Hutcheson v. Commissioner of Social Security

Filing 27

ORDER on Plaintiff's Social Security Complaint, signed by Magistrate Judge Sheila K. Oberto on 09/1/17.CASE CLOSED (Martin-Gill, S)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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STEVEN DEAN HUTCHESON,

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Plaintiff,

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v.

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Case No. 1:16-cv-00366-SKO
ORDER ON PLAINTIFF’S SOCIAL
SECURITY COMPLAINT
(Doc. 1)

COMMISSIONER OF SOCIAL SECURITY,

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Defendant.
_____________________________________/

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On March 16, 2016, Plaintiff Steven Dean Hutcheson (“Plaintiff”) filed a complaint under

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42 U.S.C. §§ 405(g) and 1383(c)(3) seeking judicial review of a final decision of the
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Commissioner of Social Security (the “Commissioner” or “Defendant”) denying his application
for disability insurance benefits. (Doc. 1.) Plaintiff filed his opening brief (“Plaintiff’s Motion”)

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on November 30, 2016, (Doc. 19), Defendant filed their opposition on February 15, 2017, (Doc.
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The matter is currently before the Court on the parties’ briefs, which were submitted without oral
argument.1

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For the reasons provided herein, the Court DENIES Plaintiff’s Motion, (Doc. 19),

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AFFIRMS the final decision of the Commissioner, and DISMISSES this case.
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The parties consented to the jurisdiction of a U.S. Magistrate Judge. (Docs. 7–8, 10.)

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I.

BACKGROUND

The following includes the pertinent medical and procedural background for this matter.

3 Plaintiff was born on July 21, 1962, and is currently 55 years old. (Administrative Record (“AR”)
4 159.) Plaintiff was a maintenance technician between 1995 and 2012. (AR 66.)
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On August 14, 2012, Plaintiff filed his claim for disability insurance benefits. (AR 159–

6 60.) In this claim, Plaintiff alleges that he became disabled on January 6, 2012. (AR 159.)
7 Plaintiff stated that the following conditions limit his ability to work: rheumatoid arthritis, gout,
8 and degenerative disc disease. (AR 59.)
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On November 25, 2012, Dr. Fariba Vesali examined Plaintiff. (AR 277.) As to Plaintiff’s

10 daily activities, Dr. Vesali stated in his report that Plaintiff “drives a car” and occasionally “does
11 the grocery shopping,” “dishes,” and “laundry.” (AR 277.) Dr. Vesali observed that Plaintiff “is
12 not in acute distress,” “did not have any difficulties . . . tak[ing] off his shoes, put[ting] them on,
13 and get[ting] on and off the exam table,” and “pick[ed] up a paper clip from the table with each
14 hand with no difficulties.” (AR 278.) Dr. Vesali further noted in his report that Plaintiff had full
15 “grip strength,” “[n]ormal muscle bulk and tone,” normal sensory exam results, and no
16 inflammation in bilateral upper or lower extremities. (AR 278–79.) Dr. Vesali ultimately opined
17 that Plaintiff “should be able to” (1) “walk, stand, and sit six hours in an eight-hour day with
18 normal breaks,” (2) “lift/carry 50 pounds occasionally and 25 pounds frequently,” and (3) “do
19 frequent postural activities and frequent manipulative activities.” (AR 280.) Dr. Vesali also
20 opined that Plaintiff has “no workplace environmental limitations,” except that “[t]here is
21 limitation to working in cold environments due to a history of rheumatoid arthritis.” (AR 280.)
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Dr. Daniel A. Watrous treated Plaintiff beginning in at least January 2012. (See AR 230–

23 62, 281–95, 325–89.) Dr. Watrous’ treatment notes state that Plaintiff sometimes had moderate
24 symptoms, such as moderate tenderness in his hands, wrists, shoulders, and knees. (See, e.g., AR
25 250, 256, 367, 377, 379.) However, Dr. Watrous’ treatment notes generally state that Plaintiff had
26 only mild symptoms. (See AR 230–62, 281–95, 325–81.) Dr. Watrous also stated in his January
27 30, 2013 treatment notes that Plaintiff was “[o]verall doing well,” but his “joints are painful and
28 stiff” if he “overdoes” activities “like washing care [sic] and doing manuel [sic] work.” (AR 287.)
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Dr. Watrous provided his opinion regarding Plaintiff’s ability to do work-related activities

2 in a medical source statement dated June 4, 2014. (AR 384–89.) In this opinion, Dr. Watrous
3 opined that Plaintiff could only (1) sit, stand, or walk for thirty minutes at a time without
4 interruption, (2) occasionally lift/carry up to ten pounds and never lift/carry more than ten pounds,
5 (2) occasionally reach, handle, or push/pull and never finger, (3) never operate foot controls, (4)
6 never climb ladders or scaffolds or balance, and only occasionally climb stairs and ramps, stoop,
7 kneel, crouch, or crawl, and (5) never work at unprotected heights, move mechanical parts, in
8 humid and wet conditions, in extreme temperature conditions, or with vibrations. (AR 384–89.)
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The Social Security Administration denied Plaintiff’s claim initially on December 14,

10 2012, (AR 93–96), and again on reconsideration on June 18, 2013, (AR 98–102). Plaintiff then
11 requested a hearing before an Administrative Law Judge (“ALJ”) on July 1, 2013. (AR 105–06.)
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On June 10, 2014, the ALJ held a hearing regarding Plaintiff’s claim (the “Hearing”). (See

13 AR 29–58.) Plaintiff was represented by counsel at this Hearing. (See AR 29.) At the Hearing,
14 Plaintiff testified that he can “cook and wash dishes” for “a short time,” “do the laundry,” and “go
15 grocery shopping.” (AR 42.) Plaintiff also testified that he had “11 years of education,” but that
16 he can only “read and write” at “[a]bout [a] fifth grade level.” (AR 34.)
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The ALJ called a vocational expert (“VE”) to testify during the Hearing. (See AR 54–57.)

18 The VE described Plaintiff’s past work as a “maintenance repairer, building.” (AR 54.) In
19 response to hypotheticals provided by the ALJ, the VE testified that the hypothetical individual
20 could not perform Plaintiff’s past work as actually or generally performed in the national
21 economy. (See AR 54–55.) However, the VE testified that the hypothetical individual could
22 perform other jobs, including “cashier II” and “information clerk.” (AR 55.)
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In a decision dated August 5, 2014, the ALJ found that Plaintiff was not disabled. (AR

24 13–28.) The ALJ conducted the five-step sequential evaluation analysis set forth in 20 C.F.R. §
25 404.1520. (See AR 18–24.) At step one, the ALJ found that Plaintiff “has not engaged in
26 substantial gainful activity since January 6, 2012, the alleged onset date.” (AR 18.) At step two,
27 the ALJ found that Plaintiff “has the following severe impairments: rheumatoid arthritis, gout, and
28 degenerative disc disease of the lumbosacral spine.” (AR 18.) At step three, the ALJ determined
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1 that Plaintiff “does not have an impairment or combination of impairments that meets or medically
2 equals the severity of one of the listed impairments in 20 [C.F.R.] Part 404, Subpart P, Appendix
3 1.” (AR 18.)
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The ALJ next found that Plaintiff has the residual functional capacity (“RFC”) “to perform

5 light work . . . except he can frequently finger and feel,” “occasionally climb ramps or stairs,” and
6 “occasionally crawl and crouch.” (AR 19.) The ALJ also found that Plaintiff can “never climb
7 ladders, ropes, or scaffolds,” and that he “must avoid workplace hazards, driving as a job task, and
8 temperature extremes.” (AR 19.) The ALJ also stated the following regarding the June 4, 2014
9 opinion provided by Dr. Watrous:
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[Dr. Watrous’] statement is inconsistent with Dr. Watrous’ own progress notes
documenting only mild symptoms.
In addition, Dr. Watrous’ opinion is
inconsistent with the objective findings by Dr. Vesali who noted normal strength,
no inflammation, normal sensation, and no observed difficulties or pain expression .
. . . Moreover, Dr. Watrous’ opinion is not consistent with [Plaintiff’s] own
admissions with regard to his hobbies, recreational activities, and household chores.
[Plaintiff] is very active as he plays soccer, flies model helicopters, shops, drives,
does the dishes and laundry, picks up after the dog, plays catch football with his
kids, enjoys board games, cooks, visits parks, and visits family . . . . Considering
the foregoing, the [ALJ] accords only limited weight to Dr. Watrous’ opinion.

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17 (AR 21.)
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At step four, the ALJ found that Plaintiff “is unable to perform any past relevant work.”

19 (AR 22.) Finally, the ALJ determined at step five that “there are jobs that exist in significant
20 numbers in the national economy that [Plaintiff] can perform.” (AR 23.) Ultimately, the ALJ
21 determined that Plaintiff “is not disabled under sections 216(i) and 223(d) of the Social Security
22 Act.” (AR 24.)
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Plaintiff sought review of the ALJ’s decision before the Appeals Council. (AR 11–12.)

24 On January 15, 2016, the Appeals Council denied Plaintiff’s request for review of the ALJ’s
25 decision. (AR 1–7.)
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Plaintiff then filed the Complaint in this Court on March 16, 2016. (Doc. 1.) Plaintiff filed

27 Plaintiff’s Motion on November 30, 2016, (Doc. 19), Defendant filed their opposition on February
28 15, 2017, (Doc. 24), and Plaintiff filed his reply in support of Plaintiff’s Motion on February 28,
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1 2017, (Doc. 25). As such, the briefing in this case is complete and this matter is ready for
2 disposition.
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II.

LEGAL STANDARD

4 A.

Applicable Law

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An individual is considered “disabled” for purposes of disability benefits if he or she is

6 unable “to engage in any substantial gainful activity by reason of any medically determinable
7 physical or mental impairment which can be expected to result in death or which has lasted or can
8 be expected to last for a continuous period of not less than 12 months.” 42 U.S.C. § 423(d)(1)(A).
9 However, “[a]n individual shall be determined to be under a disability only if his physical or
10 mental impairment or impairments are of such severity that he is not only unable to do his
11 previous work but cannot, considering his age, education, and work experience, engage in any
12 other kind of substantial gainful work which exists in the national economy.” Id. § 423(d)(2)(A).
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“In determining whether an individual's physical or mental impairment or impairments are

14 of a sufficient medical severity that such impairment or impairments could be the basis of
15 eligibility [for disability benefits], the Commissioner” is required to “consider the combined effect
16 of all of the individual's impairments without regard to whether any such impairment, if
17 considered separately, would be of such severity.” Id. § 423(d)(2)(B). For purposes of this
18 determination, “a ‘physical or mental impairment’ is an impairment that results from anatomical,
19 physiological, or psychological abnormalities which are demonstrable by medically acceptable
20 clinical and laboratory diagnostic techniques.” Id. § 423(d)(3).
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“The Social Security Regulations set out a five-step sequential process for determining

22 whether a claimant is disabled within the meaning of the Social Security Act.” Tackett v. Apfel,
23 180 F.3d 1094, 1098 (9th Cir. 1999) (citing 20 C.F.R. § 404.1520). The Ninth Circuit provided
24 the following description of the sequential evaluation analysis:
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In step one, the ALJ determines whether a claimant is currently engaged in
substantial gainful activity. If so, the claimant is not disabled. If not, the ALJ
proceeds to step two and evaluates whether the claimant has a medically severe
impairment or combination of impairments. If not, the claimant is not disabled. If
so, the ALJ proceeds to step three and considers whether the impairment or
combination of impairments meets or equals a listed impairment under 20 C.F.R. pt.
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404, subpt. P, [a]pp. 1. If so, the claimant is automatically presumed disabled. If
not, the ALJ proceeds to step four and assesses whether the claimant is capable of
performing her past relevant work. If so, the claimant is not disabled. If not, the
ALJ proceeds to step five and examines whether the claimant has the [RFC] . . . to
perform any other substantial gainful activity in the national economy. If so, the
claimant is not disabled. If not, the claimant is disabled.

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5 Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005); see, e.g., 20 C.F.R. § 404.1520(a)(4)
6 (providing the “five-step sequential evaluation process”); id. § 416.920(a)(4) (same).

“If a

7 claimant is found to be ‘disabled’ or ‘not disabled’ at any step in the sequence, there is no need to
8 consider subsequent steps.” Tackett, 180 F.3d at 1098 (citing 20 C.F.R. § 404.1520).
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“The claimant carries the initial burden of proving a disability in steps one through four of

10 the analysis.” Burch, 400 F.3d at 679 (citing Swenson v. Sullivan, 876 F.2d 683, 687 (9th Cir.
11 1989)). “However, if a claimant establishes an inability to continue her past work, the burden
12 shifts to the Commissioner in step five to show that the claimant can perform other substantial
13 gainful work.” Id. (citing Swenson, 876 F.2d at 687).
14 B.

Scope of Review

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“This court may set aside the Commissioner’s denial of disability insurance benefits [only]

16 when the ALJ’s findings are based on legal error or are not supported by substantial evidence in
17 the record as a whole.” Tackett, 180 F.3d at 1097 (citation omitted). “Substantial evidence is
18 defined as being more than a mere scintilla, but less than a preponderance.” Edlund v. Massanari,
19 253 F.3d 1152, 1156 (9th Cir. 2001) (citing Tackett, 180 F.3d at 1098). “Put another way,
20 substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to
21 support a conclusion.” Id. (citing Richardson v. Perales, 402 U.S. 389, 401 (1971)).
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“This is a highly deferential standard of review . . . .” Valentine v. Comm’r of Soc. Sec.

23 Admin., 574 F.3d 685, 690 (9th Cir. 2009). “The ALJ’s findings will be upheld if supported by
24 inferences reasonably drawn from the record.” Tommasetti v. Astrue, 533 F.3d 1035, 1038 (9th
25 Cir. 2008) (citation omitted). Additionally, “[t]he court will uphold the ALJ’s conclusion when
26 the evidence is susceptible to more than one rational interpretation.” Id.; see, e.g., Edlund, 253
27 F.3d at 1156 (“If the evidence is susceptible to more than one rational interpretation, the court may
28 not substitute its judgment for that of the Commissioner.” (citations omitted)).
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Nonetheless, “the Commissioner’s decision ‘cannot be affirmed simply by isolating a

2 specific quantum of supporting evidence.’” Tackett, 180 F.3d at 1098 (quoting Sousa v. Callahan,
3 143 F.3d 1240, 1243 (9th Cir. 1998)). “Rather, a court must ‘consider the record as a whole,
4 weighing both evidence that supports and evidence that detracts from the [Commissioner’s]
5 conclusion.’” Id. (quoting Penny v. Sullivan, 2 F.3d 953, 956 (9th Cir. 1993)).
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Finally, courts “may not reverse an ALJ’s decision on account of an error that is harmless.”

7 Molina v. Astrue, 674 F.3d 1104, 1111 (9th Cir. 2012) (citing Stout v. Comm’r, Soc. Sec. Admin.,
8 454 F.3d 1050, 1055–56 (9th Cir. 2006)). Harmless error “exists when it is clear from the record
9 that ‘the ALJ’s error was inconsequential to the ultimate nondisability determination.’”
10 Tommasetti, 533 F.3d at 1038 (quoting Robbins v. Soc. Sec. Admin., 466 F.3d 880, 885 (9th Cir.
11 2006)). “[T]he burden of showing that an error is harmful normally falls upon the party attacking
12 the agency’s determination.” Shinseki v. Sanders, 556 U.S. 396, 409 (2009) (citations omitted).
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III.

DISCUSSION

Plaintiff argues that the ALJ erred (1) in according little weight to the opinion of a treating

15 physician―Dr. Watrous, and (2) when determining whether Plaintiff can perform other jobs in the
16 national economy at step five of the sequential evaluation process. (See Doc. 19 at 8–13.) The
17 Court shall address each argument, in turn.
18 A.

The ALJ Did Not Err During the RFC Analysis

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Plaintiff first argues that the ALJ erred when performing the RFC analysis by rejecting a

20 portion of the opinion of a treating physician―Dr. Watrous. (See Doc. 19 at 10–13.) For the
21 reasons that follow, the Court disagrees with Plaintiff’s position.
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“The ALJ determines a claimant’s RFC before step four of the sequential evaluation

Overview of Analysis

24 analysis.” Colston v. Comm’r of Soc. Sec., Case No. 1:15-cv-01750-SKO, 2017 WL 784870, at *5
25 (E.D. Cal. Feb. 28, 2017) (citing 20 C.F.R. §§ 404.1520(e) & 416.920(e)). A claimant’s RFC “is
26 the most [the claimant] can still do despite [their] limitations.”

Id. §§ 404.1545(a)(1) &

27 416.945(a)(1). “In determining a claimant’s RFC, an ALJ must consider all relevant evidence in
28 the record . . . .” Robbins, 466 F.3d at 883. “The ALJ is entitled to formulate an RFC and resolve
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1 any ambiguity or inconsistency in the medical evidence . . . .” Jenkins v. Colvin, Case No. 1:152 cv-01135-SKO, 2016 WL 4126707, at *6 (E.D. Cal. Aug. 2, 2016) (citing Lewis v. Apfel, 236 F.3d
3 503, 509 (9th Cir. 2001)). Additionally, “[t]he ALJ can . . . decide what weight to give to what
4 evidence as long as the ALJ’s reasoning is free of legal error and is based on substantial
5 evidence.” Tremayne v. Astrue, No. CIV 08–2795 EFB, 2010 WL 1266850, at *12 (E.D. Cal.
6 Mar. 29, 2010) (citing Reddick v. Chater, 157 F.3d 715 (9th Cir. 1998)).
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“In disability benefits cases such as this, physicians may render medical, clinical opinions,

8 or they may render opinions on the ultimate issue of disability―the claimant’s ability to perform
9 work.” Reddick, 157 F.3d at 725. Courts “distinguish among the opinions of three types of
10 physicians: (1) those who treat the claimant (treating physicians); (2) those who examine but do
11 not treat the claimant (examining physicians); and (3) those who neither examine nor treat the
12 claimant (nonexamining [or reviewing] physicians).” Lester v. Chater, 81 F.3d 821, 830 (9th Cir.
13 1995).

“Generally, a treating physician’s opinion carries more weight than an examining

14 physician’s, and an examining physician’s opinion carries more weight than a reviewing
15 physician’s.” Holohan v. Massanari, 246 F.3d 1195, 1202 (9th Cir. 2001) (citations omitted); see
16 also Orn v. Astrue, 495 F.3d 625, 631 (9th Cir. 2007) (“By rule, the Social Security
17 Administration favors the opinion of a treating physician over non-treating physicians.” (citing 20
18 C.F.R. § 404.1527)). The opinions of treating physicians “are given greater weight than the
19 opinions of other physicians” because “treating physicians are employed to cure and thus have a
20 greater opportunity to know and observe the patient as an individual.” Smolen v. Chater, 80 F.3d
21 1273, 1285 (9th Cir. 1996) (citations omitted).
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In this case, Plaintiff alleges―and the record reflects―that Dr. Watrous was Plaintiff’s

23 treating physician. (See, e.g., AR 21.) “If . . . a treating [physician’s] opinion . . . is well24 supported by medically acceptable clinical and laboratory diagnostic techniques and is not
25 inconsistent with the other substantial evidence in [the] record, [the Commissioner] will give it
26 controlling weight.” 20 C.F.R. § 404.1527(c)(2); cf. Reddick, 157 F.3d at 725 (“Where the
27 treating doctor’s opinion is not contradicted by another doctor, it may be rejected only for clear
28 and convincing reasons supported by substantial evidence in the record.” (citation omitted)). “If
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1 there is ‘substantial evidence’ in the record contradicting the opinion of the treating physician, the
2 opinion of the treating physician is no longer entitled to ‘controlling weight.’” Orn, 495 F.3d at
3 632 (quoting 20 C.F.R. § 404.1527(d)(2)).
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“If a treating physician’s opinion is not given ‘controlling weight’ because it is not ‘well-

5 supported’ or because it is inconsistent with other substantial evidence in the record, the
6 [Commissioner] considers specified factors in determining the weight it will be given.” Id. at 631.
7 These factors include (1) the “[l]ength of the treatment relationship and the frequency of
8 examination,” (2) the “[n]ature and extent of the treatment relationship,” (3) the “[s]upportability”
9 of the opinion,” (4) the “[c]onsistency” of the opinion “with the record as a whole,” (5) whether
10 the opinion is from “a specialist about medical issues related to his or her area of specialty,” and
11 (6) “any other factors [the claimant] or others bring to [the ALJ’s] attention, or of which [the ALJ
12 is] aware, which tend to support or contradict the opinion.” 20 C.F.R. § 404.1527(c)(2)–(6).
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Further, “[e]ven if the treating doctor’s opinion is contradicted by another doctor, the ALJ

14 may not reject this opinion without providing ‘specific and legitimate reasons’ supported by
15 substantial evidence in the record.” Reddick, 157 F.3d at 725 (quoting Lester, 81 F.3d at 830).
16 “This can be done by setting out a detailed and thorough summary of the facts and conflicting
17 clinical evidence, stating his interpretation thereof, and making findings.” Id. (citing Magallanes
18 v. Bowen, 881 F.2d 747, 751 (9th Cir. 1989)); see, e.g., Chaudhry v. Astrue, 688 F.3d 661, 671
19 (9th Cir. 2012) (“The ALJ need not accept the opinion of any physician, including a treating
20 physician, if that opinion is brief, conclusory, and inadequately supported by clinical findings.”
21 (quoting Bray v. Comm’r of Soc. Sec. Admin., 554 F.3d 1219, 1228 (9th Cir. 2009))); Morgan v.
22 Comm’r of Soc. Sec. Admin., 169 F.3d 595, 600 (9th Cir. 1999) (“Opinions of a nonexamining,
23 testifying medical advisor may serve as substantial evidence when they are supported by other
24 evidence in the record and are consistent with it.” (citing Andrews v. Shalala, 53 F.3d 1035, 1041
25 (9th Cir. 1995))); Matney on Behalf of Matney v. Sullivan, 981 F.2d 1016, 1020 (9th Cir. 1992)
26 (noting that “inconsistencies and ambiguities” in a treating physician’s opinion “represent specific
27 and legitimate reasons for” rejecting the opinion).

“The ALJ must do more than offer his

28 conclusions.” Reddick, 157 F.3d at 725. “He must set forth his own interpretations and explain
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1 why they, rather than the doctors’, are correct.” Id. (citing Embrey v. Bowen, 849 F.2d 418, 421–
2 22 (9th Cir. 1988)).
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Finally, “[e]ven when contradicted by an opinion of an examining physician that

4 constitutes substantial evidence, the treating physician’s opinion is ‘still entitled to deference.’”
5 Orn, 495 F.3d at 632–33 (quoting Social Security Ruling (“SSR”) 96–2p). “In many cases, a
6 treating source’s medical opinion will be entitled to the greatest weight and should be adopted,
7 even if it does not meet the test for controlling weight.” Id. (quoting SSR 96–2p).
Analysis Regarding Plaintiff’s Treating Physician

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2.

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In his June 4, 2014 opinion, Dr. Watrous opined that Plaintiff had numerous severe

10 limitations, such as that Plaintiff could only (1) sit, stand, or walk for thirty minutes at a time
11 without interruption, (2) occasionally lift/carry up to ten pounds and never lift/carry more than ten
12 pounds, (2) occasionally reach, handle, or push/pull and never finger, (3) never operate foot
13 controls, (4) never climb ladders or scaffolds or balance, and only occasionally climb stairs and
14 ramps, stoop, kneel, crouch, or crawl, and (5) never work at unprotected heights, move mechanical
15 parts, in humid and wet conditions, in extreme temperature conditions, or with vibrations. (AR
16 384–89.)

This opinion was contradicted, in large part, by an examining physician―Dr.

17 Vesali―who opined that Plaintiff could (1) “walk, stand, and sit [for] six hours in an eight-hour
18 day,” (2) “lift/carry 50 pounds occasionally and 25 pounds frequently,” (3) perform “frequent
19 postural activities and frequent manipulative activities,” and (4) work in all workplace
20 environments, with the exception of a “limitation to working in cold environments.” (AR 280.)
21

As the opinion of Dr. Watrous is contradicted by the opinion of Dr. Vesali, the ALJ could

22 only reject Dr. Watrous’ opinion “for specific and legitimate reasons that are supported by
23 substantial evidence in the record.” Lester, 81 F.3d at 830–31 (citation omitted). The ALJ
24 accorded “limited weight” to Dr. Watrous’ opinion because this opinion was “inconsistent” with
25 (1) Dr. Watrous’ “progress notes documenting only mild symptoms,” (2) “the objective findings
26 by Dr. Vesali,” and (3) Plaintiff’s “own admissions with regard to his hobbies, recreational
27 activities, and household chores.” (AR 21.)
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The ALJ’s first stated rationale―inconsistency with treatment notes―is an appropriate

2 reason to reject Dr. Watrous’ opinion. As noted by the ALJ, Dr. Watrous’ treatment notes reflect
3 that Plaintiff had generally mild symptoms―and not the symptoms one would expect based on the
4 extreme limitations provided by Dr. Watrous in his June 4, 2014 opinion. (See AR 230–62, 281–
5 95, 325–89.) This inconsistency between Dr. Watrous’ treatment notes and his June 4, 2014
6 opinion is a valid specific and legitimate reason to reject this opinion. See, e.g., Tommasetti v.
7 Astrue, 533 F.3d 1035, 1041 (9th Cir. 2008) (“[An] incongruity between [a physician’s opinion]
8 and [the physician’s] medical records provides a[] . . . specific and legitimate reason for rejecting
9 [the physician’s] opinion of [the claimant’s] limitations.”); Rollins v. Massanari, 261 F.3d 853,
10 856 (9th Cir. 2001) (finding that inconsistencies between a treating physician’s treatment notes
11 and their opinion was an “adequate reason[] for not fully crediting” the physician’s opinion); Ortiz
12 v. Astrue, No. 1:11–cv–00064 SKO, 2012 WL 639508, at *10 (E.D. Cal. Feb. 24, 2012) (stating
13 that “a contradiction between a treating physician’s opinion and her treatment notes” constitutes a
14 “specific and legitimate reason for rejecting the treating physician’s opinion” (citing Valentine v.
15 Comm’r of Soc. Sec. Admin., 574 F.3d 685, 692–93 (9th Cir. 2009))).
16

Plaintiff nonetheless argues that this rationale was a deficient reason to discount Dr.

17 Watrous’ opinion because Dr. Watrous’ treatment notes included occasional findings that Plaintiff
18 had moderate symptoms. (See Doc. 19 at 11–12.) The Court is not persuaded by this argument.
19 While Dr. Watrous’ treatment notes did occasionally state that Plaintiff had some moderate
20 symptoms, such as moderate tenderness and stiffness, (see, e.g., AR 250, 256, 367, 377, 379),
21 those statements are a far cry from the extreme limitations opined by Dr. Watrous in his June 4,
22 2014 opinion, (see AR 384–89). In other words, Dr. Watrous’ treatment notes reflecting moderate
23 symptoms are, themselves, inconsistent with Dr. Watrous’ June 4, 2014 opinion.
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Furthermore, to the extent there is any conflict in the medical evidence relating to Dr.

25 Watrous’ treatment notes―i.e., mild or moderate symptoms―it is for the ALJ, and not this Court,
26 to resolve that conflict.

See, e.g., Andrews, 53 F.3d at 1039 (“The ALJ is responsible for

27 determining credibility, resolving conflicts in medical testimony, and for resolving ambiguities.
28 We must uphold the ALJ’s decision where the evidence is susceptible to more than one rational
11

1 interpretation.” (citations omitted)); Corn v. Astrue, No. 1:11–cv–00888 AWI GSA, 2012 WL
2 2798802, at *13 (E.D. Cal. July 9, 2012) (“To the degree there are conflicts in the medical
3 evidence, it is the ALJ’s responsibility to resolve such conflicts.” (citing Magallanes v. Bowen,
4 881 F.2d 747, 750 (9th Cir. 1989))). Here, the ALJ reasonably resolved any potential conflict in
5 Dr. Watrous’ treatment notes by finding that Dr. Watrous documented “mild symptoms” in his
6 treatment notes. (AR 21.) The Court will not disturb this finding. For these reasons, the Court
7 finds that the ALJ’s first stated rationale relating to an inconsistency between Dr. Watrous’
8 treatment notes and his June 4, 2014 opinion is a valid specific and legitimate reason to reject this
9 opinion.
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The ALJ’s second stated rationale for rejecting Dr. Watrous’ opinion―inconsistency with

11 the objective findings of Dr. Vesali―is also a valid reason to reject this opinion. Following an
12 examination of Plaintiff, Dr. Vesali found that Plaintiff had full “grip strength,” “[n]ormal muscle
13 bulk and tone,” normal sensory exam results, no inflammation in bilateral upper or lower
14 extremities, and no observed difficulties taking “off his shoes, put[ting] them on, . . . get[ting] on
15 and off the exam table,” or picking “up a paper clip from the table with each hand.” (AR 278–79.)
16 Dr. Watrous, on the other hand, opined that Plaintiff had extreme limitations that are at odds with
17 these objective findings. (See AR 384–89.) Additionally, Plaintiff has not referenced―and the
18 Court is not otherwise aware of―any objective medical evidence that supports Dr. Watrous’
19 opinion regarding Plaintiff’s limitations. The inconsistency between Dr. Watrous’ opinion and the
20 unremarkable objective findings of Dr. Vesali is a valid specific and legitimate reason to discount
21 Dr. Watrous’ opinion. See, e.g., Batson v. Comm’r of Soc. Sec. Admin., 359 F.3d 1190, 1195 (9th
22 Cir. 2004) (“[A]n ALJ may discredit treating physicians’ opinions that are . . . unsupported by the
23 record as a whole, . . . or by objective medical findings.” (citations omitted)); Mitchell v. Astrue,
24 No. ED CV 09–1258–PLA, 2010 WL 1994695, at *4 (C.D. Cal. May 14, 2010) (“The
25 inconsistency of [the physician’s] opinion with the objective [test] results and the medical
26 evidence as a whole was a legitimate reason supported by substantial evidence for the ALJ to
27 discredit the doctor’s opinion.” (citing 20 C.F.R. § 404.1527(d)(4))).
28
12

The ALJ’s final stated rationale for rejecting the opinion of Dr. Watrous―inconsistency

1

2 with Plaintiff’s activities―is similarly an appropriate specific and legitimate reason. Plaintiff
3 stated that he drives, cooks, washes dishes, does the laundry, and goes grocery shopping. (AR 42
4 & 277.) Dr. Watrous’ treatment notes on January 30, 2013 also state that Plaintiff was “[o]verall
5 doing well,” but his “joints are painful and stiff” if he “overdoes” activities “like washing care
6 [sic] and doing manuel [sic] work.” (AR 287.) The inconsistency between these activities of daily
7 living and the severe limitations included in Dr. Watrous’ opinion is an additional valid specific
8 and legitimate reason to reject this physician’s opinion. See, e.g., Ghanim v. Colvin, 763 F.3d
9 1154, 1162 (9th Cir. 2014) (stating that a conflict between a physician’s opinion and a claimant’s
10 daily activities “may justify rejecting a treating provider’s opinion” (citing Morgan v. Comm’r of
11 Soc. Sec. Admin., 169 F.3d 595, 600–02 (9th Cir. 1999))); Rollins, 261 F.3d at 856 (finding that
12 the ALJ gave specific and legitimate reasons for rejecting the opinion of a treating physician
13 where “the restrictions” included in the opinion “appear[ed] to be inconsistent with the level of
14 activity that [the claimant] engaged in”).
15

In summary, the ALJ provided several valid specific and legitimate reasons supported by

16 substantial evidence for rejecting the opinion of Plaintiff’s treating physician, Dr. Watrous. The
17 Court therefore finds that the ALJ did not err in rejecting the opinion of this physician.
18 B.

The ALJ Did Not Err at Step Five

19

Plaintiff also argues that the ALJ erred at step five by relying on the VE’s testimony that

20 Plaintiff can perform other substantial gainful activity in the national economy because the
21 requirements for the jobs cited by the VE conflict with Plaintiff’s limitations.2 (See Doc. 19 at 8–
22 10.) The Court again disagrees with Plaintiff’s position.
23
2

In their opposition brief, Defendant argues that Plaintiff waived his step-five argument by failing to raise it at the

24 Hearing. (See Doc. 24 at 13–14.) The Court agrees with Defendant’s position.
“[T]he Ninth Circuit has held that ‘at least when claimants are represented by counsel, they must raise all

25 issues and evidence at their administrative hearings in order to preserve them on appeal’ and courts ‘will only excuse a
26
27
28

failure to comply with this rule when necessary to avoid a manifest injustice.’” Ballestero v. Comm’r of Soc. Sec.,
Case No. 1:15-cv-01798-SKO, 2017 WL 714376, at *4 n.3 (E.D. Cal. Feb. 22, 2017) (quoting Meanel v. Apfel, 172
F.3d 1111, 1115 (9th Cir. 1999)). Here, Plaintiff was represented by counsel at the Hearing, yet Plaintiff failed to
raise any argument during the Hearing regarding a conflict between the VE’s testimony and Plaintiff’s language level.
As this argument was not preserved at the Hearing, it is waived on appeal before this Court. See, e.g., Robbins v. Soc.
Sec. Admin., 466 F.3d 880, 886 n.3 (9th Cir. 2006) (declining to address the claimant’s “argument that the ALJ erred
in relying on the [VE’s] testimony” where “it was not raised and preserved for appeal at the hearing” (citing Meanel,

13

1

“[I]f a claimant establishes an inability to continue her past work, the burden shifts to the

2 Commissioner in step five to show that the claimant can perform other substantial gainful work.”
3 Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005) (citing Swenson v. Sullivan, 876 F.2d 683,
4 687 (9th Cir. 1989)). At step five, “the ALJ . . . examines whether the claimant has the [RFC] . . .
5 to perform any other substantial gainful activity in the national economy.” Id. “If the claimant is
6 able to do other work, then the Commissioner must establish that there are a significant number of
7 jobs in the national economy that claimant can do.” Tackett v. Apfel, 180 F.3d 1094, 1099 (9th
8 Cir. 1999). “There are two ways for the Commissioner to meet the burden of showing that there is
9 other work in ‘significant numbers’ in the national economy that claimant can do: (1) by the
10 testimony of a [VE], or (2) by reference to the Medical-Vocational Guidelines . . . .” Id. “If the
11 Commissioner meets this burden, the claimant is not disabled and therefore not entitled to . . .
12 benefits.” Id. (citation omitted). “If the Commissioner cannot meet this burden, then the claimant
13 is disabled and therefore entitled to . . . benefits.” Id. (citation omitted).
14

In this case, the ALJ elected to use the first method at step five―the testimony of a VE.

15 (See, e.g., AR 23.) ALJs use VEs at disability hearings by calling the VE “to testify,” then
16 presenting the VE with “a series of hypothetical questions to ‘set out all of the claimant’s
17 impairments’ for the [VE’s] consideration.” Desrosiers v. Sec’y of Health & Human Servs., 846
18 F.2d 573, 578 (9th Cir. 1988) (quoting Gamer v. Sec’y of Health & Human Servs., 815 F.2d 1275,
19 1279 (9th Cir. 1987)). “The [VE] is then called upon to translate [these] factual scenarios [into]
20 realistic job market probabilities by testifying . . . to what kinds of jobs the claimant still can
21 perform and whether there is a sufficient number of those jobs in the claimant’s region or in
22 several other regions of the economy to support a finding of not disabled.” Id. (citation omitted).
23
24
25 172 F.3d at 1115)); Xiong v. Colvin, No. 1:13–cv–01161–JLT, 2014 WL 3735358, at *8 (E.D. Cal. July 28 2014)
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(finding that the claimant waived their right to raise an argument regarding the VE’s “methodology” where they were
represented by counsel at the administrative hearing, but “did not inquire as to” this issue at the hearing). Further,
there is no indication in the record―and Plaintiff does not otherwise contest―that a finding of waiver does not
present a risk of manifest injustice. Accordingly, the Court finds that Plaintiff’s argument regarding step five of the
sequential evaluation process is waived.
Nonetheless, the Court shall address the merits of Plaintiff’s argument regarding step five. As discussed
below, the Court also finds that this this argument lacks merit.

14

At the Hearing, the VE testified that Plaintiff could perform the jobs of “cashier II” and

1

2 “information clerk.” (AR 55.) These two jobs require language levels of 2 and 3, respectively.
3 See Cashier II, Dictionary of Occupational Titles, 1991 WL 671840 (4th ed. 1991); Information
4 Clerk, Dictionary of Occupational Titles, 1991 WL 672187 (4th ed. 1991).
Plaintiff testified during the Hearing that he had “11 years of education,” but that he can

5

6 only “read and write” at “[a]bout [a] fifth grade level.” (AR 34.) Plaintiff argues that the
7 language requirements of the jobs of cashier II and information clerk conflict with Plaintiff’s self8 assessed ability to read and write.3 (See Doc. 19 at 10; Doc. 25 at 2–8.)
9

This argument lacks merit.

“The regulations lay out the framework for considering

10 someone’s education as a vocational factor.” Leedy v. Colvin, Civ. No. 6:16–cv–00062–MC, 2017
11 WL 436390, at *2 (D. Or. Feb. 1, 2017) (citing 20 C.F.R. § 416.964). As pertinent here, the
12 regulations state that “the numerical grade level that [a claimant] completed in school may not
13 represent [the claimant’s] actual educational abilities,” which “may be higher or lower.” 20
14 C.F.R. § 416.964(b). The regulations further state that “if [the claimant] do[es] not have formal
15 schooling, this does not necessarily mean that [the claimant is] uneducated or lack[s] abilities,”
16 such as “reasoning ability, communication skills, and arithmetical ability.” Id. § 416.964(a). As
17 such, “[p]ast work experience and the kinds of responsibilities [the claimant] had when [the
18 claimant] w[as] working may show that [the claimant] ha[s] intellectual abilities, although [the
19 claimant] may have little formal education.” Id.
20

As noted by the ALJ in their decision, Plaintiff previously worked as a maintenance

21 repairman. (AR 22.) This job has a language requirement of 3, Maintenance Repairer, Building,
22 Dictionary of Occupational Titles, 1991 WL 687673 (4th ed. 1991)―i.e., a higher language
23
3

The predicate for Plaintiff’s step-five argument is that the ALJ must resolve any conflicts between a VE’s testimony

24 and the Occupational Outlook Handbook (the “OOH”). (See Doc. 19 at 9–10.) In particular, Plaintiff argues that the
jobs of cashier II and information clerk require “a high school education” under the OOH, and that Plaintiff cannot

25 perform these jobs based on his testimony regarding his fifth-grade reading and writing levels. (Id.)
26
27
28

As discussed below, substantial evidence supports the ALJ’s step-five determination based on the
requirements of Plaintiff’s prior work―regardless of Plaintiff’s functional education level. The Court therefore need
not resolve the issue of whether an ALJ must resolve conflicts between a claimant’s language abilities and the
requirements of jobs provided in the OOH. Cf. SSR 00-4p (“When there is an apparent unresolved conflict between
VE . . . evidence and the [Dictionary of Occupational Titles], the [ALJ] must elicit a reasonable explanation for the
conflict before relying on the VE . . . evidence to support a determination or decision about whether the claimant is
disabled.”).

15

1 requirement than the job of cashier II, see Cashier II, Dictionary of Occupational Titles, 1991 WL
2 671840 (4th ed. 1991) (providing that the job of cashier II has a language requirement of 2), and
3 the same language requirement as the job of information clerk, see Information Clerk, Dictionary
4 of Occupational Titles, 1991 WL 672187 (4th ed. 1991) (stating that the job of information clerk
5 has a language requirement of 3). Additionally, Plaintiff does not cite―and the Court is not
6 otherwise aware of―any evidence in the record that Plaintiff can no longer meet the language
7 requirement of his past relevant work as a maintenance repairer.

(Cf. AR 175 (providing

8 Plaintiff’s statement that only physical conditions limit his ability to work).) Based on Plaintiff’s
9 past work, substantial evidence supports the ALJ’s determination that Plaintiff could perform jobs
10 with the same or lower language requirements than Plaintiff’s previous employment. See, e.g.,
11 Forsberg v. Colvin, No. EDCV 12–2247–AGR, 2014 WL 144613, at *6 (C.D. Cal. Jan. 14, 2014)
12 (finding that “substantial evidence” supported the ALJ’s step-five determination where, in
13 pertinent part, the plaintiff’s past work had requirements that exceeded those of the jobs
14 referenced by the VE); Davis v. Astrue, Civil Action No. 5:11–cv–00408, 2012 WL 4018788, at
15 *8 (S.D. W. Va. Sept. 12, 2012) (“[E]ven assuming [the plaintiff] has a marginal education level
16 based simply on his grade level completion, the [VE’s] testimony . . . that [the plaintiff] can
17 perform the jobs identified . . . is supported by the record evidence of the mental demands of the . .
18 . work previously performed [by the plaintiff].”). See generally Tramaglino v. Comm’r of Soc.
19 Sec., No. 2:15-cv-0374-KJN, 2016 WL 7742803, at *4 (E.D. Cal. Apr. 29, 2016) (“The relevant
20 regulation makes it clear that a claimant’s education level may be defined by actual ability and not
21 necessarily by the numerical grade level he or she completed.” (citing 20 C.F.R. § 416.964)).
22

Further, to the extent there is any conflict in the evidence regarding Plaintiff’s language

23 abilities―including between Plaintiff’s testimony and his past work―it is for the ALJ, and not
24 this Court, to resolve that conflict. See, e.g., Edlund v. Massanari, 253 F.3d 1152, 1156 (9th Cir.
25 2001) (“The ALJ is responsible for determining credibility, resolving conflicts in medical
26 testimony, and resolving ambiguities.” (citing Andrews v. Shalala, 53 F.3d 1035, 1039 (9th Cir.
27 1995))); Morgan v. Comm’r of Soc. Sec. Admin., 169 F.3d 595, 599 (9th Cir. 1999) (“[Q]uestions
28 of credibility and resolutions of conflict in the testimony are functions solely of the Secretary.”
16

1 (citations omitted)). Here, the ALJ resolved this potentially conflicting evidence by finding that
2 Plaintiff could perform jobs with the same or lower language requirements as his past work. (See
3 AR 23.) As this was a rational conclusion based on the record, the Court shall not disturb the
4 ALJ’s determination. See, e.g., Thomas v. Barnhart, 278 F.3d 947, 954 (9th Cir. 2002) (“Where
5 the evidence is susceptible to more than one rational interpretation, one of which supports the
6 ALJ’s decision, the ALJ’s conclusion must be upheld.” (citing Morgan, 169 F.3d at 599)).
7

For these reasons, the Court finds that the ALJ did not err at step five of the sequential

8 evaluation process. Consequently, the Court finds that the ALJ’s decision is properly affirmed.
9

IV.

CONCLUSION

For the reasons provided herein, the Court DENIES Plaintiff’s Motion, (Doc. 19),

10

11 AFFIRMS the final decision of the Commissioner, and DISMISSES this case.
12
13

IT IS SO ORDERED.

14 Dated:
15

September 1, 2017

/s/

Sheila K. Oberto

UNITED STATES MAGISTRATE JUDGE

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