Earls v. Colvin
Filing
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ORDER: IT IS THEREFORE ORDERED that the final decision of the Commissioner of Social Security is affirmed. The Clerk shall enter judgment accordingly and shall terminate this case. Signed by Judge Neil V Wake on 3/31/2016. (REK)
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IN THE UNITED STATES DISTRICT COURT
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FOR THE DISTRICT OF ARIZONA
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Kaylee Earls,
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No. CV-15-08165-PCT-NVW
Plaintiff,
ORDER
v.
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Carolyn W. Colvin, Acting Commissioner
of Social Security,
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Defendant.
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Plaintiff Kaylee Earls seeks review under 42 U.S.C. § 405(g) of the final decision
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of the Commissioner of Social Security (“the Commissioner”), which denied her
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supplemental security income under section 1614(a)(3)(A) of the Social Security Act.
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Because the decision of the Administrative Law Judge (“ALJ”) is supported by
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substantial evidence and is not based on legal error, the Commissioner’s decision will be
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affirmed.
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I.
BACKGROUND
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Plaintiff was born in November 1990 and applied for Supplemental Security
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Income benefits when she was 21 years old. She has at least a high school education and
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is able to communicate in English. When she was 12 years old, she had surgery for
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lumbar scoliosis, which caused nerve damage. She continues to have leg and back pain
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for which she takes pain medication. In 2013, she worked two days a week for about
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three hours a day handling mail for a medical facility. She was able to drive, help with
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grocery shopping, do laundry, lift a gallon of milk, but not lift her two-year-old son who
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weighed 28 pounds. She drives three hours to visit her family, but has developed a leg
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cramp, which required her to stop and walk around for about an hour to relieve the
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cramp.
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On May 31, 2012, Plaintiff applied for supplemental security income benefits,
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alleging disability beginning April 13, 2008. On December 13, 2013, she appeared with
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her attorney and testified at a video hearing before the ALJ. A vocational expert also
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testified. On January 30, 2014, the ALJ issued a decision that Plaintiff was not disabled
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within the meaning of the Social Security Act. The Appeals Council denied Plaintiff’s
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request for review of the hearing decision, making the ALJ’s decision the
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Commissioner’s final decision. On August 31, 2015, Plaintiff sought review by this
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Court.
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II.
STANDARD OF REVIEW
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The district court reviews only those issues raised by the party challenging the
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ALJ’s decision. See Lewis v. Apfel, 236 F.3d 503, 517 n.13 (9th Cir. 2001). The court
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may set aside the Commissioner’s disability determination only if the determination is
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not supported by substantial evidence or is based on legal error. Orn v. Astrue, 495 F.3d
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625, 630 (9th Cir. 2007). Substantial evidence is more than a scintilla, less than a
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preponderance, and relevant evidence that a reasonable person might accept as adequate
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to support a conclusion considering the record as a whole. Id. As a general rule,
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“[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); accord Molina v. Astrue,
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674 F.3d 1104, 1111 (9th Cir. 2012) (“Even when the evidence is susceptible to more
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than one rational interpretation, we must uphold the ALJ’s findings if they are supported
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by inferences reasonably drawn from the record.”).
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III.
FIVE-STEP SEQUENTIAL EVALUATION PROCESS
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To determine whether a claimant is disabled for purposes of the Social Security
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Act, the ALJ follows a five-step process. 20 C.F.R. § 404.1520(a). The claimant bears
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the burden of proof on the first four steps, but the burden shifts to the Commissioner at
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step five. 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
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substantial gainful activity. 20 C.F.R. § 404.1520(a)(4)(i). If so, the claimant is not
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disabled and the inquiry ends. Id. At step two, the ALJ determines whether the claimant
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has a severe medically determinable physical or mental impairment. § 404.1520(a)(4)(ii).
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If not, the claimant is not disabled and the inquiry ends. Id. At step three, the ALJ
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considers whether the claimant’s impairment or combination of impairments meets or
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medically equals an impairment listed in Appendix 1 to Subpart P of 20 C.F.R. Pt. 404.
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§ 404.1520(a)(4)(iii). If so, the claimant is automatically found to be disabled. Id. If
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not, the ALJ proceeds to step four. At step four, the ALJ assesses the claimant’s residual
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functional capacity and determines whether the claimant is still capable of performing
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past relevant work. § 404.1520(a)(4)(iv). If so, the claimant is not disabled and the
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inquiry ends. Id. If not, the ALJ proceeds to the fifth and final step, where he determines
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whether the claimant can perform any other work based on the claimant’s residual
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functional capacity, age, education, and work experience. § 404.1520(a)(4)(v). If so, the
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claimant is not disabled. Id. If not, the claimant is disabled. Id.
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At step one, the ALJ found that Plaintiff has not engaged in substantial gainful
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activity since May 31, 2012, the protective application date. At step two, the ALJ found
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that Plaintiff has the following severe impairments:
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reduction surgery and fusion (in 2003); degenerative disc disease; nerve damage; and leg
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pain. At step three, the ALJ determined that Plaintiff does not have an impairment or
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combination of impairments that meets or medically equals an impairment listed in 20
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C.F.R. Part 404, Subpart P, Appendix 1.
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status post lumbar scoliosis
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At step four, the ALJ found that Plaintiff:
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has the residual functional capacity to perform light work as defined in 20
CFR 416.967(b) except: she is limited to occasional postural activities such
as climbing, balancing, stooping, kneeling, crouching and crawling; she is
precluded from climbing ladders, ropes, or scaffolds; she is to avoid
concentrated exposure to extreme cold; and, she is to avoid even moderate
exposure to hazards, such as machinery or working at heights.
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The ALJ further found that Plaintiff has no past relevant work. At step five, the ALJ
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concluded that, considering Plaintiff’s age, education, work experience, and residual
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functional capacity, there are jobs that exist in significant numbers in the national
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economy that Plaintiff can perform, such as bagger, cleaner, and ticket seller.
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IV.
ANALYSIS
A.
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The ALJ Provided Clear and Convincing Reasons for Discrediting
Plaintiff’s Symptom Testimony.
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If a claimant’s statements about pain or other symptoms are not substantiated by
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objective medical evidence, the ALJ must consider all of the evidence in the case record,
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including any statement by the claimant and other persons, concerning the claimant’s
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symptoms. SSR96-7p. Then the ALJ must make a finding on the credibility of the
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claimant’s statements about symptoms and their functional effects. Id.
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In evaluating the credibility of a claimant’s testimony regarding subjective pain or
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other symptoms, the ALJ is required to engage in a two-step analysis: (1) determine
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whether the claimant presented objective medical evidence of an impairment that could
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reasonably be expected to produce some degree of the pain or other symptoms alleged;
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and, if so with no evidence of malingering, (2) reject the claimant’s testimony about the
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severity of the symptoms only by giving specific, clear, and convincing reasons for the
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rejection. Vasquez v. Astrue, 572 F.3d 586, 591 (9th Cir. 2009). “This is not an easy
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requirement to meet: ‘The clear and convincing standard is the most demanding required
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in Social Security cases.’” Garrison v. Colvin, 759 F.3d 995, 1015 (9th Cir. 2014)
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(quoting Moore v. Comm’r of Soc. Sec. Admin., 278 F.3d 920, 924 (9th Cir. 2002)).
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To ensure meaningful review, the ALJ must specifically identify the testimony
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from a claimant the ALJ finds not to be credible and explain what evidence undermines
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the testimony. Treichler v. Comm’r of Soc. Sec. Admin., 775 F.3d 1090, 1102 (9th Cir.
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2014). The ALJ must make findings “sufficiently specific to permit the court to conclude
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that the ALJ did not arbitrarily discredit claimant’s testimony.” Thomas v. Barnhart, 278
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F.3d 947, 958 (9th Cir. 2002); accord Tommasetti v. Astrue, 533 F.3d 1035, 1039 (9th
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Cir. 2008).
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In making a credibility determination, an ALJ “may not reject a claimant’s
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subjective complaints based solely on a lack of objective medical evidence to fully
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corroborate the claimant’s allegations.” Bray v. Comm’r of Soc. Sec. Admin., 554 F.3d
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1219, 1227 (9th Cir. 2009) (internal quotation marks and citation omitted). But “an ALJ
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may weigh inconsistencies between the claimant’s testimony and his or her conduct,
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daily activities, and work record, among other factors.” Id. Further, the claimant is not
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required to produce objective medical evidence of the symptom or its severity. Garrison,
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759 F.3d at 1014. The ALJ must consider all of the evidence presented, including the
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claimant’s daily activities; the location, duration, frequency, and intensity of the pain or
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other symptoms; factors that precipitate and aggravate the symptoms; effectiveness and
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side effects of any medication taken to alleviate pain or other symptoms; treatment other
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than medication; any measures other than treatment the claimant uses to relieve pain or
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other symptoms; and any other factors concerning the claimant’s functional limitations
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and restrictions due to pain or other symptoms. SSR 96-7p.
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First, the ALJ found that Plaintiff’s “medically determinable impairments could
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reasonably be expected to cause the alleged symptoms.”
Second, the ALJ found
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Plaintiff’s “statements regarding the intensity, persistence, and limiting effects of the
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symptoms not entirely credible to the extent they are inconsistent with the residual
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functional capacity assessment.”
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Plaintiff testified that she is unable to work full-time because she has too much
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pain and cannot stay in a single position for very long, like working at an office desk.
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She said her pain is located in her back and right leg and is constant. She also said that
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she gets shooting pains from her back down to her right knee, which causes her knee to
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give out.
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The ALJ gave the following reasons for finding Plaintiff’s subjective symptom
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testimony less than fully credible: (1) Plaintiff acknowledged being able to drive, do
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some household chores and grocery shopping, and work for three hours a day, two days a
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week. (2) The objective evidence showed only mild tenderness on palpitation of her back
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and full range of motion in all of her extremities. (3) Plaintiff’s treatment during the
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relevant period has been routine and primarily limited to medication management. The
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ALJ specifically identified the testimony that he found to lack credibility and explained
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what evidence undermined it. The ALJ gave specific, clear, and convincing reasons for
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finding Plaintiff’s testimony regarding the severity of her symptoms not fully credible.
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B.
The ALJ Did Not Err in Weighing Medical Source Opinion Evidence.
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Legal Standard
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Generally, more weight should be given to the opinion of a treating physician than
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to the opinions of physicians who do not treat the claimant, and the weight afforded a
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non-examining physician’s opinion depends on the extent to which he provides
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supporting explanations for his opinions. Garrison v. Colvin, 759 F.3d 995, 1012 (9th
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Cir. 2014).
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physician, it may be rejected only for “clear and convincing” reasons, and where it is
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contradicted, it may not be rejected without “specific and legitimate reasons” supported
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by substantial evidence in the record. Orn v. Astrue, 495 F.3d 625, 632 (9th Cir. 2007).
Where a treating physician’s opinion is not contradicted by another
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In deciding weight to give any medical opinion, the ALJ considers not only
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whether the source has a treating or examining relationship with the claimant, but also
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whether the treatment or examination is related to the alleged disability, the length of the
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relationship, frequency of examination, supporting evidence provided by the source, and
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medical specialization of the source. 20 C.F.R. § 404.1527(c). Generally, more weight is
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given to the opinion of a specialist about medical issues related to his area of specialty
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than to the opinion of a source who is not a specialist. 20 C.F.R. § 404.1527(c)(5). The
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ALJ may discount a physician’s opinion that is based only the claimant’s subjective
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complaints without objective evidence. Batson v. Comm’r of Soc. Sec. Admin., 359 F.3d
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1190, 1195 (9th Cir. 2004). The opinion of any physician, including that of a treating
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physician, need not be accepted “if that opinion is brief, conclusory, and inadequately
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supported by clinical findings.” Bray v. Comm’r of Soc. Sec. Admin., 554 F.3d 1219,
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1228 (9th Cir. 2009).
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2.
Treating Pain Specialist Sarah Buenviaje-Smith, M.D.
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On July 10, 2012, Dr. Buenviaje-Smith began treating Plaintiff for management of
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chronic low back and leg pain. She saw Plaintiff on August 7 and 21, 2012. On
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September 11, 2012, Dr. Buenviaje-Smith completed a Residual Functional Capacity
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Questionnaire and opined that Plaintiff can sit for 30 minutes at one time and stand/walk
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for 30 minutes at one time. She opined that in an 8-hour workday Plaintiff can sit for a
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total of one hour and stand/walk for a total of two hours. She further opined that Plaintiff
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would need to take 5-10 minute breaks every hour. Dr. Buenviaje-Smith said Plaintiff
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can frequently lift less than 10 pounds and occasionally lift up to 20 pounds. She
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estimated that Plaintiff would be absent from work 3-4 times a month as a result of her
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impairments or treatments. She also opined that Plaintiff is not physically capable of
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working an 8-hour day, 5 days a week, on a sustained basis.
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The ALJ stated that he “considered, but ultimately gave very little weight to, the
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Residual Functional Capacity Questionnaire completed by Dr. Buenviaje-Smith” because
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(1) Dr. Buenviaje-Smith did not list the specific objective medical findings upon which
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she based her opinion, (2) the opinion was inconsistent with Plaintiff’s admitted activities
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of daily living, (3) Dr. Buenviaje-Smith’s treating relationship was of short duration, (4)
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Dr. Buenviaje-Smith’s treatment consisted entirely of medication management, and (5)
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Dr. Buenviaje-Smith’s opinion appears to have relied heavily on Plaintiff’s subjective
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complaints without objective evidence.
These are clear and convincing reasons,
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supported by substantial evidence in the record, for giving Dr. Buenviaje-Smith’s opinion
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little weight.
3.
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State Agency Medical Consultant D. Rose, M.D.
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Dr. Rose reviewed Plaintiff’s records at the reconsideration level and concluded
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she is capable of performing a limited range of light work. The ALJ gave great weight to
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Dr. Rose’s opinion because State agency consultants are highly qualified physicians who
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are experts in Social Security disability programs, the governing regulations, and
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evaluation of medical issues in disability claims. The ALJ gave greater weight to Dr.
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Rose’s opinion on reconsideration than to the opinion formed during the initial review,
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which found fewer limitations, because Dr. Rose was able to review more recent medical
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evidence.
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Plaintiff contends that the ALJ erred by giving great weight to Dr. Rose’s opinion
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because the opinion mentioned the symptoms in Plaintiff’s right leg only once and these
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symptoms could affect her ability to walk or stand for six hours as opined by Dr. Rose
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and concluded by the ALJ. Dr. Rose commented that on August 9, 2012, the treating
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orthopedist noted Plaintiff complained of low back pain with radiation down her right leg
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and right leg weakness. Dr. Rose did not note that on July 10, 2012, Dr. Buenviaje-Smith
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found mild right lower extremity weakness and diminished right lower extremity deep
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tendon reflexes. Dr. Rose also did not note that on September 20, 2012, November 27,
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2012, and December 13, 2012, Dr. Buenviaje-Smith found right leg pain within normal
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limits and no abnormal neurological findings. During examinations on October 30, 2012,
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and December 27, 2012, Dr. Buenviaje-Smith did not find right leg pain.
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omissions do not show that Dr. Rose’s opinion was not consistent with the overall
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medical record.
These
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Plaintiff also contends that Dr. Rose did not provide sufficient explanation for her
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opinion to find that it was supported by substantial evidence. Dr. Rose cited to a lumbar
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CT from July 27, 2012, but did not state that the CT report said, “There is some atrophy
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of the lower back paraspinous musculature.” Although Dr. Rose did not report every
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detail described in the CT report’s “Findings” section, Dr. Rose included everything
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reported in the CT report’s “Impressions” section. Plaintiff contends that “some atrophy”
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indicates a limited activity level, which is consistent with Plaintiff’s testimony and shows
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Dr. Rose apparently failed to consider the evidence of muscle atrophy. Mild atrophy may
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suggest that Plaintiff has not been actively using certain muscles, but Dr. Rose’s failure to
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comment on mild atrophy does not show that Dr. Rose failed to consider it. Mild atrophy
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of lower back muscles alone does not indicate Plaintiff’s functionality.
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accurately summarized the CT results as showing severe scoliosis in Plaintiff’s lower
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back, postoperative changes, and no significant bony spinal canal, neural foraminal
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Dr. Rose
stenosis, or acute fracture within the lumbar spine.
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Records Prior to May 31, 2012
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In the context of Plaintiff’s credibility regarding the severity of her symptoms and
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limitations, the ALJ noted that some of the records are for treatment occurring prior to
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May 31, 2012, and therefore are of limited usefulness. The ALJ stated, “However, in
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order to view the record in the light most favorable to the claimant, the undersigned has
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read and considered the entire medical record prior to making a decision on this case.”
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Contrary to Plaintiff’s assertion, the ALJ did not “essentially ignore” these treatment
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records.
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surgeries and nerve damage, but found treatment records before the relevant period to be
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of limited usefulness in assessing the severity of her current symptoms and limitations.
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C.
Rather, the ALJ expressly found Plaintiff had severe impairments due to
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The ALJ Did Not Err by Incomplete Questioning of the Vocational
Expert.
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It was not necessary for the ALJ to present to the vocational expert a hypothetical
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regarding an individual with limitations not supported by the medical evidence.
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IT IS THEREFORE ORDERED that the final decision of the Commissioner of
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Social Security is affirmed.
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terminate this case.
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The Clerk shall enter judgment accordingly and shall
Dated this 31st day of March, 2016.
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Neil V. Wake
United States District Judge
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