Martin v. Commissioner of Social Security

Filing 31

FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Craig M. Kellison on 3/27/18 RECOMMENDING that 19 Motion for Summary Judgment be denied and 24 Cross-Motion for Summary Judgment be granted. F&R referred to District Judge Morrison C. England, Jr. Objections to F&R due within 14 days. (Kaminski, H)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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MICHELLE A. MARTIN,

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No. 2:16-cv-0860-MCE-CMK

Plaintiff,
vs.

FINDINGS AND RECOMMENDATION

COMMISSIONER OF SOCIAL
SECURITY,

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Defendant.
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Plaintiff, who is proceeding with retained counsel, brings this action for judicial

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review of a final decision of the Commissioner of Social Security under 42 U.S.C. § 405(g).

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Pending before the court are plaintiff’s motion for summary judgment (Doc. 19) and defendant’s

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cross-motion for summary judgment (Doc. 24).
I. PROCEDURAL HISTORY1

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Plaintiff applied for social security benefits protectively on April 30, 2012,
alleging an onset of disability on August 1, 2011, due to chronic low back pain, depression,

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Because the parties are familiar with the factual background of this case, including
plaintiff’s medical history, the undersigned does not exhaustively relate those facts here. The
facts related to plaintiff’s impairments and medical history will be addressed insofar as they are
relevant to the issues presented by the parties’ respective motions.
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anxiety, bipolar, neck pain, pain and numbness in upper and lower extremities, headaches,

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disorders of back, affective mood disorders, planter fasciitis (Certified administrative record

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(“CAR”) 120, 142-44, 172-73). Plaintiff’s claim was denied initially and upon reconsideration.

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Plaintiff requested an administrative hearing, which was held on September 11, 2014, before

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Administrative Law Judge (“ALJ”) Peter F. Belli. In an October 20, 2014, decision, the ALJ

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concluded that plaintiff is not disabled2 based on the following findings:

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1.

The claimant meets the insured status requirements of the Social
Security Act through June 30, 2016.

2.

The claimant has not engaged in substantial gainful activity since
August 1, 2011, the alleged onset date (20 CFR 404.1571 et seq.,
and 416.971 et seq.).

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Disability Insurance Benefits are paid to disabled persons who have contributed to
the Social Security program, 42 U.S.C. § 401 et seq. Supplemental Security Income (“SSI”) is
paid to disabled persons with low income. 42 U.S.C. § 1382 et seq. Under both provisions,
disability is defined, in part, as an “inability to engage in any substantial gainful activity” due to
“a medically determinable physical or mental impairment.” 42 U.S.C. §§ 423(d)(1)(a) &
1382c(a)(3)(A). A five-step sequential evaluation governs eligibility for benefits. See 20 C.F.R.
§§ 423(d)(1)(a), 416.920 & 416.971-76; Bowen v. Yuckert, 482 U.S. 137, 140-42 (1987). The
following summarizes the sequential evaluation:
Step one: Is the claimant engaging in substantial gainful
activity? If so, the claimant is found not disabled. If not, proceed
to step two.
Step two: Does the claimant have a “severe” impairment?
If so, proceed to step three. If not, then a finding of not disabled is
appropriate.
Step three: Does the claimant’s impairment or combination
of impairments meet or equal an impairment listed in 20 C.F.R., Pt.
404, Subpt. P, App.1? If so, the claimant is automatically
determined disabled. If not, proceed to step four.
Step four: Is the claimant capable of performing his past
work? If so, the claimant is not disabled. If not, proceed to step
five.
Step five: Does the claimant have the residual functional
capacity to perform any other work? If so, the claimant is not
disabled. If not, the claimant is disabled.

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Lester v. Chater, 81 F.3d 821, 828 n.5 (9th Cir. 1995).

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The claimant bears the burden of proof in the first four steps of the sequential evaluation
process. Bowen, 482 U.S. at 146 n.5. The Commissioner bears the burden if the sequential
evaluation process proceeds to step five. Id.

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3.

The claimant has the following severe impairments: degenerative
disc disease of the cervical spine, degenerative disc disease of the
lumbar spine, degenerative disc disease of the thoracic spine,
carpal tunnel syndrome (CTS), obesity, early stages of
osteoporosis, planter fasciitis and calcaneal spurs in both feet,
depressive disorder, bipolar disorder and anxiety disorder. (20 CFR
404.1520(c) and 416.920(c)).

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The claimant does not have an impairment or combination of
impairments that meets or medically equals the severity of one of
the listed impairments in 20 CFR Part 404, Subpart P, Appendix 1
(20 CFR 404.1520(d), 404.1525, 404.1526, 416.920(d), 416.925
and 416.926).

5.

After careful consideration of the entire record, the undersigned
finds that the claimant has the residual functional capacity to
perform less than a full range of light work as defined in 20 CFR
404.1567(b) and 416.967(b). She can lift, carry, push and/or pull
20 pounds occasionally and ten pounds frequently. She can sit for
eight hours in an eight-hour work day, but needs a sit/stand option
at will at the workstation. She can sit 30-to-40 minutes at a time.
She can stand and walk six hours in an eight-hour workday with
normal breaks, but is precluded from prolonged walking or
standing and must be permitted to change positions every 20-to-30
minutes. She is precluded from climbing ladders, ropes and
scaffolds. She can occasionally stoop, crouch, crawl and kneel.
She can frequently perform both gross and fine manipulation. She
has the capacity to receive, understand, remember and carry out
simple job instructions, can only occasionally perform detailed job
instructions, and is precluded from performing complex job
instructions. She can interact appropriately with the general public,
coworkers and supervisors. She is capable of making work place
judgments and can adjust to simple changes in the workplace.

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The claimant is unable to perform any past relevant work (20 CFR
404.1565 and 416.965).

7.

The claimant was born on April 20, 1961 and was 50 years old,
which is defined as an individual closely approaching advanced
age, on the alleged disability onset date (20 CFR 404.1563 and
416.963).

8.

The claimant has at least a high school education and is able to
communicate in English (20 CFR 404.1564 and 416.964).

9.

Transferability of job skills is not material to the determination of
disability because using the Medical-Vocational Rules as a
framework supports a finding that the claimant is “not disabled,”
whether or not the claimant has transferable job skills (See SSR
82-41 and 20 CFR Park 404, Subpart P, Appendix 2).

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10.

Considering the claimant’s age, education, work experience, and
residual functional capacity, there are jobs that exist in significant
numbers in the national economy that the claimant can perform (20
CFR 404.1569, 404.1569(a), 416.969, and 416.969(a)).

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The claimant has not been under a disability, as defined in the
Social Security Act, from August 1, 2011, through the date of this
decision (20 CFR 404.1520(g) and 416.920(g)).

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(CAR 19-33). After the Appeals Council declined review on February 26, 2016, this appeal

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followed.

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II. STANDARD OF REVIEW

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The court reviews the Commissioner’s final decision to determine whether it is:

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(1) based on proper legal standards; and (2) supported by substantial evidence in the record as a

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whole. See Tackett v. Apfel, 180 F.3d 1094, 1097 (9th Cir. 1999). “Substantial evidence” is

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more than a mere scintilla, but less than a preponderance. See Saelee v. Chater, 94 F.3d 520, 521

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(9th Cir. 1996). It is “such evidence as a reasonable mind might accept as adequate to support a

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conclusion.” Richardson v. Perales, 402 U.S. 389, 402 (1971). The record as a whole, including

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both the evidence that supports and detracts from the Commissioner’s conclusion, must be

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considered and weighed. See Howard v. Heckler, 782 F.2d 1484, 1487 (9th Cir. 1986); Jones v.

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Heckler, 760 F.2d 993, 995 (9th Cir. 1985). The court may not affirm the Commissioner’s

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decision simply by isolating a specific quantum of supporting evidence. See Hammock v.

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Bowen, 879 F.2d 498, 501 (9th Cir. 1989). If substantial evidence supports the administrative

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findings, or if there is conflicting evidence supporting a particular finding, the finding of the

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Commissioner is conclusive. See Sprague v. Bowen, 812 F.2d 1226, 1229-30 (9th Cir. 1987).

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Therefore, where the evidence is susceptible to more than one rational interpretation, one of

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which supports the Commissioner’s decision, the decision must be affirmed, see Thomas v.

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Barnhart, 278 F.3d 947, 954 (9th Cir. 2002), and may be set aside only if an improper legal

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standard was applied in weighing the evidence, see Burkhart v. Bowen, 856 F.2d 1335, 1338 (9th

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Cir. 1988).
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III. DISCUSSION

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Plaintiff argues the ALJ erred in five ways: (1) determining the severity of

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plaintiff’s impairments; (2) rejecting the opinions of the treating and examining physicians; (3)

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rejecting plaintiff’s testimony and lay witness statements; (4) formulating her Residual

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Functional Capacity (RFC); (5) and finding plaintiff can perform other work. Plaintiff is

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requesting this case be remanded for an award of benefits.

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A.

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Plaintiff contends the ALJ erred in determining her fibromyalgia, headaches,

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Step Two Severity

myalgia and myositis, and chronic pain syndrome were not severe. She argues the ALJ erred in

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finding she does not have a medically determinable impairment of fibromyalgia, that her

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headaches are not severe, and by ignoring her diagnosis of myalgia and myositis as well as

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chronic pain syndrome. Defendant counters that plaintiff’s diagnosis of possible fibromyalgia

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does not meet the requirements for finding a severe impairment, there is no evidence that

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plaintiff’s headaches were a severe impairment, and that the ALJ did not err in not addressing the

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other diagnosis at step two especially as the ALJ took plaintiff’s credible pain symptoms into

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account.

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In order to be entitled to benefits, the plaintiff must have an impairment severe

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enough to significantly limit the physical or mental ability to do basic work activities. See 20

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C.F.R. §§ 404.1520(c), 416.920(c).3 In determining whether a claimant’s alleged impairment is

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sufficiently severe to limit the ability to work, the Commissioner must consider the combined

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effect of all impairments on the ability to function, without regard to whether each impairment

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alone would be sufficiently severe. See Smolen v. Chater, 80 F.3d 1273, 1289-90 (9th Cir.

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Basic work activities include: (1) walking, standing, sitting, lifting, pushing,
pulling, reaching, carrying, or handling; (2) seeing, hearing, and speaking; (3) understanding,
carrying out, and remembering simple instructions; (4) use of judgment; (5) responding
appropriately to supervision, co-workers, and usual work situations; and (6) dealing with changes
in a routine work setting. See 20 C.F.R. §§ 404.1521, 416.921.
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1996); see also 42 U.S.C. § 423(d)(2)(B); 20 C.F.R. §§ 404.1523 and 416.923. An impairment,

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or combination of impairments, can only be found to be non-severe if the evidence establishes a

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slight abnormality that has no more than a minimal effect on an individual’s ability to work. See

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Social Security Ruling (“SSR”) 85-28; see also Yuckert v. Bowen, 841 F.2d 303, 306 (9th Cir.

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1988) (adopting SSR 85-28). “Step two, then, is ‘a de minimis screening device [used] to

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dispose of groundless claims,’ and an ALJ may find that a claimant lacks a medically severe

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impairment or combination of impairments only when his conclusion is ‘clearly established by

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medical evidence.’” Webb v. Barnhart, 433 F.3d 683, 687 (9th Cir. 2005) (quoting Smolen v.

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Chater, 80 F.3d 1273, 1290 (9th Cir. 1996); S.S.R. 85–28). The plaintiff has the burden of

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providing medical evidence of signs, symptoms, and laboratory findings that show that his or her

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impairments are severe and are expected to last for a continuous period of twelve months.

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Ukolov v. Barnhart, 420 F.3d 1002, 1004 (9th Cir. 2005); see also 20 C.F.R. §§ 404.1509,

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404.1520(a)(4)(ii), 416.909, 416.920(a)(4)(ii). An ALJ’s finding that a claimant is not disabled

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at step two will be upheld where “there are no medical signs or laboratory findings to substantiate

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the existence of medically determinable physical or mental impairment.” Ukolov, 420 F.3d at

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1005. The plaintiff’s own statement of symptoms alone is insufficient.

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In this case, the medical records do not provide an extensive history of

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fibromyalgia, nor are there any notations from an acceptable medical source regarding

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fibromyalgia. Plaintiff was first diagnosed with possible fibromyalgia on May 14, 2013. (CAR

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553). Nurse Practitioner Linda Morrison-Ory noted that plaintiff’s multiple aches and pains were

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consistent with fibromyalgia, after plaintiff apparently filled out a fibromyalgia handout. FNP

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Morrison-Ory noted that plaintiff has “body pain bilaterally and above and below the umbilicus.

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She has some pain in the joints, some pain in the muscles. She has a lot of other somatic

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symptoms that are consistent with fibromyalgia and/or depression.” (CAR 553). On August 6,

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2013, FNP Morrison-Ory noted plaintiff was “not feeling fine multiple aches and pains, multiple

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locations, no swelling or redness; feeling fatigued; no fever; no chills...no headache.” (CAR 5476

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58). The assessment was “bipolar disorder NOS; facet syndrome; arthritis” with no mention of

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fibromyalgia. (CAR 549).

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On September 12, 2013, FNP Morrison-Ory’s examination showed that plaintiff

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was having pain “in her low back, multiple [p]oints and in her muscles. She has multiple tender

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spots on palpitation, on upper and lower body, on right and left side of her body. She has fatigue

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and poor sleep secondary to her pain.” (CAR 536). She was assessed with “bipolar disorder

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NOS; chronic reflux esophagitis; osteoarthritis; facet syndrome lumbar; bulging intervertebral

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disc thoracic spine; myalgia and myositis possible fibromyalgia; persistent insomnia.” (CAR

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538). On November 12, 2013, January 6, 2014, and February 6, 2014, FNP Morrison-Ory noted

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plaintiff’s “fibromyalgia symptoms have flared since is no longer on Cymbalta.” (CAR 513, 519,

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525).4 However, there is no indication as to what symptoms she was experiencing, with the

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exception of hot flashes, nor does there appear to have been any physical examination. On

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February 20, 2014, FNP Morrison-Ory noted as to plaintiff’s history of present illness, that her

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fibromyalgia symptoms have flared since she is no longer on
Cymbalta. Her symptoms are “brain fog” hot flashes may be due
to the “broken thermometer” effect of fibromyalgia, calf muscle
twitching, muscle pain on both sides of her body both above and
below the waist line, burning pain in her left thumb when peeling
an orange, Burning pain in right hand and arm-worse when
brushing her hair, fatigue. Standing and walking are triggers that
cause extreme pain in the middle and lower back, and the legs.
Cannot stand longer than 10 minutes because she has pain in her
right hip, lower back, and buttock and spasm in her mid back. She
also gets shoulder and neck pain, heel and ankle pain. She gets
numbness in both anterior thighs and occasionally down her left
leg. She has to rest every ten minutes or so, lying down feels better
than sitting. She is able to accomplish some household chores
breaking them down into 10 minute segments.

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(CAR 509). This exact history is repeated verbatim on a number of visits including March 17,

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2014, May 21, 2014, June 24, 2014, and July 23, 2014. (CAR 505, 580, 583, 586). It is noted

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Of note, however, is plaintiff had a reaction to Cymbalta in April 2010. (CAR
418, 423). It appears that she stopped taking Cymbalta over three years before FNP MorrisonOry determined that was the cause of plaintiff’s fibromyalgia symptoms flaring.
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that this is part of the history, not examination. As to the physical examination, plaintiff

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appeared alert, oriented, well nourished, and in no acute distress; musculoskeletal exam was not

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repeated. (CAR 511). FNP Morrison-Ory notes that Dr. Vagic is her supervising physician, but

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there is no indication that Dr. Vagic ever examined plaintiff, or that they worked closely. Nor are

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there medical records from any physician diagnosing or treating plaintiff for fibromyalgia. There

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is no referral to a rheumatologist or other specialist for the treatment of fibromyalgia.

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SSR12-2p, which “provides guidance on how we develop evidence to establish

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that a person has a medically determinable impairment (MDI) of fibromyalgia (FM),” states that

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“[g]enerally, a person can establish that he or she has an MDI of FM by providing evidence from

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an acceptable medical source. A licensed physician (a medical or osteopathic doctor) is the only

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acceptable medical source who can provide such evidence. We cannot rely upon the physician’s

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diagnosis alone. The evidence must document that the physician reviewed the person’s medical

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history and conducted a physical exam.” SSR 12-2p, 2012 WL 3104869. To establish a person

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has an MDI of FM, there has to be a diagnosis from a physician, which is not inconsistent with

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the other evidence in the record, and either of two sets of criteria must be met: either the 1990

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American College of Rheumatology (ACR) Criteria for the Classification of Fibromyalgia or the

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1990 ACR Preliminary Diagnostic Criteria.

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Under the former, an individual may be found to have an MDI of FM if he or she

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has all three: 1) history of widespread pain (in all quadrants of the body) that has lasted for at

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least three months, 2) at least 11 positive tender points,5 and 3) other disorders were excluded.

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Under the latter, an individual may be found to have an MDI of FM if the individual has: 1)

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history of widespread pain, 2) repeated manifestations of six or more FM symptoms (especially

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manifestations of fatigue, cognitive or memory problems, waking unrefreshed, depression,

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SSR 12-2p specifically provides for the examination which the physician should
perform, including the amount of force to be used with digital palpitation. See SSR 12-2p
(II.A.2.b).
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anxiety disorder, or irritable bowel syndrome), and 3) other disorders were excluded. See SSR

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12-2p, 2012 WL 3104869.

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As to plaintiff’s fibromyalgia, the ALJ determined:

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The claimant alleges disability due to fibromyalgia; however, the
medical record does not support this diagnosis per SSR 12-2p. A
review of the record indicates the claimant was diagnosed with
fibromyalgia; however, there are no clinical examinations
documenting at least eleven positive bilateral tender points
(Exhibits B14F/3-14/17-20/23-25/34-36/49 and B18F/3-5/9-12).
For these reasons, the undersigned finds that the claimant’s
diagnosis of fibromyalgia is not a medically determinable
impairment per SSR 12-2p.

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(CAR 22)
The ALJ’s determination that there is a lack of clinical examinations is supported

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by the evidence. While FNP Morrison-Ory noted that plaintiff had body pain bilaterally and

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above and below the umbilicus and she had multiple tender spots on palpitation, there lacks

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actual examination notes to document what plaintiff was experiencing. There is no indication as

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to how many tender spots she had, nor do the records identify how those tender spots were

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determined. SSR 12-2p provides for specific information as to where the tender spots are

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located, how many tender spots are required, and the amount of force to be used with palpitation.

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None of the medical records provide this information. The ALJ determined plaintiff failed to

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meet the requirements for SSR 12-2p as there are no clinical examinations documenting at least

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eleven tender points. The record supports this conclusion.

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Plaintiff contends, however, that she meets the second prong of SSR 12-2p. She

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has a history of widespread pain, six or more FM symptoms, and other disorders were excluded.

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Specifically, she argues that her FM symptoms include fatigue, cognitive or memory problems

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(fibro fog), depression, anxiety disorder, irritable bowel syndrom, muscle pain, headaches,

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numbness, insomnia, constipation, and diarrhea. Defendant argues that FNP Morrison-Ory only

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diagnosed plaintiff with possible fibromyalgia, that a diagnosis from a nurse practitioner does not

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meet the qualifications of SSR 15-2p, and there is no indication in the records that the diagnostic
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tests plaintiff states were ordered ruled out other disorders.

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As set forth above, SSR 12-2p requires a physician to have diagnosed the claimant

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with fibromyalgia based on the claimant’s medical history and physical examination. Here, that

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requirement was not met. While FNP Morrison-Ory appears to be plaintiff’s primary care giver,

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she is not a medical doctor. SSR 12-2p specifically states that the diagnosis of FM is to be made

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by a physician. It further states that a diagnosis alone is insufficient, and requires the physician

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to review the person’s medical history and conduct a physical exam. There is no indication in the

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record that Dr. Vagic or any other physician diagnosed plaintiff with fibromyalgia, examined

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plaintiff directly for fibromyalgia, or even reviewed FNP Morrison-Ory’s diagnosis. As stated

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above, there was no referral to a rheumatologist or any other specialist, nor does it appear that

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FNP Morrison-Ory consulted with Dr. Vagic, her supervising physician.6

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Thus, whether or not it was error for the ALJ to have not evaluated plaintiff’s

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condition under the second prong of SSR 12-2p as to the six or more FM symptoms, any such

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error would be harmless as the other requirements of SSR 12-2p have not been met. The Ninth

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Circuit acknowledges it has “expressed different formulations of the harmless error rule

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depending on the facts of the case and the error at issue.” Molina v Astrue, 674 F.3d 1104, 1115

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(9th Cir. 2012). However, the Court adheres “to the general principle that an ALJ’s error is

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harmless where it is ‘inconsequential to the ultimate nondisability determination.’” Id. (citing

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Carmickle v. Commissioner, 533 F.3d 1155, 1162 (9th Cir. 2008); Tommasetti v. Astrue, 533

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F.3d 1035, 1038 (9th Cir. 2008); Robbins v. Soc. Sec. Admin., 466 F.3d 880, 885 (9th Cir.2006);

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Stout v. Commissioner, 454 F.3d 1050, 1055 (9th Cir. 2006)). “In other words, in each case we

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look at the record as a whole to determine whether the error alters the outcome of the case.” Id.

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FNP Morrison-Ory does not qualify as a medically acceptable treating source
because she is a nurse practitioner, see 20 C.F.R. § 404.1513(d)(1), and the record does not show
that she worked under a physician’s close supervision, see Gomez v. Chater, 74 F.3d 967, 971
(9th Cir.1996) (holding that a nurse practitioner could be considered a medically acceptable
source where she worked under a physician’s close supervision such that she acted as the
physician’s agent).
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As plaintiff did not meet the requirements of SSR 12-2p, any error for the ALJ’s failure to

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address the second prong to diagnose fibromyalgia was harmless.

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As to plaintiff’s headaches, the ALJ stated:

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The claimant alleges disability secondary to headaches (Exhibit
B3E). She endorsed headaches about five days per week (Exhibit
B18F/9-12). While there is evidence she was prescribed Topamax,
an antiepileptic also used to treatment [sic] migraine headaches and
mood disorders, a review of the record indicates this medication
was prescribed as a mood stabilizer (Exhibits B14F/3-6/15-16 and
B17F/3-4). She has never sought urgent or emergent care for
headache symptoms (Hearing Testimony). Based on her general
lack of treatment for headache pain, the undersigned finds that the
medical record does not support the claimant’s allegations of
frequent headaches and therefore finds this impairment to be
nonsevere.

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(CAR 22).

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Plaintiff argues the ALJ’s reasons for finding plaintiff’s headaches not severe are

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not supported by substantial evidence or legal authority. She contends the medical records show

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she regularly suffers from headaches about 5 days a week, and was taking multiple medications

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for pain. She further contends she was specifically taking trazodone for her headaches, and she

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testified that the pain in her neck radiates up to her head.

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Defendant counters that plaintiff fails to cite to any medically determinable

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diagnosis of headaches, only her complaints thereof. In addition, defendant argues that plaintiff

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did not receive any specialize treatment, and there is no indication that the medications were

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ineffective in alleviating her headaches. Further, plaintiff’s citation to being prescribed

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Trazodone for headaches was to her own list of medications, not to any medical records wherein

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she was prescribed mediation specifically for headaches and the medical records indicate she was

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prescribed Trazodone for insomnia.

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Defendant’s arguments are well taken. As the ALJ determined, there are

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notations in the medical records that plaintiff complained about headaches. However, she did not

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specifically seek treatment for headaches, whether routine, urgent or emergent care. The ALJ

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also acknowledged she was prescribed Topamax, but the undersigned agrees with defendant’s
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argument that there is no indication that in the medical records that it was prescribed specifically

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for her headaches, nor that the medication she received were ineffective in alleviating her

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headaches. Therefore, the undersigned finds no error in the ALJ’s determiantion that her

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headaches were non-severe, and she has failed to meet her burden to show otherwise.

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Finally, as to myalgia, myositis, and/or chronic pain syndrom, the ALJ did not

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specifically address these possible diagnoses. Plaintiff contends she was diagnosed with these

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conditions and it was legal error for the ALJ to ignore medical evidence of disabling conditions.

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Defendant argues that the lack of any specific mention of these conditions did not materially

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undermine the ALJ’s decision as the ALJ proceeded with the sequential analysis, recognized

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plaintiff’s pain and took into account the credible pain complaints in the analysis.

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The undersigned notes that the diagnosis of myalgia and myositis were noted as

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possible diagnosis, specifically as an alternative to the diagnosis of fibromyalgia. (CAR 538).

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Myalgia (which plaintiff states is the pain and tenderness in muscles) and myositis (which she

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states is the inflamation of muscle) do not appear to have been specifically treated. Similarly, the

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undersigned notes only one mention of a diagnosis of chronic pain syndrome. (CAR 559).

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Regardless, other than the possible diagnosis, plaintiff fails to show any functional limitations

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other than pain. As the defendant argues, the ALJ took into consideration plaintiff’s pain

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impairment, as discussed below, and included plaintiff’s pain he determined was credible in

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determining plaintiff’s limitations. Thus, the failure to include these specific diagnosis in the step

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two analysis was harmless as it did not materially undermine the final decision. See Molina, 674

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F.3d at 1115.

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B.

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Plaintiff argues the ALJ erred by failing to provide legally sufficient reasons for

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Medical Opinions

rejecting the opinions of her treating and examining physicians.
The weight given to medical opinions depends in part on whether they are
proffered by treating, examining, or non-examining professionals. See Lester v. Chater, 81 F.3d
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821, 830-31 (9th Cir. 1995). Ordinarily, more weight is given to the opinion of a treating

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professional, who has a greater opportunity to know and observe the patient as an individual,

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than the opinion of a non-treating professional. See id.; Smolen v. Chater, 80 F.3d 1273, 1285

4

(9th Cir. 1996); Winans v. Bowen, 853 F.2d 643, 647 (9th Cir. 1987). The least weight is given

5

to the opinion of a non-examining professional. See Pitzer v. Sullivan, 908 F.2d 502, 506 & n.4

6

(9th Cir. 1990).

7

In addition to considering its source, to evaluate whether the Commissioner

8

properly rejected a medical opinion the court considers whether: (1) contradictory opinions are

9

in the record; and (2) clinical findings support the opinions. The Commissioner may reject an

10

uncontradicted opinion of a treating or examining medical professional only for “clear and

11

convincing” reasons supported by substantial evidence in the record. See Lester, 81 F.3d at 831.

12

While a treating professional’s opinion generally is accorded superior weight, if it is contradicted

13

by an examining professional’s opinion which is supported by different independent clinical

14

findings, the Commissioner may resolve the conflict. See Andrews v. Shalala, 53 F.3d 1035,

15

1041 (9th Cir. 1995). A contradicted opinion of a treating or examining professional may be

16

rejected only for “specific and legitimate” reasons supported by substantial evidence. See Lester,

17

81 F.3d at 830. This test is met if the Commissioner sets out a detailed and thorough summary of

18

the facts and conflicting clinical evidence, states her interpretation of the evidence, and makes a

19

finding. See Magallanes v. Bowen, 881 F.2d 747, 751-55 (9th Cir. 1989). Absent specific and

20

legitimate reasons, the Commissioner must defer to the opinion of a treating or examining

21

professional. See Lester, 81 F.3d at 830-31. The opinion of a non-examining professional,

22

without other evidence, is insufficient to reject the opinion of a treating or examining

23

professional. See id. at 831. In any event, the Commissioner need not give weight to any

24

conclusory opinion supported by minimal clinical findings. See Meanel v. Apfel, 172 F.3d 1111,

25

1113 (9th Cir. 1999) (rejecting treating physician’s conclusory, minimally supported opinion);

26

see also Magallanes, 881 F.2d at 751.
13

1

In addition to considering its source, to evaluate whether the Commissioner

2

properly rejected a medical opinion the court considers whether: (1) contradictory opinions are

3

in the record; and (2) clinical findings support the opinions. The Commissioner may reject an

4

uncontradicted opinion of a treating or examining medical professional only for “clear and

5

convincing” reasons supported by substantial evidence in the record. See Lester, 81 F.3d at 831.

6

While a treating professional’s opinion generally is accorded superior weight, if it is contradicted

7

by an examining professional’s opinion which is supported by different independent clinical

8

findings, the Commissioner may resolve the conflict. See Andrews v. Shalala, 53 F.3d 1035,

9

1041 (9th Cir. 1995). A contradicted opinion of a treating or examining professional may be

10

rejected only for “specific and legitimate” reasons supported by substantial evidence. See Lester,

11

81 F.3d at 830. This test is met if the Commissioner sets out a detailed and thorough summary of

12

the facts and conflicting clinical evidence, states her interpretation of the evidence, and makes a

13

finding. See Magallanes v. Bowen, 881 F.2d 747, 751-55 (9th Cir. 1989). Absent specific and

14

legitimate reasons, the Commissioner must defer to the opinion of a treating or examining

15

professional. See Lester, 81 F.3d at 830-31. The opinion of a non-examining professional,

16

without other evidence, is insufficient to reject the opinion of a treating or examining

17

professional. See id. at 831. In any event, the Commissioner need not give weight to any

18

conclusory opinion supported by minimal clinical findings. See Meanel v. Apfel, 172 F.3d 1111,

19

1113 (9th Cir. 1999) (rejecting treating physician’s conclusory, minimally supported opinion);

20

see also Magallanes, 881 F.2d at 751.

21

Plaintiff argues the ALJ erred in not accepting three medical opinions in full, Dr.

22

Garewal, Dr. Kinnison, and Dr. Wong. Specifically, plaintiff contends the ALJ erred in rejecting

23

Dr. Garewal’s opinion as a whole and Dr. Kinnison’s opinion that she can stand and walk four

24

hours, by failing to give clear and convincing or legitimate reasons for so doing, and the reasons

25

given lacked substantial evidence to support them. She contends the ALJ erred by failing to

26

incorporate certain limitations Dr. Wong opined in the RFC, without providing any reasons for
14

1

rejecting the three limitations in Dr. Wong’s opinion.

2

Defendant counters that the evidence plaintiff points to does not support her

3

argument, the medical records were consistent with the ALJ’s RFC findings, her mild-to-

4

moderate limitations were accommodated in the RFC, and there were conflicting opinions in the

5

record. Defendant also argues that the ALJ properly executed his duty in resolving conflicts

6

within the medical records and opinions.

7

Dr. Garewal submitted a medical source statement as to plaintiff’s mental

8

condition. He opined that plaintiff’s abilities were poor in all categories. He stated she had poor

9

ability to understand and remember both detailed or complex instructions as well as very short

10

and simple instructions as she “cannot process mental issues.” He stated she had poor ability to

11

carry out instructions, attend and concentrate, and work without supervision as she has “very

12

poor attention and concentration.” He stated she had poor ability to interact with the public,

13

coworkers and supervisors as she is “alway[s] anxious, avoidant, get[s] intimidated, angry, gets

14

panicky.” Finally he stated she has poor ability to adapt to changes in the workplace, but did not

15

provide a reason. This assessment was done after only one visit on March 10, 2014. (CAR 570-

16

71).

17

As to Dr. Garewal,7 the ALJ stated:

18

Jagdeep Garewell, M.D., a treating psychiatrist, submitted a
medical source statement dated May 2014. Dr. Garewell opined
the claimant cannot usefully perform or sustain any mental
activities, including understanding and remembering instructions,
sustaining concentration and task persistence, interaction with
others, and adapting to the workplace (Exhibit B16F). Dr.
Garewell’s opinion is inconsistent with medical records, including
his own treatment notes, which documented cooperative behavior,
good grooming, good eye contact, normal speech, normal thought
process, normal thought content, fair insight, fair judgment and
mild-to-moderate difficulties with attention, concentration and
memory (Exhibits B14F, B17F and B18F). As such, Dr.
Garewell’s notes are wholly inconsistent with his opinion that the

19
20
21
22
23
24
25
7

26

It appears the ALJ’s spelling of the doctor’s name differs from the medical

records.
15

1

claimant had poor abilities in all areas of mental functioning.
Accordingly, the undersigned accorded Dr. Garewell’s opinion no
weight.

2
(CAR 30).
3

Dr. Kinnison performed a comprehensive interal medical evaluation of plaintiff
4
on August 13, 2012. At that evaluation, plaintiff stated her chief complaints were neck pain,
5
bilateral shoulder pain, low back pain, and foot pain. Dr. Kinnison’s physical examination
6
indicates that plaitniff “appears a markedly depressed female in no acute distress. She does not
7
make eye contact. She is tearful through the history. She ambulated normally. She sits
8
comfortably. She can get on and off the exam table without difficulties. She went from sitting to
9
supine to sitting in a normal fashion.” (CAR 431-32). Her coordination and gait are noted as
10
normal. Dr. Kinnison diagnosed plaintiff with “1. Neck pain, most likely secondary to degerative
11
arthritis. 2. Bilateral shoulder pain, etiology undetermined. 3. Low back pain, most likely
12
secondary to degenerative arthritis. 4. Bilateral foot pain, etiology undetermined.” (CAR 43313
34). He assessed the plaintiff with the following limitations:
14
At this time I believe the claimant’s ability to stand and walk to be
up to four hours daily, primarily limited by her low back pain and
by her bilateral foot pain.
Her sitting capacity is essentially unlimited.
She does not use assistive devices.
She can lift 20 pounds occasionally and 10 pounds frequently,
limited by both neck, back, and shoulder dysfunction.
Postural activities: I think she can climb frequently at her own rate.
Her balance is unlimited. Her ability to stoop and crouch is limited
to frequently by her low back pain. Crawling and kneeling are
unlimited.
Manipulative activities of reaching, handling, fingering, and
feeling are normal bilaterally below about 130 degrees.
I will place no environmental limitations upon her.

15
16
17
18
19
20
21
(CAR 434).
22

As to Dr. Kinnison, the ALJ stated:
23
24
25
26

Dr. Kinnison opined the claimant can stand and walk up to four
hours in an eight-hour workday; is unlimited in her ability to sit;
does not require the use of an assistive device; can lift up to 20
pounds occasionally and ten pounds frequently; can frequently
climb, stoop and crouch; is unlimited in her ability to balance,
crawl and kneel; can perform reaching, handling, finger and feeling
16

1

normally below about 130 degrees; and has no environmental
limitations (Exhibit B5F). The undersigned gives little weight to
Dr. Kinnison’s opinion rearding the claimant’s standing and
walking limitations because they are overly restricted in light of the
image studies of record, lack of lumbar radiculopathy on EMG
study, and clinical examinations documenting normal gait,
minimally reduced spinal range of motion and inact neurological
function. As such, the undersigned finds that the claimant can
stand and walk six hours in an eight-hour workday so long as she is
allowed a sit/stand opinion at will. The undersigned gives reduced
weight to Dr. Kinnison’s opinion regarding the claimant’s
manipulative ability because it is inconsistent with EMG studies
showing minimal CTS. As such, the undersigned finds that the
claimant is limited to frequent gross and fine manipulation. The
undersigned gives slightly reduced weight to Dr. Kinnison’s
remaining opinion because it is inconsistent with the cliamant’s
lumbar diagnosis with slightly reduced range of motion and history
of heel pain. As such, the undersigned finds that the claimant can
only occasionally stoop, crouch, crawl and kneel, and cannot
perform prolonged walking or standing more than 30 minutes at a
time. (Exhibits B1F, B2F, B5F, B11F, B12F, B14F, and B18F).

2
3
4
5
6
7
8
9
10
11
12
13

(CAR 29).
Dr. Wong performed a comprehensive psychiatric evaluation of plaintiff on

14

August 19, 2012. Dr. Wong noted her chief complaint to be “depression longitudinal history.”

15

(CAR 437). The mental status examination showed plaitniff to be cooperative, was able to

16

express herself well, had no suicidal ideation, her affect was in full range, her mood was mildly

17

depressed, she was orientated in all spheres, and was fully coherent. Her memory was entact; she

18

was able to recall 3 of 3 objects immediately and again after 5 minites. She was able to perform

19

simple math, her digit span was five forward, she was able to spell, and complete a three-step

20

command with out difficulty. Dr. Wong found her concentration was demonstratably intact and

21

sustained through out the interview. Her insignt and judgment was fair.

22

Dr. Wong set forth the following function ability/medical source statement:

23

This is a woman with some depressive symptoms, much of which
are driven by situational and environmental factors (her changes in
health).
She is currenlty capable of managing her own funds without
psychiatric limitation.
She is currenlty capable of performing simple and repetitive tasks
as well as detailed and complex tasks without psychiatric or

24
25
26

17

1
2
3
4
5
6
7
8
9
10

cognitive limitations. It should be noted that she is on certain
medications that may have a limiting affect due to sedation but
these would be medical factors. She also has other medical facts
that could affect her taks performance.
At this time she is capable of accepting instructions and interacting
with coworkers and the public without psychiatric or cognitive
limitations. Once again, she may from time to time experience
some sedation, which affects her ability to interact. Her inability to
sleep is likely to affect her ability to take instructions as well.
Her ability to perform work activities on a consistent basis without
special or additional instructions is intact on a psychiatric basis.
Her ability to maintain regular attendance in a workplace as well as
complete a normal workday is intact wihout psychiatric limitation.
Once again, she may have some health issues, some disturbances
of sleep, as well as medications, which may affect these capacities.
Her ability to deal with stress in the workplace is mildly reduced by
her depression.
(CAR 440-41).

11

As to Dr. Wong, the ALJ stated:

12

Dr. Wong opined the claimant can perform simple and repetitive
tasks as well as detailed and complex tasks without psychiatric or
cognitive limitations; can accept instructions and interact with
coworkers and the public without psychiatric or cognitive
limitations; can perform work activities on a consistent basis
without special or additional instructions; can maintain regular
attendance in a workplace as well as complete a normal workday
without psychiatric limitation; and is mildly limited in her ability to
deal with stress in the workplace (Exhibit B6F). The undersigned
gives reduced weight to Dr. Wong’s opinion regarding the
claimants’s ability to perfrom detailed and complex tasks because
it is inconsient with treatment notes documenting mild-to-moderate
limitations in the cliamant’s attention, concentration and memory
(Exhibit B17F). Based on these mental status findings in
conjunction with the claimant’s good daily activities and positive
response to psychotropic medication, the undersigned finds that the
claimant can only occasionally perform detailed tasks and is
precluded from performing complex tasks. The undersigned gives
great weight to Dr. Wong’s remaining opinion because it is
consistent with the medical record as a whole. Here, the claimant
engaged in good social activities, including providing daycare for
her minor grandchildren. She consistently exhibited cooperative
behavior, good eye contact and friendly demeanor. These findings
are consistent with Dr. Wong’s finding that the claimant has no
social functioning limitations. Based on the claimant’s positive
response to psychotropic medication and infrequent bouts of mood
lability, the undersigned finds that the claimant is capable of
making workplace judgments, but can adjust to only simple
changes in the workplace (Exhibits B2F, B12F, B14F, B17F and

13
14
15
16
17
18
19
20
21
22
23
24
25
26

18

1

B18F).
(CAR 31).

2
At the outset, the undersigned notes the conflict between the two proffered
3
psychiatric evaluations, Drs. Garewal and Wong. Where Dr. Garewal opined plaintiff was
4
severely limited, Dr. Wong opined plaintiff was at worst mildly limited in her abilities. As these
5
two opinions are conflicting, the ALJ was charged with resolving the conflict which he did. The
6
ALJ specifically found Dr. Garewal’s opinion too restrictive and unsupported; he found Dr.
7
Wong’s opinion not sufficiently restrictive and that the medical records supported limitations Dr.
8
Wong did not find. The ALJ supported these decisions with citations to the record, which the
9
undersigned finds are supportive of the ALJ’s determination. As there were conflicting opinions,
10
the ALJ was only required to provide specific and legimitate reasons for rejecting an opinion.
11
To the extent plaitniff argues the medical records do not support the ALJ’s
12
determination, the undersgined disagrees. While plaintiff points to some medical records
13
wherein she was tearful, had anxiety, depression, abnormal affect, and a manic episode, there are
14
also numerous records wherein she was alert, oriented, her affect was normal. (CAR 517, 523,
15
574, 576). “Where evidence is susceptible to more than one rational interpretation, the ALJ’s
16
decision should be upheld.” Orn. v. Astrue, 495 F.3d 625, 630 (9th Cir. 2007) (internal quotation
17
marks omitted). Here, the ALJ’s determination is supported by the evidence, and is not simply a
18
substitution of his layman’s opinion over the medical record as plaitniff’s argues. Finally,
19
plaintiff’s contention that the ALJ erred in failing to include Dr. Wong’s conjecture as to the
20
possible effect of her medicaiton and sleep disturbance in the RFC is not persuasive. The ALJ
21
did not reject Dr. Wong’s medical opinion. Dr. Wong’s summary of plaintiff’s functioning
22
abilitites included the possibility that she may have side-effects to the medication she is taking,
23
including sedation, and her lack of sleep may impact her attendance. However, these are
24
conjecture, not medical opinions, and the ALJ was not required to include these possible
25
limitations in the RFC, especially where there is a lack of evidence supporting the conjecture.
26
19

1

As to Dr. Kinnison’s opinion, plaintiff argues the ALJ erred in rejecting Dr.

2

Kinnison’s opinion that plaintiff could stand and walk up to four hours in an eight-hour workday.

3

She contends that the image studies have consistently shown positive findings supportive of pain

4

and an inability to stand/walk for any lenghth of time, clinical examinations support Dr.

5

Kinnison’s opinion, and plaintiff’s fibromyalgia, myalgia/myositis and chronic pain syndrom are

6

all capable of causing pain and difficulty with standing and walking. Defendant counters that the

7

reasons the ALJ provided were legally sufficient, that the opinion is supported by the objective

8

medical evidence, the RFC accommodated plaintiff’s limitations as to standing and/or walking,

9

and the opinion is further supported by the State agency consultants’ opinions.

10

The undersigned agrees with defendant that the reasons provided were legally

11

sufficient. Again, where the evidence could support alternative determination, the court must

12

uphold the ALJ’s determination. See Orn, 495 F.3d at 630. The objective medical evidence

13

shows some disc bulging and degenerative changes, but none of it severe. The ALJ specifically

14

discussed the clinical findings, noting that x-rays of her cervical spine revealed only mild

15

degenerative changes, and MRI revealed moderate degenerative disc disease with no evidence of

16

significant cord indentation, but the EMG showed no evidence of cervical radiculopathy and

17

clinical examination revealed intact sensation, full strength, and only slightly reduced range of

18

motion of the cervical spine. (CAR 25). Similarly, the image studies of plaintiff’s back showed

19

mild disc spurring and narrowing with a little bulging at L5-S1 and minimal encroachment of the

20

thecal sac, but no focal herniations or disc protrusions. An MRI showed a little wedging at T6

21

with some spurring ad bulging at T6-T7, mild bulging at T3-T4 and T11-T12. But there was no

22

evidence of frank disc herniation or nerve compression. In addition, an EMG study showed no

23

evidence of lumbar radiculopathy. (CAR 25-26). In addition, the ALJ provided an alternative

24

limitation to accommodate her heel pain by providing a necessary sit/stand at will option.

25

Further, the ALJ did give the State agency doctors, Drs. Bell and Lee, opinions moderate weight.

26

These doctors found plaintiff capable of standing and walking about six hours in an eight-hour
20

1

workday, which the ALJ found supported by the record, but determined plaintiff had additional

2

postural limitations the State agency doctors did not find. Specifically related to the standing and

3

walking ability, the ALJ stated:

4

9

The undersigned gives significant weight to their opinions
regarding the claimant’s exertional limitations because it is
consistent with the image studies of record and the clinical
examinations documenting normal gait, comfortable sitting ability,
generally intact sensation, full strength and lack of lumbar and
cervical radiculopathy. As such the undersigned agrees that the
claimant can perform light exertional activities. However, based
on the claimant’s obesity, foot and ankle impairments, and
treatment for chronic pain, the undersigned finds that the claimant
must be afforded a sit/stand option at will and is precluded from
prolonged walking and prolonged standing.”

10

(CAR 30). The undersigned finds these reasons and accommodations to be legally sufficient and

11

supported by the evidence.

5
6
7
8

12

C.

13

Next, plaintiff contends the ALJ erred in rejecting the testimony of herself and her

Credibility

14

daughter. She argues the reasons the ALJ gave for discounting her testimony were not clear and

15

convincing, and they lack substantial evidence to support them. Similarly, she contends that

16

because the ALJ rejected plaintiff’s daughter’s testimony only on the same basis as he rejected

17

plaintiff’s testimony, the reasons given were not germane to her and are thus insufficient.

18

The Commissioner determines whether a disability applicant is credible, and the

19

court defers to the Commissioner’s discretion if the Commissioner used the proper process and

20

provided proper reasons. See Saelee v. Chater, 94 F.3d 520, 522 (9th Cir. 1996). An explicit

21

credibility finding must be supported by specific, cogent reasons. See Brown-Hunter v. Colvin,

22

806 F.3d 487, 492 (9th Cir. 2015); Rashad v. Sullivan, 903 F.2d 1229, 1231 (9th Cir. 1990).

23

General findings are insufficient. See Lester v. Chater, 81 F.3d 821, 834 (9th Cir. 1995). Rather,

24

the Commissioner must identify what testimony is not credible and what evidence undermines

25

the testimony. See id. Moreover, unless there is affirmative evidence in the record of

26

malingering, the ALJ’s reasons for rejecting testimony as not credible must be “‘specific, clear
21

1

and convincing’.” See Burrell v. Colvin, 775 F.3d 1133, 1136 (9th Cir. 2014) (quoting Molina v.

2

Astrue, 674 F.3d 1104, 1112 (9th Cir. 2012)); see also Carmickle v. Commissioner, 533 F.3d

3

1155, 1160 (9th Cir. 2008) (citing Lingenfelter v Astrue, 504 F.3d 1028, 1936 (9th Cir. 2007),

4

and Gregor v. Barnhart, 464 F.3d 968, 972 (9th Cir. 2006)).

5

If there is objective medical evidence of an underlying impairment, the

6

Commissioner may not discredit a claimant’s testimony as to the severity of symptoms merely

7

because they are unsupported by objective medical evidence. See Bunnell v. Sullivan, 947 F.2d

8

341, 347-48 (9th Cir. 1991) (en banc). As the Ninth Circuit explained in Smolen v. Chater:

9
10
11
12

The claimant need not produce objective medical evidence of the
[symptom] itself, or the severity thereof. Nor must the claimant produce
objective medical evidence of the causal relationship between the
medically determinable impairment and the symptom. By requiring that
the medical impairment “could reasonably be expected to produce” pain or
another symptom, the Cotton test requires only that the causal relationship
be a reasonable inference, not a medically proven phenomenon.

13

80 F.3d 1273, 1282 (9th Cir. 1996) (referring to the test established in Cotton v. Bowen, 799

14

F.2d 1403 (9th Cir. 1986)).

15

The Commissioner may, however, consider the nature of the symptoms alleged,

16

including aggravating factors, medication, treatment, and functional restrictions. See Bunnell,

17

947 F.2d at 345-47. In weighing credibility, the Commissioner may also consider: (1) the

18

claimant’s reputation for truthfulness, prior inconsistent statements, or other inconsistent

19

testimony; (2) unexplained or inadequately explained failure to seek treatment or to follow a

20

prescribed course of treatment; (3) the claimant’s daily activities; (4) work records; and (5)

21

physician and third-party testimony about the nature, severity, and effect of symptoms. See

22

Smolen, 80 F.3d at 1284 (citations omitted). It is also appropriate to consider whether the

23

claimant cooperated during physical examinations or provided conflicting statements concerning

24

drug and/or alcohol use. See Thomas v. Barnhart, 278 F.3d 947, 958-59 (9th Cir. 2002). If the

25

claimant testifies as to symptoms greater than would normally be produced by a given

26

impairment, the ALJ may disbelieve that testimony provided specific findings are made. See
22

1
2

Carmickle, 533 F.3d at 1161 (citing Swenson v. Sullivan, 876 F.2d 683, 687 (9th Cir. 1989)).
Regarding reliance on a claimant’s daily activities to find testimony of disabling

3

pain not credible, the Social Security Act does not require that disability claimants be utterly

4

incapacitated. See Fair v. Bowen, 885 F.2d 597, 602 (9th Cir. 1989). The Ninth Circuit has

5

repeatedly held that the “mere fact that a plaintiff has carried out certain daily activities . . . does

6

not . . .[necessarily] detract from her credibility as to her overall disability.” See Orn v. Astrue,

7

495 F.3d 625, 639 (9th Cir. 2007) (quoting Vertigan v. Heller, 260 F.3d 1044, 1050 (9th Cir.

8

2001)); see also Howard v. Heckler, 782 F.2d 1484, 1488 (9th Cir. 1986) (observing that a claim

9

of pain-induced disability is not necessarily gainsaid by a capacity to engage in periodic restricted

10

travel); Gallant v. Heckler, 753 F.2d 1450, 1453 (9th Cir. 1984) (concluding that the claimant

11

was entitled to benefits based on constant leg and back pain despite the claimant’s ability to cook

12

meals and wash dishes); Fair, 885 F.2d at 603 (observing that “many home activities are not

13

easily transferable to what may be the more grueling environment of the workplace, where it

14

might be impossible to periodically rest or take medication”). Daily activities must be such that

15

they show that the claimant is “. . .able to spend a substantial part of his day engaged in pursuits

16

involving the performance of physical functions that are transferable to a work setting.” Fair,

17

885 F.2d at 603. The ALJ must make specific findings in this regard before relying on daily

18

activities to find a claimant’s pain testimony not credible. See Burch v. Barnhart, 400 F.3d 676,

19

681 (9th Cir. 2005).

20

In determining whether a claimant is disabled, an ALJ generally must consider lay

21

witness testimony concerning a claimant’s ability to work. See Dodrill v. Shalala, 12 F.3d 915,

22

919 (9th Cir. 1993); 20 C.F.R. §§ 404.1513(d)(4) & (e), 416.913(d)(4) & (e). Indeed, “lay

23

testimony as to a claimant’s symptoms or how an impairment affects ability to work is competent

24

evidence . . . and therefore cannot be disregarded without comment.” See Nguyen v. Chater, 100

25

F.3d 1462, 1467 (9th Cir. 1996). Consequently, “[i]f the ALJ wishes to discount the testimony

26

of lay witnesses, he must give reasons that are germane to each witness.” Dodrill, 12 F.3d at
23

1

919. The ALJ may cite same reasons for rejecting plaintiff’s statements to reject third-party

2

statements where the statements are similar. See Valentine v. Commissioner Soc. Sec. Admin.,

3

574 F.3d 685, 694 (9th Cir. 2009) (approving rejection of a third-party family member’s

4

testimony, which was similar to the claimant’s, for the same reasons given for rejection of the

5

claimant’s complaints).

6

Here, the ALJ stated:

7

After careful consideration of the evidence, the undersigned finds
that the claimant’s medically determinable impairments could
reasonably be expected to cause the alleged symptoms; however,
the claimant’s statements concerning the intensity, persistence and
limiting effects of these symptoms are not entirely credible for the
reasons explained in this decision.

8
9
10
11
12
13

The claimant has described daily activities which are not limited to
the extent one would expect given the complaints of disabling
symptoms and limitations. She provided childcare for her minor
grandchildren (Exhibit B2F/37-38). With the use of analgesic
medication, she can perform her daily activities (Exhibit B14F/3739). She can maintain her personal hygiene. She can prepare
simple microwavable meals (Hearing Testimony).

14
15
16
17
18

Although the claimant has received treatment for the allegedly
disabling impairments, that treatment has been essentially routine
and conservative in nature. Here, the claimant’s pain symptoms
were effectively managed with mediation. Moreover, she
consistently denied medication side effects. Her foot and ankles
symptoms were conservatively treated with anti-inflammatory
medication, orthotic inserts and support shoes. She has never
undergone surgery to address her physical impairments (Exhibits
B1F, B2F, B11F, B12F, B14F, B18F, and Hearing Testimony).

19
20
21
22
23

The medical evidence does not support the claimant’s allegations
of disabling spinal or musculoskeletal symptoms. Here, image
studies of the claimant’s spine and an EMG study of her upper and
lower extremities do not support her allegations of radicular
symptoms or disabling pain. Moreover, clinical examinations
documented only minimally reduced cervical and lumbar range of
motion, full range of motion of her ankles and predominately intact
neurological functioning (Exhibits B1F, B2F, B5F, B11F, F12F,
B14F and B18F).

24
25
26

The claimant’s mental symptoms are well managed with
counseling and psychotropic medication. While there is evidence
she endorsed episodes of mood lability, she responded well to
counseling, mood stabilizers and anxiolytic mediation (Exhibits
24

1

B14F, B17F and B18F).
(CAR 28-29).

2
Plaintiff argues the ALJ’s reasons are not supported by the evidence. She
3
contends there is more than substantial objective medical evidence to supports her testimony, her
4
daily activities are very limited and cause her pain, and her medical treatment was not effectively
5
managed with medication and conservative treatment as she continually sought treatment for
6
back and neck pain despite the pain medication she was on. She further argues her fibromyalgia,
7
headaches and other impairments support her testimony regarding her pain and functional
8
limitations.
9
Defendant counters that the reasons the ALJ articulated were sufficient.
10
Defendant argues that the ALJ properly found that plaintiff responded favorably to medication
11
and her pain was adequately controlled, her treatment was conservative with no side effects, the
12
objective medical evidence conflicted with her allegations of disabling spinal and
13
musculoskeletal symptoms, her mental health symptoms were adequately controlled, and the
14
daily activities the ALJ relied on supported the determination that plaintiff’s conditions were not
15
as severe as she claimed. Defendant contends that the ALJ’s reasons are supported by substantial
16
evidence.
17
The undersigned finds the reasons the ALJ provided are sufficiently clear and
18
convincing and supported by the evidence. Again, there are a variety of medical records which
19
could support alternative interpretations. However, sufficient medical records support the ALJ’s
20
interpretation, which provide support for his credibility determination. The ALJ set forth the
21
medical evidence he determined was unsupportive, and while there may have been additional
22
medical evidence to support a different conclusion, there is substantial evidence to support the
23
ALJ’s determination. Specifically, plaintiff points to an x-ray done in April 2012, however, that
24
x-ray showed only minimal degenerative changes, that the cervical vertebrae are intact and in
25
alignment, some mild neural foraminal narrowing, with the impression of mild degenerative
26
25

1

changes noted in the cervical spine C3 through C6. (CAR 409). She then points to an MRI done

2

in October 2013, wherein the findings indicate C2-3 and C3-4 were normal, mild disc

3

degeneration at C4-5, normal disc level without disc degeneration or disc herniation at C5-6.

4

(CAR 532). That same MRI does show moderate disc degeneration and disc bulging at C6-7,

5

which “could be a cause of neck pain and cracking noises,” but the there was no specific cord or

6

nerve compression. (CAR 531-32). She points to an MRI done in April 2012, which showed

7

“[w]edging of T6 body with some posterior spurring and bulging at T6-7,” causing some

8

encroachment on the anterior aspect of the thecal sac but no canal stenosis, mild bulging at T11-

9

12 and T3-4, but the cord itself demonstrates normal signal. (CAR 410). She also points to a CT

10

scan done January 2012 which indicates disc bulge and facet arthropathy at L5-S1 resulting in

11

stenosis of the neural foramina, and minimal annular bulging at L3-4 and L4-5 without

12

appreciable neural compromise. (CAR 412). Finally, she points to an MRI done in April 2012

13

which showed “[m]ild disc space narrowing with spurring and bulging posteriorly at L5-S1

14

causing minimal encroachment on the thecal sac.” (CAR 411). Plaintiff argues that the objective

15

medical evidence supports her subjective complaints. However, the ALJ considered these

16

records, and determined the generally mild findings did not support her allegations. The

17

undersigned finds this determination to be supported by the evidence.

18

In addition, the ALJ used other acceptable means of discounting the plaintiff’s

19

testimony, including her daily activities as well as successful and conservative treatment. As the

20

defendant argues, plaintiff generally responded favorably to medication, which supported the

21

ALJ’s determination that her medication provided adequate control over plaintiff’s pain.

22

Similarly, plaintiff’s daily activities, which notably limited, were not as restricted as one would

23

expect for such debilitating limitations she claimed. As noted, the ALJ found she provided

24

childcare for her grandchildren, performed her daily activities with the help of her medication,

25

maintained her personal hygiene and prepared simple microwavable meals. To the extent the

26

ALJ determined these activities were contrary to her allegations of disabling symptoms, the
26

1

ALJ’s credibility determination is supported. “While a claimant need not ‘vegetate in a dark

2

room’ in order to be eligible for benefits, the ALJ may discredit a claimant’s testimony when the

3

claimant reports participation in everyday activities indicating capacities that are transferable to a

4

work setting. Even where these activities suggest some difficulty functioning, they may be

5

grounds for discrediting the claimant’s testimony to the extent that they contradict claims of

6

totally debilitating impairments. Molina v. Astrue, 674 F.3d 1104, 1112-13 (9th Cir. 2012)

7

(quoting Cooper v. Bowen, 815 F.2d 557, 561 (9th Cir. 1987)).

8

Where the credibility determination is reasonably supported by the evidence, that

9

determination should not be disturbed on review. See Stubbs-Danielson v. Astrue, 539 F.3d

10

1169, 1174 (9th Cir. 2008). The undersigned finds the ALJ’s credibility determination to be

11

sufficiently clear and convincing, and supported by substantial evidence.

12

As to plaintiff’s daughter’s, the ALJ stated:

13

As for the opinion evidence, Kaelene Scritchfield, the claimant’s
daughter, submitted a Third Party Adult Function Report dated
July 2012. She corroborated the claimant’s allegations regarding
her limited ability to perform daily activities secondary to chronic
pain (Exhibit B6E). Although Ms. Scritchfield’s statements may
be is [sic] sincere and well meaning, lay witnesses are not
considered medical or vocational experts capable of determining
whether the claimant is disabled (20 CFR 404.1527 and 416.927).
Furthermore, her statements appear to be mere extensions of the
claimant’s own allegations (Hearing Testimony). Rephrasing or
reassertion of the claimant’s own allegations, in a different format,
is not a basis for a finding of disability. For the same reasons the
undersigned finds the claimant’s allegations of disability are not
consistent with the record, so too are the allegations made by Ms.
Scritchfield found to be unpersuasive.

14
15
16
17
18
19
20
21
22

(CAR 29).
Plaintiff argues that the ALJ erred in this determination as well, as he failed to

23

provide specific, cogent reasons for discrediting Ms. Scritchfield’s testimony. However, as the

24

defendant points out, the ALJ was not required to give specific, cogent reasons for discrediting

25

this testimony. As set forth above, the ALJ may cite the same reasons for rejecting plaintiff’s

26

statements to reject third-party statements where the statements are similar. See Valentine, 574
27

1

F.3d at 694. Here, the statement from plaintiff’s daughter did not add anything new to plaintiff’s

2

own testimony. Accordingly, the ALJ did not err in finding the statements were unpersuasive for

3

the same reasons he found plaintiff’s statements not entirely credible.

4
5

D.

6

Plaintiff argues the ALJ erred in formulating her RFC. She contends that the ALJ

Residual Functional Capacity

7

erroneously rejected the physicians’ opinions, her own testimony and that of her daughter, and

8

failed to include all of her limitations.

9

Residual functional capacity is what a person “can still do despite [the

10

individual’s] limitations.” 20 C.F.R. §§ 404.1545(a), 416.945(a) (2003); see also Valencia v.

11

Heckler, 751 F.2d 1082, 1085 (9th Cir. 1985) (residual functional capacity reflects current

12

“physical and mental capabilities”). Thus, residual functional capacity describes a person’s

13

exertional capabilities in light of his or her limitations.

14

As set forth above, the undersigned finds no error in the ALJ’s treatment of the

15

physicians’ opinions or the credibility determination. As there was no error, the ALJ did not err

16

in not including the limitations he specifically rejected. Plaintiff’s argument that the ALJ erred

17

in failing to include any of Dr. Garewal’s opinion, or Dr. Kinnison’s opinion that she was limited

18

in standing/walking to 4 hours in an 8-hour work day, is therefore unpersuasive and the

19

undersigned finds no error in the ALJ’s RFC determination based on the medical records.

20

In addition, plaintiff argues that the ALJ erred in failing to include limitations as

21

to her concentration, persistence, or pace. She contends the ALJ determined at step three, that

22

she was moderately limited in concentration, persistence, and pace but he erred in failing to

23

include that limitation in the RFC. Defendant counters that a limitation found at step three does

24

not equate to a limitation at step four which must be included in the RFC.

25
26

“[A]n ALJ’s assessment of a claimant adequately captures restrictions related to
concentration, persistence, or pace where the assessment is consistent with restrictions identified
28

1

in the medical testimony.” Stubbs-Danielson, 539 F.3d at 1174. Here, Dr. Wong specifically

2

opined that plaintiff was not limited in her ability to perform work on a consistent basis, maintain

3

regular attendance, or complete a normal workday. (CAR 441). The ALJ adopted Dr. Wong’s

4

opinion, but gave it reduced weight to the extent Dr. Wong found plaintiff capable of performing

5

“detailed and complex tasks because it is inconsistent with treatment notes documenting mild-to-

6

moderate limitations in the claimant’s attention, concentration and memory.” (CAR 31). The

7

ALJ found plaintiff able to only occasionally perform detailed tasks and precluded from

8

performing complex tasks. (CAR 31). The ALJ incorporated this limitation into the RFC,

9

finding plaintiff “has the capacity to receive, understand, remember and carry out simple job

10

instructions, can only occasionally perform detailed job instructions, and is precluded from

11

performing complex job instructions.” (CAR 24). Thus, plaintiff’s contention that the ALJ failed

12

to incorporate his own finding that she has mild-to-moderate limitations in concentration,

13

persistence and pace is not supported by the evidence or the ALJ’s opinion.

14

As the undersigned found no error, as set forth above, as to the ALJ’s

15

determination as to the medical opinions and credibility findings, it follows that there is no error

16

in the ALJ’s RFC. The RFC adequately incorporates the ALJ’s determination as to plaintiff’s

17

limitations.

18

E.

19

Finally, plaintiff argues the ALJ erred in his determination at step five that she is

20

capable of other work in the national economy. Based on her previous arguments, she contends

21

the ALJ failed to incorporate all of her limitations in the hypothetical posed to the vocational

22

expert, the jobs identified by the vocational expert fall outside the limitation to 4 hours of

23

standing/walking assessed by Dr. Kinnison, and based on the evidence there is no work plaintiff

24

can perform.

Step 5 - Other Work

25

The ALJ may meet his burden under step five of the sequential analysis by

26

propounding to a vocational expert hypothetical questions based on medical assumptions,
29

1

supported by substantial evidence, that reflect all the plaintiff’s limitations. See Roberts v.

2

Shalala, 66 F.3d 179, 184 (9th Cir. 1995). Specifically, where the Medical-Vocational

3

Guidelines are inapplicable because the plaintiff has sufficient non-exertional limitations, the

4

ALJ is required to obtain vocational expert testimony. See Burkhart v. Bowen, 587 F.2d 1335,

5

1341 (9th Cir. 1988).

6

Hypothetical questions posed to a vocational expert must set out all the

7

substantial, supported limitations and restrictions of the particular claimant. See Magallanes v.

8

Bowen, 881 F.2d 747, 756 (9th Cir. 1989). If a hypothetical does not reflect all the claimant’s

9

limitations, the expert’s testimony as to jobs in the national economy the claimant can perform

10

has no evidentiary value. See DeLorme v. Sullivan, 924 F.2d 841, 850 (9th Cir. 1991). While

11

the ALJ may pose to the expert a range of hypothetical questions based on alternate

12

interpretations of the evidence, the hypothetical that ultimately serves as the basis for the ALJ’s

13

determination must be supported by substantial evidence in the record as a whole. See Embrey v.

14

Bowen, 849 F.2d 418, 422-23 (9th Cir. 1988).

15

Here, as set forth above, the undersigned finds no error in the ALJ’s determination

16

of plaintiff’s limitations. The ALJ’s determination as to the medical opinions, and the RFC

17

determination based thereon, formed the basis for the hypothetical he posed to the vocational

18

expert. As the undersigned found no error in the ALJ’s treatment of the medical opinions, or the

19

RFC determination, there similarly is no error in the hypothetical used. The ALJ found, and

20

supported his determination, that plaintiff is capable of performing less than a full range of light

21

work, with limitations in how much she can lift, carry, push and/or pull; is capable of sitting for

22

eight hours in an eight-hour work day so long as she has a sit/stand option and can sit 30-to-40

23

minutes at a time; can stand and walk six hours in an eight-hour workday so long as she is

24

permitted to change positions; has some postural and manipulative limitations; but has the

25

capacity to receive, understand, remember and carry out simple job instruction, occasionally

26

perform detailed, not complex, job instructions, interact appropriately with others, make work
30

1

place judgments and adjust to changes. All of these limitations were posed to the vocational

2

expert in a hypothetical. Based on the hypothetical, the vocational expert identified three jobs

3

such a person could perform. As the hypothetical is supported by substantial evidence, the

4

undersigned finds no error in the step five analysis. The failure to include other limitations is not

5

reversible error.

6

IV. CONCLUSION

7

Based on the foregoing, the undersigned concludes that the Commissioner’s final

8

decision is based on substantial evidence and proper legal analysis. Accordingly, the

9

undersigned recommends that:

10

1.

Plaintiff’s motion for summary judgment (Doc. 19) be denied;

11

2.

Defendant’s cross-motion for summary judgment (Doc. 24) be granted;

3.

The Clerk of the Court be directed to enter judgment and close this file.

12
13

and

14
15

These findings and recommendations are submitted to the United States District

16

Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within 14 days

17

after being served with these findings and recommendations, any party may file written

18

objections with the court. Responses to objections shall be filed within 14 days after service of

19

objections. Failure to file objections within the specified time may waive the right to appeal.

20

See Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).

21
22
23
24

DATED: March 27, 2018
______________________________________
CRAIG M. KELLISON
UNITED STATES MAGISTRATE JUDGE

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