Kiedrowski v. Commissioner of Social Security

Filing 20

MEMORANDUM DECISION AND ORDER. It is hereby ORDERED that the Commissioner's decision finding that the Petitioner is not disabled within the meaning of the Social Security Act is AFFIRMED and that the petition for review is DISMISSED. Signed by Judge Candy W. Dale. (alw)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF IDAHO

SHANNA MICHELLE KIEDROWSKI,
Petitioner,

Case No. 1:17-CV-00460-CWD

v.

MEMORANDUM DECISION
AND ORDER

NANCY A. BERRYHILL,
Acting Commissioner of Social Security
Administration,
Respondent.

INTRODUCTION
Currently pending before the Court for its consideration is Shanna Michelle
Kiedrowski’s Petition for Review of the Respondent’s denial of social security benefits,
filed November 6, 2017. (Dkt. 1.) 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
Petitioner filed a Title II application for Disability Insurance Benefits and
Supplemental Security Income on September 30, 2014, claiming disability since April 14,
2014,1 due to degenerative disk disease-status post lumbar fusion, osteoarthritis of the
right sacroiliac joint, Ehlers-Danlos syndrome, and obesity. This application was denied
initially and on reconsideration, and a hearing was held on October 4, 2016, before
Administrative Law Judge (ALJ) Mark Kim. After hearing testimony from Petitioner,
vocational expert Polly Peterson, and medical expert John Kwock, M.D., ALJ Kim issued
a decision finding Petitioner not disabled on November 22, 2016. Petitioner timely
requested review by the Appeals Council, which denied her request for review on
September 6, 2017. Petitioner appealed this final decision to the Court. The Court has
jurisdiction to review the ALJ’s decision pursuant to 42 U.S.C. § 405(g).
At the time of the hearing, Petitioner was 38 years of age. Petitioner has a high
school level education, is married, and lives with her husband and three teenage children.
Petitioner’s prior employment experience includes work as a human resource
administrator, a front desk clerk, and a retail cashier.
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

This alleged onset date was later amended to September 25, 2014, as September 23, 2014, was
the last date Petitioner worked.

MEMORANDUM DECISION AND ORDER - 2

be determined whether the claimant is engaged in substantial gainful activity. The ALJ
found Petitioner had not engaged in substantial gainful activity since her alleged amended
onset date, September 25, 2014. At step two, it must be determined whether the claimant
suffers from a severe impairment. The ALJ found each of Petitioner’s impairments –
degenerative disc disease of the lumbar spine-status post lumbar fusion, osteoarthritis of
the right sacroiliac joint, Ehlers-Danlos syndrome, 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 Petitioner’s impairments did not meet or equal the
criteria for the listed impairments, specifically, 20 C.F.R. Part 404, Subpart P, Appendix
1 (20 C.R.F. 404.1520(d). 404.1525 and 404.1526). 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 Petitioner was not able to perform
her past relevant work as a human resource administrator, front desk clerk, or retail
cashier.
If a claimant demonstrates an inability to perform past relevant work, the burden
shifts to the Commissioner to demonstrate, at step five, that the claimant retains the
capacity to make an adjustment to other work that exists in significant levels in the
national economy, after considering the claimant’s residual functional capacity, age,
education, and work experience. At step five, the ALJ found, considering Petitioner’s
MEMORANDUM DECISION AND ORDER - 3

age of 36 years at the time of the alleged onset date, high school level education, and
work experience, that she retained the capacity to perform a limited range of sedentary
work, as defined in 20 C.F.R. 404.1567(a). The ALJ imposed the following limitations in
addition to the sedentary occupational base: Petitioner can no more than occasionally
push or pull with right lower extremities or frequently balance; can occasionally can
stand, kneel and climb ramps and stairs, but never crouch, crawl or climb ladders, ropes
or scaffolds; must avoid all exposure to excessive vibrations and hazards; and, perform
no more than simple, routine tasks due to physical pain and the effects of medication.
Considering testimony from vocational expert Peterson, and providing the forgoing
limitations, the ALJ found Petitioner could perform the requirements of representative
occupations such as document preparer, final assembly optical, and lamp shade
assembler. As such, the ALJ found Petitioner not disabled.
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. Finch, 438 F.2d 920, 921 (9th Cir. 1971).
An individual will be determined to be disabled only if her physical or mental
impairments are of such severity that she not only cannot do her previous work but is
unable, considering her age, education, and work experience, to engage in any other kind
MEMORANDUM DECISION AND ORDER - 4

of substantial 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,
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 claims. 42
U.S.C. § 405(g); Flaten v. Sec’y of Health & 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).

MEMORANDUM DECISION AND ORDER - 5

DISCUSSION
Petitioner believes the ALJ erred at step four of the sequential process in three
ways. First, Petitioner argues the ALJ failed to provide specific and legitimate reasons
supported by substantial evidence when assigning little weight to the findings of treating
providers and assigning greater weight to the opinions of an examining physician and
non-examining medical sources. Second, Petitioner argues the ALJ failed to provide
reasons germane to each lay witness when assigning less than full weight to their
testimony. Third, Petitioner argues the ALJ’s RFC findings failed to include limitations
identified by Petitioner’s treating physicians and was thus defective. Respondent
disagrees, arguing the ALJ reasonably evaluated the medical opinion evidence because
there was little to no medical evidence in the record supporting Petitioner’s allegations of
severe pain and limitation. Respondent contends also that the ALJ gave sufficient reasons
germane to the lay witnesses to discount their testimony.
A.

Physician testimony
Petitioner argues the ALJ erred in rejecting or assigning little weight to the

opinions of her treating neurologist, treating primary care physician, and treating
rheumatologist, and assigning more weight to the opinions of an examining but nontreating provider, a state-agency reviewing physician, and the non-examining testifying
medical advisor. After careful consideration and noting that there is evidence in the
record to make an alternative finding, the Court finds the ALJ gave legitimate and
specific reasons supported by substantial evidence in the record for assigning little weight
MEMORANDUM DECISION AND ORDER - 6

to the treating physicians’ opinions, and thus did not commit legal or factual error.
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 (non-examining physicians). Lester v. Chatter, 81 F.3d 821, 830 (9th Cir.
1995). “The ALJ is responsible for resolving conflicts in the medical record.” Carmickle
v. Comm’r, Soc. Sec. Admin., 533 F.3d 1155, 1164 (9th Cir. 2008). Generally, the ALJ
accords more weight to the opinions of treating physicians than to non-treating
physicians. Winans v. Bowen, 853 F.2d 643, 647 (9th Cir.1987). If a treating physician’s
opinion is not contradicted by another physician, it may be rejected only for “clear and
convincing” reasons. Baxter v. Sullivan, 923 F.2d 1391, 1396 (9th Cir.1991). If a treating
physician’s opinion is contradicted by another physician, 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).
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
F.2d 1016, 1019 (9th Cir. 1992). However, an examining physician’s opinion is entitled
to greater weight than the opinion of a non-examining physician. Pitzer v. Sullivan, 908
F.2d 502, 506 (9th Cir.1990); Gallant v. Heckler, 753 F.2d 1450 (9th Cir.1984).
Additionally, an ALJ is not bound to any physician’s opinion of a claimant’s
MEMORANDUM DECISION AND ORDER - 7

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 a 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 a 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 matter, the ALJ assigned little weight to the opinions of Petitioner’s treating
providers based in large part on his review of the opinions in light of the objective
medical evidence in the record as a whole. (See AR 27.) Considering this justification,
prior to reviewing the ALJ’s decision as to each provider, the Court will provide a brief
summary of Petitioner’s medical history, as is discernable by a review of the objective
medical evidence in the record as well as the treatment notes of Petitioner’s providers.
On April 4, 2006, Petitioner suffered a work-related injury. (AR 214; 546.) She
fell onto her left buttock on a hard floor surface while attempting to move a cement
mixer. Id. Testing performed after the accident revealed that Petitioner had sensory loss
in her lower left extremity. Id. Petitioner returned to work after the accident. Initially, she
received chiropractic treatment and sacroiliac joint (SI) injections to treat her injuries. Id.
At that time, Petitioner reported having difficulty walking more than one half of a mile
due to pain in her lower left extremity. (AR 445.)
MEMORANDUM DECISION AND ORDER - 8

Petitioner, who is 5 feet 5 inches tall, weighed approximately 123 pounds in 2006.
(AR 444.) An MRI of Petitioner’s lumbosacral spine taken on July 7, 2006, showed a
possible bilateral pars defect at L5 and a grade I anterolisthesis on L5-S1, as well as a
disc bulge at L5-S1, with moderate bilateral foraminal stenosis. Eventually, on August 9,
2007, Petitioner had surgery to correct the defect in her spine—a L5-S1 discectomy, with
posterior effusion and internal fixation, with pedicle screws and end rods. Id. Petitioner
continued to work after recovery from her spinal surgery.
In September and October of 2008, Petitioner was seen seven times by Kevin
Marsh, D.C., for complaints of back pain. (AR 475-77.) The primary chiropractic
diagnosis was thoracic somatic dysfunction and associated myofascial pain syndrome. Id.
In 2010, Petitioner weighed 155 pounds. (AR 548.) At that time, she reported
minimal lower back pain that became severe as the day progressed. (AR 547.) She
reported being able to sit or stand for about 30 minutes at a time before having to change
to the opposite, either sitting or standing. Id. As in 2006, Petitioner reported being able to
walk for about one half of a mile. Id. Petitioner’s gait was normal in 2010. (AR 549.) An
examining physician found Petitioner would be expected to be able to sit for 30 minutes
at a time for up to 4 hours during a work day and stand or walk for 30 minutes for up to
four hours during a work day. (AR 549.)
In June 2014, Petitioner reportedly injured her back again while moving a steam
cleaner. (AR 72; 380; 572.) In July 2014, Petitioner weighed 193 pounds, with a body
mass index of 31.4. (AR 573.) She was unable to tolerate sitting for any extended period
MEMORANDUM DECISION AND ORDER - 9

of time. Id. Her sacroiliac (SI) joints were tender to palpation. Id. She had decreased light
touch sensory in her right leg and foot. Id. Changes to her gait had also taken place since
2010. Id. In 2014, Petitioner had difficulty with heel walking due to pain, and her gait
was mildly antalgic.
A few months later, in September 2014, Petitioner presented for an office visit
being “absolutely miserable with pain in her sacroiliac area.” (AR 575.) From this point
forward, the medical records show Petitioner consistently reported SI pain, was
prescribed and took medication for it, and participated in physical therapy to obtain pain
relief. Petitioner planned to undergo an SI joint fusion surgery as an effort to eliminate or
reduce her SI pain. Id. In addition to developing significant SI pain, in 2015, Petitioner
was diagnosed with chronic pain syndrome and Ehlers-Danlos syndrome. With this
background of Petitioner’s medical history in mind, the Court will review the weight
assigned by the ALJ to the various physicians’ opinions.
i.

Bret Dirks, M.D. and Morgan Ford, M.D. – Treating Physicians

The ALJ considered a note from Petitioner’s treating neurologist, Bret A. Dirks,
M.D., dated September 25, 2014. (AR 589.) The note itself is a type-written form, where
Dr. Dirk’s circled the option “is not” to indicate Petitioner was not released to work as of
“September 25, 2014.” Id. Dr. Dirks did not enter any other information on the form. Id.
The ALJ considered a similar note made by Petitioner’s primary care physician, Morgan
D. Ford, M.D., dated January 29, 2015. (AR 620.) Dr. Ford’s note is handwritten on a
prescription slip and states only that Petitioner was “not able to work in any capacity,
MEMORANDUM DECISION AND ORDER - 10

from September 25, 2014 until she [got] approval for and recovery from right iFuse SI
joint procedure.” Id.
The ALJ assigned both notes little weight, because he found they were not
supported by objective medical evidence or consistent with the medical evidence of
record when viewed as a whole. The ALJ found also that the doctors were not qualified
to render vocational opinions as to whether the Petitioner could perform work. In
response, Petitioner argues the ALJ’s findings do little more than offer the ALJ’s own
conclusions. Petitioner asserts the ALJ’s findings are legally insufficient because the ALJ
did not meaningfully consider Dr. Dirks’ and Dr. Fords’ opinions before disregarding
them. (citing Hill v. Astrue, 698 F.3d 1153, 1160 (9th Cir. 2012); Reddick v. Shater, 157
F.3d 715, 725 (9th Cir. 2008)).
Although these notes contain limited opinions, the opinion they both contain –that
Petitioner could not work due to sacroiliac joint pain and related symptoms– is generally
contradicted by the opinions of non-treating physicians who found Petitioner could work
despite her allegations, including those related to SI joint pain. As such, the Court
reviews the ALJ’s decision under the substantial evidence standard. To this end, the
record contains the following information relevant to Petitioner’s SI joint pain.
Dr. Dirks’s treatment notes from Petitioner’s office visit of September 2014 record
that he had a lengthy discussion with Petitioner about her options for treating her SI pain,
and that she had tried every nonsurgical therapy her doctor could think of. (AR 575.)
After Dr. Dirks explained the risks associated with a surgical treatment option, the
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“iFuse” surgery, Petitioner indicated that she wanted to proceed with the procedure on
her right SI joint. Id. Petitioner’s health insurance company denied the procedure on the
basis that the company considered it to be “investigational as the current scientific
evidence is not yet sufficient to establish the impact to sacroiliac joint stabilization for
arthrodesis, including the use of the iFuse … system on health outcomes.” (AR 620.)
Despite the insurance company’s refusal to provide coverage for the procedure,
the record contains evidence that Petitioner reported to Dr. Dirks and others experiencing
SI pain and resultant symptoms, including worsening symptoms with prolonged sitting,
standing, and walking, as well as weakness in her leg. (See AR 967, 655). For example,
on October 16, 2015, Petitioner was seen by Dr. Dinning for SI joint inflammation. (AR
657.) The clinic administered steroid injections and prescribed Lyrica for the pain. Id.
She was also prescribed a wheelchair on that date because she was “unable to ambulate
by herself” and could not “bear weight without extreme pain.” Id.
The wheelchair was prescribed so that Petitioner could be transported without the
risk of falls. Id. This was likely also related to Petitioner’s diagnosis of Ehlers-Danlos
syndrome.2 (See AR 666.) Nevertheless, Petitioner reported falling “more frequently
secondary to pain” and was “unsteady attempting to ambulate with a cane or walker on
her own.” (AR 657.) Petitioner also saw Dr. Dinning again for SI related pain in August
2016. (AR 910.) One of Dr. Dinning’s notes from the visit states, “Patient is in a lot of

2

Ehlers-Danlos syndrome is a type of disorder that, in its most common variety, produces joint
hyper mobility. (Dkt. 48-98.)

MEMORANDUM DECISION AND ORDER - 12

pain. We need to get her pain under control.” Id.
In August 2016, Petitioner was seen by Abhineet Chowdhary, M.D., for
consultation regarding her SI joint disfunction. (AR 898.) At the time, Petitioner reported
that she had midline low back pain with radiating symptoms through her right buttock
that had worsened over the previous two years. Id. The treatment notes state Petitioner
had been using a cane to distribute her weight to the left side to reduce the pain that she
experienced on the right side while walking. Id. Testing performed that day showed she
was positive for pain in several areas related to her SI joint. (AR 903.)
As stated above, the ALJ assigned Dr. Dirks’s and Dr. Ford’s notes little weight
because he found they were not supported by objective medical evidence or consistent
with the medical evidence of record as a whole. The record contains the following
objective medical evidence related to SI pain and lower back pain in the form of MRIs
and CT scans of Petitioner’s lumbar spine and pelvis.
An MRI of her lumbar spine in June 2006 showed normal height of lumbar
vertebral bodies, decreased signal in region of the L5 pars, with discs unremarkable
except for L5-S1, which showed a moderate disc bulge. (AR 346-47.) An MRI of
Petitioner’s pelvis in April 2006 showed normal and unremarkable results. (AR 438.)
Images from November 2010 showed similar unremarkable results. (AR 553-54.) A CT
scan of Petitioner’s spine and pelvis in July 2014, showed minor anterior offset at L5-S1,
no evidence of hardware failure, and calcification with benign irregular margination and
body trabeculae right superior sacrum, which was specifically noted to be not
MEMORANDUM DECISION AND ORDER - 13

significantly changed compared to the earlier MRI in 2006. (AR 563.) The results also
showed preservation of the L1-2 through L4-5 disc interspaces, with no vertebral body
collapse and no significant osseous narrowing of the neural foramen. Id. Another MRI
record from June 2014 returned similar results. (581-82.) An MRI report from October
2015 presented similar findings, including normal height of lumbar vertebral bodies with
the exception of L5-S1 where there was the previously noted loss of disc height. (AR
676; 792.) The MRI also showed unremarkable sacroiliac joints. (AR 677; 793.) A CT
scan of Petitioner’s spine from August 2016, showed normal vertebral body height, no
fractures or bony lesions, intact hardware at the L5 level, benign appearing sclerosis in
the right side of the S1 segment that was “stable”, but that there was a “vacuum disc
phenomenon of the sacroiliac joints, indicating degeneration.” (AR 912-13.) A CT scan
was taken of the pelvis in August 2016, recorded results showing that Petitioner’s
sacroiliac joint appeared symmetric, with no sclerosis or ankylosis, and showed the same
vacuum phenomena present within both SI joint spaces, indicating degeneration3 with
otherwise unremarkable SI joints. (AR 914.)
Thus, the objective medical evidence of record related to Petitioner’s SI pain does
not show significant changes over time. The Court notes the vacuum phenomena is
present in the SI joint shown by the August 2016 scan. This evidence could support an
alternative finding as to the weight to assign to Dr. Dirks’s and Dr. Ford’s notes related to

3

The Court notes that this degeneration is consistent with arthritis in the SI joint, as explained by
Dr. Clark in his testimony. (AR 51.)

MEMORANDUM DECISION AND ORDER - 14

Petitioner’s SI pain.4 However, those notes were written in 2014, before any degeneration
in Petitioner’s SI joint was identified on any of the MRIs or CT scans. In close cases like
this, the Court must defer to the ALJ’s decision provided the ALJ offers a reasonable
interpretation of the record as a whole based on substantial evidence. Rollins v.
Massanari, 261 F.3d 853, 857 (9th Cir. 2001). The Court finds the ALJ did so here.
ii.

Dustin Dinning, D.O. – Treating Physician

The ALJ also discussed his consideration of the opinions of Petitioner’s treating
rheumatologist, Dustin Dinning, D.O. His opinions are contained in a medical source
statement dated October 6, 2016. (AR 958-61.) The ALJ noted that Dr. Dinning “reported
a diagnostic impression of Ehlers-Danlos syndrome, osteoarthritis and chronic pain
syndrome.” (AR 27.) The ALJ noted also that Dr. Dinning recorded that Petitioner had
pain, fatigue, and hypermobility in her joints. Dr. Dinning ultimately opined that
Petitioner was able to walk less than the distance of one block, sit for 20 minutes at a
time for less than 2 hours in total, that she would need to change positions often, and take
unscheduled breaks.
Dr. Dinning opined further that Petitioner would need to use a hand-held device to
stand or walk and could rarely lift or carry ten pounds. Dr. Dinning included additional
restrictions on Petitioner’s physical abilities, stating Petitioner could never stoop, crouch,
use stairs or ladders, and had limited ability to reach in all directions. Dr. Dinning opined

4

The ALJ made an adverse credibility finding. (AR 24.) However, Petitioner did not challenge
that finding. Her arguments are limited to challenging the ALJ’s findings related to medical evidence and
lay witness testimony. (See Dkt. 14 at 18-20.)

MEMORANDUM DECISION AND ORDER - 15

also that it would be expected that Petitioner would be off task 25 percent of the work
day and would miss four or more days of work each month.
The ALJ assigned the opinions of Dr. Dinning little weight, because he found Dr.
Dinning “provided little or no objective medical evidence in support” of the opinion
regarding Petitioner’s ability to work. The ALJ found also that Dr. Dinning’s opinions
were not consistent with the objective medical evidence in the record, as described and
discussed by the medical expert, Dr. Kwock, after his own review of the entire record.
(AR 27.)
Petitioner challenges the ALJ’s assignment of little weight to Dr. Dinning’s
opinions, asserting the ALJ failed to cite the statutorily requisite factors for evaluation of
treating physicians’ opinions— set forth in 20 C.F.R. § 404.1527(c)(2). Petitioner argues
also that Dr. Dinning’s opinion that Petitioner could not return to full time work was
consistent with the opinions of Drs. Dirks and Ford. Petitioner asserts further that the ALJ
selectively cited to the record to support his weighting of Dr. Dinning’s opinion,
specifically ignoring Dr. Dinning’s diagnosis of chronic pain syndrome, and the impacts
of pain on Petitioner’s ability to physically function.
When an ALJ does not give a treating physician’s medical opinion full weight,
various factors are considered, including the length of the treatment relationship and
frequency of examination, the nature and extent of the treatment relationship, the amount
of evidence presented by the physician to support the opinion, consistency of the opinion
with the record as a whole, whether the opinion was provided by a specialist about
MEMORANDUM DECISION AND ORDER - 16

medical issues related to his or her area of specialty, and any other factors that tend to
support or contradict the opinion. 20 C.F.R. § 404.1527(c)(2).
In this case, the ALJ considered whether Dr. Dinning’s opinion was consistent
with the record as a whole as reviewed and explained by Dr. Kwock. The United States
Court of Appeals for the Ninth Circuit has “consistently upheld the Commissioner’s
rejection of the opinion of a treating or examining physician, based in part on the
testimony of a nontreating, nonexamining medical advisor.” See Morgan v. Commn’r of
Soc. Sec. Admin., 169 F.3d 595, 602 (9th Cir. 1999) (where the ALJ pointed to specific
evidence in addition to his personal observations, and the opinion of the non-treating,
non-examining medical advisor to support rejection of treating physician testimony.)
Thus, the opinions of a non-examining, testifying medical advisor may serve as
substantial evidence when the opinions are supported by and consistent with other
evidence in the record. Id. at 600.
John F. Kwock, M.D.,5 served as a testifying medical expert in this case. (AR 26.)
Dr. Kwock was a non-treating, non-examining physician who reviewed the entire case
file prior to the hearing. Dr. Kwock testified that he considered the diagnosis of EhlersDanlos but had not found anything in Petitioner’s medical records to substantiate the
diagnosis. (AR 48.) Dr. Kwock testified that a genetic work up is required to determine
which, if any, of the six Ehlers-Danlos varieties presents itself in Petitioner. Id. at 48-49.

In the transcript of the Oral Hearing, Dr. Kwock is referred to as “Dr. Clark.” This appears to be
an error in transcription as Dr. Kwock’s physician qualifications appear in the record and his name is used
by the parties in briefing. (See AR 899-91.)
5

MEMORANDUM DECISION AND ORDER - 17

Dr. Kwock’s review of the record did not reveal any objective medical evidence to
establish the characteristics of Ehlers-Danlos—instead the characteristics were selfreported by Petitioner and recorded in office visit progress notes by her care providers.
Id. Dr. Kwock acknowledged that at least one clinical test in the record that found
Petitioner had hypermobility in her joints –a common symptom of Ehlers-Danlos– but
opined that it alone was not sufficient to establish the syndrome because hypermobility is
present in individuals without Ehlers-Danlos. (AR 49.)
Dr. Kwock’s opinion regarding the necessity of genetic testing to determine the
nature of Petitioner’s Ehlers-Danlos syndrome, and whether she had it at all, is consistent
with other evidence in the record. Specifically, the record shows Dr. Ford discussed
Petitioner’s Ehlers-Danlos syndrome with her at a visit on November 13, 2014. (AR 616.)
Petitioner presented to get a confirmatory diagnosis of the syndrome after being advised
by Dr. Dinning that Petitioner’s daughter, who had recently also been diagnosed with the
syndrome, had inherited it from Petitioner. Id. At the visit, Petitioner reported to Dr. Ford
common symptoms of Ehlers-Danlos, including constant joint aching and pain and a
sensation of instability in her joints. Id. Dr. Ford advised Petitioner that she was
“certainly no expert” about the syndrome. Id. at 618. During the visit, they looked up
some of the genetic mutations that can be confirmatory in conjunction with the classic
signs and symptoms. Id. The treatment notes state that “genetic testing appeared to be
highly specialized and not easily attainable” from the clinic’s local lab. Id. In light of this,
Dr. Ford referred Petitioner back to her rheumatologist, Dr Dinning, for her to be seen,
MEMORANDUM DECISION AND ORDER - 18

confirmed, and for treatment agreed upon.6 Id.
Dr. Kwock testified also that the objective medical evidence, specifically CT
scans, MRIs, and X-rays of Petitioner’s lumbar spine and pelvis, did not support
Petitioner’s allegations of severe pain. (AR 56-59.) Dr. Kwock noted, however, that an
X-ray taken in April 2015 showed mild degenerative changes in Petitioner’s right SI
joint, indicative of joint arthritis. Id. at 59. As discussed in detail above, the objective
medical evidence showed little to no change in Petitioner’s spine from the time period
after she had her spinal surgery in 2007 through 2016. Similarly, the objective medical
evidence showed only a very slight change in the condition of Petitioner’s pelvis—
specifically, mild degeneration in her SI joint in August of 2016. For these reasons, Dr.
Kwock’s opinions as to whether the objective medical evidence supported Petitioner’s
claims about the severity and limiting effects of her conditions is consistent with other
evidence in the record.
In sum, because Dr. Kwock’s opinions were consistent with other medical
evidence in the record, it was not error for the ALJ to cite Dr. Kwock’s opinions as
substantial evidence to support his decision to assign little weight to the opinion of Dr.
Dinning regarding Petitioner’s ability to work based on a review of the medical evidence
of record.

6

The record contains no evidence that any genetic testing was performed to confirm Dr.
Dinning’s observational diagnosis of Ehlers-Danlos syndrome.

MEMORANDUM DECISION AND ORDER - 19

iii.

John Casper, M.D. – Consulting Orthopedic Physician

The ALJ also considered John B. Casper, M.D.’s Consultative Orthopedic
Examination, dated November 19, 2010. (AR 546-47.) The ALJ noted Dr. Casper’s
diagnosis of Petitioner’s lower back pain status post L5-S1 fusion and her obesity. Dr.
Casper’s physical examination of Petitioner showed she had a decreased range of motion
in her lumbar spine, but a normal gait and normal results on a neurological exam. To
make his ultimate findings, Dr. Casper reviewed a 2006 MRI (AR 436-38) and 2006 Xrays of Petitioner’s lumbar spine. Dr. Casper ultimately opined that Petitioner would be
able to sit for 30 minutes at one time, for a total of 4 hours, could stand or walk for 30
minutes at a time, for a total of 4 hours, and could lift or carry a maximum of 20 pounds.
The ALJ assigned great weight to the opinions of Dr. Casper, because he found they were
“internally consistent” and consistent with the record as a whole. (AR 27.)
Petitioner challenges the weight assigned to Dr. Casper’s opinions on the basis of
relevance. Petitioner argues that, because Dr. Casper’s examination occurred
approximately 3.5 years prior to the 2014 alleged onset date, his opinions have little
relevance (citing Carmickle v. Astrue, 533 F.3d 1155, 1165 (9th Cir. 2008) (“Medical
opinions that predate the alleged onset of disability are of limited relevance.”). Petitioner
also challenges the weight assigned to Dr. Casper’s opinion on the basis of its
inconsistency with the opinions provided by Drs. Dirks, Ford, and Dinning. Petitioner
argues that Dr. Casper’s opinion is not consistent with the record as a whole, and the ALJ
erred in assigning it great weight. As the Court has already found the ALJ did not commit
MEMORANDUM DECISION AND ORDER - 20

error in assigning little weight to the opinions of Drs. Dirks, Ford, and Dinning, the Court
will move to a discussion of Petitioner’s relevance challenge.
Notably, the 2006 MRI and X-rays that Dr. Casper reviewed to form his
conclusions were taken prior to 2014, when Petitioner alleges disability began. However,
Dr. Casper also ordered images of her spine in 2010, which he reviewed in concert with
his physical examination of Petitioner. (AR 553.) Those showed the prior fusion at L5S1, with mild antral listhesis on L5 on S1 and mild loss of disc height at that level, but
otherwise unremarkable results, showing normal appearance of both the sacrum and the
sacroiliac joints. Id. Thus, the images reviewed by Dr. Casper from 2010 contained
similar findings as those from 2006.
As stated above, the CT scan of Petitioner’s spine and pelvis in July 2014 showed
minor anterior offset at L5-S1, no evidence of hardware failure, calcification with benign
irregular margination and body trabeculae right superior sacrum, noted to be not
significantly changed compared to MRI of April 2006. (AR 563.) An MRI report from
October 2015, presented similar findings including normal height of lumbar vertebral
bodies with the exception of L5-S1 where there was the previously noted loss of disc
height. (AR 676; 792.) The MRI also showed unremarkable sacroiliac joints. (AR 677;
793.) As discussed above, it was not until the August 2016 CT scan of Petitioner’s pelvis
that indications of degeneration in Petitioners SI joints were present. (AR 914.)
Petitioner rightly argues that opinions predating the alleged onset date are usually
of limited relevance. Carmickle v. Comm’r, Soc. Sec. Admin., 533 F.3d 1155, 1165 (9th
MEMORANDUM DECISION AND ORDER - 21

Cir. 2008). The United States Court of Appeals for the Ninth Circuit explained in
Carmickle that it is “especially true in cases […] where disability is allegedly caused by a
discrete event.” Id. However, in a 2012 unpublished opinion, “the court emphasized that
the ALJ must still consider all medical opinion evidence.” Henderson v. Comm’r, Soc.
Sec. Admin., No. 6:17-CV-00481-HZ, 2018 WL 2102401, at *9 (D. Or. May 4, 2018)
(citing Williams v. Astrue, 493 Fed. Appx. 866, 868–69 (9th Cir. 2012) (the court found
error when an ALJ ignored medical opinions formed up to six years prior to the alleged
onset date). “Thus, while the date of the opinion may be one factor the ALJ” considers in
deciding what weight to give a medical opinion, an opinion “is not insignificant or not
probative merely because it is rendered prior to an alleged onset date, particularly in
cases where the claimant suffers from an ongoing impairment.” Id. Such is the case here.
For this reason, and because the scans of Petitioner’s spine did not change
significantly between 2006, 2010, 2014, and even 2016, the Court finds the ALJ did not
commit error in assigning the 2010 opinion of Dr. Casper great weight. Furthermore, as
pointed out by Respondent, since her 2007 surgery, Petitioner has reported a history of
chronic back pain and leg pain. (Dkt. 19 at 15.) Thus, it was reasonable for the ALJ to
conclude that Dr. Casper’s findings were consistent internally and with the objective
record evidence. Any potential error in this regard is harmless, however, because even if
the ALJ had assigned Dr. Casper’s opinion little weight, that decision would be
inconsequential to the ALJ’s ultimate non-disability determination. This is true because,
as discussed herein, the ALJ did not err in assigning great weight to the opinions of Dr.
MEMORANDUM DECISION AND ORDER - 22

Kwock and Dr. Arnold, both of whom reviewed the record after Petitioner’s alleged onset
date and determined she retains the capacity to perform work. See generally Stout v.
Comm’r, Soc. Sec. Admin., 454 F.3d 1050, 1055 (9th Cir. 2006) (and cited cases).
Leslie Arnold, M.D. – State Agency Medical Reviewer
The ALJ also considered of the opinions of Leslie Arnold, M.D., a state medical
consultant who reviewed the evidence on record as of February 23, 2015. The ALJ noted
that Dr. Arnold identified Petitioner’s severe medically determinable impairments as a
spine disorder and a ligament or muscle disorder.7 (AR 26.) Dr. Arnold concluded
Petitioner could work at the sedentary level with limited postural activities and
environmental restrictions. Id. The ALJ gave Dr. Arnold’s8 opinion great weight because
the ALJ found Dr. Arnold’s opinion was “based on his expertise, familiarity with Social
Security regulations, his opportunity to review the medical evidence and because his
opinions are generally consistent with the record.” Id.
Petitioner asserts the opinions of Dr. Arnold are inconsistent with the findings of
three treating physicians, and thus are not consistent with the record as a whole.
Additionally, Petitioner points out that Dr. Arnold did not review any evidence after
February 2015, including Dr. Dinning’s functional assessment. Finally, Petitioner notes
that Dr. Arnold included certain limitations in his findings, including that Petitioner

7

Notably, Dr. Arnold did not specifically identify this ligament/muscle disorder as Ehlers-

Danlos.
The ALJ’s opinion misidentifies Dr. Arnold as “Dr. Hale” at this point in the opinion. The Court
believes the reasons the ALJ cites for giving the opinion of “Dr. Hale” great weight apply to Dr. Arnold.
(See AR 26.)
8

MEMORANDUM DECISION AND ORDER - 23

would need a hand held device to walk, that the ALJ did not include these limitations in
his RFC findings. (Dkt. 21 at 18.) In response, Respondent asserts the ALJ reasonably
afforded significant weight to Dr. Arnold’s opinion, because Dr. Arnold had the benefit
of reviewing the entire record through August 2015 and has extensive experience with
the applicable Social Security law and regulations. (Dkt. 19 at 8.)
Because the Court found the ALJ did not err in assigning little weight to the
opinions of Petitioner’s treating physicians, and for the reasons stated above related to the
timeliness of the opinions of Dr. Casper, the Court finds no error in the ALJ’s decision to
assign great weight to the opinion of Dr. Arnold.
iv.

John F. Kwock, M.D. – Testifying Medical Expert

As discussed above, the ALJ also considered the opinions offered by testifying
medical expert and certified orthopedic surgeon John Kwock, M.D. (AR 26.) The ALJ
noted that Dr. Kwock had the benefit of reviewing the entire medical record when
forming his opinions, which included Petitioner’s medically determinable impairments of
degenerative disc disease of the lumbar spine-status post fusion, osteoarthritis of the right
sacroiliac joint, and obesity, with a body mass index of 35. The ALJ noted also that Dr.
Kwock acknowledged the Petitioner’s diagnosis of Ehlers-Danlos syndrome, but
“explained that the medical evidence did not substantiate this disease, as there are any
one of six different varieties that require genetic tests to establish a valid diagnosis.” (SR
26.) Acknowledging that Petitioner uses a cane and a wheelchair, and that there was
evidence of joint hypermobility in the record, Dr. Kwock still found that the record was
MEMORANDUM DECISION AND ORDER - 24

inconclusive as to what form or whether the diagnosis was valid.
Petitioner points out that “the ALJ did not address the fact that Dr. Kwock did not
address the diagnosed Pain Disorder or Syndrome and Dr. Kwock also stated the he
would not operate on Petitioner, however he also acknowledged that he is ‘not a spine
surgeon….’” (Dkt. 14 at 17.) Although not clearly stated, this appears to be a restatement
of Petitioner’s argument that the ALJ erred in assessing the medical evidence by
selectively considering some evidence while ignoring other evidence. See Id. at 9 and 14.
In addition, as mentioned above, the primary symptom of Petitioner’s Ehlers-Danlos
syndrome was joint hypermobility—which is not a symptom exclusively related to the
joints of the spine. (See supra note 2.)
The Court finds Petitioner’s argument unpersuasive. The ALJ specifically stated
that he gave great weight to the “detailed explanation” Dr. Kwock provided of the
“objective medical evidence as pertaining to the general absence of objective findings in
comparison with the level of pain and disability asserted by the claimant.” (AR 26.)
However, upon review of the medical evidence as a whole, which necessarily included
Petitioner’s diagnosis of chronic pain syndrome, the ALJ found “that the medical
evidence of record supported greater restrictions than those opined by Dr. Kwock.” Id.
In sum, for the foregoing reasons, the Court finds the ALJ reasonably weighed the
medical opinion evidence because his reasons for assigning little weight to the opinions
of Petitioner’s treating providers were specific and legitimate and supported by
substantial evidence in the record.
MEMORANDUM DECISION AND ORDER - 25

B.

Lay Witness Testimony
In this matter, two of Petitioner’s prior workplace managers provided lay witness

testimony in support of her application for disability benefits. Petitioner argues that the
ALJ committed error by failing to provide specific reasons germane to each lay witness
sufficient to effectively reject their statements. (Dkt. 14 at 20.)
An ALJ must consider evidence from sources other than the claimant, including
family members and friends, to show the severity of a claimant’s impairment. 20 C.F.R. §
404.1513(d)(4); Robbins v. Soc. Sec. Admin., 466 F.3d 880, 885 (9th Cir. 2006). Lay
testimony regarding a claimant’s symptoms constitutes competent evidence that an ALJ
must consider, unless he or she expressly determines to disregard such testimony and
gives reasons germane to each witness for doing so. Lewis v. Apfel, 236 F.3d 503, 511
(9th Cir. 2001) (citing Nguyen v. Chater, 100 F.3d 1462, 1467 (9th Cir. 1996) (internal
citations omitted)); Regennitter v. Comm’r of Soc. Sec. Admin., 166 F.3d 1294 (9th Cir.
1999). Such reasons include conflicting medical evidence, prior inconsistent statements,
or a claimant’s daily activities. Lewis v. Apfel, 236 F.3d 503, 511–12 (9th Cir. 2001).
In rejecting lay testimony, “the ALJ need not cite the specific record as long as
‘arguably germane reasons’ for dismissing the testimony are noted, even though the ALJ
does ‘not clearly link his determination to those reasons,’ and substantial evidence
supports the ALJ’s decision.” Holzberg v. Astrue, No. C09-5029BHS, 2010 WL 128391
at *11 (W.D. Wash. Jan. 11, 2010) (citing Lewis, 236 F.3d at 512). However, “where the
ALJ’s error lies in failure to properly discuss competent lay testimony favorable to the
MEMORANDUM DECISION AND ORDER - 26

claimant, a reviewing court cannot consider the error harmless unless it can confidently
conclude that no reasonable ALJ, when fully crediting the testimony, could have reached
a different disability determination.” Stout v. Comm’r of Soc. Sec. Admin., 454 F3d 1050,
1056 (9th Cir. 2006).
i.

Paul Davis

The first lay witness statement was provided by Paul Davis, a manager at the Post
Falls Cabela’s store where Petitioner worked as a human resources engineer. (AR 408.)
Mr. Davis’s lay witness testimony provides that he witnessed Petitioner’s physical
deterioration over the course of the two years he worked with her at the store. Id. Mr.
Davis described Petitioner as an excellent employee who worked hard. Id. His testimony
states that “[i]t was not uncommon for her to physically overdo herself and be in pain for
multiple days at a time” due to her previous back injury. Id. Mr. Davis observed that,
after overexerting herself, it took several days before Petitioner was back to her normal
working abilities. Id. Notably, Mr. Davis’s testimony states that Petitioner was “seriously
injured9 in June of 2014, and her ability to maintain her duties became unbearable.” Id.
Mr. Davis’s testimony indicates Petitioner’s abilities changed very quickly, for example
her “ability to walk went from a very face-paced stride to a very unsteady and slow walk,
with the assistance of a cane.” Mr. Davis provided that it was his personal and
professional opinion that, if Petitioner could still be working, she would be. Id.

9

As noted previously, Petitioner stated that she injured her self again while moving a steam
cleaner. (AR 72; 380; 572.)

MEMORANDUM DECISION AND ORDER - 27

ii.

Linda Adams

The second lay witness statement was provided by Linda Adams, Human
Resources Manager at the same Post Falls Cabela’s store. (AR 418.) In addition to
describing Petitioner’s duties at work, Ms. Adams testified that, around late August or
early September 2014, Petitioner “was not able to move, walking or sitting, as she had at
the beginning of her employment.” Id. Specifically, that Petitioner “was not able to sit for
long, maybe a half hour at a time” and could not “walk very far without being in pain.”
Id. Ms. Adams testified that, by the end of September 2014, Petitioner “was barely able
to walk, let alone sit for any time at all.” Id.
The ALJ acknowledged Mr. Davis’s and Ms. Adams’s testimony that described
Petitioner as having difficulty keeping up with her work due to pain—specifically
difficulty walking, sitting, bending, stooping, and lifting. The ALJ gave partial weight to
each lay witness’s testimony, because they were limited in their observations of
Petitioner and because they each lacked medical training to evaluate her condition.
First, the Court does not find that either Mr. Davis nor Ms. Adams made any
specific medical evaluations of Petitioner’s conditions, beyond Mr. Davis’s conclusion
that Petitioner had seriously injured herself. Beyond that conclusive observation, each of
the lay witnesses’ statements reasonably describe their observations of changes to
Petitioner’s ability to work. However, the ALJ’s other reason, that Mr. Davis and Ms.
Adams were limited in their observations of Petitioner, is germane to each and is
supported by substantial evidence.
MEMORANDUM DECISION AND ORDER - 28

Mr. Davis and Ms. Adams both worked with Petitioner for approximately one and
one half to two years at the Post Falls Cabela’s store. Yet, the timeframe during which
each was able to observe Petitioner once she began having difficulty performing her work
was limited. According to their testimonies, Petitioner began to experience difficulty in
performing the duties of her job from either June 2014 (in the memory of Mr. Davis) or
late August to early September 2014 (in the memory of Ms. Adams).10 The record shows
that Petitioner stopped working at the store on September 23, 2014. As such, Ms. Adams
had one month or less to observe Petitioner once her abilities so drastically changed. Mr.
Adams had a bit more time.
Notably, the ALJ did not ignore or fully reject the testimony provided by Mr.
Davis and Ms. Adams. Instead, he gave the statements partial weight, based on the
timeframe of the lay witnesses’ observations of Petitioner. This reason is germane to each
lay witness and is supported by substantial evidence. (See Crane v. Shalala, 76 F.3d 251,
254 (9th Cir. 1996) (where “sufficient contact with [the claimant] during the relevant
time” is a factor germane to evaluating a witness’s testimony.) Crane concerned the
testimony of a social worker who saw the claimant only two weeks before the claimant’s
alleged disability onset date, and thus is distinguishable from this case. However, the
amount of time for observation of a claimant while she is experiencing the limitations
upon which she bases a claim for disability benefits is a factor germane to determining

Notably, the time periods cited by each lay witness for the drastic change to Petitioner’s
performance at work do not entirely match up.
10

MEMORANDUM DECISION AND ORDER - 29

the weight to afford the lay witness testimony. For these reasons, the Court finds the ALJ
did not err by not fully crediting the lay witnesses’ testimony.
C.

Residual Functioning Capacity
Petitioner provides a limited argument alleging the ALJ erred in determining her

RFC. At the fourth step in the sequential process, the ALJ determines whether the
impairments prevent 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 she can do
despite her 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 the hypothetical question to the vocational expert but may exclude
unsupported limitations. Bayliss, 427 F.3d at 1217.
In this matter, Petitioner asserts that the ALJ erred in determining Petitioner’s
RFC, because he failed to include limitations identified by treating physicians. However,
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). Petitioner
additionally argues that the ALJ failed to include an opinion provided by Dr. Arnold, that
being that Petitioner would need a hand held device, such as a cane, to walk and that she
MEMORANDUM DECISION AND ORDER - 30

would need to alternate between sitting and standing to relieve pain and discomfort. (See
Dkt. 14 at 18.)
However, upon review, it is clear that the ALJ did make these types of
considerations. Specifically, the ALJ included a hypothetical that asked the vocational
expert for an opinion should the working individual need to change positions every 30
minutes, while staying on task at the sedentary occupational level. (AR 80.) This included
a maximum of two hours standing or walking and that the individual could perform in
those positions for no more than thirty minutes. Id. Importantly, one of the ALJ’s
questions included the requirement that the individual be allowed to use a wheelchair in
the work environment—including while sitting at her desk, and that the person would
need to also stand at her workstation. Thus, the ALJ considered the very situations that
Petitioner asserts he did not. For these reasons, the Court finds the ALJ did not err in
determining the RFC, because he included all of Petitioner’s limitations supported by
substantial evidence in his hypothetical questions to the vocational expert. In doing this,
the ALJ was not required to include limitations properly discounted in the steps above.
ORDER
Based upon the foregoing, the Court being otherwise fully advised in the premises,
it is hereby ORDERED that the Commissioner’s decision finding that the Petitioner is
not disabled within the meaning of the Social Security Act is AFFIRMED and that the
petition for review is DISMISSED.
March 08, 2019

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