Bahles v. Commissioner Social Security Administration

Filing 15

Opinion and Order. Signed on 4/4/2017 by Judge Malcolm F. Marsh. (ma2)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON

PAMELA J. BAHLES
Plaintiff,

v.
COMMISSIONER SOCIAL SECURITY
ADMINISTRATION,
Defendant.

ROBYN M. REBERS
P.O. Box 3530
Wilsonville, OR 97070
Attorney for Plaintiff
BILLY J. WILLIAMS
United States Attorney
District of Oregon
JANICE E. HEBERT
Assistant United States Attorney
1000 S.W. Third Ave., Suite 600
Portland, OR 97204-2902
LISA GOLDOFTAS
Special Assistant United States Attorney
Office of the General Counsel
Social Security Administration
701 Fifth Ave., Suite 2900
Seattle, WA 98104
Attorneys for Defendant

1 - OPINION AND ORDER

Case No. 3: 16-cv-00766-MA
OPINION AND ORDER

MARSH, Judge
Plaintiff Pamela J. Bahles seeks judicial review of the final decision of the Commissioner
of Social Security denying her application for a period of disability and disability insurance benefits
("DIB") under Title II of the Social Security Act, 42 U.S.C. §§ 401-403. This Court has jurisdiction
pursuant to 42 U.S.C. § 405(g). For the reasons that follow, the decision of the Commissioner is
affinned.

PROCEDURAL AND FACTUAL BACKGROUND
Plaintiff protectively filed her application for a period of disability and DIB benefits on
September 27, 2012, alleging disability beginning July 5, 2001, due to back pain, neck pain, and hip
and leg problems. Tr. Soc. Sec. Admin. R. ("Tr.") at 12, 67, 69, ECFNo. 11. Plaintiffs claims were
denied initially and upon reconsideration.

Plaintiff filed a request for a hearing before an

administrative law judge ("ALJ"). The ALJ held ahearing on November 14, 2014, at which Plaintiff
appeared with her attorney and testified. A vocational expert, Lynn A. Jones, also appeared at the
hearing and testified. On December 19, 2014, the ALJ issued an unfavorable decision. The Appeals
Council denied Plaintiffs request for review, and therefore, the ALJ's decision became the final
decision of the Commissioner for purposes of review.
Plaintiff was born in 1953, and was 47 years old on the alleged onset of disability date and
53 on her date last insured. Plaintiff completed high school, completed two years of college, and has
an associate's degree in hospitality management. Tr. 53, 157. Plaintiff has past relevant work as an
office manager, motel manager, and restaurant hostess/manager. Tr. 20.

THE ALJ'S DISABILITY ANALYSIS
The Commissioner has established a five-step sequential process for dete1mining whether

2 - OPINION AND ORDER

a person is disabled. Bowen v. Yuckert, 482 U.S. 137, 140 (1987); 20 C.F.R. §§ 404.1520, 416.920.
Each step is potentially dispositive. The claimant bears the burden of proof at steps one through
four. See Valentine v. Commissioner Soc. Sec. Admin., 574 F.3d 685, 689 (9th Cir. 2009); Tackett

v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999). At step five, the burden shifts to the Commissioner
to show that the claimant can do other work which exists in the national economy. Hill v. Astrue,
698 F.3d 1153, 1161 (9th Cir. 2012).
The ALJ found that Plaintiff meets the insured status requirements tlu·ough December 31,
2006. At step one, the ALJ found that Plaintiff has not engaged in substantial gainful activity since
her alleged onset of disability through her date last insured. At step two, the ALJ found that Plaintiff
had the following severe impaitments: degenerative disc disease, mild foraminal steno sis, and carpal
tunnel syndrome. At step three, the ALJ found that Plaintiffs impairments, or combination of
impairments, did not meet or medically equal a listed impaitment.
The ALJ assessed Plaintiff with a residual functional capacity ("RFC") to perform light work
with additional limitations: Plaintiff can lift and carry up to 20 pounds occasionally and 10 pounds
frequently; she can push and pull up to 20 pounds occasionally and 10 pounds frequently; she can
sit six out of eight hours and stand and walk up to six hours total out of eight hours; she can
occasionally reach overhead bilaterally; she can occasionally climb, balance, stoop, kneel, crouch
and crawl; she can never work at unprotected heights or around heavy machinery; she can.never
operate a motor vehicle as part of her day-to-day job; she must avoid concentrated exposure to
extreme cold and vibrations; and she can only occasionally perform bilateral fingering. Tr. 16.
At step four, the ALJ found that Plaintiff is unable to perfotm her past relevant work. At step
five, the ALJ found that considering Plaintiffs age, education, work experience, and residual

3 - OPINION AND ORDER

functional capacity, jobs exist in significant numbers in the national economy that Plaintiff can
perfo1m, including such representative occupations as: greeter, gate guard, and usher. Accordingly,
the ALJ concluded that Plaintiff has not been under a disability under the Social Security Act from
July 5, 2001 through December 31, 2006.

ISSUES ON REVIEW
On appeal to this comt, Plaintiff contends the following errors were committed: (1) the ALJ
improperly evaluated her testimony; (2) the ALJ improperly evaluated the opinion ofRobe1t Hander,
M.D.; and (3) the RFC fails to incorporate her lifting, canying, and fingering functional limitations.
The Commissioner argues that the ALJ' s decision is supported by substantial evidence and is free
oflegal enor. Alternatively, the Commissioner contends that even if the ALJ ened, Plaintiffhas not
demonstrated harmful enor.

STANDARD OF REVIEW
The district court must affirm the Commissioner's decision if the Commissioner applied
proper legal standards and the findings are supported by substantial evidence in the record. 42
U.S.C. § 405(g); Beny v. Astrue, 622 F.3d 1228, 1231 (9th Cir. 2010). "Substantial evidence is
more than a mere scintilla but less than a preponderance; it is such relevant evidence as a reasonable
mind might accept as adequate to suppo1t 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. Garrison v. Colvin, 759 F.3d 995, 1009 (9th Cir. 2014);

lvfartinez 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
4 - OPINION AND ORDER

Commissioner's conclusion, the Commissioner must be affirmed; "the co mt may not substitute its
judgment for that of the Commissioner." Edlundv. lvfassanari, 253 F.3d 1152, 1156 (9th Cir. 2001 );
Garrison, 759 F.3d at 1010.

DISCUSSION
I.

The ALJ Did Not Err in Discounting Plaintiffs Credibility
To dete1mine whether a claimant's testimony regarding subjective pain or symptoms is

credible, an ALJ must perfo1m two stages of analysis. 20 C.F.R. § 404.1529. The first stage is a
threshold test in which the claimant must produce objective medical evidence of an underlying
impairment that could reasonably be expected to produce the symptoms alleged. 1vfolina v. Astrue,
674 F.3d 1104, 1112 (9th Cir. 2012); Tommasetti v. Astrue, 533 F.3d 1035, 1039 (9th Cir. 2008).
At the second stage of the credibility analysis, absent affomative evidence of malingering, the ALJ
must provide clear and convincing reasons for discrediting the claimant's testimony regarding the
severity of the symptoms. Carmickle v. Commissioner Soc. Sec. Admin., 533 F.3d 1155, 1166 (9th
Cir. 2008); Lingenfelter v. Astrue, 504 F.3d 1028, 1036 (9th Cir. 2007).
The ALJ must make findings that are sufficiently specific to pe1mit the reviewing court to
conclude that the ALJ did not arbitrarily discredit the claimant's testimony. Ghanim v. Colvin, 763
F.3d 1154, 1163 (9th Cir. 2014); Brown-Hunter v. Colvin, 806 F.3d 487, 493 (9th Cir. 2015).
Factors the ALJ may consider when making such credibility dete1minations include the objective
medical evidence, the claimant's treatment history, the claimant's daily activities, and
inconsistencies in testimony. Ghanim, 763 F.3d at 1163; Tommasetti, 533 F.3d at 1039.
The parties disagree on the proper standard for evaluating credibility. Plaintiff contends that
this comt should apply Social Security Ruling ("SSR") 16-3p to the ALJ's analysis of Plaintiffs
5 - OPINION AND ORDER

credibility. SSR 16-3p became effective March 28, 2016. The ALJ's decision in this case was
issued December 19, 2014. According to Plaintiff, SSR l 6-3p should be applied retroactively to the
ALJ's analysis of her credibility. Plaintiff argues that SSR 16-3p eliminated the use of the te1m
"credibility" and contends that the ALJ erred by making a generalized character evaluation. Pl.' s
Br. at 13, ECFNo. 12. The Commissioner contends that SSR 16-3p is not applicable because it was
not in effect at the time of the ALJ' s December 19, 2014 decision, and applies only to decisions
issued after March 28, 2016. Defs Br. at 6-7, ECF No. 13. The Commissioner is correct.
I have previously determined that SSR l 6-3p does not apply retroactively because 42 U.S.C.

§ 405(g) does not contain any express authorization from Congress allowing the Commissioner to
engage in retroactive rulemaking. Smith v. Colvin, No. 6:15-cv-01625-MA, 2017 WL 388814, at
*4 n.2 (D. Or. Jan. 27, 2017). See, e.g., Wright v. Colvin, No. 15-cv-02495-BLF, 2017 WL 697542,
*9 (N.D. Cal. Feb. 22, 2017) (holding SSR 16-3p does not apply retroactively); Thayer v. Colvin,
No. 2:16-cv-00545-DWC, 2017 WL 132450, at *7 (W.D. Wash. Jan. 13, 2017) (same). I adhere to
that rationale here.
At the November 21, 2014 hearing, Plaintiff testified that she can no longer work because
she has lower back problems that prevent her from doing repetitive motions, and she is unable to turn
her neck from side to side. Tr. 30. Plaintiff testified that her carpal tunnel causes cramping in the
palms of her hands, her wrists hurt, and she has shooting pain up her harm, and tingling and
numbness in her finge1iips. Tr. 34. Plaintiff stated that because of her carpal tunnel, she can no
longer use the computer for longer than 10 minutes. Tr. 35. Plaintiff described that her carpal tunnel
symptoms have remained the same since 2002. Tr. 35-36.
Plaintiff testified that she can walk for a half mile, and that her back pain on a good day is

6 - OPINION AND ORDER

a three or four on a 10 point scale, and on a bad day is an eight or nine. Tr. 36-37. Plaintiff stated
that she has approximately 10 to 12 bad days per month. Tr. 37. Plaintiff testified that she takes
oxycodone and flexeril for her pain on the bad days, and that medication brings her pain down to a
five, but medications interfere with her concentration. Tr. 43-44, 57. Plaintiff stated that she can
stand in one position for 15 to 20 minutes and can sit for 30 minutes with her arms in front of her,
but typing would exacerbate muscle spasms in her shoulders and arms. Tr. 47, 54-55. Plaintiff
described that she wears wrist braces and six months earlier, she started using a cane for balance, and
that the cane and braces were not prescribed by a doctor. Tr. 33, 48.
Plaintiff stated that she last saw her doctor about her back pain in January or February of
2014. Tr. 41. Plaintiff testified that from 2008 to 2014 she did not have any insurance and was
without pain medication for her back. Tr. 42. Plaintiff described that she recently began physical
therapy because she again has health insurance. Tr. 39.
Plaintiff testified that in a typical day, she usually watches television and will occasionally
stretch her back. Tr. 44-45. Plaintiff described that reading a book is difficult because it bothers her
neck. Plaintiff stated that she can vacuum, but her husband does most of the housekeeping chores.
Plaintiff described that she can help with making meals, but has difficulty chopping. Tr. 46.
Plaintiff stated that she will go grocery shopping with her husband on occasion. Tr. 49.
Plaintifftestified that in 2001 she was employed as an office manager, and that she perfo1med
data entry, filed papers, answered phones, greeted customers, and was on her feet 50 percent of the
time. Tr. 52. Plaintiff described that the most weight she had to lift was 15 pounds. Tr. 52.
In a November 2012 Function Report, Plaintiff stated that she is unable to sit or stand for
long periods of time, and cannot lift more than five pounds. Tr. 183. Plaintiff stated that any type

7 - OPINION AND ORDER

ofrepetitive movement causes pain her back, neck and other areas for days. Tr. 183. Plaintiff stated
that her grown daughter comes by the house to assist every other week. Tr. 184. Plaintiff described
that she is no longer able to engage any outdoor activities due to pain, and that the pain causes her
to toss and turn all night. Tr. 184. Plaintiff reported that she has no difficulty with self-care. Tr.
185. Plaintiff described that she leaves the house once per day, is able to grocery shop in stores or
online, and can ride in a car. Tr. 186. Plaintiff described that she visits with family weekly, but does
not engage in other social activities or hobbies due to pain. Tr. 187-88.
In the decision, the ALJ offered several specific, clear, and convincing reasons for
discounting Plaintiffs testimony. Brown-Hunter, 806 F.3d at 488-89. First, the ALJ detailed that
Plaintiff has had large gaps in treatment. An ALJ may consider an unexplained or inadequately
explained failure to seek treatment when assessing a claimant's credibility. 1Wolina, 674 F.3d at
1113; Tommasetti, 533 F.3d at 1039. As the ALJ discussed, Plaintiff alleges disability beginning
in April 2001 due to pain in her neck, back and arms, however, Plaintiff did not seek treatment for
those conditions for over one year, despite seeking treatment for other conditions. Tr. 17. It is
permissible to rely on failure to report symptoms when assessing credibility. Greger v. Barnhart,
464 F.3d 968, 972 (9th Cir. 2006). Indeed, the ALJ cited a July 27, 2001 treatment note revealing
that Plaintiff complained of two issues only - a skin tag she wanted removed, and concerns about
possible glaucoma and a request for medical marijuana. Tr. 330. As the ALJ accurately indicated,
Plaintiff did not mention back, neck or arm pain at that visit- notably, the only treatment note from
2001 in the record before me. Tr. 330. The ALJ's findings are supp01ied by substantial evidence.
Accordingly, the ALJ could reasonably infer that Plaintiffs back, neck and arm pain was not as
severe as alleged in 2001 and appropriately discounted her credibility on this basis.

8 - OPINION AND ORDER

· Second, the ALJ discounted Plaintiffs subjective allegations of disabling pain because she
responded favorably to treatment. Tommasetti, 533 F.3d at 1039 (finding a favorable response to
conservative treatment is a valid credibility consideration); Parra v. Astrue, 481 F.3d 742, 750-51
(9th Cir. 2007) (same). As the ALJ accurately noted, the record reflects that in 2002, Plaintiff
received various fom1s of treatment for her neck and back pain. The ALJ cited treatment notes from
Plaintiffs treating physician, Ellen Madnick, M.D., who recommended physical therapy for her
complaints of mid-back pain in June 2002. Tr. 329-30. Treatment notes from June through
September 2002 reveal that despite physical therapy, Plaintiff complained of persistent neck pain,
arm pain and tingling, making it difficult for her to work and sleep. Tr. 323-29. Dr. Madnick sent
Plaintiff for nerve conduction studies completed on October 7, 2002, which demonstrated moderate
to severe nerve entrapment at both wrists, worse on the right, and diagnosed carpal tuilllel syndrome.
Tr. 321-23, 397. Plaintiff was a candidate for carpal tuilllel release surge1y, but she elected to pursue
her neck pain with another physician. Tr. 399-400. Additionally, a CT of Plaintiffs spine
demonstrated facet degeneration resulting in mild right C5-6 foraminal stenosis. Tr. 241.
As the ALJ discussed, Plaintiff tried various forms of treatment, including chiropractic
adjustments, massage therapy, acupressure, and medications, and she underwent successful
denervation treatments in early 2003. Tr. 244. To be sure, the ALJ cited treatment notes from David
M. Sibell, M.D. Plaintiff reported to Dr. Sibell that the tingling in her right aim had begun to
"significantly subside" and that she had received about "40% relief from her medications," including
vicodin, cyclobenzaprine, atld paxil, but that she was having persistent pain at the cervical midline.
Tr. 244. Dr. Sibell performed a series of diagnostic facet medial branch blocks at C4, C5, and C6
begiillling in Januaty 2003, followed by cervical denervation at C4-5 in April 2003. Tr. 277-78. As
9 - OPINION AND ORDER

the ALJ carefully detailed, by May 2003, Plaintiff repo1ied "significant improvement" in pain
control, a "perceived increase in range of motion" and had "greatly increased her activity level." Tr.
18, 391. Plaintiff repotied her pain was a one out of 10, and Dr. Sibell recommended she continue
with physical therapy and noted that Plaintiff had an "excellent response" to the denervation. Tr.
391. And, as the ALJ conectly summarized, in June 2003, Plaintiff continued to repo1i better than
75 percent relief from her cervical discomfo1i, and that she was only taking ibuprofen for pain. Tr.
392. At that visit with Dr. Sibell, Plaintiff complained of low back pain, and indicated her desire
to undergo lumbar medical branch blocks. Tr. 393. Dr. Sibell perfonned a series oflumbar branch
blocks at L4 and LS in July 2003, followed by lumbar denervation treatment on August 13, 2003.
Tr. 285-88. Contrmy to Plaintiffs suggestion, she repo1ied positive results with 75 to 100 percent
reduction in pain with these procedures. Tr. 286, 289. As the ALJ discussed, Plaintiff reported her
low back pain had "improved greatly" and reported "[s]he is able to do all the work she could not
perform before." Tr. 18, 353. Treatment notes cited by the ALJ reflect that Plaintiffrepo1ied her
pain was at a zero on a 10 point scale, and that she "never felt like this before." Tr. 353.
As the ALJ accurately indicated, Plaintiff reported in October 2003 that her lumbar pain was
gone, that she felt good and positive about her care, and that her neck pain had improved with the
denervation and physical therapy. Tr. 350-51. The ALJ noted that records showed Plaintiff had
excellent range of motion in her neck, with mild pain in her right shoulder, and that overall, her
condition had improved significantly. Tr. 18, 351. The ALJ indicated that Plaintiff was discharged
from pain management in October 2003 due to the stable nature of her medications and pain. Tr.
18, 352-53. In a November 2003 treatment note, Plaintiff again indicated her pain was significantly
improved and stabilized. Tr. 18, 348-50.

10 - OPINION AND ORDER

In her briefing to this co mi, Plaintiff contends that her relief from the denervation treatments
lasted only six months, and that she could not undergo additional denervation treatments because
her physicians did not recommend them, and that the side effects of her treatments were so horrible,
she would not elect to undergo additional treatments. Pl.'s Br. at 15; Tr. 32. Plaintiffs argument
lacks record support. Plaintiff declined a referral back to the Pain Management clinic for her neck
pain in 2004. Tr. 338. Additionally, Plaintiffs contention regarding experiencing adverse side
effects from the denervation treatments is undermined by the record before me. At no point in her
follow up appointments with various providers did Plaintiff discuss negative side effects of her
treatment, which is contrary to her hearing testimony. Tr. 32. Rather, as the ALJ discussed, Plaintiff
reported only positive results about her care and results. Tr. 18, 353. Moreover, based on her
positive cervical results, Plaintiff underwent lumbar denervation. Thus, the ALJ could reasonably
conclude that Plaintiffs treatments for her neck, back and arm pain from 2001 through 2003 were
successful and discounted her allegations of disabling pain on this basis. The ALJ' s findings are
wholly supp01ied by substantial evidence in the record and the reasonable inferences drawn
therefrom and will not be disturbed. See lvfolina, 674 F.3d at 1111.
Third, the ALJ found Plaintiffs allegations of disabling back, neck, and aim pain not fully
credible based on the conservative treatment she received after 2003. Evidence of conservative
treatment "is sufficient to discount a claimant's testimony regarding the severity of an impairment."

Parra, 481 F.3d at 751. As the ALJ discussed, despite complaints of increased neck pain in March
2004, Plaintiff was taking only occasional vicodin for pain, and occasional flexeril. Tr. 332, 336.
And, as the ALJ noted, in May 2004, Plaintiff rep01ied continued neck and back pain, but felt they
were under fairly good control by using occasional vicodin, ibuprofen, flexeril, and medical

11 - OPINION AND ORDER

manJuana. Tr. 334-35. The ALJ accurately noted that Plaintiffrepo1ied less tender points in her
shoulders as well as occasional spasms in her neck and back, but that Plaintiff was "coping fairly
well." Tr. 18, 335. The ALJ discussed that in October 2004, Plaintiff reported to Dr. Madnick that
she was doing well, except for her neck pain with spasms. Plaintiff reported that she takes flexeril
and that it helps somewhat. Tr. 338. Plaintiff stated she was "not interested in going back to the
Pain Clinic again for that." Tr. 338. Dr. Madnick prescribed flexeril for her neck spasms. Tr. 339.
As the ALJ indicated, Plaintiff was not treated again for her allegedly disabling conditions
until May 5, 2005, when Plaintiff complained of severe pain between her scapulae that made her left
arm weak. Tr. 18, 341. Plaintiffrepmied that the pain had subsided to her usual level of two to three
on a 10 point scale. Tr. 341. As the ALJ correctly indicated, Plaintiff denied dropping things,
numbness or tingling, and on examination, she had no tenderness or no pain in her .scapulae and
reported her symptoms were improving. Tr. 341-42. At a follow-up visit on May 12, 2005, Plaintiff
was having a ve1y low level muscle spasm between her scapulae.

Tr. 339.

Dr. Madnick

recommended an over-the-counter therma-care patch. Tr. 340. The ALJ's findings that Plaintiff
received only conservative treatment following her 2003 denervations is wholly supported by
substantial evidence, and the ALJ appropriately discounted Plaintiffs credibility on this basis.
Fomih, the ALJ found Plaintiff less than fully credible because of the long gap in seeking
treatment that puts the alleged severity of her impairments into question. Tr. 18. "The ALJ is
permitted to consider lack of treatment in his credibility dete1mination." Burch v. Barnhart, 400
F.3d 676, 681 (9th Cir. 2005). As the ALJ correctly indicated, Plaintiff did not seek treatment for
over two years, from Febrnaiy 2006 to June 2008. To be sure, Plaintiff was treated by Dr. Madnick
on February 24, 2006 for neck pain. At that visit, Plaintiff repo1ied to Dr. Madnick that her neck
12 - OPINION AND ORDER

pain was about the same, was not completely relieved by flexeril, and that medical marijuana helped
with her neck pain. Tr. 346-4 7. Dr. Madnick refilled her flexeril prescription and signed her
medical marijuana fo1m. Tr. 348. The ALJ noted that Plaintiff reported in June 2008 that she had
not seen a doctor for two years, but had been "toughing out" her back pain, which she described as
averaging a three on a I 0 point scale, with occasional flares to a 10. Tr. 18, 214. The ALJ discussed
that on examination, there were no physical demonstrations of pain or limitations, and Plaintiff had
no difficulty ambulating, sitting or performing her activities of daily living. Tr. 18, 214.
The ALJ also discussed that although Plaintiff testified that she lost her insurance in 2008,
she did not follow through on her carpal tunnel release surge1y while she \Vas insured. The ALJ
could reasonably infer from this information that her carpal tunnel was not as limiting as alleged.
On the record before me, the ALJ reasonably discounted Plaintiffs credibility based on her failure
to seek treatment. Tr. 19; see Chaudh1y v. Astrue, 688 F.3d 661, 672 (9th Cir. 2012) (holding ALJ
appropriately discounted claimant's credibility for failing to seek treatment).
Fifth, the ALJ discounted Plaintiffs credibility because it is inconsistent with her activities
of daily living. Tr. 19. The ALJ detailed that Plaintiff was able to take care of all her personal
needs, prepare meals, perform light household chores, drive, shop, visit with friends and family, and
spend time on the computer. On the record before me, I conclude that the ALJ could find Plaintiffs
various daily activities inconsistent with her allegations of total disability. ]yfolina, 67 4 F .3d at 1113.
Even ifthe ALJ erred in discounting her credibility on this basis, the remaining reasons cited by the
ALJ readily provide the necessary specific, clear and convincing reasons. Accordingly, the ALJ's
adverse credibility dete1mination was sufficiently suppmied by the record, and free of harmful legal
error.

Molina, 67 4 F .3d at 1114-15 (holding that comi will not reverse for errors that are

13 - OPINION AND ORDER

inconsequential to the ALJ's ultimate conclusion).

II.

The ALJ Did Not Err in Evaluating the Medical Evidence
In general, the opinion of a treating physician is given more weight than the opinion of an ,

examining physician, and the opinion of an examining physician is afforded more weight than the
opinion of a nonexamining physician. Ghanim, 763 F.3d at 1160; Garrison, 759 F.3d at 1012; Orn
v. As true, 495 F.3d 625, 632 (9th Cir. 2007). "If a treating physician's opinion is well-supported by

medically acceptable clinical and laborat01y diagnostic techniques and is not inconsistent with the
other substantial evidence in [the] case record, [it will be given] controlling weight." Orn, 495 F.3d
at 631 (internal quotations omitted)(alterations in original); 20 C.F.R. § 416.927( c). To reject the
uncontradicted opinion of a treating physician, the ALJ must provide "clear and convincing reasons
that are supported by substantial evidence." Bayliss v. Barnhart, 427 F.3d 1211, 1216 (9th Cir.
2005).
If the treating physician's opinion is contradicted, the ALJ must consider how much weight

it is entitled to considering the factors in 20 C.F.R. § 404.1527(c)(2-6). The factors include the
length of the treatment relationship, the frequency of examination, the nature and supportability of
the opinion, and its consistency with other evidence in the record as a whole. 20 C.F.R. §
404.1527(d)(2-6); Ghanim, 763 F.3d at 1161. If a treating or examining doctor's opinion is
contradicted by another doctor's opinion, it may be rejected by specific and legitimate reasons.
Taylor v. Commissioner Soc. Sec. Admin., 659 F.3d 1228, 1232 (9th Cir. 2011). However, "[t]he

ALJ need not accept the opinion of any physician, including a treating physician, if that opinion is
brief, conclusory, and inadequately supported by clinical findings." Thomas v. Barnhart, 278 F.3d
947, 957 (9th Cir. 2002).
14- OPINION AND ORDER

An ALJ satisfies 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, 759 F.3d at 1012 (internal quotations omitted). "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
Plaintiff contends that the ALJ's analysis of Dr. Hander's opinion is not supported by
substantial evidence. Dr. Hander is an agency nonexamining physician who reviewed available
records and prepared a Residual Functional Capacity Assessment dated Januaiy 9, 2013. In that
assessment, Dr. Hander opined that Plaintiff could lift and carry 10 pounds occasionally, and 10
pounds frequently; could stand, sit and walk for six hours in an eight hour day; has occasional
postural limitations; is limited to occasional overhead reaching bilaterally; and is limited to
occasional fingering, and can perfo1m unlimited handling and feeling. Tr. 70-71. Dr. Hander
explained that Plaintiff has overhead reaching and feeling limitations based on her chronic neck pain
and bilateral median nerve compression in her wrists. Tr. 70-71. Dr. Hander also opined that
-

'

Plaintiff should avoid concentrated exposure to extreme cold and vibrations, and hazards. Tr. 71-72.
Dr. Hander also opined with these limitations, Plaintiff is capable of performing her past relevant
work as actually performed. Tr. 73.
In the decision, the ALJ discussed Dr. Hander's opinion, and gave it some weight. 1 The ALJ
found that his opinions are generally consistent with the record, but that his opinion that Plaintiff is
1

I note that Plaintiff does not challenge the ALJ's rejection of an August 2008 opinion
provided by Katherine Fisher, D.0., who opined that Plaintiff was unable to work due to pain in
her back and neck. Tr. 19, 213. Plaintiff also does not challenge the ALJ's assessment of the
July 16, 2013 opinion ofnonexamining physician Linda L. Jensen. Pl.'s Br. at 6, ECF No. 12;
Tr. 75-78.
15- OPINION AND ORDER

limited to a sedentmy exertional limitation prior to her date last insured was not suppo1ted. Tr. 20.
The ALJ discounted this portion of Dr. Hander's opinion specifically because Plaintiffs upper
extremity strength was generally maintained throughout the time period at issue, and because she had
a nonnal gait. Tr. 20.
The ALJ disagreed with Dr. Hander's opinion that Plaintiff was limited to sedentary work.

See 20 C.F.R. § 404. l 567(a)-(b) (defining sedentmywork as the ability to occasionally lift and ca11'y
10 pounds and defining lift work as the ability to frequently lift 10 pounds and occasionally lift 20
pounds). The ALJ cited multiple treatment records conflicting with Dr. Hander's opinion that
Plaintiff is limited to occasionally lifting and canying 10 pounds where Plaintiff reported good
strength in her upper extremities and had a no1mal gait. For example, the ALJ cited a July 2002
treatment note indicating that Plaintiff had full strength in her arms, and a September 2002 treatment
note observing the same. Tr. 325, 327. The ALJ cited a November 2002 record from Dr. Burchiel,
to whom Plaintiff was refe11'ed for her carpal tunnel, whose examination revealed 5/5 strength in her
bilateral upper extremities, except her grip strength on the right which was 4+/5, and that she had
a normal gait. Tr. 399. The ALJ cited records from Janumy 2003 revealing that Plaintiff had motor
sensation was 5/5 in her upper extremities, mtd that her overall mobility was good, she had a normal
gait, and could perform heel and toe walking without difficulty. Tr. 365. The ALJ also cited records
from March 2004 showing that Plaintiff had good strength in her upper extremities. Tr. 337.
Additionally, the ALJ's finding in this regard is bolstered by other substantial evidence in
the record as a whole. For instance, as the ALJ discussed when discounting Plaintiffs credibility,
Plaintiff repo1ted to Dr. Sibell in June 2003 that her pain was significantly improved following her
cervical denervation, and in August 2003 she was able to do all the work she was unable to do before

16- OPINION AND ORDER

and rated her pain at a zero following her lumbar denervation. Tr. 353. And, as discussed at length
above, from 2004 through her date last insured, Plaintiff maintained a conservative course of
treatment, with infrequent doctors visits, followed by a two-year gap in treatment from February
2006 to June 2008. The ALJ also indicated that Plaintiff did not pursue further treatment for her
carpal tunnel syndrome, from which the ALJ reasonably inferred that the condition was not as severe
as alleged. Thus, the ALJ's findings are supported by substantial evidence in the record as a whole.
Plaintiff argues that the ALJ' s citation to her upper extremity strength fails to amount to
substantial evidence for discounting Dr. Hander's opinion. However, Plaintiff does not identify any
credited evidence establishing that she is limited to sedentmy exertion. As the ALJ aptly noted, the
record does not contain any opinions from treating physicians indicating that Plaintiff is limited to
lifting and canying 10 pounds. Tr. 19. "Even when the evidence is susceptible to more than one
rationale interpretation, we must uphold the ALJ's findings if they are suppo1ied by inferences
reasonably drawn from the record." lvfolina, 674 F.3d at 1111. Accordingly, I conclude the ALJ did
not en· in discounting Dr. Hander's opinion regarding Plaintiffs lifting and carrying restrictions.'

III.

The ALJ Diel Not Err in Assessing Plaintiff's RFC
The RFC is the most a claimant can do despite his limitations and must include all credited

limitations supported by substantial evidence in the record. See Bayliss, 427 F.3d at 1217.
Similarly, the hypothetical question posed to the VE need only include those functional limitations
supported by substantial evidence. Id. Where the ALJ credits the opinion of a physician, the ALJ
must translate the claimant's condition as described in the physician's opinion into functional
2

Plaintiff suggests that her past relevant work was mischaracterized at the initial level of
her DIB application. Pl. Br. at 6, ECF No. 12. Plaintiff does not identify an error by the ALJ in
evaluating her past relevant work at hearing, therefore, I decline to address this issue.
17 - OPINION AND ORDER

limitations in the RFC. Stubbs-Danielson v. Astrue, 539 F.3d 1169, 1174 (9th Cir. 2008).
Plaintiff contends that the ALJ e1Ted by failing to include her 10 pound lifting and canying
limitation into the RFC, and that she is limited to occasional handling. Plaintiff argues that she has
been diagnosed with moderate to severe nerve entrapment at both wrists, and diagnosed with carpal
tunnel. Plaintiff contends that her testimony is consistent with these diagnoses, and in conjunction
with Dr. Hander's opinion, supports limiting her to lifting and canying 10 pounds frequently and
occasional handling. According to Plaintiff, when the additional limitations are including in the
RFC, she is unable to perform the jobs identified by the VE, and that remand is appropriate to
determine whether Plaintiff possesses any transferrable skills. I disagree.
As discussed above, the ALJ appropriately discounted Dr. Hander's opinion that Plaintiff is
limited to lifting and canying 10 pounds frequently, and therefore was not required to include that
limitation into the RFC. Moreover, the ALJ appropriately discounted Plaintiffs subjective
symptoms, and specifically discounted the severity of her carpal tunnel based on her lack of
treatment, and thus was not required to incorporate her subjective limitations.
Accordingly, the RFC includes all those limitations credited by the ALJ, is supported by
substantial evidence in the record, and is a reasonable interpretation of the record. Britton v. Colvin,
787 F.3d 1011, 1013 (9th Cir. 2015). Therefore, the ALJ did not el1' in fashioning the RFC, and the
subsequent hypothetical posed to the VE included all credited limitations. Osenbrock v. Apfel, 240
F.3d 1157, 1165 (9th Cir. 2001) (holding an ALJ may "limit a hypothetical to those impairments that
are supported by substantial evidence in the record.")

Ill/
/Ill
18- OPINION AND ORDER

CONCLUSION

For the reasons set forth above, the Commissioner's final decision denying benefits to
Plaintiff is AFFIRMED. This action is DISMISSED.
IT IS SO ORDERED.
DATED this

4

dayofAPRIL,2017.

Malcolm F. Marsh
United States District Judge

19 - OPINION AND ORDER