Gibson v. Commissioner Social Security Administration
Filing
26
OPINION AND ORDER. Signed on 08/18/2015 by Judge Malcolm F. Marsh. (pvh)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
KAREN L. GIBSON
Case No. 3:14-cv-01217-MA
Plaintiff,
v.
COMMISSIONER OF SOCIAL
SECURITY ADMINISTRATION
Defendant.
GEORGE J. WALL
Law Offices of George J. Wall
1336 E. Burnside, Suite 130
Portland, OR 97214
Attorney for Plaintiff
JANICE E.
Assistant
1000 S.W.
Portland,
HEBERT
United States Attorney
Third Ave., Suite 600
OR 97204
MARTHA A. BODEN
Social Security Administration
Off ice of the General Counsel
701 Fifth Ave., Suite 2900, M/S 221A
Seattle, WA 98104-7075
Attorneys for Defendant
1 - OPINION AND ORDER
OPINION AND ORDER
MARSH, Judge
Plaintiff Karen L. Gibson seeks judicial review of the final
decision
of
the
Commissioner
of
Social
Security
denying
her
application for Disability Insurance Benefits (DIB} under Title II
of the Social Security Act,
42 U.S.C.
jurisdiction pursuant to 42 U.S.C.
§§
§§
401-403. This Court has
405(g}. For the reasons that
follow, I affirm the final decision of the Commissioner.
FACTUAL AND PROCEDURAL BACKGROUND
Plaintiff protectively filed an application for DIB on August
10,
2011,
alleging disability beginning January 1,
2010, due to
neck pain; back pain; depression; post-traumatic stress disorder
(PTSD}; attention-deficit hyperactivity disorder (ADHD}; colitis;
anxiety;
and
arthritis.
Plaintiff
meets
the
insured
status
requirements for a DIB application through May 31, 2012.
Plaintiff's
claims
were
denied
initially
and
upon
reconsideration. Plaintiff filed a request for a hearing before an
administrative law judge (ALJ}. An ALJ held a hearing on June 11,
2013, 1 at which plaintiff appeared with her attorney and testified.
A vocational expert, Fred Cutler, also appeared at the hearing and
testified.
On
June
1
20,
2013,
the
ALJ
issued
an
unfavorable
The Commissioner provided a supplemental transcript of the
oral hearing on June 11, 2013. However, the record contains a
November 6, 2012 hearing transcript involving another claimant.
See Transcript of Record (ECF No. 9) ("Tr•) at 42-74. All
citations to plaintiff's June 11, 2013 hearing will be to the
supplemental record. See Tr. 832-863 (ECF No. 10).
2 - OPINION AND ORDER
decision.
The
Appeals
Council
denied
plaintiff's
request
for
review, and therefore, the ALJ's decision became the final decision
of the Commissioner for purposes of review.
Born in 1954, plaintiff was 58 years old on the date of the
ALJ's unfavorable decision.
Plaintiff completed several years of
college. Plaintiff has past relevant work as a childcare monitor
and nursery school attendant.
THE ALJ'S DISABILITY ANALYSIS
The
Commissioner
has
established
a
five-step
process for determining whether a person is disabled.
Yuckert,
482 U.S. 137, 140 (1987); 20 C.F.R.
§
sequential
Bowen v.
416.920. Each step
is potentially dispositive. The claimant bears the burden of proof
at steps one through four.
Admin., 574 F. 3d 685,
Valentine v.
Commissioner Soc.
Sec.
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 January 1, 2010. At step two,
the ALJ found that plaintiff had the following severe impairments:
polysubstance abuse
opiates,
inhalants,
hypnotics); ADHD;
(including present and past use of heroin,
cocaine,
sedatives,
anxiolytics,
and
PTSD; anxiety disorder; borderline personality
3 - OPINION AND ORDER
disorder; back strain and pain; and obesity. At step three, the ALJ
found that plaintiff's impairment or combination of impairments,
did not meet or medically equal a listed impairment.
Based
on
all
of
the
impairments,
including
plaintiff's
substance use disorders., the ALJ found that plaintiff is capable of
a residual functional capacity of medium work as defined as 20
C.F.R.
404.1567(c) but with the following additional limitations.
§
Plaintiff may frequently stoop,
kneel crouch, and crawl, but may
never climb ladders, ropes, and scaffolds. She is fully capable of
learning,
remembering,
and
performing
repetitive
one and two-step work
tasks,
simple,
involving
routine,
and
simple
work
instructions, which are performed in a low stress work environment,
defined as one in which there is a regular production pace,
workplace
changes,
Plaintiff
may
and
have
no
"over
occasional
the
and
shoulder"
superficial
few
supervision.
contact
with
supervisors and coworkers, but should have minimal to no contact
with the public. Due to a combination of severe physical and mental
impairments, and the impact of polysubstance abuse, she is unable
to perform routine tasks on a regular and continuing basis, eight
hours a day, five days a week, for a 40-hour workweek or equivalent
schedule.
At
step
four,
the ALJ
found
that
plaintiff is
unable
to
perform her past relevant work. At step five and considering all of
her impairments including substance abuse, the ALJ concluded that
4 - OPINION AND ORDER
considering
residual
plaintiff's
functional
significant numbers
age,
education,
capacity,
work
there are no
experience,
jobs that exist
and
in
in the national economy that plaintiff can
perform.
An otherwise disabled claimant may not receive benefits if
drug addition or alcoholism is a contributing factor material to
the
determination
11328 (a) (3) (J).
that
she
ALJ
The
is
disabled.
properly
42
repeated
U.S.C.
the
§
disability
determination analysis to determine whether he would still find
plaintiff
disabled
if
she
stopped
using
drugs.
20
C.F.R.
§
404.1535; The ALJ found that if plaintiff abstained from substance
abuse, she would have the residual functional capacity to perform
medium work as defined in 20 C.F.R.
frequently stoop,
ladders,
kneel,
crouch,
§
404.1567(c) except
and crawl,
she may
but may never climb
ropes, and scaffolds. Plaintiff is capable of learning,
remembering, and performing simple, routine, and repetitive one and
two-step work tasks, involving simple work instructions, which are
performed in a
low stress work environment.
Plaintiff may have
occasional and superficial contact with supervisors and coworkers,
but should have minimal to no contact with the public. Tr. 27.
At step four without consideration of drug use, the ALJ found
that plaintiff is unable to perform her past relevant work. At step
five and excluding plaintiff's substance abuse, the ALJ concluded
that considering plaintiff's age, education, work experience, and
5 - OPINION AND ORDER
residual
functional
capacity,
there
are
jobs
that
exist
in
significant numbers in the national economy that plaintiff can
perform such as hand packager; agricultural produce sorter; and day
worker. Tr. 33.
The ALJ concluded that plaintiff's drug use is a contributing
factor
material
plaintiff
would
Accordingly,
to
the
not
be
because
determination
disabled
substance
if
use
of
she
disability
ceased
disorder
is
because
using
a
drugs.
contributing
factor material to the determination of disability, plaintiff has
not been under a disability under the Social Security Act from
January 1, 2010, through the date of the decision.
ISSUES ON REVIEW
On appeal to this court,
errors were committed:
plaintiff contends the following
( 1} the ALJ erred in evaluating treating
physician's opinion and (2) the ALJ's decision is not supported by
substantial evidence when considering the new opinion evidence
submitted to the Appeals Council.
STANDARD OF REVIEW
The district court must affirm the Commissioner's decision if
the
Commissioner
applied
the
proper
legal
standards
and
findings are supported by substantial evidence in the record.
U.S.C.
§
405(g};
Berry v.
Astrue,
622 F.3d 1228, 1231
the
42
(9th Cir.
2010). "Substantial evidence is more than a mere scintilla but less
than a preponderance; it is such relevant evidence as a reasonable
6 - OPINION AND ORDER
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 court must weigh all the evidence, whether it supports or
detracts from the Commissioner's decision. Martinez 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). If the evidence supports the
Commissioner's conclusion, the Commissioner must be affirmed; "the
court
may
not
substitute
its
judgment
for
that
of
the
Commissioner." Edlund v. Massanari, 253 F.3d 1152, 1156 (9th Cir.
2001) .
DISCUSSION
I.
The ALJ Did Not Err in Assessing Treating Source Opinion
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 v. Colvin, 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 laboratory diagnostic techniques and is not
inconsistent with
record,
631
the other substantial evidence in
[the)
case
[it will be given) controlling weight." Orn, 495 F.3d at
(internal
quotations
7 - OPINION AND ORDER
omitted) (alterations
in
original);
20
C.F.R.
§
404.1527(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
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.
Plaintiff
legitimate
argues
reasons
the
for
ALJ
failed
discounting
to
the
provide
specific
opinions
of
and
treating
physician Charles Elder, M.D. Plaintiff contends that Dr. Elder's
opinions
regarding her
functioning
should be
credited as
true
because Dr. Elder was able to review her extensive medical records,
and the objective medical evidence supports his opinions. Dr. Elder
began treating plaintiff in February 2011; plaintiff reported low
back pain in April 2011. Tr. 458, 457. I disagree.
Dr.
Elder
provided
two
opinions
regarding
plaintiff's
functioning throughout the relevant period. First, in a March 28,
2013 letter, Dr. Elder opined that plaintiff has chronic back pain
that
would prevent
her
from
sitting
for more
than
45 minutes
without a ten minute break to stand. Tr. 785. Dr. Elder also noted
that due to her back, hip, and right foot pain, plaintiff is unable
8 - OPINION AND ORDER
to stand for more than three hours in an eight hour workday.
Dr.
Elder
plaintiff
further
would
occasionally.
opined that
be
unable
Finally,
Dr.
to
as
a
lift
Elder
result
more
of
than
generally
her
Id.
back pain,
twenty
opined
pounds
that
"the
combination of plaintiff's physical and mental conditions would
create
a
significant
barrier
to
her
sustaining
competitive
employment at eight hours a day, five days a week." Id.
Second,
in a May 19,
2013 physical assessment,
Dr.
Elder
opined that plaintiff can sit for approximately four hours and
stand and walk two hours in an eight hour workday. Tr.
Elder
also
opined
that
plaintiff
would
require
786.
Dr.
alternating
positions, would need a two hour unscheduled break, and is capable
of a low stress job. Tr. 787-88. Dr. Elder further assessed that
plaintiff could occasionally perform certain postural activities
such
as
squatting,
bending
at
the
waist,
balancing, and stooping. Tr. 788. Finally,
crawling,
climbing,
Dr. Elder opined that
plaintiff would likely be absent from work two days a month due to
her symptoms. Tr. 789.
Because Dr. Elder's opinions were contradicted, 2 the ALJ was
required to provide specific and legitimate reasons,
backed by
substantial evidence, to reject his opinion. Bayliss, 427 F.3d at
2
In a December 12, 2011 physical RFC assessment, Alnoor
Virji, M.D., a nonexamining physician opined that plaintiff can
lift and carry 25 pounds frequently and 50 pounds occasionally,
and sit, walk, and stand for six hours each in an eight-hour
workday. Tr. 131-32.
9 - OPINION AND ORDER
1216. In the decision, the ALJ gave Dr. Elder's opinions "limited
weight" because the opinions are:
medical
and
treatment
record;
unsupported by the objective
inconsistent
with
other medical
opinions in the record; and lack an objective explanation. Having
carefully reviewed the record, I conclude that the ALJ's reasoning
is supported by substantial evidence.
In the decision, the ALJ indicated that the objective medical
record does
not
support
Dr.
Elder' s
opinions.
For example,
an
August 2010 x-ray of the thoracic spine revealed mild arthritic
lipping with no other notable abnormalities. Tr. 481. A September
2011 x-ray of the spine revealed mild to moderate degenerative
changes. Tr.
482. An April 2011 x-ray of the left foot documented
mild hypertrophic changes of the distal first and fifth metatarsal
and mild degenerative changes of the first MTP joint. Tr. 569.
Similarly, objective findings in the medical record are not
consistent with Dr. Elder's opinions. A February 2010 examination
was entirely normal with a smooth and coordinated gait. Tr. 467. In
a June 2010 examination,
plaintiff's treating doctor noted good
range of motion in the cervical and thoracic spine, some diffuse
tender points, intact upper and lower extremity strength, normal
gait,
and mild tenderness of the
right
foot.
Tr.
463.
Another
examination in September 2011 also revealed normal findings. Tr.
509. In fact, plaintiff's treatment notes revealed generally normal
10 - OPINION AND ORDER
objective findings. See generally Tr. 462, 475, 531, 569, 592, 609,
682.
Moreover, Dr. Elder's own treatment notes do not support his
opinions. For example, in February 2011, Dr. Elder noted a normal
examination. Tr.
458.
In April 2011,
Dr. Elder noted a nontender
. back and a chronic deformity of the left small toe. Tr. 457. After
the April 2011 examination, plaintiff did not see Dr. Elder until
January
2013
for
a
rash.
examination with Dr.
Elder,
Tr.
647.
Plaintiff
had
in May 2013. At the time,
one
more
Dr.
Elder
documented tenderness in the back area mostly on the right side and
a positive patrick maneuver in the hip examination. Tr. 822. His
limited examination findings do not support his opinions. 3
Contrary
to
plaintiff's
argument,
the
ALJ
comprehensive discussion of the medical evidence.
Behalf of Vincent
v.
Heckler,
739 F.2d 1393,
provided
a
See Vincent on
1394-95
(9th Cir.
1984) (the ALJ need not discuss all evidence presented but rather
must
explain
why
"significant
probative
evidence
has
been
rejected"). While plaintiff provides an alternative interpretation
of the medical evidence"
3
I
conclude that the ALJ made
logical
Plaintiff argues that Dr. Elder's four year treatment
relationship with plaintiff supports giving his opinion "great
weight." While length of treatment relationship is one reason to
accord a physician's opinion "great weight," frequency of
examinations is also an important factor to consider in weighing
treating physician opinions. 20 C.F.R. 404.1527{c)(2)(i).
Notably, Dr. Elder only examined plaintiff on three occasions for
back pain in a three year span.
11 - OPINION AND ORDER
inferences from the record to support his conclusions. Because the
ALJ's interpretation is rational and is supported by substantial
See
evidence in the record as a whole, it will not be disturbed.
e.g., Molina v. Astrue, 674 F.3d 1104, 1111 (9th Cir. 2012) (ALJ's
findings
must
be
upheld
if
they
are
supported
by
reasonable
inferences drawn from the record) .
Next, the ALJ discredited Dr. Elder's opinions on the basis
that they are inconsistent with other supported medical opinions in
the record. Specifically, the ALJ gave "significant weight" to the
medical opinion of examining physician Peter Pfeiffer, M.D. because
his
examination
September
2011
findings
support
his
opinion.
consultative examination,
normal grip strength,
coordination,
Dr.
Tr.
31.
In
a
Pfeiffer observed
and a negative straight leg
raise test. Tr. 484-85. Dr. Pfeiffer also noted full active range
of motion in all joints of the body, including the back and right
foot
and
bilaterally.
very
Dr.
mild
lumbar
Pfeiffer
paraspinous
diagnosed
a
muscle
mild
tenderness
lumbar
strain
and
"extremely mild early osteoarthritis" in the right foot and opined
that both cause little to no limitation.
Tr.
485.
Dr.
Pfeiffer
specifically assessed that plaintiff can lift or carry 25 pounds
continuously; sit without limitation; stand or walk for eight hours
in
an
eight-hour
workday;
crouch, crawl or kneel. Id.
12 - OPINION AND ORDER
and
frequently
climb,
bend,
stoop,
Plaintiff argues that the ALJ's reliance on Dr.
opinion
to
discount
Specifically,
plaintiff
Dr.
plaintiff
could
only
Elder's
argues
lift
opinions
that
up
to
Dr.
25
is
Pfeiffer
pounds.
Pfeiffer's
misplaced.
opined
Plaintiff
that
further
asserts that the ALJ assessed in the RFC finding that plaintiff
could
lift
up
to
50
pounds,
which
is
inconsistent
with
Dr.
Pfeiffer's assessment. Plaintiff's argument fails.
Plaintiff misstates Dr. Pfeiffer's opinion of her ability to
lift
weight.
The
ALJ's
RFC
finding
is
consistent
with
Dr.
Pfeiffer' s assessment. Dr. Pfeiffer opined that plaintiff "can lift
or
carry
25
Similarly,
pounds
pounds
continuously."
Tr.
485
(emphasis
added}.
the ALJ found that plaintiff can lift and carry 25
frequently
and
50
pounds
Dictionary of Occupational Titles
occasionally.
(DOT}
Tr.
27.
The
defines continuously or
constantly as an activity performed two-thirds or more in an eighthour workday and frequently as an activity performed one-third to
two-thirds in an eight-hour workday.
Occupations
Defined in
Titles, Appendix C,
assessment
exceeds
carrying 25 pounds.
the
(1993).
the
RFC
Indeed,
Selected Characteristics of
Revised Dictionary of Occupational
Here,
Dr.
finding
Dr.
Pfeiffer' s lift and carry
of
frequently
lifting
and
Pfeiffer did not opine that 25
pounds is the maximum weight plaintiff is able to lift and carry.
Because Dr. Pfeiffer's well-supported opinion is consistent with
13 - OPINION AND ORDER
the ALJ's RFC finding,
the ALJ properly relied on it to discount
Dr. Eider's opinions.
Moreover,
the ALJ appropriately
relied on the
opinion of
nonexamining physician, Alnoor Virji, M.D. In a December 12, 2011
physical RFC assessment, Dr. Virji opined that plaintiff is capable
of performing medium work as defined in 20 C.F.R.
Tr.
131-32.
Dr.
§
404.1567(c).
Virj i's opinion is consistent with the medical
record, including the objective findings and Dr. Pfeiffer's opinion
and examination. See generally Tr. 458, 481-82, 484-85, 531, 569,
592,
647.
Despite plaintiff's assertion,
the ALJ appropriately
relied in part on Dr. Virji's opinion because it is supported by
substantial
evidence
such
as
objective
medical
findings.
See
Andrews v. Shalala, 53 F. 3d 1035, 1041 (9th Cir. 1995) (the opinion
of a nonexamining physician "may serve as substantial evidence when
[it is) supported by other evidence in the record" and consistent
with it).
Finally, the ALJ discredited Dr. Eider's opinions because he
did
not
provide
an
objective
basis
for
his
opinions.
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.
Tonapetyan,
242 F.3d at 1149. As discussed above,
Dr. Eider's opinions are not supported by his objective examination
findings nor by any other medical findings in the record. In fact,
Dr.
Elder does not cite to any medical findings to support his
·14 - OPINION AND ORDER
opinions. Tr. 785-86. While plaintiff's pain symptoms may support
Dr. Elder's opinions, the ALJ found plaintiff not credible. To be
plaintiff
sure,
does
not
now
challenge
the
ALJ's
adverse
credibility determination. The ALJ cited to plaintiff's continued
work activity, a prior conviction for theft,' and a mild treatment
regime as reasons to discount her severe pain allegations. I have
carefully reviewed the record in its entirety, and conclude that
the
ALJ's
determination
is
readily
evidence in the record. Accordingly,
supported
by
substantial
the ALJ properly discounted
Dr. Elder's opinions on this ground.
In summary, I conclude that the ALJ did not err in evaluating
Dr.
Elder' s
opinions
and has
provided specific
and
legitimate
reasons backed by substantial evidence in the record as a whole,
for according his opinions limited weight.
II.
New Evidence Does Not Undermine the ALJ's Decision
This court has a duty to consider the entire record before it,
including new evidence submitted to the Appeals Council and made
part
of
the
overall
administrative
record.
"When
the
Appeals
Council considers new evidence in deciding whether to review a
decision
of
the
ALJ,
4
that
evidence
becomes
part
of
the
See Tonapetyan, 242 F.3d at 1148 ("ALJ may use ordinary
techniques of credibility evaluation, such as considering the
claimant's reputation for truthfulness"); Richey v. Colvin, No. C
12-4988 LB, 2013 WL 5228185, at *20 (N.D. Cal. Sept. 17,
2013) ("in finding a claimant's testimony not credible, an ALJ may
rely on convictions for crimes of moral turpitude, including
robbery").
15 - OPINION AND ORDER
administrative record, which the district court must consider when
reviewing
the
Commissioner's
final
decision
for
substantial
evidence." Brewes v. Commissioner of Social Sec. Admin., 682 F.3d
1157,
1163
(9th Cir.
2012);
see
Tackett,
180
F. 3d at
1097-98
(holding that a court reviewing the Commissioner's decision must
consider the record as a whole).
After
the
ALJ
issued
his
decision,
plaintiff
submitted
additional evidence to the Appeals Council. Specifically, the new
evidence consisted of an August 5, 2013 Physical Evaluation Report
from examining physician,
Harold G.
Lee,
M.D.
Tr.
825-831.
The
Appeals Council considered the new evidence, made it a part of the
medical record, but denied review of the ALJ's decision. Tr. 1-5.
In
his
examination
fibromyalgia,
report,
Dr.
Lee
diagnosed
history of degenerative joint disease,
history
of
history of
chronic back pain, and right foot pain. Tr. 829. Dr. Lee endorsed
Dr. Elder's March 28, 2013 opinion, which indicated that plaintiff
could only sit for 45 minutes before needing a ten minute break to
stand. Tr. 830. Dr. Lee also opined that plaintiff can stand for
three hours in an eight-hour workday and can lift up to 20 pounds
occasionally. Id. Plaintiff argues that the Appeals Council erred
in declining to review the ALJ' s decision and for holding that
substantial evidence supports the ALJ's decision.
contends
that
Dr.
Lee's
examination
report
Plaintiff also
undermines
the
substantial evidence supporting the ALJ's decision. I disagree.
16 - OPINION AND ORDER
In adopting Dr. Elder's March 2013 opinion, Dr. Lee's opinion
is inconsistent with two other medical opinions and examination
findings
in
the medical
Pfeiffer
and
Virji' s
record.
opinions
As
are
previously discussed,
well-supported
by
findings and treatment notes in the medical record,
Drs.
objective
and the ALJ
properly relied on these opinions to discount both of Dr. Elder's
opinions.
See generally Tr.
458,
481-82,
484-85,
531,
569,
592,
647.
Contrary to plaintiff's assertion,
consistent with
Dr.
Pfeiffer.
Dr.
Dr. Lee's opinion is not
Pfeiffer did not opine that
plaintiff cannot lift more than 25 pounds nor did he opine that
plaintiff is limited to light work. Dr. Pfeiffer specifically found
that plaintiff can lift and carry 25 pounds continuously,
which
indicates how often during an eight-hour workday plaintiff can lift
25
pounds.
As
I
noted
above,
the
ability
to
lift
25
pounds
continuously means plaintiff can lift 25 pounds two-thirds or more
of
the
eight-hour
workday.
This
limitation
exceeds
Dr.
Lee's
opinion that plaintiff can only lift 20 pounds. In addition,
Dr.
Pfeiffer found that plaintiff can sit without limitation and stand
or walk for eight hours in an eight-hour workday; these limitations
greatly exceed Dr. Lee's assessment, namely that plaintiff can only
sit for 45 minutes and stand and walk for only three hours. Thus,
Dr.
Pfeiffer's
opinion
is
wholly
inconsistent
opinion and supports the ALJ's RFC finding.
17 - OPINION AND ORDER
with
Dr.
Lee's
Moreover, Dr. Lee's opinion is unsupported by his examination
findings. Specifically, Dr. Lee noted that plaintiff does not have
"any definite clinical evidence of abnormal neurological findings"
or "any presence of discogenic pain or radiculopathy." Tr. 830. In
fact,
Dr.
example,
Lee noted re la ti vely normal examination findings.
For
Dr. Lee observed intact reflexes, good range of motion,
intact motor strength and sensation, and limping due to right foot
pain. Tr. 829. Dr. Lee noted significant tenderness along the upper
trapezius, splenius capitus, supraspinatus, rhomboid, suboccipital
area, posterior-superior iliac crest, and other areas of the body.
Id.
To the extent that plaintiff attempts to allege the existence
of fibromyalgia as a severe impairment,
not sufficient.
Dr. Lee's examination is
In order to diagnose fibromyalgia,
College of Rheumatology
(ACR)
the American
lists the diagnostic criteria as
"patient reports of pain when at least 11 of 18 points cause pain
when palpated by the examiner's thumb." Jordan v. Northrop Grumman
Corp.
Welfare Benefit Plan,
370 F.3d 869,
872
(9th cir.
2004),
overruled on other grounds; Rollins v. Massanari, 261 F.3d 853, 855
(9th Cir. 2001). As noted above,
tenderness. " 5 While
a
June
15,
Dr. Lee only noted "significant
2010 examination by physician's
assistant, Laura Tull Kok documented some diffuse tender points on
5
I also note that there is no indication in Dr. Lee's
medical report that he is a rheumatologist, a specialist in the
treatment of fibromyalgia.
18 - OPINION AND ORDER
the
scapular borders bilaterally,
strain.
To be
sure,
the
Ms.
Kok assessed a
ALJ considered Ms.
Kok' s
thoracic
examination
findings in assessing plaintiff's RFC. Tr. 30.
In sum, after reviewing the entire record, including Dr. Lee's
report
and
opinion,
I
find
that
the
ALJ' s
decision
is
still
supported by substantial evidence in the record. Accordingly, the
new evidence does not necessitate reversal under Brewes.
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 August, 2015.
Malcolm F. Marsh
United States District Judge
19 - OPINION AND ORDER
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