that [the physician’s] assessment of claimant’s condition is 9 inaccurate”). See Regennitter, 166 F.3d at 1299-1300 10 Here, by contrast, Plaintiff recognized that she needed help, and sought and 11 received mental-health treatment from primary care physician Dr. Wise. (Tr. 354-59, 12 363, 449.) However, she failed to comply with his advice that she obtain counseling. 13 There is also no indication that Plaintiff followed NP Collins’s 2010 referral to a “mental 14 health facility” for her mental health issues. (Tr. 263.) Plaintiff’s failure to follow 15 treatment advice and to seek counseling or treatment from a mental health care provider 16 is a clear and convincing reason for discounting her symptom testimony. See Minter v. 17 Comm’r Soc. Sec., 2012 WL 1866608, at *5 (D. Or. May 22, 2012) (when the claimant 18 recognized that she needed help and sought out counseling, her failure to follow through 19 with that treatment was a clear and convincing reason for the ALJ to discredit her 20 symptom testimony). 21 Plaintiff contends that she did not seek treatment from a mental health professional 22 “due to fear of leaving the house [and] trusting another medical provider.” (Doc. 18 at 19 23 (citing Tr. 367).) However, the record reflects that Plaintiff left the house to attend 24 regular appoints with treating providers NP Rollins and Dr. Wise and that she attended 25 one-time examinations with Dr. Rose, Dr. Breicheisen, and Dr. Tromp. (Sections II.A 26 and II.B.) Additionally, as the ALJ noted (Tr. 28), Plaintiff and her sister completed 27 function reports indicating that Plaintiff went outside twice a week (Tr. 220), and left the 28 house up to once or twice a month to shop for “personal care” items, groceries, or - 21 - 1 clothing. (Tr. 220, 235.) The function reports also indicate that Plaintiff regularly went 2 to Walmart and to doctors’ appointments. (Tr. 236.) Accordingly, Plaintiff’s failure to 3 seek treatment from a mental health professional was a clear and convincing reason for 4 discounting her credibility that is supported by substantial evidence in the record. 5 f. Plaintiff’s Daily Activities 6 The ALJ also discounted Plaintiff’s symptom testimony based on “the extensive 7 activities she engaged in.” (Tr. 28.) Plaintiff asserts that this was not a clear and 8 convincing reason for discrediting her symptom testimony. (Doc. 18 at 19-21.) 9 The Ninth Circuit has stated that a claimant engaging in normal daily activities 10 “does not in any way detract from [his] credibility as to [his] overall disability.” Vertigan 11 v. Halter, 260 F.3d 1044, 1050 (9th Cir. 2001). As the Ninth Circuit has explained, 12 “[o]ne does not need to be ‘utterly incapacitated’ in order to be disabled.” Id. (quoting 13 Fair v. Bowen, 885 F.2d 597, 603 (9th Cir. 1989). Rather, the daily activities must 14 involve skills that could be transferrable to a workplace and a claimant must spend a 15 “substantial part of [her] day” engaged in those activities. See Orn v. Astrue, 495 F.3d 16 625, 639 (9th Cir. 2007) (finding that the ALJ erred in failing to “meet the threshold for 17 transferable work skills, the second ground for using daily activities in credibility 18 determinations.”). Considering this standard and the record in this case, the ALJ erred in 19 relying on Plaintiff’s ability to participate in typical daily activities to discredit her 20 symptom testimony. However, any error in relying on this reason to support the ALJ’s 21 credibility determination is harmless because he gave other legally sufficient reasons for 22 discounting her subjective complaints. See Batson v. Comm’r of Soc. Sec. Admin., 359 23 F.3d 1190, 1195-97 (9th Cir. 2004) (applying harmless error standard where one of the 24 ALJ’s several reasons supporting an adverse credibility finding was held invalid). 25 In summary, although the Court does not accept all of the ALJ’s reasons in 26 support of his adverse credibility determination, the ALJ provided sufficient legally 27 sufficient reasons that are supported by substantial evidence in support of his credibility 28 determination and, therefore, the Court affirms that determination. See Batson, 359 F.3d - 22 - 1 at 1197 (stating that the court may affirm an ALJ’s overall credibility conclusion even 2 when not all of the ALJ’s reasons are upheld); Tonapetyan, 242 F.3d at 1148 (stating that 3 “[e]ven if we discount some of the ALJ’s observations of [the claimant’s] inconsistent 4 statements and behavior . . . we are still left with substantial evidence to support the 5 ALJ’s credibility determination.”). 6 B. Weight Assigned Medical Opinion Evidence 7 Plaintiff also argues that the ALJ erred in his assessment of the medical source 8 opinion evidence. In weighing medical source evidence, the Ninth Circuit distinguishes 9 between three types of physicians: (1) treating physicians, who treat the claimant; 10 (2) examining physicians, who examine but do not treat the claimant; and (3) non- 11 examining physicians, who neither treat nor examine the claimant. Lester v. Chater, 81 12 F.3d 821, 830 (9th Cir. 1995). Generally, more weight is given to a treating physician’s 13 opinion. 14 substantial evidence for rejecting a treating or an examining physician’s uncontradicted 15 opinion. Id.; Reddick v. Chater, 157 F.3d 715, 725 (9th Cir. 1998). An ALJ may reject 16 the controverted opinion of a treating or an examining physician by providing specific 17 and legitimate reasons that are supported by substantial evidence in the record. Bayliss v. 18 Barnhart, 427 F.3d 1211, 1216 (9th Cir. 2005); Reddick, 157 F.3d at 725. The Court 19 considers Plaintiff’s claims regarding the weight the ALJ assigned to the medical source 20 opinions in light of these standards. Id. 1. 21 The ALJ must provide clear and convincing reasons supported by Dr. Wise’s Opinions 22 As discussed in Section II.B.3, Dr. Wise opined that, due to COPD and chronic 23 severe anxiety, Plaintiff was unable to work and he expected her disability to last longer 24 than twelve months.7 (Tr. 27, 455.) The ALJ gave Dr. Wise’s opinion little weight 25 because his conclusions were inconsistent with the medical record. (Tr. 27.) 26 7 27 28 Dr. Wise did not assess any specific physical functional limitations and whether a claimant is able to work is an issue reserved to the Commissioner. 20 C.F.R. § 416.927(d). A treating source’s opinion on issues reserved to the Commissioner is never entitled to controlling weight or given special significance. SSR 96-5p, 1996 WL 374183, at *2. - 23 - 1 “[C]ontrolling weight may not be given to a treating source’s medical opinion unless the 2 opinion is well-supported by medically acceptable clinical and laboratory diagnostic 3 techniques.” SSR 96–2p, 1996 WL 374188, *1; see also Bray v. Comm’r of Soc. Sec. 4 Admin., 554 F.3d 1219, 1138 (9th Cir. 2009) (“the ALJ need not accept the opinion of 5 any physician, including a treating physician, if that opinion is brief, conclusory, and 6 inadequately supported by clinical finding”). 7 The record supports the ALJ’s determination that Dr. Wise’s opinion that Plaintiff 8 was unable to work due to COPD was inconsistent with the medical record. The record 9 reflects that Plaintiff had “moderate COPD” and that she reported shortness of breath 10 only on exertion. (Tr. 51, 262, 271, 288, 339, 408.) Additionally, on examination, 11 Plaintiff often had “clear breath sounds,” (Tr. 362), non-labored breathing (Tr. 358), “no 12 rales, rhonci, or wheezes” (Tr. 262, 272, 398, 362, 358), and was found to be in no acute 13 distress. (Tr. 262, 272, 398, 362, 359, 358, 355, 448.) 14 The ALJ also noted that the medical records reflected that Plaintiff’s symptoms of 15 COPD improved with reduced cigarette intake, and that she did not have “significant 16 exacerbations or hospitalization” for her COPD. (Tr. 27 (citing Admin. Hrg. Exs. 1F at 17 2-17, 15F at 2-11, 20F).) The record supports the ALJ’s conclusion that Plaintiff’s 18 COPD symptoms improved with reduced smoking (Tr. 398-99) and that, although she 19 went to Urgent Care for bronchitis, she was not hospitalized for COPD. (Tr. 318.) 20 The ALJ also gave little weight to Dr. Wise’s opinion of Plaintiff’s functional 21 limitations related to her mental health and to his opinion that Plaintiff was incapable of 22 performing even a low stress job. The ALJ found these opinions inconsistent with the 23 medical record. (Tr. 27, 324.) The record supports the ALJ’s conclusion. Dr. Wise saw 24 Plaintiff in June, July, August, and September 2012. (Tr. 361-63, 359-60, 357-58, 354- 25 44, 446-49.) However, the mental health status examinations during those visits did not 26 show mental health abnormalities. (Tr. 26, 359 (“pleasant, comfortable, OX3, alert”); 27 Tr. 358 (“pleasant, comfortable, OX3, alert”); Tr. 355 (“pleasant, comfortable, OX3, 28 alert”; “good eye contact, normal insight, no thought disturbances noted, slightly anxious - 24 - 1 appearing”). Treatment notes also indicate that Plaintiff had “normal insight and no 2 thought disturbances.” (Tr. 355.) Thus, as the ALJ found, Dr. Wise’s treatment notes 3 were inconsistent with his opinions of her mental functional abilities. 4 Dr. Wise’s opinion was also inconsistent with the opinion of examining physician 5 Dr. Rose, who performed a psychological evaluation of Plaintiff in January 2011. 6 (Tr. 26, 296-300.) Plaintiff reported daily anxiety and worry about daily stressors and 7 symptoms of nausea, mild shaking, shortness of breath, a racing heart, and nervousness. 8 (Tr. 297-98.) At that time, Plaintiff did not have a history of mental health problems or 9 treatment, other than one visit with a counselor during her divorce thirteen years earlier. 10 (Tr. 297.) Dr. Rose conducted a mental status examination and concluded that Plaintiff 11 had mild intellectual deficits, but overall appeared to be within normal limits. (Tr. 296.) 12 Dr. Rose diagnosed anxiety disorder and possible mild intellectual deficits and concluded 13 that Plaintiff did not have any “significant psychiatric barriers to employment.” 14 (Tr. 300.) Based on this record evidence, the ALJ did not err in assigning little weight to 15 Dr. Wise’s opinions regarding Plaintiff’s physical and mental functional limitations as 16 inconsistent with the record. 17 2. Dr. Tromp’s Opinions 18 On September 18, 2012, Plaintiff underwent a psychological evaluation with 19 Dr. Tromp. (Tr. 26, 365-70.) Plaintiff said she experienced anxiety and panic attacks, 20 and that she was a hermit because she did not like to leave her house. (Tr. 366.) During 21 a mental status examination, Plaintiff’s mood was “a little panicky, a little nervous but 22 comfortable,” and she laughed. (Tr. 26, 368.) Dr. Tromp did not identify any other 23 abnormalities. (Tr. 26, 368-69.) On mental status testing, Plaintiff scored 23/30, which 24 Dr. Tromp said “suggest[ed] impaired cognition, although much of this may be functional 25 (due to anxiety).” (Tr. 369.) Dr. Tromp opined that Plaintiff would have considerable 26 difficulty with detailed or complex tasks. (Tr. 370.) Dr. Tromp noted that “[b]ased on 27 her self-report and the report of Dr. Wise, it appears that she avoids social 28 interaction . . . .” (Tr. 370.) - 25 - 1 Dr. Tromp opined that Plaintiff had moderate impairment in the ability to 2 remember locations and work-like procedures, understand and remember detailed 3 instructions, and carry out detailed instructions. 4 limitations in Plaintiff’s ability to maintain attention and concentration for extended 5 periods away from home, perform activities within a schedule, maintain regular 6 attendance, and be punctual within customary tolerance, and work in coordination with or 7 proximity to others without being distracted by them. (Tr. 27, 440-41.) Dr. Tromp 8 opined that Plaintiff was incapable of even low stress work and would likely miss more 9 than three days of work per month due to her impairments or treatment. (Tr. 433-44.) (Tr. 27, 440.) She found marked 10 The ALJ gave little weight to Dr. Tromp’s opinion regarding Plaintiff’s anxiety 11 because it was inconsistent with the record. (Tr. 27.) Inconsistency with the record is a 12 specific and legitimate reason for discounting examining physician Dr. Tromp’s opinion, 13 and the record supports that ALJ’s conclusion.8 See Bayliss v. 427 F.3d at 1216 (an ALJ 14 may reject the controverted opinion of a treating or an examining physician by providing 15 specific and legitimate reasons that are supported by substantial evidence in the record) 16 As the ALJ noted, records from North Country do not document abnormal mental 17 status findings. (Tr. 27) (citing Admin. Hrg. Exs. 1F at 2-17, 15F at 2-11. and 20F).) 18 Similarly, as discussed in Section II.A.2 and VI.B.1, Dr. Wise’s treatment notes do not 19 document mental health abnormalities. (Tr. 355, 358, 359.) Additionally, Dr. Tromp’s 20 notes on examination reflect that Plaintiff had a logical and goal-directed thought 21 process, good comprehension, a “panicky” but “comfortable” mood, an appropriate and 22 cheerful affect, good concentration, adequate memory, and a full fund of knowledge. 23 (Tr. 368.) 24 To support her claim of error, Plaintiff points to treatment notes that document her 25 reports of anxiety symptoms. (Doc. 18 at 15.) The ALJ assigned little weight to 26 Dr. Tromp’s opinion to the extent that it was based on Plaintiff’s self-reports. (Tr. 27.) 27 Because the ALJ properly discredited Plaintiff’s subjective complaints, as discussed in 28 8 Dr. Tromp’s opinion was contradicted by Dr. Rose’s opinion. (Tr. 296-300.) - 26 - 1 Section VI.A, the ALJ did not err in this regard. See Bray, 554 F.3d at 1228 (9th Cir. 2 2009) (ALJ properly discounts a physician’s opinion that is based solely upon claimant’s 3 self-reporting if ALJ concludes that claimant’s self- reporting is not credible); see also 4 Thomas v. Barnhart, 278 F.3d 947, 957 (9th Cir. 2002) (rejecting physician’s opinion in 5 part because it was based on claimant’s subjective complaints, not on new objective 6 findings); Tonapetyan, 242 F.3d at 1149 (medical opinion premised on subjective 7 complaints may be disregarded when record supports ALJ in discounting claimant’s 8 credibility). 9 Additionally, as the Commissioner notes (Doc. 19 at 10), the record also includes 10 a Function Report that Plaintiff completed in February 2011. (Tr. 217-25.) On the 11 Function Report, Plaintiff wrote that she went out twice a week and could do so alone. 12 (Tr. 220.) She reported that she could shop in stores without accompaniment. (Tr. 220- 13 21.) Plaintiff also reported that she got along with authority figures and handled stress 14 and changes in routine “ok.” (Tr. 223.) Plaintiff’s statements on her Function Report are 15 inconsistent with Dr. Tromp’s opinion regarding Plaintiff’s mental functional limitations. 16 Although the ALJ did not specifically cite Plaintiff’s Function Report in his 17 discussion of the weight assigned to Dr. Tromp’s opinion, the ALJ referred to that report 18 several times in his decision indicating that he considered it in his evaluation of the 19 evidence. (Tr. 24, 28 (citing Admin. Hrg. Ex. 7E).) The Commissioner properly points 20 out this “additional support for the Commissioner’s and the ALJ’s position,” Warre, 439 21 F.3d at 1005 n.3, and the Court considers that Function Report evidence that supports the 22 ALJ’s conclusion that Dr. Tromp’s opinion was inconsistent with the record. 23 Considering the record as a whole, the ALJ rationally concluded that the medical 24 record did not support the functional limitations that Dr. Wise and Dr. Tromp identified, 25 and even though the record includes evidence that could be interpreted more favorably to 26 Plaintiff, the Court “must uphold the ALJ’s decision where the evidence is susceptible to 27 more than one rational interpretation.” Magallanes, 881 F.2d at 750; see Batson, 359 28 F.3d at 1198. - 27 - 1 2 3 VII. Conclusion As set forth above, the ALJ’s opinion is supported by substantial evidence in the record and is free of harmful legal error. 4 Accordingly, 5 IT IS ORDERED that the Commissioner’s disability determination is 6 AFFIRMED. 7 Commissioner and against Plaintiff and to terminate this action. 8 The Clerk of Court is directed to enter judgment in favor of the Dated this 17th day of February, 2015. 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 - 28 -

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