McCollough v. Colvin

Filing 19

REPORT AND RECOMMENDATION re: 15 MOTION for Summary Judgment filed by Joseph Allen McCollough, III, 17 Cross MOTION for Summary Judgment and Opposition to Plaintiff's Motion for Summary Judgment filed by Carolyn W. Col vin. It is ordered that no later than 7/12/2017, any party to this action may file written objection with the Court and serve a copy on all parties. The document shall be captioned "Objections to Report and Recommendation." The parti es are advised that failure to file objections within the specific time may waive the right to raise those objections on the appeal. It is further ordered that any reply to the objections shall be filed with the court and served on all parties no later than 7/19/2017. Signed by Magistrate Judge William V. Gallo on 6/28/2017.(dxj)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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Case No.: 16-CV-1166-JLS(WVG)

JOSEPH ALLEN MCCOLLOUGH III,

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REPORT AND
RECOMMENDATION RE:
CROSS-MOTIONS FOR
SUMMARY JUDGMENT

Plaintiff,

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v.

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CAROLYN W. COLVIN,

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[ECF Nos. 15 & 17.]

Defendant.

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This is an action for judicial review of a decision by the Acting Commissioner

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of Social Security, Carolyn W. Colvin (“the Commissioner,” or “Defendant”),

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denying Plaintiff Joseph Allen McCollough III (“Plaintiff”) disability insurance

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benefits (“DIB”) under Title II of the Social Security Act (“Act”) and supplemental

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security income (“SSI”) benefits under Title XVI of the Act. The parties have filed

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cross-motions for summary judgment, and the matter is before the undersigned

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Magistrate Judge for preparation of a Report and Recommendation. See 28 U.S.C.

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§ 636; S.D. Cal. Civ. L. R. 72.1(c). For the reasons stated below, the Court

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RECOMMENDS that Plaintiff’s motion for summary judgment be DENIED,
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Defendant’s cross-motion for summary judgment be GRANTED, and judgment be

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entered accordingly.

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I.

SOCIAL SECURITY CLAIM PROCEEDINGS

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Pursuant to the Act, the Social Security Administration (“SSA”) administers

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the DIB and the SSI programs. 42 U.S.C. § 901. The Act authorizes the SSA to

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create a system by which it determines who is entitled to benefits and by which

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unsuccessful claimants may obtain review of adverse determinations. Id. §§ 423 et

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seq. Defendant, as Acting Commissioner of the SSA, is responsible for the Act’s

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administration. Id. § 902(a)(4), (b)(4).

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A.

SSA’s Sequential Five-Step Process

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The SSA employs a sequential five-step evaluation to determine whether a

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claimant is eligible for benefits. 20 C.F.R. §§ 416.920, 404.1520. To qualify for

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disability benefits under the Act, a claimant must establish (1) he or she is unable

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“to engage in any substantial gainful activity by reason of any medically

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determinable physical or mental impairment,” 42 U.S.C. § 423(d)(1)(A); (2) his or

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her impairment persisted at least longer than a twelve month period, id.; see also 20

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C.F.R. § 404.1509; and (3) he or she “either was permanently disabled or subject to

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a condition which became so severe as to create a disability prior to the date upon

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which [his or] her disability insured status expired,” Johnson v. Shalala, 60 F.3d

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1428, 1432 (9th Cir. 1995); see also 42 U.S.C. § 423(a)(1)(A).

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An administrative law judge (“ALJ”) presides over the five-step process to

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determine disability. See Barnhart v. Thomas, 540 U.S. 20, 24-25 (2003). If the

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Commissioner finds that a claimant is disabled or not disabled at any step in this

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process, the review process is terminated at that step. Corrao v. Shalala, 20 F.3d

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943, 946 (9th Cir. 1994).

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Step one in the sequential evaluation considers a claimant’s “work activity,

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if any.” 20 C.F.R. § 404.1520(a)(4)(i). An ALJ will deny a claimant disability

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benefits if the claimant is engaged in “substantial gainful activity.”

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§§ 404.1520(b), 416.920(b).

Id.

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If a claimant cannot provide proof of gainful work activity, the ALJ proceeds

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to step two to ascertain whether the claimant has a medically severe impairment or

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combination of impairments. The so-called “severity regulation” dictates the course

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of this analysis. Id. §§ 404.1520(c), 416.920(c); see also Bowen v. Yuckert, 482

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U.S. 137, 140-41 (1987).

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An ALJ will deny a claimant’s disability claim if the ALJ does not find that

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a claimant suffers from a severe impairment, or combination of impairments, which

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significantly limits the claimant’s physical or mental ability to do “basic work

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activities.” Id. § 404.1520(c). The ability to do “basic work activities” means “the

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abilities and aptitudes necessary to do most jobs.” Id. §§ 404.1521(b), 416.921(b).

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However, if the impairment is severe, the evaluation proceeds to step three.

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At step three, the ALJ determines whether the impairment is equivalent to one of

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several listed impairments that the SSA acknowledges are so severe as to preclude

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substantial gainful activity. Id. §§ 404.1520(d), 416.920(d). An ALJ conclusively

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presumes a claimant is disabled so long as the impairment meets or equals one of

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the listed impairments. Id. §§ 404.1520(d).

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If the ALJ has not yet deemed a claimant disabled, but before formally

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proceeding to step four, the ALJ must establish the claimant’s Residual Functional

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Capacity (“RFC”). Id. §§ 404.1520(e), 404.1545(a). An individual’s RFC is his or

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her ability to do physical and mental work activities on a sustained basis despite

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limitations from his or her impairments. Id. §§ 404.945(a)(1), 404.1545(a)(1). The

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RFC analysis considers “whether [the claimant’s] impairment(s), and any related
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symptoms, such as pain, may cause physical and mental limitations that affect what

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[the claimant] can do in a work setting.” Id. §§ 404.1545(a)(1), 416.945(a)(1). In

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establishing a claimant’s RFC, the ALJ must assess relevant medical and other

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evidence, as well as consider all of the claimant’s impairments, including

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impairments categorized as non-severe. Id. § 404.1545(a)(3), (e).

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At step four, the ALJ uses the claimant’s RFC to determine whether the

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claimant has the RFC to perform the requirements of their past relevant work. 20

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Id. § 404.1520(f). So long as a claimant has the RFC to carry out his or her past

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relevant work, the claimant is not disabled. Id. §§ 404.1560(b)(3). Conversely, if

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the claimant either cannot or does not have any past relevant work, the analysis

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presses onward.

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At the fifth and final step of the SSA’s evaluation, the ALJ must verify

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whether the claimant is able to do any other work in light of his or her RFC, age,

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education, and work experience. Id. § 404.1520(g). If the claimant is able to do

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other work, the claimant is not disabled. However, if the claimant is not able to do

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other work and meets the duration requirement, the claimant is disabled. Id.

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Although the claimant generally continues to have the burden of proving disability

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at step five, a limited burden of going forward with the evidence shifts to the SSA.

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At this stage, the SSA must present evidence demonstrating that other work that the

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claimant can perform—allowing for his RFC, age, education, and work

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experience—exists in significant numbers in the national economy.

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§§ 404.1520, 1560(c), 416.920, 404.1512(f).

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B.

Id.

SSA Hearings and Appeals Process

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A network of SSA field offices and state disability determination services

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initially process applications for disability benefits. The processing begins when a

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claimant completes both an application and an adult disability report, and submits
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those documents to one of the SSA’s field offices. If the SSA denies the claim, the

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claimant is entitled to a hearing before an ALJ in the SSA’s Office of Disability

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Adjudication and Review. Id. §§ 404.929, 416.1429. A hearing before an ALJ is

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informal and non-adversarial. Id. § 404.900(b).

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In accordance with Defendant’s delegation, the Office of Disability

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Adjudication and Review administers a nationwide hearings and appeals program.

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SSA regulations provide for a four-step process for administrative review of a

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claimant’s application for disability payments.

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404.900. Once the SSA makes an initial determination, three more levels of appeal

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exist: (1) reconsideration, (2) hearing by an ALJ, and (3) review by the Appeals

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Council. See id. §§ 416.1400, 404.900. If the claimant receives an unfavorable

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decision by an ALJ, the claimant may request review by the Appeals Council. 20

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C.F.R. §§ 404.967, 416.1467. The Appeals Council will grant, deny, dismiss, or

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remand a claimant’s request. Id. §§ 416.1479, 404.979. If the claimant is not

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satisfied with the decision at any step of the process, the claimant has sixty days to

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seek administrative review. See id. §§ 404.933, 416.1433. If the claimant does not

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request review, the decision becomes the SSA’s—and hence Defendant’s—binding

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and final decree. See id. §§ 404.905, 416.1405.

See 20 C.F.R. §§ 416.1400,

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If a claimant disagrees with the Appeals Council’s decision or the Appeals

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Council declines to review the claim, the claimant may seek judicial review in a

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federal district court pursuant to 42 U.S.C. § 405(g) or § 1383(c). See 20 C.F.R.

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§§ 404.981, 416.1481. If a district court remands the claim, the claim is sent to the

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Appeals Council, which may either make a decision or refer the matter to another

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ALJ. Id. § 404.983.

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II.
A.

BACKGROUND

Administrative Proceedings

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On August 15, 2012, Plaintiff protectively filed an application for DIB and

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SSI, alleging disability as of June 15, 2012. (AR 25, 85, 86.) On December 18,

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2012, the SSA denied Plaintiff’s initial application. (AR 25, 74, 83.) On August 2,

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2013, Plaintiff was again denied benefits upon reconsideration. (AR 25, 97, 108.)

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On August 21, 2014, the ALJ held a hearing to review Plaintiff’s case in San

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Diego, California. (AR 25.) Plaintiff, medical expert John R. Morse, M.D., and

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vocational expert Behnush Barzegarian testified at the hearing. (Id.)

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The ALJ issued his written decision on November 4, 2014. (AR 25-32.) At

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step one of the sequential evaluation process described above, the ALJ found that

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Plaintiff had not engaged in substantial gainful activity since his alleged onset date

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of June 15, 2012. (AR 27.)

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At step two, the ALJ found that Plaintiff had the following severe

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impairments: ulcerative colitis, irritable bowel syndrome (IBS), gastroesophageal

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reflux disease (GERD), diabetes mellitus, degenerative disc disease, and obesity.

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(AR 27-28.)

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At step three, the ALJ concluded that Plaintiff did not have an impairment,

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or combination of impairments, that met or medically equaled one of the listed

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impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1. (AR 28.)

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Between steps three and four, in his RFC determination, the ALJ found that

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Plaintiff could perform light work as defined in 20 C.F.R. §§ 404.1567(b) and

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416.967(b) with the exceptions that “the claimant is able to occasionally climb

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ramps and stairs but may never climb ladders, ropes and scaffolds; is able to

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occasionally balance, stoop, kneel, crouch, and crawl; and must avoid even

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moderate exposure to hazardous machinery and unprotected heights.” (AR 28-31.)
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At step four, the ALJ found that Plaintiff was capable of performing past

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relevant work as a “sorter pricer.” (AR 31-32.) This determination in step four

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meant that Plaintiff was not disabled and was the reason the ALJ terminated his

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evaluation. (AR 31-32.) Accordingly, the ALJ found that Plaintiff was not disabled

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from June 15, 2012, his alleged onset of disability date, through the date of the

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decision. (AR 32.)

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On January 5, 2015, Plaintiff requested a review of the ALJ’s decision.

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(AR 19-21.) On April 11, 2016, the Appeals Council denied review. (AR 1-6.)

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The ALJ’s decision thereupon became the SSA’s final and definitive determination

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in Plaintiff’s case. 42 U.S.C. § 405(g).

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On May 16, 2016, Plaintiff commenced the instant action for judicial review.

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(ECF No. 1.) On November 28, 2016, Plaintiff filed a Motion for Summary

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Judgment (“MSJ”). (ECF No. 15.) On December 15, 2016, Defendant filed a

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Cross-Motion for Summary Judgment (“Cross-MSJ”) and opposition to Plaintiff’s

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MSJ. (ECF No. 17.) On January 14, 2017, Plaintiff filed a reply to Defendant’s

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Cross-MSJ. (ECF No. 18.)

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B.

Summary of Relevant Medical Records Submitted to the ALJ for Review

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The medical documentation in the record dates back to 2003 and focuses

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mostly on Plaintiff’s ulcerative colitis and degenerative lumbar disc disease.

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Plaintiff’s ulcerative colitis caused periodic flare-ups two to four times per year,

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during which Plaintiff experienced increased diarrhea, abdominal pain, and blood

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in the stool. (AR 544.) Plaintiff also suffered from sleep apnea, IBS, type 2

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diabetes, GERD, and hypogonadism for which he received periodic testosterone

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shots. (AR 286-456 Passim.)

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Between 2005 and February 2012, Plaintiff visited gastroenterologists Dr.

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Paul Craig and Dr. Nawang Sherpa twenty-four times in Spokane Valley,
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Washington, to treat his ulcerative colitis. (AR 292-331.) During this time period,

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Plaintiff experienced periodic flare-ups of his ulcerative colitis and received regular

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colonoscopies but nonetheless continued to work for Goodwill as a laborer. (Id.)

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The ulcerative colitis was controlled with a regimen of sulfaslazine and folate along

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with rowasa enemas as needed. (AR 299, 301, 303, 305, 308-309, 318.). His

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treatment plan also included diet and exercise to manage his mild obesity. (AR 297,

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303, 305, 311.) On August 15, 2011, Plaintiff underwent an epidural steroid

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injection to treat persistent pain in his lower back. (AR 287-288.) On February 20,

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2012, Plaintiff’s ulcerative colitis and IBS symptoms became aggravated from

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stress caused by his mother’s death. (AR 295.)

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On August 22, 2012, Plaintiff visited Palomar Medical Center’s emergency

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room in Escondido, California, complaining of abdominal pain and rectal bleeding

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caused by a flare-up of his ulcerative colitis. (AR 335.) An examination also

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revealed lower extremity edema, and CT scans showed degenerative changes to his

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spine. (AR 336, 345.) Prior to this time, Plaintiff had not seen a doctor since his

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February 28, 2012 visit with Dr. Craig. (AR 335.) During this gap, Plaintiff had

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left his job at Goodwill and moved to California to live with his sister. (Id.) He

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remained unemployed. (Id.)

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In the ensuing four months, Plaintiff visited Neighborhood Healthcare six

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times to get treatment for his ulcerative colitis, as well as testosterone shots for his

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hypogonadism. (AR 357-378.) During these visits, his diarrhea and bloody stool

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symptoms became less prominent. (Id.)

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From January to June 2013, Plaintiff visited Neighborhood Healthcare

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thirteen times for ulcerative colitis checkups, lab work, and testosterone injections.

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(AR 411-438.) The record shows general improvements in his diarrhea—down to

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eight bowel movements a day—but, on June 12, 2013, Plaintiff experienced a flare8
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up of his ulcerative colitis. (AR 413, 425.) Plaintiff’s back pain continued to

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increase during this period. On February 18, 2013, his pain medication was doubled

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after he complained that the pain had spread to his leg. (AR 430.) On February 27,

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2013, radiology reports showed mild degenerative disc disease but no acute

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abnormalities. (AR 451.) And on May 1, 2013, plaintiff received several epidurals

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to manage his back pain and began physical therapy for his back. (AR 419.) At

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this point, plaintiff required a cane to walk. (AR 420.)

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The final period of medical documentation in the record spans from July 2013

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through June 2014. During this one-year period, Plaintiff visited Neighborhood

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Healthcare nineteen times, visited a gastroenterologist at UC San Diego Health Care

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four times, and participated in physical therapy at Palomar Pain Management

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Center. (AR 460-564.) During this period, Plaintiff experienced three flare-ups of

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his ulcerative colitis, but, on November 11, 2013, he began a steroid treatment that

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reduced his bowel movements to between one and four per day, though he did

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experience one flare-up in March 2014. (AR 474, 478, 544, 548.) The June 16,

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2014 visit to Neighborhood Healthcare shows his ulcerative colitis was in

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remission. (AR 460.)

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Plaintiff continued to report increased back pain from 2013 to 2014. (AR

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460-564.) Plaintiff had trouble getting up from seated positions and fell multiple

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times during medical checkups. (AR 460, 467, 497, 518, 525.) The July 12, 2013

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medical report indicates that he was instructed “not to sit for long periods of time”

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and to “move legs a few times” before getting up. (AR 525.) On November 14,

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2013, Plaintiff began taking Norco to manage his back pain, which had spread from

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his back to his toes. (AR 497.) The dosage was increased to 15 milligrams, four

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times per day, starting on June 16, 2014. (AR 466.) As of January 2014, the

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medical reports indicated that the physical therapy did not have much success in
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alleviating Plaintiff’s pain. But by July 2014, the reports showed that Plaintiff had

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experienced “moderate improvements.” (AR 485, 536.) Additionally, in March

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2014, Plaintiff was diagnosed as morbidly obese and told that he must diet to

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facilitate weight loss. (AR 476, 537.)

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The record shows that Plaintiff has suffered edema of his extremities

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periodically over the past twelve years, but it does not seem to be a persisting

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ailment. (AR 336, 414, 546, 549, 563.) As recently as March 12, 2014, he did not

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appear to have any edema of his extremities but was told to check his feet daily for

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swelling. (AR 475-476.) However, Plaintiff’s visit to Center City Podiatry Group

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on April 22, 2014, does reference pitting ankle edema. (AR 563.) During that visit,

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Plaintiff was fitted for diabetic extra depth shoes to address the swelling. (Id.)

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C.

Plaintiff’s Testimony

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Plaintiff testified at the hearing before the ALJ on November 4, 2014. (AR

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40-56.) As is relevant here, Plaintiff told the ALJ that he experienced pain that

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extended from his entire back down to his feet. (AR 45.) The pain prevented him

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from walking more than a block, sitting more than a half hour without stretching,

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standing more than ten minutes at a time, or lifting more than a gallon of water.

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(AR 46, 51.) Plaintiff stated that he must use a cane to walk but could still drive.

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(AR 43, 44.) The pain was managed by medication and physical therapy, which

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Plaintiff testified did not help. (AR 44.)

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The ulcerative colitis symptoms Plaintiff experienced included cramping

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pain, diarrhea, and rectal bleeding. (AR 42, 47.) Plaintiff claimed that during bad

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days he used the bathroom between ten and one hundred times per hour, and on

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good days, every twenty to thirty minutes. (AR 47-48.) However, Plaintiff

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confirmed that the ulcerative colitis was in remission but indicated that his IBS was

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worse than it was two years before the hearing and claimed that he had been unable
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to start new treatment to keep the ulcerative colitis in remission because of

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insurance issues. (AR 43, 49, 54.)

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Regarding Plaintiff’s ability to function daily, he testified that he had

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difficulties showering and getting dressed. (AR 51-52.) Plaintiff also testified that

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while he left his job at Goodwill because he had relocated, he would have had to

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stop working because of his increasing back pain. (AR 40-41.) He further stated

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that when he tried to find work at a different Goodwill, he was told that despite his

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experience, he “could never do the work.” (AR 52.)

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D.

The Medical Expert’s Testimony

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Dr. John R. Morse testified as the medical expert at Plaintiff’s hearing after

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listening to his testimony. (AR 57-62.) Prior to the hearing, Dr. Morse had

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evaluated Plaintiff’s medical records, Exhibits F1-F9,1 and attempted to identify

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any disabling medical conditions based on his reported issues and the medical

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documentation. (See AR 57.) In doing so, Dr. Morse determined that Plaintiff’s

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ulcerative colitis, diabetes,2 and degenerative disc disease constituted severe

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medical impairments. (AR 58-59.) Otherwise, Dr. Morse opined that Plaintiff’s

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IBS and hypogonadism presented only non-severe impairments. (AR 58.)

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Dr. Morse first considered Plaintiff’s ulcerative colitis and determined that it

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was a severe impairment that would impose restrictions on his activity. (AR 57-

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58.) Plaintiff had been dealing with this condition for at least a decade and it had

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been treated and controlled with Chloroquine medications. (Id.) The condition was

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chronic and had waxed and waned, but Plaintiff had learned to live with it. (AR

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62.) The ulcerative colitis was likely the cause of his incontinence of stool, and

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Exhibits F10 and F11 had not yet been entered into the record at the time Dr. Morse
testified. (AR 39-40.)

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The diabetes had been complicated by his obesity. (AR 58.)
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there was no mention specifically of urinary incontinence in the record.3 (AR 61-

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62.) Dr. Morse indicated that the record showed that Plaintiff’s ulcerative colitis

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was in remission, and Plaintiff’s medical records did not demonstrate the

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requirements of the ulcerative colitis listing in 20 C.F.R. Part 404, Subpart P,

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Appendix 1. (See AR 58.)

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Next, Dr. Morse considered Plaintiff’s IBS, GERD, hypogonadism, and

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diabetes. (AR 58.) He opined that the IBS was explained by his ulcerative colitis

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and was not a separate issue. (Id.) Both the GERD and hypogonadism were being

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treated and were non-severe. (Id.) Plaintiff’s diabetes, however, was a major

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medical issue and was further complicated by his obesity but was not subject to

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additional complications. (Id.)

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Finally, Dr. Morse considered Plaintiff’s multi-level degenerative disc

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disease. (AR 58-59.) He opined that evidence from the medical records supported

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this impairment, as there were X-rays and MRIs that confirmed the condition. (Id.)

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The condition created sciatic symptoms and sensory deficiencies, which explained

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Plaintiff’s recorded pain in his back and lower extremities. (Id.) The pain in

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Plaintiff’s feet could be caused by either his disc disease or his diabetes, but the

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medical records were not clear as to which. (AR 60-61.) Dr. Morse opined that

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Plaintiff was not a candidate for surgery to fix this issue and that the degenerative

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disc disease was a severe impairment that would have contributed to his limitations.

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(AR 59.)

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Based on these conditions, Dr. Morse opined that Plaintiff could perform the

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following activities: (1) lift ten pounds on a frequent basis; (2) lift twenty pounds

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Dr. Morse noted that if there were urinary incontinence it would have been
specifically noted in the medical record because it is a different medical condition
than incontinence of stool. (AR 62.)

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occasionally; (3) stand or walk for six hours out of an eight-hour day; (4) sit six

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hours out of an eight-hour day with normal breaks; (5) occasionally traverse ramps

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and stairs; and (6) engage in limited stooping, kneeling, crouching, and crawling.

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(Id.) Plaintiff would also be restricted from engaging in the following activities:

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(1) climbing ladders, ropes or scaffolds and (2) being exposed to hazardous

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machinery and unprotected heights. (Id.) Plaintiff’s main limitation, according to

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Dr. Morse, was his back pain. (Id.) However, Dr. Morse was skeptical as to

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whether the ulcerative colitis, which was in remission, added any additional

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limitations that did not already exist because of Plaintiff’s back pain. (Id.)

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E.

The ALJ’s Findings4

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The ALJ’s written statement of decision proceeded through the five-step

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disability determination process and ultimately concluded that, though Plaintiff

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suffered from severe ulcerative colitis, IBS, GERD, diabetes mellitus, degenerative

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disc disease, and obesity, he was not totally disabled and could perform past

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relevant work as a sorter pricer. (AR 31-32.) As relevant to the parties’ pending

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summary judgment motions, the ALJ made the following findings on Plaintiff’s

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medically-determinable impairments and evaluated the severity of Plaintiff’s

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obesity impairment:

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3.
The claimant has the following severe impairment: ulcerative
colitis, irritable bowel syndrome (IBS), gastroesophageal reflux
disease (GERD), diabetes mellitus, degenerative disc disease and
obesity (20 CFR 404.1520(c) and 416.920(c)).

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The undersigned considers the above-listed impairments severe
because they are more than slight abnormalities and they have more
than a minimal effect on the claimant’s ability to do basic physical or
mental work activities, as discussed in more detail below at Finding 5.

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The ALJ’s findings have been taken verbatim from the record. Formatting, quotes,
and emphasis appear as they do in the Record, as do any spelling and other errors.
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In addition to the above-listed severe impairments, there is objective
evidence in the medical record that the claimant has been evaluated and
treated for hypothyroidism and hypogonadism. However, these
conditions are being managed medically, and should be amendable to
proper control by adherence to recommended medical management and
medication compliance (Exhibits 4F, pp. 24, 26; 7F, p.19; 8F, pp. 37,
48, 54, 67). Furthermore, no aggressive treatment was recommended
or anticipated for these conditions. Similarly, the claimant has
undergone bilateral carpal tunnel release but the medical records
contain indication of related pain complaints or treatment for this
condition since the alleged onset date (Exhibits 3F, p. 12; 8F, p. 5; 9F,
p. 1). At the hearing, the medical expert testified that the claimant’s
hypothyroidism and [hypogonadism] were nonsevere and further
testified that the claimant experienced no limitations as the result of his
history of carpal tunnel release. Accordingly, these impairments are
nonsevere because they are only slight abnormalities and they do not
have more than a minimal effect on the claimant’s ability to do basic
physical or mental work activities.
In determining the claimant’s residual functional capacity, the
undersigned considered the functional limitations resulting from all of
the claimant’s medically determinable impairments, including these
nonsevere impairments (20 CFR 404.1545 and 416.945). However, the
evidence does not support a finding of any functional limitation other
than those included in Finding 5.
....

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5.
After careful consideration of the entire record, the
undersigned finds that the claimant has the residual functional
capacity to perform light work as a defined in 20 CFR 404.1567(b)
and 416.967(b) with the following exceptions: the claimant is able
to occasionally climb ramps and stairs but may never climb
ladders, ropes and scaffolds; is able to occasionally balance, stoop,
kneel, crouch, and crawl; and must also avoid even moderate
exposure to hazardous machinery and unprotected heights.

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In making this finding, the undersigned has considered all symptoms
and the extent to which these symptoms can reasonably be accepted as
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consistent with the objective medical evidence . . . . The undersigned
has also considered opinion evidence . . . .
In considering the claimant’s symptoms, the undersigned must follow
a two-step process in which it must first be determined whether there is
an underlying medically determinable physical or mental
impairment(s)--i.e., an impairment(s) that can be shown by medically
acceptable clinical and laboratory diagnostic techniques--that could
reasonably be expected to produce the claimant’s pain or other
symptoms.
Second, once an underlying physical or mental impairment(s) that
could reasonably be expected to produce the claimant’s pain or other
symptoms has been shown, the undersigned must evaluate the intensity,
persistence, and limiting effects of the claimant’s symptoms to
determine the extent to which they limit the claimant’s functioning. For
this purpose, whenever statements about the intensity, persistence, or
functionally limiting effects of pain or other symptoms are not
substantiated by objective medical evidence, the undersigned must
make a finding on the credibility of the statements based on a
consideration of the entire case record.

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The claimant testified at the hearing that he stopped working in 2012
because his mother passed away and he moved in with his sister. He
alleges that he has been diagnosed with ulcerative colitis that results in
his having to go to the bathroom constantly, as well as cramping, rectal
bleeding, diarrhea and incontinence; he testified that he was
hospitalized one year ago and is now receiving antibiotics and infusion
to hold this condition in remission. The claimant additionally stated
that he has had irritable bowel syndrome since the late 1990s but that
this condition has gotten worse. He further testified that he experiences
back pain that radiates down his legs and he uses a cane due to problems
with balance and falling down. He admitted that his pain is helped by
medication that makes him sleepy but denied that physical therapy was
effective. The claimant also testified that he has foot pain from diabetes
and from a clubfoot condition as a child. He states that he drives but
does no chores, can walk one block, can sit one half hour, can stand five
to ten minutes but must move around, and is able to lift one gallon of
water. He testified that he has difficulty putting on socks and pants and
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3
4
5
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9
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taking a shower, and must lay down for half of the day. Finally, he
testified that he has sleep apnea and uses a CPAP machine at night.
The claimant’s statements of record, including those in several
disability reports and a function report, are essentially consistent with
his testimony (Exhibits 2E-3E, 5E-6E, 8E-10E, 12E-13E). He
additionally states that he plays games on the computer and watches
television, runs errands with his sister, cleans his room, talks to friends
on the computer, visits and goes to church with his family and is able
to prepare simple meals (Exhibit E5, pp. 6-7, 9). Finally, he states that
he also has been diagnosed with gastroesophageal reflux disease
(GERD) (Exhibit 8E, p.2). The claimant’s sister filed a third party
function report that is consistent with the claimant’s statements of
record and also states that he works on model trains in the garage with
the family (Exhibit 6E, p. 4).

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In order to view the record in the light most favorable to the claimant,
the undersigned has read and considered all of the submitted medical
evidence (Exhibit 1F-11F). The medical evidence reflects that the
claimant has had ulcerative colitis for many years and experiences
periodic flares that require medication; he reported that he usually has
two flares per year but claimed they increased in 2013 (2F, pp. 4, 9; 3F,
p. 15; 5F,p. 9; 10F, p.1). He was briefly hospitalized with a flare in late
2012, but this incident responded well to medication and his colitis was
under control by May 2013 (Exhibits 3F; 4F, p. 24; 7F, pp. 13, 18). Two
documented flares in 2013 were also resolved by medication, as was
one documented flare in 2014 (Exhibits 8F, pp. 48, 62; 10F, pp. 5, 9).
Before and after these incidents, the claimant had reported better bowel
movements and less pain (Exhibit 8F, pp. 4, 22, 62). Further, his colitis
was noted as being in remission as of June 2014 (Exhibit 8F, pp.6, 11,
13). The claimant has additionally been diagnosed with irritable bowel
syndrome, but his gastroenterologist noted that this condition may be
part of his ulcerative colitis (Exhibit 10F, p. 4). He was also diagnosed
with gastroesophageal reflux disease (GERD), but this appears to be
controlled with medication; the medical records indicate no current
treatment other than medication and no complaints by the claimant
associated with this condition (Exhibit 8F, p. 64).

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The claimant is also taking medication for diabetes mellitus, which
appears to be effective in controlling his blood sugar (Exhibits 3F, p. 4;
4F, p. 2; 7F, pp. 12-13). The condition was noted as poorly controlled
at the beginning of 2014, but the claimant’s physician also noted that
he had been off his diet and that his diabetes was improving overall
(Exhibit 8F, pp. 29, 31). His physician further noted that the steroids
the claimant was taking for his ulcerative colitis had a negative effect
on his blood sugar (Exhibit 10F, p. 11). He was seen by a podiatrist for
ankle edema related to his diabetes and received a shoe prescription,
though he reported no foot pain at the time (Exhibit 11F, pp. 1-2).
Additionally, an MRI scan of the claimant’s lumbar spine in 2011
showed L3-4 central canal stenosis and left L4-5 disc protrusion, and
he received an epidural injection for associated pain (Exhibits 1F; 9F,
p. 2). More recent diagnostic imaging shows mild degenerative disc
disease at L3-4 but no acute abnormality (Exhibit 7F, p. 44). While
physical examinations have shown periodic lumbar tenderness, with
radiating pain down the claimant’s leg, he has reported that both
physical therapy and his pain medication are effective (Exhibits 4F, p.
9; 7F, pp. 7, 33; 8F, p. 41; 9F, p. 1). Finally, the claimant’s severe
obesity is documented throughout the medical records, which list his
height as five feet, nine inches and weight as 267 pounds (Exhibit 8F,
p. 63). His body mass index (BMI) is thus 39.4 and the undersigned
accordingly considered his weight, including its impact on [his] ability
to ambulate and on his other body systems, within the residual
functional capacity stated above.
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 limited effects of
these symptoms are not entirely credible for the reasons explained in
this decision. In particular, the credibility of the claimant’s allegations
regarding the severity of his symptoms and limitations is diminished
because those allegations are greater than expected in light of the
objective evidence of record. The claimant admits that he stopped
working for non-medical reasons and indicated that he looked for work
when he first moved to California to live with his sister, but was simply
not offered a job. Moreover, the claimant admitted that his ulcerative
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colitis is in remission, which is also documented in the medical
evidence; while he has periodic flares, this condition appears to respond
well to medication. While he also testified that his IBS has gotten
worse, the medical evidence contains no corresponding increase in
complaints or treatment for this condition. Moreover, despite testifying
that physical therapy was not helping his back pain, he reported to his
treating physician in July 2014 that it was moderately effective.
In determining the residual functional capacity, the undersigned has
weighed all medical opinions of record. [Significant] weight is given
to medical expert John Morse, M.D., who reviewed the medical
evidence of record and testified at the hearing that the claimant’s
ulcerative colitis was controlled or in partial remission based on
medication and his diet, but concluded nonetheless that this condition
was severe enough to create some limitations. He additionally noted
that the claimant would experience limitations from his degenerative
disc disease. The limitations assessed by Dr. Morse are consistent with
those determined herein and are supported by the medical record as a
whole. Similarly, great weight is given to the State agency medical
consultant at reconsideration, who assessed similar limitations
(Exhibits 5A, pp 8-9; 6A, pp. 8-9). Less weight is given to the State
agency consultant at initial review, who assessed consistent exertional
limitations but did not [include] postural limitations to account for the
claimant’s severe impairments (Exhibits 1A, pp. 6-7; 2A, pp. 6-7).
However, this assessment was made in December 2012, and thus this
consultant was not able to review the subsequently submitted evidence.
The undersigned gives little weight to the third-party function reported
completed by Allyn Richards, the claimant’s sister (Exhibit 6E). In
determining the claimant’s residual functional capacity, the
undersigned considered the diagnoses, symptoms, and functional
limitations Ms. Richards reported. However, her statements essentially
mirror the claimant’s testimony and statements of record which, as
discussed above, the undersigned finds less than fully credible. The
undersigned further discounts the credibility of Ms. Richards’
statements because, to the extent her statements suggest the claimant
cannot work at the level of substantial gainful activity, they are not
consistent with the objective medical evidence discussed above, which
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demonstrates that the claimant is capable of work at the level
determined herein.
In sum, the above residual functional capacity assessment is supported
by the evidence as a whole. As discussed above, the claimant’s
subjective complaints are less than fully credible and the objective
medical evidence does not support the degree of her alleged symptom
severity and functional limitations. In addition, no treating or
examining medical source endorsed the degree of limitation alleged by
the claimant or assessed more restrictive functional limitations than
those determined in this decision. Thus, the residual functional
capacity determined in this decision reflects the claimant’s partially
credible subjective complaints while finding the maximum limitations
based on the clinical and objective evidence.
6. The claimant is capable of performing past relevant work as a
sorter pricer. This work does not require the performance of workrelated activities precluded by the claimant’s residual functional
capacity (20 CFR 404.1565 and 416.965).
Based on the claimant’s documented vocational background,
testimony, and earnings record, and on the vocational expert’s
testimony, the undersigned finds the claimant worked in the occupation
listed below within 15 years of the date of this decision, for a sufficient
length of time to learn and provide average performance, and at the
level of substantial gainful activity:
1. Sorter pricer, DOT 222.387-054, a light, skilled (SVP 5)
occupation as generally performed pursuant to the DOT, but
actually performed as medium work as described by the
claimant.
There are no discrepancies between the vocational testimony and the
information contained in the DOT, and the undersigned accepts her
testimony in accordance with SSR 00-4P.
In comparing the claimant’s residual functional capacity with the
physical and mental demands of his past relevant work, the undersigned
has determined the claimant is able to perform this past relevant work
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as it is generally performed. The description of the exertional
requirements of this job in the DOT is consistent with the residual
functional capacity determined herein.

1
2
3

7.
The claimant has not been under a disability, as defined in
the Social Security Act, from June 15, 2012, through the date of this
decision (20 CFR 404.1520(g) and 416.920(g)).

4
5
6

DECISION

7
Based on the application for a period of disability and disability
insurance benefits protectively filed on August 15, 2012, the claimant
is not disabled under sections 216(i) and 223(d) of the Social Security
Act.

8
9
10
11

Based on the application for supplemental security income protectively
filed on August 15, 2012, the claimant is not disabled under section
1614(a)(3)(A) of the Social Security Act.

12
13
14

(AR 25-32.)

15
16

III.
A.

DISCUSSION

The ALJ Did Not Err; Plaintiff is Not Entitled to Summary Judgment

17

In his MSJ, Plaintiff states two bases for his claim that the ALJ erred in his

18

disability determination. First, he contends the ALJ lacked substantial evidence to

19

support his RFC assessment. Second, he contends the ALJ erred by finding that

20

Plaintiff’s subjective testimony was not credible. Both of these claims, and the

21

relevant legal standards for each, are discussed below in this section followed by an

22

overall conclusion.

23
24

1. The ALJ’s RFC Assessment Was Based on Substantial Evidence
a. Legal Standard

25

Claimants are responsible for providing all evidence used to determine the

26

RFC. 20 C.F.R. § 404.1512(a). Correspondingly, the ALJ has the responsibility of
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1

developing a complete medical history and making a reasonable effort to help

2

obtain medical records before asking for a consultative examination by a state

3

agency medical consultant. See id. §§ 404.1512(a), 416.912(d)-(f).5 The “ALJ’s

4

duty to develop the record further is triggered only when there is ambiguous

5

evidence or when the record is inadequate to allow for proper evaluation of the

6

evidence.” McLeod v. Astrue, 640 F.3d 881, 885 (9th Cir. 2011). “‘The district

7

court may set aside a denial of benefits only if it is not supported by substantial

8

evidence or if it is based on legal error.’” Thomas v. Barnhart, 278 F.3d 947, 954

9

(9th Cir. 2002) (quoting Jamerson v. Chater, 112 F.3d 1064, 1066 (9th Cir. 1997));

10

see also 42 U.S.C. § 405(g). Substantial evidence “‘means such relevant evidence

11

as a reasonable mind might accept as adequate to support a conclusion.’” Valentine

12

v. Comm’r Soc. Sec. Admin., 574 F.3d 685, 690 (9th Cir. 2009) (quoting Desrosiers

13

v. Sec’y of Health & Human Servs., 846 F.2d 573, 576 (9th Cir. 1988)).

14

The ALJ will evaluate all medical opinions it receives in determining the

15

claimant’s RFC. 20 C.F.R. § 404.1527(c). A medical opinion is “a statement from

16

a medical source about what [claimants] can still do despite [their] impairments.”

17

Id. § 404.1527(a)(1). Generally, the ALJ gives more weight to opinions from

18

treating sources. Id. § 404.1527(c)(1), (c)(2). If the treating source’s opinion is

19

well supported “by medically acceptable clinical and laboratory diagnostic

20

techniques” and is not inconsistent with other evidence in the record, then the ALJ

21

can give it controlling weight. Id. § 404.1527(c)(2). In cases where a treating

22

source was not given controlling weight, non-treating, non-examining physicians

23

may provide substantial evidence to support the ALJ’s findings. Thomas, 278 F.3d

24

at 957. In determining how much weight to give medical opinions of non-treating

25
26

5

20 C.F.R. § 416.912 has been reformatted since the ALJ’s ruling and the current
corresponding sections are 20 C.F.R. § 416.912 (b)(1), (b)(2).
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1

physicians, the ALJ considers: (1) the extent of the medical examination; (2) how

2

much the opinion is supported and explained by evidence in the record; (3) how

3

consistent the medical opinion is with the record as a whole; (4) whether the opinion

4

comes from a specialist; and (5) other factors that support or contradict the medical

5

opinion. See 20 C.F.R. § 404.1527 (c)(1)-(6). The ALJ must incorporate evidence

6

from prior state agency medical consultants as appropriate and give weight

7

according to the standards stated above. Id. § 404.1513a(b)(1).6

8

In establishing a claimant’s RFC, the ALJ must assess all relevant medical

9

and non-medical evidence in addition to considering all of the claimant’s

10

impairments, including impairments categorized as non-severe.

11

§ 404.1545(a)(3), (e). While non-severe impairments alone may not limit an

12

individual’s ability to work significantly, when considered with other limitations,

13

they may be critical to the outcome of a claim. SSR 96-8p. An omission of a non-

14

severe impairment will not reverse the ALJ’s RFC assessment if the error was

15

harmless, i.e., the error is irrelevant to the ultimate disability conclusion. See Stout

16

v. Comm’r, Soc. Sec. Admin., 454 F.3d 1050, 1055 (9th Cir. 2006) (discussing when

17

ALJ’s error is harmless); see also Hurter v. Astrue, 465 Fed. Appx. 648, 652-53

18

(9th Cir. 2012) (holding that failure to include non-severe impairment with merger

19

evidentiary support in RFC evaluation was harmless error) (unpublished).

20

20 C.F.R.

b. Analysis

21

Because the Court can only set aside an ALJ’s denial of benefits if the ruling

22

lacks substantial evidence or is based on legal error, the Court’s task is to determine

23

whether substantial evidence supports the ALJ’s RFC findings. In doing so, the

24

Court keeps in mind that (1) “[s]ubstantial evidence means more than a scintilla but

25
26

6

State agency medical consultants are considered to be “highly qualified and experts
in Social Security disability evaluation.” 20 C.F.R. § 404.1513a(b)(1)
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less than a preponderance;” (2) “substantial evidence is relevant evidence which,

2

considering the record as a whole, a reasonable person might accept as adequate to

3

support a conclusion;” and (3) “where evidence is susceptible to more than one

4

rational interpretation, one of which supports the ALJ’s decision, the ALJ’s

5

conclusion must be upheld.” Thomas, 278 F.3d at 954 (internal quotations and

6

citations omitted). With this framework in mind, the ALJ’s RFC findings did not

7

lack substantial evidence.

8

i.

9

The ALJ Assigned Proper Weight to the Medical Source
Evidence

10

As an initial matter, the ALJ relied on four sources of testimonial evidence

11

in addition to Plaintiff’s medical record to support the RFC findings. He gave

12

significant weight to the testimony of medical expert Dr. Morse; great weight to the

13

state agency medical consultant, Dr. Mazuryk, who examined Plaintiff before his

14

reconsideration hearing; less weight to the initial state agency medical consultant,

15

Dr. Laiken; and little weight to the testimony of Plaintiff’s sister, Allyn Richards.7

16

(AR 31.) Because there was no opinion from a treating source in the record, such

17

a source was not given controlling weight. Therefore, Dr. Morse’s medical opinion,

18

as non-treating, non-examining, can serve as substantial evidence to support the

19
20
21
22
23
24
25
26

7

Richards’s report was given only little weight because it essentially mirrored
Plaintiff’s testimony which was determined not to be credible. (AR 31.) The ALJ’s
decision here was not erroneous. The ALJ found this report “essentially mirror[ed]”
the claimant’s testimony and found it was not credible for the same reasons as
Plaintiff’s testimony. Plaintiff’s credibility will be discussed in the following
subsection.
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ALJ’s findings.8 Thus, the ALJ met his burden by showing that substantial evidence

2

supported his RFC findings.

3

Regarding any potential error in the weight given to each source, the ALJ

4

appropriately weighed each opinion in determining the RFC according to the

5

standards described above.9 While Dr. Morse was a non-treating, non-examining

6

source, the ALJ did not err in giving his testimony significant weight. First, Dr.

7

Morse supported his opinions with evidence from the record. In the ALJ’s hearing,

8

Dr. Morse testified that he reviewed Plaintiff’s medical records, Exhibits 1-F

9

through 9-F, and based his conclusions on these documents.

(AR 57.)

In

10

determining the effect of both Plaintiff’s severe and non-severe impairments, Dr.

11

Morse cited the record on multiple occasions, referring to medical procedures,

12

treatments, symptoms, and progress reports in his evaluation. (AR 57-62.) Second,

13

Dr. Morse’s testimony appears consistent with the record as a whole, and Plaintiff

14

has not presented evidence that Dr. Morse’s opinions were inconsistent with the

15

record as a whole. Third, Dr. Morse is a board-certified internist and cardiovascular

16

specialist who has served as a medical expert for disability adjudication since 2003.

17
18

8

23

Dr. Morse opined: “I would think he could lift 10 pounds on a frequent basis, 20
pounds occasionally. He would be limited to standing and walking for six hours out
of an eight-hour day and sitting for six hours out of [an] eight-hour day with normal
breaks. His posturals would be limited to only occasional ramps and stairs. He
would avoid ladders, ropes or scaffolds altogether. Balancing, stooping, kneeling,
crouching and crawling are limited to occasional . . . . His posturals, certainly, would
avoid exposure to hazardous machinery and unprotected heights, and I’d limit that
to even moderate.” (AR 59-60.)

24

9

19
20
21
22

25
26

Again, the five factors used to weigh medical opinions are (1) the extent of the
medical examination, (2) how much the opinion is supported and explained by
evidence in the record, (3) how consistent the medical opinion is with the record as
a whole, (4) whether the opinion comes from a specialist, and (5) other factors that
support or contradict the medical opinion. See 20 C.F.R. § 404.1527 (c)(1)-(6).
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1

(AR 150-53.) Given these facts, it was appropriate for the ALJ to assign significant

2

weight to Dr. Morse’s medical opinion.

3

The ALJ appropriately gave great weight to Dr. Mazuryk’s opinion and less

4

weight to Dr. Laiken’s opinion, both of whom provided opinions similar to Dr.

5

Morse’s. Federal and state agency medical consultants are considered highly

6

qualified experts in Social Security disability evaluations.

7

§ 404.1513a(b)(1). Additionally, although both these physicians, unlike Dr. Morse,

8

had an opportunity to examine Plaintiff, they did not have an opportunity to

9

examine Plaintiff’s full medical record, which Dr. Morse had done. (See AR 70-

10

74, 91-97.) Therefore, the ALJ did not err in assigning their testimonies greater and

11

lesser weights, respectively. The fact that their opinions are consistent with Dr.

12

Morse’s opinions lends further support to the conclusion that the ALJ’s RFC

13

findings were based on substantial evidence. (See AR 72-73, 94.)

14

ii.

20 C.F.R.

The ALJ Did Not Err in Developing the Record

15

Plaintiff also argues that the ALJ’s failure to develop the record constitutes

16

error. (ECF No. 15 at 5-6.) He contends the ALJ should have acquired a medical

17

opinion from a treating source before making his RFC determination. Id. While it

18

is true that the ALJ has a responsibility to develop the record, Plaintiff has the initial

19

burden of providing the evidence necessary for the evaluation.

20

§ 404.1512(a), (b). After that initial burden is satisfied, the ALJ only has to develop

21

the record in cases where the evidence is either ambiguous or inadequate to evaluate

22

Plaintiff’s RFC. See McLeod, 634 F.3d at 520. Here, the medical record is

23

extensive, consisting of roughly fifty doctors’ visits and medical examinations

24

spanning over a decade. Similarly, the record is detailed and unambiguous about

25

the extent of Plaintiff’s medical conditions. Thus, the ALJ did not have a duty to

26

develop it further.

20 C.F.R.

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Even if the ALJ had a duty to develop the record further to obtain medical

2

opinions from treating sources, he only had a duty to use reasonable efforts to do

3

so.

4

instances, the ALJ satisfied this requirement by requesting further medical

5

documentation from treating sources. (AR 333-34, 352-56, 380-81, 392-93, 409-

6

10.) The lack of opinions from treating sources and the ALJ’s subsequent reliance

7

on medical experts does not constitute error.

20 C.F.R. § 404.1512(b)(1).

The record demonstrates that, in multiple

8

Plaintiff contends Orn v. Astrue, 495 F.3d 625 (9th Cir. 2007), requires that

9

the medical records alone should be treated as mere communications between health

10

care providers rather than evidence for disability determination purposes. (ECF No.

11

15 at 5-6.) Plaintiff argues, thus, that the medical records alone are inadequate and

12

require further development. (Id.) This argument mistakes the holding of Orn.

13

While it is true that the Ninth Circuit has held that “[t]he primary function of

14

medical records is to promote communication and record-keeping for health care

15

personnel -- not to provide evidence for disability determinations,” the court did not

16

hold that medical records are not but only that a medical condition need not be

17

present on every report so long as the record as a whole provides evidence of the

18

condition. Orn, 495 F.3d at 634. Here, all of the impairments used to evaluate

19

Plaintiff’s RFC, while not mentioned on every report, are well-documented in the

20

record as a whole.

21
22

iii.

The ALJ’s RFC Assessment
Substantial Evidence

Was

Based

on

23

Plaintiff next alleges that the ALJ’s RFC assessment was not based on

24

substantial evidence because the medical experts failed to properly consider all of

25

his impairments—specifically, the impact of his obesity, edema in his extremities,

26
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and severity of his pain.10 (ECF No. 15 at 6-7.) He contends that because the ALJ

2

must consider all of the claimant’s impairments, including impairments categorized

3

as non-severe, the ALJ’s failure to do so here was in error. See 20 C.F.R.

4

§ 404.1545(a)(3), (e). Although there is some evidence to suggest that the ALJ

5

failed to consider the full extent of Plaintiff’s impairments, none amount to error

6

that would require a reversal of the ALJ’s findings.

7

First, Dr. Morse’s testimony, which the ALJ accorded significant weight,

8

relied on Exhibits F1-F9, but Exhibits F10-F11 had not yet been submitted to the

9

record at the time of his testimony. (AR 39-40.) Therefore, Dr. Morse’s testimony

10

relied on an incomplete medical record, which is the reason the ALJ cited for

11

according Dr. Laiken’s testimony less authoritative weight. (AR 31.) Plaintiff

12

argues that, by the same rational, the ALJ, erred in giving Dr. Morse’s opinion

13

significant weight. However, the fact that Exhibits F10-F11 were not included in

14

Dr. Morse’s testimony at most constitutes harmless error because they would have

15

had no impact on Plaintiff’s disability determination. Exhibits F10-F11 cover the

16

same time period as—and do not contradict or add anything not already stated in—

17

Exhibits F1-F9. (See AR 536-43, 544-61, 562-64.) Additionally, while the ALJ

18

accorded significant weight to Dr. Morse’s testimony, the ALJ’s ultimate

19

determination was based on a complete evaluation of the record, including Exhibits

20

F10-F11. (AR 27.)

21

Second, Dr. Morse’s testimony failed to discuss Plaintiff’s obesity or edema

22

in his testimony. While Dr. Morse mentioned Plaintiff’s obesity in the context of

23

diabetic complications, he did not evaluate its impact independently as he did all

24
25
26

10

The severity of pain issue will be discussed in the following section as it concerns
the credibility of Plaintiff’s subjective testimony.
27
16-CV-1166-JLS(WVG)

1

other impairments. (See AR 57-62, 58.) Plaintiff is correct in stating, according to

2

Social Security Ruling 02-1P:

3
4
5
6
7
8
9

An assessment should also be made of the effect of the obesity
has upon the individual’s ability to perform routine movement
and necessary physical activity within the work environment.
Individuals with obesity may have problems with the ability to
sustain a function over time . . . RFC assessments must consider
an individual’s maximum remaining ability to do sustained work
activities in an ordinary work setting on a regular and continuing
basis.
Social Security Ruling 02-1p.

10

Similarly, Dr. Morse briefly discussed the pain in Plaintiff’s feet but did not

11

independently evaluate the impact of the edema on Plaintiff’s ability to function, as

12

he did the other impairments. (See AR 57-62, 61.)

13

The foregoing notwithstanding, however, an RFC finding need not explicitly

14

consider all impairments so long as all symptoms are considered in formulating the

15

RFC. Hurter v. Astrue, 465 Fed. Appx. 648, 652-53 (9th Cir. 2012) (unpublished);

16

see also McCoy v. Astrue, 648 F.3d 605, 615 (8th Cir. 2011) (holding ALJ did not

17

err for failing to make explicit certain non-exertional limitations in RFC); Skarbek

18

v. Barnhart, 390 F.3d 500, 504 (7th Cir. 2004) (holding ALJ did not err for failing

19

to explicitly consider claimant’s obesity); Ortiz v. Sec’y of Health and Human Servs.,

20

890 F.3d 520, 525 (1st Cir. 1989) (holding ALJ did not err by implicitly referencing

21

two of claimant’s impairments). Here both the edema and obesity were well-

22

documented in the record, and the fact that Dr. Morse references them in his

23

testimony means that he was aware of the symptoms. Dr. Morse also testified that

24

he “had an opportunity to review the evidence of the record,” and his assessment of

25

functional capability “consider[ed] all these conditions and the obesity.” (AR 57,

26
28
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1

59.) Therefore, the fact that Dr. Morse did not explicitly consider these impairments

2

does not affect the ALJ’s reliance on his testimony. 465 Fed. Appx. at 652-53.

3

iv.

4

Any Error in the ALJ’s RFC Assessment was
Harmless

5

Even if the Court finds the ALJ erred, any error due to Dr. Morse not explicitly

6

evaluating obesity and edema was harmless. Dr. Morse was asked directly to

7

consider the effect of Plaintiff’s obesity in his RFC recommendation. (AR 59.)

8

Therefore, even though Dr. Morse failed to address the obesity explicitly, he was

9

directed to include it in his assessment. Thus, any error caused by not being explicit

10

about the effects of the Plaintiff’s obesity and edema would not have impacted the

11

disability conclusion.

12

As to the edema in Plaintiff’s extremities, the medical records show that the

13

impairment is only periodic rather than chronic. The symptom appears only five

14

times throughout the entire medical record, while all other impairments appear

15

nearly continuously throughout each medical report. (AR 336, 414, 546, 549, 563.)

16

Thus, it may be reasoned that such an infrequent impairment would not affect the

17

ultimate disability conclusion. Additionally, Dr. Morse was asked to consider all

18

conditions in his assessment, and because the edema was included in the medical

19

records he was asked to review, it is logical that Dr. Morse included edema in his

20

overall assessment of Plaintiff’s functional capacity. (AR 59.)

21

Further, an error is harmless if it does not impact the ALJ’s ultimate disability

22

conclusion. Stout, 454 F.3d at 1055. Here, any error was harmless because it is

23

highly doubtful that it would have impacted the ALJ’s disability conclusion. Even

24

if Dr. Morse’s testimony did not expressly identify obesity and edema, it does not

25

follow that the ALJ’s ultimate disability conclusion would have differed. While the

26

ALJ accorded significant weight to Dr. Morse’s opinion, he did not give it
29
16-CV-1166-JLS(WVG)

1

controlling weight, but instead also gave weight to the opinions of Dr. Mazuryk and

2

Dr. Laiken. (AR 31.) Their opinions concur with Dr. Morse’s opinions on Plaintiff’s

3

RFC, and there is no evidence that there was an error in their opinions. And

4

importantly, both the edema and obesity are explicitly discussed in the ALJ’s ruling.

5

(AR 30.) Thus, the record as a whole demonstrates that even if there were an error

6

in Dr. Morse’s testimony, it would not have impacted the ALJ’s disability

7

conclusion, which did expressly include these impairments in its assessment

8

2.

9

Because, at step one, the ALJ found that Plaintiff had the medically-

10

determinable severe impairments11 and made no findings of malingering, the

11

Court’s task is to determine whether the ALJ’s partial adverse credibility finding,

12

with respect to the alleged severity of Plaintiff’s symptoms, is supported by

13

substantial evidence under the clear-and-convincing standard. In doing so, the

14

Court considers the basic analytical framework that (1) Plaintiff bears the burden of

15

showing that he suffers from any medically-determinable physical or mental

16

impairment; (2) such impairment must find support in the medical documentation;

17

and (3) Plaintiff’s unsupported statement of symptoms are an insufficient basis for

18

disability determination in his favor. 42 U.S.C. § 423(d)(3), (d)(5)(A); Batson v.

19

Comm’r, 359 F.3d 1190, 1193-94 (9th Cir. 2004). Given this framework, the ALJ

20

did not err in discounting Plaintiff’s testimony, and he provided specific, clear, and

21

convincing reasons why Plaintiff’s testimony about the extent of his symptoms was

22

not credible. And although, as explained below, the ALJ cited some erroneous

23

reasons, his citation to other valid reasons satisfied his duty to cite clear and

24

convincing reasons that found support in the record.

The ALJ Did Not Err in Rejecting Plaintiff’s Subjective Testimony

25
26

11

Ulcerative colitis, IBS, GERD, diabetes mellitus, degenerative disc disease, and
obesity.
30
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1

a. Legal Standard: Credibility Determinations

2

The ALJ is not “required to believe every allegation of disabling pain, or else

3

disability benefits would be available for the asking, a result plainly contrary to 42

4

U.S.C. § 423(d)(5)(A).” Fair v. Bowen, 885 F.2d 597, 603 (9th Cir. 1989). To

5

permit meaningful judicial review of the credibility determination, the ALJ must

6

“specify which testimony [he] finds not credible, and then provide clear and

7

convincing reasons supported by evidence in the record to support that credibility

8

determination.” Brown-Hunter v. Colvin, 806 F.3d 487, 488-89 (9th Cir. 2015).

9

“In assessing the credibility of a claimant’s testimony regarding subjective

10

pain or the intensity of symptoms, the ALJ engages in a two-step analysis.” Molina

11

v. Astrue, 674 F.3d 1104, 1112 (9th Cir. 2012). The ALJ must initially determine

12

whether there is “objective medical evidence of an underlying impairment which

13

could reasonably be expected to produce the pain or other symptoms alleged.” Id.

14

When an [ALJ] determines that a claimant for Social Security benefits
is not malingering and has provided objective medical evidence of an
underlying impairment which might reasonably produce the pain or
other symptoms [he or] she alleges, the ALJ may reject the claimant’s
testimony about the severity of those symptoms only by providing
specific, clear, and convincing reasons for doing so.

15
16
17
18
19

Brown-Hunter, 806 F.3d at 488-89. The ALJ may consider the factors listed in

20

Social Security Ruling 88-13, which include:

21
22
23
24

1. The nature, location, onset, duration, frequency, radiation, and
intensity of any pain; 2. Precipitating and aggravating factors (e.g.,
movement, activity, environmental conditions); 3. Type, dosage,
effectiveness, and adverse side-effects of any pain medication; 4.
Treatment, other than medication, for relief of pain; 5. Functional
restrictions; and 6. The claimant’s daily activities.

25
26

Burch v. Barnhart, 400 F.3d 676, 680 (9th Cir. 2005).
31
16-CV-1166-JLS(WVG)

1

Furthermore, even if one or more reasons listed by the ALJ are invalid, so

2

long as the ALJ provides some valid reasons, the ALJ’s credibility determination

3

will be upheld. Carmickle v. Comm’r, SSA, 533 F.3d 1155, 1162 (9th Cir. 2008)

4

(stating that an ALJ’s citation to erroneous reasons is harmless so long as the “ALJ’s

5

remaining reasoning and ultimate credibility determination were adequately

6

supported by substantial evidence in the record[]”).

7

b.

8

As an initial matter, the ALJ found that the ulcerative colitis, IBS, GERD,

9

diabetes mellitus, degenerative disc disease, and obesity were medically-

10

determinable severe impairments that the medical evidence supported. (AR 27-28.)

11

These findings found support in the medical documentation, which reflected

12

medical professionals’ concerns about Plaintiff’s conditions and ongoing treatments

13

to manage the symptoms of each. Thus, with respect to these impairments, Plaintiff

14

met his burden to show that he qualified for severe ailments, and the Record

15

supports the ALJ’s finding.

Analysis

16

Having found that Plaintiff qualified for the above stated impairments, the

17

ALJ then considered the credibility of Plaintiff’s testimony about the severity of the

18

impairments and their impact on his ability to perform any type of work. At that

19

step, the ALJ properly doubted Plaintiff’s credibility about the severity of his

20

ulcerative colitis and degenerative disc disease symptoms and their resulting life-

21

limiting consequences.

22

The ALJ did not find that Plaintiff completely lacked credibility as a witness,

23

but rather found that the degree or intensity of his credible symptoms were

24

inconsistent with the rest of his testimony and the Record. (AR 30.) The ALJ

25

reached this conclusion based upon: (1) the lack of objective medical evidence or

26

medical opinions that supported the severity of his testimony; (2) evidence that
32
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1

Plaintiff’s symptoms were improving; (3) evidence that Plaintiff’s testimony

2

contradicted medical opinions, in addition to no treating medical source that

3

endorsed a more restrictive RFC; and (4) evidence that Plaintiff stopped working

4

for non-medical reasons. (AR 30-31.) In providing these factors for his decision,

5

the ALJ cited specific, clear, and convincing reasons for partially discounting

6

Plaintiff’s credibility and testimony, and his consideration of these factors was

7

proper.

8
10

The Record Supports the ALJ’s Credibility Finding
Due to the Lack of Objective Medical Documentation
to Support Plaintiff’s Ulcerative Colitis Severity
Testimony

11

The Record supports the ALJ’s finding that Plaintiff’s impairments

12

reasonably caused his limitations but not to a disabling degree because the objective

13

medical documentation did not reflect the severity of Plaintiff’s self-reported

14

symptoms. As the ALJ explained, the medical evidence showed that Plaintiff

15

grossly overstated the effects of his ulcerative colitis and IBS, which he claimed

16

had worsened since 2012 despite the fact that the record shows that his ulcerative

17

colitis is in remission. (AR 54, 460.) He further claimed that these conditions

18

caused him bowel movements of at least two an hour on good days, which is

19

inconsistent with the medical record which shows that as of April 13, 2014, Plaintiff

20

had been having only between four and eight bowel movements per day. (AR 48,

21

552.) The ALJ, thus, gave clear and specific reasons for discounting the severity of

22

Plaintiff’s ulcerative colitis testimony and tied those reasons to the medical

23

evidence before him. Doing so was within the ALJ’s authority and in compliance

24

with the law in this Circuit. Morgan v. Comm’r, 169 F.3d 595, 600 (9th Cir. 1999)

25

(“Citing the conflict between Morgan’s testimony of subjective complaints and the

26

objective medical evidence in the record, and noting the ALJ’s personal

9

i.

33
16-CV-1166-JLS(WVG)

1

observations, the ALJ provided specific and substantial reasons that undermined

2

Morgan’s credibility.”)

3

ii.

4

The Record Does Not Support the ALJ’s Credibility
Findings on Plaintiff’s Back Pain Severity Testimony

5

The ALJ also found that the record showed Plaintiff had “mild degenerative

6

disc disease at L3-4 but with no acute abnormality . . . examinations [showing]

7

periodic lumbar tenderness, with radiating pain down the claimant’s leg . . . .” (AR

8

30.)

9

incapacitation occurring on multiple occasions. (AR 43-44.) While the ALJ

10

acknowledged the records’ notations regarding Plaintiff’s back pain, he partially

11

discredited Plaintiff’s testimony about the severity of the back pain. (AR 30.) The

12

ALJ determined that Plaintiff’s testimony about the degree of pain caused by the

13

degenerative disc disease was contradicted by the objective medical reports, which

14

showed the pain was being treated by physical therapy and medication. (Id.)

Plaintiff testified that the severity of this pain had caused episodes of

15

The record, however, provides mixed reports on the extent to which

16

Plaintiff’s back pain was sufficiently managed by physical therapy and medication.

17

In at least five instances in the record, the medical reports show Plaintiff fell during

18

medical examinations, and on July 12, 2013, Plaintiff was given instructions “not

19

to stand for long periods of time.” (AR 460, 467, 497, 518, 525.) Additionally,

20

while Plaintiff was managing his back pain with Norco, the dosage was increased

21

on June 16, 2014. (AR 466.) While it is also true that the July 2014 physical therapy

22

report showed moderate improvements with his lower back, an earlier report in

23

January 2014 is consistent with Plaintiff’s testimony where he claimed the therapy

24

“didn’t work.” (AR 44, 485, 536.) This evidence suggests that Plaintiff continues

25

to suffer from severe symptoms despite treatment.

26
34
16-CV-1166-JLS(WVG)

1

Upon considering the totality of the records, which contained numerous

2

reports of the degree of the severity of Plaintiff’s back pain, there is in sufficient

3

evidence to show Plaintiff’s testimony is inconsistent with the record or is

4

unsupported by objective medical testimony.12

5

iii.

6

The Record Supports the ALJ’s Credibility Finding
Based on Plaintiff’s Improving Symptoms

7

In addition to the objective medical evidence that undermined some of

8

Plaintiff’s testimony, the ALJ called into question Plaintiff’s testimony based on

9

evidence that his symptoms were improving. (AR 30-31.) The ALJ did not err here

10

because he did not base his credibility determination solely on the lack of, or

11

inconsistencies in the, objective medical evidence in the Record.13

12

The Record shows that in addition to the lack of medical evidence, the ALJ

13

also expressly found that Plaintiff’s improvements further informed his credibility

14

determination:

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

12

Plaintiff does not bear the burden of corroborating the severity of his pain with
objective medical evidence but only has the burden of producing medical evidence
of an underlying impairment that could reasonably produce the alleged pain.
Lingenfelter v. Astrue, 504 F.3d 1028, 1036 (9th Cir. 2007) (citing Bunnell v.
Sullivan, 947 F.2d 341, 344) (9th Cir. 1991) (en banc)). Here the ALJ had already
found that Plaintiff has produced evidence of an underlying impairment. A failure
to provide objective medical evidence of the pain cannot be used as the sole basis
for credibility determination. Moisa v. Barnhart, 367 F.3d 882, 885 (9th Cir. 2004)
(assigning error where ALJ based its credibility determination solely on the lack of
objective medical evidence).
13

Though it is true that “[i]n evaluating the credibility of pain testimony after a
claimant produces objective medical evidence of an underlying impairment, an ALJ
may not reject a claimant’s subjective complaints based solely on a lack of medical
evidence to fully corroborate the alleged severity of pain,” nonetheless “it is a factor
that the ALJ can consider in his credibility analysis.” Burch, 400 F.3d at 676, 680,
681; cf. Moisa v. Barnhart, 367 F.3d at 885.
35
16-CV-1166-JLS(WVG)

1
2
3
4

Moreover, the claimant admitted that his ulcerative colitis is in
remission, which is also documented in the medical evidence; while he
has periodic flares, this condition appears to respond well to medication
. . . . Moreover, despite testifying that physical therapy was not helping
his back pain, he reported to his treating physician in July 2014 that it
was moderately effective.

5
6

(AR 32-33.) The ALJ discounted Plaintiff’s credibility because he found these

7

improvements were inconsistent with Plaintiff’s allegations of total disability.

8

Medication, treatments, or other methods of alleviating symptoms are factors

9

taken into account when evaluating the credibility of Plaintiff’s testimony as to the

10

severity of his symptoms. 20 C.F.R § 404.1529(c)(3)(iv), (v). In particular, the

11

new steroid treatment administered at UC San Diego Healthcare had placed his

12

ulcerative colitis in remission. (AR 548.) This was a substantial improvement to a

13

severe condition, the prior treatment of which had otherwise only managed the

14

symptoms for over a decade. While, as discussed above, the medical record is less

15

convincing as to the successful management of Plaintiff’s back pain symptoms, the

16

notes from the medical records in January 2014 when compared to the physical

17

therapy report in July 2014 at least suggest moderate improvements and call into

18

question Plaintiff’s testimony that “it didn’t work.” (AR 44, 485, 536.) These

19

improvements, combined with the other inconsistencies stated above, constitute

20

specific reasons for discrediting Plaintiff’s testimony. Thus, the ALJ’s finding that

21

Plaintiff’s symptoms had improved was a permissible finding based on the Record.

22
23
24
25
26

iv.

The ALJ’s Adverse Credibility Finding Based on the
Lack of Treating Medical Source Opinion Was Not
Erroneous

The ALJ also discredited Plaintiff’s subjective testimony because there was
no treating medical source to support his testimony of a more restrictive RFC. (AR
30-31.) The ALJ did not err in doing so.
36
16-CV-1166-JLS(WVG)

1

Inconsistencies between medical opinions and a plaintiff’s subjective

2

testimony can serve as a valid basis for the ALJ to discredit a plaintiff’s testimony.

3

20 C.F.R. § 404.1529(c)(1); Carmickle, 533 F.3d at 1161 (holding conflict between

4

medical opinion and claimant’s testimony is a valid credibility reason). However,

5

where medical opinions are contradictory, inconsistencies between a plaintiff’s

6

testimony and that of only some of the medical opinions is not a valid justification

7

for discrediting a plaintiff’s testimony. See Tonapetyan v. Halter, 242 F.3d 1144,

8

1147-48 (9th Cir. 2001).

9

Here, all of the opinions of the medical experts contradict Plaintiff’s

10

testimony that he is only able to perform sedentary work. (AR 31.) In particular,

11

Plaintiff testified that he could only stand for ten minutes, sit for a half hour without

12

stretching, and walk no more than a block, while the medical experts opined that he

13

could stand, walk, or sit for six hours out of an eight hour day. (AR 46, 51, 59, 72-

14

73, 94.) In light of these contradictions, the absence of a treating medical opinion

15

that supports a more restrictive RFC is a specific reason backed by substantial

16

evidence by which the ALJ can discredit Plaintiff’s testimony.14

17

///

18

///

19

///

20

///

21
22
23
24
25
26

14

In his motion, Plaintiff argues that the ALJ is responsible for developing the record
further to obtain medical opinions from treating sources if that is a reason the ALJ
gives to discredit Plaintiff’s testimony. (MSJ ECF No. 15 6:1-4.) As discussed
above, the medical record was adequate to allow the ALJ to make a determination,
and thus the ALJ did not have a duty to develop it further. Likewise the ALJ had
already used reasonable efforts without success to secure a treating physicians
medical opinion. See, supra, Section III(A)(1)(b)(ii) (“The ALJ Did Not Err in
Developing the Record”).
37
16-CV-1166-JLS(WVG)

1
3

Plaintiff’s Voluntary Work Stoppage Supports the
ALJ’s Adverse Credibility Finding, But the ALJ
Failed to Develop the Record With Respect to
Plaintiff’s Ability to Find New Work

4

The ALJ additionally found that Plaintiff’s voluntary work stoppage for non-

5

medical reasons was another reason to discredit his testimony. (AR 30.) During

6

the hearing, Plaintiff admitted that he voluntarily stopped working in order to move

7

to California, but claimed that he would have stopped work anyway for medical

8

reasons. (AR 40-41.) Prior relevant employment information, including reasons

9

for unemployment, is a valid justification by which the ALJ can question the

10

credibility of Plaintiff’s testimony. See 20 C.F.R. § 404.1529(c)(3); Bruton v.

11

Massanari, 268 F.3d 824, 828 (9th Cir. 2001) (ALJ considered fact plaintiff was

12

laid off in credibility determination); Drouin v. Sullivan, 966 F.2d 1255, 1258 (9th

13

Cir. 1992) (ALJ considered fact plaintiff lost past two jobs for causes unrelated to

14

pain in credibility determination).

2

v.

15

However, Plaintiff claims that the ALJ had a duty to develop the record

16

further to determine how his impairments have affected his ability to find new work.

17

(ECF No. 15 at 10-11.) The ALJ has a “‘duty to fully and fairly develop the record

18

and to assure that the claimant’s interest are considered,’” Smolen, 80 F.3d at 1288

19

(quoting Brown, 713 F.3d at 443), but the “ALJ’s duty to develop the record further

20

is triggered only when there is ambiguous evidence or when the record is inadequate

21

to allow for proper evaluation of the evidence.” McLeod, 640 F. 3d at 885.

22

Here, the Record contains inadequate evidence about whether Plaintiff would

23

have had to leave work for medical reasons had he not left due to his relocation and

24

about how his impairments has affected his job search. Plaintiff testified that a

25

California Goodwill location decline to hire him despite his work history because

26

he “could never do the work,” but the Record contains no other evidence regarding
38
16-CV-1166-JLS(WVG)

1

his prior work performance. (AR 52.) Due to the need to develop the record further,

2

the ALJ did not properly cite Plaintiff’s unemployment for non-medical reasons as

3

a reason to discount Plaintiff’s credibility. Accordingly, this was not a clear and

4

convincing reason supported by evidence that supports the ALJ’s credibility

5

finding.15

6

c.

7

In sum, Plaintiff contends that once he produced medical evidence of an

8

underlying medical condition, the ALJ “could not discredit the testimony as to the

9

severity of symptoms merely because they are unsupported by objective medical

10

evidence.” (ECF No. 15 at 11-12.) However, as explained above, the ALJ did not

11

discount the full breadth of Plaintiff’s testimony based solely on the lack of

12

objective medical evidence. The ALJ here articulated additional specific reasons

13

for the credibility determination.

14

convincing and find support from substantial evidence in the Record. While some

15

of the reasons were invalid, so long as he provided some valid reasons, his

16

credibility determination will be upheld. The substantial evidence standard is not

17

particularly demanding, and the ALJ has satisfied it here. See Thomas, 278 F.3d

18

947, 954 (9th Cir. 2002) (“Substantial evidence means more than a scintilla but less

Conclusion

(AR 30-31.)

Those reasons were clear,

19
20
21
22
23
24
25
26

15

Defendant also argues that in addition to stopping work for non-medical reasons,
Plaintiff also was able to work at Goodwill with the same symptoms as he has now
prior to claiming disability benefits. (ECF No. 16 at 8.) Plaintiff is correct in stating
that the Court should not consider this additional rationale because it does not appear
in the ALJ’s original findings. “Long-standing principles of administrative law
require us to review the ALJ’s decision based on the reasoning and factual findings
offered by the ALJ—not post hoc rationalizations that attempt to intuit what the
adjudicator may have been thinking.” Bray v. Comm’r, SSA, 554 F.3d 1219, 1225
(9th Cir. 2009).
39
16-CV-1166-JLS(WVG)

1

than a preponderance.”) Accordingly, his credibility finding was not erroneous.

2

Carmickle, 533 F.3d at 1162-63.

3

Plaintiff has not shown that the ALJ’s RFC determination was not based on

4

substantial evidence. Similarly, Plaintiff has also not shown that the ALJ erred in

5

determining his subjective testimony was not credible. For the foregoing reasons,

6

the Court recommends that Plaintiff’s MSJ be DENIED.

7

B.

Defendant is Entitled to Summary Judgment

8

In addition to Plaintiff’s summary judgment motion, Defendant’s cross-

9

motion for summary judgment is pending before the Court. Defendant contends that

10

the ALJ’s RFC was supported by substantial evidence and the ALJ’s credibility

11

determination was based on specific reasons based on substantial, clear and

12

convincing evidence in the Record.

13

As discussed above, the ALJ supported his RFC determination with

14

substantial evidence from three medical opinions, and the record amply supports the

15

ALJ’s findings.

16

disability, the ALJ did not specifically identify which portions of his testimony were

17

credible, but rather discounted the credibility of all “statements concerning the

18

intensity, persistence, and limiting effects of [Plaintiff’s] symptoms.” As discussed

19

above, the ALJ provided clear and convincing reasons for discounting these portions

20

of the testimony. Contrary to Plaintiff’s argument, the ALJ properly evaluated,

21

among other things, his treatment and examination records and the objective medical

22

testimony. The Court recommends that Defendant’s Cross-MSJ be GRANTED.

23

///

24

///

25

///

26

///

With respect to Plaintiff’s credibility and claims of greater

40
16-CV-1166-JLS(WVG)

1

IV.

CONCLUSION

2

Based on the foregoing reasons, the ALJ did not err in evaluating Plaintiff’s

3

RFC. Nor did the ALJ err in discounting Plaintiff’s testimony. Accordingly, this

4

Court RECOMMENDS that Plaintiff’s MSJ be DENIED and that Defendant’s

5

Cross-MSJ be GRANTED. This Report and Recommendation is submitted to the

6

United States District Judge assigned to this case, pursuant to the provisions of 28

7

U.S.C § 636(b)(1) and Federal Rule of Civil Procedure 72(b).

8

IT IS ORDERED that no later than July 12, 2017, any party to this action

9

may file written objection with the Court and serve a copy on all parties. The

10

document shall be captioned “Objections to Report and Recommendation.” The

11

parties are advised that failure to file objections within the specific time may waive

12

the right to raise those objections on the appeal.

13

IT IS FURTHER ORDERED that any reply to the objections shall be filed

14

with the court and served on all parties no later than July 19, 2017.

15

IT IS SO ORDERED.

16

DATED: June 28, 2017

17
18
19
20
21
22
23
24
25
26
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