Hesketh v. Commissioner Social Security Administration

Filing 32

OPINION AND ORDER. For the reasons stated, the Court affirms the Commissioner's decision because it is free of legal error and supported by substantial evidence. IT IS SO ORDERED. Signed on 5/23/2017 by Magistrate Judge Stacie F. Beckerman. (gw)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON

JACK JAY HESKETH,

Case No. 1:15-cv-02396-SB

Plaintiff,

OPINION AND ORDER

v.
NANCY A. BERRYHILL,
Acting Commissioner of Social Security,
Defendant.
BECKERMAN, Magistrate Judge.
Jack Hesketh (“Hesketh”) brings this appeal challenging the Commissioner of Social
Security’s (“Commissioner”) denial of his application for Social Security disability insurance
benefits under Title II of the Social Security Act, 42 U.S.C. §§ 401-34. The Court has
jurisdiction to hear this appeal pursuant to 42 U.S.C. § 405(g). For the reasons explained below,
the Court affirms the Commissioner’s decision because it is free of legal error and supported by
substantial evidence.

PAGE 1 – OPINION AND ORDER

BACKGROUND
Hesketh was born in October 1958, making him fifty-three years old on November 1,
2011, the alleged disability onset date. Hesketh has a twelfth-grade education, and his past
relevant work includes time as a telecommunications technical account executive. He alleges
disability due primarily to peripheral neuropathy.
On July 13, 2012, Hesketh visited the emergency department at Three Rivers Community
Hospital, complaining of ringing in his left ear that had “progressively become worse” over the
prior months. (Tr. 220.) Hesketh was treated for probable otitis externa and discharged from the
hospital.1
On October 10, 2012, Hesketh underwent a consultative examination with Dr. Roger
Steinbrenner (“Dr. Steinbrenner”). Dr. Steinbrenner’s musculoskeletal examination revealed the
following:
Motor strength is normal, [five out of five strength], upper and
lower extremities. He has an abnormal gait, which is somewhat
waddling and with feet externally rotated, walking more on the
balls of his feet than the heels. Deep tendon reflexes are [two plus]
and equal, knees and ankles. Vibratory sensation is intact. He is
unable to walk on his heels, is able to walk on his toes. Straight leg
raising is positive at about [sixty] degrees because of tightness in
the hamstrings, sitting and supine. He has a good grip. Fingering
and handling are normal. Limited range of motion at right shoulder
with abduction limited to [ninety] degrees.
(Tr. 269.) Based on his examination and discussion with Hesketh, Dr. Steinbrenner assessed
peripheral neuropathy of an uncertain etiology and probable adhesive capsulitis in the right
shoulder. He opined that Hesketh is unable to sit, stand, or walk for more than twenty to thirty
minutes at a time due to pain in his legs and feet, or lift and carry more than twenty-five pounds
1

Otitis externa, also known as “swimmer’s ear,” is characterized by “localized pain,
swelling, and inflammation.” Diichi Pharm. Co. v. Apotex, Inc., 380 F. Supp. 2d 478, 482 n.4
(D.N.J. 2005).
PAGE 2 – OPINION AND ORDER

due to adhesive capsulitis. Dr. Steinbrenner found no evidence of rheumatoid arthritis on
physical examination.
On October 22, 2012, Dr. J. Scott Pritchard (“Dr. Pritchard”), a non-examining state
agency physician, completed a physical residual functional capacity assessment. (Tr. 79-81.)
Based on his review of the record, Dr. Pritchard determined that Hesketh could lift and carry
twenty pounds occasionally and ten pounds frequently; sit, stand, or walk up to six hours in an
eight-hour workday; push or pull in accordance with his lift and carry restrictions; occasionally
climb ladders, ropes, or scaffolds; balance, stoop, kneel, crouch, crawl, and climb ramps and
stairs without limitation; handle, finger, and feel without limitation; and occasionally reach in
any direction. Dr. Pritchard also found no evidence of visual, communicative, or environmental
limitations.
On January 16, 2013, Hesketh established care with Karen Hoskins (“Hoskins”), a nurse
practitioner.2 Hesketh complained of worsening peripheral neuropathy, rheumatoid arthritis, pain
in his ankles, legs, and left knee, weakness in his legs, and a burning sensation in his heels and
toes. Hoskins noted that Hesketh exhibited a “normal gait,” and full range of motion and strength
in his upper and lower extremities. (Tr. 279-80.) Hoskins prescribed Cymbalta to treat Hesketh’s
pain, and advised Hesketh to avoid refined foods and to engage in “[r]egular exercise most days
for [thirty] minutes or more, including cardiovascular, strength and flexibility training.” (Tr.
281.)

2

“[A] nurse practitioner could be considered a medically acceptable source where he
worked so closely under a physician that he was acting as the physician’s agent.” Britton v.
Colvin, 787 F.3d 1011, 1013 (9th Cir. 2015) (citing Gomez v. Chater, 74 F.3d 967, 971 (9th Cir.
1996)). However, nothing in the record indicates that Hoskins worked under or with any
physician at Karen Hoskins PC.
PAGE 3 – OPINION AND ORDER

On January 23, 2013, Dr. Lloyd Wiggins (“Dr. Wiggins”), a non-examining state agency
physician, completed a physical residual functional capacity assessment, agreeing with Dr.
Pritchard’s findings. (Tr. 89-91.)
On January 30, 2013, Hesketh presented for a follow-up visit with Hoskins and
complained of pain in his left hip and knee. Hesketh also reported that he uses a walker in the
morning due to leg weakness, that his “mobility improves with moving around,” that “he is able
to get around using a cane,” that “he stoves up if he is sedentary for more than [thirty] minutes,”
and that “he has dealt with this pain for a numbers of years.” (Tr. 284.) Hoskins noted that a
number of autoimmune/inflammatory studies were ordered based on Hesketh’s prior reports of
joint pains. Hoskins added that antinuclear antibody (“ANA”), cyclic citrullinate peptide
(“CCP”) antibody, and lyme disease tests were negative, and peripheral neuropathy-related
testing (i.e., vitamin B12, folate, homocysteine, and ferritin) “[a]ll were at normal levels.” (Tr.
284.)
On March 27, 2013, Hesketh presented for a consultation with his neurologist, Dr. Yung
Kho (“Dr. Kho”), regarding his “bilateral lower extremities peripheral neuropathy.” (Tr. 314.)
Dr. Kho noted that Hesketh’s diagnosis was “idiopathic neuropathy” that had not responded to
Gabapentin, and that Hesketh’s health had “gradually worsened” over time. (Tr. 314.) Dr. Kho
also noted that Hesketh has suffered from “idiopathic neuropathy” since 1986, and had a workup “already at that time.” (Tr. 316.) Dr. Kho added that Hesketh exhibited a normal gait, was
able to stand without difficulty, and exhibited “[five out of five] bilateral symmetric [strength] in
all four extremities.” (Tr. 315.)
Hesketh presented for follow-up visits with Hoskins in April 2013. Hoskins’ notes
indicate that Hesketh exhibited “positive symptoms” of posttraumatic stress disorder (“PTSD”)

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and “moderately severe depression.” (Tr. 289-90.) Hoskins’ notes also indicate that Hesketh
continued to complain of chronic pain in his “lower extremities, left knee,” which Hesketh
reported was “made better by elevating feet” and “made worse by standing or sitting too long.”
(Tr. 296.) Hesketh rated the “severity of interference [with] his general activity” caused by pain
as a three on a ten-point scale. (Tr. 296.) Hoskins advised Hesketh to continue exercising and
eating healthier.
In a treatment note dated July 17, 2013, Hoskins noted that Hesketh recently left “his bag
of pills on [her] door step with a note saying ‘[W]on’t need these. [D]on’t want to live. [T]hanks
for trying.’” (Tr. 301.) Hoskins noted that 911 was called and Hesketh denied being suicidal. He
later informed Hoskins that he recently “ended up in jail” after his ex-wife took his dog and
turned him in for an outstanding warrant. (Tr. 301.) Hesketh was taken off his medications,
agreed to return to counseling, and reported that he was applying for a medical marijuana card
because he felt that it was “amazing” and would help treat his peripheral neuropathy and PTSD.
(Tr. 301.)
On September 19, 2013, Hesketh was seen by Michael Swartz (“Swartz”), a physician’s
assistant at Paragon Orthopedic Center, based on complaints of left knee pain. Hesketh informed
Swartz that his symptoms began four years ago, that he had fallen off a ladder in 2007, and that
he “worked as a logger and pole climber” for years, but was “now limited to wedding musician
work.” (Tr. 28, 344.) A magnetic resonance imaging (“MRI”) scan revealed “a partial radial tear
of the posterior horn of the medial meniscus, with a few posterior fibers remaining intact.” (Tr.
343.)
On October 29, 2013, Hesketh presented for an orthopedic consultation with Dr. Robert
Bents (“Dr. Bents”). Dr. Bents discussed the “findings of meniscal tear” with Hesketh and

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“nonoperative versus operative options,” and mentioned that “there may be findings of
chondromalacia or early arthritis noted by arthroscopy which may comprise pain relief.” (Tr.
337.) Hesketh consented to surgery after being advised of the risk of limited to incomplete pain
relief.
On December 11, 2013, Hesketh underwent arthroscopic knee surgery with medial
meniscectomy. On December 24, 2013, Hesketh presented for a post-operative visit with Swartz.
Hesketh reported that his “satisfaction with surgery is very good,” he was “improving,” and his
pain was “occasional.” (Tr. 321.)
In a medical source statement dated January 21, 2014, Dr. Kho addressed Hesketh’s
diagnoses and estimated limitations. (Tr. 310-13.) Dr. Kho stated that Hesketh suffers from
peripheral neuropathy and rheumatoid arthritis, which results in severe leg and foot pain,
weakness, sensory loss, decreased deep tendon reflexes, chronic fatigue, and cramping and
burning in the calves and feet. Dr. Kho estimated that Hesketh (1) can sit for thirty minutes at a
time, (2) can stand for five minutes at a time, (3) can stand and walk for less than two hours in an
eight-hour workday, (4) can sit for about two hours in an eight-hour workday, (5) needs a job
that permits shifting positions, walking for five minutes every thirty minutes, taking fifteenminute unscheduled breaks every thirty minutes, (6) needs to elevate his feet for up to six hours
during a sedentary work day, (7) needs to use an assistive device when standing or walking, (8)
can never lift twenty or more pounds, rarely stoop, crouch, or squat, and occasionally twist, and
(9) would be absent from work more than four days per month as a result of his impairments or
treatment needs.
Hesketh visited with Dr. Bents on January 27, 2014. Dr. Bents noted that Hesketh had not
been attending physical therapy or doing his home exercise program “other than walking his

PAGE 6 – OPINION AND ORDER

dog.” (Tr. 318.) Hesketh reported that he had lost weight, was “wearing a knee brace when
walking long distances,” and was “able to walk up to a mile at this point which he could not do
pre-operatively.” (Tr. 318.) Dr. Bents noted that Hesketh was advised to “continue a home
exercise program” and understood that his symptoms may “continue to improve with time.” (Tr.
320.)
An administrative law judge (“ALJ”) convened a video hearing on February 13, 2014, at
which Hesketh testified about the limitations resulting from his impairments. (Tr. 26-71.)
Hesketh testified that he stopped working in 2009 and exhausted his unemployment benefits in
November 2011. Hesketh further testified that he spent the majority of the last fifteen years
working as a sales representative in the telecommunications industry, and that he was “let go”
because he had trouble meeting his job-related quotas and showing up for scheduled
appointments on time. (Tr. 51.) Hesketh stated that his performance deteriorated because he
suffers from peripheral neuropathy and had to interrupt his travel to reduce swelling and regain
feeling in his legs. (Tr. 51.) Hesketh also testified that he had his left meniscus surgically
repaired in December 2013, uses a walker in the morning due to leg weakness, has to elevate his
feet eighty percent of the day in order to reduce swelling and pain in his legs, lives in an
apartment with his eighty-five-year-old mother who assists with his basic care, and watches
fourteen hours of television per day.
The ALJ also received testimony from Dr. Irvin Belzer (“Dr. Belzer”), a medical expert
who testified at Hesketh’s administrative hearing. Dr. Belzer testified that, based on his review
of the medical records, Hesketh’s peripheral neuropathy “hasn’t [a]ffected [his] ability to stand
and walk to any significant extent,” citing physical examination findings that undermined
opinions and testimony to the contrary. (Tr. 34.) Dr. Belzer also testified that Hesketh lacked the

PAGE 7 – OPINION AND ORDER

serology and physical examination findings to support a diagnosis of rheumatoid arthritis, and
that Hesketh did not have an impairment or combination of impairments that met or equaled one
of the Listed Impairments. In terms of Hesketh’s residual functional capacity, Dr. Belzer testified
that he agreed with Drs. Pritchard and Wiggins’ assessment that Hesketh could perform a
modified version of light work. However, Dr. Belzer added that he would further restrict Hesketh
to (1) no climbing of ladders, ropes, or scaffolds, and (2) no pushing or pulling of bilateral foot
controls.
In a written decision issued on May 28, 2014, the ALJ applied the five-step process set
forth in 20 C.F.R. § 404.1520(a)(4), and found that Hesketh was not disabled. See infra. The
Social Security Administration Appeals Council denied Hesketh’s petition for review, making
the ALJ’s decision the Commissioner’s final decision. Hesketh timely appealed to federal district
court.
THE FIVE-STEP SEQUENTIAL ANALYSIS
I.

LEGAL STANDARD
A claimant is considered disabled if he or she is unable to “engage in any substantial

gainful activity by reason of any medically determinable physical or mental impairment which
. . . has lasted or can be expected to last for a continuous period of not less than 12 months[.]” 42
U.S.C. § 423(d)(1)(A). “Social Security Regulations set out a five-step sequential process for
determining whether an applicant is disabled within the meaning of the Social Security Act.”
Keyser v. Comm’r Soc. Sec. Admin., 648 F.3d 721, 724 (9th Cir. 2011). Those five steps are as
follows:
(1) Is the claimant presently working in a substantially gainful
activity? (2) Is the claimant’s impairment severe? (3) Does the
impairment meet or equal [one of the listed impairments]? (4) Is
the claimant able to perform any work that he or she has done in
PAGE 8 – OPINION AND ORDER

the past? and (5) Are there significant numbers of jobs in the
national economy that the claimant can perform?
Id. at 724-25. The claimant bears the burden of proof for the first four steps in the process.
Bustamante v. Massanari, 262 F.3d 949, 953-54 (9th Cir. 2001). If the claimant fails to meet the
burden at any of the first four steps, the claimant is not disabled. Id.; Bowen v. Yuckert, 482 U.S.
137, 140-41 (1987).
The Commissioner bears the burden of proof at step five of the process, where the
Commissioner must show the claimant can perform other work that exists in significant numbers
in the national economy, “taking into consideration the claimant’s residual functional capacity,
age, education, and work experience.” Tackett v. Apfel, 180 F.3d 1094, 1100 (9th Cir. 1999). If
the Commissioner fails to meet this burden, the claimant is disabled. Bustamante, 262 F.3d at
954 (citations omitted).
II.

THE ALJ’S DECISION
The ALJ first determined that Hesketh had not engaged in substantial gainful activity

since November 1, 2011, the alleged disability onset date. At the second step, the ALJ concluded
that Hesketh had the severe impairments of peripheral neuropathy, shoulder joint dysfunction,
cervical degenerative disc disease, and a history of meniscus tears “status post arthroscopy.” (Tr.
12.) At the third step, the ALJ found that Hesketh did not have an impairment or combination of
impairments that met or equaled one of the Listed Impairments. The ALJ then assessed
Hesketh’s residual functional capacity (“RFC”) and found that he could perform light work that
does not involve (1) climbing ropes, ladders, or scaffolds, or (2) pushing or pulling of bilateral
foot controls. At the fourth step, the ALJ found that Hesketh is capable of performing his past
work as a telecommunications technical account executive. Accordingly, the ALJ concluded that
Hesketh was not disabled.
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STANDARD OF REVIEW
The district court may set aside a denial of benefits only if the Commissioner’s findings
are “‘not supported by substantial evidence or [are] based on legal error.’” Bray v. Comm’r Soc.
Sec. Admin., 554 F.3d 1219, 1222 (9th Cir. 2009) (quoting Robbins v. Soc. Sec. Admin., 466 F.3d
880, 882 (9th Cir. 2006)). Substantial evidence is defined as “‘more than a mere scintilla [of
evidence] but less than a preponderance; it is such relevant evidence as a reasonable mind might
accept as adequate to support a conclusion.’” Id. (quoting Andrews v. Shalala, 53 F.3d 1035,
1039 (9th Cir. 1995)).
The district court “cannot affirm the Commissioner’s decision ‘simply by isolating a
specific quantum of supporting evidence.’” Holohan v. Massanari, 246 F.3d 1195, 1201 (9th Cir.
2001) (quoting Tackett, 180 F.3d at 1097). Instead, the district court must consider the entire
record, weighing the evidence that both supports and detracts from the Commissioner’s
conclusions. Id. If the evidence as a whole can support more than one rational interpretation, the
ALJ’s decision must be upheld; the district court may not substitute its judgment for the
judgment of the ALJ. Bray, 554 F.3d at 1222 (citing Massachi v. Astrue, 486 F.3d 1149, 1152
(9th Cir. 2007)).
DISCUSSION
In this appeal, Hesketh argues that the ALJ erred by: (1) failing to provide clear and
convincing reasons for discounting his subjective symptom testimony; (2) failing to offer legally
sufficient reasons for rejecting the limitations assessed by Drs. Pritchard, Wiggins, Steinbrenner,
and Kho; (3) failing to fully and fairly develop the record regarding Hesketh’s mental
impairments; and (4) concluding, at step four of the sequential process, that Hesketh could
perform his past work as a telecommunications technical account executive. As explained below,
the Court concludes that the Commissioner’s decision is free of legal error and supported by
PAGE 10 – OPINION AND ORDER

substantial evidence in the record. Accordingly, the Court affirms the Commissioner’s denial of
benefits.
I.

CREDIBILITY DETERMINATION
A.

Applicable Law

Absent an express finding of malingering, an ALJ must provide clear and convincing
reasons for rejecting a claimant’s testimony:
Without affirmative evidence showing that the claimant is
malingering, the [ALJ]’s reasons for rejecting the claimant’s
testimony must be clear and convincing. If an ALJ finds that a
claimant’s testimony relating to the intensity of his pain and other
limitations is unreliable, the ALJ must make a credibility
determination citing the reasons why the testimony is
unpersuasive. The ALJ must specifically identify what testimony is
credible and what testimony undermines the claimant’s
[subjective] complaints.
Morgan v. Comm’r of Soc. Sec. Admin., 169 F.3d 595, 597 (9th Cir. 1999) (citations omitted).
Clear and convincing reasons for rejecting a claimant’s subjective symptom testimony “include
conflicting medical evidence, effective medical treatment, medical noncompliance,
inconsistencies in the claimant’s testimony or between her testimony and her conduct, daily
activities inconsistent with the alleged symptoms, and testimony from physicians and third
parties about the nature, severity and effect of the symptoms complained of.” Bowers v. Astrue,
No. 6:11-cv-583-SI, 2012 WL 2401642, at *9 (D. Or. June 25, 2012); see also Molina v. Astrue,
674 F.3d 1104, 1112 (9th Cir. 2012) (“[T]he 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).’” (quoting Fair v. Bowen, 885 F.2d 597, 603 (9th Cir.
1989))).
///
///
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B.

Application of Law to Fact

There is no affirmative evidence that Hesketh is malingering and, therefore, the ALJ was
required to provide clear and convincing reasons for discrediting Hesketh’s symptom testimony.
Upon review, the Court concludes that the ALJ satisfied the clear and convincing reasons
standard.
First, the ALJ discounted Hesketh’s testimony based on evidence of conservative
treatment. For example, the ALJ noted that Hesketh uses only over-the-counter medications to
treat his severe pain. (Tr. 18.) The Ninth Circuit has “previously indicated that evidence of
‘conservative treatment’ is sufficient to discount a claimant’s testimony regarding severity of an
impairment.” Bartlett v. Colvin, No. 1:14-cv-00142-SB, 2015 WL 2412457, at *12 (D. Or. May
21, 2015) (quoting Parra v. Astrue, 481 F.3d 742, 751 (9th Cir. 2007))); see also Tommasetti v.
Astrue, 533 F.3d 1035, 1039 (9th Cir. 2008) (noting that subjective complaints can be rejected
where the claimant’s “claim that she experienced pain approaching the highest level imaginable
was inconsistent with the ‘minimal, conservative treatment’ that she received”) (citation
omitted).
Hesketh contends that the ALJ’s conservative treatment finding is not supported by
substantial evidence because the record indicates that he was prescribed Cymbalta and
Gabapentin. (Pl.’s Opening Br. at 15.) In other words, Hesketh contends that the ALJ erred in
suggesting that he merely treated his allegedly disabling pain by relying only on over-the-counter
medications.
The record does indicate that Hesketh did more than simply treat his pain with over-thecounter medications. (See Tr. 280, prescribing Cymbalta to treat Hesketh’s pain; see also Tr. 54,
stating that Hesketh was taking Gabapentin at the time of the hearing; but see Tr. 35, noting that
Gabapentin was previously discontinued because it purportedly was not effective). However, the
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record also indicates that Hesketh: (1) was advised to modify his diet and engage in regular
exercise (Tr. 281, recommending that Hesketh avoid refined foods and engage in “[r]egular
exercise most days for [thirty] minutes or more, including cardiovascular, strength and flexibility
training,” (2) was, at times, not taking any prescribed pain medication, as the ALJ observed in
his written opinion (Tr. 276, establishing care and noting on January 16, 2013, that Hesketh was
“not taking prescribed medications,” Tr. 301-04, noting on July 17, 2013, that Hesketh had
“abruptly stopped taking Cymbalta” and that all of his medications, with the exception of
nicotine patches, were discontinued), and (3) was advised to pursue physical therapy and a home
exercise program post-knee surgery, but failed to do so (Tr. 318, noting on January 27, 2014, that
Hesketh had not been attending physical therapy or doing his home exercise program “other than
walking his dog”).
Courts have concluded that diet, exercise, physical therapy, Gabapentin, and Cymbalta
are conservative treatment measures. See Martin v. Colvin, No. 3:14-01603-SB, 2016 WL
890106, at *11 (D. Or. Feb. 9, 2016) (explaining that diet and exercise are conservative
treatment); Jackson v. Colvin, No. 14-177, 2015 WL 1412314, at *6 (S.D. Ohio Mar. 23, 2015)
(collecting cases and noting that Gabapentin is “considered to be a conservative treatment
measure”); Black v. Colvin, No. 15-2148, 2016 WL 1268289, at *3 (W.D. Ark. Mar. 31, 2016)
(noting that the claimant’s treating physician “recommended conservative treatment, including
adding Cymbalta to her existing medication and continuing her physical therapy efforts”);
Ingram v. Colvin, No. 14-3036, 2015 WL 1268182, at *8 (D. Neb. Mar. 19, 2015) (upholding
conservative treatment finding, and describing the claimant’s treatment, which consisted of
prescriptions for tramadol, Cymbalta, and methylphenidate, as “routine and conservative in
nature”); see also Hanes v. Colvin, 651 F. App’x 703, 705-06 (9th Cir. 2016) (upholding ALJ’s

PAGE 13 – OPINION AND ORDER

conservative treatment finding where the claimant’s plan “consisted primarily of minimal
medication [i.e., narcotic pain killers, such as Opana, Fentanyl, and morphine], limited
injections, physical therapy, and gentle exercise”). Accordingly, the ALJ’s conservative
treatment finding is supported by substantial evidence, even though the ALJ misstated that
Hesketh relied only on over-the-counter medications. See Fenton v. Colvin, No. 6:14-00350-SI,
2015 WL 3464072, at *1 (D. Or. June 1, 2015) (“The Court is not permitted to affirm the
Commissioner on a ground upon which the Commissioner did not rely, but the Court is permitted
to consider additional support for a ground on which the ALJ relied.”).
Second, the ALJ discounted Hesketh’s symptom testimony based, in part, on conflicting
medical evidence. See Bowers, 2012 WL 2401642, at *9 (noting that conflicting medical
evidence is a clear and convincing reason for discounting a claimant’s testimony). For example,
the ALJ cited the results of previously-discussed examinations that showed “minimal objective
findings” and Dr. Belzer’s opinion that “there is no medical basis for the claimant’s subjective
need to elevate his legs.” (Tr. 17-18; see also Tr. 42-44, confirming that Dr. Belzer did not
believe that Hesketh needed to elevate his legs “to either preclude his worsening [pain] or to
make it better”). In the preceding pages of his opinion, the ALJ described those “minimal
objective findings,” noting, among other things, that: (1) Hoskins ordered a number of
autoimmune/inflammatory studies, and Hesketh’s ANA, CCP, and lyme disease tests were
normal and his peripheral neuropathy-related testing (i.e., vitamin B12, folate, homocysteine and
ferritin) were at normal levels (Tr. 14, 284); and (2) on a number of occasions, Hesketh exhibited
a normal gait and full range of motion and/or strength in his upper and lower extremities (Tr. 1314, 269, 279-80, 315).

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Hesketh argues that the ALJ’s finding of conflicting medical evidence is not supported by
substantial evidence because Dr. Kho opined that it was necessary for Hesketh to elevate his
legs, and because Dr. Belzer’s testimony establishes that he was “unaware of the lumbar spine
MRI evidence Dr. Pritchard summarized at [page] 191” of the transcript, which revealed that
Hesketh exhibited signs of “stenosis,” a condition Hesketh claims “can cause back and leg pain
[that] can be alleviated by leg elevation.” (Pl.’s Opening Br. at 14-15) Hesketh also argues that
conflicting medical evidence, “by itself,” does not amount to substantial evidence. (Pl.’s Opening
Br. at 14.)
Hesketh’s arguments are not persuasive. In making an adverse credibility determination,
it is appropriate for an ALJ to consider conflicting medical evidence or the lack of medical
evidence corroborating the claimant’s testimony. See Nikitchuk v. Astrue, 240 F. App’x 740, 742
(9th Cir. 2007) (holding that the ALJ “properly considered the lack of medical evidence
corroborating [the claimant’s] testimony as one factor in his credibility determination” and “the
affirmative medical evidence in the record that contradicted [the claimant’s] testimony”); Martin,
2016 WL 890106, at *9 (“While subjective pain testimony cannot be rejected on the sole ground
that it is not fully corroborated by objective medical evidence, the medical evidence is still a
relevant factor in determining the severity of the claimant’s pain and its disabling effects.”)
(citation omitted). Contrary to Hesketh’s arguments, the ALJ did not reject Hesketh’s testimony
solely because it conflicted with, or was not fully corroborated by, the objective medical
evidence. Rather, as discussed, the ALJ also relied on Hesketh’s conservative treatment
measures in discounting his testimony. Further, it is immaterial whether Drs. Belzer and Kho
agreed about whether leg elevation was a medical necessity, or whether Dr. Belzer was aware of
a lumbar spine MRI, because the ALJ’s opinion cites a number of benign testing and

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examination results (some of which are cited above) that are in conflict with the degree of
impairment alleged.3 These benign results provided sufficient grounds for discounting Hesketh’s
symptom testimony based, in part, on conflicting medical evidence or the lack of corroborating
medical evidence. See Conner, 2017 WL 24621, at *1 (upholding adverse credibility
determination under clear and convincing reasons standard, and noting that the ALJ “permissibly
considered” the claimant’s “ordinary physical exam findings” as a basis for finding her less than
fully credible).
Third, the ALJ discounted Hesketh’s testimony on the ground that it did not comport with
the record evidence. (See Tr. 17, observing that “the frequency and severity of the physical
symptoms the claimant testified to . . . are not supported by the record”). An ALJ may reject
subjective symptom testimony that does not comport with the record. See Mitchell v. Colvin, 584
F. App’x 309, 311 (9th Cir. 2014) (upholding adverse credibility determination under the clear
and convincing reasons standard, and noting that the ALJ found that the claimant’s testimony
3

Dr. Belzer testified that he received Exhibits 1A through 8F (pages 72 through 316 of
the transcript) prior to the administrative hearing, and presumably would have reviewed Dr.
Pritchard’s brief summarization on page 191 of Exhibit 4E. (Tr. 28.) Dr. Belzer was also told
about the contents of Exhibit 9F (Dr. Bents and Swartz’s records from Paragon Orthopedic
Center) during the hearing. (Tr. 28-32.) However, Dr. Belzer stated that Hesketh’s doctors
“didn’t really do . . . things like an MRI of his spine looking for damage to the core,” which
arguably conflicts with Dr. Pritchard’s passing reference to a lumbar MRI showing some signs of
stenosis. (Compare Tr. 42 with Tr. 191.) Hesketh claims that the “ALJ did not admit the
referenced MRI report into evidence” (Pl.’s Reply Br. at 13), but the record suggests that
Hesketh’s counsel was presented with the opportunity to supplement the record and chose not to
do so. (See Tr. 27, “ALJ: Are you aware of any medical [records outside of the now-admitted
Exhibits 1A through 9F] still outstanding [that] you feel we should have in this case? ATTY: No,
your honor”). Thus, Hesketh’s complaint that the record was incomplete lacks merit. See Conner
v. Colvin, ---- F. App’x ---- , 2017 WL 24621, at *1 (9th Cir. Jan. 3, 2017) (holding that the
claimant’s argument that the record was incomplete lacked merit because she was provided with
an “opportunity to supplement the record”). The Court also notes that Dr. Pritchard determined
Hesketh could perform modified light exertion work, could perform his past relevant work, and
was not disabled, despite apparently exhibiting signs of stenosis. (Tr. 79-82, 191.) It is clear,
then, that at least one doctor assessed the impact stenosis would have on Hesketh’s ability to
work.
PAGE 16 – OPINION AND ORDER

“did not comport with the record”). In particular, the ALJ took issue with Hesketh’s testimony
regarding his need to elevate his feet “eighty percent of the day.” (Tr. 17, 56.) During the hearing
held on February 13, 2014, Hesketh testified that he has been elevating his feet at this frequency
for two to two-and-a-half years. (Tr. 56.) It was reasonable for the ALJ to infer that Hesketh’s
testimony did not comport with the record when considering: (1) Dr. Belzer’s testimony that feet
elevation was not a medical necessity, as the ALJ noted in his written opinion (Tr. 17-18), (2) up
until November 2011, less than two-and-a-half years before the hearing, Hesketh was receiving
unemployment benefits, and thus would have represented that he was able to work in at least
some capacity, which is inconsistent with his reported need to elevate his feet eighty percent of
the day and his reported inability to stand on his “feet long enough to [even] make meals” (Tr.
183), and (3) in September 2013, roughly two years post-onset date and Hesketh’s exhaustion of
his unemployment benefits, Hesketh reported that he was working as “wedding musician.” (Tr.
344.) Thus, the Court finds that the ALJ did not err. See Fenton, 2015 WL 3464072, at *1 (“The
Court is not permitted to affirm the Commissioner on a ground upon which the Commissioner
did not rely, but the Court is permitted to consider additional support for a ground on which the
ALJ relied.”).
Based on the foregoing, the Court declines to second-guess the ALJ’s credibility
determination because it is reasonable and supported by substantial evidence. See Rollins v.
Massanari, 261 F.3d 853, 856 (9th Cir. 2001) (“[T]he ALJ’s interpretation of [the claimant’s]
testimony may not be the only reasonable one. But it is still a reasonable interpretation and is
supported by substantial evidence; thus, it is not our role to second-guess it.”); Dowell v.
Berryhill, No. 16-614-SI, 2017 WL 1217158, at *5 (D. Or. Apr. 3, 2017) (noting that an ALJ’s

PAGE 17 – OPINION AND ORDER

credibility determination may be upheld even if some of the reasons provided were not legally
sufficient).
II.

MEDICAL OPINION EVIDENCE
A.

Applicable Law

“There are three types of medical opinions in social security cases: those from treating
physicians, examining physicians, and non-examining physicians.” Valentine v. Comm’r Soc.
Sec. Admin., 574 F.3d 685, 692 (9th Cir. 2009) (citing Lester v. Chater, 81 F.3d 821, 830 (9th
Cir. 1995)). In the event “a treating or examining physician’s opinion is contradicted by another
doctor, the ‘[ALJ] must determine credibility and resolve the conflict.’” Id. (citation omitted).
“An ALJ may only reject a treating physician’s contradicted opinions by providing ‘specific and
legitimate reasons that are supported by substantial evidence.’” Ghanim v. Colvin, 763 F.3d
1154, 1161 (9th Cir. 2014) (quoting Ryan v. Comm’r Soc. Sec., 528 F.3d 1194, 1198 (9th Cir.
2008)).
“An ALJ can satisfy the ‘substantial evidence’ requirement by ‘setting out a detailed and
thorough summary of the facts and conflicting clinical evidence, stating his interpretation
thereof, and making findings.’” Garrison v. Colvin, 759 F.3d 995, 1012 (9th Cir. 2014) (quoting
Reddick v. Chater, 157 F.3d 715, 725 (9th Cir. 1998)). Merely stating conclusions is insufficient:
“The ALJ must do more than state conclusions. He must set forth his own interpretations and
explain why they, rather than the doctors’, are correct.” Id. “[A]n ALJ errs when he rejects a
medical opinion or assigns it little weight while doing nothing more than ignoring it, asserting
without explanation that another medical opinion is more persuasive, or criticizing it with
boilerplate language that fails to offer a substantive basis for his conclusion.” Id. at 1012-13
(citation omitted).
///
PAGE 18 – OPINION AND ORDER

B.

Application of Law to Fact

Hesketh argues that the ALJ failed to provide legally sufficient reasons for discounting
the opinions of Drs. Pritchard, Wiggins, Steinbrenner, and Kho. These opinions are addressed in
turn.
1.

Drs. Pritchard and Wiggins

Hesketh argues that the ALJ failed to account for Dr. Wiggins’ opinion that Hesketh
should be limited to occasional reaching, or Dr. Pritchard’s purported opinion that Hesketh
suffers from the severe medically determinable impairment of lumbar degenerative disc disease.
(Pl.’s Opening Br. at 20.) Hesketh also argues that the ALJ erred by failing to “explain the
weight” that was given to Drs. Pritchard and Wiggins’ functional capacity assessments. (Pl.’s
Opening Br. at 20.) Upon review, the Court concludes that the ALJ did not commit reversible
error.
Contrary to Hesketh’s argument, the ALJ’s written opinion indicates that he assigned less
than full weight to Drs. Pritchard and Wiggins’ opinions. The ALJ assigned “significant weight”
to the opinion of Dr. Belzer because he had “the entire file to review,” unlike the state agency
physicians. (Tr. 18.) Nothing more is required of an ALJ under Ninth Circuit case law to
discount a doctor’s opinion. See McLeod v. Colvin, No. 13-1802, 2014 WL 3335968, at *3
(W.D. Wash. July 7, 2014) (noting that “an ALJ is not required to ‘recite the magic words I
reject the doctor’s opinion . . . because’” (brackets and ellipses omitted) (quoting Magallanes v.
Brown, 881 F.2d 747, 755 (9th Cir. 1989)))
Furthermore, even if the ALJ failed to find that Hesketh suffers from the severe
impairment of lumbar degenerative disc disease or needs to be limited to occasional reaching,
any error was harmless. See Molina, 674 F.3d at 1111 (noting that a district court “may not
reverse an ALJ’s decision on account of an error that is harmless”). “An error by the ALJ may be
PAGE 19 – OPINION AND ORDER

deemed harmless if it is clear that the ALJ would have reached the same result absent the error.”
McLeod, 2014 WL 3335968, at *2 (citing Molina, 674 F.3d at 1115). As Hesketh acknowledges,
the ALJ’s failure to account for his reaching limitation was harmless error because Hesketh
testified that his past relevant work did not involve more than occasional reaching, and because
Dr. Wiggins found that Hesketh could perform his past work despite his reaching limitation. (See
Pl.’s Reply at 8, “The Commissioner correctly notes that [the failure to account for occasional
reaching] is harmless error at step four because the past jobs . . . did not require more than
occasional reaching”).
The ALJ’s alleged failure to find that Hesketh suffers from the severe impairment of
lumbar degenerative disc disease was also harmless because step two was resolved in Hesketh’s
favor, see Mondragon v. Astrue, 364 F. App’x 346, 348 (9th Cir. 2010) (“Any alleged error at
step two was harmless because step two was decided in [the claimant’s] favor with regard to
other ailments”), and because the ALJ would have reached the same conclusion at step four
absent any error. (See Tr. 82, indicating that Dr. Pritchard was of the opinion that Hesketh could
perform his past work despite his impairments and functional limitations).
For these reasons, the ALJ did not commit reversible error in evaluating the state agency
physicians’ opinions.
2.

Dr. Steinbrenner

Hesketh next argues that the ALJ erroneously discounted Dr. Steinbrenner’s opinion. The
Court disagrees.
Dr. Steinbrenner’s consultative examination report conflicts with, among other things, the
assessments completed by the non-examining state agency doctors, none of whom opined that
Hesketh is unable to sit, stand, or walk for more than twenty to thirty minutes due to pain in his
lower extremities. (Compare Tr. 79-81, and Tr. 89-91, with Tr. 269.) Therefore, the ALJ needed
PAGE 20 – OPINION AND ORDER

to provide specific and legitimate reasons for discounting Dr. Steinbrenner’s consultative report.
See Batson v. Comm’r of Soc. Sec. Admin., 359 F.3d 1190, 1195 (9th Cir. 2004) (“[I]n the case of
a conflict ‘the ALJ must give specific, legitimate reasons for disregarding the opinion of the
treating physician.’”); see also Kilian v. Barnhart, 226 F. App’x 666, 668 (9th Cir. 2007)
(“Kilian’s contention that the ALJ erred when he discounted her treating physician’s opinion is
flawed because the treating physician’s opinion conflicted with that of a nonexamining
physician, and the ALJ supported his decision with specific and legitimate reasons.”). The ALJ
did so here.
First, the ALJ discounted Dr. Steinbrenner’s opinion evidence on the ground that he “was
not given the benefit of any medical record review.” (Tr. 18.) This was a specific and legitimate
reason for discounting Dr. Steinbrenner’s opinion. See Castaneda v. Astrue, No. 11-267, 2012
WL 1391955, at *10 (E.D. Cal. Apr. 20, 2012) (“The ALJ offered several specific and legitimate
reasons to reject the contradicted opinion of examining physician Venter, to wit: it is internally
inconsistent, the doctor did not review any medical records, and the opinion relies on Plaintiff’s
subjective complaints. All are proper reasons to discount the physician’s opinion.”); Armstrong
v. Astrue, No. 09-1063, 2010 WL 2745273, at *15-16 (D. Ariz. July 12, 2010) (upholding
rejection of consultative examiner’s opinion based, in part, on the fact that the examiner did not
have the benefits of reviewing the entire record); see also Bayliss v. Barnhart, 427 F.3d 1211,
1217 (9th Cir. 2005) (upholding rejection of medical provider’s assessment, noting that the
provider “did not review objective medical data or reports from treating physicians or
counselors” and instead relied on the claimant’s “complaints and information submitted by her
family, her friends, and a former counselor”). Hesketh does not argue that it was erroneous for

PAGE 21 – OPINION AND ORDER

the ALJ to reject Dr. Steinbrenner’s opinion on this ground. (See Pl.’s Opening Br. at 21; Pl.’s
Reply Br. at 9-11.)
Second, the ALJ discounted Dr. Steinbrenner’s opinion evidence because it is
inconsistent with his own examination findings. (See Tr. 18, discounting Dr. Steinbrenner’s
opinion because his “own examination findings would not support the sit, stand, and walk
limitations he notes”). A conflict between a doctor’s opinion and his own examination findings is
a specific and legitimate reason to discount his opinion. See Lawrence v. Colvin, No. 15-cv00098, 2016 WL 1445300, at *7 (D. Nev. Feb. 11, 2016) (“A conflict between a physician’s
opinion and his clinical findings is a specific and legitimate reason to discount the physician’s
opinion.”). Hesketh contends that the ALJ’s statement regarding Dr. Steinbrenner’s findings “is
unsupported layperson speculation.” (Pl.’s Opening Br. at 21.) The Court disagrees. During the
administrative hearing, the medical expert, Dr. Belzer, called Dr. Steinbrenner’s opinion into
doubt based on the results of his examination and others (i.e., examinations showing a normal
gait, nearly intact reflexes, full strength in the upper and lower extremities, etc.), and concluded
that Hesketh’s peripheral neuropathy has not, in fact, impacted his “ability to stand and walk to
any significant extent.” (Tr. 33-34.) Dr. Belzer also testified that he agreed with Drs. Pritchard
and Wiggins’ findings that Hesketh can sit, stand, and walk for six hours in an eight-hour
workday. (Tr. 39-40.) In light of the conflicting medical testimony described above, the Court
rejects Hesketh’s assertion that the ALJ committed reversible by engaging in “unsupported
layperson speculation.”
Third, the ALJ rejected Dr. Steinbrenner’s opinion in favor of the conflicting opinion
provided by Dr. Belzer. (See Tr. 18, assigning “significant weight” to Dr. Belzer’s opinion
evidence before assigning “light weight” to the consultative examination conducted by Dr.

PAGE 22 – OPINION AND ORDER

Steinbrenner). Dr. Belzer’s conflicting opinion regarding Hesketh’s functional limitations,
coupled with the other reasons described above, constitutes substantial evidence necessary to
affirm the ALJ’s rejection of Dr. Steinbrenner’s opinion evidence. See, e.g., Morford v. Colvin,
No. 6:15-cv-01216-SB, 2016 WL 3092109, at *8 (D. Or. June 1, 2016) (stating that a nonexamining doctor’s opinion, coupled with other reasons provided by the ALJ, constituted “the
substantial evidence necessary to affirm the ALJ’s rejection” of another doctor’s opinion
evidence).
The ALJ also discounted Dr. Steinbrenner’s opinion on the ground that it was based to a
large extent on Hesketh’s self-reports, which, as discussed above, the ALJ properly discounted as
not entirely credible. An ALJ may reject a “physician’s opinion if it is based to a large extent on
a claimant’s self-reports that have been properly discounted as incredible.” Burrell v. Colvin, 775
F.3d 1133, 1140-41 (9th Cir. 2014) (citation and quotation marks omitted). Hesketh disputes
whether Dr. Steinbrenner’s opinion was based to a large extent on his self-reports. In support of
his argument, Hesketh asserts that the ALJ engaged in “unfounded speculation” and “pointed to
no evidence that Dr. Steinbrenner was basing his findings on Mr. Hesketh’s self-report.” (Pl.’s
Opening Br. at 21.) From the Court’s perspective, it was reasonable for the ALJ to conclude that
Dr. Steinbrenner relied to a large extent on Hesketh’s self-reports, given the limited duration of
Dr. Steinbrenner’s examination (forty minutes) and the fact that he was not provided with past
medical records. (See Tr. 18, discounting Dr. Steinbrenner’s opinion, noting the “very brief”
encounter he had with Hesketh, and that he “was not given [the] benefit of any medical record
review”). Also supporting the reasonableness of the inference drawn by the ALJ is the medical
testimony suggesting that Dr. Steinbrenner’s findings do not support the degree of limitation he
assessed.

PAGE 23 – OPINION AND ORDER

For these reasons, the Court concludes that the ALJ’s rejection of Dr. Steinbrenner’s
opinion evidence was supported by substantial evidence and, therefore, should not be disturbed
on appeal.
3.

Dr. Kho

Finally, Hesketh argues that the ALJ erred by failing to provide legally sufficient reasons
for discounting Dr. Kho’s medical source statement dated January 21, 2014. The Court
disagrees.
Dr. Kho’s medical source statement conflicts with, inter alia, the assessments completed
by the non-examining state agency medical experts, none of whom opined that Hesketh can
stand and walk for less than two hours in an eight-hour workday, and sit for about two hours.
(Compare Tr. 79-81, and Tr. 89-91, with Tr. 311.) Therefore, the ALJ needed to provide specific
and legitimate reasons for discounting Dr. Kho’s opinion. See Batson, 359 F.3d at 1195 (“[I]n
the case of a conflict ‘the ALJ must give specific, legitimate reasons for disregarding the opinion
of the treating physician.’”); Kilian, 226 F. App’x at 668 (“Kilian’s contention that the ALJ erred
when he discounted her treating physician’s opinion is flawed because the treating physician’s
opinion conflicted with that of a nonexamining physician, and the ALJ supported his decision
with specific and legitimate reasons.”). The ALJ provided several specific and legitimate reasons
here.
First, the ALJ discounted Dr. Kho’s opinion on the ground that Dr. Kho “did not have the
entire record to review.” (Tr. 18.) Hesketh challenges the factual support for the ALJ’s finding,
noting that “not one physician upon whom the ALJ relied had the entire record to review.” (Pl.’s
Opening Br. at 22.) Hesketh also argues that his “lumbar spine MRI report is not even in the
record.” (Id.) In other words, Hesketh is implying that even Dr. Belzer, the medical expert who
testified at the hearing after reviewing and/or discussing the record before the ALJ, did not have
PAGE 24 – OPINION AND ORDER

the “entire record” because the lumbar spine MRI report was not included. As discussed above in
footnote three, Hesketh’s counsel was presented with the opportunity to supplement the record
and declined to so. As a result, Hesketh’s complaint that the record was incomplete lacks merit.
See Conner, 2017 WL 24621, at *1 (holding that the claimant’s argument that the record was
incomplete lacked merit because she was provided with an “opportunity to supplement the
record”). To the extent Hesketh argues that “not one physician upon whom the ALJ relied had
the entire record to review,” his contention also lacks merit because Dr. Belzer had the benefit of
reviewing all of the records that Hesketh presented to the ALJ.
Second, the ALJ discounted Dr. Kho’s opinion because it is inconsistent with his own
examination findings. (Tr. 18, noting that Dr. Kho’s “findings . . . do not support his identified
limitations”). Such a conflict is a specific and legitimate reason to discount a doctor’s opinion.
See Lawrence, 2016 WL 1445300, at *7 (“A conflict between a physician’s opinion and his
clinical findings is a specific and legitimate reason to discount the physician’s opinion.”).
Hesketh does not challenge the ALJ’s rejection of Dr. Kho’s opinion on this ground. (See Pl.’s
Opening Br. at 22-24; see also Pl.’s Reply at 11, relying on arguments presented in the opening
brief). The ALJ’s finding is support by substantial evidence, including, but not limited to, Dr.
Belzer’s testimony. (See Tr. 44-46, discussing findings that were inconsistent with Dr. Kho’s
opinions).
Third, the ALJ discounted Dr. Kho’s opinion in favor of the conflicting opinion provided
by Dr. Belzer. (See Tr. 18, assigning “significant weight” to Dr. Belzer’s opinion evidence
before assigning “no weight” to Dr. Kho’s medical source statement). Dr. Belzer’s conflicting
opinion regarding Hesketh’s functional limitations, coupled with the other reasons described
above, constitutes substantial evidence necessary to affirm the ALJ’s rejection of Dr. Kho’s

PAGE 25 – OPINION AND ORDER

medical source statement. See, e.g., Morford, 2016 WL 3092109, at *8 (stating that a nonexamining doctor’s opinion, coupled with other reasons provided by the ALJ, constituted “the
substantial evidence necessary to affirm the ALJ’s rejection” of another doctor’s opinion
evidence).
Fourth, the ALJ discounted Dr. Kho’s opinion because he only “provided one treatment
record,” and because “he has followed the claimant since 1986 but there is a lack of treatment
records supporting this.” (Tr. 18.) Substantial evidence supports the ALJ’s findings. The record
reveals the following:
•

Dr. Kho testified that he has treated Hesketh “monthly/semiannually since 1986” (Tr.
310);

•

In December 1998, over a decade before Hesketh stopped working, Dr. Kho referred
Hesketh to Oregon Health and Sciences University (“OHSU”) for a second opinion
regarding “possible peripheral neuropathy” (Tr. 208);

•

During his examination at OHSU, Hesketh did “not note that the symptoms in his
lower extremities are significantly altered by any of his activities, positions, or
particularly worse at night,” and the treating neurologist, Dr. Kimberly Goslin (“Dr.
Goslin”), ordered follow-up tests (including a lyme test, which Hoskins found was
negative in January 2013, Tr. 284), and noted “additional evaluation may be
necessary” based on the test results and that Hesketh’s “examination was remarkable
only for mild skin color changes in the toes, decreased sensation in the big toes, and
slight decrease in strength in toe flexion as well,” which Dr. Goslin stated was “a
complex and unusual constellation of symptoms not typical of a common type of
neuropathy” (Tr. 210);

PAGE 26 – OPINION AND ORDER

•

In his only treatment note on record, Dr. Kho stated that Hesketh was referred to
OHSU but was “unable to follow up with them” (Tr. 314);

•

On July 2, 2012, roughly three years after Hesketh stopped working due primarily to
idiopathic peripheral neuropathy and close to one year after the alleged onset of
disability, the Oregon Department of Human Services (“DHS”) requested that Dr.
Kho provide Hesketh’s medical records for the period covering September 1, 2008,
“to present” (Tr. 218-19);

•

On July 3, 2012, DHS learned that there were “[n]o medical records on file for this
patient” and noted that Dr. Kho could be contacted if there were “any questions” (Tr.
218; see also Ct. Tr. Index at 2, “No Medical Records, dated 07/02/2012, from Yung
K. Kho, M.D.”);

•

On March 27, 2013, Dr. Kho apparently came out of retirement and “reopened his
office for a short while” before retiring again (See Tr. 45, “ATTY: . . . This visit on
March 27, 2013 was a visit after Dr. Kho reopened his office for a short while. Dr.
Kho retired, but then came back into practice, but then retired again. In any event,
years prior to this entry of March 27, 2013, the claimant was being treated by Dr.
Kho”); and

•

On January 21, 2014, Dr. Kho completed a check-box questionnaire, opining that
Hesketh suffers from severe functional limitations due largely to idiopathic peripheral
neuropathy (Tr. 310-13).

Hesketh asserts that the ALJ erred in discounting Dr. Kho’s opinion based on the nature
of the treating relationship described and the lack of medical records from Dr. Kho (in particular,
a lack of contemporaneous clinical evidence or records covering the period between September

PAGE 27 – OPINION AND ORDER

2008 and March 2013). Hesketh maintains that the “ALJ had a duty to either subpoena Dr. Kho’s
records or obtain a rheumatological examination.” (Pl.’s Opening Br. at 22.) The Court
disagrees. The record makes clear that efforts were made to obtain treatment records from Dr.
Kho that covered the relevant period, but DHS was told there were no records. The record also
reveals that medical examiners opined that Hesketh could perform his past work despite his
impairments, autoimmune/inflammatory studies were negative or “at normal levels,” and Dr.
Steinbrenner found “[n]o evidence for rheumatoid arthritis on physical exam.” (Tr. 269, 284.)
Thus, the record was neither ambiguous nor insufficient to evaluate the severity of a rheumatoid
arthritis diagnosis.
Accordingly, the Court rejects Hesketh’s argument that the ALJ had a duty to subpoena
Dr. Kho’s treatment records or obtain a rheumatological examination. See Gilliam v. Berryhill,
No. 6:15–cv–02388–SB, 2017 WL 1364618, at *9 (D. Or. Mar. 29, 2017) (explaining that an
ALJ need not order a consultative examination where the medical opinions and findings of
record are neither “ambiguous or otherwise insufficient to render a disability decision”) (citation
omitted); Melloni v. Massanari, 98 F. App’x 65, 66 (9th Cir. 2004) (upholding rejection of
treating physician’s opinion based on, among other things, “the length, nature, and extent of the
treating relationship” and “the lack of contemporaneous clinical evidence”); see also Lee v.
Colvin, No. 6:13–cv–00809–SB, 2015 WL 3770707, at *12 (D. Or. Apr. 20, 2015) (concluding
that the ALJ provided specific and legitimate reasons for discounting a treating doctor’s opinion
evidence, and noting that it was reasonable for an ALJ to take into consideration the fact that the
treating doctor “made sweeping and unsupported conclusions” based largely on a single office
visit).

PAGE 28 – OPINION AND ORDER

In sum, the Court concludes that the ALJ did not err in discounting Dr. Kho’s opinion
because the ALJ provided several specific and legitimate reasons that were supported by
substantial evidence.
III.

MENTAL IMPAIRMENTS
Hesketh next contends that the Court should reverse and remand this case because the

ALJ failed to apply the psychiatric review technique (“PRT”) in assessing Hesketh’s mental
impairments.
It is well settled that 20 C.F.R. § 404.1520a “requires those reviewing an application for
disability to follow a special [PRT],” which consist of reviewing whether the applicant has a
medically determinable mental impairment, rating the degree of limitation in four functional
areas, assessing the severity of the mental impairment, and, if the impairment is severe,
proceeding to step three of the sequential process to determine whether the impairment meets or
equals a mental listing. Keyser, 648 F.3d at 725. However, an ALJ is not required to utilize the
PRT unless the claimant presents a colorable claim of mental impairment. See Alekseyevets v.
Colvin, 524 F. App’x 341, 343 (9th Cir. 2013) (“The ALJ’s determination that Appellant failed
to present a colorable claim of mental impairment was supported by substantial evidence in the
record, and thus utilization of the PRT was not required.”). In the Ninth Circuit, an ALJ’s failure
to utilize the PRT is subject to harmless error review. See, e.g., Spence v. Colvin, 617 F. App’x
752, 754 (9th Cir. 2015) (“Spence asserts that the ALJ erred by not addressing the limitation
factors under 20 C.F.R. § 404.1520a. To the extent that the ALJ erred in not addressing the
factors, it was harmless, because Spence has not ‘demonstrated a colorable claim of mental
impairment.’”) (citation omitted).
The parties dispute whether Hesketh has demonstrated a colorable claim of mental
impairment. Before reaching the merits of that dispute, it should be noted that Hesketh did not
PAGE 29 – OPINION AND ORDER

allege before the ALJ that any mental impairment has impacted his ability to work. (See Tr. 59,
“Is there anything else that you feel is important that we haven’t mentioned [today at the hearing]
that you would like to mention to the [ALJ] that relates to your ability to function in [a] work
setting since November of 2011? A. Well, I would like to just emphasize the necessity and the
need to keep my feet elevated. . . . It is absolutely necessary for me to keep my feet elevated the
majority of . . . every day,” Tr. 73, “You say [in your application that] you are disabled because
of rheumatoid arthritis, peripheral neuropathy, high blood pressure, back injury, knee injury, and
right shoulder injury,” Pl.’s Reply Br. at 2-3, noting that Hesketh is “not arguing that his mental
impairment ‘prevented him from working,’” nor has he explicitly stated that any mental
impairment caused him to suffer from self-reported limitations in his concentration and ability to
complete tasks). That fact detracts from Hesketh’s argument. See Spence, 617 F. App’x at 754
(holding that the “ALJ’s duty to develop the record regarding a mental impairment was not
triggered” based, in part, on the fact that the claimant “did not claim a mental impairment before
the ALJ”).
With that context in mind, the Court turns now to the evidence Hesketh cites in support
of his claim that he has demonstrated a colorable claim of mental impairment. That evidence
consists of: (1) a medication list completed by Hesketh indicating that Hoskins prescribed
medication for PTSD (Tr. 204); (2) treatment notes dated November 14, 2008 and April 2, 2009,
indicating that Dr. Mark Rondeau (“Dr. Rondeau”) assessed “[s]tress and depression” and
Hesketh later expressed a desire to adjust his depression medication (Tr. 213, 217); (3) treatment
notes from Hoskins indicating that Hesketh exhibited “positive symptoms” of PTSD and
“moderately severe depression” (Tr. 289-90); and (4) Dr. Kho’s opinion that Hesketh suffers

PAGE 30 – OPINION AND ORDER

from PTSD and anxiety, and therefore is incapable of handling even low stress work (Tr. 313).
(See Pl.’s Reply Br. at 3-4.)
Like Spence, Hesketh has not demonstrated a colorable claim of mental impairment here.
Dr. Rondeau’s medical records, which predate the alleged onset of disability by several years,
make clear that Dr. Rondeau was relying on Hesketh’s self-reports in assessing stress and
depression. (See Tr. 216-17, noting that Hesketh “report[e]d issue[s] with stress and depression,”
that he recently “separated from his wife,” and that he was “feeling quite a bit of pressure in
terms of a quota for production” at work,” and then assessing “[s]tress and depression” and
cautioning Hesketh about his use of alcohol because it “is a depressant” that would only provide
a “short term benefit”). As discussed above, Hesketh’s self-reports were properly discounted as
not entirely credible. In any event, Dr. Rondeau’s assessment predates the alleged disability
period.
Dr. Kho’s opinions also fail to support the conclusion that Hesketh has demonstrated a
colorable claim of mental impairment. The ALJ provided specific and legitimate reasons for
discounting Dr. Kho’s opinion evidence. See generally Burke v. Comm’r of Soc. Sec., No. 13–
1890, 2015 WL 769951, at *5 (D. Or. Feb. 23, 2015) (“An ALJ’s RFC need only incorporate
credible limitations supported by substantial evidence in the record and [it] must be consistent
with the restrictions identified in the medical testimony.”). Furthermore, Dr. Kho’s records offer
no findings or examination results that would support a colorable claim of mental impairment.
(See Tr. 310-16.)
Hesketh’s reliance on Hoskins’ findings and records is no more persuasive. Hoskins
discontinued Hesketh’s medication for PTSD, around the time Hesketh reported that he was
dealing with family and legal-related stressors and wished to seek alternative treatment. (Tr.

PAGE 31 – OPINION AND ORDER

301.) Additionally, in concluding that Hesketh exhibited “positive symptoms” of PTSD and
“moderately severe depression,” Hoskins relied largely on the Patient Health Questionnaire-9
(“PHQ-9”) and PTSD Checklist, Civilian Version (“PCL-C”). (See Tr. 282-83, noting that
Hesketh was administered the PHQ-9 and PCL-C, and he scored consistent with “moderate
depression” and “positive symptoms of PTSD”). These tests are dependent on the patient’s ownself reports. See Camillo v. Comm’r Soc. Sec. Admin., No. 11–1345, 2013 WL 5692435, at *25
n.19 (S.D.N.Y. Oct. 2, 2013) (noting that the PHQ–9 is a “self-administered” depression
module); Stroman v. Colvin, No. 14-03022, 2016 WL 5171534, at *8 n.28 (S.D. Tex. Feb. 17,
2016) (explaining that the PCL-C is a “self-report rating test” for PTSD that is “selfadministered”). Given the dependence of these tests on Hesketh’s own self-reports, which the
ALJ provided legally sufficient reasons for discounting, Hesketh has failed to demonstrate that
the ALJ committed harmful error by not addressing Hoskins’ mental health findings. See
McLeod, 2014 WL 3335968, at *2 (“An error by the ALJ may be deemed harmless if it is clear
that the ALJ would have reached the same result absent the error.”).4
In sum, to the extent that the ALJ erred in not applying the PRT, the Court concludes that
it was a harmless error, because Hesketh has not demonstrated a colorable claim of mental
impairment, and because it is clear that the ALJ would have reached the same result absent any
error. See Spence, 617 F. App’x at 753-54 (reaching a similar conclusion where, as here, there
was “no objective medical evidence to support [the claimant’s] suggestions of mental
4

Also supporting the conclusion that the ALJ did not commit harmful error is the fact
that Hoskins is not an acceptable medical source, because nothing in the record indicates that she
worked under or with any physician at Karen Hoskins PC. See Britton, 787 F.3d at 1013 (noting
that a “nurse practitioner could be considered a medically acceptable source where he worked so
closely under a physician that he was acting as the physician’s agent”); Farrell v. Astrue, No.
5:10–CV–284, 2011 WL 6941390, at *7 (D. Vt. Nov. 23, 2011) (noting that an ALJ is not
necessarily required to accept evidence from an “other source” (citing, inter alia, Bunnell v.
Sullivan, 912 F.2d 1149, 1152 (9th Cir. 1990))).
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limitations” and the claimant “did not assert before the agency that he was disabled based on a
mental impairment”); see also Burke, 2015 WL 769951, at *5 (noting that a claimant’s RFC
determination need only incorporate “credible limitations supported by substantial evidence in
the record”).
IV.

STEP FOUR—PAST RELEVANT WORK
Finally, Hesketh argues that the ALJ’s step four finding (past relevant work) was

erroneous and not supported by substantial evidence. The Court is not persuaded by Hesketh’s
argument.
“At step four, a claimant has the burden to prove that he cannot perform his past relevant
work ‘either as actually performed or as generally performed in the national economy.’” Stacy v.
Colvin, 825 F.3d 563, 569 (9th Cir. 2016) (citation omitted). “ALJs may use either the ‘actually
performed test’ or the ‘generally performed test’ when evaluating a claimant’s ability to perform
past work.” Id. Social security rulings explain how to apply the “actually performed test”:
“Under this test, where the evidence shows that a claimant retains the RFC to perform the
functional demands and job duties of a particular past relevant job as he or she actually
performed it, the claimant should be found to be ‘not disabled.’” SSR 82-61, 1982 WL 31387, at
*2 (1982).
Hesketh completed a work history report regarding the three positions he worked during
the past fifteen years: (1) “Tech Account Executive” in the telecommunications industry from
February 2007 to October 2009 (hereinafter, “Position One”); (2) “Technician Account
Executive” in the telecommunications industry from January 1999 to February 2007 (hereinafter,
“Position Two”); and (3) “Technician Account Executive” in the telecommunications industry
from January 1988 to April 1995 (hereinafter, “Position Three”). (Tr. 167.) In the work history

PAGE 33 – OPINION AND ORDER

report, Hesketh testified that Positions One and Two involved lifting no more than twenty
pounds, and Position Three involving lifting up to fifty pounds. (Tr. 169-71.)
During the hearing, Hesketh was questioned about the lifting demands of his past work:
Q.

Did you have difficulty carrying the items that you were
displaying for customers?

A.

Correct. Many times it’d be in big shipping containers to
show the electrical portion in some telephones, and . . . I’d
have to probably carry five or six, try to carry five or six
boxes.

Q.

Which would weigh up to how much in the way of pounds?

A.

Some of them had to be [forty] pounds, maybe.

Q.

All right. Okay.

A.

I’m not sure -....

[Q]:

And that was when you worked [in Position Three] from
1988 to 1995, that job you put down you had to lift [fifty]
pounds or more.

[A]:

Correct.

[Q]:

[And] you put down you didn’t have to lift more than
[twenty] pounds in [Positions One and Two]. And that was
from 1999 to October of 2009.

[A]:

Yeah. Yeah, . . . some of the boxes were big, you
know, over the years of me doing this. As far as
[my more recent employment, though], all electronics are
getting smaller, so my demo kit -- I don’t know. My
primary demo kit instead of some of the other systems were
probably [ten] pounds, [twenty] pounds, I’m not sure[.]

(Tr. 51-52.)

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Relying on Hesketh’s testimony and in accordance with 20 C.F.R. § 404.1520(f),5 the
ALJ’s written decision compares Hesketh’s RFC determination to the physical demands of his
past relevant work:
[T]he claimant has past relevant work as a telecommunications
technical account executive. According to the State agency
consultants, the claimant’s past work . . . is classified as . . . light
work [i.e., lifting no more than twenty pounds]. In comparing the
claimant’s [RFC] with the physical . . . demands of this work as the
claimant describes this work [in the work history report], the
undersigned finds that the claimant is able to perform it as actually
performed.
(Tr. 18) (internal citation omitted).
Hesketh contends that the ALJ’s step four finding is erroneous because he clarified
during the hearing that his past work involved lifting up to forty pounds, yet the ALJ’s RFC
determination limits Hesketh to light exertion work involving lifting no more than twenty. (Pl.’s
Opening Br. at 13.) The Commissioner counters that there is nothing in the record that indicates
that Hesketh could not return to Positions One and Two, the two most recent positions Hesketh
worked from January 1999 to October 2009, as actually performed. (Def.’s Br. at 11.) In his
reply, Hesketh argues, among other things, that his “description of the exertional demands of his
past relevant work is, at best, confusing and inadequate. At a minimum, therefore, the Court
should remand this matter to have the ALJ fully and fairly develop the record.” (Pl.’s Reply Br.
at 6.)
Further development of the record is not necessary because the record was neither
ambiguous nor otherwise insufficient to assess whether Hesketh was able to perform his past
5

Section 404.1520(f) provides: “Your impairment(s) must prevent you from doing your
past relevant work. If we cannot make a determination or decision at the first three steps of the
sequential evaluation process, we will compare our [RFC] . . . with the physical . . . demands of
your past relevant work. If you can still do this kind of work, we will find that you are not
disabled.” 20 C.F.R. § 404.1520(f) (internal citation omitted).
PAGE 35 – OPINION AND ORDER

relevant work. See Gilliam, 2017 WL 1364618, at *9 (explaining that an ALJ need not develop
the record unless it “ambiguous or otherwise insufficient to render a disability decision”).
Contrary to Hesketh’s suggestion, his testimony was not confusing or inadequate. His testimony
clearly indicates that his past relevant work involved lifting up to forty to fifty pounds until 1999.
Thereafter, the electronics used in the position were “getting smaller,” which is why Hesketh’s
primary demo kit later weighed between ten and twenty pounds. (Tr. 51-52.)
In sum, the ALJ’s finding that Hesketh could perform his past work was supported by
substantial evidence. Hesketh failed to meet his burden at step four, and he has failed to point to
any credible evidence that would lead the Court to conclude that the ALJ should have further
developed the record.
CONCLUSION
For the reasons stated, the Court affirms the Commissioner’s decision because it is free of
legal error and supported by substantial evidence.
IT IS SO ORDERED.
DATED this 23rd day of May, 2017.

STACIE F. BECKERMAN
United States Magistrate Judge

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