Harvey v. Astrue

Filing 17

MEMORANDUM DECISION AND ORDER The Commissioner's decision finding that the Petitioner is not disabled within the meaning of the Social Security Act is AFFIRMED. The Petition for Review (Dkt. 1 ) is DISMISSED. Signed by Judge Candy W Dale. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by jm)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF IDAHO

VESTA HARVEY, as Surviving Spouse
of LEONARD HARVEY, Deceased,
Case No. 1:10-cv-00408-CWD
Petitioner,
MEMORANDUM DECISION AND
ORDER

v.
MICHAEL J. ASTRUE,
Commissioner of Social Security
Administration,
Respondent.

INTRODUCTION
Currently pending before the Court for its consideration is Vesta Harvey’s, as
surviving spouse of Leonard Harvey, Petition for Review (Dkt. 1) of the Respondent’s
denial of social security benefits, filed on November 23, 2010. The Court has reviewed
the Petition for Review and the Answer, the parties’ memoranda, and the administrative
record (“AR”), and for the reasons that follow, will affirm the decision of the
Commissioner.

MEMORANDUM DECISION AND ORDER - 1

PROCEDURAL AND FACTUAL HISTORY
Claimant Leonard Harvey filed an application for Disability Insurance Benefits
and Supplemental Security Income on June 11, 2007. This application was denied initially
and on reconsideration, and a hearing was held on July 24, 2009, before Administrative
Law Judge (“ALJ”) Michael A. Kilroy. ALJ Kilroy heard testimony from Claimant
Leonard Harvey and vocational expert Anne Aastum. ALJ Kilroy issued a decision
finding Mr. Harvey not disabled on November 24, 2009, and he timely requested review
by the Appeals Council, which denied the request for review on June 18, 2010.
Following Mr. Harvey’s death, his wife Vesta Harvey appealed this final decision
to the Court.1 The Court has jurisdiction to review the ALJ’s decision pursuant to 42
U.S.C. § 405(g).
At the time of the hearing, Mr. Harvey was 62 years of age. He completed high
school, six years of vocational training in electronics, and two semesters of college course
work. His prior work experience includes work as a customer service representative and
computer hardware fabricator and inspector.
SEQUENTIAL PROCESS
The Commissioner follows a five-step sequential evaluation for determining
whether a claimant is disabled. See 20 C.F.R. §§ 404.1520, 416.920. At step one, it must

1

Vesta Harvey, as the surviving spouse, is permitted to maintain this appeal. See Sousa v.
Callahan, 143 F.3d 1240 (9th Cir. 1998) (wherein the surviving spouse filed an appeal after the
claimant’s death).
MEMORANDUM DECISION AND ORDER - 2

be determined whether the claimant is engaged in substantially gainful activity. The ALJ
found Mr. Harvey had engaged in substantial gainful activity since his alleged onset date,
which was therefore amended to September 1, 2007. After amending the alleged onset
date, the ALJ found that Mr. Harvey had not engaged in substantial gainful activity. At
step two, it must be determined whether the claimant suffers from a severe impairment.
The ALJ found Mr. Harvey’s ruptured disk at L3-4 with nerve root impingement and
associated quadriceps weakness; spondylitic lumbar spine disease; history of deep vein
thrombosis; asthma; joint pain of the shoulder; and obesity severe within the meaning of
the Regulations.
Step three asks whether a claimant’s impairments meet or equal a listed
impairment. The ALJ found that Mr. Harvey’s impairments did not meet or equal the
criteria for a listed impairments, specifically Listing section 1.04, which pertains to
musculoskeletal impairments. If a claimant’s impairments do not meet or equal a listing,
the Commissioner must assess the claimant’s residual functional capacity (“RFC”) and
determine at step four whether the claimant has demonstrated an inability to perform past
relevant work.
The ALJ found Mr. Harvey retained the RFC to perform his past relevant work as
a customer service representative. The ALJ therefore did not proceed to step five.

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STANDARD OF REVIEW
Petitioner bears the burden of showing that disability benefits are proper because
of the inability “to engage in any substantial gainful activity by reason of any medically
determinable physical or mental impairment 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); see
also 42 U.S.C. § 1382c(a)(3)(A); Rhinehart v. Fitch, 438 F.2d 920, 921 (9th Cir. 1971).
An individual will be determined to be disabled only if his physical or mental
impairments are of such severity that he not only cannot do his previous work but is
unable, considering his age, education, and work experience, to engage in any other kind
of substantial gainful work which exists in the national economy. 42 U.S.C. §
423(d)(2)(A).
On review, the Court is instructed to uphold the decision of the Commissioner if
the decision is supported by substantial evidence and is not the product of legal error. 42
U.S.C. § 405(g); Universal Camera Corp. v. Nat’l Labor Relations Bd., 340 U.S. 474
(1951); Meanel v. Apfel, 172 F.3d 1111, 1113 (9th Cir. 1999) (as amended); DeLorme v.
Sullivan, 924 F.2d 841, 846 (9th Cir. 1991). Substantial evidence is such relevant
evidence as a reasonable mind might accept as adequate to support a conclusion.
Richardson v. Perales, 402 U.S. 389, 401 (1971). It is more than a scintilla but less than
a preponderance, Jamerson v Chater, 112 F.3d 1064, 1066 (9th Cir. 1997), and “does not
mean a large or considerable amount of evidence.” Pierce v. Underwood, 487 U.S. 552,

MEMORANDUM DECISION AND ORDER - 4

565 (1988).
The Court cannot disturb the Commissioner’s findings if they are supported by
substantial evidence, even though other evidence may exist that supports the petitioner’s
claims. 42 U.S.C. § 405(g); Flaten v. Sec’y of Health and Human Servs., 44 F.3d 1453,
1457 (9th Cir. 1995). Thus, findings of the Commissioner as to any fact, if supported by
substantial evidence, will be conclusive. Flaten, 44 F.3d at 1457. It is well-settled that, if
there is substantial evidence to support the decision of the Commissioner, the decision
must be upheld even when the evidence can reasonably support either affirming or
reversing the Commissioner’s decision, because the Court “may not substitute [its]
judgment for that of the Commissioner.” Verduzco v. Apfel, 188 F.3d 1087, 1089 (9th
Cir. 1999).
When reviewing a case under the substantial evidence standard, the Court may
question an ALJ’s credibility assessment of a witness’s testimony; however, an ALJ’s
credibility assessment is entitled to great weight, and the ALJ may disregard self-serving
statements. Rashad v. Sullivan, 903 F.2d 1229, 1231 (9th Cir. 1990). Where the ALJ
makes a careful consideration of subjective complaints but provides adequate reasons for
rejecting them, the ALJ’s well-settled role as the judge of credibility will be upheld as
based on substantial evidence. Matthews v. Shalala, 10 F.3d 678, 679-80 (9th Cir. 1993).

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DISCUSSION
Petitioner believes the ALJ erred at steps three and four. Mrs. Harvey argues that
her husband met the requirements of listing section 1.04(C) based upon his ruptured disk
at L3-4 with nerve root impingement and spondylitic lumbar spine disease, coupled with
his inability to ambulate effectively. Next, Petitioner contends that the ALJ erred in
finding Mr. Harvey not credible with respect to his testimony about the severity,
persistence, and limiting effects of his pain. Petitioner further asserts that the ALJ erred
by improperly rejecting the opinions of treating physician Dr. Hanson and accepting the
RFC analysis of a state agency medical examiner. Therefore, Petitioner asserts that the
ALJ’s RFC assessment is wrong, and does not support the ALJ’s finding that Mr. Harvey
was capable of performing his past relevant work as a customer service representative. In
addition, Petitioner argues that the ALJ improperly relied upon a consultative
examination from August of 2007, which was performed before Mr. Harvey’s amended
onset date of September 1, 2007, to support the ALJ’s finding that Mr. Harvey had the
requisite mental capacity to perform his past relevant work.
Respondent disputes Petitioner’s arguments, contending that nothing in the record
indicated Mr. Harvey was unable to ambulate effectively, and that Mr. Harvey’s daily
activities supported the ALJ’s credibility finding. In addition, the Respondent argues that
the ALJ presented specific and legitimate reasons in support of the findings rejecting Dr.
Hanson’s RFC analysis. And finally, Respondent contends that the ALJ’s RFC findings

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are supported by substantial evidence in the record, and therefore support the finding that
Mr. Harvey could perform his past relevant work as a customer service representative.
1.

Listing Criteria
The ALJ found that Mr. Harvey’s impairments did not meet or equal any listing.

Specifically, the ALJ found that Mr. Harvey’s impairments did not meet or equal Listing
1.04 regarding musculoskeletal impairments.
Listing 1.04(C) states:
Disorders of the spine (e.g., herniated nucleus pulposus, spinal
arachnoiditis, spinal stenosis, osteoarthritis, degenerative disc disease,
facet arthritis, vertebral fracture), resulting in compromise of a nerve root
(including the cauda equina) or the spinal cord.
With:
C. Lumbar spinal stenosis resulting in pseudoclaudication established by
findings on appropriate medically acceptable imaging, manifested by
chronic nonradicular pain and weakness, and resulting in inability to
ambulate effectively as defined in 1.00B2b.
20 C.F.R. pt. 404, subpt. P, app. 1, §1.04(C). Further, inability to ambulate effectively is defined
as:
Inability to ambulate effectively means an extreme limitation of the ability
to walk; i.e. an impairment(s) that interferes very seriously with the
individual's ability to independently initiate, sustain, or complete activities.
Ineffective ambulation is defined generally as having sufficient lower
extremity functioning to permit independent ambulation with the use of a
hand-held assistive device(s) that limits the functioning of both upper
extremities.
20 C.F.R. pt. 404, subpt. P, app. 1, §1.00B2b.
If the claimant satisfies the criteria under a listing and meets the twelve month
duration requirement, the Commissioner must find the claimant disabled without

MEMORANDUM DECISION AND ORDER - 7

considering age, education and work experience. 20 C.F.R. § 404.1520(a)(4)(iii), (d). A
claimant bears the burden of producing medical evidence establishing all of the requisite
medical findings that his impairments meet or equal any particular listing. Bowen v.
Yuckert, 482 U.S 137, 146, n. 5 (1987). Further, if the claimant is alleging equivalency to
a listing, the claimant must proffer a theory, plausible or otherwise, as to how his
combined impairments equal a listing. See Lewis v. Apfel, 236 F.3d 503, 514 (9th Cir.
2001).
Petitioner first contends that the record established Mr. Harvey could not ambulate
effectively, because his shoulder impairment prevented the use of an assistive device that
limited the functioning of both extremities. Petitioner’s argument rests on the assumption
that, if Mr. Harvey had full functioning of both upper extremities, he would have used
either two canes or a walker.
However, the record does not indicate that Mr. Harvey required the use of two
canes or any other assistive device that limited the functioning of both upper extremities.
After Mr. Harvey's hospitalization in August and September of 2007 for his herniated
disk, the record established that his physical therapy training involved the use of one
cane, and Mr. Harvey consistently reported to his physical therapist that his ability to walk
was improving with therapy. (AR 392.) In addition, Mr. Harvey reported on November 6,
2007, that he only was using the cane outdoors walking on uneven surfaces. (AR 383.)
The goal for Mr. Harvey's physical therapy was to actually eliminate the use of an

MEMORANDUM DECISION AND ORDER - 8

assistive device. (AR 437.) Thus, there is no evidence in the record to support Petitioner’s
assumption that Mr. Harvey would have used two canes or a walker if his shoulder was
fully functioning.
Petitioner next argues that documented falls by Mr. Harvey on November 19,
2007, November 28, 2007, February 21, 2008, and September 27, 2009, support the
conclusion that Mr. Harvey could not ambulate effectively. There is evidence in the
record indicating Mr. Harvey’s herniated disk caused left leg weakness and that, on
occasion, it would fail to bear his weight. But the record does not demonstrate support for
Petitioner's argument. Both Mr. Harvey's physical therapist and his treating physician
indicated that exercise and the use of one cane would prevent such falls. (See AR 530
(encouraging Mr. Harvey to use the cane outside) and AR 514 (encouraging increased
exercise to prevent falls)). Accordingly, the evidence supports the conclusion that Mr.
Harvey's treating sources believed that, with the use of a cane and continued physical
therapy, Mr. Harvey would and did have the ability to ambulate effectively.
Finally, Petitioner argues that the ALJ did not adequately explain the combined
effects of Mr. Harvey's obesity with his other impairments, specifically his back problems
and shortness of breath due to decreased pulmonary function caused by asthma. An ALJ
is not required, however, to discuss the combined effects of Mr. Harvey's impairments or
compare them to any listing in an equivalency determination, unless the claimant presents
evidence in an effort to establish equivalence. Burch v. Barnhart, 400 F.3d 676, 683 (9th

MEMORANDUM DECISION AND ORDER - 9

Cir. 2005.) Petitioner therefore bears the burden of proving that the record supports a
finding that the combined effects of Mr. Harvey’s impairments establishes equivalency, in
this case the inability to ambulate effectively.
The record as a whole does not demonstrate such a finding. Mr. Hervey's
pulmonary function study, performed on September 25, 2007, did indicate a loss of
pulmonary function. (AR 358--364.) However, the pulmonary study was performed
because physicians detected a pulmonary embolism, which was treated with blood
thinning drugs. (AR 385.) Although Mr. Harvey testified he became short of breath "just
walking across the room," (AR 39), the medical records indicate that up until Mr. Harvey
contracted pneumonia on October 9, 2009, Mr. Harvey did not complain of shortness of
breath to any physician. (AR 547.) In addition, Mr. Harvey’s medical records do not
indicate that he complained of asthma symptoms inhibiting his functioning, and he was
treated with an inhaler to control those symptoms. (AR 386.)
As for Mr. Harvey's obesity, the ALJ considered the effects of his obesity and
found that it did not combine with his back problems to meet the requirement of Listing
1.04. The ALJ specifically discussed that, although Mr. Harvey's obesity was severe, he
required only the use of one cane to ambulate effectively. Therefore, the ALJ concluded
that the listing requirements were not met. (AR 14–15.) There was no evidence in the
record stating that Mr. Harvey’s obesity limited his functioning, and no treatment notes
addressed his limitations due to obesity. On appeal, Petitioner has not pointed to any

MEMORANDUM DECISION AND ORDER - 10

evidence of functional limitations due to Mr. Harvey’s obesity which would have
impacted the ALJ's analysis, other than stating that he was obese and thereby implying
that it should contribute to his back pain. But the only evidence in the record relating to
Mr. Harvey’s obesity were progress notes documenting his weight, and indicating he was
obese.
Based upon all of the above, the Court concludes that the ALJ did not commit
error by inadequately considering Mr. Harvey’'s obesity, his other ailments in
combination with his back condition, or his ability to ambulate effectively. Therefore, the
ALJ correctly determined that Mr. Harvey did not meet or equal the requirements of
Listing 1.04.
2.

Credibility
The ALJ is responsible for determining credibility, resolving conflicts in medical

testimony, and resolving ambiguities. Reddick v. Chater, 157 F.3d 715, 722 (9th Cir.
1998). The ALJ’s findings must be supported by specific, cogent reasons. Reddick, 157
F.3d at 722. If a claimant produces objective medical evidence of an underlying
impairment, an ALJ may not reject a claimant’s subjective complaints of pain based
solely on lack of medical evidence. Burch v. Barnhart, 400 F.3d 676, 680 (9th Cir. 2005).
See also Light v. Soc. Sec. Admin., 119 F.3d 789, 792 (9th Cir. 1997) (holding that an
ALJ may not discredit a claimant’s subjective testimony on the basis that there is no
objective medical evidence that supports the testimony). Unless there is affirmative

MEMORANDUM DECISION AND ORDER - 11

evidence showing that the claimant is malingering, the ALJ must provide clear and
convincing reasons for rejecting pain testimony. Burch, 400 F.3d at 680. General
findings are insufficient; the ALJ must identify what testimony is not credible and what
evidence undermines the claimant’s complaints. Reddick, 157 F.3d at 722.
The reasons an ALJ gives for rejecting a claimant’s testimony must be supported
by substantial evidence in the record. Regennitter v. Comm’r of Soc. Sec. Admin., 166
F.3d 1294, 1296 (9th Cir. 1999). If there is substantial evidence in the record to support
the ALJ’s credibility finding, the Court will not engage in second-guessing. Thomas v.
Barnhart, 278 F.3d 957, 959 (9th Cir. 2002). When the evidence can support either
outcome, the court may not substitute its judgment for that of the ALJ. Tackett v. Apfel,
180 F.3d 1094, 1098 (9th Cir. 1999).
In evaluating credibility, the ALJ may engage in ordinary techniques of credibility
evaluation, including considering claimant’s reputation for truthfulness and
inconsistencies in claimant’s testimony, or between claimant’s testimony and conduct,
claimant’s daily activities, claimant’s work record, and testimony from physicians and
third parties concerning the nature, severity and effect of the symptoms of which claimant
complains. Thomas v. Barnhart, 278 F.3d 947, 958-59 (9th Cir. 2002). Also, the ALJ
may consider the location, duration and frequency of symptoms; factors that precipitate
and aggravate those symptoms; the amount and side effects of medications; and treatment
measures taken by the claimant to alleviate those symptoms. See Soc. Sec. Ruling 96-7p.

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A failure to follow prescribed treatment may be used as sufficient evidence to
support a conclusion that a claimant is not credible in describing symptoms about pain,
and form the basis for finding the complaint unjustified or exaggerated. Orn v. Astrue,
495 F.3d 625, 637-638 (9th Cir. 2007).
In this case, the ALJ articulated adequate reasons for rejecting Mr. Harvey’s pain
testimony. Contrary to Petitioner's argument, the ALJ did not solely rely upon Mr.
Harvey's function report, which he completed in July of 2007, prior to his amended onset
date of September 1, 2007. Rather, the ALJ made specific findings to support his
credibility determination.
In considering Mr. Harvey's testimony regarding his activities of daily living, the
ALJ explained that his reports to his physicians and care providers contradicted his
testimony at the hearing that he was incapacitated for most of the day. Mr. Harvey
testified that his deep vein thrombosis required him to elevate his legs for several hours
each day. However, Dr. Hansen, who treated Mr. Harvey's thrombosis, never suggested
he do so in any of his progress notes. Instead, Mr. Harvey was prescribed compression
stockings, and Dr. Hansen encouraged Mr. Harvey to continue exercising to improve his
back after his September 2007 hospitalization for his disk herniation. (AR 514.)
In addition, treating neurosurgeon Dr. Reedy on October 30, 2007, was of the
opinion that Mr. Harvey "needs to get off his butt and get moving," particularly to "start
working that left leg more," and that he was "limiting his own potential for improvement

MEMORANDUM DECISION AND ORDER - 13

by sitting around and not really doing much." (AR 376.) Considering Mr. Harvey’s
physicians were aware of his history of deep vein thrombosis, such medical advice clearly
does not support Petitioner's testimony that Mr. Harvey was either instructed or required
to sit and elevate his legs for six hours each day. (See AR 40.)
The ALJ cited also Mr. Harvey's activities reported to his physical therapist after
his hospitalization in September of 2007. Mr. Harvey reported that he was working in the
yard, going to "big stores," handling snow removal, and lifting a lawn mower out of the
car. (AR 393, 500, 484.) Petitioner argues that Mr. Harvey injured himself performing
those activities, contending his condition was fragile. (AR 11.) However, Mr. Harvey was
engaged in physical therapy using resistance weights, strength training, and general
aerobic conditioning precisely to strengthen his shoulder, leg, and back. (See AR
379–458.) Again, if Mr. Harvey’s condition was that fragile, such exercises likely would
have been contraindicated.
Based upon the clear, convincing and specific reasons for partially rejecting Mr.
Harvey's pain testimony and the substantial evidence in the record to support the ALJ's
determination, the Court concludes that the ALJ properly evaluated the testimony in
finding Mr. Harvey not credible.
3.

The ALJ’s Residual Functional Capacity Assessment
Petitioner argues that the AJL’s RFC assessment is wrong because the ALJ

improperly rejected Dr. Hansen’s RFC assessment in favor of an examining physician’s

MEMORANDUM DECISION AND ORDER - 14

assessment, chose to selectively credit Mr. Harvey’s testimony although he found him not
credible, relied upon Mr. Harvey’s inability to afford medical care, and finally because
the ALJ failed to include cognitive deficits in his RFC analysis. Each aspect will be
discussed in turn.
Ninth Circuit cases distinguish among the opinions of three types of physicians:
(1) those who treat the claimant (treating physicians); (2) those who examine but do not
treat the claimant (examining physicians); and (3) those who neither examine nor treat the
claimant (nonexamining physicians). Lester v. Chatter, 81 F.3d 821, 830 (9th Cir. 1995).
Generally, more weight is accorded to the opinion of a treating source than to nontreating
physicians. Winans v. Bowen, 853 F.2d 643, 647 (9th Cir.1987). If the treating
physician’s opinion is not contradicted by another doctor, it may be rejected only for
“clear and convincing” reasons. Baxter v. Sullivan, 923 F.2d 1391, 1396 (9th Cir.1991).
If the treating doctor’s opinion is contradicted by another doctor, the Commissioner may
not reject the treating physician’s opinion without providing “specific and legitimate
reasons” supported by substantial evidence in the record for so doing. Murray v. Heckler,
722 F.2d 499, 502 (9th Cir.1983). In turn, an examining physician’s opinion is entitled to
greater weight than the opinion of a nonexamining physician. Pitzer v. Sullivan, 908 F.2d
502, 506 (9th Cir.1990); Gallant v. Heckler, 753 F.2d 1450 (9th Cir.1984).
An ALJ is not required to accept an opinion of a treating physician if it is
conclusory and not supported by clinical findings. Matney ex rel. Matney v. Sullivan, 981

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F.2d 1016, 1019 (9th Cir. 1992). Additionally, an ALJ is not bound to a physician’s
opinion of a petitioner’s physical condition or the ultimate issue of disability. Magallanes
v. Bowen, 881 F.2d 747, 751 (9th Cir. 1989). If the record as a whole does not support
the physician’s opinion, the ALJ may reject that opinion. Batson v. Comm’r of Soc. Sec.
Admin., 359 F.3d 1190, 1195 (9th Cir. 2004). Items in the record that may not support the
physician’s opinion include clinical findings from examinations, conflicting medical
opinions, conflicting physician’s treatment notes, and the claimant’s daily activities. Id.;
Bayliss v. Barnhart, 427 F.3d 1211 (9th Cir. 2005); Connett v. Barnhart, 340 F.3d 871
(9th Cir. 2003); Morgan v. Comm’r of Soc. Sec. Admin., 169 F.3d 595 (9th Cir. 1999).
In this case, the ALJ largely chose to accept the RFC analysis performed on
October 4, 2007, by Dr. Dickey, a non-examining physician, (AR 368–375), over the
RFC analysis completed by treating physician Dr. Hansen on February 13, 2008 (AR
461–472.) Relying upon Dr. Dickey’s RFC assessment and Mr. Harvey’s testimony, the
ALJ determined that Mr. Harvey had the RFC to alternate sitting, walking and standing
throughout an eight hour day, walk for one-quarter mile, stand for 30 minutes, and sit for
one to two hours. As for reaching and lifting, the ALJ found Mr. Harvey could lift twenty
pounds occasionally and ten pounds frequently, but could not reach overhead with his left
arm. Mr. Harvey was prohibited from crawling or climbing using his upper extremities,
and he could occasionally perform other climbing, balance, stoop, kneel, and crouching
activities. (AR 15, 67–68.) Based upon the ALJ’s RFC determination, the vocational

MEMORANDUM DECISION AND ORDER - 16

expert opined that Mr. Harvey could perform his past relevant work as a customer service
representative.
The ALJ’s RFC determination largely corresponds to Dr. Dickey’s determination,
except that Dr. Dickey limited Mr. Harvey to lifting a maximum of ten pounds, and was
of the opinion that there were no limitations in Mr. Harvey’s ability to reach overhead.
Dr. Hansen, on the other hand, documented Mr. Harvey’s limited use of his upper
extremities, and believed Mr. Harvey could not stand or walk the requisite number of
hours in an eight hour work day and could never climb, balance, stoop, crouch, kneel or
crawl because of his left leg weakness and obesity. Petitioner argues that the ALJ
selectively chose which aspects of Mr. Harvey’s testimony to believe, although he
considered him not credible in other aspects, and improperly rejected Dr. Hansen’s RFC
determination, which would have precluded all work.
With respect to Mr. Harvey’s credibility, the ALJ found him not credible regarding
the severity, intensity, and limiting effects of his pain, particularly regarding his lower
back and his testimony where he indicated he needed to sit with his legs elevated for six
hours each day. However, the ALJ believed Mr. Harvey concerning his testimony that he
could lift more than ten pounds on an occasional basis. (AR 67.) The ALJ’s decision to
reject Mr. Harvey’s testimony regarding his need to sit for more than six hours is not
inconsistent, however, with his decision to accept his testimony about his ability to lift
more than ten pounds. Petitioner has not cited any rule requiring the ALJ to reject Mr.

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Harvey’s testimony entirely, only those portions which the ALJ finds not credible and
which are unsupported by substantial evidence. Mr. Harvey testified that, although he was
“sore” afterwards, he lifted a lawnmower out of his truck, shoveled snow, and he believed
he could lift thirty pounds if he had to. Mr. Harvey was engaged in resistance training as
part of his physical therapy program for rehabilitation of his shoulder. (AR 500.)
Accordingly, the ALJ properly accepted Mr. Harvey’s testimony about his lifting
capabilities, as there was substantial evidence in the record to support that conclusion,
while rejecting his testimony about his other functional limitations as discussed above.
The ALJ largely rejected Dr. Hansen’s opinions, presenting specific and legitimate
reasons for doing so that are supported by substantial evidence in the record. Dr.
Hansen’s opinions regarding Mr. Harvey’s RFC were contradicted by Dr. Dickey’s
assessment and Mr. Harvey’s own testimony at the hearing. In addition, as discussed
above, Mr. Harvey described activities inconsistent with his testimony at the hearing.
Specifically, the ALJ rejected Mr. Harvey’s testimony about his need to sit with his legs
elevated for six hours a day, finding no doctor ever suggested that and instead
recommended more exercise rather than less.
Petitioner also takes issue with the ALJ’s determination to reject Dr. Hansen’s
opinion because Mr. Harvey received no medical treatment for his back condition for
over one year after Dr. Hansen’s assessment. (AR 17.) Petitioner argues that lack of funds
to continue with medical treatment is not a sufficient reason for discrediting testimony.

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Mr. Harvey testified that he no longer had insurance after his wife retired, and therefore
could not afford to continue with physical therapy. (AR 35.) He also testified he had not
been to a doctor since November of 2007 because he could not afford to. (AR 37.)
Generally, it is improper to reject a petitioner’s complains for lack of treatment when the
record establishes that the claimant cannot afford it. Regennitter v. Comm’r of Soc. Sec.
Admin., 166 F.3d 1294, 1297 (9th Cir. 1999).
However, there is substantial evidence in the record to support the ALJ’s reliance
on lack of treatment. Mr. Harvey may have lacked insurance coverage and the funds to
pay for care. Nevertheless, when his shoulder began hurting him, he sought treatment for
it in February of 2008, with no mention of his back pain for which he had previously
received treatment. (AR 484–504.) It was not until May 5, 2009, that Mr. Harvey sought
treatment for his back from Dr. Hansen. (AR 473.) Therefore, it was not error for the ALJ
to rely upon the lack of treatment for Mr. Harvey’s back pain, because the treatment
records indicated Mr. Harvey sought treatment for ailments other than his back pain since
November of 2007 and did not complain about his back pain until May of 2009.
Finally, Petitioner argues it was error to reject Mr. Harvey’s testimony regarding
his cognitive function and fail to include it in the RFC analysis. Petitioner argues it was
error for the ALJ to rely upon Dr. Starr’s cognitive function report dated August 9, 2007,
which was prior to Mr. Harvey’s amended onset date of September 1, 2007, and that it
was reasonable to conclude that medications did in fact impair Mr. Harvey’s cognitive

MEMORANDUM DECISION AND ORDER - 19

function after his herniated disk injury. (AR 299; Pet. Brief at 17, Dkt. 12.) However, the
ALJ cited Dr. Starr’s report only in connection with his assessment that any mental
impairment was not “severe” at step two. (AR 14.) Petitioner does not contest that any
error was made at step two of the ALJ’s determination. Rather, the ALJ rejected Mr.
Harvey’s testimony concerning his cognitive deficits due to medication because Mr.
Harvey never complained of such problems to his physicians at any time after his
herniated disk injury in September of 2007. (AR 16.) Mr. Harvey never asked for
alternative drug therapy after his injury, and did not complain to his treating physician,
Dr. Hansen, that his medications were impairing him in any way. Other than his testimony
that he was forgetful and had to be reminded of things, (AR 38–39, 44) Mr. Harvey
otherwise produced no clinical evidence showing that narcotics use impaired his ability to
work. Accordingly, the ALJ properly rejected Mr. Harvey’s testimony and it was not error
for the ALJ to fail to include such impairments in his RFC assessment.
The Court therefore finds that the ALJ did not err in his RFC analysis. The ALJ
properly rejected Dr. Hansen’s opinions citing specific and legitimate reasons for doing
so that were supported by substantial evidence in the record. Nor did the ALJ err with
respect to rejecting portions of Mr. Harvey’s testimony in support of his RFC
determination, considering the record supported some of Mr. Harvey’s complaints but not
others. The ALJ was not compelled to find Mr. Harvey less than fully credible in all
aspects of his testimony, only those aspects that were not supported by substantial

MEMORANDUM DECISION AND ORDER - 20

evidence in the record.
4.

Step Four, Past Relevant Work
At the fourth step in the sequential process, the ALJ determines whether the

impairment prevents the claimant from performing work which the claimant performed in
the past, i.e., whether the claimant has sufficient residual functional capacity to tolerate
the demands of any past relevant work. 20 C.F.R. §§ 404.1520(a)(4)(iv);
416.920(a)(4)(iv). A claimant’s residual functional capacity is the most he can do despite
his limitations. 20 C.F.R. § 404.1545(a). An ALJ considers all relevant evidence in the
record when making this determination. Id. Generally, an ALJ may rely on vocational
expert testimony. 20 C.F.R. § 404.1566(e); Bayliss v. Barnhart, 427 F.3d 1211, 1218 (9th
Cir. 2005). An ALJ must include all limitations supported by substantial evidence in his
hypothetical question to the vocational expert, but may exclude unsupported limitations.
Bayliss, 427 F.3d at 1217. The ALJ need not consider or include alleged impairments
that have no support in the record. See Osenbrock v. Apfel, 240 F.3d 1157, 1163–64 (9th
Cir. 2000).
As discussed above, the ALJ did not commit error in finding Mr. Harvey less than
credible, and included all of Mr. Harvey’s limitations in his RFC analysis that were
supported by substantial evidence in the record. The ALJ largely relied upon the portions
of Mr. Harvey’s testimony that were credible, the medical records, and Dr. Dickey’s RFC
analysis. The vocational expert was of the opinion that Mr. Harvey could perform his past

MEMORANDUM DECISION AND ORDER - 21

relevant work as a customer service representative.
Petitioner argues that Mr. Harvey could not perform his past relevant work as a
customer service representative because it required higher level reasoning and math skills,
which would be impaired by his pain and pain medications. (Pet. Brief at 17-18.)
However, as discussed above, the ALJ properly rejected Mr. Harvey’s testimony about
the limiting effects of his pain and cognitive difficulties as a result of his pain medication.
Therefore, the ALJ did not commit error at step four, and his finding that Mr. Harvey
could perform his past relevant work will be affirmed.
CONCLUSION
Based upon the discussion herein, the Court concludes that the ALJ’s finding that
Claimant Leonard Harvey was not disabled was not the product of legal error, and was
supported by substantial evidence in the record. The Commissioner’s findings will be
affirmed.

MEMORANDUM DECISION AND ORDER - 22

ORDER
NOW THEREFORE IT IS HEREBY ORDERED:
1)

The Commissioner’s decision finding that the Petitioner is not disabled
within the meaning of the Social Security Act is AFFIRMED.

2)

The Petition for Review (Dkt. 1) is DISMISSED.
DATED: September 19, 2011

Honorable Candy W. Dale
Chief United States Magistrate Judge

MEMORANDUM DECISION AND ORDER - 23