Rhoades v. Commissioner of SSA

Filing 23

MEMORANDUM, OPINION and ORDER signed by Magistrate Judge Dennis M. Cota on 9/26/18 DENYING 16 Motion for Summary Judgment and GRANTING 19 Cross- Motion for Summary Judgment. The Commissioner's final decision is AFFIRMED and Judgment is entered in favor of the Commissioner. CASE CLOSED (Kastilahn, A)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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LANCE RICHARD RHOADES,

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No. 2:16-CV-2544-DMC

Plaintiff,
v.

MEMORANDUM OPINION AND ORDER

COMMISSIONER OF SOCIAL
SECURITY,
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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Pursuant to the written consent of all parties (Docs. 7 and 11), this case is before the undersigned

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as the presiding judge for all purposes, including entry of final judgment. See 28 U.S.C. § 636(c).

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Pending before the court are the parties’ cross-motions for summary judgment (Docs. 16 and 19).

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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

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a conclusion.” Richardson v. Perales, 402 U.S. 389, 402 (1971). The record as a whole,
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including both the evidence that supports and detracts from the Commissioner’s conclusion, must

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

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v. 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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I. THE DISABILITY EVALUATION PROCESS

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To achieve uniformity of decisions, the Commissioner employs a five-step

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sequential evaluation process to determine whether a claimant is disabled. See 20 C.F.R.

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§§ 404.1520 (a)-(f) and 416.920(a)-(f). The sequential evaluation proceeds as follows:

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Step 1

Determination whether the claimant is engaged in
substantial gainful activity; if so, the claimant is presumed
not disabled and the claim is denied;

Step 2

If the claimant is not engaged in substantial gainful activity,
determination whether the claimant has a severe
impairment; if not, the claimant is presumed not disabled
and the claim is denied;

Step 3

If the claimant has one or more severe impairments,
determination whether any such severe impairment meets
or medically equals an impairment listed in the regulations;
if the claimant has such an impairment, the claimant is
presumed disabled and the clam is granted;

Step 4

If the claimant’s impairment is not listed in the regulations,
determination whether the impairment prevents the
claimant from performing past work in light of the
claimant’s residual functional capacity; if not, the claimant
is presumed not disabled and the claim is denied;

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Step 5

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If the impairment prevents the claimant from performing
past work, determination whether, in light of the claimant’s
residual functional capacity, the claimant can engage in
other types of substantial gainful work that exist in the
national economy; if so, the claimant is not disabled and
the claim is denied.

See id.

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To qualify for benefits, the claimant must establish the inability to engage in

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substantial gainful activity due to a medically determinable physical or mental impairment which

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has lasted, or can be expected to last, a continuous period of not less than 12 months. See 42

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U.S.C. § 1382c(a)(3)(A). The claimant must provide evidence of a physical or mental

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impairment of such severity the claimant is unable to engage in previous work and cannot,

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considering the claimant’s age, education, and work experience, engage in any other kind of

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substantial gainful work which exists in the national economy. See Quang Van Han v. Bower,

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882 F.2d 1453, 1456 (9th Cir. 1989). The claimant has the initial burden of proving the existence

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of a disability. See Terry v. Sullivan, 903 F.2d 1273, 1275 (9th Cir. 1990).

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The claimant establishes a prima facie case by showing that a physical or mental

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impairment prevents the claimant from engaging in previous work. See Gallant v. Heckler, 753

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F.2d 1450, 1452 (9th Cir. 1984); 20 C.F.R. §§ 404.1520(f) and 416.920(f). If the claimant

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establishes a prima facie case, the burden then shifts to the Commissioner to show the claimant

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can perform other work existing in the national economy. See Burkhart v. Bowen, 856 F.2d

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1335, 1340 (9th Cir. 1988); Hoffman v. Heckler, 785 F.2d 1423, 1425 (9th Cir. 1986); Hammock

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v. Bowen, 867 F.2d 1209, 1212-1213 (9th Cir. 1989).

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II. THE COMMISSIONER’S FINDINGS

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Plaintiff applied for social security benefits on January 26, 2011, and May 16,

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2011. See CAR 18.1 Plaintiff claims disability began on June 9, 2008, following shoulder

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injuries sustained in a work-related accident. See id. at 658-659 (hearing testimony).2 Plaintiff’s

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claims were initially denied. Following denial of reconsideration, plaintiff requested an

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administrative hearing, which was held on February 28, 2013, before Administrative Law Judge

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(ALJ) Mark C. Ramsey. In an April 15, 2013, decision, the ALJ concluded plaintiff is not

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disabled. See id. at 18-28. Plaintiff sought review by this court. See Rhoades v. Commissioner

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of Social Security, E. Dist. Cal. Case No. 2:14-CV-1229-CMK. In an October 22, 2015,

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memorandum opinion and order, the court remanded for further proceedings. See id.

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On remand, the matter was assigned to the same ALJ, who stated as follows:

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. . .The District Court ordered further consideration to the opinions of Drs.
Watkin, Acinas, and Kalen. It also directed further consideration of the
claimant’s maximum residual functional capacity and application of the
Medical Vocational Rules giving consideration to the use of a vocational
expert to determine the effect of all nonexertional limitations (Exhibit
12A/8-19).

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CAR 623.

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A second hearing was held on April 7, 2016. See id. In a June 2, 2016, decision, the ALJ found

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plaintiff not disabled based on the following relevant findings:

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The claimant has the following severe impairment(s): bilateral
shoulder injuries status post three surgeries right shoulder;3 carpal
tunnel syndrome post right release surgery; obesity;

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The claimant does not have an impairment or combination of
impairments that meets or medically equals an impairment listed in
the regulations;

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Citations are the to the Certified Administrative Record (CAR) lodged on May 22,
2017 (Doc. 14).
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According to plaintiff, he worked from 1989 through 2008 as a logging equipment
operator which involved running a “skidder.” Plaintiff testified that he stopped working after the
skidder rolled down a hill and injured his shoulder. Plaintiff settled a Worker’s Compensation
claim for $22,000. See CAR 658-60 (hearing testimony).
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As discussed in more detail herein, the record also reflects surgeries on plaintiff’s
left shoulder.
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The claimant has the following residual functional capacity:
medium work;

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Considering the claimant’s age, education, work experience,
residual functional capacity, and vocational expert testimony there
are jobs that exist in significant numbers in the national economy
that the claimant can perform.

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See CAR 626-46.
After the Appeals Council declined review on September 1, 2016, this appeal followed.

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III. DISCUSSION

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In his motion for summary judgment, plaintiff argues: (1) the ALJ erred in

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concluding his depression was not a severe impairment; (2) the ALJ failed to properly evaluate

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the medical opinions in evaluating his physical residual functional capacity; (3) the ALJ failed to

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set forth clear and convincing reasons for rejecting his statements and testimony as not credible;

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(4) the ALJ erred by discrediting lay witness evidence; (5) the vocational expert’s testimony did

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not constitute substantial evidence to support the ALJ’s vocational finding; and (6) the matter

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should be remanded for consideration of new evidence.

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A.

Severity Finding
At Step 2, the ALJ evaluated the severity of plaintiff’s impairments and found

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plaintiff’s depression non-severe. See id. at 626-32. To qualify for benefits, the plaintiff must

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have an impairment severe enough to significantly limit the physical or mental ability to do basic

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work activities. See 20 C.F.R. §§ 404.1520(c), 416.920(c).4 In determining whether a claimant’s

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alleged impairment is sufficiently severe to limit the ability to work, the Commissioner must

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consider the combined effect of all impairments on the ability to function, without regard to

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whether each impairment alone would be sufficiently severe. See Smolen v. Chater, 80 F.3d

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1273, 1289-90 (9th Cir. 1996); see also 42 U.S.C. § 423(d)(2)(B); 20 C.F.R. §§ 404.1523 and

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416.923. An impairment, or combination of impairments, can only be found to be non-severe if

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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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the evidence establishes a slight abnormality that has no more than a minimal effect on an

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individual’s ability to work. See Social Security Ruling (SSR) 85-28; see also Yuckert v. Bowen,

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841 F.2d 303, 306 (9th Cir. 1988) (adopting SSR 85-28). The plaintiff has the burden of

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establishing the severity of the impairment by providing medical evidence consisting of signs,

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symptoms, and laboratory findings. See 20 C.F.R. §§ 404.1508, 416.908. The plaintiff’s own

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statement of symptoms alone is insufficient. See id.

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In concluding plaintiff’s depression is not a severe impairment, the ALJ stated:

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The claimant also alleges depression. The undersigned finds his medically
determinable mental impairment of depression or dysthymic disorder does
not cause more than minimal limitations in the claimant’s ability to
perform basic mental work activities and is therefore non-severe. The
record overall shows any symptoms of depressions are related to
situations, such as job loss, changes in weather, financial stress, or some
excessive alcohol use. It demonstrates that treatment with psychiatric
medications substantially improves his condition such that symptoms are
found stable by treating sources and mild by evaluating sources.

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CAR 627-28.

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The ALJ outlined the following evidence of record supporting his severity determination:
• Medical records from June 2008 through January 2009 do not
reflect any complaints of depression or other mental impairment.

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• Plaintiff complained of depression in February 2009.

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• Medical records from May 2009 do not reflect any complaints of
depression or other mental impairment.

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• Medical records from October 2009 reflect that plaintiff’s
depression had improved with medication.

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• Medical records from 2010 show that plaintiff’s depression was
stable and by December 2010 treatment notes reflected marked
improvement in plaintiff’s depression with only low baseline
dysthymia.

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• In April 2011, consultative examining doctor Michael Maguire,
Psy.D., noted unremarkable findings on mental status examination
and assessed plaintiff’s Global Assessment of Functioning (“GAF”)
to be 70 out of 100, indicating only mild symptoms affecting
overall functioning.

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• Medical records from 2011 through 2012 reflect that plaintiff’s
depression symptoms increased with alcohol use and subsided
when plaintiff discontinued use of alcohol.

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• In January 2014, Dr. Weiner reported that plaintiff’s depression
symptoms were stable with current treatment.
• In January 2016, plaintiff reported doing better.

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CAR 628-29.

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The ALJ also noted consultative reviewing physicians Drs. Heldman and Scott both opined

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plaintiff’s mental impairment is non-severe. See id. 630 (citing Exhibits 1A, 2A, 5A, and 6A).

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Plaintiff argues the ALJ erred with respect to his analysis of depression because he

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ignored opinions rendered by his treating therapist, Licensed Clinical Social Worker (LCSW)

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Patricia Lind. According to plaintiff:

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. . .[T]he ALJ erred by failing to include without explanation any
specific depression limitation in combination with his pain limitation,
side-effects of medication, and loss of focus and concentration in his
residual functional capacity finding findings (Tr. 632), because although
the ALJ found that depression was “non-severe” at step 2 in the sequential
evaluation of disability (Tr. 627-632), based on evidence that his
“moderate” depression had medically improved and was stable with
medication as of 2016 (Tr. 629-630, 1099-1103), treatment records by Ms.
Patricia Lind, LCSW, with Redding Rancheria Tribal Health Center show
that as of 3-9-16 that “The depression is associated with chronic pain
(shoulder and neck pain)” (Tr. 1227), and Axis IV was noted to be
“severe” and judgment was noted to be “Impaired ability to make
reasonable decisions” (Tr. 1230), which the ALJ disregarded (Tr. 629630), and the Regulations state that even non-severe limitations must be
considered in combination with all other impairments at step 4 in the
sequential evaluation of disability (20 Code of Federal Regulations section
404.1545(e), 416.945(e); Social Security Ruling 96-8p). Robbins v. Social
Security Administration, 466 F.3d 880, 883 (9th Cir. 2006) (“In
determining a claimant’s RFC, an ALJ must consider all relevant evidence
in the record, including, inter alia, medical records, lay evidence, and ‘the
effects of symptoms, including pain, that are reasonably attributed to a
medically determinable impairment”). Social Security Rulings are binding
at all levels of appeal (20 Code of Federal Regulations section
402.935(b)).

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As to Ms. Lind, the ALJ stated:

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The claimant receives therapy by Patricia Lind, LCSW beginning
December 2015, scheduled to end in July 2016, for major depressive
disorder recurrent and moderate. He reported his depression is aggravated
by traumatic memories, relieved with warm weather, increased by chronic
pain, irritability, and winter weather. The claimant attributes the increase
in his symptoms from withdrawal to Norco. He reported taking Norco
since 2008 for chronic shoulder pain, and that, having to put his dog down
due to cancer, he took two Xanax from his mom to get through the grief,
also drank some beer and that it showed up in his urine drug screen. . . .
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Ms. Lind notes the claimant cooperative and engaged in therapy and in
progress towards goals and objectives (Exhibit 24F/315-341, 12/20152/2016, in particular 24F/317, 320, 326, 332). Psychiatric findings are
generally within normal [limits] but for occasional depressed mood or
thought content; labile or flat affect; judgment is noted within normal but
for impaired ability to make reasonable decisions (Exhibit 24F/323, 329,
335, 340).

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CAR 629-30.

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Citing CAR 1230, plaintiff contends the ALJ ignored Ms. Lind’s opinion that plaintiff’s ability to

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make reasonable decisions is impaired. The court finds no error.
Ms. Lind submitted a report on March 11, 2016. See CAR 1227-1231 (Exhibit

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24F, records from Redding Rancheria Tribal Health Center). Regarding plaintiff’s judgment, Ms.

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Lind stated: “Impaired ability to make reasonable decisions: Within normal limits.” Id. at 1230.

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Contrary to plaintiff’s assertion, this statement does not reflect a significant functional limitation

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given the therapist’s conclusion plaintiff’s judgement is within normal limits. Moreover, on

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mental status examination, Ms. Lind assessed plaintiff’s thought process as logical, his

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intelligence as average, and his insight as also within normal limits. See id.
Ms. Lind also rendered an Axis IV diagnosis of “Severe.” Id. This diagnosis,

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however, reflects stressors in plaintiff’s life contributing to his mental impairment. For example,

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Ms. Lind cited the following in support of this diagnosis: (1) inability to engage in prior activities

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as a result of accident; (2) inability to engage in prior work as a result of accident; (3) living with

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parents; and (4) lack of income. See id. The court does not agree with plaintiff’s assertion that

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Ms. Lind’s Axis IV diagnosis represents an opinion as to functional capacity the ALJ improperly

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ignored.

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B.

Evaluation of the Medical Opinions
At Step 4, the ALJ evaluated the medical opinion evidence in determining

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plaintiff’s physical residual functional capacity. See id. at 641-42. The ALJ gave “substantial

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weight” to the opinion of consultative examining physician, Dr. Siciarz, see id. at 641, “good

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weight” to the opinion of agreed medical examiner, Dr. Watkin, see id. at 642, and “little weight”

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to the opinions of treating physician, Dr. Weber, and consultative reviewing physicians, Drs.
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Acinas and Kalen, see CAR 642. Plaintiff argues the ALJ erred in giving controlling weight to

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Dr. Siciarz’s opinion while ignoring the opinion of his treating orthopedic surgeon, Dr. Verhoog.

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Plaintiff also contend the ALJ erred by ignoring opinions offered by Physician’s Assistant Fred

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Herring.

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The weight given to medical opinions depends in part on whether they are

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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, than

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the opinion of a non-treating professional. See id.; Smolen v. Chater, 80 F.3d 1273, 1285 (9th

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

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opinion of a non-examining professional. See Pitzer v. Sullivan, 908 F.2d 502, 506 & n.4 (9th

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Cir. 1990).

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

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

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

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

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

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

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

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

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1041 (9th Cir. 1995).

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A contradicted opinion of a treating or examining professional may be rejected

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only for “specific and legitimate” reasons supported by substantial evidence. See Lester, 81 F.3d

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

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

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

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

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professional. See Lester, 81 F.3d at 830-31. The opinion of a non-examining professional,
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without other evidence, is insufficient to reject the opinion of a treating or examining

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

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

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

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also Magallanes, 881 F.2d at 751.

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As to Dr. Siciarz, the ALJ stated:

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In March 2016, orthopedic consulting examiner Dr. Kristoff Siciarz
assessed the claimant’s impairments and gave her prognosis of opinion of
their effect – Dr. Siciarz assessed chronic strain of the neck and back,
mildly limiting; right shoulder injury status post surgery with decreased
range of motion; left shoulder rotator cuff tear, repaired with good
improvement that will not limit activities; migraine headaches, selflimiting, and will not limit activities; bilateral carpal tunnel syndrome not
considered a limitation with expectation of good improvement from
surgery; and history of hypertension. [The doctor] then opined the
claimant could perform medium exertional work in that he can sit for eight
hours of an eight hour day and can stand and walk for six hours of an eight
hour day. However he can lift and carry fifty pounds occasionally and
twenty pounds frequently; can continuously finger feel, push and pull with
both arms/hands; can handle frequently with both arms/hands; can
occasionally reach and reach overhead with both arms; can frequently use
feet for operation of foot controls; can frequently climb ramps and stairs;
can never climb ladders, topes and scaffolds; can frequently balance; can
occasionally bend, kneel, stoop, crouch, crawl; can occasionally work
about hazards (dangerous machinery, unprotected heights, etc.); can
frequently work in extreme temperatures, humidity, vibrations, fumes,
odors, dust, gases, poor ventilation, etc., and drive a motor vehicle
(Exhibit 25F/10-14).

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Drs. Siciarz and Verhoog

CAR 641.
The ALJ gave Dr. Siciarz’s opinions controlling weight in this case, stating:

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. . .They are supported by the longitudinal record of care showing limited
findings of abnormalities in repeated physical examinations, the findings
in diagnostic testing and medical imagery – x-rays, MRIs of the back,
shoulders and EMG testing. They are supported by the good recovery
from multiple surgeries, the finding of maximum medical improvement by
Dr. Watkin, and the improvement shown in the treatment of residual
symptoms by Drs. Weiner and Solonuick. . . .

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Id.

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The ALJ also found Dr. Siciarz’s opinions consistent with plaintiff’s daily activities and evidence

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of some continuing work. See id.
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The ALJ discussed treatment records from Dr. Verhoog in the context of a detailed

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summary of the clinical observations relating plaintiff’s shoulder impairments, which the ALJ

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found severe. See CAR 634-37. After noting Dr. Watkin’s clinical findings regarding plaintiff’s

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right shoulder, the ALJ discussed the evidence relating to plaintiff’s left shoulder as follows:

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With regard to the left shoulder, there is a similar experience of pain
developing, leading to findings of abnormalities that were surgically
treated with good recovery, residual symptoms managed with medications
and occasionally cortisone injections. The record shows that while there
may be some continuing limitations on functioning, he is not
completely/unable to use this [the left] arm. In February 2012, the
claimant complains of pain in his left shoulder that he initially stated was
due to overuse given his right shoulder condition. Later he stated the
injury was due to a fall about six weeks previously. X-ray of his left
shoulder in February 2012 showed no significant abnormality. March
2012 records indicate probable adhesive capsulitis. However, treating
orthopedic surgeon Dr. Verhoog noted improvement in range of motion
with forward flexion and increased abduction and external rotation. . . .
With one month of physical therapy, the claimant had significant
improvement in full passive range of motion. In May 2012, Dr. Verhoog
notes improved forward active flexion of about 150 degrees and passively
he goes to about 160 degrees. X-rays of the shoulder are normal but a
MRI scan indicates a supraspinatus tendon tear. Dr. Verhoog suspects he
will do very well from surgery based on MRI findings of his left shoulder.
In May 2012, the claimant undergoes uncomplicated left shoulder rotator
cuff repair and left shoulder anterior acromioplasty. He recovers well,
achieving full active range of motion of the shoulder, only occasionally
taking an anti-inflammatory by August 2012. In November 2012, he
reports moderate pain in his shoulder but there are no significant findings
other than bilateral shoulder decreased range of motion. Treatment
consists of pain medication, medical notes indicating no significant side
effects from medication. In April 2013, he reports continued discomfort
keeping him awake at night. He presents with full active range of motion,
but positive impingement sign and received a cortisone injection, Dr.
Verhoog assessing bursitis. The injection is effective, repeated when the
pain returns in September 2013, April and July 2014. MRI August 2014
shows retear of the supraspinatus tendon, with no muscle atrophy, which
looks very fixable to Dr. Verhoog. Revision and repair surgery of the left
shoulder occurs in October 2014. 2014-2015 office visits with Dr.
Verhoog reported good progress and reestablishment of full active range
of motion of the left shoulder (Ex. 18F-23F; 26F/7-25, 29-30).

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CAR 635-36.

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Plaintiff argues the ALJ erred by failing to provide sufficient reasons for crediting
Dr. Siciarz’s opinions and by ignoring Dr. Verhoog’s opinions. According to plaintiff:
. . . Dr. Siciarz’s opinion that he had only post right shoulder
surgery with decreased range of motion is inconsistent and not well
supported by the most recent 6-11-15 x-ray findings of his right shoulder
that revealed a “. . . high riding humeral head which indicates a failed
rotator cuff repair and early cuff tear arthopathy with early osteophyte
formation on the inferior humeral head” (Tr. 1259) (20 Code of Federal
Regulations section 404.1527(d)(3), 416.927(d)(3)). Plaintiff contends that
the ALJ erred by failing to give greater weight to the opinion of Dr.
Verhoog, his treating surgeon, that he continued to have failed right
rotator cuff repair and early cuff tear arthropathy, which is supported by
the most recent x-ray findings and supported by the record as a whole (Tr.
1259) (20 Code of Federal Regulations section 404.1527(d)(3),
416.927(d)(3)). Orn v. Astrue, 495 F.3d 625, 633-634 (9th Cir. 2007).
Plaintiff contends that since the ALJ did not either explicitly reject or
discredit the opinion by Dr. Verhoog, nor resolve the conflict between the
opinion of Dr. Verhoog that that is supported by x-ray findings of failed
right rotator cuff repair (Tr. 1259) and the opinion of Dr. Siciarz that he
had only post right shoulder surgery with decreased range of motion,
based on his clinical examination findings (Tr. 1244-1246), should be
found to have erred by failing to set forth specific, legitimate reasons for
crediting the opinion of Dr. Siciarz over the opinion by Dr. Verhoog.
Garrison v. Colvin, 759 F.3f 995, 1012-1013 (9th Cir. 2014).

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Specifically regarding Dr. Siciarz, plaintiff also argues:

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. . .[S]substantial evidence does not support the ALJ’s finding that
his carpal tunnel syndrome limits his residual functional capacity to for
handling and fingering with the right hand to frequently (Tr. 632) because
while Dr. Siciarz noted on 3-1-16 that plaintiff had undergone carpal
tunnel surgery on the right and still had bandages on the right hand with
inability to grasp (Tr. 1242, 1246) and determined that “ . . . this will not
be considered a limitation in the expectation that of good improvement
from surgery,” and in the meantime he had the capacity to frequently
handle and continuously finger, feel and push/pull objects with the right
hand (Tr. 1246, 1250), Dr. Siciarz noted that plaintiff’s right hand could
not be examined (Tr. 1245), such that without clinical findings an
inference cannot reasonably be drawn that to support his opinion and he
ALJ’s residual functional capacity findings that he can frequently handle
and continuously finger, feel and push/pull with the right hand. Widmark
v. Barnhart, 454 F.3d 1063, 1068 (9th Cir. 2005).

24

Plaintiff’s arguments are unpersuasive because he has not identified any opinions

16
17
18
19
20
21
22

25

rendered by Dr. Verhoog regarding functional capacity which should have been given greater

26

weight. While plaintiff references a number of observations made by the doctor, such as x-ray

27

findings and evidence of damage related to plaintiff’s rotator cuff injuries, these observations are

28

not opinions.
12

1

2.

2

According to plaintiff:

3

. . .[T]e ALJ should be found to have erred by disregarding without
explanation the statement by Mr. Fred Herring, physician’s assistant and
provider of services along with Dr. Weiner and Dr. Soloniuk at Redding
Rancheria Tribal Health Center from 2-23-15 to1-28-16 (Tr. 918-971) that
although plaintiff could work at a desk job with improvement in his
physical condition, his impairments and treatment would cause him to be
absent from work “about four days per month” depending on his “ . . .
tolerance to pain and type of work performed” (Tr. 1284) (20 Code of
Federal Regulations sections 404.1513(d)(1), 416.913(d)(1)). Benton Ex
Rel. v. Barnhart, 331 F.3d 1030, 1036-1037 (9th Cir. 2003); citing
Shontos v. Barnhart, 322 F.3d 532, 539.540 (8th Cir. 2003).

4
5
6
7
8
9

Mr. Herring

Plaintiff misstates Mr. Herring’s report. Mr. Herring concluded plaintiff “could sit/stand position

10

of comfort and could perform desk job.” CAR 1284 (Exhibit 27F). Mr. Herring also reported

11

plaintiff “could perform physical labor with improvement in physical conditioning and weight

12

loss.” Id. As to anticipated absences from work, Mr. Herring acknowledged that his opinion is

13

“very subjective and depends solely on individual’s tolerance to pain and type of work

14

performed.” Setting aside the speculative nature of this statement, the court cannot say it

15

represents an opinion as to functional capacity, such that the ALJ erred in not discussing that

16

opinion.

17
18

C.

Credibility Assessment
At Step 4, the ALJ assessed plaintiff’s credibility in evaluating his residual

19

functional capacity. See CAR 633-34, 640. The Commissioner determines whether a disability

20

applicant is credible, and the court defers to the Commissioner’s discretion if the Commissioner

21

used the proper process and provided proper reasons. See Saelee v. Chater, 94 F.3d 520, 522 (9th

22

Cir. 1996). An explicit credibility finding must be supported by specific, cogent reasons. See

23

Rashad v. Sullivan, 903 F.2d 1229, 1231 (9th Cir. 1990). General findings are insufficient. See

24

Lester v. Chater, 81 F.3d 821, 834 (9th Cir. 1995). Rather, the Commissioner must identify what

25

testimony is not credible and what evidence undermines the testimony. See id. Moreover, unless

26

there is affirmative evidence in the record of malingering, the Commissioner’s reasons for

27

rejecting testimony as not credible must be “clear and convincing.” See id.; see also Carmickle v.

28
13

1

Commissioner, 533 F.3d 1155, 1160 (9th Cir. 2008) (citing Lingenfelter v Astrue, 504 F.3d 1028,

2

1936 (9th Cir. 2007), and Gregor v. Barnhart, 464 F.3d 968, 972 (9th Cir. 2006)).

3

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

4

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

5

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

6

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

7
8
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.
80 F.3d 1273, 1282 (9th Cir. 1996) (referring to the test established in
Cotton v. Bowen, 799 F.2d 1403 (9th Cir. 1986)).

13

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

14

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

15

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

16

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

17

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

18

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

19

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

20

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

21

claimant cooperated during physical examinations or provided conflicting statements concerning

22

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

23

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

24

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

25

Carmickle, 533 F.3d at 1161 (citing Swenson v. Sullivan, 876 F.2d 683, 687 (9th Cir. 1989)).

26

Regarding reliance on a claimant’s daily activities to find testimony of disabling

27

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

28

incapacitated. See Fair v. Bowen, 885 F.2d 597, 602 (9th Cir. 1989). The Ninth Circuit has
14

1

repeatedly held that the

“. . . mere fact that a plaintiff has carried out certain daily activities . . .

2

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

3

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

4

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

5

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

6

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

7

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

8

ability to cook meals and wash dishes); Fair, 885 F.2d at 603 (observing that “many home

9

activities are not easily transferable to what may be the more grueling environment of the

10

workplace, where it might be impossible to periodically rest or take medication”). Daily

11

activities must be such that they show that the claimant is “. . .able to spend a substantial part of

12

his day engaged in pursuits involving the performance of physical functions that are transferable

13

to a work setting.” Fair, 885 F.2d at 603. The ALJ must make specific findings in this regard

14

before relying on daily activities to find a claimant’s pain testimony not credible. See Burch v.

15

Barnhart, 400 F.3d 676, 681 (9th Cir. 2005).

16

As to plaintiff’s credibility, the ALJ stated:

17

The claimant alleged he is unable to work due to a torn right rotator cuff
with a history of three surgeries on this shoulder. The claimant stated he
has problems reaching, lifting, and using his arm/hands. He asserted he
can only raise his arm at shoulder height. He alleged in June 2011
worsening left shoulder pain, and being stiff, unable to use his right arm in
any significant manner as all use causes severe right shoulder pain. He
stated he can walk ½ mile, lift about 10-15 pounds, cannot reach at all
with his right arm, and his right hand is numb. He can stand about five to
ten minutes and then sit for 10 to 15 minutes and then needs to sit or walk
about. He estimates he can walk about 100 feet slowly. He used no
assistive device to walk such as a cane or walker. In April 2012, he
reported more severe shoulder pain. He also had neck pain down to his
elbow. He reported weight gain and that he does not use his right arm. He
also stated he has had balance problems since December 2011 (Exhibit 1E,
2E, 4E, 6E, 8E).

18
19
20
21
22
23
24
25
26
27
28

***
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
15

1

these symptoms are not entirely consistent with the medical evidence and
other evidence in the record for the reasons explained in this decision.

2
3
4

CAR 633-34.
Regarding plaintiff’s statements and testimony concerning mental impairment, the ALJ stated:
“The claimant’s allegations of persistent and intense symptoms and limitations from his mental

5
impairments are out of proportion to the medical evidence of record which demonstrates he has
6
mild depression from various situations in life, that is under control with appropriate use of
7

medication and avoidance of excessive alcohol.” CAR 630. The ALJ also stated: “Overall the

8
undersigned finds the evidence of inconsistencies does not substantiate his testimony that he does
9

little to nothing, either from mental symptoms or his physical impairments.” Id. at 640. Finally,

10
the ALJ stated:
11

13

Lastly, his allegations are challenged by the opinions of record from
examining and evaluating physicians. These show that the claimant, while
facing some limits in working capacities, still retains significant
functionality to work.

14

Id.

12

15
Plaintiff argues the reasons provided by the ALJ are not supported by substantial
16
evidence. According to plaintiff:
17
18
19
20
21
22
23
24
25
26
27
28

. . .[T]he results of numerous laboratory tests support his
allegations of having chronic severe pain, weakness, and difficulty
functioning with the right arm despite pain management through 12-22-15
(Tr. 1078, 1081, 1082, 1090, 12-5-1230, 1094, 1088-1090, 1298-1201,
1202-1204), and after several surgeries to his right shoulder, he continues
to have a medically determinable impairment of right rotator cuff tear
arthropathy (Tr. 1259) (20 Code of Federal Regulations section
404.1529(b), 416.929(b)). Plaintiff contends that substantial evidence
should be found not to support the ALJ’s repeated statements and findings
that plaintiff had “. . . good recovery from shoulder and hand surgical
interventions” (Tr. 639) and that his pain symptoms are “well-controlled”
by medication treatment (Tr. 643) that has resulted in right shoulder
“. . . improvement and stability, enabling good functioning” (Tr. 634, 636,
638, 642). Garrison v. Colvin, supra, 759 F.3d 995, 1015).
Plaintiff similarly contends that the ALJ erred by discrediting his
pain allegation on the basis of his daily activities such as going to the post
office, shopping in stores, going to movies with friends and doing car
repair that was inferred form [sic] grease on his hands along with his
reported history of being a good car mechanic (Tr. 640), because the ALJ
did not make any findings as to whether these activities occupied a
substantial part of the day and gave him transferable skills. Id. at 10151016; Fair v. Bowen, 885 F.2d 597, 603 (9th Cir. 1989).
16

1
***
2
Plaintiff contends that in light of his history of multiple
unsuccessful surgeries on his right shoulder, the current laboratory test
results that revealed he continues to have a right rotator cuff tear, and in
the absence of affirmative evidence of malingering, the ALJ should be
found to have erred by failing to set forth clear and convincing reasons to
discredit his allegations of having chronic pain in his right shoulder and
associated functional limitations. Garrison v. Colvin, supra, 759 F.3d at
1015-1016; Robbins v. Social Security Administration, 446 F.3d 880, 883884 (9th Cir. 2006).

3
4
5
6
7
8
9

Plaintiff’s contentions are unpersuasive. Evidence plaintiff “continues to have a
medically determinable impairment of right rotator cuff tear arthropathy” does not undermine the
ALJ’s finding plaintiff had good recovery and improvement in functioning following surgeries.

10
The relevant inquiry in determining residual functional capacity is what a person can do despite
11
limitations, not whether the person has medically determinable impairments. See 20 C.F.R.
12
§§ 404.1545(a), 416.945(a) (2003); see also Valencia v. Heckler, 751 F.2d 1082, 1085 (9th Cir.
13
14

1985) (residual functional capacity reflects current “physical and mental capabilities”). The
ALJ’s reference to good recovery and improvement is a legally valid reason to discount plaintiff’s

15
allegations of disabling symptoms. See Smolen, 80 F.3d at 1284.
16
As to reliance on daily activities, even if ALJ improperly relied on evidence he
17
worked as a car mechanic in 2014, absent evidence as to whether such work occupied a
18

substantial part of plaintiff’s day, the ALJ nonetheless relied on sufficient reasoning, discussed

19
above. Any error is, therefore, harmless because it is inconsequential to the ultimate decision.
20
See Batson v. Commissioner of Social Security, 359 F.3d 1190 (9th Cir. 2004).
21
D.
22
23
24

Evaluation of Lay Witness Evidence
At Step 4, the ALJ considered lay witness evidence provided by plaintiff’s mother,

Patricia Rhoades, plaintiff’s father, Leland Rhoades, plaintiff’s uncle, John Rhoades, and
plaintiff’s best friend, Robin Morris. See CAR 633, 643. As to this evidence, the ALJ stated:

25
26
27
28

The undersigned also considered the third party statements. Patricia
Rhoades, the claimant’s mother with whom he lives, stated he gets up
early. Talks on the phone with friends, sometimes visits with friends or
goes to the movie with them, watches a lot of TV, showers, etc. He needs
help buttoning his pants. She helps him take care of his dog. She reminds
him to take his medications. He can help with the dishes. He drives a car.
17

1
2
3
4
5
6
7
8
9
10
11
12
13
14
15

He shops in stores and by phone for clothes and books. He cannot hunt or
fish anymore but enjoys playing with remote control cars in the back yard,
reading, going to the movies/watching TV, and visiting with friends. He
handles money without difficulty. She stated he cannot sleep on his right
side so sometimes wakes up if he rolls over. She stated he is very
depressed since his accident and stays home most of the time. However,
the undersigned finds this inconsistent with her other statements that the
claimant enjoys visiting with friends, going to the movies, shopping, and
playing with remote control cars (Exhibit 3E).
John Rhoades, the claimant’s uncle stated the claimant can no longer run a
Running Skidder as all the controls are on the right side and cannot reach
them. He feels the claimant is very depressed. He stated the claimant
does not sleep well. Robin Morris, the claimant’s best friend, states he
sees the claimant three to four times per week and text each other
frequently. He feels the claimant has trouble lifting and that he was happy
and a hard worker before he was hurt. He feels the claimant has more bad
than good days. Leland Rhoades, the claimant’s father stated, before the
accident, he did many things with his son such as fishing and hunting and
the claimant was a good mechanic. He stated the claimant cannot do these
things anymore. He feels the claimant is very depressed and that he feels
useless because he cannot do the things he used to do. Patricia Rhoades,
the claimant’s mother stated in another report that the claimant has
changes since the accident and is depressed. She states he does not sleep
more than three to four hours at night. However, he does sleep on the
couch during the day. He wishes he could go back to work on the skidder
(Exhibit 9E-12E).
***

24

In considering the evidence from “non-medical sources” who have not
seen the individual in a professional capacity in connection with their
impairments, such as spouses, parents, friends, and neighbors, it is
appropriate to consider such factors as the nature and extent of the
relationship, whether the evidence is consistent with other evidence, and
any other factors that tend to support or refute the evidence (SSR [Social
Security Ruling] 06-03p). The lay witness claims are similar to the
claimant’s allegations; the undersigned acknowledges the reported
limitations on activities of daily living, social functioning, and capacity to
focus, respond appropriately to instructions, accomplish tasks from the
claimant’s mother Ms. Rhoades, the claimant’s friend, Ms. Morris, the
claimant’s uncle, Mr. John Rhoades, and the claimant’s father, Mr. Leland
Rhoades (Exhibit 3E, 9E-13E). However, they are not fully supported by
the evidence that is, the objective findings, diagnostic testing and medical
imagery, and longitudinal record of care reviewed above. In addition, they
are accorded no weight as an opinion on his functionality, none of these
individuals being an acceptable medical source.

25

CAR 633, 643.

16
17
18
19
20
21
22
23

26
In determining whether a claimant is disabled, an ALJ generally must consider lay
27
witness testimony concerning a claimant's ability to work. See Dodrill v. Shalala, 12 F.3d 915,
28
18

1

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

2

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

3

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

4

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

5

lay witnesses, he must give reasons that are germane to each witness.” Dodrill, 12 F.3d at 919.

6

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

7

where the statements are similar. See Valentine v. Commissioner Soc. Sec. Admin., 574 F.3d

8

685, 694 (9th Cir. 2009) (approving rejection of a third-party family member’s testimony, which

9

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

10
11

complaints).
The ALJ, however, need not discuss all evidence presented. See Vincent on

12

Behalf of Vincent v. Heckler, 739 F.2d 1393, 1394-95 (9th Cir. 1984). Rather, he must explain

13

why “significant probative evidence has been rejected.” Id. (citing Cotter v. Harris, 642 F.2d 700,

14

706 (3d Cir.1981). Applying this standard, the court held that the ALJ properly ignored evidence

15

which was neither significant nor probative. See id. at 1395. As to a letter from a treating

16

psychiatrist, the court reasoned that, because the ALJ must explain why he rejected

17

uncontroverted medical evidence, the ALJ did not err in ignoring the doctor’s letter which was

18

controverted by other medical evidence considered in the decision. See id. As to lay witness

19

testimony concerning the plaintiff’s mental functioning as a result of a second stroke, the court

20

concluded that the evidence was properly ignored because it “conflicted with the available

21

medical evidence” assessing the plaintiff’s mental capacity. Id.

22

In Stout v. Commissioner, the Ninth Circuit recently considered an ALJ’s silent

23

disregard of lay witness testimony. See 454 F.3d 1050, 1053-54 (9th Cir. 2006). The lay witness

24

had testified about the plaintiff’s “inability to deal with the demands of work” due to alleged back

25

pain and mental impairments. Id. The witnesses, who were former co-workers testified about

26

the plaintiff’s frustration with simple tasks and uncommon need for supervision. See id. Noting

27

that the lay witness testimony in question was “consistent with medical evidence,” the court in

28

Stout concluded that the “ALJ was required to consider and comment upon the uncontradicted lay
19

1

testimony, as it concerned how Stout’s impairments impact his ability to work.” Id. at 1053.

2

The Commissioner conceded that the ALJ's silent disregard of the lay testimony contravened

3

Ninth Circuit case law and the controlling regulations, and the Ninth Circuit rejected the

4

Commissioner’s request that the error be disregarded as harmless. See id. at 1054-55. The court

5

concluded:

6
7

Because the ALJ failed to provide any reasons for rejecting competent lay
testimony, and because we conclude that error was not harmless,
substantial evidence does not support the Commissioner’s decision . . .

8

Id. at 1056-67.

9

From this case law, the court concludes that the rule for lay witness testimony

10

depends on whether the testimony in question is controverted or consistent with the medical

11

evidence. If it is controverted, then the ALJ does not err by ignoring it. See Vincent, 739 F.2d at

12

1395. If lay witness testimony is consistent with the medical evidence, then the ALJ must

13

consider and comment upon it. See Stout, 454 F.3d at 1053. However, the Commissioner’s

14

regulations require the ALJ consider lay witness testimony in certain types of cases. See Smolen

15

v. Chater, 80 F.3d 1273, 1288 (9th Cir. 1996); SSR 88-13. That ruling requires the ALJ to

16

consider third-party lay witness evidence where the plaintiff alleges pain or other symptoms that

17

are not shown by the medical evidence. See id. Thus, in cases where the plaintiff alleges

18

impairments, such as chronic fatigue or pain (which by their very nature do not always produce

19

clinical medical evidence), it is impossible for the court to conclude that lay witness evidence

20

concerning the plaintiff’s abilities is necessarily controverted such that it may be properly

21

ignored. Therefore, in these types of cases, the ALJ is required by the regulations and case law to

22

consider lay witness evidence.

23

According to plaintiff:

24

. . .[T]he ALJ erred by discrediting and giving no weight to the
third party statements (Tr. 633), which corroborated his testimony that he
had limitations on daily activities, social functioning and capacity to focus,
respond appropriately to instructions, and accomplish tasks (Tr. 643), in
part on the grounds that they were not supported by the objective findings,
diagnostic testing and medical imagery, and the longitudinal record,
whereas the record shows he has undergone multiple right shoulder
surgeries and the most recent x-ray findings reveals he continues to have
rotator cuff tear of the right shoulder, and in part on the ALJ statement that
20

25
26
27
28

as to their “. . . opinion on his functionality, none of these individuals
being an acceptable medical source” (Tr. 643), because the Regulations
state that other non-medical source information from relatives is
competent evidence to show severity of impairments and how it affects
ability to work” (20 Code of Federal Regulations section 404.1513(d)(4),
416.913(d)(4)). Smolen v. Chater, 80 F.3d 1273, 1288-1289 (9th Cir.
1996) (“Having been directed to consider the testimony of lay witnesses in
determining a claimant’s disability, the ALJ can reject the testimony of lay
witnesses only if he gives germane reasons to each witness who testimony
he rejects”); Dodrill v. Shalala, 12 F.3d 915, 918 (9th Cir. 1993).

1
2
3
4
5
6
7

The ALJ does not err where, as here, he cites the same legally sufficient reasons for rejecting

8

third-party evidence as he does for rejecting plaintiff’s statements and testimony. See Valentine,

9

574 F.3d at 694.

10

E.

11

Vocational Findings
At Step 5, the ALJ made vocational findings as to plaintiff’s ability to perform

12

other work given his residual functional capacity. See CAR 644-46. In so doing, the ALJ

13

accepted evidence in the form of testimony by a vocational expert. See id. The ALJ accepted the

14

vocational expert’s testimony that plaintiff can perform work as a counter clerk, school bus

15

monitor, dealer accounts investigator, scaling machine operator, and blending tank operator. See

16

id. at 645. In evaluating the vocational evidence, the ALJ stated:

17

21

The hypotheticals presented to the vocational expert included a limitation
to simple routine tasks, i.e., unskilled work. The undersigned finds based
on the record overall that the evidence supports a finding that there are no
severe mental impairments nor any need to limit the claimant to simple
routine tasks. This difference between the hypothetical posed to the
vocational expert and the residual functional capacity established above
does not substantially affect the testimony of the vocational expert that
jobs exist in significant numbers in the occupations provided, all of which
are unskilled, skilled vocational performance 2. . . .

22

Id.

23

The Medical-Vocational Guidelines (Grids) provide a uniform conclusion about

18
19
20

24

disability for various combinations of age, education, previous work experience, and residual

25

functional capacity. The Grids allow the Commissioner to streamline the administrative process

26

and encourage uniform treatment of claims based on the number of jobs in the national economy

27

for any given category of residual functioning capacity. See Heckler v. Campbell, 461 U.S. 458,

28

460-62 (1983) (discussing creation and purpose of the Grids).
21

1

///

2

///

3

The Commissioner may apply the Grids in lieu of taking the testimony of a

4

vocational expert only when the Grids accurately and completely describe the claimant’s abilities

5

and limitations. See Jones v. Heckler, 760 F.2d 993, 998 (9th Cir. 1985); see also Heckler v.

6

Campbell, 461 U.S. 458, 462 n.5 (1983). Thus, the Commissioner generally may not rely on the

7

Grids if a claimant suffers from non-exertional limitations because the Grids are based on

8

exertional strength factors only.5 See 20 C.F.R., Part 404, Subpart P, Appendix 2, § 200.00(b).

9

“If a claimant has an impairment that limits his or her ability to work without directly affecting

10

his or her strength, the claimant is said to have non-exertional . . . limitations that are not covered

11

by the Grids.” Penny v. Sullivan, 2 F.3d 953, 958 (9th Cir. 1993) (citing 20 C.F.R., Part 404,

12

Subpart P, Appendix 2, § 200.00(d), (e)). The Commissioner may, however, rely on the Grids

13

even when a claimant has combined exertional and non-exertional limitations, if non-exertional

14

limitations do not impact the claimant’s exertional capabilities. See Bates v. Sullivan, 894 F.2d

15

1059, 1063 (9th Cir. 1990); Polny v. Bowen, 864 F.2d 661, 663-64 (9th Cir. 1988).

16

In cases where the Grids are not fully applicable, the ALJ may meet his burden

17

under step five of the sequential analysis by propounding to a vocational expert hypothetical

18

questions based on medical assumptions, supported by substantial evidence, that reflect all the

19
20
5

21
22
23
24
25
26
27
28

Exertional capabilities are the primary strength activities of sitting, standing,
walking, lifting, carrying, pushing, or pulling and are generally defined in terms of ability to
perform sedentary, light, medium, heavy, or very heavy work. See 20 C.F.R., Part 404, Subpart
P, Appendix 2, § 200.00(a). “Sedentary work” involves lifting no more than 10 pounds at a time
and occasionally lifting or carrying articles like docket files, ledgers, and small tools. See 20
C.F.R. §§ 404.1567(a) and 416.967(a). “Light work” involves lifting no more than 20 pounds at
a time with frequent lifting or carrying of objects weighing up to 10 pounds. See 20 C.F.R. §§
404.1567(b) and 416.967(b). “Medium work” involves lifting no more than 50 pounds at a time
with frequent lifting or carrying of objects weighing up to 25 pounds. See 20 C.F.R. §§
404.1567(c) and 416.967(c). “Heavy work” involves lifting no more than 100 pounds at a time
with frequent lifting or carrying of objects weighing up to 50 pounds. See 20 C.F.R. §§
404.1567(d) and 416.967(d). “Very heavy work” involves lifting objects weighing more than 100
pounds at a time with frequent lifting or carrying of objects weighing 50 pounds or more. See 20
C.F.R. §§ 404.1567(e) and 416.967(e). Non-exertional activities include mental, sensory,
postural, manipulative, and environmental matters which do not directly affect the primary
strength activities. See 20 C.F.R., Part 404, Subpart P, Appendix 2, § 200.00(e).
22

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plaintiff’s limitations. See Roberts v. Shalala, 66 F.3d 179, 184 (9th Cir. 1995). Specifically,

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

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

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1341 (9th Cir. 1988).

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

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supported limitations and restrictions of the particular claimant. See Magallanes v. Bowen, 881

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

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expert’s testimony as to jobs in the national economy the claimant can perform has no evidentiary

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value. See DeLorme v. Sullivan, 924 F.2d 841, 850 (9th Cir. 1991). While the ALJ may pose to

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the expert a range of hypothetical questions based on alternate interpretations of the evidence, the

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hypothetical that ultimately serves as the basis for the ALJ’s determination must be supported by

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substantial evidence in the record as a whole. See Embrey v. Bowen, 849 F.2d 418, 422-23 (9th

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Cir. 1988).

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Plaintiff argues the ALJ erred by failing to include in hypothetical questions posed

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to the vocational expert limitations related to the side-effects of medication. According to

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plaintiff:

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. . .[T]he ALJ should be found to have erred by failing to include in
his hypothetical questions without explanation the combination of
limitations of chronic pain and side-effects of his pain medications
because the record shows that plaintiff testified that the main problem that
kept him from working was pain in his right shoulder (Tr. 668-669)
despite taking Hydrocodone six times a day and OxyContin three times a
day for pain (Tr. 666-667) that he testified caused side-effects of
drowsiness and loss of focus (Tr. 673, 675), the ladder [sic] of which
the ALJ did not discredit and are supported by extensive records from the
Redding Rancheria Tribal Health Center that show he needed pain
management. Robbins v. Social Security Administration, supra, 466 F.3d
at 886 (“An ALJ must propose a hypothetical that is based on medical
assumptions supported by substantial evidence in the record that reflects
each of the claimant’s limitations”); citing Osenbrock v. Apfel, 240 F.3d
1157, 1163 (9th Cir. 2001); Light v. Social Security Administration, 119
F.3d 789, 793 (9th Cir. 1997) (“While the ALJ need not include all
claimed impairments in his hypotheticals, he must make specific findings
explaining his rationale for disbelieving any of the claimant’s subjective
complaints not included in the hypothetical”).

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As to fatigue, the ALJ made the following finding at Step 2 – which plaintiff does

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not challenge – in determining this impairment is not severe:

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. . .Treatment records show occasionally the claimant reporting insomnia,
which Dr. Weiner relates to his high BMI [Body Mass Index, a measure of
obesity], as well as alcohol use. The claimant is treated and reports
improvement with Seroquel (Exhibit 24F/238-41, 3/2015; 24F/192-195,
12/2015). The record shows no referral for sleep studies.

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CAR 627.

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Plaintiff testified at the April 7, 2016, hearing: “Well, when you’re fatigued, you don’t have

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concentration.” CAR 675. He also testified he has poor energy. See id. This evidence does not

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undermine the ALJ’s Step 2 severity finding, which is supported by plaintiff’s only occasional

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reports of fatigue, a lack of significant treatment, and the medical opinion evidence regarding

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plaintiff’s level of mental functioning.

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F.

Remand for Consideration of New Evidence
A case may be remanded to the agency for the consideration of new evidence if the

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evidence is material and good cause exists for the absence of the evidence from the prior record.

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See Sanchez v. Secretary of Health and Human Services, 812 F.2d 509, 511-12 (9th Cir. 1987)

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(citing 42 U.S.C. § 405(g)). In order for new evidence to be “material,” the court must find that,

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had the agency considered this evidence, the decision might have been different. See Clem v.

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Sullivan, 894 F.2d 328, 332 (9th Cir. 1990). The court need only find a reasonable possibility

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that the new evidence would have changed the outcome of the case. See Booz v. Secretary of

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Health and Human Services, 734 F.2d 1378, 1380-81 (9th Cir. 1984). The new evidence,

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however, must be probative of the claimant’s condition as it existed at or before the time of the

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disability hearing. See Sanchez 812 F.2d at 511 (citing 42 U.S.C. § 416(i)(2)(G)). In Sanchez,

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the court concluded that the new evidence in question was not material because it indicated “at

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most, mental deterioration after the hearing, which would be material to a new application, but

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not probative of his condition at the hearing.” Id. at 512 (citing Ward v. Schweiker, 686 F.2d

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762, 765-66 (9th Cir. 1982)).

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Plaintiff argues the matter should be remanded to allow the agency to consider

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new evidence, specifically a report of a July 27, 2016, MRI of plaintiff’s right shoulder, as well as

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an October 21, 2016, report by Dr. Paul Davis. These documents, however, are not probative of

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plaintiff’s condition as it existed at or before the time of the disability hearing in this case, which

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was held on April 7, 2016. See Sanchez 812 F.2d at 511. Therefore, a remand for consideration

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of this evidence in the context of the current application is not warranted.

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IV. CONCLUSION
Based on the foregoing, the court concludes that the Commissioner’s final decision

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is based on substantial evidence and proper legal analysis. Accordingly, IT IS HEREBY

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ORDERED that:

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1.

Plaintiff’s motion for summary judgment (Doc. 16) is denied;

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2.

Defendant’s motion for summary judgment (Doc. 19) is granted;

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3.

The Commissioner’s final decision is affirmed; and

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4.

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

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Dated: September 26, 2018
____________________________________
DENNIS M. COTA
UNITED STATES MAGISTRATE JUDGE

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