Wagoner v. Colvin

Filing 31

ORDER: re 18 Social Security Opening Brief. 1. Mr. Wagoner's Motion for Summary Judgment (Doc. 10) is DENIED. 2. The Clerk of Court is directed to enter judgment in favor of Defendant CAROLYN W. COLVIN, Acting Commissioner of Social Security. Signed by Magistrate Judge John Johnston on 1/31/2017. (ACC)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MONTANA
GREAT FALLS DIVISION
MARK A. WAGONER,

CV 15-112-GF-JTJ

Plaintiff,

ORDER GRANTING SUMMARY
JUDGMENT IN FAVOR OF
DEFENDANT

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

I. SYNOPSIS
Mark A. Wagoner (Mr. Wagoner) seeks Supplemental Security Income
(SSI) benefits under Title XVI of the Social Security Act. The Commissioner of
the Social Security Administration (Commissioner) determined Mr. Wagoner has
the residual functional capacity to perform work that exists in significant numbers
in the national economy, despite severe impairments, and, therefore, is not disabled
and not entitled to SSI benefits. The Commissioner’s determination is supported
by substantial evidence and is not based on legal error. Therefore, Mr. Wagoner’s

1

Motion for Summary Judgment will be denied, and judgment will be entered in
favor of the Commissioner.

II. JURISDICTION
The Court has jurisdiction over this action under 42 U.S.C. § 405(g). The
parties consented to the undersigned conducting all proceedings in this matter,
including the entry of judgment. (Doc. 7) The Great Falls Division of the District
of Montana is the proper venue because Mr. Wagoner resides in Valley County,
Montana. (Doc. 2 at 2); 42 U.S.C. 405(g); Local Rule 1.2(c)(2).
III. STATUS
On June 16, 2014, an administrative law judge (ALJ) decided that Mr.
Wagoner was not eligible for disability benefits under Titles XVI of the Social
Security Act. (Doc. 11 at 13-37) On July 14, 2014, Mr. Wagoner timely requested
that the Social Security Administration review the ALJ’s decision. (Id. at 9) The
Appeals Council for the Social Security Administration denied Mr. Wagoner’s
request for review on October 30, 2015, making the ALJ’s decision the
Commissioner’s final decision. (Id. at 1-4)
Mr. Wagoner timely filed a complaint on December 30, 2015, seeking
judicial review of the Commissioner’s decision. (Doc. 2) Mr. Wagoner filed an
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opening brief on June 30, 2016, requesting that the Court reverse the
Commissioner’s decision and order the payment of benefits to him. (Doc. 18) The
Commissioner filed a response brief on July 27, 2016, and Mr. Wagoner filed a
reply brief on October 24, 2016. (Docs. 20 and 29) The motion is ripe for
decision.
IV.
A.

STANDARDS

Court’s role

The 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. Bayliss v. Barnhart, 427 F.3d 1211, 1214 n.1
(9th Cir. 2005). 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); Widmark v. Barnhart, 454 F.3d 1063, 1070 (9th Cir.
2006). Substantial evidence has also been described as “more than a mere
scintilla” but “less than a preponderance.” Desrosiers v. Sec. of Health and Hum.
Services, 846 F.2d 573, 576 (9th Cir. 1988).
"The ALJ is responsible for determining credibility, resolving conflicts in
medical testimony, and resolving ambiguities." Edlund v. Massanari, 253 F.3d
1152, 1156 (9th Cir. 2001). This Court must uphold the Commissioner's findings
3

"if supported by inferences reasonably drawn from the record." Batson v.
Commissioner of Social Security Administration, 359 F.3d 1190, 1193 (9th Cir.
2004). "[I]f evidence exists to support more than one rational interpretation," the
Court "must defer to the Commissioner's decision." Batson, 359 F.3d at 1193
(citing Morgan v. Commissioner, 169 F.3d 595, 599 (9th Cir. 1999)). This Court
"may not substitute its judgment for that of the Commissioner." Widmark, 454 F.3d
at 1070 (quoting Edlund, 253 F.3d at 1156).Where 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. Barhart, 278 F.3d 947, 954 (9th Cir.
2002).
The district court must consider the record as a whole, weighing both the
evidence that supports and detracts from the Commissioner’s conclusion. Green v.
Sheckler, 803 F.2d 528, 530 (9th Cir. 1986). The Court may reject the findings not
supported by the record, but it may not substitute its findings for those of the
Commissioner. Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999).
B.

Disability criteria

A claimant is disabled for purposes of the Social Security Act if the claimant
demonstrates by a preponderance of the evidence that (1) the claimant has a
“medically determinable physical or mental impairment which can be expected to
4

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 also
cannot “engage in any other kind of substantial gainful work which exists in the
national economy.” Schneider v. Comm’r of Soc. Sec. Admin., 223 F.3d 968, 974
(9th Cir. 2000) (citing 42 U.S.C. §1382(a)(3)(A)-(B)).
The Social Security Administration regulations provide a five-step
sequential evaluation process for determining whether a claimant is disabled.
Bustamante v. Massanari, 262 F.3d 949, 953 (9th Cir. 2001); 20 C.F.R. §§
404.1520, 416.920. The claimant bears the burden of proof for steps one through
four, and the Commissioner bears the burden of proof for step five. Id. at 954.
The five steps of the inquiry are:
1.

Is the claimant presently working in a substantially gainful
activity? If so, the claimant is not disabled within the meaning
of the Social Security Act. If not, proceed to step two. See 20
C.F.R. §§ 404.1520(b), 416.920(b).

2.

Is the claimant’s impairment severe? If so, proceed to step
three. If not, the claimant is not disabled. See 20 C.F.R. §§
404.1520(c), 416.920(c).

3.

Does the impairment “meet or equal” one of a list of specific
impairments described in 20 C.F.R. Part 220, Appendix 1? If
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so, the claimant is disabled. If not, proceed to step four. See 20
C.F.R. §§ 404.1520(d), 416.920(d).
4.

Is the claimant able to do any work that he or she has done in the past?
If so, the claimant is not disabled. If not, proceed to step five. See 20
C.F.R. §§ 404.1520(e), 416.920(e).

5.

Is the claimant able to do any other work? If so, the claimant is not
disabled. If not, the claimant is disabled. See 20 C.F.R. §§
404.1520(f), 416.920(f).

Id.
V. BACKGROUND
A.

ALJ’s determination

At step one, the ALJ determined that Mr. Wagoner has not engaged in
substantial gainful activity since December 10, 2012, the application date. (Doc.
11 at 15) At step two, the ALJ found that Mr. Wagoner has the following severe
impairments: degenerative disc disease of the lumbar spine with radiculopathy,
status-post two microdiscectomy procedures, bipolar disorder, and personality
disorder. (Id. at 15)
At step three, the ALJ found that Mr. Wagoner did not have an impairment,
or combination of impairments, that met or was medically equal to one of the listed
impairments. (Id. at 18)
Before considering step four, the ALJ determined that Mr. Wagoner had the
following residual functional capacity: he can perform the light work as defined in
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20 C.F.R. §§ 416.967(b) with the following limitations: he can walk for 15-30
minutes at one time; he can stand for up to two hours at one time; he can be on his
feet somewhere between four to six hours total in an eight hour day; he can sit for
30 minutes to one hour at a time, and for at least six hours total in an eight hour
day; he can lift up to 35 pounds on an occasional basis and 10 pounds or less on a
frequent basis; he should avoid concentrated exposure to extreme cold and
vibration; he cannot climb ladders or scaffolding; he can perform other postural
activities occasionally; he should not have a job requiring dealing with the public,
and any involvement with the public should only be accidental, brief, and
superficial; he can have minimal close interaction with six or fewer coworkers; he
must work in an environment without close supervision; he is incapable of high,
constant focus throughout an eight hour day. (Id. at 20)
At step four, the ALJ determined that Mr. Wagoner has no past relevant
work. (Id. at 36)
At step five, the ALJ determined that, considering Mr. Wagoner’s age,
education, work experience, and residual functional capacity, there are jobs that
exist in significant numbers in the national economy that Mr. Wagoner could
perform and, therefore, he has not been under a disability since December 20,
2012, the date he filed his application. (Id. at 36-37.)
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B.

Mr. Wagoner’s position

Mr. Wagoner argues the Court should reverse the Commissioner’s decision
and order the Commissioner to pay him SSI benefits because:
1.

The ALJ erred in not finding Mr. Wagoner disabled based upon
Medical-Vocational Guidelines Rule 201.09.

2.

The ALJ erred by not giving proper weight to his treating physician’s
opinion that his impairments preclude him from working.

3.

The ALJ erred by not giving proper weight to his treating therapist’s
opinion that his mental impairments interfere with memory,
concentration and moods required for work activity.

4.

The ALJ erred by making an adverse credibility finding regarding his
pain and symptom testimony because the ALJ failed to provide clear
and convincing reasons supported by substantial evidence for doing
so.

5.

The ALJ erred by using his activities of daily living to find his
subjective complaints not credible because the record shows that his
daily activities are very limited and far less than the activity required
for sustained work activity.

6.

The Appeals Council erred by failing to remand the case based upon
new and material evidence.

7.

The ALJ erred by adopting testimony from the vocational expert that
conflicts with the Dictionary of Occupational Titles.

8.

The ALJ erred by failing to properly consider the lay testimony from
his friend.

9.

The ALJ erred in assessing his residual functional capacity because it
was not supported by the record.
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(Doc. 18 at 3-4)

VI. ANALYSIS
The Court determines after a review of the record that the Commissioner’s
decision is reasonably supported by substantial credible evidence and is free of
legal error.
A.

Medical-Vocational Guidelines Rule 201.09.

Mr. Wagoner argues that because his “exertional level falls between” light
work and sedentary work, that SSR 83-12 directs that the “lower rule” should be
applied and, by so doing, he is disabled under Rule 201.09. The Commissioner
argues that SSR 83-12 directs the ALJ to consult with a vocational specialist in
cases like Mr. Wagoner’s and, because the ALJ did in Mr. Wagoner’s case, the
ALJ committed no error. The Court agrees with the Commissioner.
SSR 83-12 provides the following “Adjudicative Guidance” :
In situations where the rules would direct different
conclusions, and the individual's exertional limitations
are somewhere "in the middle" in terms of the regulatory
criteria for exertional ranges of work, more difficult
judgments are involved as to the sufficiency of the
remaining occupational base to support a conclusion as to
disability. Accordingly, VS assistance is advisable for
these types of cases.
SSR 83-12.2.c.
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Mr. Wagoner’s exertional level, according to the ALJ’s RFC, is “in the
middle” of sedentary work and light work. SSR 83-12 guided the ALJ to consult
with a vocational specialist. The ALJ consulted a vocational specialist and by so
doing complied with SSR 83-12's guidance. Thus, the ALJ committed no error in
evaluating Mr. Wagoner’s claim under SSR 83-12.
B.

Dr. Zasso’s Opinions

Dr. Zazzo is a physician who provides treatment to Mr. Wagoner. On May
6, 2014, Dr. Zazzo completed a “PHYSICAL/MENTAL IMPAIRMENT
QUESTIONNAIRE” in which he expressed his opinion that Mr. Wagoner
“probably cannot work at any job” because of his impairments which include,
among other things, chronic daily orthopedic pain, mood swings, ability to sit less
than two hours total in an eight hour day, ability to stand/walk less than two hours
in an eight hour day, no ability to tolerate work stress, and the likelihood that he
would absent from work, on the average, more than four days per month due to his
impairments or treatment. (Doc. 11 at 653-656) Dr. Zasso also noted in this
questionnaire that Mr. Wagoner within the 12 month period had experienced one
or two episodes of decompensation of at least two weeks duration. (Id. at 655)
The ALJ accorded Dr. Zazzo’s opinions “limited weight.” Mr. Wagoner
argues that the ALJ committed legal error by failing to give proper weight to Dr.
10

Zazzos’ opinions and therefore Dr. Zasso’s opinions should be credited as true.
The Commissioner argues that the ALJ gave specific and legitimate reasons
supported by substantial evidence in the record for giving Dr. Zazzos’ opinions
little weight and therefore committed no error.
The opinions of treating doctors should be given more weight than the
opinions of doctors who do not treat the claimant. Reddick v. Chater, 157 F.3d 715,
725 (9th Cir. 1997) (citing Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1995)).
Where the treating doctor's opinion is not contradicted by another doctor, it may be
rejected only for “clear and convincing” reasons supported by substantial evidence
in the record. Id. (internal quotation marks omitted). Even if the treating doctor's
opinion is contradicted by another doctor, the ALJ may not reject this opinion
without providing “specific and legitimate reasons” supported by substantial
evidence in the record. Id. One such specific and legitimate reason is where the
treating physician’s opinion is not supported by the physician’s treatment notes.
Connett v.Barnhart, 340 F.3d 871, 874-75 (9th Cir. 2003). Another is where the
treating physician’s opinion is not supported by the record as a whole. Batson v.
Comm’r of the Soc. Sec. Admin., 359 F.3d 1190, 1195 (9th Cir. 2004).
The ALJ stated the following reasons for giving Dr. Zazzo’s opinions little
weight:
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[I]t is not consistent with the record as a whole. Dr. Zazzo’s opinion
is not supported by his own treatment notes, which show the
claimant’s bipolar disorder and chronic low back pain have generally
been stable. Dr. Zazzo noted the claimant is euthymic on medications,
that the claimant described his general health status as good, and his
functional cognition was in tact. Further there is no episode of
decompensation of extended duration in the record during the relevant
period.
(Doc. 11 at 31-32.)
On April 2, 2014, (one month and two days before Dr. Zazzo completed the
questionnaire) Dr. Zazzo examined Mr. Wagoner. (Id. at 645-646.) The treatment
notes of this examination provide the following: Mr. Wagoner describes his
general health status as good; Dr. Zasso describes Mr. Wagoner’s “Psychiatric”
system as “euthymic on meds”; Dr. Zasso describes Mr. Wagoner as having his
“Functional cognition in tact.” Dr. Zazzo’s April 2, 2014, treatment note provides
substantial evidence in support of the ALJ’s determination that opinions Dr. Zazzo
expressed in the May 4, 2014 questionnaire were not supported by his treatment
notes.
Furthermore, although Dr. Zazzo stated in the questionnaire that Mr.
Wagoner had suffered an episode of decompensation lasting at least two weeks
within the 12 month period, the medical record fails to reflect such an episode.
The absence of evidence in the medical record of an episode of decompensation
lasting two weeks in the 12 month period is substantial evidence in support of the
12

ALJ’s determination that opinions Dr. Zasso expressed in the questionnaire were
not consistent with the record as a whole.
The ALJ did not error in giving Dr. Zazzo’s opinions limited weight because
he gave specific and legitimate reasons supported by substantial evidence for doing
so.
C.

Other Sources

In order to reject the testimony of a medically acceptable treating source, the
ALJ must provide specific, legitimate reasons based on substantial evidence in the
record. Molina v. Astrue, 674 F.3d 1104, 1111 (9th Cir. 2012). Yet, only licensed
physicians and certain other qualified specialists are considered “[a]cceptable
medical sources.” Id. (citing 20 C.F.R. § 404.1513(a)). Therapists are defined as
“other sources,” § 404.1513(d), and are not entitled to the same deference. Id.
(citing § 404.1527; SSR 06–03p). Lay persons such as friends and family
members are also defined as “other sources.” 20 C.F.R. § 404.1513(d)(4). The
ALJ may discount testimony from these “other sources” if the ALJ “gives reasons
germane to each witness for doing so.” Molina, 674 F.3d 111 (citing Turner v.
Comm’r of Soc. Sec., 613 F.3d 1217, 1224 (9th Cir.2010) (internal quotation marks
omitted)).
1.

Amy Tipton, L.C.P.C
13

Amy Tipton is a licensed clinical professional counselor. (Doc. 11 at 90.)
She met with Mr. Wagoner once on April 10, 2014, and she spoke with him on the
phone a few times as well. (Id. 90 and 649-651) Ms. Tipton does not qualify as a
medically acceptable treating source, but rather is an “other source.”
Mr. Wagoner argues that the ALJ erred in giving Ms. Tipton’s testimony
limited weight because “the medical record is in accord with her testimony.” The
Commissioner argues that the ALJ did not error because he gave germane reasons
supported by substantial evidence in the record for giving Ms. Tipton’s testimony
little weight.
The ALJ initially determined that Ms. Tipton’s statements should be
accorded little weight because they were not consistent with the record as a whole.
(Doc. 11 at 32.) In support of this determination, the ALJ discussed that Ms.
Tipton’s treatment note of the only time she saw him states that Mr. Wagoner’s
symptoms included that his speech could be rapid, pressured, loud and he talked
excessively not allowing others to speak. (Doc. 11 at 32, 649-651.) Ms. Tipton’s
April 10, 2014, treatment note, however, states that Mr. Wagoner had a normal rate
and rhythm of speech during evaluation. (Id.) Furthermore, Dr. Zazzo’s treatment
notes between January 2014 and April 2014 also state that Mr. Wagoner’s speech
was generally clear and coherent. (Id. at 633, 636, 642 and 646.)
14

Next, the ALJ discussed Ms. Tipton’s note that states Mr. Wagnoner has
suicidal ideations once a year. (Id. at 650) Yet, the ALJ pointed out that Dr.
Zazzo’s treatment notes between January 2014 and April 2014 state that he was
non-suicidal. (Id. at 633, 636, 642 and 646.) Furthermore, the ALJ noted that Ms.
Tipton’s treatment note states that Mr. Wagoner’s was easily distracted and he was
not able to stay on one topic very long. (Id. at 32 and 649-651.) The ALJ found
this statement to be inconsistent with Dr. Volk’s observations that Mr. Wagoner
was able to focus for a relatively long period of time on tasks requiring intense
concentration and persistence, and he displayed attention and concentration
appropriate to the tasks and he worked diligently to completion. (Id. at 32, 565.)
Substantial evidence supports the first reason the ALJ gave for according
Mr. Tipton’s testimony little weight. Further, the fact that Ms. Tipton’s testimony
conflicts with medical evidence is a germane reason for discrediting her testimony.
Bayliss v. Barnhart, 427 F.3d 1211, 1218 (9th Cir. 2005) (citing Lewis v. Apfel,
236 F.3d 503, 511 (9th Cir. 2001)).
The ALJ’s other reason for according Ms. Tipton’s testimony is that she
only saw Mr. Wagoner on one occasion and spoke to him on the phone about three
times. (Id. at 32 and 90.) Thus, the ALJ determined that Ms. Tipton lacked a
longitudinal treatment history with Mr. Wagoner that would afford her testimony
15

more than limited weight.
The Court determines that this reason is germane to the weight to be given to
Ms. Tipton’s testimony. See Holohan v. Massanari, 246 F.3d 1195, 1202-1203,
n.2 (9th Cir. 2001) (discussing that a treating physician’s opinion may be entitled
to little if any weight if the treating physician has not seen the patient long enough
to “have obtained a longitudinal picture of the patient’s impairment). This
germane reason is also supported by substantial evidence in the record.
The ALJ’s reasons for giving Ms. Tipton’s opinions little weight are
germane and supported by substantial evidence in the record. The ALJ, therefore,
did not err in according Ms. Tipton’s opinions little weight.
2.

Brenda Helm

Ms. Helm is a friend of Mr. Wagoner. (Doc. 11 at 35, 273-281) Ms. Helm
completed a “FUNCTION REPORT ADULT - THIRD PARTY” that Mr.
Wagoner filed in support of his application for benefits. (Id. at 273-281) Ms.
Helm’s reports sets forth her observations concerning Mr. Wagoner’s difficulties
and limitations posed by his back and mental illness. (Id.) Ms. Helm is of the
opinion that Mr. Wagoner will never be able to withstand the pressures of an
employer-employee relationship, nor will be withstand the daily rigors that would
be required. (Id.) The ALJ gave Ms. Helm’s statements very little weight. (Id. at
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35)
Mr. Wagoner argues that the ALJ erred in giving Ms. Helm’s statements
very little weight because her statements were consistent with the opinions of the
medical providers. The Commissioner argues that the ALJ gave a germane reason
for giving Ms. Helm’s statements very little weight and therefore did not error in
discrediting her statements.
Here, the ALJ discussed the reasons for giving Ms. Helm’s statements very
little weight as follows:
The most critical factor in weighing such statements is whether they
are consistent with the other evidence in the record. The statements
by the claimant’s friend, a non-medical source, are inconsistent with
the evidence of record. The medical evidence of record, showing that
his conditions are generally stable, and the claimant’s testimony
regarding his activities of daily living do not support the statements by
the claimant’s friend.
(Id.)
The Court determines that these reasons are germane to the weight to be
given to Ms. Helm’s statements. Bayliss v. Barnhart, 427 F.3d 1211, 1218 (9th
Cir. 2005) (holding that an ALJ may reject lay witness that are inconsistent with a
claimant’s activities); Lewis v. Apfel, 236 F.3d 503, 511 (9th Cir. 2001) (holding
that an ALJ may reject lay testimony that conflicts with the medical evidence).
The Court further determines that the ALJ’s reasons are supported by substantial
17

evidence. Therefore, the ALJ did not error in giving Ms. Helm’s statements very
little weight.
D.

Mr. Wagoner’s Credibility

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. Molina
v. Astrue, 674 F.3d 1104, 1112-1113 (9th Cir. 2012) (citing Vasquez v. Astrue, 572
F.3d 586, 591 (9th Cir.2009)). 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.’ ” Id. (quoting
Lingenfelter v. Astrue, 504 F.3d 1028, 1036 (9th Cir.2007)). 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. Id. (quoting Lingenfelter,
504 F.3d at 1036) 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).” Id. (citing Fair v.
Bowen, 885 F.2d 597, 603 (9th Cir.1989)). In evaluating the claimant's testimony,
the ALJ may use “ ‘ordinary techniques of credibility evaluation.’ ” Id. (quoting
Turner v. Comm’r of Soc. Sec., 613 F.3d 1217, 1224 n. 3 (9th Cir. 2010)). If the
18

ALJ’s credibility finding is supported by substantial evidence in the record, the
court may not engage in second guessing. Thomas v. Barnhart, 278 F.3d 947, 959
(9th Cir. 2002) (citing Morgan v. Comm’r of Soc. Sec. Admin., 169 F.3d 595, 600
(9th Cir. 1999)).
Here, the ALJ determined that Mr. Wagoner’s statement concerning the
intensity, persistence and limiting effects of his alleged symptoms “are not credible
to the extent they are inconsistent with the above residual function capacity
assessment and the medical evidence of record.” (Doc. 11 at 29.) The ALJ gave
the following reasons for making this credibility determination: (1) Mr. Wagoner’s
inconsistent statements about marijuana use (Id. at 30, 65-67, 288-289); (2) Mr.
Wagoner’s inconsistent statements about his work history (Id. at 30, 52-53, 77,
563); (3) some of Mr. Wagoner’s statements are inconsistent with the medical
evidence of record. (Id. at 30, 84-85, 532-433, 582-583, 611-615.)
Initially, the Court determines that each of the reasons the ALJ gave for
discounting Mr. Wagoner’s testimony is specific, clear and convincing. Thomas v.
Barnhart, 278 F.3d 947, 959 (9th Cir. 2002) (affirming the ALJ’s relying on
claimant’s conflicting statements about his marijuana and alcohol use as a specific,
clear and convincing reason for discounting the claimant’s testimony); Para v.
Astrue, 481 F.3d 742, 750 (9th Cir. 2007) (holding that an ALJ may consider
19

inconsistencies either in the claimant’s testimony or between his testimony and his
conduct, including his work record, as a specific, clear and convincing reason for
discounting a claimant’s testimony); Johnson v. Shalala, 60 F.3d 1428, 1434 (9th
Cir. 1995) (affirming the ALJ relying on conflict between the claimant’s testimony
of subjective complaint and medical evidence in the record as a specific, clear and
convincing reason for discounting the claimant’s testimony).
The Court also determines that there is substantial evidence supporting each
of these reasons. Although Mr. Wagoner has a different view of the evidence, it is
the ALJ’s function to determine issues of credibility. Morgan v. Comm’r of the
Soc. Sec. Admin., 169 F.3d 595, 599 (9th Cir. 1999). Furthermore, on review, the
Court does not retry the case or alter the ALJ’s credibility determinations and
factual findings where the evidence is susceptible to more than one rational
interpretation. Moncada v. Chater, 60 F.3d 521, 524-525 (9th Cir. 1995).
Because the ALJ gave specific, clear and convincing reasons for discounting
Mr. Wagoner’s credibility and these reasons were supported by substantial
evidence in the record, the ALJ committed no error in evaluating Mr. Wagoner’s
credibility.
E.

Daily Activities

In evaluating the claimant’s credibility, the ALJ may also consider “
20

‘whether the claimant engages in daily activities inconsistent with the alleged
symptoms.’ ” Molina v. Astrue, 674 F.3d 1104, 1112-1113 (9th Cir. 2012)
(quoting Lingenfelter, 504 F.3d at 1040). While a claimant need not “ ‘vegetate in
a dark room’ ” in order to be eligible for benefits, Id. (quoting Cooper v. Bowen,
815 F.2d 557, 561 (9th Cir. 1987)), 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. Id. (citing Morgan v. Comm’s of Soc. Sec.
Admin., 169 F.3d 595, 600 (9th Cir. 1999)). Even where those activities suggest
some difficulty functioning, they may be grounds for discrediting the claimant's
testimony to the extent that they contradict claims of a totally debilitating
impairment. Id. (citing Turner, 613 F.3d at 1225).
The ALJ determined that Mr. Wagoner’s activities of daily living were an
additional basis to discount his testimony because he determined that they were
“inconsistent with a finding of disability.” (Doc. 11 at 31.) In support of this
determination, the ALJ relied on Mr. Wagoner’s testimony that he cares for his
four-year-old granddaughter about eight to ten hours per day, gets his kids off to
school, cleans the house, goes grocery shopping, makes dinner with his daughter,
helps with the kids schoolwork, and fixes things around the house. (Doc. 11 at 31,
69-72, 75-76.)
21

Mr. Wagoner argues that the ALJ erred in relying on Mr. Wagoner’s daily
activities to discredit his testimony because they are “far less than those required to
work full time.” (Doc. 18 at 21-22.) The Commissioner argues that the ALJ did
not error because Mr. Wagoner’s activities of daily living are inconsistent with his
testimony of totally debilitating impairment.
In assessing a claimant’s credibility, the ALJ may consider whether the
claimant engages in activities inconsistent with his alleged symptoms. Rollins v.
Massanari, 261 F.3d 853, 857 (9th Cir. 2001) (affirming the ALJ relying on
claimant’s activities of daily living as a specific, clear and convincing reason for
discounting the claimant’s testimony where the claimant claimed to have totally
disabling impairments was undermined by her own testimony about her daily
activities, such as attending to the needs of her two young children, cooking,
housekeeping, laundry, shopping, attending therapy and various other meetings
every week, and so forth).
The ALJ's interpretation of Mr. Wagoner’s testimony may not be the only
reasonable one. It is, however, still a reasonable interpretation and is supported by
substantial evidence; thus, it is not the Court’s role to second-guess it. Id. (citing
Fair v. Bowen, 885 F.2d 597, 604 (9th Cir.1989)). Consequently, the Court rejects
Mr. Wagoner’s argument that the ALJ improperly discounted his testimony based
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upon his activities of daily living.
F.

New and Material Evidence

The ALJ held a hearing on Mr. Wagoner’s claim on May 7, 2014. (Doc. 11
at 13.) The ALJ’s decision denying Mr. Wagoner’s claim is dated June 16, 2014.
(Id. at 37.) Mr. Wagoner submitted three MRI reports to the Appeals Council after
the ALJ’s decision. (Id. at 658.) The dates of the MRI reports are May 20, 2014,
August 11, 2015, and May 14, 2015. (Id.) Mr. Wagoner also submitted a
Physical/Mental Impairment Questionnaire dated August 6, 2014, that Dr. Zazzo
completed. (Id. at 2.) Of these documents, the Appeals Council included only the
May 20, 2014, MRI report as part of the record. (Id. at 658-659.)
The Appeals Council advised Mr. Wagoner on October 30, 2015, that it
looked at the August 11, 2014 and May 18, 2015 MRI reports along with Dr.
Zazzo’s August 6, 2014 questionnaire, but because the ALJ’s decided his case
through June 16, 2014, that this new information related to a later time and it
therefore did not affect the ALJ’s decision. (Id. at 2.)
On June 30, 2016, Mr. Wagoner filed under seal the August 11, 2014, and
May 14, 2015, MRI reports and the Physical/Mental Impairment Questionnaire Dr.
Zazzo’s completed on August 6, 2014. (Docs. 19, 19-1 and 19-2.)
Mr. Wagoner also filed another application for disability benefits on
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December 30, 2015, (the same date he filed this action) in which he alleged an
onset date of July 17, 2014. (Doc. 30 at 2) On June 8, 2016, Mr. Wagoner received
notice of a Disability Determination Explanation in relation to this application.
(Doc. 18 at 23) On October 25, 2106, Mr. Wagner filed under seal the Disability
Determination Explanation he received. (Id.)
Mr. Wagoner’s argues that the Disability Determination Explanation, the
August 11, 2014, and May 14, 2015, MRI reports and the Physical/Mental
Impairment Questionnaire Dr. Zazzo’s completed on August 6, 2014, are new and
material evidence and that the that the Commissioner erred in not remanding his
claim to the ALJ to consider whether he was disabled in light of this new and
material evidence. (Doc. 18 at 22-25.) The Commissioner argues that the
Commissioner did not error because the evidence about which Mr. Wagoner
complains does not relate to the period on or before the ALJ’s decision and it
therefore is not material.
Under 42 U.S.C. § 405(g), the Court may, “at any time[,] order additional
evidence to be taken into consideration before the Commissioner of Social
Security.” To be material under section 405(g), the new evidence must bear
“directly and substantially on the matter in dispute.” Mayes v. Massanari, 276
F.3d 453, 462 (9th Cir. 2001) (citing Ward v. Schweiker, 686 F.2d 762, 764 (9th
24

Cir.1982)). The claimant must additionally demonstrate that there is a “reasonable
possibility” that the new evidence would have changed the outcome of the
administrative hearing. Id. (citing Booz v. Secretary of Health and Human Servs.,
734 F.2d 1378, 1380–81 (9th Cir. 1983)).
The August 11, 2014 and May 14, 2015 MRI reports and the
Physical/Mental Impairment Questionnaire Dr. Zazzo’s completed on August 6,
2014, all post-date the ALJ’s June 16, 2014 decision, which decided that he was
not disabled on or prior to that date. Thus, the Court determines that this evidence
does not relate to the period on or before the ALJ’s decision and, therefore, does
not bear “directly and substantially on the matter in disputed.” Mr. Wagoner also
has failed to demonstrate how there is a reasonable possibility this new evidence
would have changed the ALJ’s decision. Therefore, this evidence is not material
and the Court will deny Mr. Wagoner’s request for remand for the Commissioner
to consider this evidence.
In relation to the August 8, 2016, Disability Determination Explanation, it
states that the “established onset date” of Mr. Wagoner’s disability is “12/30/2015”
(Doc. 30 at 11), which is more than 18 months after the ALJ’s June 16, 2014
decision denying Mr. Wagoner’s December 12, 2012 application for benefits.

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In Bruton v. Massamari, 268 F.3d 824 (9th Cir. 2001), the court determined
that a second, favorable determination was not new and material evidence. The
claimant in Bruton filed an initial claim for benefits in 1993, which was denied in
1996. Id. at 826. While on appeal, the claimant filed a second application, which
resulted in the Commissioner awarding benefits in 1999. Id. The claimant
requested the district court remand the denial of his first application for
consideration of the Commissioner’s favorable determination on his second
application. Id. at 827. The district court denied this request, and the claimant
appealed. Id. The Bruton court affirmed the district court, determining that the
favorable decision on the claimant’s second application was not new and material
evidence in relation to the claimant’s first application because the two claims
involved a different age classification, different medical evidence, and a different
time period. Id. As such, the Bruton court reasoned, the Commissioner’s decision
to deny of the claimant’s first application and award benefits on his second
application was “not inconsistent.” Id.
Mr. Wagoner relies on Luna v. Astrue, 623 F.3d 1032 (9th Cir. 2010). In
Luna, while the claimant’s first, adverse determination from the Commissioner was
on appeal, the claimant filed a second application for benefits. Id. at 1034. The ALJ
rejected his first application on January 27, 2006. Id. at 1033. Nineteen months
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later, on August, 20, 2007, the Commissioner approved his second application,
finding the claimant had been disabled since January 28, 2006, the day after the
ALJ denied his first application. Id. at 1034. The Luna court held that the
Commissioner’s finding that the claimant was disabled on his second application
for benefits was new and material evidence warranting remand for consideration in
relation to the Commissioner’s denial of benefits on the claimant’s first application
for benefits. Id. at 1034-35. The Luna court reasoned, “the ‘reasonable possibility’
that the subsequent grant of benefits was based on new evidence not considered by
the ALJ as part of the first application indicates that further consideration of the
factual issues is appropriate to determine whether the outcome of the first
application should be different.” Id. at 1035. In reaching this decision, the Luna
court distinguished its decision from Bruton because the court could not “conclude
based on the record before [it] whether the decisions concerning Luna were
reconcilable or inconsistent.” Id.
Mr. Wagoner failed to establish that the approval of his December 30, 2015,
application with a disability onset date of December 30, 2015, bears “directly and
substantially on the matter in dispute.” The reason is the ALJ’s decision denying
Mr. Wagoner’s December 10, 2012, application was rendered on June 16, 2014,
more than 18 months before the December 30, 2015, onset date set forth in the
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Disability Determination Explanation. Mr. Wagoner also failed to demonstrate
how there is a reasonable possibility this new evidence would have changed the
ALJ’s decision given the fact that it involves a time frame (December 30, 2015 June 8, 2016) substantially different from that involved in the ALJ’s decision
(December 10, 2012 - June 16, 2014). Therefore, this evidence is not material and
the Court will deny Mr. Wagoner’s request for remand for the Commissioner to
consider this evidence.
G.

Vocational Expert Testimony

The vocational expert testified that in her opinion, considering Mr.
Wagoner’s age, education, work experience, and residual functional capacity, that
Mr. Wagoner would be able to perform the requirements of a laboratory sample
carrier, a small parts assembler, and a bindery machine feeder. (Doc. 11 at 36-37,
69-77.)
Mr. Wagoner argues that the ALJ erred in adopting this testimony from the
vocational expert because the opinion that he can perform these jobs conflicts with
the Dictionary of Occupational Titles descriptions for these jobs. Specifically, Mr.
Wagoner argues he cannot work as a lab sample carrier because he would have to
walk to perform this job and the ALJ’s residual functional capacity assessment
limits him to walking 15-30 minutes at a time. In relation to the two other
28

occupations, Mr. Wagoner argues that he “could not change positions at the
frequency required by the RFC.” Mr. Wagoner further argues that he could not
work as a small parts assembler because the ALJ’s RFC assessment precludes him
from working in “jobs requiring high, constant focus throughout the workday.”
The Commissioner argues that although Mr. Wagoner alleges a conflict
between the occupations the vocational expert identified in her testimony and the
DOT descriptions for these occupations he has failed to specifically show an actual
conflict. The Commissioner further argues that the vocational expert took Mr.
Wagoner’s limitations into considering in determining whether he would be able to
perform a given occupation. (Id. at 22-23)
Mr. Wagoner fails to show an actual conflict between the DOT for any of
the three occupations the vocations expert identified in her testimony and his
limitations. For that matter, Mr. Wagoner does not set forth any particular aspect
from any of the three relevant DOTs that conflicts with his limitation or the
vocational expert’s testimony.
By way of example, the DOT for a laboratory sample carrier provides the
following:
Collects samples of products or raw materials for laboratory analysis,
performing any combination of following tasks: Turns valves or dips
sample container to transfer liquid samples from pipeline, processing
equipment, tanks, or other vessels to test tubes, bottles, or buckets.
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Transfers dry samples, such as ore, grain, crystals, powder, or granular
material to containers, using shovel, hand scoop, sample stick, or hand
tool. Labels sample containers with identifying data, location of
sample, and time collected. Delivers samples to laboratory for
analysis. Cleans sample containers, using specified cleaning agents
and brushes or scrapers. Gathers samples at specified locations, stages
of processing, and time interval. May collect samples of radioactive
waste, following prescribed safety procedures, and be designated
Sampler, Radioactive Waste (chemical).
DOT 922.687-054.
This DOT provides that many tasks are performed in connection with this
occupation and it is not limited to “delivering” samples by walking nor are there
any set time frames provided in relation to the amount of walking required at a
time to perform this occupation. DOT 922.687-054. Because the DOT for the
laboratory sample carrier does not have specific walking requirements, there is no
conflict between the DOT and the vocational expert’s testimony that Mr.
Wagoner’s would be able to perform this job with the limitation of walking no
more than15-30 minutes at a time.
Mr. Wagoner has failed to establish a conflict between his limitations and
the DOTs for the three jobs the vocational expert testified he could perform.
Therefore, the ALJ did not commit error by adopting the vocational expert’s
testimony.
H.

Residual Functional Capacity and Hypothetical to Vocational
Expert
30

1.

RFC

The ALJ determines residual functional capacity based upon medical
records, physicians’ opinions, and the claimant’s description of her limitations. 20
C.F.R. §§ 404.1545(a), 416.945(a)(3). “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) .
Mr. Wagoner argues that the ALJ’s RFC assessment is erroneous because
(1) it is not consistent with Dr. Zazzo’s assessment of his limitation; (2) the ability
to be on his feet “somewhere between 4 to 6 hours total in an 8-hour day” creates
an RFC that is open to interpretation; (3) his anger outbursts “preclude him from
sustaining full time work at any level”; and (4) his “upper body limitations due to
the residuals from the burns to his body” were found to be “nonsevere.”
The Commissioner argues the ALJ did not err because (1) the ALJ properly
rejected Dr. Zazzo’s opinions; (2) the ALJ properly consulted a vocational expert
in relation to Mr. Wagoner’s ability to be on his feet; (3) the ALJ properly rejected
Dr. Mozer’s opinions about Mr. Wagoner’s angry outbursts; and (4) the ALJ
properly rejected Dr. Fernandez’s opinion about limitations due to upper body
limitations. The Commissioner also argues in relation to Drs. Fernandez and
Mozer that because Mr. Wagoner does not make any specific argument about how
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the ALJ erred in rejecting their opinions that he has thereby waived the issue.
The Court determines, as discussed above, that the ALJ properly rejected Dr.
Zazzos’s opinions and that the ALJ properly consulted a vocational expert in
relation to the “somewhere between” issue. The Court further determines that Mr.
Wagoner failed to make any specific argument about how the ALJ erred in
rejecting the opinions of Drs. Fernandez or Mozer, and that even if he had made
such an argument, it would have been rejected because the ALJ properly rejected
their opinions. The Court, therefore, determines that the ALJ’s assessment of Mr.
Wagoner’s residual functional capacity is support by substantial evidence and is
not based on legal error.
2.

Hypothetical to Vocational Expert

When a claimant’s ability to perform a full range of a particular category of
work is limited, the ALJ may use the services of a vocational expert (“VE”). 20
C.F.R. § 404.1566(3). In order for the testimony of a VE to be considered reliable,
the hypothetical posed must include “all of the claimant’s functional limitations,
both physical and mental” supported by the record. Thomas, 278 F.3d at 956
(citing Flores v. Shalala, 49 F.3d 562, 570–71 (9th Cir.1995)). It is, however,
proper for an ALJ to limit a hypothetical to only those restrictions that are
supported by substantial evidence in the record. Roberts v. Shalala, 66 F.3d 179,
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184 (9th Cir. 1995) (citing Magallenes v. Bowen, 881 F.2d 747, 756-57 (9th Cir.
1989)).
As discussed above, the ALJ did not error in evaluating the evidence
including Mr. Wagoner’s testimony, Dr. Zazzo’s opinions, the other source
evidence, and the vocational expert’s testimony. The ALJ’s hypothetical to the
vocational expert incorporated the limitations that the ALJ found to be supported
by substantial evidence in the record. Although the ALJ’s evaluation of the
evidence and Mr. Wagoner’s limitations does not comport with how Mr. Wagoner
would evaluate the evidence and his limitations, where 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. Such is the case
here, and therefore, the Court finds no error in the ALJ’s hypothetical to the
vocational expert.
VII. CONCLUSION
The ALJ’s determination is supported by substantial evidence and is not
based on legal error. Mr. Wagoner failed to meet his burden of proving that he is
disabled.
Therefore, the undersigned issues the following:
ORDER
33

1.

Mr. Wagoner’s Motion for Summary Judgment (Doc. 10) is
DENIED.

2.

The Clerk of Court is directed to enter judgment in favor of Defendant
CAROLYN W. COLVIN, Acting Commissioner of Social Security.

DATED this 31st day of January 2017.

34