Wellington v. Astrue

Filing 29

MEMORANDUM DECISION & ORDER re 1 Petition for Review is DENIED, the decision of the Commissioner is AFFIRMED, and this action is DISMISSED in its entirety, with prejudice. Signed by Judge Ronald E. Bush. ((kb)

UNITED STATES DISTRICT COURT
DISTRICT OF IDAHO

DAMEON WELLINGTON,
Case No. 1:11-cv-00008-REB
Petitioner,
vs.
CAROLYN COLVIN, Commissioner of Social
Security,

MEMORANDUM DECISION
AND ORDER

Respondent.

Pending before the Court is Petitioner Dameon Wellington’s Petition for Review
(Dkt. 1), seeking review of the Social Security Administration’s final decision to deny
him disability benefits. This action is brought pursuant to 42 U.S.C. § 405(g). Having
carefully reviewed the record and otherwise being fully advised, the Court enters the
following Memorandum Decision and Order.
I. ADMINISTRATIVE PROCEEDINGS
Petitioner Dameon Wellington (“Claimant” or “Petitioner”) received Social
Security Disability benefits pursuant to a claim granted on March 14, 2003. AR 217. He
remained on benefits until his incarceration in 2005.
After he was released, he protectively filed for Supplemental Security Income
benefits on February 12, 2007. AR 216. Petitioner alleged he became disabled in June
MEMORANDUM DECISION AND ORDER - 1

2001 due to back pain, bowel issues, and a learning disability. AR 43, 221. His claim
was denied initially on May 16, 2007 and, again on reconsideration, on October 17, 2007.
AR 12.
Petitioner timely filed a Request for Hearing before an Administrative Law Judge
(“ALJ”). ALJ Michael Kilroy held a hearing in Boise, Idaho, on May 12, 2009. AR 12.
The ALJ issued an unfavorable decision on October 19, 2009. AR 9–21. On December
14, 2009, Petitioner requested Appeals Council review of the ALJ’s decision. AR 8. On
November 17, 2010, the Appeals Council denied that request for review. AR 1–4.
Having exhausted his administrative remedies, Petitioner timely filed a petition for
review with this Court. The parties filed a motion asking the Court to remand the case to
the Commissioner for further action by the Commissioner and to retain jurisdiction over
the action pending further administrative development of the record. See Melkonyan v.
Sullivan, 501 U.S. 89, 101 n.2 (1991); Shalala v. Schaefer, 509 U.S. 292, 297 n.2 (1993).
On April 15, 2011, this Court issued an order of remand.
ALJ Michael Kilroy presided over a second hearing on May 1, 2012, at which
Petitioner, represented by attorney Jacob Bernhardt, appeared and testified. AR 662.
Also testifying were James Bruce, a medical expert, and Karen Black, an impartial
vocational expert. Id. On August 13, 2012, the ALJ issued a second decision, again
denying Petitioner’s claims and finding that Petitioner was not disabled within the
meaning of the Social Security Act. AR 662–72.

MEMORANDUM DECISION AND ORDER - 2

At the time of his first hearing before the ALJ, Petitioner was 33 years old; he was
36 years old at second hearing. He had work experience as a cabinet maker, car rental
clerk, cashier, and general carpenter. AR 670.
On October 17, 2012, Petitioner moved to have this case reopened for review.
Dkt. 14. The Court reopened the case on November 19, 2012. The updated
administrative record was filed in March of 2013 and updated briefing followed.
Petitioner argues the ALJ erred by (1) failing to give proper weight to an opinion
provided by Michael Eastman, a physician’s assistant assisting in Petitioner’s medical
care, (2) to support his credibility determination, and (3) to properly consider the impact
of Petitioner’s gastritis and recurrent abdominal pain in formulating the residual
functional capacity. (Dkt. 28).
II. STANDARD OF REVIEW
To be upheld, the Commissioner’s decision must be supported by substantial
evidence and based on proper legal standards. 42 U.S.C. § 405(g); Matney ex. rel.
Matney v. Sullivan, 981 F.2d 1016, 1019 (9th Cir. 1992); Gonzalez v. Sullivan, 914 F.2d
1197, 1200 (9th Cir. 1990). Findings as to any question of fact, if supported by substantial
evidence, are conclusive. 42 U.S.C. § 405(g). In other words, if there is substantial
evidence to support the ALJ’s factual decisions, they must be upheld, even when there is
conflicting evidence. Hall v. Sec'y of Health, Educ. & Welfare, 602 F.2d 1372, 1374 (9th
Cir. 1979).

MEMORANDUM DECISION AND ORDER - 3

“Substantial evidence” is defined as such relevant evidence as a reasonable mind
might accept as adequate to support a conclusion. Richardson v. Perales, 402 U.S. 389,
401 (1971); Tylitzki v. Shalala, 999 F.2d 1411, 1413 (9th Cir. 1993); Flaten v. Sec’y of
Health & Human Servs., 44 F.3d 1453, 1457 (9th Cir. 1995). The standard requires more
than a scintilla but less than a preponderance, Sorenson v. Weinberger, 514 F.2d 1112,
1119 n. 10 (9th Cir.1975); Magallanes v. Bowen, 881 F.2d 747, 750 (9th Cir. 1989), and
“does not mean a large or considerable amount of evidence.” Pierce v. Underwood, 487
U.S. 552, 565 (1988).
With respect to questions of fact, the role of the Court is to review the record as a
whole to determine whether it contains evidence that would allow a reasonable mind to
accept the conclusions of the ALJ. See Richardson, 402 U.S. at 401; see also Matney,
981 F.2d at 1019. The ALJ is responsible for determining credibility and resolving
conflicts in medical testimony, Allen v. Heckler, 749 F.2d 577, 579 (9th Cir. 1984),
resolving ambiguities, see Vincent ex. rel. Vincent v. Heckler, 739 F.2d 1393, 1394-95 (9th
Cir. 1984), and drawing inferences logically flowing from the evidence, Sample v.
Schweiker, 694 F.2d 639, 642 (9th Cir. 1982). Where the evidence is susceptible to more
than one rational interpretation in a disability proceeding, the reviewing court may not
substitute its judgment or interpretation of the record for that of the ALJ. Flaten, 44 F.3d
at 1457; Key v. Heckler, 754 F.2d 1545, 1549 (9th Cir. 1985).
With respect to questions of law, the ALJ’s decision must be based on proper legal
standards and will be reversed for legal error. Matney, 981 F.2d at 1019. The ALJ’s
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construction of the Social Security Act is entitled to deference if it has a reasonable basis
in law. See id. However, reviewing federal courts “will not rubber-stamp an
administrative decision that is inconsistent with the statutory mandate or that frustrates
the congressional purpose underlying the statute.” Smith v. Heckler, 820 F.2d 1093, 1094
(9th Cir. 1987).
III. DISCUSSION
A.

Sequential Process
In evaluating the evidence presented at an administrative hearing, the ALJ must

follow a sequential process in determining whether a person is disabled in general (see 20
C.F.R. §§ 404.1520, 416.920) - or continues to be disabled (see 20 C.F.R. §§ 404.1594,
416.994) - within the meaning of the Social Security Act.
The first step requires the ALJ to determine whether the claimant is engaged in
substantial gainful activity (“SGA”). 20 C.F.R. §§ 404.1520(a)(4)(I), 416.920(a)(4)(I).
SGA is defined as work activity that is both substantial and gainful. “Substantial work
activity” is work activity that involves doing significant physical or mental activities. 20
C.F.R. §§ 404.1572(a), 416.972(a). “Gainful work activity” is work that is usually done
for pay or profit, whether or not a profit is realized. 20 C.F.R. §§ 404.1572(b),
416.972(b). If the claimant has engaged in SGA, disability benefits are denied, regardless
of how severe his physical/mental impairments are and regardless of his age, education,
and work experience. 20 C.F.R. §§ 404.1520(b), 416.920(b). If the claimant is not

MEMORANDUM DECISION AND ORDER - 5

engaged in SGA, the analysis proceeds to the second step. Here, the ALJ found that
Petitioner had not engaged in substantial gainful activity since he applied for disability
benefits. AR 664.
The second step requires the ALJ to determine whether the claimant has a
medically determinable impairment, or combination of impairments, that is severe and
meets the duration requirement. 20 C.F.R. § 404.1520(a)(4)(ii), 416.920(a)(4)(ii). An
impairment or combination of impairments is “severe” within the meaning of the Social
Security Act if it significantly limits an individual’s ability to perform basic work
activities. 20 C.F.R. §§ 404.1520(c), 416.920(c). An impairment or combination of
impairments is “not severe” when medical and other evidence establish only a slight
abnormality or a combination of slight abnormalities that would have no more than a
minimal effect on an individual’s ability to work. 20 C.F.R. §§ 404.1521, 416.921. If the
claimant does not have a severe medically determinable impairment or combination of
impairments, disability benefits are denied. 20 C.F.R. §§ 404.1520(c), 416.920(c). Here,
the ALJ found that Petitioner had the following severe impairments: status-post lumbar
fusion at L4-S1; minimal degenerative changes at L2-L4; thoracic degenerative disc
disease; attention deficit disorder; and gastritis. AR 664.
The third step requires the ALJ to determine the medical severity of any
impairments; that is, whether the claimant’s impairments meet or equal a listed
impairment under 20 C.F.R. Part 404, Subpart P, Appendix 1. 20 C.F.R.
§§ 404.1520(a)(4)(iii), 416.920(a)(4)(iii). If the answer is yes, the claimant is considered
MEMORANDUM DECISION AND ORDER - 6

disabled under the Social Security Act and benefits are awarded. 20 C.F.R. §§
404.1520(d), 416.920(d). If the claimant’s impairments neither meet nor equal one of the
listed impairments, the claimant’s case cannot be resolved at step three and the evaluation
proceeds to step four. Id. Here, the ALJ concluded that Petitioner does not have an
impairment (or combination of impairments) that meets or medically equals a listed
impairment. AR 664.
The fourth step of the evaluation process requires the ALJ to determine whether
the claimant’s residual functional capacity is sufficient for the claimant to perform past
relevant work. 20 C.F.R. §§ 404.1520(a)(4)(iv), 416.920(a)(4)(iv). An individual’s
residual functional capacity is his ability to do physical and mental work activities on a
sustained basis despite limitations from her impairments. 20 C.F.R. §§ 404.1545,
416.945. Likewise, an individual’s past relevant work is work performed within the last
15 years or 15 years prior to the date that disability must be established; also, the work
must have lasted long enough for the claimant to learn to do the job and be engaged in
substantial gainful activity. 20 C.F.R. §§ 404.1560(b), 404.1565, 416.960(b), 416.965.
Here, the ALJ determined that Petitioner is unable to perform any past relevant work. AR
670. The ALJ determined that Petitioner could perform sedentary work, defined in 20
C.F.R. §416.967(a). AR 666. However, Petitioner could only walk up to 15 minutes at a
time, sit up to 2 hours at a time, and stand up to 1.5 hours at a time. He must be able to
alternate between these positions throughout the workday. He could only occasionally
balance, stoop,4 kneel, crouch, crawl, and climb stairs. He could never climb ladders,
MEMORANDUM DECISION AND ORDER - 7

and must avoid concentrated exposure to cold and vibrations. And, Petitioner was limited
to simple, routine, repetitive tasks requiring only occasional new learning, and limited
focus or stress. Id.
In the fifth and final step, if it has been established that a claimant can no longer
perform past relevant work because of his impairments, the burden shifts to the
Commissioner to show that the claimant retains the ability to do alternate work and to
demonstrate that such alternate work exists in significant numbers in the national
economy. 20 C.F.R. §§ 404.1520(a)(4)(v), 416.920(a)(4)(v), 404.1520(f), 416.920(f); see
also Matthews v. Shalala, 10 F.3d 678, 681 (9th Cir. 1993). If the claimant is able to do
other work, he is not disabled; if the claimant is not able to do other work and meets the
duration requirement, he is disabled. Here, the ALJ considered Petitioner’s age,
education, work experience, and residual functional capacity and determined that there
are jobs existing in significant numbers in the national economy that Petitioner can
perform. AR 671.

MEMORANDUM DECISION AND ORDER - 8

B.

Analysis
Petitioner asserts three points of error. (Dkt. 28). The Court will first address the

ALJ’s credibility determination because it impacts the other issues.
1.

The ALJ adequately supported his credibility determination.

The ALJ found that Petitioner’s medically determinable impairments could
reasonably be expected to cause the symptoms he alleged, but that his statements
concerning the intensity, persistence, and the limiting effects of his symptoms were not
credible to the extent they were inconsistent with the residual functional capacity
assessment (“RFC”). AR 666–67. Because there is no evidence of malingering, and
Petitioner produced objective medical evidence of an underlying impairment which could
reasonably be expected to produce some degree of pain or other symptoms, the ALJ may
reject the claimant’s testimony about the severity of the alleged pain or other symptoms
only by providing specific, clear and convincing reasons. Tommasetti v. Astrue, 533 F.3d
1035, 1039 (9th Cir. 2008).
Here, the ALJ found Petitioner’s allegations were not entirely credible because,
among other things, (1) the medical evidence contradicted his alleged limitations; (2)
Petitioner’s statements to medical providers were at times inconsistent with his
allegations; and (3) his treatment regimen was effective in mitigating his pain. AR
667–69. The ALJ also discussed Petitioner’s daily activities and how they varied from
his claimed limitations. See AR 665, 669.

MEMORANDUM DECISION AND ORDER - 9

a.

Daily Activities

First, to the extent the ALJ relied on inconsistencies between Petitioner’s reported
pain and limitations and his daily and other activities, the ALJ’s interpretation of the
evidence is supported by the record. The ALJ found: “In activities of daily living, the
claimant has no restriction. For instance, he prepared meals, ran errands for his mother,
cared for his two young daughters, performed household chores, used a computer, and
helped his children with their homework.” AR 665. See Bray v. Comm'r of Soc. Sec.
Admin., 554 F.3d 1219, 1227 (9th Cir. 2009); Curry v. Sullivan, 925 F.2d 1127, 1130 (9th
Cir. 1990) (finding that claimant’s ability to “take care of her personal needs, prepare
easy meals, do light housework, and shop for some groceries . . . may be seen as
inconsistent with the presence of a condition which would preclude all work activity.”).
The ALJ’s finding is supported by the report of Dr. James Read on October 11,
2007. AR 438–44. In that report Dr. Read noted that Petitioner had full custody of and
was raising his two daughters, ages seven and eight, on his own. AR 440. He lives with
his mother, who has cancer, and “he is helping her or vice versa”. Id. Petitioner reported
to Dr. Read that he has a regular routine that includes preparing art projects and
homework for his daughters; he can do household chores, but has to be careful; he can
cook, but cannot stand very long; and he runs errands for his mother. AR 441.
Additionally, the ALJ noted that Petitioner had a successful camping trip with his
family. See AR 669 (Petitioner’s “pain level was so much improved that he was going
camping with his family.”; Petitioner “claimed that his camping trip went well and his
MEMORANDUM DECISION AND ORDER - 10

pain medications were controlling his symptoms better than ever.”). Although
Petitioner’s report of camping was limited to one trip in a friend’s recreational vehicle, he
reported that the trip went well. AR 85–86; 780. That trip, coupled with the other
activities of daily living, even though some of these activities are qualified by Petitioner’s
statements of related limitations, support the ALJ’s credibility determination nonetheless.
Moreover, the ALJ incorporated some limitations in the RFC regarding how long
the Petitioner could walk, sit, and stand, as well as provided that Petitioner needs to
alternate between positions to complete and eight hour workday. See AR 669 (explaining
that Petitioner’s “activity level supported the limitations contained in the residual
functional capacity assessment”); AR 666 (RFC describing additional limitations to
sedentary work). Thus, the ALJ took into account some of the limitations reported, and
did not completely ignore Petitioner’s claimed limitations, but simply declined to give
them the full credit Petitioner sought.
(b)

Medical Record and Pain Treatment

Second, the ALJ appropriately interpreted the medical evidence. Petitioner’s
primary argument related to the ALJ’s credibility determination focuses on the ALJ’s
alleged failure “to understand the basic nature of the failed back syndrome” and that the
ALJ appeared to “rely heavily on the failure of the imaging studies performed to show a
clear source for Petitioner’s pain.” Pet.’s Br., p. 17 (Dkt. 26) (citing AR 667–70).
Petitioner is correct that the ALJ relied on CT scans from October of 2010, in
which “only mild abnormalities were observed”, and July 2012 imaging scans showing
MEMORANDUM DECISION AND ORDER - 11

“no impingement and no further degenerative changes” in Petitioner’s spine, as evidence
that Mr. Wellington’s “spine remained stable for many years and was not causing
disabling pain.” AR 669. However, his type of objective medical evidence provides
relevant information and appropriate support for the ALJ’s decision.1
Additionally, the ALJ did not find that Petitioner experienced no pain, but rather
that the objective medical evidence, along with Petitioner’s daily activities and reports of
success in managing his pain with medications, indicated that Petitioner’s pain is not
disabling. See AR 669 (explaining that “because only mild abnormalities” were
observed, Petitioner’s “allegations concerning severe, persistent, and disabling back pain”
were not supported; noting imaging studies showed that Petitioner’s spine “remained
stable for many years and was not causing disabling pain”; noting that Petitioner’s
“subjective reports of pain seem inconsistent with his reports concerning improvements in
such pain”).
Petitioner does not argue that the ALJ’s discussion of what the objective medical
evidence revealed is incorrect, but rather that the ALJ incorrectly relied on that evidence
to determine that Petitioner’s pain is not as debilitating as he claimed. The ALJ correctly
summarized the medical imaging test results. See, e.g., AR 934–40. Further, to the extent

1

While a claimant’s subjective testimony “cannot be rejected on the sole ground
that it is not fully corroborated by objective medical evidence, the medical evidence is
still a relevant factor in determining the severity of the claimant’s pain and its disabling
effects.” Rollins v. Massanari, 261 F.3d 853, 857 (9th Cir. 2001). And, the objective
medical evidence is not the only basis for the ALJ’s credibility determination in this case.
MEMORANDUM DECISION AND ORDER - 12

he relied on them in conjunction with other evidence2 (such as Petitioner’s pain
management) to determine that Petitioner’s pain was not as limiting as Petitioner claimed,
the ALJ appropriately considered the medical evidence of record.
In making his credibility determination, the ALJ also considered Petitioner’s
reports that his medication helped control his pain. See AR 667–68; see, e.g., AR 554
(“over all doing well” and “not taking anything for break-through medication”); AR 555
(“He is doing great. He is interested in spinal cord stimulation but doesn’t want to pursue
that right away because the medications are working so well.”). The effectiveness of
medication and treatment is a relevant factor in determining the severity of a claimant’s
symptoms. 20 C.F.R. § 416.929(c)(3)(iv)-(v). See also Tommasetti v. Astrue, 533 F.3d
1035, 1040 (9th Cir. 2008) (holding a claimant’s favorable response to conservative
treatment, such as physical therapy and anti-inflammatory medication, undermines a
claimant’s complaints of disabling pain).
In addition to Petitioner’s reports that his pain had improved with various
medications, Petitioner at times declined to pursue other forms of treatment because his
medication was working. See, e.g., AR 555. The record also contains numerous reports
of only mild to moderate pain. See AR 401, 541, 543, 555. Although the record also
contains reports of higher pain, see, e.g., AR 397, 578, 611, the ALJ appropriately

2

Petitioner’s treating sources reported other findings that support the ALJ’s
decision, such as intact gait; full range of motion; no muscle weakness; no acute distress;
the ability to squat, heel walk, and toe walk; and negative straight leg raises. See e.g., AR
407, 412.
MEMORANDUM DECISION AND ORDER - 13

interpreted the conflicting evidence to find that Petitioner’s “reports of pain were not as
persistent or severe as alleged,” and “his subjective reports of pain seem inconsistent with
his reports concerning improvements in such pain.”3 AR 669. Thus, the ALJ did not find
that Petitioner had no pain, just that it was not as persistent or severe as alleged, and did
not preclude a limited range of sedentary work. The ALJ’s reliance on the pain treatment
records provide substantial evidence to support his credibility determination.
Petitioner also notes that the ALJ placed too much emphasis on Petitioner’s
inability to see a surgeon until July 2012—when Petitioner had requested the referral in
March of 2011—as evidence that Petitioner’s pain was not as severe as alleged. AR 670.
The ALJ “note[d]” at the end of his discussion regarding Petitioner’s RFC, that Petitioner
“complained of disabling thoracic spinal pain beginning in March of 2011,” but “failed to
rigorously pursue his referral to a surgeon, and did not see one until July 2012.” AR 670.
Petitioner argues that there is no evidence to support the ALJ’s view that the delay
was due to a “fail[ure] to rigorously pursue” the referral. Although it is accurate that the
initial delay was due to a surgeon who could not accept Petitioner’s insurance, see AR
760, another consultation was “rescheduled” (from July 2011 to October 2011) for

3

Petitioner also noted that Dr. Read, an examining psychologist, reported that
Petitioner was in pain during the examination and opined that it “would be very hard for
[Petitioner] to obtain any kind of employment.” Pet.’s Reply, p. 4 (Dkt. 28) (citing AR
443). However, although Dr. Read’s comments about Petitioner seemingly being in pain
support Petitioner’s claims of pain, the ALJ appropriately considered that Dr. Read’s
observations were from a one-time visit, Petitioner’s records demonstrate subsequent
improvement in pain management, and Dr. Read’s opinion went beyond his expertise in
psychiatry. AR 668.
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reasons not specified in the record. AR 754; see also AR 758. A new referral then had to
be issued and Petitioner appeared to have waited for the surgeon’s office to contact him,
instead of trying to contact the surgeon himself. AR 751. Although the delay appears to
have been caused partly by insurance issues and the surgeon’s schedule, the ALJ
considered the delay to be an indication that Petitioner did not follow up to a degree that
would be expected if his pain was as severe as alleged. See AR 748 (noting: “[t]he
patient was not contacting Dr. Zimmerman’s office, [and] the referral ran out”).
Although subject to differing interpretations, the ALJ did not err in relying on the
delay in seeking surgery as an indication that Petitioner’s pain was not as disabling as
alleged. See Fair v. Bowen, 885 F.2d 597, 603-04 (9th Cir. 1989) (explaining that an ALJ
may rely upon a claimant’s “unexplained, or inadequately explained, failure to seek
treatment or follow a prescribed course of treatment” to discredit alleged symptoms).
Even if this does not amount to a clear and convincing reason to support the ALJ’s
credibility determination, other sufficiently supported reasons bolster the ALJ’s
determination, as set for the above. Accordingly, any error is harmless. See Carmickle v.
Comm’r, Soc. Sec. Admin., 533 F.3d 1155, 1162 (9th Cir. 2008) (“So long as there
remains substantial evidence supporting the ALJ’s conclusions on . . . credibility and the
error does not negate the validity of the ALJ’s ultimate [credibility] conclusion, such is
deemed harmless and does not warrant reversal.”) (citations and quotation marks
omitted).

MEMORANDUM DECISION AND ORDER - 15

For all of these reasons, the ALJ’s credibility determination is supported by the
requisite clear and convincing reasons. Thus, the Court must uphold that determination
even if there is evidence in the record supporting Petitioner’s claimed limitations.
2.

The ALJ supported his decision to give no weight to the medical opinion of
Michael Eastman, PA.

Michael Eastman is a physician’s assistant assisting in Petitioner’s medical care at
the Saint Alphonsus Pain Management Center. AR 412. Petitioner also received care at
the pain center from Daniel Marsh, MD, and a nurse practitioner. Eastman submitted a
medical source statement opining that Petitioner’s back pain is so severe he would be
limited to less than sedentary work and would miss more than four workdays per month
due to pain. AR 887–88.
The ALJ gave “no weight” to “[t]his statement” because Eastman is a “nonacceptable medical source under [the] rules”; the treatment notes show that Petitioner’s
back pain and leg numbness was well-controlled with medication, and the pain was so
well controlled in June of 2010 that Petitioner was camping and remaining active; and
Eastman relied “heavily” on Petitioner’s subjective pain reports.4 AR 670. The Court
discussed supra the treatment records, including those from Eastman, and Petitioner’s
activities of daily living, and found the ALJ appropriately relied on Petitioner’s activities
and his reports about improving, and controlled, pain in making the credibility

4

Petitioner agrees that the record evidences a “lack of examinations” conducted
by Eastman (even though he had access to notes from Dr. Marsh’s examinations). Pet.’s
Br., p.15 (Dkt. 26).
MEMORANDUM DECISION AND ORDER - 16

assessment. For the same reasons, that evidence and the ALJ’s credibility determination
support the ALJ’s treatment of Eastman’s medical opinion statement.5
Additionally, the ALJ appropriately treated Eastman as an “other source” and did
not error in giving no weight to his medical opinion. “Physician’s assistants are defined
as ‘other sources,’ and are not entitled to the same deference.” Molina v. Astrue, 674
F.3d 1104, 1111 (9th Cir. 2012) (citations and internal quotation marks omitted). “The
ALJ may discount testimony from these other sources if the ALJ gives reasons germane
to each witness for doing so.” Id. (quoting Turner v. Comm’r of Soc. Sec., 613 F.3d 1217,
1224 (9th Cir. 2010) (internal quotation marks omitted)).
Plaintiff cites to Gomez v. Chater, 74 F.3d 967 (9th Cir. 1996), for his argument
that a physician assistant who works in conjunction with a physician constitutes an
acceptable medical source. In Gomez, the Ninth Circuit determined that a nurse
practitioner’s opinion “was properly considered as part of the opinion of [the treating
physician the NP worked with], [who was] an acceptable medical source,” because the
NP “consulted with” the treating physician regarding the claimant’s treatment “numerous

5

In short, the reasons provided by the ALJ for rejecting Eastman’s opinion are
based on substantial evidence.
MEMORANDUM DECISION AND ORDER - 17

times.”6 Id. at 971. However, as described by several district courts in the Ninth Circuit,
the regulation relied on to reach this result in Gomez was amended in 2000:
The subsection of the regulation [20 C.F.R. § 416.913(a)(6)] which was the
basis of the Gomez [holding] regarding nurse practitioners as acceptable
medical sources when part of an interdisciplinary team was deleted by
amendment in 2000. 65 Fed.Reg. 34950, 34952 (June 1, 2000). Under
current regulations, physician assistants qualify only as an “other source” to
be considered. 20 C.F.R. §§ 404.1513(d), 416.913(d). There is no [longer
a] provision for a physician assistant to become an acceptable medical
source when supervised by a physician or as part of an interdisciplinary
team.
Olney v. Colvin, No. 12–CV–0547–TOR, 2013 WL 4525402, *4 (E.D.Wash. Aug. 27,
2013). See also Farnacio v. Astrue, 11–CV–0065–JPH, 2012 WL 4045216, *6,
(E.D.Wash. Sept. 12, 2012); Hudson v. Astrue, 11–CV–0025–CI, 2012 WL 5328786 at
*4 n. 4, (E.D.Wash. Oct. 29, 2012).7

6

Setting aside the issue of whether the Gomez rationale still applies in light of the
regulation change discussed elsewhere in this section, there are some factual differences
between this case and Gomez, including that Petitioner here cites to only one instance in
which Eastman “reviewed” Petitioner’s case with Dr. Marsh, AR 775, and that Eastman’s
opinion was not offered “as part of the opinion” of Dr. Marsh, but as his own opinion,
without a similar opinion statement in the record from Dr. Marsh. See AR 668 (noting
that Dr. Marsh, the treating physician, “never opined that the claimant’s pain was
disabling, and his treatment notes did not provide evidence of such”). Compare Gomez v.
Chater, 74 F.3d at 971. See also, e.g., Bond v. Colvin, No. 2:13–cv–127–EFB, 2014 WL
1125291, *3 (E.D.Cal. Mar. 20, 2014) (considering physician’s assistant as an “other
source”); Mack v. Astrue, 918 F.Supp.2d 975, 983 (N.D.Cal. 2013) (declining to treat a
licensed clinical social worker as an acceptable medical source because her opinion report
was prepared and signed only by her and the record did not establish a close agency
relationship with an acceptable medical source).
7

Molina expressly left open the issue of Gomez’s “continued vitality”, noting that
a physician’s assistant does “not qualify as a medically acceptable treating source” but
then citing to Gomez and considering that the physician assistant’s opinion in that case
MEMORANDUM DECISION AND ORDER - 18

Although the Court recognizes that there are good reasons for recognizing the
opinion of a physician’s assistant who provides regular treatment to a patient, the
regulations at this time do not require an ALJ to treat a physician assistant’s medical
opinion the same as that of a treating physician. Accordingly, the ALJ did not error in
declining to consider Eastman’s medical opinion, and he provided the required “germane”
reasons to support his treatment of Eastman’s opinion.
Finally, although the ALJ gave “no weight” to Eastman’s opinion, he did consider
the medical records from Petitioner’s visits to Eastman and the pain center. See AR 669
(noting that Petitioner was “treated primarily by Mr. Michael Eastman” between 2009
and 2012; citing to several treatment notes made by Eastman8). Thus, the ALJ did not
entirely ignore Eastman’s treatment history and medical records, he simply accorded no
weight to Eastman’s medical opinion, based on the regulations. The Court finds no error
in the ALJ’s determination that he should give no weight to Eastman’s other source
opinion.

did not qualify as an acceptable treating source because “the record does not show that
she worked under a physician’s close supervision”. F.3d at 1111 & 1112 n.3.
Nonetheless, the Court finds persuasive the district court decisions that have declined to
follow Gomez because of the change in the language used in the regulation on which the
Gomez court relied.
8

The ALJ cited to these records by exhibit number and page, e.g., “B27F/39”; the
records the ALJ cites to are at AR 776–85.
MEMORANDUM DECISION AND ORDER - 19

3.

The ALJ considered the impacts of Petitioner’s gastritis and abdominal pain
in assessing Petitioner’s residual functional capacity.

Petitioner’s final argument is that the ALJ failed to properly consider the impact of
Petitioner’s gastritis and recurrent abdominal pain in formulating the residual functional
capacity. The ALJ considered that Petitioner “had hospitalizations concerning abdominal
pain”, AR 669, found these abdominal conditions to be severe, AR 664, and included
several limitations in his RFC based on the combination of Petitioner’s conditions and his
limitations, AR 664.9 Petitioner has not described additional limitations related solely to
these conditions, or demonstrated how the ALJ’s assessment failed to account for these
conditions and the resulting limitations. Accordingly, the Court finds no error in the
ALJ’s treatment of these conditions. See Valentine v. Comm’r Soc. Sec. Admin., 574 F.3d
685, 692 (9th Cir. 2009) (“The ALJ concluded at Step 2 that [the claimant’s impairments]
were severe, and the RFC includes several physical limitations. [Claimant] does not detail
what other physical limitations follow from the evidence of his knee and should injuries,
besides the limitations already listed in the RFC.”).

9

The ALJ also noted that Petitioner’s abdominal pain “as relieved with
treatment.” AR 669.
MEMORANDUM DECISION AND ORDER - 20

IV. CONCLUSION
The ALJ is the fact-finder and is solely responsible for weighing and drawing
inferences from facts and determining credibility. See Allen, 749 F.2d at 579; Vincent ex.
Rel. Vincent, 739 F.2d at 1394; Sample, 694 F.2d at 642. If the evidence is susceptible to
more than one rational interpretation, one of which is the ALJ’s, a reviewing court may
not substitute its interpretation for that of the ALJ. Key, 754 F.2d at 1549.
There are no doubt considerable difficulties facing Petitioner in raising his two
daughters with only the help of his mother who is suffering from cancer and managing
with pain that, although the ALJ found is not disabling, is present. However, evidence
upon which the ALJ relied can reasonably and rationally support his conclusions with
respect to most of the issues, despite the fact that such evidence may be susceptible to a
different interpretation. Indeed, in this case, this Court might well have found differently
if was to decide the case de novo, but the Court’s review is drawn from a cold record, and
it is not this Court’s role to alter the ALJ’s decision without some appropriate basis under
the law for doing so, consistent with its role as a reviewing court only. Here, the ALJ’s
decision as to Petitioner’s alleged disability is based on proper legal standards and
supported by substantial evidence. Therefore, the Court concludes that the
Commissioner’s determination that Petitioner is not disabled within the meaning of the
Social Security Act is supported by substantial evidence in the record and is based upon
an application of proper legal standards.
Accordingly, the Commissioner’s decision is affirmed.
MEMORANDUM DECISION AND ORDER - 21

V. ORDER
Based on the foregoing, Petitioner’s Petition for Review (Dkt. 1) is DENIED, the
decision of the Commissioner is AFFIRMED, and this action is DISMISSED in its
entirety, with prejudice.
DATED: March 31, 2014.

Honorable Ronald E. Bush
U. S. Magistrate Judge

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