Sherman v. Astrue

Filing 19

ORDER denying 12 Plaintiff's Motion for Summary Judgment; granting 15 Defendant's Motion for Summary Judgment. The Commissioner's decision is affirmed. Signed by Magistrate Carolyn S Ostby on 12/10/2012. (JDH, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MONTANA
BILLINGS DIVISION
ROBERT D. SHERMAN,
CV 12-35-BLG-CSO
Plaintiff,
ORDER ADDRESSING
SUMMARY JUDGMENT
MOTIONS

vs.
MICHAEL J. ASTRUE,
Commissioner of Social
Security,
Defendant.

Plaintiff Robert D. Sherman (“Sherman”), seeks judicial review of
Defendant Commissioner of Social Security’s (“Commissioner”) decision
denying his application for supplemental security income (“SSI”)
benefits under Title XVI of the Social Security Act (“the Act”), 42 U.S.C.
§§ 1381-1383(c). After the parties consented in writing, this case was
assigned to the undersigned for all proceedings. DKT 7.
Now pending are the parties’ cross-motions for summary
judgment. DKTs 12 (Sherman’s motion) and 15 (Commissioner’s
motion). For the reasons stated below, the Court denies Sherman’s

-1-

motion, grants the Commissioner’s motion, and affirms the
Commissioner’s decision denying SSI for the period at issue.
I.

PROCEDURAL BACKGROUND
On February 6, 2009, Sherman filed applications for disability

insurance benefits (“DIB”) and SSI benefits alleging disability
beginning December 15, 1998. Tr. 32-33, 157-67. The Social Security
Administration (“SSA”) denied his application at issue here both
initially and on reconsideration. Tr. 105, 107, 112-14, 120-21.
On July 8, 2010, an Administrative Law Judge (“ALJ”) held a
hearing. Tr. 28-103. On September 9, 2010, the ALJ issued a written
decision. Tr. 11-23. The ALJ explained that, at the hearing, Sherman
amended his alleged onset date from December 15, 1998, to February
16, 2009. Tr. 11, 36. Sherman’s earnings records showed that he
“acquired sufficient quarters of coverage to remain insured through
December 31, 2000.” Id. Because his amended alleged onset date of
February 16, 2009, was subsequent to the date he was last insured for
DIB, Sherman dismissed his DIB application. Tr. 13, 32-33.
The ALJ next evaluated Sherman’s SSI claim. For the reasons

-2-

stated in his written decision, the ALJ denied it. Tr. 13-23. On
January 24, 2012, the Appeals Council denied Sherman’s request for
review. Tr. 1-5. The Appeals Council noted that it was doing so having
“considered the fact that since the date of the [ALJ’s] decision,
[Sherman] w[as] found to be under a disability beginning August 1,
2011, based on the application(s) [Sherman] filed on December 22,
2010[.]” Tr. 2. The Appeals Council concluded that this subsequent
finding that Sherman was disabled did “not warrant a change in the
[ALJ’s] decision.” Id. When the Appeals Council denied Sherman’s
request for review, the ALJ’s decision became final for purposes of
judicial review. 20 C.F.R. § 416.1481 (2012). This Court has
jurisdiction pursuant to 42 U.S.C. § 405(g).
II.

STANDARD OF REVIEW
This Court’s review is limited. The Court may set aside the

Commissioner’s decision only where the decision is not supported by
substantial evidence or where the decision is based on legal error.
Ryan v. Commr. of Soc. Sec., 528 F.3d 1194, 1198 (9th Cir. 2008); 42
U.S.C. § 405(g). “Substantial evidence is more than a mere scintilla,

-3-

but less than a preponderance.” Id. (citing Bayliss v. Barnhart, 427
F.3d 1211, 1214 n. 1 (9th Cir. 2005) (internal quotation marks omitted)).
“It is such relevant evidence as a reasonable mind might accept as
adequate to support a conclusion.” Id. (internal quotation marks and
citation omitted).
The Court must consider the record as a whole, weighing both the
evidence that supports and detracts from the Commissioner’s
conclusion, and cannot affirm the ALJ “by isolating a specific quantum
of supporting evidence.” Robbins v. Soc. Sec. Admin., 466 F.3d 880, 882
(9th Cir. 2006) (internal quotation marks and citation omitted). The
ALJ is responsible for determining credibility, resolving conflicts in
medical testimony, and resolving ambiguities. “Where the evidence is
susceptible to more than one rational interpretation, one of which
supports the ALJ’s decision, the ALJ’s conclusion must be upheld.”
Thomas v. Barnhart, 278 F.3d 947, 954 (9th Cir. 2002) (internal citation
omitted).
III. BURDEN OF PROOF
A claimant is disabled for purposes of the Act if: (1) the claimant

-4-

has a medically determinable physical or mental impairment which can
be expected to result in death or which has lasted or can be expected to
last for a continuous period of not less than twelve months, and (2) the
impairment or impairments are of such severity that, considering the
claimant’s age, education, and work experience, the claimant is not only
unable to perform previous work, but the claimant cannot “engage in
any other kind of substantial gainful work which exists in the national
economy.” Schneider v. Commr. of Soc. Sec. Admin., 223 F.3d 968, 974
(9th Cir. 2000) (citing 42 U.S.C. § 1382c(a)(3)(A)-(B)).
In determining whether a claimant is disabled, the Commissioner
follows a five-step sequential evaluation process. Tackett v. Apfel, 180
F.3d 1094, 1098 (9th Cir. 1999); 20 C.F.R. § 404.1520(a)(4)(i)-(v).
1.

The claimant must first show that he or she is not currently
engaged in substantial gainful activity. Tackett, 180 F.3d at
1098.

2.

If not so engaged, the claimant must next show that he or
she has a severe impairment. Id.

3.

The claimant is conclusively presumed disabled if his or her
impairments meet or medically equal one contained in the
Listing of Impairments described in 20 C.F.R. Pt. 404,
Subpt. P, App. 1 (hereafter “Listing of Impairments”). Id. If
the claimant’s impairments do not meet or medically equal
-5-

one listed in the regulations, the analysis proceeds to the
fourth step.
4.

If the claimant is still able to perform his or her past
relevant work, he or she is not disabled and the analysis
ends here. Id. “If the claimant cannot do any work he or
she did in the past, then the claimant’s case cannot be
resolved at [this step] and the evaluation proceeds to the
fifth and final step.” Id. at 1098-99.

5.

If the claimant is unable to perform his or her past relevant
work due to a “severe impairment (or because [he or she
does] not have any past relevant work)” the court will
determine if the claimant is able to make an adjustment to
perform other work, in light of his or her residual functional
capacity, age, education, and work experience. 20 C.F.R. §
404.1520(g). If an adjustment to other work is possible then
the claimant is not disabled. Tackett, 180 F.3d at 1099.

The claimant bears the burden of proof at steps one through four, but
at the fifth step the Commissioner bears the burden of establishing that
there is other work in significant numbers in the national economy that
the claimant can perform. Id. The Commissioner can meet this burden
via the testimony of a vocational expert or reference to the MedicalVocational Guidelines at 20 C.F.R. Pt. 404, Subpt. P, App. 2. Id. If the
Commissioner is unable to meet this burden then the claimant is
disabled and entitled to benefits. Id.

-6-

IV.

THE ALJ’s OPINION
The ALJ followed the five-step sequential evaluation process in

considering Sherman’s claim. First, the ALJ found that Sherman had
not engaged in substantial gainful activity since his amended alleged
onset date of February 16, 2009. Tr. 13.
Second, the ALJ found that Sherman has the following severe
impairments: “degenerative disc and joint disease lumbar and thoracic
spines; obesity; osteoarthritis bilateral hands; [and] anti-social
personality disorder[.]” Tr. 14. He also found that Sherman’s alleged
depression “is either not medically determinable, due to the lack of a
formal diagnosis, or is nonsevere.” Id.
Third, the ALJ found that Sherman does not have an impairment
or a combination of impairments that meets or medically equals any
one of the impairments in the Listing of Impairments. Tr. 14-16.
Fourth, the ALJ found that Sherman has the residual functional
capacity (“RFC”) to:
alternate between walking, standing and sitting throughout
an 8-hour period of time. This includes walking limited to 2
to 4 blocks (1/4 mile) at one time, standing for up to 30
minutes at one time, and sitting 1 to 2 hours at one time.
-7-

He can lift/carry 20 pounds on an occasional basis and 10
pounds on a frequent basis, but should not crawl[ ] or climb[]
ladders, ropes or scaffolds, with all other postural activities
limited to the occasionally. He is to avoid concentrated
exposure to extreme temperatures, primarily cold and [is] to
[avoid] vibrations. For the bilateral upper extremities he
should not repetitiously do fine motor activities (the smaller
the fine motor skill requirement the less ability to do it)
with limitations from seldom to occasional. His activities of
daily living are none to mild. In social functioning, the
claimant can do one-on-one interaction with the public
occasionally to frequently, and small numbers of people
occasionally, though no jobs that require constant dealing
with the public, small or large numbers, and no dealings
with large numbers of people at all. He should not work in
distracting situations involved with co-workers due to either
the numbers of employees or due to the types of activities
they may be performing, and minimal supervision with no
jobs that deal with “over the shoulder” or constant critical
supervision; in concentration, persistence, and pace, routine
jobs are acceptable, with occasional to frequent new
learning, unskilled to the mid-level of semi-skilled jobs (SVP
up to 4 or 5), and based on pain issues, no jobs with high
constant focus requirements or high constant stress
requirements.
Tr. 16-17.
The ALJ also found that Sherman is unable to perform any of his
past relevant work as a HVAC technician. Tr. 21.
Fifth, the ALJ found that Sherman could perform limited light
work in jobs that exist in significant numbers in the national economy

-8-

in light of his age (46 years old at the time of his amended alleged onset
date, which is defined as a “younger individual”), education (at least
high school), work experience, and RFC. Tr. 21-22. Consequently, the
ALJ found that Sherman was not disabled during the period from his
amended alleged onset date of February 16, 2009, through the date of
the ALJ’s decision of September 9, 2012. Tr. 23.
V.

PARTIES’ ARGUMENTS
In seeking either reversal or remand of the ALJ’s decision,

Sherman argues that the ALJ erred in three principal ways. First, he
claims that the ALJ “failed to provide proper weight to the opinion[s] of
multiple treating physicians along with their objective test results.”
Sherman’s Br. in Support of Mtn. for Summary Judgment (DKT 13) at
11-23. Sherman argues that the ALJ failed to provide proper weight to
the opinions of: (1) treating physicians Jillian Verby, M.D., Lowell
Quenemon, M.D., Laura Goodell, M.D., and Stephanie Draper, M.D.,
id. at 12-15; and (2) psychologists Marshall McFarland, Ph.D., and
Mark Mozer, Ph.D., id. at 13-14, 21-23. He also argues that the ALJ
erred in failing to give proper weight to objective medical evidence,

-9-

including: (1) results from an MRI that reflected the degenerative disc
disease pervasive in Sherman’s lumbar and thoracic spines, id. at 1213; and (2) x-ray results that also described lumbar and thoracic spine
degenerative disc disease, id. at 14.
Second, Sherman argues that the ALJ erred in finding that he is
not credible respecting the intensity, persistence, and limiting effects of
his symptoms. Id. at 15, 24-31. He argues that the ALJ erred in: (1)
ignoring objective medical evidence to find that Sherman’s testimony
lacked credibility, id. at 15; (2) failing to properly find that the opinions
of Sherman’s treating physicians support his testimony, id. at 24-27;
and (3) failing to provide an objective basis for finding Sherman not
fully credible, id. at 27-29.
Third, Sherman argues that the ALJ erred in accepting the
opinion of the vocational expert. Id. at 33. Sherman argues that the
vocational expert testified that, with his RFC, Sherman could work as a
chauffeur and a tank truck driver. But both jobs are semi-skilled jobs
that involve driving. Sherman argues that, although he has performed
skilled work in the past, it was not as a driver. Thus, he argues, the

-10-

ALJ erred in failing to explain “what skills [Sherman] might have and
how those skills would transfer to these two driver jobs as required by
SSR 82-41.” Id.
In response, the Commissioner first argues that the ALJ properly
“assessed the medical source opinions of record.” Commissioner’s Resp.
Br. (DKT 16) at 9-14. He argues that: (1) the record contains no
treating source opinions about Sherman’s physical abilities during the
relevant period between February 2009 and September 2010, id. at 9;
(2) examining and reviewing source opinions covering the relevant time
support the ALJ’s ultimate conclusion, id. at 10; (3) Sherman was not
treated by an acceptable medical source during the relevant period
respecting his mental functioning, id. at 11; (4) the record contains no
opinions from treating sources about Sherman’s mental functioning, id.
at 11-12; (5) the record does contain opinions by examining and
reviewing sources respecting his mental abilities that support the ALJ’s
findings, id. at 12-13; and (6) although the Commissioner concedes that
Drs. Mozer, McFarland, and Martin concluded Sherman could do
unskilled work and did not conclude that he could do semi-skilled work
-11-

as the ALJ found, “any error is harmless because the ALJ found that
[Sherman] could do both unskilled and semi-skilled work, and then
relied on the unskilled jobs of messenger/courier ... garment sorter ...
and office machine operator ... to find that [Sherman] was not
disabled[,]” id. at 13-14 (emphasis omitted).
Second, the Commissioner argues that the ALJ properly
discounted Sherman’s subjective complaints respecting his symptoms
and their severity. Id. at 3-9. The Commissioner argues that the ALJ
did not err in his determination respecting Sherman’s credibility
because: (1) he found that Sherman “engaged in self-limiting behavior
during examinations[,]” id. at 5; (2) objective medical evidence showed
only minimal changes in Sherman’s back and hands inconsistent with
his allegations of disability, id.; (3) Sherman’s symptoms responded to
medication, id. at 6; (4) Sherman never took medication for mental
health and was no longer receiving mental health care at the time of
his hearing, id.; (5) none of Sherman’s treating sources placed
restrictions on his activities, id.; (6) Sherman’s activities of daily living
were inconsistent with his allegations of disability, id. at 6-7; and (7)

-12-

Sherman had a sporadic work history even before his alleged onset of
disability, id. at 7.
Further respecting the ALJ’s credibility determination, the
Commissioner also argues that: (1) through his argument that the
medical evidence supports his claim, Sherman improperly asks the
Court to reweigh the evidence, id.; (2) the ALJ’s consideration of
Sherman’s daily activities was reasonable and thus should be affirmed,
id. at 8; and (3) although Sherman argues that no treating source
questioned his physical and mental impairments, no treating source
placed any restrictions on Sherman’s activities or opined that he had
functional limitations, either, id.
Third, the Commissioner argues that the ALJ’s hypothetical
question to the vocational expert that resulted in his conclusion that
Sherman could do a range of unskilled work properly included all of
Sherman’s credible limitations. Id. at 15. He also argues that “[a]ny
error by the ALJ in additionally finding that [Sherman] could do semiskilled work is harmless because the ALJ also found [Sherman] could
do unskilled work,” and listed unskilled jobs that exist in significant

-13-

numbers in the national economy. Id.
Sherman replies that: (1) the Commissioner’s characterization of
the objective medical evidence is inconsistent with the actual evidence,
Sherman’s Reply Br. (DKT 18) at 3; and (2) the Commissioner’s
arguments respecting Sherman’s credibility are based on the faulty
assumptions that: (a) Sherman was malingering; (b) his symptoms
responded well to prescription medications; (c) his daily activities were
more extensive than the evidence supports; and (d) medical records fail
to confirm Sherman’s claimed limitations, id. at 3-6.
VI.

DISCUSSION
As noted above, the relevant time frame here is the roughly 19-

month period between Sherman’s amended alleged onset date of
February 16, 2009, through the date of the ALJ’s decision on September
9, 2010. The primary issues before the Court are whether substantial
evidence supports the ALJ’s decision, and whether the ALJ’s decision is
free of legal error. The Court is not permitted to re-weigh the evidence.
Considering Sherman’s allegations of error and applying controlling
Ninth Circuit authority, the Court concludes, as discussed below, that

-14-

the Commissioner’s decision is based on substantial evidence in the
record, and is free of reversible legal error.
A.

ALJ’s Consideration of the Medical Evidence

In evaluating Sherman’s claims, the ALJ was required to “make
fairly detailed findings in support” of his decision “to permit courts to
review those decisions intelligently.” Vincent v. Heckler, 739 F.2d 1393,
1394 (9th Cir. 1984) (citation omitted). In doing so, an “ALJ does not
need to discuss every piece of evidence” and “is not required to discuss
evidence that is neither significant nor probative[.]” Howard ex rel.
Wolff v. Barnhart, 341 F.3d 1006, 1012 (9th Cir. 2003) (internal
quotations and citations omitted).
Here, the ALJ issued a detailed decision. Tr. 11-23. He reviewed,
as discussed further below, his rationale for rejecting certain evidence
in his assessment of Sherman’s medical records, credibility, and RFC.
Tr. 14-21. He also set forth the evidence – which the Court concludes is
substantial – that informed and supported his conclusion with respect
to Sherman’s claim for benefits. Id. For these reasons, the Court finds
unpersuasive the general argument that the ALJ failed to properly

-15-

consider evidence favorable to Sherman.
As noted, Sherman argues that the ALJ erred in failing to give
proper weight to: (1) the opinions of treating physicians Verby,
Quenemon, Goodell, and Draper; (2) the opinions of psychologists
McFarland and Mozer; and (3) MRI and x-ray results. DKT 13 at 1123. “As a general rule, more weight should be given to the opinion of a
treating source than to the opinion of doctors who do not treat the
claimant. At least where the treating doctor’s opinion is not
contradicted by another doctor, it may be rejected only for ‘clear and
convincing’ reasons. [The Ninth Circuit Court of Appeals has] also held
that ‘clear and convincing’ reasons are required to reject the treating
doctor’s ultimate conclusions. Even if the treating doctor’s opinion is
contradicted by another doctor, the Commissioner may not reject this
opinion without providing ‘specific and legitimate reasons’ supported by
substantial evidence in the record for so doing.” Lester v. Chater, 81
F.3d 821, 830 (9th Cir. 1996) (citations omitted).
Having reviewed the record and the parties’ arguments, the Court
concludes, for the following reasons, that the ALJ did not err in

-16-

considering the opinions of Sherman’s treating sources and in
considering MRI and x-ray results. First, Sherman is impermissibly
urging the Court to reweigh the evidence, and to arrive at a conclusion
different from that of the ALJ. The Court is not permitted to do so.
Sandgathe v. Chater, 108 F.3d 978, 980 (9th Cir. 1997).
The Court concludes that the ALJ’s decision thoroughly describes
the treating sources’ findings that Sherman now argues the ALJ failed
to properly consider. The ALJ included a detailed, chronological
description of Sherman’s relevant medical history that reflects not only
the findings of the treating sources but also the MRI and x-ray results
upon which Sherman relies. Respecting Sherman’s specific arguments,
the ALJ expressly discussed:
*

Dr. Verby’s May 21, 2010 treatment notes from RiverStone
Health reflecting “[p]alpable spasm over the left paraspinal
in the sacroiliac region[.]” Tr. 20.

*

Dr. Quenemoen’s March 2, 2010 treatment records,
including nerve conduction and electromyography studies,
reflecting “very minimal irritability in the left L5

-17-

distribution and some very subtle irritation at L3 on the
right in the paraspinous region[,]” but the ALJ noted a
January 26, 2010 lumbar spine MRI that showed “moderate
to severe bilateral neural foraminal narrowing at L5-S1
secondary to disc material and osteophytic changes[.]” Id.
*

Dr. Goodell’s1 January 19, 2010 treatment notes reflecting:
“pain radiation into his left lower extremity that is made
worse with walking or movement”; palpable spasm over the
paraspinal muscles in the lumbar region; a limited
examination because of Sherman’s “inability to
cooperate/participate”; and the observation that, after the
physician left then returned to the room, he found Sherman
had moved from a chair to the exam room table where he
was resting flat on his back taking a nap. Tr. 19-20.

*

Dr. Draper’s June and July 2009 treatment notes reflecting
Sherman’s continued back pain and bilateral hand

Although this treatment record bears Dr. Goodell’s name as the
physician with whom Sherman established care, it actually is signed by
Robert Wagenaar, M.D. Tr. 382, 384.
1

-18-

osteoarthritis and previous records showing “considerable
osteoarthritis with almost complete deterioration of discs at
T4-6[.]” Tr. 18, 19.
*

Dr. McFarland’s January 26, 2010 mental RFC assessment
concluding that Sherman has an anti-social personality
disorder, but in which she also noted that Sherman “would
do best at work that does not require dealing with the public
or working closely with others.” Tr. 15 (referring to Tr. 388).

*

Dr. Mozer’s January 11, 2010 examining psychologist’s notes
describing Sherman’s daily drinking, smoking marijuana
with friends, and Sherman’s claim that he “is so depressed
he stays in bed and isolates[,]” but finding he has “many
vague complaints” and “evasive” answers, and “very
marginal motivation.” Tr. 15-16. Dr. Mozer concluded that
Sherman “could function at an unskilled activity consistent
with whatever physical limitations that may exist.” Id. at
16.

Many of the treatment notes describe the MRI and x-ray results

-19-

upon which Sherman relies. The ALJ also detailed them in his written
decision. Tr. 18-20. While Sherman disagrees with the ALJ’s ultimate
characterization of these treatment notes, such disagreement does not
render the ALJ’s consideration of this evidence improper nor does it
amount to error. The ALJ expressly noted and discussed all of the
foregoing evidence in conjunction with other, substantial evidence
reflecting that Sherman had fewer functional limitations than he
alleged. He reached a reasoned conclusion supported by substantial
evidence. The Court cannot conclude that he erred.
Second, the Court concludes that Sherman mischaracterizes the
evidence upon which he relies and overstates the significance of some of
it. It is beyond dispute that Sherman has severe impairments
including degenerative disc and joint disease in his lumbar and thoracic
spines, obesity, osteoarthritis in both hands, and anti-social personality
disorder. The ALJ expressly acknowledged these impairments and, as
noted above, considered the medical evidence of record that
demonstrates these impairments. Tr. 14. But “[t]he mere existence of
an impairment is insufficient proof of a disability.” Matthews v.

-20-

Shalala, 10 F.3d 678, 680 (9th Cir. 1993) (citation omitted). As noted,
the ALJ carefully reviewed and summarized Sherman’s medical
records. Tr. 18-21. The records do not indicate a sustained severe loss
of function that necessarily would render Sherman incapable of
engaging in any substantial gainful activity. Rather, they indicate that
Sherman has certain conditions and limitations, the existence of which
the ALJ expressly acknowledged. Tr. 14 (noting Sherman’s severe
impairments detailed above). The ALJ did not err.
The Court concludes that the ALJ’s findings support his
determinations respecting the treatment notes of the treating
physicians and psychologists, and the objective medical test results. He
offered reasons for his conclusions in accord with the standards set
forth above. Thus, the ALJ did not err.
B.

ALJ’s Assessment of Sherman’s Credibility

As noted, Sherman argues that his medical records support his
testimony and his claim of disability. He also claims that the ALJ’s
determination that his testimony lacks credibility is not sufficiently
specific. DKT 13 at 15, 24-31. The Court disagrees and concludes that

-21-

the ALJ did not err in assessing Sherman’s credibility.
In Molina v. Astrue, 674 F.3d 1104 (9th Cir. 2012), the Ninth
Circuit restated the long-standing standard for assessing a claimant’s
credibility as follows:
In assessing the credibility of a claimant’s testimony
regarding subjective pain or the intensity of symptoms, the
ALJ engages in a two-step analysis. First, the ALJ must
determine whether there is objective medical evidence of an
underlying impairment which could reasonably be expected
to produce the pain or other symptoms alleged. If the
claimant has presented such evidence, and there is no
evidence of malingering, then the ALJ must give specific,
clear and convincing reasons in order to reject the claimant’s
testimony about the severity of the symptoms. At the same
time, the ALJ is not required to believe every allegation of
disabling pain, or else disability benefits would be available
for the asking, a result plainly contrary to 42 U.S.C. §
423(d)(5)(A). In evaluating the claimant’s testimony, the
ALJ may use ordinary techniques of credibility evaluation.
For instance, the ALJ may consider inconsistencies either in
the claimant’s testimony or between the testimony and the
claimant’s conduct, unexplained or inadequately explained
failure to seek treatment or to follow a prescribed course of
treatment, and whether the claimant engages in daily
activities inconsistent with the alleged symptoms. While a
claimant need not vegetate in a dark room in order to be
eligible for benefits, the ALJ may discredit a claimant’s
testimony when the claimant reports participation in
everyday activities indicating capacities that are
transferable to a work setting. Even where those activities
suggest some difficulty functioning, they may be grounds for
discrediting the claimant’s testimony to the extent that they
-22-

contradict claims of a totally debilitating impairment.
Molina, 674 F.3d at 1112-13 (citations, internal quotations omitted).
Here, as noted, the ALJ found objective medical evidence of
underlying impairments that could reasonably be expected to produce
the symptoms alleged. Also, the ALJ did not expressly find that
Sherman was malingering. He did note, however, evidence of record in
which Sherman exhibited “self-limiting behaviors” from which at least
one examining physician discerned that Sherman is “capable of doing
much more activity than what he displayed on physical examination
and he is capable of work-related activities.” Tr. 19. For the reasons
discussed below, the Court concludes that the ALJ ultimately gave
specific, clear, and convincing reasons for determining that Sherman
was not entirely credible.
The ALJ initially found Sherman credible to the extent that he
alleged some medically determinable impairments that could be
expected to cause his symptoms and limit, to some extent, his ability to
perform work activity. Tr. 18. He therefore reduced Sherman’s RFC to
accommodate those limitations and concluded, with the vocational

-23-

expert’s testimony, that Sherman could not perform his past relevant
work. Tr. 20-21. Thus, the ALJ did not entirely reject Sherman’s
allegations. Rather, the ALJ was careful to parse out those allegations
that he found credible from those that he found not credible, as he was
required to do. And, the ALJ gave the following specific, clear, and
convincing reasons for rejecting other portions of Sherman’s allegations
and making his credibility determination.
First, the ALJ found that Sherman’s work history shows only
sporadic work even before his protective filing date. Tr. 20. The ALJ
noted that this evidence raises the question of whether Sherman’s
continuing unemployment is actually due to medical impairments and
“does not enhance his credibility.” Id.
Second, the ALJ noted, as mentioned above, that at least one
examining physician observed that Sherman “displayed multiple pain
and self-limiting behaviors and described [Sherman] to have poor
credibility as an examinee[,]” which “also does not enhance [his]
credibility.” Id.
Third, the ALJ observed that a report of record from the Montana

-24-

Vocational Rehabilitation Program shows that Sherman’s file with that
agency was closed because of his failure to cooperate. Id. The report
indicated that Sherman had received his commercial driver’s license,
“but then failed to get a job despite job search assistance for
approximately 6 months from June 2008 to November 2008; it was
noted that [Sherman] did not fully participate in job searching and then
failed to participate at all.” Tr. 20-21.
Fourth, the ALJ noted that Sherman’s activities of daily living,
although limited, were not strong evidence of disability for two reasons.
First, he observed that Sherman’s “allegedly limited daily activities
cannot be objectively verified with any reasonable degree of certainty.”
Tr. 21. Second, he noted that, even if Sherman’s activities are as he
alleges, “it is difficult to attribute that degree of limitation to
[Sherman’s] medical condition, as opposed to other reasons, in view of
the medical evidence and other factors discussed[.]” Id. Specifically,
the ALJ mentioned Sherman’s consistent use of marijuana and its
impact on activities of daily living, social functioning, concentration,
and, as one examining source noted, Sherman’s desire to do what he

-25-

wants, including “sitting around and getting high.” Id.
Fifth, the ALJ mentioned that Sherman’s credibility was further
called into question for an additional reason. The ALJ noted that the
records reflected that surgery was recommended as an option for
Sherman’s back condition as early as 2001 and 2002. But nothing
further came from that recommendation at the time and surgery was
not again recommended until a surgical consultation was made several
years later in May 2010. Tr. 21.
Sixth, the ALJ, acknowledging “significant findings regarding
[Sherman’s] back and bilateral hands,” noted that
one might expect to see some indication in the treatment records
of restrictions placed on [Sherman] by a treating doctor. Yet a
review of the record in this case reveals no restrictions
recommended by any treating doctor, but rather, there are
recommendations for exercise and weight loss, and [Sherman]
testified that his stated limitations are self-imposed.
Id.
All of the foregoing observations, which the Court finds to be
supported by the evidence of record, indicate that the ALJ properly
applied ordinary credibility evaluation techniques in assessing
Sherman’s credibility. Smolen v. Chater, 80 F.3d 1273, 1283-84 (9th Cir.
-26-

1996) (citing Dodrill v. Shalala, 12 F.3d 915, 918 (9th Cir. 1993)). As
noted, the Court cannot substitute its own interpretation of the
evidence for the ALJ’s interpretation. “Where the evidence is
susceptible to more than one rational interpretation, one of which
supports the ALJ’s decision, the ALJ’s conclusion must be upheld.”
Thomas, 278 F.3d at 954 (citation omitted). The ALJ did not err.
C.

ALJ’s Consideration of Vocational Expert’s Opinion

As noted above, Sherman argues that the ALJ erred in finding
that Sherman could perform two jobs – truck driver and chauffeur.
Sherman argues that these jobs are semi-skilled and the ALJ failed to
explain what skills Sherman has that would transfer to semi-skilled
employment. DKT 13 at 33.
Having considered this argument, the Court concludes that, even
if this ALJ finding constitutes error, it is harmless. Carmickle v.
Commissioner, 533 F.3d 1155, 1162-1163 (9th Cir. 2011) (relevant
inquiry is not whether ALJ would have made different decision absent
any error but whether ALJ’s decision remains legally valid despite
error). Here, the ALJ found that Sherman, considering his age,

-27-

education, experience, and RFC, is capable of performing unskilled
work. The ALJ then listed unskilled jobs that exist in significant
numbers in the national economy. Tr. 22. Thus, if the ALJ did err
respecting the semi-skilled work determination, such error was
harmless.
VII. CONCLUSION
Based on the foregoing,
IT IS ORDERED that Sherman’s summary judgment motion
(DKT 12) is DENIED, the Commissioner’s summary judgment motion
(DKT 15) is GRANTED, and the Commissioner’s decision is affirmed.
The Clerk of Court shall enter Judgment accordingly.
DATED this 10th day of December, 2012.
/s/ Carolyn S. Ostby
United States Magistrate Judge

-28-