Purdy v. Berryhill

Filing 29

ORDER AFFIRMING DECISION OF ADMINISTRATIVE LAW JUDGE re 1 - Signed by JUDGE DERRICK K. WATSON on 1/17/2018. "For the foregoing reasons, the Court finds that the Commissioner's final decision applied the correct legal stand ards, was supported by substantial evidence, and is in accordance with the law. Accordingly, the Court affirms the July 20, 2015 decision. The Clerk of Court is directed to close the case." (emt, )CERTIFICAT E OF SERVICEParticipants registered to receive electronic notifications received this document electronically at the e-mail address listed on the Notice of Electronic Filing (NEF). Participants not registered to receive electronic notifications were served by first class mail on the date of this docket entry

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAI‘I

CV. NO. 17-00071 DKW-KSC

MARY KUUIPO PURDY,
Plaintiff,

ORDER AFFIRMING DECISION
OF ADMINISTRATIVE LAW
JUDGE

vs.
NANCY A. BERRYHILL, Acting
Commissioner of Social Security,
Defendant.

INTRODUCTION
Plaintiff Mary Ku‘uipo Purdy brings this action under 42 U.S.C. § 405(g),
challenging a final decision of the Acting Commissioner of Social Security, Nancy
A. Berryhill, which denied her application for disability insurance benefits and
supplemental security income based upon a finding that she was not disabled.
Purdy asks this Court to review whether the Administrative Law Judge (“ALJ”)
properly weighed the medical opinions of the treating, examining, and
non-examining physicians in determining impairments, as part of her assessment of
Purdy’s residual functional capacity. After carefully reviewing the record, the
Court concludes that the ALJ correctly determined that Purdy was not disabled at
Steps 4 and 5 of the five-step sequential evaluation process. The ALJ considered,

weighed, and addressed all of the medical source opinions in the record and
provided appropriate reasons supporting her findings and resolving the conflicting
opinions and medical evidence. Because the ALJ’s decision was supported by
substantial evidence and was not legally erroneous, the Court affirms the ALJ’s
July 20, 2015 decision.
BACKGROUND
I.

Factual Background
Purdy filed applications for disability insurance benefits and supplemental

security income on August 8, 2013. Admin. R. (“AR”) 164–72. Purdy last
worked as an area supervisor for a gas station and alleged disability from October
30, 2010, due to neuropathy and numbness in her feet, diabetes, depression, sciatic
nerve damage, back injury, and chronic kidney failure. AR 187–89. Her claims
were denied twice—once on January 22, 2014 and again upon reconsideration on
May 12, 2014. AR 51–52, 75–76, 109–12, 114–119. On June 18, 2014, Plaintiff
filed a request for a hearing. AR 120. ALJ Nancy Lisewski conducted the hearing
on June 11, 2015, at which Purdy and Vocational Expert (“VE”) Alice L. Thomas
testified. AR 35–60 (6/11/15 Hrg. Tr.). In her July 20, 2015 decision, the ALJ
employed the five-step sequential disability evaluation process to determine whether

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Purdy was disabled within the meaning of the Social Security Act. See 20 C.F.R.
§ 404.1520(a)(4).1
The ALJ found that Plaintiff had the following severe impairments: diabetes
type II, neuropathy, chronic back pain, hypertension, status post knee surgery,
obesity, and chronic kidney disease. AR 23–24. The ALJ ultimately determined
that Purdy had “the residual functional capacity to perform light work” and “was
capable of performing past relevant work” as an area supervisor, or alternatively that
she “is also capable of making a successful adjustment to other work.” AR 28–29.

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The claimant has the burden of proof for Steps 1 through 4, and the Commissioner has the burden
of proof at Step 5. Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999). The five steps of the
inquiry are:
1. Is claimant presently working in a substantially gainful activity? If so, then
the claimant is not disabled within the meaning of the Social Security Act. If not,
proceed to Step 2. 20 C.F.R. §§ 404.1520(b), 416.920(b).
2. Is the claimant’s impairment severe? If so, proceed to Step 3. If not, then the
claimant is not disabled. 20 C.F.R. §§ 404.1520(c), 416.920(c).
3. Does the impairment “meet or equal” one of a list of specific impairments
described in 20 C.F.R. Part 220, Appendix 1? If so, then the claimant is disabled.
If not, proceed to Step 4. 20 C.F.R. §§ 404.1520(d), 416.920(d).
4. Is the claimant able to do any work that he or she has done in the past? If so,
then the claimant is not disabled. If not, proceed to Step 5. 20 C.F.R.
§§ 404.1520(e), 416.920(e).
5. Is the claimant able to do any other work? If so, then the claimant is not
disabled. If not, then the claimant is disabled. 20 C.F.R. §§ 404.1520(f),
416.920(f).
See Bustamante v. Massanari, 262 F.3d 949, 954 (9th Cir. 2001).
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Consequently, she concluded that Purdy was “not disabled” under Sections 216(i),
223(d), or 1614(a)(3)(A) of the Social Security Act. AR 29.
Purdy disputes the findings relating to her impairments and the subsequent
residual functional capacity (“RFC”) finding that her limitations (resulting from
those severe impairments) were not extensive enough to qualify her for benefits.
Thus, the Court first discusses the evidence relevant to the RFC finding, and then
turns to the RFC finding itself.
A.

The Medical Evidence Before the ALJ

The ALJ considered medical source opinions from Purdy’s treating
physicians, a consultative psychological examiner, and several non-treating
physicians, in addition to Purdy’s medical records.
1.

Treating Physicians Heslinga And Horn

Purdy began seeing Dan Heslinga, M.D. in January 2011. AR 867. Dr.
Heslinga completed a Residual Functional Capacity Questionnaire and a Mental
Capacity Assessment, AR 867–74, opining that Purdy’s symptoms—“hand cramps
and pain, pain in both feet, low back pain, fatigue”—were “frequently” severe
enough to interfere with the attention and concentration required to perform simple
work-related tasks. AR 867. He checked boxes indicating that Purdy would need
a job which permits “shifting positions at will from sitting, standing, or walking,”
and that she would “need to take unscheduled breaks during an 8-hour work day”
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and “15 min[ute] breaks . . . every hour.” AR 867. Dr. Heslinga also checked
boxes to indicate that Purdy: (1) can occasionally lift and carry ten pounds or less;
(2) cannot lift or carry 20 pounds or more; (3) has limitations in doing repetitive
reaching, handling or fingering; (4) could stand and walk only two hours per day and
45 minutes at one time, and sit for six hours per day and 45 minutes at a time; and
(5) is not physically capable of working an eight-hour day, five days a week, on a
sustained basis. AR 867–68. He also checked a box indicating that Purdy was
likely to be absent from work more than four times a month as a result of her
impairments or treatments. AR 868.
The mental capacity evaluation completed by Dr. Heslinga noted “moderate”
limitations in handling detailed instructions, performing activities within a schedule,
and sustaining an ordinary routine without special supervision. AR 871. He
checked off “marked” limitations in completing a “normal workday” and “normal
workweek,” and ability to perform at a consistent pace with a standard number and
length of rest periods, and selected the box indicating that Purdy would likely have
four or more absences per month. AR 872. Dr. Heslinga checked “moderate”
limitations in accepting instructions and responding appropriately to criticism and
getting along with coworkers, AR 872, and “marked” limitations in traveling to
unfamiliar places. AR 873. He indicated that Purdy can manage benefits in her
own best interest. AR 873.
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Purdy’s treating psychologist, Mary Horn, Psy.D. completed a Report of
Treating Mental Health Provider, dated February 2014, indicating a diagnosis of
“major depressive disorder, moderate to severe.” AR 679. Dr. Horn’s responses
to the functional analysis questions opined that Purdy would “not regularly” be able
to maintain “regular job attendance and persist[] at repetitive work tasks on a
consistent basis under ordinary supervision.” AR 681. She responded “not sure”
to the question: “Is the patient capable of adapting/coping with a low-demand,
entry-level job?” AR 682. She opined that Purdy could manage any benefits.
AR 682. Dr. Horn noted that Purdy’s visits and treatment were sporadic. AR 679.
Dr. Horn completed a second Report of Treating Mental Health Provider,
dated March 28, 2014, again reporting Purdy’s history of depression, “trauma, [and]
stressful life events.” AR 684. She reported Purdy’s cognitive status as “normal,”
affective status as “depressed,” noted that her compliance with treatment was
“sporadic” and that her response to treatment was “good when she is able to come.”
AR 685. In response to the question, “Is the patient capable of maintaining regular
job attendance and persisting at simple repetitive work tasks on a consistent basis
under ordinary supervision,” Dr. Horn answered, “no.” AR 686. On this second
report, Dr. Horn responded “yes” to the question: “Is the patient capable of
adapting/coping with a low-demand, entry-level job?” AR 687.

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2.

Examining Psychologist Luke

On January 4, 2014, Stanley Luke, Ph.D. conducted an examination for the
State of Hawaii Department of Human Services (“State Agency”). AR 516–19.
As consultative psychological examiner, Dr. Luke diagnosed Purdy with depression
and generalized anxiety disorder. Purdy self-reported a history of depression, grief,
and anxiety, and indicated that she had been seeing Dr. Horn in the past and desired
to restart sessions. AR 516–17. Purdy reported that Dr. Heslinga prescribed
Wellbutrin and Alprazolam for her depression and anxiety, and she complained of
panic attacks and poor sleep. AR 516. She told Dr. Luke that she had been
admitted to the emergency room frequently due to chronic kidney problems and
related medical conditions. AR 516. Purdy explained that she last worked in
2010, managing five gas stations, and was currently homeschooling her seven year
old son. AR 516.
Dr. Luke conducted several assessments. IQ testing showed that Purdy had a
full-scale IQ of 89, verbal IQ of 93, and performance IQ of 87. AR 516–17. Dr.
Luke opined that Plaintiff was depressed, but readily engaged during the interview,
and put forth good effort on testing, although she “struggled with her stress and
anxiety.” AR 517. Dr. Luke observed that Purdy was polite and cooperative, and
able to complete all tasks, but presented as sad and anxious, distressed about an

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inability to work, worried about finances, and depressed due to the death of her
mother. AR 517.
With respect to her functional assessment, Dr. Luke noted Purdy’s report that
she was able to do her own chores, hygiene, and cook without assistance,
homeschool her son, and enjoy interests, including watching TV, the outdoors,
walking, swimming, and family activities. AR 518. Dr. Luke opined that Plaintiff
could understand and remember simple work instructions; maintain regular job
attendance and perform a simple work routine on a sustained basis under ordinary
supervision; get along with supervisors and coworkers; and was able to adapt and
cope with the usual demands of a low-stress job. AR 518. He observed that she
“likely could benefit from psychotherapy and dealing with grief and other issues. . . .
Many of her difficulties appear to be medical in nature.” AR 518. Dr. Luke also
opined that Purdy seemed capable of managing her own benefits and finances. AR
518.
3.

Non-Examining Physicians Fujikami and Shibuya, and
Non-Examining Psychologists Lam and Fo

The State Agency medical consultants, Raymond Fujikami, M.D. and D.
Lam, Ph.D., conducted an RFC assessment by reviewing Purdy’s medical records.
On January 22, 2014, Dr. Fujikami determined that Purdy had a “light” RFC,
specifically finding that she could: (1) occasionally lift and carry 20 pounds;

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(2) frequently lift and carry 10 pounds; (3) stand and walk for six hours in an
eight-hour workday; and (4) sit for six hours in an eight-hour workday. AR 59–61.
He opined that she could occasionally climb ladders, ropes, and scaffolds, and
perform other postural activities frequently; but should avoid concentrated exposure
to hazards and machinery due to polyneuropathy in her feet. AR 60–61. Dr.
Fujikami noted that although Purdy had neuropathy in her feet, she showed a normal
gait during all examinations. AR 61.
State agency psychologist D. Lam, Ph.D. also reviewed Purdy’s historical
medical records and Dr. Luke’s report from the January 4, 2014 consultative
examination. AR 56–58. Dr. Lam opined that Purdy would have “mild”
restrictions in activities of daily living, and “mild” difficulties in social functioning
and concentration, persistence, or pace. AR 57. Dr. Lam noted that Plaintiff had
no treatment for many months, but continued to get prescriptions from her primary
care provider (Dr. Heslinga), homeschooled her son, socialized with friends, went
on family outings, exercised regularly, and cooked and cleaned without assistance.
AR 58. Dr. Lam noted that Dr. Luke’s examination showed adequate appearance,
good effort on testing, good eye contact, that Purdy was sad and anxious, but her
activities of daily living (“ADLs”) were “generally intact mentally,” and she showed
no significant concentration impairment. AR 58. Dr. Lam agreed with a
“non-severe” finding with respect to her mental impairments, AR 56, and
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determined that her “[l]imitations are primarily physical.” AR 58. Purdy’s initial
claims were accordingly denied on January 22, 2014. AR 51–52.
Upon Purdy’s request for reconsideration, State Agency medical consultants
Neil Shibuya, M.D. and W. Fo, Ph.D. reviewed the prior assessment and Purdy’s
medical records. AR 75–106. They considered additional evidence, including
Purdy’s January 2014 hospitalizations for complications due to chronic kidney
issues, her reports of worsening right-side neuropathy, and additional lab results.
AR 83. On May 8, 2014, Dr. Shibuya conducted another RFC assessment, and
came to the same conclusion as Dr. Fujikami, with some additional restrictions. Dr.
Shibuya opined that Plaintiff could lift and carry up to 20 pounds occasionally and
10 pounds frequently; stand and walk six hours and sit six hours per day; and
perform postural activities occasionally. AR 87–88. Dr. Shibuya affirmed the
prior RFC of “light work,” concluding that the earlier determination regarding
physical impairment was “substantively and technically correct given the objective
findings.” AR 83.
State Agency psychologist W. Fo, Ph.D. reviewed Purdy’s records in May
2014 and assigned “great weight” to Dr. Luke’s report, noting that Dr. Luke’s
opinion was supported by objective tests and clinical findings. AR 83. Dr. Fo
observed that Dr. Horn’s “somewhat more restrictive opinion of current work
capacity” was not consistent with the “clinical and lay source evidence and is from a
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source that may not be entirely objective,” and accordingly, Dr. Fo did not afford it
“much weight.” AR 83–84. He noted that, at the reconsideration phase, Purdy did
not report any worsening of her mental impairment and the updated medical
evidence did not reveal other significant changes, nor did Purdy report any
worsening in her “conditions or limits on a mental basis.” AR 85. Dr. Fo affirmed
that Purdy would have “mild” restrictions in activities of daily living, and “mild”
difficulties in social functioning and concentration, persistence, or pace, and
likewise affirmed the prior finding of non-severe mental impairment. AR 84–85.
B.

The ALJ’s RFC Finding

In her July 20, 2015 decision, the ALJ considered and weighed the medical
evidence and concluded that although Purdy has a non-severe adjustment disorder
with mild restrictions and difficulties based upon the assessments of the State
Agency medical consultants, the limitations are no more than “mild,” and Purdy
does not have a severe mental impairment. AR 24. The ALJ afforded substantial
weight to the opinions of the State Agency medical consultants “because they are
consistent with the medical evidence.” AR 24. The ALJ explained that she did not
give as much weight to the opinions of Dr. Horn, including that Purdy had
significant mental functional limitations, because “they are not supported by the
treatment record.” AR 24. Likewise, the ALJ did not give any weight to Dr.
Heslinga’s mental functional assessment because he is not a mental health specialist
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and because although he recommended psychotherapy, there was no evidence of
regular formal mental health treatment such as counseling. AR 24. Overall,
reviewing Purdy’s primary care progress notes, the ALJ found that “Dr. Heslinga’s
mental medical source statement is not supported by the treatment record.” AR 25.
Considering Purdy’s symptoms, their limiting effects, and the credibility of
statements regarding the same in light of the objective medical evidence, the ALJ
found that Purdy had the residual functional capacity to perform light work, except
that she can only occasionally operate foot controls, climb, kneel, crouch, crawl,
stoop, and balance. AR 25. The ALJ did not fully credit Purdy’s testimony
regarding her physical symptoms in light of the evidence that she was
homeschooling her son, she “walked daily and swam regularly,” and her admissions
that “she had few problems performing personal care activities, she was able to
perform household chores, and she could grocery shop,” all of which led the ALJ to
conclude that Purdy’s “activities of daily living are not consistent with her
allegations of disabling pain and symptoms, and her activities of daily living do not
justify a more restrictive residual functional capacity (such as a limitation to
sedentary work).” AR 26.2

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The ALJ also relied upon Dr. Horn’s notes indicating that Purdy reported being terminated from
her job at the gas station for cause, “an inconsistency that lessens her credibility. The evidence
[also] indicates that the claimant had skipped sessions and was not ta[]king as much of her
medication because she felt like she did not need them, including being irregular with insulin (e.g.,
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In determining Purdy’s RFC, the ALJ gave greater weight to the medical
opinions of the non-treating physicians, rather than to those of Dr. Heslinga and Dr.
Horn. AR 23–26. She found the RFC assessment conducted upon reconsideration
by Dr. Shibuya and Dr. Fo compelling, acknowledging that although it was based
“on nonexamining relationships, [it nevertheless was entitled to greater weight]
because [it] adequately consider[ed] the claimant’s subjective complaints, and [is]
consistent with the treatment record.” AR 26.
At Step 4, the ALJ found Purdy “not disabled” because she can perform some
of her past relevant work as an Area Supervisor. AR 28. Based on the ALJ’s RFC
determination, the ALJ concluded at Step Five that Plaintiff is not disabled because
there were jobs that existed in significant numbers in the national economy that she
could perform. AR 28. Alternatively, even if Purdy had been “limited to simple,
routine work (assuming her adjustment disorder is severe and justifies [such] mental
functional limitations) and thus could not perform her skilled past relevant work at
Step Four,” the ALJ found that “there are a significant number of other jobs existing
in the national economy at the unskilled level that she would also be able to perform
(rendering her also ‘not disabled’ at Step Five).” AR 28. The ALJ then accepted
the VE’s uncontradicted testimony that Purdy is capable of making a successful

Exhibits 2F/102; 21F), but this treatment non-compliance lessens her credibility as well.” AR 26.
See also AR 883 (2/7/12 Dr. Horn Intake Form). Purdy does not challenge the ALJ’s credibility
determinations on appeal.
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adjustment to other work that exists in significant numbers in the national economy,
including photocopy machine operator, cleaner and/or housekeeper, or operator for
a power screw driver. AR 28–29. In light of these findings, the ALJ concluded
that Purdy has “not been under a disability” from October 30, 2010 through the date
of the decision. AR 29.
II.

Procedural Background
The Appeals Council rejected Purdy’s request to review the July 20, 2015

ALJ decision, which became the final decision of the Commissioner on December
14, 2016. AR 1–6.
On February 17, 2017, Purdy filed her Complaint seeking judicial review of
the decision. Compl., Dkt. No. 1. On appeal, Purdy contends that the ALJ’s RFC
finding was the product of legal error and was unsupported by substantial evidence
because she failed to credit the medical opinions of the treating medical providers
Heslinga and Horn or to include appropriate mental limitations in determining the
RFC. Purdy asks the Court to reverse the final decision of the ALJ that she is not
disabled and remand for payment of benefits or for a new administrative hearing.
See Opening Br. at 27.
STANDARD OF REVIEW
Congress has provided a limited scope of judicial review of the
Commissioner’s decision to deny benefits under the Social Security Act. See 42
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U.S.C. § 405(g).3 In reviewing findings of fact with respect to such determinations,
the court must uphold the Commissioner’s decision, made through an ALJ, “unless
it is based on legal error or is not supported by substantial evidence.” Ryan v.
Comm’r of Soc. Sec., 528 F.3d 1194, 1198 (9th Cir. 2008). “Substantial evidence is
more than a mere scintilla but less than a preponderance.” Id. (quoting Bayliss v.
Barnhart, 427 F.3d 1211, 1214 n.1 (9th Cir. 2005)). Stated differently,
“[s]ubstantial evidence means such relevant evidence as a reasonable mind might
accept as adequate to support a conclusion.” Burch v. Barnhart, 400 F.3d 676, 679
(9th Cir. 2005) (citing Magallanes v. Bowen, 881 F.2d 747, 750 (9th Cir. 1989))
(quotation marks omitted). “Where evidence is susceptible to more than one
rational interpretation, it is the ALJ’s conclusion that must be upheld.” Id. at 679;
see also Treichler v. Comm’r of Soc. Sec. Admin., 775 F.3d 1090, 1098 (9th Cir.
2014) (“[Courts] leave it to the ALJ to determine credibility, resolve conflicts in the
testimony, and resolve ambiguities in the record.”) (citations omitted).
Finally, the Court may not reverse an ALJ’s decision on account of an error
that is harmless. See Stout v. Comm’r, Soc. Sec. Admin., 454 F.3d 1050, 1055–56
(9th Cir. 2006). “[T]he burden of showing that an error is harmful normally falls
upon the party attacking the agency’s determination.” Molina v. Astrue, 674 F.3d

3

42 U.S.C. § 1383(c)(3) incorporates the judicial review standards of 42 U.S.C. § 405(g), making
them applicable to claims for supplemental security income. See Flynn v. Berryhill, 2018 WL
379012, at *1 n.2 (D. Haw. Jan. 11, 2018).
15

1104, 1111 (9th Cir. 2012) (citation omitted). In making this assessment, the Court
“look[s] at the record as a whole to determine whether the error alters the outcome of
the case.” Id. at 1115. And “the more serious the ALJ’s error, the more difficult it
should be to show the error was harmless.” Marsh v. Colvin, 792 F.3d 1170, 1173
(9th Cir. 2015). This rule reflects how “[the Ninth Circuit’s] precedents have been
cautious about when harmless error should be found.” Id.
DISCUSSION
The Social Security Act authorizes payment of Title II disability insurance
benefits and Title XVI supplemental security income to individuals who have an
“inability to engage in any substantial gainful activity by reason of any medically
determinable physical or mental impairment which can be expected to result in death
or which has lasted or can be expected to last for a continuous period of not less than
12 months.” 42 U.S.C. § 423(d)(1)(A) (Title II disability insurance benefits);
accord § 1382c(a)(3)(A) (Title XVI supplemental security income). An individual
is disabled only if her impairments are of such severity that she is unable to do her
previous work, and cannot, considering her age, education, and work experience,
engage in any other substantial gainful activity existing in the national economy.
See, e.g., id. § 423(d)(2)(A).
Purdy raises the following issues on appeal: (1) the ALJ failed to properly
weigh and evaluate the opinions of treating physicians Dr. Heslinga and Dr. Horn;
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and (2) the ALJ failed to properly consider her severe and/or non-severe mental
limitations in the RFC. The Court addresses each issue below, and finding no error,
affirms the ALJ’s decision.
I.

The ALJ Appropriately Evaluated The Medical Opinion Evidence
Purdy contends that the ALJ’s RFC determination was erroneous because it

did not properly weigh and evaluate the medical opinions of her treating providers.
The ALJ gave greater weight to the medical opinions of the examining and
non-treating physicians, rather than to those of Dr. Heslinga and Dr. Horn,
explaining, in part, that:
Initially, the State Agency medical consultants concluded that
the claimant could perform light work with generally frequent
postural limitations (Exhibits 3A; 4A). I give some weight, but
not great weight, to these physical residual functional capacity
assessments, however, because they are not based on the most
recent medical evidence and do not adequately consider the
claimant’s subjective complaints.
Upon reconsideration, however, the State Agency medical
consultants again concluded that the claimant could perform
light work, but this time with only occasional postural
limitations as well as limited pushing and/or pulling in the lower
extremities - i.e., use of foot controls (Exhibits 7A; 8A). I give
great weight to these physical residual functional capacity
assessments, even though they are based on nonexamining
relationships, because they adequately consider the claimant’s
subjective complaints, and they are consistent with the treatment
record.

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AR 26. The ALJ gave less weight to the opinions of Dr. Heslinga and Dr. Horn,
principally because their opinions were not supported by their own progress notes or
other objective medical evidence:
Treating source Dr. Heslinga stated on March 20, 2014 that the
claimant would need unscheduled breaks, she would not be able
to stand and/or walk more than 2 hours total in an 8-hour
workday with a sit/stand option, she would not be able to
frequently lift even less than 10 pounds, and she would not be
physically capable of working an 8 hour day, 5 days a week on a
sustained basis (Exhibit 17F), which is akin to
less-than-sedentary work. The progress notes do not, however,
support this degree of functional limitation.
****
Some of the treating source assessments seem like advocacy,
rather than supported by the treatment notes. For example, Dr.
Horn’s aforementioned mental medical source statements
(Exhibits 6F; 7F; 20F) are not supported by the treatment notes.
As discussed above, Dr. Heslinga gave both disabling mental
and physical limitations (Exhibits 17F; 18F). The claimant has
not had very frequent treatment, which is another indication that
her functional limitations are not as significant as alleged. The
medical evidence does not establish greater functional
limitations beyond those adopted above for any 12-consecutive
month period (e.g., Exhibits 1l F/4; 14F).
In sum, I find that the objective medical evidence and the
subjective evidence support the residual functional capacity
adopted above.
AR 26–27. As explained below, the Court finds no error in the ALJ’s weighing and
evaluation of the medical source opinions.

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A.

Legal Principles For Weighing Medical Opinions

The Ninth Circuit has established a hierarchy for weighing medical opinions
and resolving conflicts. Generally, “[t]here are three types of medical opinions in
social security cases: those from treating physicians, examining physicians, and
non-examining physicians.” Valentine v. Comm’r of Soc. Sec. Admin., 574 F.3d
685, 692 (9th Cir. 2009). When assessing medical opinions, “the opinion of a
treating physician must be given more weight than the opinion of an examining
physician, and the opinion of an examining physician must be afforded more weight
than the opinion of a reviewing physician.” Ghanim v. Colvin, 763 F.3d 1154, 1160
(9th Cir. 2014).
In cases such as this, “[w]here a treating or examining physician’s opinion is
contradicted by another doctor, the ‘Commissioner must determine credibility and
resolve the conflict.’” Valentine, 574 F.3d at 692 (quoting Thomas v. Barnhart,
278 F.3d 947, 956–57 (9th Cir. 2002)). When rejecting “a treating or examining
doctor’s opinion [that] is contradicted by another doctor’s opinion,” an ALJ must
provide “specific and legitimate reasons that are supported by substantial evidence.”
Bayliss v. Barnhart, 427 F.3d 1211, 1216 (9th Cir. 2005); see also Burrell v. Colvin,
775 F.3d 1133, 1137 (9th Cir. 2014).
When resolving this conflict, “the contrary opinion of a non-examining
medical expert does not alone constitute a specific, legitimate reason for rejecting a
19

treating or examining physician’s opinion.” Tonapetyan v. Halter, 242 F.3d 1144,
1149 (9th Cir. 2001). A contrary opinion can, however, “constitute substantial
evidence when it is consistent with other independent evidence in the record.” Id.;
see also Thomas, 278 F.3d at 957 (“The opinions of non-treating or non-examining
physicians may also serve as substantial evidence when the opinions are consistent
with independent clinical findings or other evidence in the record.”).
An ALJ can meet this burden “by setting out a detailed and thorough
summary of the facts and conflicting clinical evidence, stating [the ALJ’s]
interpretation thereof, and making findings.” Tommasetti v. Astrue, 533 F.3d 1035,
1041 (9th Cir. 2008) (finding specific and legitimate reasons for rejecting treating
physician’s opinion where the ALJ stated that the assessment largely reflected the
claimant’s self-reported pain, which the ALJ found was not credible). “[A]n ALJ
errs when he rejects a medical opinion or assigns it little weight while doing nothing
more than ignoring it, asserting without explanation that another medical opinion is
more persuasive, or criticizing it with boilerplate language that fails to offer a
substantive basis for his conclusion.” Garrison v. Colvin, 759 F.3d 995, 1012–13
(9th Cir. 2014) (affirming that ALJ failed to offer specific and legitimate reasons
where he largely ignored medical treatment and opinion evidence).
With this framework, the Court turns to the ALJ’s weighing of the conflicting
medical source opinions and concludes that the ALJ’s reasons for discounting
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Purdy’s treating physicians’ opinions were “specific and legitimate” and are
supported by substantial evidence in the record.
B.

The ALJ Properly Considered Dr. Heslinga’s Opinion

The ALJ found that the opinion of treating physician Dr. Heslinga and, in
particular, his mental functional assessment, was not supported by the objective
medical evidence. The ALJ instead afforded “great weight” to Dr. Shibuya’s
physical RFC assessment and to the opinion of Dr. Luke, the consultative examining
psychologist. Because the opinions of the State Agency medical consultants relied
upon by the ALJ were consistent with independent clinical evidence and the ALJ’s
own observations, it was not error to afford greater weight to the examining and
non-examining medical provider opinions rather than to Dr. Heslinga’s opinion.
Each of the opinions relied upon by the ALJ constituted substantial evidence, which
was consistent with the record, and which therefore justified assigning significant
weight to their conclusions. See Thomas, 278 F.3d at (“[t]he opinions of
non-treating or non-examining physicians may also serve as substantial evidence
when the opinions are consistent with independent clinical findings or other
evidence in the record”); Tonapetyan, 242 F.3d at 1149 (9th Cir. 2001) (examining
source’s opinion may constitute substantial evidence where based upon independent
examination of claimant).

21

Dr. Heslinga’s physical RFC assessment was a check-the-box form, which the
ALJ considered and found was not supported by the independent clinical record,
including Dr. Heslinga’s own progress notes. AR 26–27. The ALJ therefore did
not err by affording less weight to Heslinga’s opinions, given that they were “brief,
conclusory, and inadequately supported by clinical findings.” Thomas, 278 F.3d at
957; see also Crane v. Shalala, 76 F.3d 251, 253 (9th Cir. 1996) (ALJ permissibly
rejected psychological evaluations “because they were check-off reports that did not
contain any explanation of the bases of their conclusions”); De Guzman v. Astrue,
343 F. App’x 201, 209 (9th Cir. 2009) (ALJ was “free to reject” doctor’s check-off
report that did not explain basis for conclusions); Hernandez v. Colvin, 2014 WL
1800408, at *9–10 (C.D. Cal. May 6, 2014) (ALJ reasonably accorded little weight
to medical examiner’s RFC where “assessments were brief and conclusory,
consisting merely of checkmarks and brief responses, with no clinical or diagnostic
evidence noted to support her findings.”); see also Bray v. Comm’r of Soc. Sec.
Admin., 554 F.3d 1219, 1228 (9th Cir. 2009) (rejecting a medical opinion that is
inconsistent with clinical findings).
The ALJ, for instance, thoroughly reviewed Purdy’s medical history and
found, in part, as follows with respect to Dr. Heslinga’s recommendations:
Diet and exercise were suggested (e.g., Exhibits 2F/23; 8F/10;
15F/3), which is conservative treatment (as opposed to kidney
dialysis or a kidney transplant) that indicates that the claimant’s
22

kidney impairment was not as significant as alleged. Further,
an examination indicated that the claimant had no diabetic
retinopathy (Exhibit 16F/2). The claimant was hospitalized a
few days in January 2014 due to kidney complications (e.g.,
Exhibits 4F/59-96; 14F), but there was no evidence to justify
additional functional limitations beyond those adopted above.
Although progress notes have indicated that the claimant had
pain in her feet and she had calcaneal spurring, she wore slippers
and had no foot sores (e.g., Exhibits 1F/10; 2F/126, 128; 4F/34;
5F/8; 9F/5), despite recommendation for special shoes (Exhibit
10F/6). This further indicates that the claimant’s diabetes and
kidney impairment are not as significant as alleged, and the
limitations adopted above (including to only occasional
operation of foot controls) fully addresses these impairments.
An electromyogram indicated sensorimotor polyneuropathy
(Exhibit 5F/11, 15), but the limitations to lifting and/or carrying
at the light level of exertion and to only occasional operation of
foot controls fully addresses the claimant’s diabetes. Further,
despite the claimant’s clinical obesity, she was able to rise and sit
without difficulty (Exhibit 5F/8). The claimant complained of
back pain, but it was controlled (e.g., Exhibit 2F/98, 133, 211),
and progress notes . . . generally indicate normal gait and station
(e.g., Exhibits 2F; 11F; 12F/3; 19F/5; 21F/8), which does not
support a limitation to sedentary work. I find that the claimant’s
clinical obesity (SSR 02-lp) and back pain do not justify
additional functional limitations [beyond] those adopted above.
AR 27.
The ALJ clearly considered and evaluated Dr. Heslinga’s opinion, but found
it was inconsistent with his own progress notes and independent clinical records.
This was not error. The Ninth Circuit has held that “a conflict between treatment
notes and a treating provider’s opinions may constitute an adequate reason to
discredit the opinions of a treating physician or another treating provider.”
23

Ghanim, 763 F.3d at 1161; see also Thomas, 278 F.3d at 957 (“The ALJ need not
accept the opinion of any physician, including a treating physician, if that opinion is
. . . inadequately supported by clinical findings.”); Batson v. Comm’r Soc. Sec.
Admin., 359 F.3d 1190, 1199 (9th Cir. 2004) (affirming ALJ’s decision to afford
treating physicians’ opinions only minimal evidentiary weight where those opinions
were in the form of checklists, were not supported by objective medical evidence,
were contradicted by other statements and assessments of the claimant’s medical
condition, and were based on the claimant’s subjective descriptions of pain);
Valentine, 574 F.3d 685, 692–93 (9th Cir. 2009) (holding that a conflict with
treatment notes is a specific and legitimate reason to reject a treating physician’s
opinion); cf. Parvon v. Colvin, 2016 WL 1047992, at *7 (D. Haw. Mar. 11, 2016)
(“[W]here the evidence may reasonably support more than one interpretation, [the
Court] may not substitute [its] judgment for that of the Commissioner. Because
[the treating physician’s] treatment notes can reasonably be read not to support the
more serious findings indicated in his opinion, the Court will not disturb the ALJ’s
finding on this basis.”) (citation and quotation marks omitted).
Moreover, the ALJ noted that Purdy’s “conservative treatment” was
inconsistent with Dr. Heslinga’s opinion and did not support additional restrictions.
AR 27. “[E]vidence of ‘conservative treatment’ is sufficient to discount a
claimant’s testimony regarding severity of an impairment.” Parra v. Astrue, 481
24

F.3d 742, 750–51 (9th Cir. 2007) (citing Johnson v. Shalala, 60 F.3d 1428, 1434
(9th Cir. 1995)); see also Rollins v. Massanari, 261 F.3d 853, 857 (9th Cir. 2001)
(ALJ did not err by rejecting treating doctor’s recommendations as being
implausible and inconsistent with the “prescribed [] conservative course of
treatment,” and “not supported by any findings made by any doctor,” or claimant’s
testimony about daily activities). Purdy’s conservative treatment is, however,
consistent with Dr. Heslinga’s frequent observations that she had normal gait and
station, intact insight and judgment, and her medical history. AR 747, 756–58, 794,
803. The ALJ did not err in affording little weight to Dr. Heslinga’s contrary
opinion regarding her disabling pain that would require her to be absent from work
more than four times per month. See AR 26–27.
Nor did the ALJ err in discounting Dr. Heslinga’s mental functional
assessment and giving greater weight to those of the State Agency specialists,
including Dr. Luke. The ALJ acknowledged that “although Dr. Heslinga is an
acceptable medical source (SSR-06-03p) who may render opinions on mental
impairment, Dr. Heslinga is not a mental health specialist. . . . Dr. Heslinga in fact
indicated that the claimant’s adjustment disorder with mixed features had improved,
and it was managed with medication.” AR 24. See Molina, 674 F.3d at 1112 (ALJ
did not err in discounting treating source opinion that was inconsistent with that of
examining psychiatrist “who specialized in the relevant field of psychiatry, and
25

whose opinion was therefore entitled to greater weight”); see also Holohan v.
Massanari, 246 F.3d 1195, 1202 (9th Cir. 2001) (“[T]he regulations give more
weight to . . . the opinions of specialists concerning matters relating to their specialty
over that of nonspecialists.”); Smolen v. Chater, 80 F.3d 1273, 1285 (9th Cir. 1996)
(holding that the ALJ should have given greater weight to a physician with the
expertise that was most relevant to the patient’s allegedly disabling condition).
In short, the ALJ sufficiently justified her reliance on the medical and mental
opinions of the five State Agency physicians and psychologists as “consistent with
independent clinical findings or other evidence in the record.” Thomas, 278 F.3d at
957. And in doing so, the ALJ provided the “specific and legitimate reasons” why
Dr. Heslinga’s opinions were entitled to less weight, despite his treating physician
status. Bayliss, 427 F.3d at 1216.
C.

The ALJ Properly Considered Dr. Horn’s Opinion

Purdy also faults the ALJ for improperly discounting Dr. Horn’s opinions
regarding her mental health history and impairments. Dr. Horn “reported that from
February 2012 to February 2014,” Purdy had “moderate to severe major depressive
disorder with significant mental functional limitations (Exhibits 6F; 7F; 20F).” AR
24. According to Dr. Horn, these limitations interfered with Purdy’s activities of
daily living “a lot.” AR 679–88.

26

The ALJ gave “little weight to Dr. Horn’s medical source statements,
however, because they are not supported by the treatment record,” including her
own. AR 24, 27; Ghanim, 763 F.3d at 1161 (A conflict “between treatment notes
and a treating provider’s opinions may constitute an adequate reason to discredit the
opinions of a treating physician or another treating provider.”). For instance,
Purdy’s own disability report and the reports of several other providers
demonstrated few limitations on Purdy’s activities of daily living—she
homeschooled her son, cooked, washed clothes, exercised, cared for her own
personal hygiene, and did the grocery shopping for the family. AR 213–220; AR
42; AR 747. According to the ALJ, Dr. Horn appeared to have been reliant on
Purdy’s subjective complaints and “self-report” of her inability to work that were
not credible, given the objective evidence of the extent of her independent
functioning. AR 679; Fair v. Bowen, 885 F.2d 597, 602–03 (9th Cir. 1989); Butler
v. Colvin, 2016 WL 6802477, at *12 (D. Haw. Nov. 16, 2016) (“The ALJ may
discredit a treating physician’s opinion that is premised solely on a claimant’s own
report”); Molina, 674 F.3d at 1113 (citing Morgan, 169 F.3d at 600)).
Further, while opining on Purdy’s debilitated state, Dr. Horn’s treatment
records reflect a “normal” cognitive status. AR 295–461, 679–688, 735–851. The
treatment records are consistent with the opinion of Dr. Luke. The ALJ properly
relied on the findings of the consultative examining psychologist and the State
27

Agency medical doctors, which were based on objective clinical findings. Thus,
the ALJ rejected Dr. Horn’s opinion for specific and legitimate reasons supported by
substantial evidence. Hensley v. Colvin, 600 Fed. Appx. 526, 527 (9th Cir. 2015).
Additionally, Dr. Horn’s records reflect Purdy’s “sporadic” treatment history,
“(Exhibit 7F/2), which lessens her credibility (SSR 96-7p).” AR 24. Such a
history is reflective of conditions that were neither as severe nor pervasive as those
asserted by Purdy, and by Dr. Horn, in support of Purdy’s benefits application.
In sum, the ALJ acted in accordance with her responsibility to determine
whether the objective medical evidence supported Purdy’s subjective allegations.
In doing so, she gave specific, legitimate reasons for affording greater weight to
particular opinions over others, and her findings were not in error.
II.

The ALJ’s RFC Finding Was Supported By Substantial Evidence
Purdy next argues that her mental health impairments “should have triggered

a severity finding and appropriate limitations in the residual functional capacity
determination,” Opening Br. at 25, and that her “mental health problems required
non-exertional mental limitations in the residual functional capacity determination,”
id. at 24. The ALJ concluded that Purdy had no severe mental impairments and
therefore did not include any mental limitations in the RFC determination of light
work. She found that Purdy had a non-severe adjustment disorder and included no
mental limitations based upon the State Agency medical consultants’ conclusions
28

that Purdy had “mild” restrictions on activities of daily living; “mild” difficulties
maintaining social functioning and maintaining concentration, persistence and pace;
and no repeated episodes of decompensation of extended duration. AR 24. Purdy
argues that, even assuming the lack of severe mental impairment, her medical
history “clearly requires some mental limitation in the residual functional capacity
determination due to Plaintiff’s longstanding history of mental impairment.”
Opening Br. at 26–27. Her assertions fail for several reasons.
First, the ALJ, who is responsible for determining credibility, thoroughly
reviewed Purdy’s medical records and observed her demeanor at the hearing.
According to the ALJ, the “medical evidence does not support the allegations of the
claimant and her spouse that she has panic attacks, is afraid of crowds, and does not
handle stress well.” AR 25. The ALJ observed that Purdy “did not display any
obvious mental or physical problems over the phone (Exhibit 1E/2), which also is
some indication that her functional limitations are not as significant as alleged.”
AR 26. Purdy does not challenge these uncontradicted credibility determinations
on appeal. See also Treichler, 775 F.3d at 1098 (“[Courts] leave it to the ALJ to
determine credibility, resolve conflicts in the testimony, and resolve ambiguities in
the record.”) (citations omitted).

29

Second, although she found that Purdy had no severe mental impairments and
no mental limitations were warranted, the ALJ nonetheless determined, in the
alternative, that Purdy was not disabled at Step 5 even “assuming her adjustment
disorder is severe and justifies [a] mental functional limitation[.]” AR 28
(emphasis added). That is, despite her determination that Purdy had the residual
functional capacity to perform light work—except that she could only occasionally
operate foot controls, climb, kneel, crouch, stoop, and balance—the ALJ also added
an additional limitation of “simple, routine work” to the RFC. The ALJ inquired of
the VE at the hearing whether Purdy would be able to perform past relevant work at
the unskilled level, and the VE provided three alternative examples of jobs that
existed in significant numbers in the national economy.4 AR 48–49. With the

4

Specifically, the ALJ recounted as follows—
If the claimant had the residual functional capacity to perform the full range of light
work, a finding of “not disabled” would be directed by Medical-Vocational Rule
202.21, but her ability to perform all or substantially all of the requirements of this
level of work has been impeded by additional limitations adopted above. Further,
as discussed above, in this alternative, the claimant is also limited to simple routine
unskilled work.
Therefore, I also asked the vocational expert whether jobs exist in the national
economy for an individual with the claimant’s age, education, work experience,
and residual functional capacity. The vocational expert testified that, given all of
these factors, the individual would be able to perform the requirements of
representative occupations such as the following:
1. Photocopy machine operator, DOT #207.685-014, unskilled SVP 2, light level
of exertion, with 25,800 jobs in the national economy;

30

additional limitation of “simple, routine work” to the “light work” RFC
determination, the ALJ resolved that:
Based on the testimony of the vocational expert, therefore, I
conclude in the alternative that, considering the claimant’s age,
education, work experience, and residual functional capacity,
she is also capable of making a successful adjustment to other
work that exists in significant numbers in the national economy.
A finding of “not disabled” is therefore also appropriate under
the framework of Medical-Vocational Rule 202.21 (SSR 83-14)
at Step Five.
AR 29. Accordingly, Purdy’s argument that her mental impairment—whether
severe or non-severe—required additional limitations in the residual functional
capacity determination misses the mark to the extent that the ALJ did, in fact,
include additional alternative limitations, including “simple routine unskilled
work.” AR 28.
Finally, insofar as Purdy asserts that the ALJ was required to include mental
limitations as part of her RFC determination, she fails to demonstrate legal error by
the ALJ. Under Ninth Circuit precedent, the ALJ is under no obligation to include
in the RFC assessment any limitations she finds at Steps 2 and 3. See, e.g., Bray,

2. Cleaner housekeeping, DOT #323.687-014, unskilled SVP 2, light with
242,700 national jobs; and
3. Operator for a power screw driver, DOT #699.685-026, unskilled SVP 2, light,
with 63,800 national jobs.
AR 28–29.
31

554 F.3d at 1228–29 (finding that ALJ properly accounted for claimant’s disorder in
the residual functional capacity assessment and VE hypothetical, despite the fact
that neither of these fully captured the severe impairment determined at Step 2);
Israel v. Astrue, 494 Fed. Appx. 794, 796 (9th Cir. 2012) (rejecting claimant’s
contention that the ALJ erred by not adequately including his Step 3 findings in the
RFC finding and VE hypothetical and stating, “[t]he limitations identified in step 3
. . . are not an RFC assessment but are used to rate the severity of mental
impairment(s) at steps 2 and 3. . . [t]he ALJ must consider the step-3 limitations
along with all of the relevant evidence in the case record . . . when forming the
RFC”) (emphasis in original) (internal quotation marks and citations omitted);
Stubbs-Danielson v. Astrue, 539 F.3d 1169 (9th Cir. 2008) (holding that “an ALJ’s
assessment of a claimant adequately captures restrictions related to concentration,
persistence, or pace where the assessment is consistent with restrictions identified in
the medical testimony”) (citations omitted).
Here, the ALJ permissibly drew on the “mild” limitations identified in the
medical opinions of the State Agency medical consultants when determining
Purdy’s RFC. AR 24, 28. Dr. Luke opined that Purdy was “capable of
understanding and remembering simple work instructions,” and of “maintaining
regular job attendance and performing a simple work routine on a sustained basis
under ordinary supervision.” AR 518. He also found her “capable of
32

adapting/coping with the usual demands of a low-stress job.” AR 518. As
discussed previously, the ALJ permissibly accorded the mental assessments of Dr.
Horn and Dr. Heslinga little or no weight, the ALJ reviewed all of the relevant
evidence in the case record, and made an assessment that was consistent with the
restrictions identified in the objective medical evidence. See Israel, 494 Fed. Appx.
at 796 (citing Stubbs-Danielson, 539 F.3d at 1174); see also Parvon v. Colvin, 2016
WL 1047992, at *14 (D. Haw. Mar. 11, 2016) (finding “that the ALJ did not commit
legal error in declining to include in his residual functional capacity assessment and
VE hypothetical certain restrictions from steps two and three,” and rejecting
plaintiff’s argument that “because the ALJ assessed Plaintiff’s depression as
‘severe’ at step two, his residual functional capacity finding and VE hypothetical
should have included correspondingly severe mental limitations,” because “[p]er the
agency’s regulations and Ninth Circuit case law, the ALJ was not required to
conform his residual functional capacity assessment and VE hypothetical with the
limitations identified in the earlier steps”). Because the ALJ relied on the medical
opinions of examining psychologist Dr. Luke and the State Agency medical
consultants, and did not fail to consider all of the evidence in the record, the ALJ did
not err in failing to include additional mental restrictions. See Israel, 494 Fed.
Appx. at 796.

33

In short, because the RFC and hypothetical questions contained credible
limitations supported by the record evidence, the ALJ did not err.
CONCLUSION
For the foregoing reasons, the Court finds that the Commissioner’s final
decision applied the correct legal standards, was supported by substantial evidence,
and is in accordance with the law. Accordingly, the Court affirms the July 20, 2015
decision. The Clerk of Court is directed to close the case.
IT IS SO ORDERED.
DATED: January 17, 2018 at Honolulu, Hawai‘i.

Purdy v. Berryhill; CV 17-00071 DKW-KSC; ORDER AFFIRMING DECISION OF
ADMINISTRATIVE LAW JUDGE

34