Furry v. Commissioner Social Security Administration

Filing 23

OPINION AND ORDER. Signed on 12/17/2015 by Judge Malcolm F. Marsh. (pvh)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON

MARVIN LEE FURRY
Plaintiff,

v.
COMMISSIONER OF SOCIAL SECURITY
ADMINISTRATION
Defendant.
KATHRYN TASSINARI
Harder, Wells, Baron & Manning, P.C.
4 7 4 Willamette, Suite 200
Eugene, OR 97401
Attorney for Plaintiff
JANICE E. HEBERT
Assistant United States Attorney
1000 S.W. Third Ave., Suite 600
Portland, OR 97204

L. JAMALA EDWARDS
Social Security Administration
Office of the General Counsel
701 Fifth Ave., Suite 2900, MIS 221A
Seattle, WA 98104-707 5
Attorneys for Defendant

1 - OPINION AND ORDER

Case No. 1:14-cv-01862-MA
OPINION AND ORDER

MARSH, Judge
PlaintiffMarvinL. Funy seeks judicial review of the final decision of the Commissioner of
Social Security denying his application for Supplemental Security Income (SSI) disability benefits
under Title XVI of the Social Security Act, 42 U.S.C. §§ 1381-1383f. This Court has jurisdiction
pursuant to 42 U.S.C. § 1383(c)(3). For the reasons that follow, I affirm the final decision of the
Commissioner.

FACTUAL AND PROCEDURAL BACKGROUND
Plaintiff protectively filed an application for SSI on May 31, 2012, alleging disability
beginning March 1, 2012, due to depression, anger issues, and chronic pain in the lower extremities.
Plaintiffs claim was denied initially and upon reconsideration. Plaintiff filed a request for a hearing
before an administrative law judge ("ALJ"). An ALJ held a hearing on March 18, 2014, at which
plaintiff appeared via video with his attorney and testified. A vocational expe1i, Lynn A. Jones, also
attended the hearing and testified. On June 18, 2014, the ALJ issued an unfavorable decision. The
Appeals Council denied plaintiffs request for review, and therefore, the ALJ' s decision became the
final decision of the Commissioner for purposes of review.
Born in 1963, plaintiff was 50 years old on the date of the ALJ's unfavorable decision.
Plaintiff completed the tenth grade. Plaintiff has past relevant work as a diesel mechanic helper,
construction laborer, and janitor.

THE ALJ'S DISABILITY ANALYSIS
The Commissioner has established a five-step sequential process for determining whether
a person is disabled. Bowen v. Yuckert, 482 U.S. 137, 140 (1987); 20 C.F.R. § 416.920. Each step
is potentially dispositive. The claimant bears the burden of proof at steps one through four. Valentine

2 - OPINION AND ORDER

v. Commissioner Soc. Sec. Admin., 574 F.3d 685, 689 (9th Cir. 2009); Tackett v. Apfel, 180 F.3d
1094, 1098 (9th Cir. 1999). At step five, the burden shifts to the Commissioner to show that the
claimant can do other work which exists in the national economy. Hill v. Astrue, 698 F.3d 1153,
1161 (9th Cir. 2012).
At step one, the ALJ found that plaintiff has not engaged in substantial gainful activity since
May 31, 2012. At step two, the ALJ found that plaintiff had the following severe impahments: major
depressive disorder versus unspecified depressive disorder; unspecified anxiety disorder; unspecified
personality disorder; amphetamine dependence in early remission, and cannabis use disorder-severe.
At step three, the ALJ found that plaintiffs impairment or combination of impairments, did not meet
or medically equal a listed impahment.
The ALJ assessed plaintiff with a residual functional capacity ("RFC") for a full range of
work at all exertion levels but with the following limitations:
[Plaintiff! is able to understand, remember, and cany out only simple instrnctions and
tasks, which can be learned in 30 days or less. He is able to tolerate only "isolated
work," defined as follows: occasional incidental public contact and no work directly
with public, occasional incidental coworker contact and no group tasks, and
occasional supervisor contact, generally limited to a visit from the supervisor one to
two times per shift to give work assignments and answer questions. Otherwise, the
claimant generally will be left alone to complete tasks.
Transcript of Record ("Tr."), ECF No. 11 at 20.
At step four, the ALJ found that plaintiff is able to perform his past relevant work as a
janitor/custodian. Accordingly, the ALJ concluded that plaintiffhas not been under a disability under
the Social Security Act from May 31, 2012, tln·ough the date of the decision.

3 - OPINION AND ORDER

ISSUES ON REVIEW
On appeal to this court, plaintiff contends the following errors were committed: (1) the ALJ
ened in evaluating plaintiffs credibility; (2) the ALJ failed to properly consider the opinions of
examining psychologists; (3) the ALJ erred at Step Two; and (4) because of these errors, the
hypothetical to the vocational expert was invalid.

STANDARD OF REVIEW
The district court must affirm the Commissioner's decision if the Commissioner applied the
proper legal standards and the findings are suppo1ted by substantial evidence in the record. 42 U.S. C.
§ 405(g); Beny v. Astrue, 622 F.3d 1228, 1231 (9th Cir. 2010). "Substantial evidence is more than
a mere scintilla but less than a preponderance; it is such relevant evidence as a reasonable mind
might accept as adequate to support a conclusion." Hill, 698 F.3d at 1159 (internal quotations
omitted); Valentine, 574 F.3d at 690. The comtmust weigh all the evidence, whether it supports or
detracts from the Commissioner's decision. A'1artinez v. Heckler, 807 F.2d 771, 772 (9th Cir. 1986).
The Commissioner's decision must be upheld, even if the evidence is susceptible to more than one
rational interpretation. Batson v. Commissioner Soc. Sec. Admin., 359 F.3d 1190, 1193 (9th Cir.
2004). Ifthe evidence supports the Commissioner's conclusion, the Commissioner must be affi1med;
"the comt may not substitute its judgment for that of the Commissioner." Edlund v. 1'1lassanari, 253
F.3d 1152, 1156 (9th Cir. 2001).

I.

The ALJ Did Not Err in Evaluating Plaintiffs Credibility
A.

Standards

To determine whether a claimant's testimony regarding subjective pain or symptoms is
credible, an ALJ must perfo1m two stages of analysis. 20 C.F .R. § 416.929. The first stage is a
4 - OPINION AND ORDER

threshold test in which the claimant must produce objective medical evidence of an underlying
impairment that could reasonably be expected to produce the symptoms alleged. 1V!olina v. Astrue,
674 F.3d 1104, 1112 (9th Cir. 2012); Tommasetti v. Astrue, 533 F.3d 1035, 1039 (9th Cir. 2008).
At the second stage of the credibility analysis, absent affirmative evidence of malingering, the ALJ
must provide clear and convincing reasons for discrediting the claimant's testimony regarding the
severity of the symptoms. Carmickle v. Commissioner Soc. Sec. Admin., 533 F.3d 1155, 1161 (9th
Cir. 2008); Lingenfelter v. Astrue, 504 F.3d 1028, 1036 (9th Cir. 2007).
The ALJ must make findings that are sufficiently specific to permit the reviewing court to
conclude that the ALJ did not arbitrarily discredit the claimant's testimony. Ghanim, 763 F.3d at
1163; Tommasetti, 533 F.3d at 1039. Factors the ALJ may consider when making such credibility
dete1minations include the objective medical evidence, the claimant's treatment history, the
claimant's daily activities, inconsistencies in testimony, effectiveness or adverse side effects of any
pain medication, and relevant character evidence. Ghanim, 763 F.3d at 1163; Tommasetti, 533 F.3d
at 1039.

B.

Analysis

At the March 18, 2014 hearing, plaintiff testified that he stopped working in 2008 due to a
lack of jobs, but alleges an onset date of disability of March 1, 2012. Tr. 40, 42. Plaintiff testified
to having difficulty concentrating on tasks and socializing with supervisors. Tr. 43. Plaintiff also
testified to experiencing pain in his right knee and left hip. Id. Specifically, plaintiff testified that he
is unable to extend his right knee fully without significant pain. Id. Plaintiff fu1iher testified to briefly
attending mental health counseling and taking psychiatric medications. Tr. 44-45. However, plaintiff
testified that he stopped taking the medications because of side effects such as insomnia and shaking.

5 - OPINION AND ORDER

Tr. 45. Plaintiff also testified that he can walk one or two blocks before needing to sit down and rest
for a half hour due to pain in his hip and knee. Id Plaintiff testified that he is able to lift ten pounds
but experiences no pain or limitation in his upper extremities. Tr. 45. Plaintiff also testified that he
spends the majority of the day watching television and occasionally does his laundry and vacuuming.
Tr. 46.
In a June 30, 2012 Adult Function Report, plaintiff noted that he walks outside on a daily
basis. Tr. 221. Plaintiff also noted riding his bicycle to travel places. Id Plaintiff indicated that he
is able to pay bills and manage a savings account and a checkbook. Id Plaintiff testified that he
"cannot stand stupid people," and has difficulty socializing with other people. Tr. 223. Plaintiff
fmiher noted that he can walk three blocks without stopping to rest and can concentrate for 15-20
minutes at a time. Id Plaintiff testified to having difficulty getting along with authority figures. Tr.
224.
In the decision, the ALJ concluded that plaintiffhas medically determinable impahments that
cause symptoms resulting in some limitations on work activity, but his subjective complaints and
alleged limitations are not fully credible. Tr. 25. A careful review of the record shows that the ALJ
provided four clear and convincing reasons to discredit plaintiffs testimony, citing specific record
evidence, which undermine his subjective complaints.

1. inconsistent with the medical record
Contrary to plaintiffs suggestion, the ALJ specifically found plaintiffs objective medical
record is inconsistent with his subjective allegations of debilitating symptoms. Tr. 18. When the
claimant's own medical record undercuts his assertions, the ALJ may rely on that contradiction to
discredit the claimant. Parra v. Astrue, 481 F.3d 742, 750-51 (9th Cir. 2007); 11!forgan v.

6 - OPINION AND ORDER

Commissioner Soc. Sec. Admin., 169 F.3d 595, 600 (9th Cir. 1999); Carmickle, 533 F.3d at 1161.
The ALJ' s findings are supported by substantial evidence in the record.
As the ALJ noted, the medical findings in the record do not cmrnborate plaintiffs allegations
of severe pain. For example, the August 2012 x-rays of plaintiffs left hip and right knee revealed
no abnormal findings. Tr. 379, 380. An August 2013 left hip x-ray again revealed unremarkable
findings. Tr. 453. Treating orthopedic surgeon William T. Turner, M.D., noted that plaintiffs
November 2012 right knee MRI was within normal limits. Tr. 399, 412. Similarly, the objective
findings are minimal. A May 2012 examination revealed mild tenderness in the left hip, full range
of motion, and an absence of swelling or deformity. The examination indicated essentially
unremarkable findings of the right knee. Tr. 359. A September 2012 examination noted mild
tenderness and limited range of motion secondary to pain. Tr. 387. Indeed, Dr. Turner diagnosed
chronic patellar malalignment with no signs ofinternal derangement or degeneration of the joint. Tr.
412.
Furthennore, the ALJ appropriately found that although plaintiff alleges severe deficits in
attention and concentration, his mental evaluations are inconsistent with this complaint. For
example, a Februaty 2011 examination noted intact immediate and remote memory, normal
psychomotor activity and speech, and logical thought content. Tr. 302. In a May 2012 examination,
plaintiffs counselor noted nmmal speech, memmy, and cognition. Tr. 315. In fact, plaintiffs mental
status examinations generally indicate intact memory and good attention and concentration. See
generally, Tr. 337, 355, 371, 438, 463.
While the record reveals a voluntmy admission to inpatient treatment at the Lower Columbia
Mental Health Center (LCMHC) for a week in April 2012, plaintiff made a quick recovety. Tr. 333.
7 - OPINION AND ORDER

Plaintiff requested the admission because he reported having thoughts of killing his roommates. Tr.
334. While admitted, plaintiff repo1ied a significant decrease in homicidal ideations and an increase
in impulse control with anti-depressants. Tr. 332-33. Upon discharge, LCMHC indicated a reduction
in plaintiffs psychiatric symptoms, and plaintiffs treating nurse practitioner noted that she was not
concemed about plaintiff harming other individuals. Tr. 348, 351. Moreover, the record shows no
fmiher hospitalizations for mental health issues. To be sure, as discussed above, plaintiffs mental
status examinations following his admission have been unremarkable. Tr. 337, 355, 371.
Although plaintiff insists on a different interpretation of the evidence, I conclude that the ALJ
made logical inferences from the record to support her conclusions. Because the ALJ' s interpretation
is rational and is supported by substantial evidence in the record as a whole, it will not be disturbed.

See e.g., lvlolina, 674 F.3d at 111 l(ALJ's findings must be upheld if they are supported by
reasonable inferences drawn from the record). In sh01i, the ALJ reasonably concluded that the
objective medical evidence is inconsistent with the degree of plaintiffs subjective symptoms and
appropriately discounted his credibility on this basis.

2. minimal treatment and noncompliance
The ALJ cited to plaintiff's minimal medical treatment and failure to take prescribed
medication properly as an indication of a less than good faith effo1i to achieve medical improvement.
Specifically, the ALJ noted that plaintiff failed to comply with prescribed psychiatric medication and
follow up on counseling services. Tr. 25. An "unexplained, or inadequately explained, failure to seek
treatment" may be the basis for an adverse credibility finding. Fair v. Bowen, 885 F.2d 597, 603 (9th
Cir. 1989). The record suppo1is the ALJ's finding of noncompliance. Treatment providers have

8 - OPmION AND ORDER

documented plaintiffs noncompliance with psychiatric medications on several occasions. See
generally, Tr. 316, 353, 370, 419.
Plaintiff argues that he ceased taking his psychiatric medication due to significant side effects
such as shaking, insomnia, and "feeling like a zombie." Plaintiffs Br. (ECF 16) at 14. I disagree.
As the ALJ noted, the record does not appear to suppo1t plaintiffs allegations of intolerable
side effects from psychiatric medications. Cf Social Security Ruling 96-7p, 1996 WL 374186, *8
(July 2, 1996) (ALJ should consider intolerable side effects as an explanation for noncompliance
with prescribed medications). At the hearing, plaintiff testified to ceasing anti-depressants because
he experienced side effects such as shaking and insomnia. Tr. 45. However, the record reveals that
plaintiff repo1ied varying reasons to treatment providers for his noncompliance. For example, in a
Februaiy 2011 examination, plaintiff noted that he was not currently taking anti-depressants due to
their ineffectiveness. Tr. 298. In May 2012, plaintiff repo1ied to treating nurse practitioner Zoe
Carlson that he ceased taking psychiatric medications because they made him tired. Tr. 312. In July
2012 examination, plaintiff reported discontinuing prescribed psychiatric medication after two days
due to how they made him feel. Tr. 374. Based on plaintiffs vague and varied repmt of side effects,
it is reasonable for the ALJ to discredit plaintiffs testimony on the basis of his noncompliance.
Additionally~

although plaintiff testified that he felt counseling did not work, the record

shows he did not attend more than one counseling session. Tr. 44. In a December 2012 initial
evaluation, counselor Christopher Siedow advised plaintiff to attend treatment for mental health for
90 days to "express and process his frustrations." Tr. 415. However, there are no further counseling
notes from Mr. Siedow or any other treatment provider. Moreover, as the ALJ indicated, plaintiffs
lack of finances or medical insurance cannot entirely account for his minimal medical treatment. Tr.

9 - OPINION AND ORDER

25. Plaintiff has demonstrated the ability to seek assistance through free clinics for both his physical
and mental symptoms. See generally, Tr. 296, 307, 311-12, 414, 418, 452. Plaintiffs refusal to
pmticipate in counseling contradicts the severity of his alleged symptoms. Therefore, the ALJ's
reasoning on this point is supported by substantial evidence.

3. inconsistent statements
The ALJ cited to plaintiffs inconsistent statements at the hearing and in the medical record
regarding his allegations and drug use as a basis to discount his testimony. An ALJ may consider
prior inconsistent statements concerning symptoms and "other testimony by [plaintiff] that appears
less than candid in weighing plaintiff's credibility." Tommasetti, 533 F.3d at 1039. As the ALJ noted,
plaintiff alleged that he has difficulty walking due to pain in his lower extremities. Tr. 26, 45. The
ALJ then noted that the record shows that plaintiff walks most places. Tr. 26. For example, a March
2011 treatment note indicated that plaintiff walked a "couple of miles" to the medical provider's
office. Tr. 307. In Janumy 2013, plaintiffrepo1ted to a consultative examiner that he walks to the
library on a daily basis. Tr. 438.
Moreover, the ALJ found that plaintiff made inconsistent statements to treatment providers
regarding his past and current use of alcohol and drugs. As the ALJ noted, in a July 2012
examination, plaintiff denied past consumption of alcohol and use of illicit drugs. Tr. 370. In
contrast, in January 2013, plaintiff admitted to a history of substance abuse beginning at age 13 and
reported sobriety as of April 2012 to consultative examiner Jan G. Johnson, Ph.D. Tr. 433. In fact,
Dr. Johnson tentatively diagnosed plaintiff with polysubstance dependence. Tr. 435. Plaintiff also
reported ongoing consumption of alcohol and marijuana in May 2014 to consultative examiner

10- OPINION AND ORDER

Gregory A. Cole, Ph.D. Tr. 461. The record provides ample suppo1t for the ALJ's finding of
inconsistent statements regarding plaintiffs use of drugs and alcohol.
However, the ALJ inappropriately found plaintiffs allegation of homicidal ideation is
inconsistent with the fact that he lacks a documented history of violence against others. Tr. 26.It is
not inconsistent for plaintiff to experience thoughts ofhaiming other people but decide not to act on
those thoughts. The record does not support this as a true inconsistency within the record.
Nevertheless, substantial evidence supports the ALJ's finding of plaintiffs inconsistent statements
concerning his substance abuse and allegations of pain. Thus, I conclude that the ALJ appropriately
discredited plaintiff on the basis of inconsistent statements.
4. poor work history

Finally, the ALJ discredited plaintiffbecause his workhisto1y is inconsistent with his alleged
onset date of disability. Tr. 557. Evidence of a poor work history that suggests a claimant is not
motivated to work is a proper reason to discredit a claimant's testimony alleging that he is unable
to work. Thomas v. Barnhart, 278 F.3d 947, 959 (9th Cir. 2002).
In this case, the ALJ found that plaintiff ceased working four years prior to his alleged onset

date for reasons umelated to his medical impairments. Tr. 25. At the hearing, plaintiff testified that
he stopped working in 2008 due to a lack of jobs available. Tr. 42. Plaintiffs argues that when he
was applying for disability, he was homeless and perhaps did not have a calendar of his medical
appointments. Plaintiff asserts that it is not umeasonable to assume that he estimated his alleged
onset date of disability. Plaintiffs argument is meritless.
As the ALJ noted, the record reveals that plaintiffs March 1, 2012 alleged onset date of
disability does not c011'espond with a worsening of his impairments or sudden trauma. Tr. 25. While
11 - OPINION AND ORDER

plaintiff requested voluntmy admission to inpatient psychiatric treatment on April 30, 2012, it is
unclear as to why plaintiff alleged a date two months prior to his decline in mental functioning. Tr.
333. The ALJ's interpretation of the record is reasonable. See }Jolina, 674 F.3d at 111 l(ALJ's
findings must be upheld ifthey are supported by reasonable inferences drawn from the record). Thus,
the ALJ's discrediting plaintiff on the basis of a lack of motivation to work is supported by
substantial evidence.
Accordingly, I conclude that this basis combined with the ALJ's other three reasons amount
to clear and convincing support, backed by substantial evidence, for rejecting plaintiff's subjective
symptom statements.

II.

The ALJ Properly Evaluated the Opinions of Examining Psychologists
In general, the opinion of a treating physician is given more weight than the opinion of an

examining physician, and the opinion of an examining physician is afforded more weight than the
opinion of a nonexamining physician. Ghanim, 763 F,3d 1154, 1160 (9th Cir. 2014); Orn v. Astrue,
495 F.3d 625, 632 (9th Cir. 2007). "If a treating physician's opinion is well-supported by medically
acceptable clinical and laboratmy diagnostic techniques and is not inconsistent with the other
substantial evidence in [the] case record, [it will be given] controlling weight." Orn, 495 F.3d at 631
(internal quotations omitted); 20 C.F.R. § 416.927(c). To reject the uncontroverted opinion of a
treating or examining physician, the ALJ must present clear and convincing reasons. Bayliss v.

Barnhart, 427 F.3d 1211, 1216 (9th Cir. 2005).
If a treating or examining physician's opinion is contradicted by another physician's opinion,
it may be rejected by specific and legitimate reasons. Tonapetyan v. Halter, 242 F.3d 1144, 1148(9th

12 - OPINION AND ORDER

Cir. 2001 ). When evaluating conflicting opinions, an ALJ is not required to accept an opinion that
is not supported by clinical findings, or is brief or conclusory. Id. at 1149.

A.

Fred Kemp, Ph.D.

In a July 28, 2012 consultative examination, Fred Kemp, Ph.D. noted a depressed mood,
congruent affect, and normal speech with coherent and goal directed thought processes. Tr. 3 71. Dr.
Kemp indicated that plaintiff completed serial sevens quickly and accurately and recalled four past
presidents. Id. Dr. Kemp also noted intact recent memory as plaintiff could recall six digits forward
and five digits backward. Id. Dr. Kemp noted that plaintiff repo1ied difficulty getting along with
supervisors and completing tasks. Tr. 372. Dr. Kemp diagnosed plaintiff with Depression, not
otherwise specified (NOS). Tr. 372. Moreover, Dr. Kemp opined that plaintiff has some difficulty
with completing tasks and following instructions and has significant problems with anger, especially
towards authority figures. Tr. 372.
In a February 1, 2014 mental RFC assessment, Dr. Kemp opined that plaintiff is markedly
limited in his ability to interact with the general public, accept instructions and criticism from
supervisors, andmailltain socially appropriate behavior. Tr. 458. Dr. Kemp also opined that plaintiff
is moderately limited in his ability to cany out simple instructions and perform activities within a
schedule. Tr. 457. Dr. Kemp indicated that he based his assessment on plaintiffs work hist01y,
appearance, lack of education, content of thought, social functioning, poor prognosis, and functional
assessment. Tr. 459. Dr. Kemp provided this RFC assessment almost 18 months after his initial
examination of plaintiff and did not document any additional examinations or interactions with
plaintiff in the interim.

13 - OPINION AND ORDER

Because Dr. Kemp's opinion was contradicted, 1 the ALJ was required to provide specific and
legitimate reasons, backed by substantial evidence, to reject his opinion. Bayliss, 427 F.3d at 1216.
The ALJ discussed Dr. Kemp's opinions and accorded the opinions "little weight" for several
reasons as discussed below. Having carefully reviewed the record, I conclude that the ALJ's
reasoning is supp01ied by substantial evidence.
Contrary to plaintiffs argument, the ALJ properly rejected Dr. Kemp's opinions because he
relied heavily on plaintiffs discredited subjective complaints. It is well-settled that a physician's
opinion premised upon a claimant's properly discounted subjective symptoms and limitations may
be disregarded. Bray v. Commissioner of Soc. Sec. Admin., 554 F.3d 1219, 1228 (9th Cir. 2009);
Fair v. Bowen, 885 F.2d 597, 605 (9th Cir. 1989); lvforgan v. Commissioner ofSoc. Sec. Admin., 169

F.3d 595, 602 (9th Cir. 1999). As discussed above, the ALJ provided four clear and convincing
reasons supported by substantial evidence to reject plaintiffs testimony.
Dr. Kemp's assessment of moderate and marked limitations in the areas of concentration,
persistence, and pace appears to rely on plaintiffs self-report of symptoms. Tr. 457-459. In his
examination report, Dr. Kemp opined that plaintiffs prognosis is poor "because he experiences
severe pain which results in difficulties concentrating and problems with memo1y." Tr. 372. In fact,
Dr. Kemp documented an essentially benign mental status examination, including intact mem01y,
concentration, and an absence of psychomotor agitation. Tr. 371. As the ALJ noted, Dr. Kemp's

opinion regarding plaintiffs physical pain is far outside his expertise as a psychologist. See Holohan
1

In a March 25, 2013 Mental RFC Assessment, nonexamining physician John F.
Robinson, Ph.D., opined that plaintiff can understand and remember simple and most detailed
instructions, perform simple routine tasks and some detailed tasks, but is limited to infrequent
social interaction with coworkers, minimal intrusive supervision, and no contact with the general
public. Tr. 79-81.
14- OPINION AND ORDER

v. lvfassanari, 246 F.3d 1195, 1202 (9th Cir. 2001) (more weight is given to the opinion of a
specialist concerning matters in his specialty than to the opinion of nonspecialist). In this case, Dr.
Kemp did not review plaintiffs physical medical records nor diagnose a psychological component
of plaintiffs pain.
Moreover, as the ALJ noted, although Dr. Kemp indicated easily establishing a rapport with
plaintiff, he opined marked social limitations, which appear to rely on plaintiffs repo1t of anger
issues. Tr. 27, 370-72. Plaintiffrepo1ted to Dr. Kemp that he is easily itTitated by people and has a
short temper. Tr. 369. In relying on plaintiffs self-repo1t, Dr. Kemp noted that plaintiff "has
obviously had significant problems with anger, paiticularly with authority figures." Tr. 372. Based
on the information presented to Dr. Kemp, the ALJ could reasonably find that his opinion was based
in patt on plaintiffs subjective allegations. Accordingly, the ALJ's reasoning is suppo1ted by
substantial evidence.
Next, the ALJ discredited Dr. Kemp's opinions because they are inconsistent with the record
as a whole. A medical opinion's inconsistency with the objective medical record may constitute an
adequate reason to discredit that opinion. Tommasetti, 533 F.3d at 1041. As discussed above, aside
from plaintiffs voluntary one week hospital admission, the record documents umemarkable mental
status evaluations. See generally, Tr. 337, 355, 371, 438, 463. Thus, substantial evidence supp01ts
the ALJ's rationale. Moreover, the physical examinations are also relatively benign. For example,
a March 2011 treatment note reveals normal gait and coordination, intact range of motion in all
extremities and back, and an absence of tenderness in both knees. Tr. 319-20. A May 2012
examination notes essentially no1mal objective findings aside from mild tenderness in the right knee.
Tr. 359. Similarly, plaintiffs right knee x-rays and MRI are umemarkable. Tr. 380, 399. Thus, the
15 - OPINION AND ORDER

ALJ's rejection of Dr. Kemp's opinions on the basis of inconsistency with the record is supported
by substantial evidence.
Finally, the ALJ rejected Dr. Kemp's Februmy 2014 mental RFC because Dr. Kemp
completed the assessment 18 months after the initial examination with no further interaction with
plaintiff since the first consultation. Dr. Kemp did not clarify the nearly two year delay, which
questions the reliability of his opinion, in providing his assessment,. To the extent that plaintiff
argues that Dr. Kemp's mental RFC relies on his initial evaluation, this argument misses the mark.
As discussed above, Dr. Kemp's examination findings are inconsistent his opinions of moderate and
marked limitations. Tr. 371. Thus, it is reasonable for the ALJ to discredit Dr. Kemp's opinions on
this basis.
In summmy, I conclude that the ALJ did not err in evaluating Dr. Kemp's opinions, and has
provided three specific and legitimate reasons backed by substantial evidence in the record as a
whole.

B.

Jan Johnson, Ph.D.

In a Janumy 15, 2013 examination, Dr. Johnson noted an anxious affect, depressed mood but
cooperative demeanor. Tr. 438. Dr. Johnson also noted perfect immediate recall of three objects,
adequate fund of general knowledge, an ability to perform serial seven calculations with two errors,
and adequate abstract reasoning skills. Tr. 438. Dr. Johnson noted that plaintiff reported problems
with depression, including difficulty sleeping and homicidal thoughts. Tr. 438.
Dr. Johnson diagnosed depressive disorder (NOS), amphetamine dependence early full
sustained remission, and polysubstance dependence (rule out). Tr. 435. Dr. Johnson opined that
plaintiff has the cognitive ability to engage in n01mal labor-oriented workplace activity but his
16- OPINION AND ORDER

psychiatric condition will affect his motivation to maintain appropriate work place performance. Tr.
436. Dr. Johnson also opined that plaintiffs depression would affect his motivation to complete
tasks.Id. The ALJ provided two specific and legitimate reasons for according Dr. Johnson's opinion
"some weight." Having carefully reviewed the record, I conclude that the ALJ' s reasoning is
supported by substantial evidence.
Contrary to plaintiffs argument, the ALJ appropriately discounted Dr. Johnson's opinion
because it is inconsistent with his examination findings. Tonapetyan, 242 F.3d at 1149. Dr. Johnson
indicated that plaintiff appeared cooperative throughout the examination and had clear speech. Tr.
438. Dr. Johnson also observed intact memory, attention and concentration, and slightly limited
insight and judgment. Moreover, Dr. Johnson noted an absence of auditory or visual hallucinations
or delusions. Id. Although plaintiff provides a different interpretation of the examination findings,
I conclude that the ALJ made logical inferences from the record to support his conclusion. Because
the ALJ' s interpretation is rational and supported by substantial evidence in the record, it will not
be disturbed. lvfolina, 674 F.3d at 1111.
Moreover, the ALJ rejected Dr. Johnson's opinion on the basis that it relies on plaintiffs
discredited subjective allegations. See i'v!organ, 169 FJd at 602 (ALJ properly discounted medical
opinions based in large paii upon claimant's own account of mental health symptoms.). For example,
Dr. Johnson opined that plaintiff has a marked limitation in interacting with the public based solely
on plaintiffs complaints of depression and his self-repo1i of engaging in avoidant behaviors. Tr. 436.
Indeed, Dr. Johnson documented cooperative behavior and intact attention and concentration, yet
opined that plaintiffs lack of motivation, subsequent to his depressed mood, will affect his ability
to perform tasks. Tr.436. Based on the information presented to Dr. Johnson and the umemarkable

17 - OPINION AND ORDER

objective findings, the ALJ could reasonably reject Dr. Johnson's opinion because it primarily relied
on plaintiffs discredited allegations of severe depressive symptoms.

C.

Gregory Cole, Ph.D.

Finally, plaintiff challenges the ALJ's evaluation of the medical opinion of Gregory Cole,
Ph.D. In a May 2014 consultative examination, Dr. Cole noted that plaintiff appeared appropriately
dressed and presented with a good mood and congruent affect. Tr. 462. Dr. Cole noted that plaintiff
had good eye contact, some psychomotor agitation, and clear, slightly pressured speech. Id Dr. Cole
documented organized thought processing and content, fair insight and judgment, and an ability to
complete simple multiple-step tasks perfectly. Tr. 463. Dr. Cole noted that plaintiff scored in the low
average range for intelligence testing. Tr. 465. Dr. Cole diagnosed unspecified depressive disorder,
unspecified anxiety disorder, unspecified personality disorder, cannabis use disorder, and
provisionally bipolar and related disorder. Tr. 467. In a mental RFC assessment, Dr. Cole opined
that plaintiff has moderate limitations in understanding and canying out complex tasks. Tr. 469. Dr.
Cole also opined that plaintiff has moderate limitations in social functioning and a marked limitation
in adapting to changes in the workplace. Tr. 470.
In giving "some weight" to Dr. Cole's assessment, the ALJ adopted a majority of the
limitations in Dr. Cole's opinion. Tr. 27. Specifically, the ALJ found that plaintiff is able to
understand and carry out simple tasks and restricted plaintiff to no public contact and occasional
incidental coworker contact with no group tasks. Tr. 20. The ALJ also incorporated limited
supervision, only one to two interactions per shift, in the RFC. Id. The ALJ only rejected Dr. Cole's
opinion that plaintiff has a marked limitation in adapting to workplace changes. Having reviewed
the record, I conclude the ALJ appropriately discounted Dr. Cole's opinion.
18 - OPINION AND ORDER

Contrary to plaintiffs argument, the ALJ adequately found that Dr. Cole partially relied on
plaintiffs subjective complaints. lvforgan, 169 F.3d at 602. In opining that plaintiff has a marked
limitation in adapting to changes in a work setting, the ALJ reasonably found that Dr. Cole relied
on plaintiffs allegations of pain and irritability with others. See Tr. 467 ("claimed problems with
pain and tendency to become easily agitated/problems interacting with others" would affect
plaintiffs ability to maintain employment). To be sure, Dr. Cole observed an engaged and
cooperative attitude and reported relatively normal objective findings, including an ability to perform
serial seven calculations without e1TOr. Tr. 463. Accordingly, I find that the ALJ gave a specific and
legitimate reason, backed by substantial evidence to partially discredit Dr. Cole's opinion.

III.

The ALJ did not Commit Reversible Error at Step Two
Plaintiff argues that the ALJ erred in failing to find his right knee pain severe at Step Two.

"At step two of the five-step inquiry, the Commissioner determines whether the claimant has a
medically severe impairment or combination of impainnents." Smolen v. Chafer, 80 F.3d 1273,
1289-1290 (9th Cir. 1996). An impahment is "not severe" if it does not significantly limit plaintiffs
ability to do basic work activities. 20 C.F.R. §§ 404.152l(a), 416.92l(a); see also Webb v. Barnhart,
433 F.3d 683, 686 (9th Cir. 2005). A plaintiff only can establish a medically determinable
impairment at Step Two, "if the record includes signs-the results of'medically acceptable clinical
diagnostic techniques,' such as tests-as well as symptoms, i.e., [the claimant's] representations
regarding his impairment." Ukolov v. Barnhart, 420 F.3d 1002, 1005 (9th Cir. 2005).
Step Two "is a de minimis screening device used to dispose of groundless claims," and an
impainnent or combination of impahments will only be· found "not severe" if "the evidence

19 - OPINION AND ORDER

establishes a slight abnormality that has 'no more than a minimal effect on an individual's ability
to work.'" Smolen, 80 F.3d at 1290 (quoting Yuckert, 841 F.2d at 306).
At Step Two, the ALJ discussed medical evidence of plaintiffs right knee pain and found
it non-severe. Specifically, the ALJ noted that plaintiff reported pain in his knees bilaterally, right
greater than left, and pain in his left hip. Tr. 18. The ALJ further noted that imaging of plaintiffs
right knee and left hip did not show any abnmmal findings. Id. The ALJ found that the "physical
examination findings did not document consistent functional limitations arising from plaintiffs pain
complaints." Tr. 18. The ALJ also discussed the August 2012 consultative examination of Hayden
Hamilton, M.D. In this case, Dr. Hamilton observed an antalgic gait favoring his right leg and less
than 10 degrees extension on the right knee with crepitus. Tr. 383. Dr. Hamilton also noted intact
strength with the exception of 415 strength in the right knee flexion. Dr. Hamilton diagnosed right
knee pain and impaired range of motion and left 'hip pain per the claimant and opined that plaintiff
could perform light level work. Tr. 3 84. Thus, Dr. Hamilton's examination revealed some objective
findings in support of plaintiffs right knee pain.
Even assuming arguendo that the ALJ failed to find plaintiffs right knee impairment severe
at step two, this error is harmless. Specifically, the ALJ provided an alternative step five finding
demonstrating that even ifthe ALJ adopted Dr. Hamilton's opinion, the ALJ's ultimate conclusion
of non-disability would remain unchanged. See Stout v. Commissioner, Soc. Sec. Admin., 454 F.3d
1050, 1054-55 (9th Cir. 2006) (noting that ALJ commits harmless error when the mistake was
"nonprejudicial" or "irrelevant" to the ultimate disability conclusion).
At the hearing, the ALJ posed a hypothetical to the VE incorporating all of the limitations
of the RFC finding. Tr. 48. The VE testified that plaintiff could perfo1m his past relevant work as

20 - OPINION AND ORDER

a janitor. Id. Then, the ALJ posed a second hypothetical, adding Dr. Hamilton's assessment of light
work to the initial hypothetical. Tr. 48-49. The VE testified that plaintiff could not perfo1m his past
work as a janitor with the additional physical limitations. Tr. 49. However, the VE identified other
jobs that plaintiff could perform at step five: table worker, Dictionary of Occupational Titles (DOT)
#734.687-014 (250,000 jobs nationally and 1,500 in Oregon) and bagger, DOT #920.687-018
(500,000 jobs nationally and 1,000 jobs in Oregon). Tr. 49. Thus, the ALJ found that even with a
limitation to light work, there are jobs available in significant numbers that plaintiff can perfo1m,
such as table worker or bagger. Tr. 28. To be sure, plaintiff contends that Dr. Hamilton's opinion
accurately assesses his physical limitations. Pl Br. (ECF No. 16) at 19. Moreover, plaintiff does not
challenge the ALJ's alternative step five finding.
Indeed, Dr. Hamilton's opinion generously accounts for plaintiffs complaints of pain from
his alleged right knee limitations and is consistent with the overall medical evidence. For example,
01ihopedic surgeon William Turner, M.D., noted that plaintiffs November 2012 right knee MRJ
revealed a lateral tracking patella but no significant degenerative joint disease, meniscal pathology
or internal derangements and ruled out surgical treatment. Tr. 412. In a December 2012 examination,
Dr. Turner noted n01mal alignment of the knee and an absence of crepitus. Id. Dr. Turner diagnosed
chronic patellar malalignment with no signs of internal derangement, but noted there was not much
to offer plaintiff for his "nonspecific knee pain." Id. Similarly, other examinations of plaintiffs right
knee have been relatively n01mal, including an absence of crepitus, tenderness, and swelling. See
generally Tr. 308, 319, 359, 387, 447.

In summary, although the ALJ may have erred at step two, such an error is haimless because
the ALJ provided an alternative step five finding that plaintiff can perform other work in the national

21 - OPINION AND ORDER

economy that existed in significant numbers, which accounted for these limitations. Tommasetti, 533
F.3d at 1042. Accordingly, the ALJ's ultimate finding of non-disability is suppo1ied by substantial
evidence.
Finally, I reject plaintiffs argument that the ALJ' s hypothetical posed to the VE was invalid
because it did not include marked limitations from the opinions ofDrs. Kemp, Johnson, and Cole.
As discussed above, the ALJ properly discredited these opinions. The ALJ incorporated all credited
limitations from the RFC finding in the hypothetical posed to the VE. Accordingly, the ALJ could
rely upon the VE testimony. Valentine, 574 F.3d at 694; Stubbs-Danielson, 539 F.3d at 1175-76.
CONCLUSION
For the reasons stated above, the Commissioner's final decision is AFFIRMED. This action
is DISMISSED.
IT IS SO ORDERED.
DATED this /?"day of DECEMBER, 2015.

Malcolm F. Marsh
United States District Judge

22 - OPINION AND ORDER