Austin v. Colvin

Filing 19

MEMORANDUM DECISION AND ORDER. Based on the foregoing, the decision of the Commissioner is AFFIRMED and this action is DISMISSED in its entirety with prejudice. Signed by Judge Ronald E. Bush. (km)

UNITED STATES DISTRICT COURT
DISTRICT OF IDAHO
ROBERTA AUSTIN,

Case No.:1:15-cv-00015-REB

Petitioner,

MEMORANDUM DECISION AND
ORDER

vs.
CAROLYN W. COLVIN, Acting Commissioner of
Social Security
Respondent.

Pending before this Court is Petitioner Roberta Austin’s Petition for Review (Docket No.
1), seeking review of the Social Security Administration’s final decision to deny her claim for
disability and disability insurance benefits. See generally Pet. for Review (Docket No. 1). This
action is brought pursuant to 42 U.S.C. § 405(g). Having carefully considered the record and
otherwise being fully advised, the Court enters the following Memorandum Decision and Order:
I. ADMINISTRATIVE PROCEEDINGS
On February 2, 2012, Roberta Austin (“Petitioner”) filed an application for Title XVI
disability benefits, and, on February 8, 2012, an application for Title II disability insurance
benefits – Petitioner alleged disability beginning December 22, 2011. These claims were
initially denied on April 20, 2012 and, again, on reconsideration on August 9, 2012. On
September 15, 2012, Petitioner timely filed a Request for Hearing before an Administrative Law
Judge (“ALJ”). On May 1, 2013, ALJ John T. Molleur held a hearing in Boise, Idaho, at which
time Petitioner, represented by attorney Matt Steen, appeared and testified. Impartial vocational
expert, Kent Graham, also appeared and testified during the same May 1, 2013 hearing.

MEMORANDUM DECISION AND ORDER - 1

On June 5, 2013, the ALJ issued a Decision denying Petitioner’s claim, finding that
Petitioner was not disabled within the meaning of the Social Security Act. Petitioner timely
requested review from the Appeals Council on June 24, 2013 and, on November 10, 2014, the
Appeals Council denied Petitioner’s Request for Review, making the ALJ’s decision the final
decision of the Commissioner of Social Security.
Having exhausted her administrative remedies, Petitioner timely filed the instant action,
arguing that “[t]he conclusions of law made by the [ALJ] and the Appeals Council that Petitioner
was not under a disability are incorrect and contrary to the laws and regulations of the Social
Security Act.” Pet. for Review, p. 6 (Docket No. 1). In particular, Petitioner contends that (1)
the ALJ erred in his assessment of Petitioner’s credibility; (2) the ALJ erred in assigning little
weight to Petitioner’s treating physicians; and (3) in light of these errors, the ALJ failed to
properly establish that Petitioner is able to do work that exists in significant numbers in the
national economy. See Pet.’s Brief, p. 2 (Docket No. 16). Petitioner therefore requests that the
Court either reverse the ALJ’s decision and find that she is entitled to disability benefits, or,
alternatively, remand the case for further proceedings and award attorneys’ fees. See Pet. for
Review, pp. 6-7 (Docket No. 1).
II. STANDARD OF REVIEW
To be upheld, the Commissioner’s decision must be supported by substantial evidence
and based on proper legal standards. See 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. See 42
U.S.C. § 405(g). In other words, if there is substantial evidence to support the ALJ’s factual

MEMORANDUM DECISION AND ORDER - 2

decisions, they must be upheld, even when there is conflicting evidence. See Hall v. Sec’y of
Health, Educ. & Welfare, 602 F.2d 1372, 1374 (9th Cir. 1979).
“Substantial evidence” is defined as such relevant evidence as a reasonable mind might
accept as adequate to support a conclusion. See 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 (see 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
(see 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 (see Sample v. Schweiker, 694 F.2d 639, 642 (9th Cir.
1982)). Where the evidence is susceptible to more than one rational interpretation, the reviewing
court may not substitute its judgment or interpretation of the record for that of the ALJ. See
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. See Matney, 981 F.2d at 1019. The ALJ’s
construction of the Social Security Act is entitled to deference if it has a reasonable basis in law.

MEMORANDUM DECISION AND ORDER - 3

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.” See Smith v. Heckler, 820 F.2d 1093, 1094 (9th Cir. 1987).
II. 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”). See 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. See 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. See 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 her physical/mental
impairments are and regardless of her age, education, and work experience. See 20 C.F.R.
§§ 404.1520(b), 416.920(b). If the claimant is not engaged in SGA, the analysis proceeds to the
second step. Here, the ALJ found that Petitioner has not engaged in substantial gainful activity
since December 22, 2011, the alleged onset date. See (AR 27).
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

MEMORANDUM DECISION AND ORDER - 4

requirement. See 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.
See 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. See 20
C.F.R. §§ 404.1520(c), 416.920(c). Here, the ALJ found that Petitioner had the following severe
impairments: “fibromyalgia, degenerative dis[c] disease of the lumbar and cervical spine,
diabetes mellitus, migraine headaches, schizoaffective disorder, post-traumatic stress disorder
(“PTSD”), general anxiety disorder, and bipolar disorder.” (AR 27-28).
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. See 20 C.F.R. §§ 404.1520(a)(4)(iii), 416.920(a)(4)(iii). If the
answer is yes, the claimant is considered disabled under the Social Security Act and benefits are
awarded. See 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. See id. Here, the ALJ concluded that Petitioner’s abovelisted impairments, while severe, do not meet or medically equal, either singly or in combination,
the criteria established for any of the qualifying impairments. See (AR 28-30).
The fourth step of the evaluation process requires the ALJ to determine whether the
claimant’s residual functional capacity (“RFC”) is sufficient for the claimant to perform past

MEMORANDUM DECISION AND ORDER - 5

relevant work. See 20 C.F.R. §§ 404.1520(a)(4)(iv), 416.920(a)(4)(iv). An individual’s RFC is
her ability to do physical and mental work activities on a sustained basis despite limitations from
her impairments. See 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. See 20 C.F.R. §§ 404.1560(b), 404.1565,
416.960(b), 416.965. Here, the ALJ determined that Petitioner has the RFC “to perform
sedentary work as defined in 20 C.F.R. § 404.1567(a),” except she can:
perform all postural activities occasionally and is limited to only occasional overhead
reaching with both upper extremities. Additionally, the [Petitioner] is limited to only
frequent handling and fingering with both upper extremities. Furthermore, the
claimant should have no direct exposure to vibration. The claimant is limited to only
frequent interaction with co-workers and supervisors, but can have no contact with
the general public. Moreover, her work is limited to a low stress environment with
only occasional decision-making or changes in the work setting.
(AR 30-36).
In the fifth and final step, if it has been established that a claimant can no longer perform
past relevant work because of her 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. See 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, she is not disabled; if the claimant is not able
to do other work and meets the duration requirement, she is disabled. Here, the ALJ found that
Petitioner is unable to perform any past relevant work. See (AR 36). However, the ALJ further
found that there are jobs that exist in significant numbers in the national economy that Petitioner

MEMORANDUM DECISION AND ORDER - 6

can perform, including washroom operator, waxer, and hand mounter. See (AR 36-37).
Therefore, based on Petitioner’s age, education, work experience, and RFC, the ALJ concluded
that Petitioner “has not been under a disability, as defined in the Social Security Act, from
December 22, 2011, through the date of this decision.” (AR 37).
B.

Analysis
Petitioner asks the Court to reverse the ALJ’s Decision “due to both the ALJ’s

consideration of Austin’s credibility and his assignment of weight to the opinions of her treating
physicians[;] [c]orrect evaluation of both these factors under the law results in such a restrictive
RFC, that the occupational base is entirely eroded, and the ALJ cannot establish the presence of
any employment that [Petitioner] can perform on a regular and continuing basis.” Pet.’s Brief, p.
7 (Docket No. 16). The undersigned considers these arguments below – preliminarily
considering the ALJ’s analysis of Petitioner’s treating physicians’ opinions because of its
possible interplay with (and effect upon) the ALJ’s assessment of Petitioner’s credibility.
1.

The ALJ Properly Considered Petitioner’s Treating Physicians’ Opinions

The medical opinion of a treating physician is entitled to special consideration and
weight. See Rodriguez v. Bowen, 876 F.2d 759, 761 (9th Cir. 1989). Such deference is warranted
because the treating physician “is employed to cure and has a greater opportunity to know and
observe the individual.” Id. However, a treating physician’s opinion is not necessarily
conclusive. See id. at 762. If the treating physician’s opinions are not contradicted by another
doctor, they may be rejected only for clear and convincing reasons. See Lester v. Chater, 81
F.3d 821, 830 (9th Cir. 1995). Even if the treating physician’s opinions are contradicted by
another doctor, they can only be rejected if the ALJ provides specific and legitimate reasons

MEMORANDUM DECISION AND ORDER - 7

supported by substantial evidence in the record. See id. A lack of objective medical findings,
treatment notes, and rationale to support a treating physician’s opinions is a sufficient reason for
rejecting that opinion. See Tonapetyan v. Halter, 242 F.3d 1144, 1149 (9th Cir. 2001).
Petitioner argues that the ALJ failed to give proper weight to his treating physicians’
opinions, including those from Bryan Wright, DPT, Ryan Melvin, DO, and Ronald Cantone,
PsyD. See Pet.’s Brief, pp. 14-18 (Docket No. 16). The Court addresses each of these
arguments below.
a.

Bryan Wright, DPT

Petitioner argues that Dr. Wright stated that Petitioner “medically needs a cane and
cannot walk a block at a reasonable pace or on rough or uneven surfaces, demonstrating an
inability to ambulate effectively . . . .” Id. at p. 15 (citing (AR 690) (Dr. Wright indicating that
Petitioner (1) could sit, stand, and walk for a total of 30 minutes each, in an 8-hour workday, and
(2) could only ambulate 3-4 steps without the use of a cane). According to Petitioner, the ALJ
improperly rejected Dr. Wright’s opinions in these respects. See id. at pp. 14-18. The
undersigned disagrees.
At the outset, although Dr. Wright is referred to as a Doctor of Physical Therapy, such a
position is not an “acceptable medical source” as defined by the Social Security regulations. See
20 C.F.R. §§ 404.1513(a), 416.913(a); compare with 20 C.F.R. §§ 404.1513(d), 416.913(d)
(discussing “other sources”). ALJs may not discount “other” medical sources without
explanation, but less weight may be afforded such medical sources if the ALJ provides
“germane” reasons. See Ghanim v. Colvin, 763 F.3d 1154, 1161 (9th Cir. 2014); Molina v.
Astrue, 674 F.3d 1104, 1114 (9th Cir. 2012). It is sufficient if an “ALJ at least noted arguably

MEMORANDUM DECISION AND ORDER - 8

germane reasons for dismissing [other source] testimony, even if he did not clearly link his
determination to those reasons.” Lewis v. Apfel, 236 F.3d 503, 512 (9th Cir. 2001). Germane
reasons include the fact that an opinion is inconsistent with objective medical evidence in the
record. See Bayliss v. Barnhart, 427 F.3d 1211, 1218 (9th Cir. 2005).
Dr. Wright’s opinions were considered but ultimately given little weight by the ALJ,
owing to their incongruity with the balance of other medical evidence in the record. See (AR 35)
(“Little weight is given to this overly restrictive opinion, as it is inconsistent with the evidence of
record indicating that although the [Petitioner] experienced myofascial trigger point tenderness
and reduced range of motion in her cervical and lumbar spine, she maintained 4 out of 5 strength
throughout her upper and lower extremities bilaterally and exhibited a normal gait and station.”)
(citing (AR 398-99, 404-05, 410-11, 422-23, 438-39, 450-51, 461-62)); see also infra. This
explanation is sufficiently germane to Dr. Wright’s opinions to satisfy the explanation required
of the ALJ in order to discount “other” medical source opinions.
b.

Ryan Melvin, D.O.

On January 29, 2013, Dr. Melvin submitted a “Residual Functional Capacity
Questionnaire.” See (AR 708-09). Dr. Melvin indicated that Petitioner suffered from “chronic
low back pain,” with the following “functional limitations”:
•

Walking two city blocks without rest or significant pain;

•

Sitting more than 45 minutes at a time for a total of two hours in an 8-hour
workday;

•

Standing/walking more than 45 minutes for a total of two hours in an 8-hour
workday;

•

Needing to shift positions and take ten unscheduled 15-minute breaks per
day;

MEMORANDUM DECISION AND ORDER - 9

•

Frequently lifting/carrying 10 pounds or less, occasionally lifting/carrying
20 pounds, and never lifting/carrying 50 pounds or more; and

•

Using her right hand 25% of the time and her left hand 15% of the time (to
grasp, turn, and twist objects) during an 8-hour workday; using her right
fingers 75% of the time and her left fingers 65% of the time (for fine
manipulation) during an 8-hour workday; and using her right and left arms
10% of the time (for reaching) during an 8-hour workday.

See id. Ultimately, Dr. Melvin opined that Petitioner would miss more than four days of work
each month because of impairments, and that she would be incapable of working an 8-hour day,
five days a week, on a sustained basis. See id.
In his Decision, the ALJ gave Dr. Melvin’s opinions in these respects “little weight”
because, he wrote, “the severe limitations are not supported by the evidence of record . . . .” (AR
35). Petitioner takes issue with this, arguing that the ALJ’s reasons for rejecting Dr. Melvin’s
opinions1 “do not satisfy the ‘substantial evidence’ standard.” Pet.’s Brief, p. 15 (Docket No.
16). The Court’s own review of the record supports the ALJ’s decision to diminish the import of
these particular findings.
First, to the extent Dr. Melvin definitively considered Petitioner disabled as of January
29, 2013, such an opinion on the ultimate issue here (at least as that term is used within the
meaning of the Social Security Act) is neither conclusive nor binding upon the ALJ. See
Rodriguez v. Bowen, 876 F.2d 759, 761 (9th Cir. 1989); see also SSR 96-5p, available at 1996
WL 374183, *2 (the “final responsibility for deciding [whether an individual is ‘disabled’ under
the Social Security Act] . . . is reserved to the Commissioner.”); 20 C.F.R. §§ 404.1527(e)(1),

1

In giving little weight to Dr. Melvin’s January 29, 2013 opinions, the ALJ provided the
same reasons as the ones supplied for Dr. Wright’s opinions. That is not a basis for rejecting his
reasons, so long as the supplied reasons apply equally in each instance.
MEMORANDUM DECISION AND ORDER - 10

416.927(e)(1) (“We are responsible for making the determination or decision about whether you
meet the statutory definition of disability.”).
Second, turning to Dr. Melvin’s treatment notes over time, they do not neatly align with
the physical limitations he ultimately assigns to Petitioner in the “Residual Functional Capacity
Questionnaire.” There is reference in the notes that Petitioner is grappling with back pain,
fibromyalgia, diabetes mellitus, and migraine headaches. But whether Petitioner suffers from
these impairments is not at issue here. To be clear, the ALJ found in no uncertain terms that
these very impairments were “severe,” and that Petitioner’s residual functional capacity is
negatively impacted. See supra (citing (AR 27-28)). And, for the most part, these treatment
notes reflect Petitioner’s periodic subjective complaints of pain; however, largely absent from
such notes are any corresponding opinions or findings from Dr. Melvin (1) paralleling the
opinions reached (in the “Residual Functional Capacity Questionnaire”) as to Petitioner’s alleged
functional limitations, or (2) quantifying in any consistent degree Petitioner’s pain statements
and resultant limitations. See, e.g., (AR 33) (ALJ noting in Dr. Melvin’s June 30, 2012
treatment note that “[Petitioner’s] extremities were well perfused with no clubbing, cyanosis, or
edema” and that “multiple follow-up examinations in February 2012, March 2012, May 2012,
and June 2012 yielded similar unremarkable results.”) (citing (AR 481, 492, 494, 499, 504,
509)).
Finally, Dr. Melvin’s treatment notes immediately following January 29, 2013, arguably
paint a very different picture from the one contained in the “Residual Functional Capacity
Questionnaire.” For example:
•

2/25/13:

“Pain Assessment: Patient denies any pain . . . Normal gait
and station. Normal neck alignment and mobility. Normal
spine alignment and mobility, no deformity. Normal [range

MEMORANDUM DECISION AND ORDER - 11

of motion] and strength, no joint swelling or tenderness. Well
perfused. . . . Joint mobility within normal limits. Gait and
balance within normal limits.” (AR 752-53).
•

2/28/13

“Pain Assessment: Patient denies any pain . . . . Extremities:
Well perfused.” (AR 746).

•

3/5/13

“Pain Assessment: Patient denies any pain . . . . Extremities:
Well perfused.” (AR 738).

Third, Dr. Melvin’s opinions (at least the ones drawn from the “Residual Functional
Capacity Questionnaire”) do not exist in isolation. Medical consultants John Crites, M.D. and
Thomas T. Coolidge, M.D. opined that Petitioner was capable of sedentary work with some nonexertional limitations:
We have carefully reviewed all the evidence in your file. Records showed that you
do have back problems, heart problems, migraines, and depression. Records also
showed that you are able to walk, use your extremities satisfactorily, lift, carry, and
handle light objects, care for your personal needs, and think and act in your own
interest.
Your condition results in some limitations in your ability to perform work related
activities. However, these limitations do not prevent you from performing work you
have done in the past as a bookkeeper, as normally performed in the national
economy. We have determined that your condition is not severe enough to keep you
from working. We considered the medical and other information, your age,
education, training, and work experience in determining how your condition affects
your ability to work.
***
The medical evidence shows that you have a history of these conditions. Upon
exam, your heart rate is regular. Lungs are clear. The evidence does not show
severe neurological deficits or muscle weakness. You are able to walk and move
about independently. Cognition and memory are intact. You are able to think and
reason. While your condition does cause you pain and requires treatment and
monitoring, it is determined that it should not prevent you from doing all types of
work.
Your condition results in some limitations in your ability to perform work related
activities. However, these limitations do not prevent you from performing work you
have done in the past as a bookkeeper, as normally performed in the national
MEMORANDUM DECISION AND ORDER - 12

economy. We have determined that your condition is not severe enough to keep you
from working. We considered the medical and other information, your age,
education, training, and work experience in determining how your condition affects
your ability too work.
(AR 92-102, 104-116).2
There is no challenge here to the fact that Petitioner has a multitude of issues surrounding
her back pain; rather, the focus is upon the lack of corroboration in the medical record (including
Dr. Melvin’s own treatment notes) to the substantial limitations provided in the June 29, 2013
“Residual Functional Capacity Questionnaire.” This is what the ALJ meant when stating that
“[Dr. Melvin’s] opinion as to the severe limitations are not supported by the evidence of record.”
(AR 35). The undersigned agrees, finding that the ALJ provided clear and convincing reasons
for rejecting Dr. Melvin’s opinions. This is not to say that this Court conclusively finds
Petitioner not to be disabled under the applicable rules and regulations; to be sure, Petitioner
appropriately identifies conflicting evidence in support of her position. While such conflicting
evidence may not have been as favorably received as Petitioner naturally hoped, the ALJ’s
decision to question Dr. Melvin’s disability opinion contains appropriate reasons for doing so.
As required by controlling law, the ALJ will not be second-guessed in this respect. See Batson v.
Comm’r of Social Security Admin., 359 F.3d 1190, 1193 (9th Cir. 2004) (“[T]he Commissioner’s
findings are upheld if supported by inferences reasonably drawn from the record, and if evidence
exists to support more than one rational interpretation, we must defer to the Commissioner’s
2

The ALJ actually departed from Drs. Crites’s and Coolidge’s opinions in part, finding
instead that Petitioner is unable to perform any past relevant work. See (AR 36); see also (AR
35) (“Although the undersigned finds slightly different limitations than the state agency
physicians based on the record as a whole, the undersigned reasons that the state agency’s
findings are consistent with the determination that the claimant is capable of significant workrelated activities.”).
MEMORANDUM DECISION AND ORDER - 13

decision.”) (internal citations omitted); see also Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir.
2005) (“Where evidence is susceptible to more than one rational interpretation, it is the ALJ’s
conclusion that must be upheld.”).
c.

Ronald Cantone, Psy.D.

Within an April 8, 2013 “Mental Capacity Assessment,” Dr. Cantone remarked that
Petitioner had moderate limitations in her ability to interact socially and moderate limitations in
her ability to sustain concentration and persistence which markedly impacted her ability to
complete a normal workday/workweek. See (AR 764-66). The ALJ, however, assigned “little
weight” to these opinions, “given the lack of medical evidence supporting such severe
limitations.” (AR 35) (“[I]t appears that the doctor’s opinion is based primarily on the
claimant’s subjective allegations. Overall, the doctor’s overly restrictive opinion is inconsistent
with the evidence of record indicating that with the exception of a few exacerbations, the
[Petitioner’s] thought processes and speech were normal and her insight and judgment were
good.”) (citing (AR 680, 727, 759)).
An ALJ may “permissibly reject . . . check-off reports that [do] not contain any
explanation of the bases of their conclusions.” See, e.g., Molina, 674 F.3d at 1111 (9th Cir.
2012); Crane v. Shalala, 76 F.3d 251, 253 (9th Cir. 1996); see also Holohan v. Massanari, 246
F.3d 1195, 1202 (9th Cir. 2001) (observing that the regulations “give more weight to opinions
that are explained than to those that are not.”); Tommasetti v. Astrue, 533 F.3d 1035, 1041 (9th
Cir. 2008) (ALJ may reject physician’s opinion if it is based “to a large extent” on a claimant’s
self-reports that have been properly discounted as not credible [(see infra)].”); Ellison v. Colvin,
2014 WL 4853126, *6 (D. Idaho 2014) (“When a physician relies on Petitioner’s subjective
MEMORANDUM DECISION AND ORDER - 14

complaints, which the ALJ properly discounted in an adverse credibility determination, that is a
legally sufficient reason on which the ALJ could properly rely to accord less weight to
[physician’s] opinion.”) Because Dr. Cantone’s opinions in his “Mental Capacity Assessment”
appear to be mere reflections of Petitioner’s subjective complaints, the ALJ did not err in calling
their import into question.
These opinions also are disconnected with Dr. Cantone’s own December 5, 2012
“Comprehensive Diagnostic Assessment” (“Assessment”) of Petitioner. At that time, Dr.
Cantone documented Petitioner’s depression, hypomania, anxiety, and PTSD. (AR 683). But,
again, these findings are not disputed; the ALJ already found that Petitioner suffered from these
impairments (and more) and that they were severe. See (AR 27-28). More to the point, Dr.
Cantone’s “Current Mental Status Observation” (within the Assessment) indicated that Petitioner
(1) had good comprehension and organized thought processes; (3) was coherent; (4) had no
suicidal ideations, grandiose, or suspicious thoughts; (5) was not somatic, aggressive, or
delusional; (6) maintained no illusions, anxiety,3 hallucinations, or anger; (7) had fair
concentration and intact reasoning; (8) had good immediate, short, and long term memory; and
(9) had good judgment and insight. See (AR 684). Nowhere within the Assessment did Dr.
Cantone suggest – as he did in the April 8, 2013 “Mental Capacity Assessment” – that Petitioner
had serious limitations in completing a normal workday/workweek without interruptions
stemming from difficulties with her mental health. Compare (AR 684), with (AR 765); see also
(AR 680) (12/17/12 treatment note indicating that “Gross mental status is normal. [No acute
distress]. Patient is pleasant and engages easily. Good eye contact. SOME anxiety present.

3

At the same time, Dr. Cantone found Petitioner’s emotions/affect to be “depressed,
anxious/tearful at times.” (AR 684).
MEMORANDUM DECISION AND ORDER - 15

Well groomed and good hygiene. Cooperative. Insight is good. Judgement is good. Stays on
task with thought process, pressured speech with normal tone and volume. No tremors or tics
appreciated.”) (capitalization in original); (AR 730) (1/24/13 treatment note indicating same);
(AR 729) (1/28/13 treatment note indicating same, in addition to being “tearful”); (AR 727)
(2/5/13 treatment note indicating same, except “no anxiety present”); (AR 761) (2/25/13
treatment note indicating same, except “no anxiety present” and “normal gait”); (AR 759)
(3/25/13 treatment note indicating same, except “no anxiety present” and “normal gait”).
The ALJ also described that Dr. Cantone’s opinions are inconsistent with the medical
record. Medical psychologist, Mack Stephenson, Ph.D., opined that Petitioner had no limitations
in activities of daily living, concentration, and social functioning. (AR 97). Michael Dennis,
Ph.D, reviewed Dr. Stephenson’s opinion, finding that Petitioner had mild limitations in
activities of daily living, concentration, and social functioning. (AR 111). The ALJ addressed
these opinions as follows:
In social functioning, the claimant has mild to moderate difficulties. The claimant
indicated that she spends time with others and attends church twice a month.
Additionally, the claimant reported that she has no problems getting along with
family, friends, neighbors, or authority figures. After reviewing the medical
evidence of record, the state agency psychological consultant, Michael Dennis,
Ph.D., indicated that the claimant had only a mild limitation in this area. For this
reason, the undersigned finds that the claimant has a mild to moderate limitation in
this area.
With regard to concentration, persistence or pace, the claimant has mild to moderate
difficulties. With the exception of a few exacerbations, medical records consistently
indicate that the claimant’s though processes and speech were normal and her insight
and judgment were good. After reviewing the medical evidence of record, the state
agency psychological consultant, Dr. Dennis, indicated that the claimant had only a
mild limitation in this area. For this reason, the undersigned finds that the claimant
has a mild to moderate limitation in this area.
(AR 29).
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With all this in mind, there is no question that Petitioner suffers from several impairments
(acknowledged as “severe” by the ALJ) that no doubt impact her ability to work; however, it
cannot be said that the ALJ failed to provide specific legitimate reasons for rejecting Dr.
Wright’s, Dr. Melvin’s, and Dr. Cantone’s opinions. No doubt the opinions of these providers
were not given the weight Petitioner would have preferred; however, they clearly were
considered in the context of the surrounding medical record.
In this setting, the Court’s duty is not to resolve the conflicting opinions and ultimately
decide whether Petitioner is once-and-for-all disabled as that term is used within the Social
Security regulations. Rather, this Court must decide whether the ALJ’s decision that Petitioner
is not disabled is supported by the record. In this record, there are inconsistent treatment notes
and conflicting medical opinions which gave rise to the ALJ’s decisions on how to consider the
opinions of Drs. Wright, Melvin, and Cantone. His decision to discount and give little weight to
such opinions is supported by clear and convincing, specific, and legitimate reasons for doing so.
Hence, because the evidence can reasonably support the ALJ’s conclusions in these respects, this
court will not substitute its judgment for that of the ALJ’s even if this court were to have a
different view. See Richardson, 402 U.S. at 401; Matney, 981 F.2d at 1019.
2.

Petitioner’s Credibility

As the trier-of-fact, the ALJ is in the best position to make credibility determinations and,
for this reason, his determinations are entitled to great weight. See Anderson v. Sullivan, 914
F.2d 1121, 1124 (9th Cir. 1990); see also Reddick v. Chater, 157 F.3d 715, 722 (9th Cir. 1998)
(ALJ is responsible for determining credibility, resolving conflicts in medical testimony, and for
resolving ambiguities). In evaluating a claimant’s credibility, the ALJ may engage in ordinary

MEMORANDUM DECISION AND ORDER - 17

techniques of credibility evaluation, including consideration of claimant’s reputation for
truthfulness and inconsistencies in claimant’s testimony, or between claimant’s testimony and
conduct, as well as 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. See Thomas v. Barnhart, 278 F.3d 947, 958-59 (9th Cir. 2002). Also, the
ALJ may consider location, duration, and frequency of symptoms; factors that precipitate and
aggravate those symptoms; amount and side effects of medications; and treatment measures
taken by claimant to alleviate those symptoms. See SSR 96-7p, available at 1996 WL 374186
(discussed supra). In short, “[c]redibility decisions are the province of the ALJ.” Fair v. Bowen,
885 F.2d 597, 604 (9th Cir. 1989). However, to reject a claimant’s testimony, the ALJ must make
specific findings stating clear and convincing reasons for doing so. See Holohan v. Massanari,
246 F.3d 1195, 1208 (9th Cir. 2001) (citing Reddick, 157 F.3d at 722).
Here, Petitioner alleges that she suffers from medical conditions that cause her to
experience headaches, severe pain, numbness, fatigue, weakness, and difficulty sitting, standing,
walking, kneeling, lifting, squatting, bending, reaching, stair climbing, remembering,
concentrating, completing tasks, and understanding. See, e.g., (AR 281-89). She confirmed as
much at her hearing, testifying that she was limited to standing or sitting for approximately 30
minutes each, and lifting up to 10 to 15 pounds. She reported spending most of the day sitting in
her recliner, with headaches so severe that she has to lie down for hours and days at a time. See
(AR 53, 58-60).
The ALJ, however, concluded that Petitioner’s daily activities were inconsistent with her
allegations of disabling symptoms and limitations, pointing out that she generally handles her

MEMORANDUM DECISION AND ORDER - 18

personal care needs, can prepare simple meals, performs basic household chores, drives a car,
shops for groceries, pays bills, uses a checkbook, and maintains the ability to count change. See
(AR 31) (citing (AR 282-83)).4 Elsewhere in the record are references to Petitioner taking
several trips to Arizona to her and her husband’s “other home.” See (AR 645, 730, 761). And,
in January 2012, Petitioner reported no joint pains, muscle weakness, back pain, or difficulties
walking (see (AR 384)), and said that she exercised to an “aerobic exercise video” in February,
March, May, June, and November 2012. See (AR 481, 489, 494, 497, 645). In other words, the
ALJ appropriately did not reject Petitioner’s complaints that she suffers from certain
impairments. Rather, by discussing her daily activities (including those reflected in the medical
record), his focus was on Petitioner’s claim that she cannot work because those impairments
allegedly limit her ability to work. See, e.g., Madrid v. Colvin, 2016 WL 1161978 at *10, n.8
(N.D. 2016) (“The Ninth Circuit has held that “the adjudicator may not discredit a claimant’s
testimony of pain and deny disability benefits solely because the degree of pain alleged by the
claimant is not supported by objective medical evidence.” As discussed, herein, the ALJ did not
reject Plaintiff’s allegations that she suffers hand pain, but rather evaluated record evidence
regarding Plaintiff’s alleged diminished dexterity.”) (quoting Bunnell, 947 F.2d at 346-47).
Additionally, the ALJ identified discrepancies between Petitioner’s allegations and the
medical evidence. See (AR 32) (“Turning to the medical evidence, the objective findings in this

4

Shops for Though the ALJ correctly cited the record, it is arguably incomplete in that
Petitioner claims to only take showers because she is unable to get in and out of the tub; her
husband helps shave her, cooks for her, and double-checks everything she does. See (AR 282,
285). If this represented the sole basis in which the ALJ challenged Petitioner’s credibility, it
would not be enough. However, these limited daily activities, coupled with medical evidence
calling into question the disabling effects of her impairments, provides ample support for the
ALJ’s credibility determination. See supra.
MEMORANDUM DECISION AND ORDER - 19

case fail to provide strong support for the claimant’s allegations of disabling symptoms and
limitations. . . . [D]espite [findings of disc disease, elevated blood sugar levels, headaches, and
back and neck pain], physical examinations repeatedly failed to indicate disabling symptoms and
limitations as a result.”). The ALJ did this in systematic fashion, detailing medical records from
December 2011 to February 2013, including records submitted after the hearing. See (AR 3234); see also supra. Ultimately, the ALJ concluded that these records suggested that Petitioner’s
statements concerning the limiting effects of her impairments were not entirely credible. See
(AR 36) (“The credibility of the claimant’s allegations is weakened by inconsistencies between
her allegations, her statements regarding daily activities, and the medical evidence.”).
Together, these reasons offer clear and convincing explanations as to why the ALJ did
not find Petitioner’s testimony entirely credible. This is not to say that this Court conclusively
finds Petitioner not to be disabled under the applicable rules and regulations, or that Petitioner
does not suffer from chronic pain; indeed, as expected, Petitioner identifies conflicting evidence
in support of her position. While such conflicting evidence may not have been given the weight
Petitioner would have preferred, the ALJ’s decision to doubt Petitioner’s credibility in denying
disability benefits contains clear and convincing reasons for doing so. As required by
controlling law, the ALJ will not be second-guessed as to such conclusions, on the record here
and the justifications provided. See Batson v. Comm’r of Soc. Sec. Admin., 359 F.3d 1190 (9th
Cir. 2004) (“[T]he Commissioner’s findings are upheld if supported by inferences reasonably
drawn from the record, and if evidence exists to support more than one rational interpretation,
we must defer to the Commissioner’s decision.”) (internal citations omitted). Therefore, the
Court will not substitute its judgment when the evidence in the record can support the ALJ’s
findings.
MEMORANDUM DECISION AND ORDER - 20

3.

The ALJ’s RFC Analysis Was Proper

Because the ALJ properly considered the medical record (including Petitioner’s treating
physicians) and Petitioner’s credibility, his RFC analysis was proper. Relatedly, there is no basis
to conclude that his determination that Petitioner was able to perform sedentary work (and that
such work existed in significant numbers in the national economy) was improper.
IV. CONCLUSION
The ALJ is the fact-finder and is solely responsible for weighing and drawing inferences
from facts and determining credibility. 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.
The evidence relied upon by the ALJ can reasonably and rationally support the ALJ’s
well-formed conclusions, despite the fact that such evidence may be susceptible to a different
interpretation. Accordingly, the ALJ’s decisions as to Petitioner’s disability claim were based on
proper legal standards and supported by substantial evidence. Therefore, 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.
The Commissioner’s decision is affirmed.
///
///

MEMORANDUM DECISION AND ORDER - 21

V. ORDER
Based on the foregoing, the decision of the Commissioner is AFFIRMED and this action
is DISMISSED in its entirety with prejudice.
DATED: March 31, 2017

Honorable Ronald E. Bush
Chief U. S. Magistrate Judge

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