King v. Colvin

Filing 23

MEMORANDUM DECISION AND ORDER the decision of the Commissioner is AFFIRMED and this action is DISMISSED in its entirety with prejudice. Signed by Judge Ronald E. Bush. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by (jp)

UNITED STATES DISTRICT COURT
DISTRICT OF IDAHO

CONNIE KING,

Case No.: 4:14-cv-00333-REB

Petitioner,

MEMORANDUM DECISION AND
ORDER

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

Pending before this Court is Petitioner Connie King’s Petition for Review, seeking
review of the Social Security Administration’s denial of disability insurance benefits. See Pet.
for Review, p. 1 (Docket No. 1). This action is brought pursuant to 42 U.S.C. § 405(g). Having
carefully reviewed the record and otherwise being fully advised, the Court enters the following
Memorandum Decision and Order:
I. ADMINISTRATIVE PROCEEDINGS
On or around October 19, 201, Connie King (“Petitioner”) protectively filed a Title II
application for a period of disability and disability insurance benefits, alleging disability
beginning August 14, 2008. This claim was initially denied on January 21, 2011 and, again, on
reconsideration on June 6, 2011. On July 9, 2011, Petitioner timely filed a Request for Hearing
before an Administrative Law Judge (“ALJ”). On April 10, 2013, ALJ Robin L. Henrie held a
hearing at which time Petitioner, represented by attorney Josh Decker, appeared and testified.
An impartial vocational expert, Kent Granat, also appeared and testified.

MEMORANDUM DECISION AND ORDER - 1

On April 26, 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 May 14, 2013. On May 29, 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 files the instant action,
arguing that “[t]he decision of the [ALJ] and Appeals Council are not supported by substantial
evidence, and they did not consider crucial evidence submitted in a timely fashion with regard to
the claimant’s impairments.” Pet. for Review, p. 3 (Docket No. 1); see also id. at p. 5 (“The
conclusions of law made by the [ALJ] and the Appeals Council that Plaintiff was not under a
disability are incorrect and contrary to the law and regulations of the Social Security Act.”).
Specifically, Petitioner argues that the ALJ (1) failed to properly analyze the testimony of the
impartial vocational expert, and (2) failed to assign appropriate weight to the opinions of her
treating physicians. See Pet.’s Brief, p. 2 (Docket No. 15). 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, p. 5 (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. 42 U.S.C. § 405(g); Matney ex. rel. Matney v. Sullivan, 981
F.2d 1016, 1019 (9th Cir. 1992); Gonzalez v. Sullivan, 914 F.2d 1197, 1200 (9th Cir. 1990).
Findings as to any question of fact, if supported by substantial evidence, are conclusive. 42

MEMORANDUM DECISION AND ORDER - 2

U.S.C. § 405(g). In other words, if there is substantial evidence to support the ALJ’s factual
decisions, they must be upheld, even when there is conflicting evidence. Hall v. Sec’y of Health,
Educ. & Welfare, 602 F.2d 1372, 1374 (9th Cir. 1979).
“Substantial evidence” is defined as such relevant evidence as a reasonable mind might
accept as adequate to support a conclusion. Richardson v. Perales, 402 U.S. 389, 401 (1971);
Tylitzki v. Shalala, 999 F.2d 1411, 1413 (9th Cir. 1993); Flaten v. Sec’y of Health & Human
Servs., 44 F.3d 1453, 1457 (9th Cir. 1995). The standard requires more than a scintilla but less
than a preponderance (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 in a disability
proceeding, the reviewing court may not substitute its judgment or interpretation of the record
for that of the ALJ. Flaten, 44 F.3d at 1457; Key v. Heckler, 754 F.2d 1545, 1549 (9th Cir.
1985).
With respect to questions of law, the ALJ’s decision must be based on proper legal
standards and will be reversed for legal error. Matney, 981 F.2d at 1019. The ALJ’s

MEMORANDUM DECISION AND ORDER - 3

construction of the Social Security Act is entitled to deference if it has a reasonable basis in law.
See id. However, reviewing federal courts “will not rubber-stamp an administrative decision that
is inconsistent with the statutory mandate or that frustrates the congressional purpose underlying
the statute.” Smith v. Heckler, 820 F.2d 1093, 1094 (9th Cir. 1987).
III. DISCUSSION
A.

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

sequential process in determining whether a person is disabled in general (see 20 C.F.R. §§
404.1520, 416.920) – or continues to be disabled (see 20 C.F.R. §§ 404.1594, 416.994) – within
the meaning of the Social Security Act.
The first step requires the ALJ to determine whether the claimant is engaged in
substantial gainful activity (“SGA”). 20 C.F.R. §§ 404.1520(a)(4)(i), 416.920(a)(4)(i). SGA is
defined as work activity that is both substantial and gainful. “Substantial work activity” is work
activity that involves doing significant physical or mental activities. 20 C.F.R. §§ 404.1572(a),
416.972(a). “Gainful work activity” is work that is usually done for pay or profit, whether or not
a profit is realized. 20 C.F.R. §§ 404.1572(b), 416.972(b). If the claimant has engaged in SGA,
disability benefits are denied, regardless of how severe her physical/mental impairments are and
regardless of her age, education, and work experience. 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 did not engage in substantial gainful activity between her alleged onset date
of August 14, 2008 through her date last insured of September 30, 2012. (AR 21).
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. 20 C.F.R. § 404.1520(a)(4)(ii), 416.920(a)(4)(ii). An impairment or combination
of impairments is “severe” within the meaning of the Social Security Act if it significantly limits
an individual’s ability to perform basic work activities. 20 C.F.R. §§ 404.1520(c), 416.920(c).
An impairment or combination of impairments is “not severe” when medical and other evidence
establish only a slight abnormality or a combination of slight abnormalities that would have no
more than a minimal effect on an individual’s ability to work. 20 C.F.R. §§ 404.1521, 416.921.
If the claimant does not have a severe medically determinable impairment or combination of
impairments, disability benefits are denied. 20 C.F.R. §§ 404.1520(c), 416.920(c). Here, the
ALJ found that, through the date last insured, Petitioner had the following severe impairments:
“obesity, right elbow fracture with subsequent surgery and residuals, disorders of the back,
affective mood disorder, including depression, bipolar disorder, and general anxiety disorder.”
(AR 21).
The third step requires the ALJ to determine the medical severity of any impairments;
that is, whether the claimant’s impairments meet or equal a listed impairment under 20 C.F.R.
Part 404, Subpart P, Appendix 1. 20 C.F.R. §§ 404.1520(a)(4)(iii), 416.920(a)(4)(iii). If the
answer is yes, the claimant is considered disabled under the Social Security Act and benefits are
awarded. 20 C.F.R. §§ 404.1520(d), 416.920(d). If the claimant’s impairments neither meet nor
equal one of the listed impairments, the claimant’s case cannot be resolved at step three and the
evaluation proceeds to step four. Id. Here, the ALJ concluded that, through the date last insured,
Petitioner’s above-listed impairments, while severe, did not meet or medically equal, either
singly or in combination, the criteria established for any of the qualifying impairments. (AR 2224).

MEMORANDUM DECISION AND ORDER - 5

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
relevant work. 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. 20 C.F.R. §§ 404.1545, 416.945. Likewise, an individual’s past relevant work is
work performed within the last 15 years or 15 years prior to the date that disability must be
established; also, the work must have lasted long enough for the claimant to learn to do the job
and be engaged in substantial gainful activity. 20 C.F.R. §§ 404.1560(b), 404.1565, 416.960(b),
416.965. Here, the ALJ determined that, from the alleged onset date to the date of the April 26,
2013 decision, Petitioner had the residual functional capacity to perform a full range of sedentary
unskilled work, “but such work could not have required:” (1) lifting more than 5 to 8.5
pounds at a time, on more than an ‘occasional’ bases; (2) lifting and carrying articles weighing
more than 5 to 8.5 pounds, on more than an ‘occasional’ basis; (3) standing or walking more than
15 to 20 minutes at one time, nor more than 2 total hours in an 8 hour work day; (4) sitting more
than 15 to 20 minutes at one time, nor more than 6 total hours in an 8 hour work day;1 (5) more
than occasional stooping, bending, twisting, or squatting; (6) work on the floor (e.g., no
kneeling, crawling, or crouching); (7) ascending or descending full flights of stairs (but a few
stair steps up or down not precluded); (8) overhead lifting or overhead reaching; (9) more than
occasional reaching with right upper extremity, occasional handling with right upper extremity,
and occasional fingering with right upper extremity, or any duties requiring feeling with the right

1

Additionally, regarding the standing/walking and sitting limitation, the ALJ noted
Petitioner’s need “to be as comfortable as possible,” requiring “the option to make the postural
changes noted above (the “sit/stand” option), thus there must be an option to perform work
duties while standing/walking or sitting, due to the need for these postural changes.” (AR 24).
MEMORANDUM DECISION AND ORDER - 6

upper extremity (noting right elbow severe impairment and left upper extremity is normal); (10)
more than occasional twisting activities with the right hand; (11) work at more than a low stress
level; (12) work at more than a low concentration level; (13) work at more than a low memory
level; and (14) more than occasional twisting of right upper extremity. (AR 24-32) (emphasis in
original).
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. 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,
through the date last insured, Petitioner was unable to perform any past relevant work. (AR 32).
However, the ALJ further found that, through the date last insured, there are jobs that exist in
significant numbers in the national economy that Petitioner can perform, including dowel
inspector (assembly), washroom operator, and brimer. (AR 33). Therefore, based on
Petitioner’s age, education, work experience, and residual functional capacity, the ALJ
concluded that Petitioner “was not under a disability . . . at any time from August 1, 2008, the
alleged onset date, through September 30, 2012, the date last insured. (AR 34).
B.

The ALJ Properly Credited the Impartial Vocational Expert’s Testimony
Regarding a Sit/Stand Option
Pursuant to step four of the sequential process, the ALJ determined that Petitioner must

be given the option to alternate between sitting and standing (a “sit/stand” option) as needed in

MEMORANDUM DECISION AND ORDER - 7

up to 20-minute increments at any job she performs. See supra. Even with this limitation, at
step five of the sequential process, the ALJ determined that Petitioner could perform certain
unskilled sedentary work, based on the testimony of the impartial vocational expert, Kent
Granat, who opined that such work would include a sit/stand option. See supra (citing (AR 3334)). Petitioner now argues that such testimony conflicts with the Dictionary of Occupation
Titles (“DOT”) and that Mr. Granat failed to provide sufficient support to justify his conclusions.
See Pet.’s Brief, p. 11 (Docket No. 15) (“At question is the reliability of the job information
provided by the vocational expert, and whether the ALJ documented adequate and substantial
persuasive evidence to support the expert’s testimony.”).
In general, an ALJ may not rely on a vocational expert’s testimony regarding the
requirements of a particular job without first inquiring whether the testimony conflicts with the
DOT. See Massachi v. Astrue, 486 F.3d 1149, 1152-53 (9th Cir. 2007) (citing SSR 00-4p,
available at 2000 WL 1898704, *2 (“In making disability determinations, we rely primarily on
the DOT (including its companion publication, the SCO) for information about the requirements
of work in the national economy.”)). In addition to the DOT, the ALJ may rely on the testimony
of vocational experts who testify about specific occupations that a claimant can perform in light
of her residual functional capacity. See 20 C.F.R. § 404.1560(b)(2); see also Valentine v.
Comm’r Soc, Sec. Admin., 574 F.3d 685, 689 (9th Cir. 2009). SSR 00-4p provides the following
guidance regarding occupational evidence from a vocational expert in relation to information
included in the DOT:
Occupational evidence provided by a V[ocational] E[xpert] or V[ocational]
S[pecialist] generally should be consistent with the occupational information
supplied by the DOT. When there is an apparent unresolved conflict between the VE
or VS evidence and the DOT, the adjudicator must elicit a reasonable explanation for
MEMORANDUM DECISION AND ORDER - 8

the conflict before relying on the VE or VS evidence to support a determination or
decision about whether the claimant is disabled. At the hearings level, as part of the
adjudicator’s duty to fully develop the record, the adjudicator will inquire, on the
record, as to whether or not there is such consistency. Neither the DOT nor the VE
or VS evidence automatically “trumps” when there is a conflict. The adjudicator
must resolve the conflict by determining fi the explanation given by the VE or VS
is reasonable and provides a basis for relying on the VE or VS testimony rather than
on the DOT information.
SSR 004-p, available at 2000 WL 1898704, *2.
In making disability determinations, the ALJ may rely on the vocational expert testimony
that contradicts the DOT, but only insofar as the record contains persuasive evidence to support
the deviation. See id. (although evidence provided by vocational expert “generally should be
consistent” with DOT, “[n]either the DOT nor the VE . . . evidence automatically ‘trumps’ when
there is a conflict.”); see also Massachi, 486 F.3d at 1153; Light v. Social Sec. Admin., 119 F.3d
789, 793 (9th Cir. 1997) (“ALJ may rely on vocational expert testimony that contradicts the DOT,
but only insofar as record contains persuasive evidence to support deviation).
Thus, the ALJ must first determine whether a conflict exists and, if so, the ALJ must then
determine whether the VE’s explanation for the conflict is reasonable and whether a basis exists
for relying on the vocational expert rather than the DOT. See SSR 004-p, available at 2000 WL
1898704, *2-3. Only after determining whether the vocational expert has deviated from the
DOT, and whether any deviation is reasonable, can an ALJ properly rely on the vocational
expert’s testimony as substantial evidence to support a disability determination. See Massachi,
486 F.3d at 1152-54. Evidence sufficient to support a deviation from the DOT may be either
specific findings of fact regarding a claimant’s ability to perform particular jobs, or inferences
drawn from the context of the expert’s testimony. See Johnson v. Shalala, 60 F.3d 1428, 1435
n.7 (9th Cir. 1995) (ALJ provided sufficient support for deviation by noting that vocational expert
MEMORANDUM DECISION AND ORDER - 9

described characteristics and requirements of jobs in local area consistent with claimant’s
residual functional capacity); Terry v. Sullivan, 903 F.2d 1273, 1279 (9th Cir. 1990) (ALJ may
infer support for deviation where vocational expert’s understanding of applicable legal standards
is clear from context).
Relevant here, the DOT does not address work situations requiring a sit/stand option. To
this end, district courts within the Ninth Circuit are split as to whether there is a conflict with
vocational expert testimony where the DOT is silent on a job requirement – i.e., a sit/stand
option. On the one hand, “[t]he majority of courts find that even though the DOT is silent as to
this particular job requirement, a v[ocational] e[xpert]’s testimony that certain work can be
performed by a claimant with a need for a sit/stand option is not inconsistent.” Henderson v.
Colvin, 2016 WL 145571, *11 (E.D. Cal. 2016) (citing Edwards v. Colvin, 2015 WL 673441, *4
(E.D. Cal. 205); Gilmour v. Colvin, 2014 WL 3749458, *8 (E.D. Cal. 2014); Forrest v. Comm’r
Soc. Sec. Admin., 2014 WL 6185309, *4 (6th Cir. 2014) (“But the DOT does not discuss whether
jobs have a sit/stand option . . . and therefore the vocational expert’s testimony supplemented,
rather than conflicted with, DOT job descriptions.”); Zblewski v. Astrue, 302 Fed. Appx. 488,
494 (7th Cir. 2008) (“Because the DOT does not address the subject of sit/stand options, it is not
apparent that the testimony conflicts with the DOT.”); Stain v. Colvin, 2014 WL 2014 WL
2472312, *2 (C.D. Cal. 2014)); see also Devore v. Comm’r of Soc. Sec., 2015 WL 3756328
(E.D. Cal. 2015); Hirschy v. Comm’r of Soc. Sec., 2012 WL 996527 (E.D. Cal. 2012); Harvey v.
Astrue, 2010 WL 2836817 (N.D. Cal. 2010).
On the other hand, several courts have emphatically found just the opposite to be true:
that a vocational expert’s testimony that jobs could be performed with a sit/stand option is
inconsistent with the DOT’s silence on the matter. See, e.g., Clark v. Colvin, 2015 WL 5601406,

MEMORANDUM DECISION AND ORDER - 10

*5 (E.D. Cal. 2015) (“[T]he weight of authority in this circuit clearly supports the proposition
that a limitation that does not appear in the DOT cannot be included in the ALJ’s hypothetical
without explanation.”); McCabe v. Colvin, 2015 WL 4740509, *12 (D. Nev. 2015) (finding
apparent conflict presented by vocational expert testimony regarding jobs that will allow for
sit/stand option when the DOT does not address sit/stand option); Edwards v. Astrue, 2013 WL
1891764, *9-10 (N.D.Cal. 2013) (same); Valenzuela v. Astrue, 2009 WL 1537876, *3 (N.D. Cal.
2009) (same); Smith v. Astrue, 2010 WL 5776060, *11-12 (N.D. Cal. 2010) (same).
The Ninth Circuit considered this issue in at least two unpublished decisions – Coleman
v. Astrue, 423 Fed. Appx. 754 (9th Cir. 2011), and Buckner-Larkin v. Astrue, 450 Fed. Appx. 626
(9th Cir. 2011). Although neither case is binding precedent, they have persuasive value
nonetheless. See 9th Cir. R. 36-3(b) (permitting citation to “[u]npublished dispositions and
orders of this Court issued on or after January 1, 2007.”).
In Coleman, the ALJ determined that the claimant had the residual functional capacity to
perform sedentary or light work, provided that she could alternate between sitting, standing, and
walking on an hourly basis. Coleman, 423 Fed. Appx. at 756. While many of the light and
sedentary occupations would not accommodate a sit/stand/walk option, the vocational expert
testified that the claimant could perform some of the occupations in those exertional categories.
See id. The Ninth Circuit panel concluded that the vocational expert’s testimony created an
“apparent conflict with the DOT.” Id. Importantly, the ALJ did not ask the vocational expert
about a conflict with the DOT and the vocational expert’s testimony otherwise addressing the
apparent conflict was brief and speculative. See id. (citing Tommasetti v. Astrue, 533 F.3d 1035,
1043 (9th Cir. 2008) (“brief and indefinite testimony” is not “persuasive evidence” explaining

MEMORANDUM DECISION AND ORDER - 11

conflict). Therefore, the Ninth Circuit remanded the action so that the ALJ could hear further
testimony from the vocational expert and comply with SSR 00-4p. See id.
Approximately six months later, in Buckner-Larkin, the claimant required an at-will
sit/stand option. Buckner-Larkin, 450 Fed. Appx. at 627. The decision described that the
vocational expert “noted that although the DOT does not discuss a sit-stand option, his
determination was based on his own labor market surveys, experience, and research.” Id. at 628.
As the “conflict” was addressed and explained by the vocational expert and addressed in the
ALJ’s decision, the Ninth Circuit found that the vocational expert’s apparently conflicting
testimony was properly considered and the ALJ’s determination was affirmed. See id. at 628-29.
Here, even if assuming (without deciding) that there is a conflict when a vocational
expert testifies that a person who requires a sit/stand option can perform work identified by the
DOT,2 the ALJ did not err in resolving that conflict in this instance. On this point, the ALJ
posed a hypothetical to Mr. Granat (including the sit/stand option) for the purposes of informing
the issue of Petitioner’s ability to perform past relevant work and/or alternative work:
ALJ:

So, any questions about the hypothetical?

VE:

No, Your Honor.

ALJ:

So, can you find any past work that would fit?

VE:

No. Well, I think the past work has been a CNA, a bartender, and a
bar manager, none of which are sedentary.

ALJ:

Could you tell me what the bartender was called in the DOT?

VE:

Sure, it is called a bartender. It’s a light, SVP 3, and it’s 312.474010.

2

Regardless, it should be noted that the ALJ himself understood that Mr. Granat’s
testimony at the April 10, 2013 hearing conflicted with the DOT. See (AR 33) (discussed infra).
MEMORANDUM DECISION AND ORDER - 12

ALJ:

All right. And could you find, if any, three sedentary, unskilled jobs
that might fit in reduced numbers?

VE:

I think there are with the right upper extremity as kind of a helper
hand, but used occasionally. There’s a position called a washroom
operator which is sedentary, SVP 2, 529.665-014, with 650 in the
region, and that region being Idaho and Utah, and 59,000 nationally.
A second example is a position called a dowel inspector which is
sedentary, SVP 2, 669.687-014, with 600 in the region and 47,000
nationally. And then a third example would be position called a
brimer and that brimer is a sedentary, SVP 2, 700.687-018, with 450
in the region and 46,000 nationally. And I’d reduce those numbers,
Your Honor, by 50 percent.

ALJ:

Fifteen?

VE:

Fifty; 50.

ALJ:

Sixty?

VE:

5-0.

ALJ:

Oh, I’m sorry.

VE:

Fifty.

ALJ:

I have the hardest time hearing fives, and my pen just went bad. So
turn the page to the next hypothetical, we will drop down to number
33. This will be hypothetical number 2, the same as hypothetical 1,
except 34 and 35 would be in place. Would that rule out all jobs, in
your opinion?

VE:

It would, Your Honor.

ALJ:

So if we were to look at the DOT and other publications that describe
these three jobs, would it mention the sit/stand option and all my
other limitations?

VE:

It would not and so that part of my response is based on my
experience and with that experience is the reason for reducing the
numbers.

MEMORANDUM DECISION AND ORDER - 13

ALJ:

Okay. Any questions, Mr. Decker [(Petitioner’s attorney at the April
10, 2013 hearing)], for Mr. Granat?

ATT:

Your Honor, I think you went over the questions I would go over. I
don’t have anything additional.

ALJ:

All right. So, anything else come up or have we covered it?

CLMT:

No.

ALJ:

All right, good, I think we have. So you’ll get a decision within
about 30 days at 1005 South 3rd Avenue and that’ll be coming in the
mail to you in one –

(AR 86-88) (emphasis added). In turn, the ALJ recounted this exchange in his April 26, 2013
decision, stating in relevant part:
Although the vocational expert’s testimony is inconsistent with the information
contained in the Dictionary of Occupational Titles, there is a reasonable explanation
for this discrepancy. In the hearing, the vocational expert was asked if his testimony
conflicted, in any way, with the Dictionary of Occupational Titles (DOT). The
expert responded by stating that the DOT does not mention, in its description of the
above cited jobs, the limitations given (e.g., the sit/stand option) in the residual
functional capacity. However, the expert stated that his experience indicates that
such jobs do allow for such limitations, in the reduced numbers noted above. The
expert’s resume is found in the file. No contrary evidence was presented. Therefore,
the opinions of the expert are accepted and found to be appropriate departures from
the DOT (SSR 00-4p).
(AR 33-34).
From this, it is clear that the ALJ (1) not only asked Mr. Granat whether his testimony
conflicted with the DOT, but also (2) went on to elicit from Mr. Granat a reasonable explanation
for any such conflict (that, additionally, Petitioner’s counsel did not challenge when provided the
opportunity to do so). In short, Mr. Granat testified that the DOT does not comment on the
erosion of jobs based upon restrictions such as the sit/stand option and that his erosion figures (a
reduction by 50%) were based upon his understood professional opinion and experience. Under
MEMORANDUM DECISION AND ORDER - 14

the circumstances presented by this case, this is enough. See, e.g., Devore, 2015 WL 3756328 at
*3-4 (vocational expert provided “reasonable explanation” for opinion that 10 percent available
cashier jobs could accommodate plaintiff’s need for sit/stand option because vocational expert
testified that “erosion percentage [was] based upon the VE’s professional opinion and not based
upon information in the DOT because the DOT does not comment on the erosion aspect of the
sit/stand option.”). The ALJ did not err in relying upon Mr. Granat’s testimony that a sufficient
number of unskilled sedentary jobs (even after being reduced by 50%) existed in sufficient
numbers to accommodate Petitioner’s age, education, work experience, and residual functional
capacity.
C.

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,
supported by substantial evidence in the record, for doing so. 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).

MEMORANDUM DECISION AND ORDER - 15

Petitioner argues that the ALJ failed to give proper weight to his treating physicians’
opinions, including those from Dr. Andrew W. Thayne, M.D. and Dr. Jin Soofi, M.D. See Pet.’s
Brief, pp. 16-20 (Docket No. 15). The Court addresses each of these arguments below.
1.

Dr. Thayne

Dr. Thayne has treated Petitioner since December 8, 2004 and, on March 30, 2011,
submitted a “Residual Functional Capacity Questionnaire.” See (AR 581-582, 723). Therein,
Dr. Thayne indicated that Petitioner suffered from “low back pain” and “right arm pain,” with
the following “functional limitations”:
•

Walking less than two city blocks;

•

Sitting more than 30 minutes at a time for a total of four hours in an 8-hour
workday;

•

Standing/walking more than 30 minutes for a total of four hours in an 8-hour
workday;

•

Needing to shift positions and take unscheduled breaks;

•

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

•

Having handling/fingering limitations of approximately 50% in both arms
and reaching limitations of less than 30% in her right arm and 30% in her left
arm.

See (AR 581-582).3 Ultimately, Dr. Thayne opined that Petitioner would miss more than four
days of work each month, owing to her impairments. See (AR 582). On August 12, 2012, Dr.

3

Though not expressly adopted by the ALJ, it is interesting to note that the majority of
these limitations were nonetheless incorporated within the ALJ’s residual functional capacity.
Compare (AR 24-25) (discussed supra), with (AR 581-582). Actually, the ALJ found that
Petitioner could sit, stand, and walk for fewer minutes at one time (but still, for a combined total
of eight hours, like Dr. Thayne), and had more than occasional (defined as less than 1/3 of an 8hour workday) reaching, handling, and fingering limitations (albeit only in Petitioner’s right
harm, not her left). See id.
MEMORANDUM DECISION AND ORDER - 16

Thayne submitted a second “Residual Functional Capacity Questionnaire.” See (AR 721-723).
This time, Dr. Thayne increased nearly every limitation outlined in his earlier questionnaire,4
while also concluding that Petitioner is incapable of working an 8-hour workday, five days a
week. See id.
Within his April 26, 2013 decision, the ALJ gave Dr. Thayne’s opinions in these respects
“little weight,” concluding that “[Dr.] Thayne’s treatment notes do not support his physical
RFC.” (AR 30). Petitioner takes issue with this finding, arguing that Dr. Thayne’s “opinion is
not inconsistent with examination records and physical therapy records as documented prior,
and, accordingly, his opinion should [be] afforded more than the ‘little weight’ assigned by the
ALJ.” Pet.’s Brief, pp. 18-19 (Docket No. 15). The Court’s own review of the record (following
Petitioner’s September 2009 back surgery) – especially from March 30, 2011 and August 12,
2012 (the time period in between Dr. Thayne’s first and second “Residual Functional Capacity
Questionnaires”) – supports the ALJ’s decision to limit the import of these particular findings.
First, to the extent Dr. Thayne definitively considered Petitioner disabled as of August
12, 2012, 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 regulations provide that 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), 416.927(e)(1) (“We are responsible for making the determination or

4

Interestingly, Dr. Thayne increased the percentage of time during an 8-hour workday in
which Petitioner could reach (with her right arm) and handle, finger, and reach (with her left
arm). See (AR 722).
MEMORANDUM DECISION AND ORDER - 17

decision about whether you meet the statutory definition of disability.”). Second, turning to Dr.
Thayne’s treatment notes over time, they do not neatly align with the physical limitations he
ultimately assigns to Petitioner in the “Residual Functional Capacity Questionnaires.” It is true
that, at times, these notes indicate that Petitioner is grappling with arm/back pain, but that, by
itself,5 is not at issue here; to be sure, the ALJ found in no uncertain terms that Petitioner’s “right
elbow fracture with subsequent surgery and residuals” and “disorders of the back” to be “severe
impairments” to which Petitioner’s residual functional capacity is negatively impacted. See
supra (citing (AR 21-32). But more to the point, in the years following her back surgery, the
majority of these notes speak to issues independent of Petitioner’s allegedly-limiting pain and/or
functional capacity. For example:
•

4/15/10:

Petitioner complains of headaches, sinus drainage,
congestion, facial pain, and cough. (AR 509) (examination
reveals “no acute distress”).

•

4/27/10:

Petitioner presents with issues about her hormone
replacement therapy medications. (AR 507) (“Everything
else stable” . . . examination reveals “no acute distress” and
“routine physical” as stable).

•

8/5/10:

Routine follow-up, noting “ongoing [physical therapy] for
low back pain and treatment after surgery almost a near ago”
and that “[s]he is doing better” and “[f]eels like she could go
back to work, but probably not as bartender.” (AR 505)
(“Everything else baseline” . . . examination reveals “no acute
distress).

•

9/2/10:

Physical therapy notation concerning functional capacity
evaluation history, with “client report[ing] difficulty with

5

For the most part, these treatment notes simply reflect Petitioner’s periodic subjective
complaints of pain. However, largely absent from such notes are any corresponding opinions or
findings from Dr. Thayne (1) paralleling the opinions later reached (in the “Residual Functional
Capacity Questionnaires”) as to Petitioner’s alleged functional limitations, or (2) quantifying in
any degree Petitioner’s pain statements and resultant limitations. See infra.
MEMORANDUM DECISION AND ORDER - 18

pushing, pulling, heavy lifting, bending, twisting, stooping,
etc. She is limited with laundry and housecleaning and would
like to return to sports and recreational activities but has been
unable to do so.” (AR431) (chief complaints listed as “low
back pain at the paraspinals and illiac crest with bilateral
lower extremities to the posterior legs with numbness.”).
•

12/6/10:

Follow-up on “chronic back pain and depression” with
Petitioner “[s]till having lots of pain.” (AR 504) (“pain
seems to be making her depression worse” but “[e]verything
else baseline” . . . examination reveals “no acute distress,”
that “back – very tight with knot-like tightness in lower bil
paraspinus muscles,” and “lumbar back pain” as stable . . .
“[p]ain and depression worsening, or at least no better.”).

•

3/30/11:

Annual exam, with Petitioner reporting that “she is still
having low back pain and feels depressed despite treatment,”
explaining further “that her pain symptoms have improved
slightly, but that she still does not feel well enough to return
to work as a bartender.” (AR 598-599) (“At this visit, she is
mainly concerned about her lack of sleep, as she is woken up
every night by back pain and is unable to sleep more than 5-6
hours per night total” . . . examination is “[p]ositive for joint
pain in R elbow and low back pain . . . numbness in R arm, no
weakness” alongside observation that Petitioner “moves with
discomfort, in no acute distress.” “Routine physical” and
“lumbar back pain” noted to be stable).

•

8/18/11:

Petitioner presents with urinary tract infection. (AR 630).

•

9/28/11:

Petitioner complains of issues with anxiety, thumb, and foot.
(AR 628) (examination reveals no acute distress and “routine
physical,” and “lumbar back pain” as stable).

•

12/5/11:

Wellness exam and check up, with Petitioner indicating that
she is struggling with depression and anxiety. (AR 666-667)
(“Everything else fine” . . . examination reveals “no acute
distress” and “routine physical” as stable).

•

12/14/11:

Cyst removal from inner proximal vaginal wall. (AR 664).

•

1/25/12:

Petitioner presents with right thumb pain. (AR 661) (“Has
had R elbow injury and surgery and this may be ultimately
affecting her thumb. Other issues are all baseline.”).

MEMORANDUM DECISION AND ORDER - 19

•

2/15/12:

Petitioner presents for evaluation of possible hypoactive
sexual desire disorder (decreased libido). (AR 660).

•

11/5/12:

Petitioner presents with possible pneumonia.
(“Baseline issues are stable”).

•

12/3/12:

Petitioner presents with wound on coccyx. (AR 915)
(“Apparently injured area 10 days ago when hot tub jet hit
area and it has opened up more and more.”).

•

12/6/12:

Wellness exam and check up, with Petitioner indicating that
she is struggling with depression and anxiety. (AR 913-914)
(“Having ongoing peripheral neuropathy symptoms” but
“[e]verything else fine” . . . “no acute distress” . . . “full
[range of motion] of all joints, normal muscle strength in all
major muscle groups, no scoliosis or spinal tenderness” and
“lumbar back pain” and “routine physical” reported as
stable).

(AR 916)

Again, the point here is not to dispute that Petitioner has issues with her back and right
arm that bring about pain responses; rather, it is to highlight that, nowhere in Dr. Thayne’s
historical treatment records of Petitioner is there any corroboration with the substantial
limitations provided in his “Residual Functional Capacity Questionnaires.” See, e.g., (AR 670)
(no reference to back/arm pain in Petitioner’s temporary/historical “problem list” from 4/15/10
to 5/17/12).6 This is what the ALJ meant when stating that “[Dr. Thayne’s] treatment notes do
not support his physical RFC.” (AR 30). The undersigned agrees, finding that the ALJ provided
clear and convincing reason for rejecting Dr. Thayne’s opinions.7 This is not to say that this

6

This is particularly the case following Dr. Thayne’s March 30, 2011 “Residual
Functional Capacity Questionnaire” on March 30, 2011. That is, Dr. Thayne’s treatment notes
following March 30, 2011 do not explain the more limiting opinions expressed within his
subsequent August 2, 2012 “Residual Functional Capacity Questionnaire.”
7

Additionally, Dr. Thayne’s opinions are contradicted by examining physician, Dr.
Kevin Hill, M.D. (AR 603-606). As such, the ALJ has also provided specific and legitimate
reasons, supported by substantial evidence in the record, for rejecting Dr. Thayne’s opinions.
MEMORANDUM DECISION AND ORDER - 20

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, it is clear that the ALJ’s decision to question Dr. Thayne’s disability opinion is not
without 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 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.”).
2.

Dr. Soofi

Dr. Soofi began treating Petitioner on January 19, 2012 and, on August 14, 2012,
submitted a “Mental Capacity Assessment.” See (AR 717-719, 760-763). Therein, Dr. Soofi
noted Petitioner’s (1) extreme impairment in the ability to maintain attention and concentration
for extended periods;8 (2) extreme impairment in the ability to complete a normal workweek
without interruptions from psychologically-based symptoms; (3) marked impairment in the
ability to complete a normal workday without interruptions from psychologically-based
symptoms; (4) marked impairment in the ability to perform at a consistent pace with a standard
number and length of rest periods; (5) marked impairment in the ability to accept instructions

8

Somewhat oddly, on the same day as the “Mental Capacity Assessment,” Dr. Soofi’s
treatment notes indicate that “[Petitioner’s] concentration and memory is mildly diminished,
where she forgets appointments and throughout the day she gets distracted easily and forgetful.”
(AR 733) (emphasis added).
MEMORANDUM DECISION AND ORDER - 21

and respond appropriately to criticism from supervisors; and (6) marked impairment in the
ability to respond appropriately to changes in the work setting. See (AR 717-719).
Within his April 26, 2013 decision, the ALJ lent “little weight” to these opinions, finding
in relevant part:
Doctor Soofi’s opinion of disability is inconsistent with his treatment notes showing
she is improving as discussed above. Doctor Thayne, her treating physician, reports
the claimant’s depression is stable. Therefore, although Dr. Soofi is a treating doctor
and his opinion could be given controlling weight, it is only given little weight as it
is inconsistent with the great weight of the evidence.
(AR 31). Petitioner disagrees, arguing that “the finding of these apparent inconsistencies
requires selective reading of Dr. Soofi’s treatment records and a questionable interpretation of
Dr. Thayne’s statements regarding [Petitioner’s] condition” which do not constitute the requisite
“substantial evidence” that would provide “specific and legitimate reasons” for discounting Dr.
Soofi’s opinions. Pet.’s Brief, pp. 19-20 (Docket No. 15). The Court’s own review of the record
once again supports the ALJ’s decision to question the weight of Dr. Soofi’s “Mental Capacity
Assessment.”
First, there is no dispute that the “Mental Capacity Assessment” was completed at a time
when Petitioner was not taking a full compliment of mood stabilizers, owing to perceived
adverse reactions up to that point. But, once she did (at least to an extent) – after August 14,
2012 – her mental status improved. See, e.g., (AR 729) (10/22/12 treatment note indicating:
“However, since she had increased Cymbalta to 90 mg a day, her depression seems to have
significantly improved . . . . She does not seem to be exhibiting any manic symptoms . . . .
Otherwise, her affect seems to be brighter, she is smiling more, she is still intermittently tearful,
but definitely less depressed . . . . [T]his woman has not been on mood stabilizer for most of her

MEMORANDUM DECISION AND ORDER - 22

life, so her bipolar disorder has not been too severe.”) (emphasis added); (AR 727) (11/26/12
treatment note indicating: “The patient states that her depression is better, but still ‘having good
days and bad days.’ . . . . Her affect is intermittently tearful, but generally looks fairly bright.
Her depression is much improved. No significant hopelessness or suicidal ideation. No
psychotic symptoms.”) (emphasis added); (AR 725) (1/23/13 treatment note indicating: “[S]he
appears to be brighter in affect, though she talks a lot about feeling like ‘people do not
understand.’”). In other words, recognizing Petitioner’s improving mental status over time,
reveals that Dr. Soofi’s earlier “Mental Capacity Assessment” does not paint an entirely accurate
picture of Petitioner’s condition. To be clear, Petitioner still suffers from depression and bipolar
disorder with corresponding limitations (just as the ALJ found in his disability determination),
but Dr. Soofi’s “Mental Capacity Assessment” is not corroborated by the entire balance of his
treatment notes.9
Second, Dr. Soofi’s findings are not universally shared. For example, following a May
19, 2011 psychological consultative examination, Nels M. Sather, Ph.D., concluded:
Ms. King’s prognosis is fair to good. She has mild symptoms of depression related
to her medical problems (i.e., surgeries, right arm limitations, etc.). Her symptoms
include insomnia, lack of motivation, and loss of interest in some favorite activities.
She has a history of depressive episodes that she was able to overcome. Her mild
depression is treatable and it is recommended that she seek outpatient therapy.
Treatment is likely to take less than a year and she should continue her

9

Petitioner’s criticism of the ALJ’s references to Dr. Thayne’s mention of her
depression as “stable” miss the point. See Pet.’s Brief, p. 19 (Docket No.15) (“Regarding
support in treatment records for Dr. Soofi’s opinion evidence, the ALJ mentions on multiple
occasions that Ms. King’s depression was referred to as “stable” by Dr. Thayne, seeming to take
the term “stable” as a synonym for “asymptomatic” or “improved.”). There simply is no basis
from which to conclude that such references – as ambiguous as they might be – operate to
support a finding of disability in this instance.
MEMORANDUM DECISION AND ORDER - 23

antidepressant medication. She is an engaging, social person and she should be able
to find employment that capitalizes on her strengths. . . . .
Ms. King is a 42-year-old female who has a history of mild depression in response
to identifiable stressors. She is prescribed an antidepressant and she would benefit
from outpatient therapy. She has good ability to understand instructions. Her
memory is intact. She is able to sustain attention concentration. Her persistence is
limited by her physical problems. She is adaptable and she can engage in social
relationships.
(AR 613). Similarly, in a January 20, 2011 psychiatric review, Michael J. Dennis, Ph.D., found
no restriction of activities of daily living, no difficulties in maintaining social functioning, no
difficulties in maintaining concentration/persistence/pace, and no repeated episodes of
decompensation of any extended duration. See (AR 94); see also (AR 95) (“[Petitioner] is
independent/active in [activities of daily living], drives/shops, handles finances and is socially
active/lunches. Says can pay attention as long as needed and follows instructions very well;
completes what she starts. No evidence of severe psych impairment based on level of
functioning and objective findings.”). On June 3, 2011, Mack Stephenson, Ph.D., affirmed Dr.
Dennis’s initial determination, except finding a mild restriction of activities of daily living. See
(AR 108).
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.
Thayne’s and Dr. Soofi’s opinions. While these physicians’ assessments may not have been
given the weight Petitioner would have preferred, they nonetheless were considered in the
context of the surrounding medical record.

MEMORANDUM DECISION AND ORDER - 24

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 is tasked with determining whether the ALJ’s decision
that Petitioner is not disabled is supported by the record. With this backdrop, given the
inconsistent treatment notes and conflicting medical opinions, the ALJ’s handling of Dr.
Thayne’s and Dr. Soofi’s opinions is supported by clear and convincing/specific and legitimate
reasons for doing so. 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. See Richardson,
402 U.S. at 401; Matney, 981 F.2d at 1019.
IV. CONCLUSION
The ALJ is the fact-finder and is solely responsible for weighing and drawing inferences
from facts and determining credibility. See Allen, 749 F.2d at 579; Vincent ex. Rel. Vincent, 739
F.2d at 1394; Sample, 694 F.2d at 642. If the evidence is susceptible to more than one rational
interpretation, one of which is the ALJ’s, a reviewing court may not substitute its own
interpretation for that of the ALJ. Key, 754 F.2d at 1549.
I am of the opinion that the evidence upon which the ALJ relied can reasonably and
rationally support his 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.
///
///
///

MEMORANDUM DECISION AND ORDER - 25

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 28, 2016

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

MEMORANDUM DECISION AND ORDER - 26