Riggs v. Commissioner Social Security Administration

Filing 22

OPINION and ORDER - For the reasons stated, the ALJ's decision was based on substantial evidence and free of harmful legal error. Therefore, the Commissioner's decision is AFFIRMED and this case is hereby DISMISSED. IT IS SO ORDERED. DATED this 8th day of January, 2018, bu United States Magistrate Judge John V. Acosta. (peg)

Download PDF
IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF OREGON DAVID BRIAN RIGGS, Plaintiff, Case No. 3:16-cv-01626-AC OPINION AND ORDER vs. NANCY A. BERRYHILL, Acting Commissioner of Social Security, 1 Defendant. MERRILL SCHNEIDER Schneider, Kerr & Robichaux P.O. Box 14490 P01tland, OR 97293 Attorney for plaintiff BILLY J. WILLIAMS United States Attorney District of Oregon JANICE E. HEBERT Assistant United States Attorney 1 Nancy A. Berryhill is now the Acting Commissioner of Social Security. Pursuant to Rule 25(d) of the Federal Rules of Civil Procedure, Nancy A. Berryhill is substituted for Acting Commissioner Carolyn W. Colvin as the defendant in this suit. 1000 SW Third Ave., Suite 600 Pmtland, OR 97201-2902 LARS J. NELSON Special Assistant United States Attorney Office of the General Counsel Social Security Administration 701 Fifth Ave., Suite 2900 MIS 221A Seattle, WA 98104-7075 Of Attorneys for defendant ACOSTA, Magistrate Judge: David B. Riggs ("plaintiff'') seeks judicial review of a final decision bythe Commissioner of Social Security ("Commissioner") denying his application for Disability Insurance Benefits ("DIB") under Title II of the Social Security Act ("Act"). This court has jurisdiction to review the Commissioner's decision pursuant to 42 U.S.C. § 405(g). Based onacarefulreviewoftherec ord, the Commissioner's decision is affirmed. Procedural Background Plaintiff applied for DIB on August 16, 2012, alleging disability as ofJuly 1, 2009, due to pain in his left shoulder, right knee, right wrist, lower extremities, and back; as well as high blood pressure, diabetes, and depression. (Tr. 65, 67, 170.) His application was denied initially and upon reconsideration. (Tr. 65, 78.) A hearing convened on December 1, 2014, before an Administrative Law Judge ("ALJ"). (Tr. 35-63 .) On December 19, 2014, the ALJ issued a decision finding plaintiff not disabled. (Tr. 17-28.) Plaintiff timely requested review ofthe ALJ's decision and, after the Appeals Council denied review, plaintiff filed a complaint in this comt. (Tr. 1-3.) Factual Background Born on Janumy 28, 1960, plaintiffwas 49 years old on the alleged onset date of disability and 54 years old on the date ofthe hearing. (Tr. 35, 67 .) Plaintiff attended school through the eighth grade. (Tr. 171.) Standard ofReview The comt must affitm the Commissioner's decision ifit is based on proper legal standards and the findings are suppmted by substantial evidence in the record. Hammockv. Bowen, 879 F.2d 498, 501 (9th Cir. 1989). Substantial evidence is "more than a mere scintilla. It means such relevant evidence as a reasonable mind might accept as adequate to suppo1t a conclusion." Richardson v. Perales, 402 U.S. 389, 401 (1971) (citation and internal quotations omitted). The court must weigh "both the evidence that supports and detracts from the [Commissioner's] conclusions." Martinez v. Heckler, 807 F.2d 771, 772 (9th Cir. 1986). "Where the evidence as a whole can suppmt eithera grant or a denial, [acomt] may not substitute [its] judgment for the ALJ's." Massachi v. Astrue, 486 F.3d 1149, 1152 (9th Cir. 2007) (citation omitted). The initial burden ofproofrests upon the claimant to establish disability. Howard v. Heckler, 782 F .2d 1484, 1486 (9th Cir. 1986). To meet this burden, the claimant must demonstrate an "inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impaitment which can be expected ... to last for a continuous period of not less than 12 months." 42 U.S.C. § 423(d)(l)(A). The Commissioner has established a five-step sequential process for dete1mining whether a person is disabled. Bowen v. Yuckert, 42 U.S. 137, 140 (1987); 20 C.F.R. § 404.1520. First, the Commissioner dete1mines whether a claimant is engaged in "substantial gainful activity;" if so, the claimant Page 3 - OPINION AND ORDER is not disabled. Yuckert, 482 U.S. at 140; 20 C.F.R. § 404.1520(b). At step two, the Commissioner resolves whether the claimanthas a "medically severe impailment or combination of impairments." Yuckert, 482 U.S. at 140-41; 20 C.F.R. § 404.1520(c). If not, the claimant is not disabled. Yuckert, 482 U.S. at 141. At step three, the Commissioner evaluates whether the claimant's impairment meets or equals "one ofa number oflisted impairments that the Secretary acknowledges are so severe as to preclude substantial gainful activity." Id.; 20 C.F.R. § 404.1520( d). If so, the claimant is presumed disabled; if not, the Commissioner proceeds to step four. Yuckert, 482 U.S. at 141. At step four, the Commissioner determines whether the claimant still can perfo1m "past relevant work." Yuckert, 482 U.S. at 141; 20 C.F.R. § 404.1520(£). Ifthe claimant can work, she is not disabled; if she cannot perform past relevant work, the burden shifts to the Commissioner. Yuckert, 482 U.S. at 141. At step five, the Commissioner must establish that the claimant can perform other work existing in significant numbers in the national or local economy. Id. at 142; 20 C.F.R. § 404.1520(g). If the Commissioner meets this burden, the claimant is not disabled. 20 C.F.R. § 404.1566. The ALJ's Findings At step one, the ALJ found plaintiffhadnot engaged in substantial gainful activity since the alleged onset date. (Tr. 19.) At step two, the ALJ found plaintiff had the following severe impairments: degenerative disc disease; osteoarthritis ofthe left shoulder; tendinitis ofthe left shoulder; and obesity. Id. At step three, the ALJ found that the plaintiff did not have an impairment or combination of impailments thatmet or medically equaled one ofa number ofimpailments that are so severe as to preclude Page 4 - OPINION AND ORDER substantial gainful activity. (Tr. 20.) Accordingly, the ALJ continued the sequential evaluation process to determine how plaintiffs medical limitations affected her ability to work. The ALJ resolved that plaintiffhad the following residual functional capacity ("RFC"): [He can] perform light work ... except he [can] lift and/or carry 20 pounds frequently and 10 pounds occasionally. He can sit for six hours in an eight-hour workday. He can stand and/or walk for up to six hours in an eight-hour workday. His ability to push or pull, including the operation ofhand or foot controls, was unlimited, except for the limitation as to lifting and/or carrying. He can frequently do overhead reaching with the left upper extremity. He can climb ramps or stairs frequently. He can occasionally climb ladders, ropes, or scaffolds. He can balance frequently. He can occasionally stoop, kneel, crouch, or crawl. (Tr. 21.) At step four, the ALJ found plaintiffwas not capable ofpe1forminghis past relevant work as a trim press operator. (Tr. 21.) At step five, the ALJ found that plaintiff retained the capacity to perform the following representative occupations: security guard, companion, and food assembler. (Tr. 27.) Accordingly, the ALJ concluded instead that plaintiff was not disabled under the Act. (Tr. 27-28.) Discussion Plaintiffargues that: (1) the Appeals Council e1rnneously refused to make post-hearing evidence pmt ofthe admillistrative record; (2)the ALJ e!Ted by eIToneously discrediting his symptom testimony; (3) the ALJ erred by rejecting the opinion of exmnining physician Lisa 0 Ison, D. 0.; and (4) the ALJ eITed by failing to carry the burden of proof at step five. I. New Evidence As a threshold matter, Plaintiffargues that evidence submitted to the Appeals Council post-hearing Page 5 - OPINION AND ORDER which was not integrated into the official administrative record should be considered by the is Court because it was etrnneouslyrejected by the Appeals Council.2 Plaintiffs Opening Brief ("Pl.' s Br.") 14 (ECF No. 15). Plaintiffs argument fails. This Court has no jurisdiction to review the actions of the Appeals Council. Taylor v. Comm'r of Soc. Sec. Admin., 659 F.3d 1228, 1231 (9th Cir. 2011). Plaintiff's contention that"[e]vidence submitted to the Appeals Council must be considered in determining whether the Commissioner's decision is supported by substantial evidence is incomplete as a statement of law. The Appeals Council will consider post-hearing evidence "only where it related to the period on or before the date of the hearing decision." Brewes v. Comm 'r a/Soc. Sec. Admin., 682 F.3d 1157, 1162 n.3 (9th Cir. 2012). "Ifyou submit evidence which does not relate to the period on or before the date of the hearing decision, the Appeals Council will explain why it did not accept the additional evidence .... " 20 C.F .R. § 404.976(b )(I). Thus, only evidence which the Appeals Council deems relates to the adjudicatotyperiod must be "considered" in evaluating the record as a whole. Here, the Appeals Council declined to "review" or "consider" the new evidence because it found the evidence was not material to the relevant time period, and therefore also declined to incotporate it into the administrative record (in order to determine ifthe record as a whole supported the non-disability decision). (Tr. 2.); see 20 C.F.R. § 404.981; see also, Will v. Colvin, No. 3:14-cv-00754-JE, 2016 WL 3450842, at *7-8 (D. Or. May 18, 2016). Because the evidence at issue was not made part ofthe administrative record as it was in Brewes, it is not properly before the Court, and therefore the Coutt is not compelled to consider it. Plaintifffurther argues that the Court "could consider a physician's opinion, which was rejected by 2 The Appeals Council indicated the evidence at issue is a February 11, 2015 medical source statement from a Dr. Brent Hoffman. (Tr. 2). However, because the report was not included in the official administrative record, it was not available to the Court for review. Page 6 - OPINION AND ORDER the Appeals Council, to determine whether, in light of the record as a whole, the ALJ's decision was supported by substantial evidence .... " Pl.'s Br. 14 (citingRamirezv. Shala/a, 8 F.3d 1449,1451-54 (9th Cir. 1993). Ramirez, however, is inapposite. There, the Appeals Council declined to reverse the ALJ' s decision after reviewing the record as a whole, including the post-hearing evidence, which the Appeals Council had made pmtofthe record. Ramirez, 8 F.3d at 1451-52. In contrast, here the Appeals Council dete1mined the evidence was not material, stated its rationale, declined to "consider" or "review" the evidence, and did not include it in the record. Accordingly, the evidence in question is not before the Court in this matter, and plaintiff has not argued a valid recourse for appending the record. 3 As such, Plaintiffs arguments pursuant to Brew es lack merit. II. Plaintiffs Testimony The Ninth Circuit relies on a two-step process for evaluating the credibility ofa claimant's testimony about the severity and limiting effect of the stated symptoms. Vasquezv. Astrue, 572 F.3d 586, 591 (9th Cir. 2009) (citingLingenfelterv. Astrue, 503 F.3d 1028, 1035-36 (9th Cir. 2007)). "First, the ALJ must determine whether the claimant has presented objective medical evidence of an underlying impairment which could reasonably be expected to produce the pain or other symptoms alleged." Lingerifelter, 503 F .3d at 1036 (citation and quotation marks omitted). Second, absent evidence ofmalingering, "the ALJ can reject the claimant's testimony about the severity ofher symptoms only by offering specific, clear and convincing reasons for doing so." Smolen v. Chafer, 80 F.3d 1273, 1281 (9th Cir. 1996). Further, an 3 Under "sentence six" of 42 U.S.C. § 405(g), the Court may remand a matter based on new evidence not entered into the administrative record by the Appeals Council where: (1) new evidence is not merely cumulative; (2) it is material; and (3) good cause is shown. Plaintiff does not argue the evidence in question should be included in the record pursuant to sentence six, and therefore this issue is waived. Indep. Towers of Wash. v. Wash., 350 F.3d 925, 929 (9th Cir. 2003) (citation omitted). Page 7 - OPINION AND ORDER ALJ "may consider ... ordinary techniques ofcredibility evaluation, such as the claimant's reputation for lying, prior inconsistent statements concerning the symptoms, ... [or] other testimony that appears less than candid .... " Id. at I 284. However, a negative credibility finding made solely because the claimant's symptom testimony "is not substantiated affirmatively by objective medical evidence" is legally insufficient. Robbins v. Soc. Sec. Ad.min., 466 F.3d 880, 882 (9th Cir. 2006). Nevertheless, the ALJ's credibility finding may be upheld even ifnot all ofthe ALJ' s rationales for rejecting claimant testimony are upheld. See Batson v. Comm 'r Soc. Sec. Adm in., 359 F.3d 1190, 1197 (9th Cir. 2004). Plaintifftestified thathe is no longer able to work because ofvarious pains in his left shoulderor neck, left arm, wrists, and lower back. (Tr. 40-41, 46-47, 56-58.) He stated that on a good day he can stand for three to four hours, but only for half an hour on a bad day. (Tr. 47-48.) Plaintiff further stated he was able to lift a gallon of milk with either hand, butthathis atm strength would give out after several hours of repeated lifting. (Tr. 49-50., 55-56.) He explained that he was unsure ifhe would be able to climb a flight of stairs, and did not feel he could jog. (Tr. 58.) Plaintiff described difficulty grasping due to carpal tunnel syndrome in his right wrist. (Tr. 39-40.) He recounted performing some side jobs such as operating a weed-eater, but noted he would "pay for it in pain" later. (Tr. 38.) Plaintiff also testified thathe cannot fully extend his right knee, which causes him to limp. (Tr. 45-46.) The ALJ found plaintiff's statements "concerning the intensity, persistence, and limiting effects" ofhis symptoms not entirely credible. (Tr. 22.) One rationale the ALJ provided for finding plaintiff's symptom allegations not fully credible was that they contradicted his reported activities of daily living ("ADLs"). (Tr. 25.) Consideration of AD Ls is a valid basis for discrediting symptom allegations in theNinth Circuit. Orn v. Astrue, 495 F.3d 625, 639 Page 8 - OPINION AND ORDER (9th Cir. 2007). Plaintiff contends that the ALJ failed to explain how plaintiffs "modest daily activities" were inconsistent with his claimed limitations. Pl.' s Br. 13. The ALJ noted that plaintiffs activities were "not as limited as one would expect" given his allegations about disabling pain, as plaintiff stated thathe lived alone, performed self-care without help, shopped in stores, drove, cared for his pet cats, performed household tasks, prepared meals, and tended to his yard. (Tr. 25.) The ALJ also found that plaintiff reported performing "side jobs," including weeding. (Tr. 25, 38.) Contrary to plaintiffs contentions, the ALJ met his burden ofproofby identifying activities which would generally be precluded if plaintiffs pain allegations were indeed as severe as he alleged. The ALJ specifically found thatthe record contradicted his allegations that pain in his left arm and shoulder, right knee, right wrist, and lower back precluded his ability to work. Although the ALJ did not specifically match plaintiffs allegations to specific AD Ls in his narrative, there are obvious inferences to be drawn. For example, although plaintiff testified that he cannot lift items which weigh more than a few pounds, the allegation is contradicted by his ability to lift a gallon of milk with either hand. (Tr. 21, 49, 55 .) Despite his allegation that pain prevents him from working at a strength level for light work, he testified that he was able to pe1form weed-eating services for pay during the adjudicatory period, and that he is able to pe1f01m yard-work at his home. (Tr. 25, 194.) Similarly, despite his contention that pain prevents him from concentrating adequately, plaintiff asse1tedhe is able to manage his own finances, prepare his own meals, do his own laundry, and shop for food three times per week, and follow written instmctions. (Tr. 194-96.) As such, although the ALJ' s findings were not extensive regarding ADLs, the court finds that that ALJ adequately set f01th some valid contradictions in the record; indeed,"[ e]ven where [ADLs] suggest some level offunctioning, they may be grounds for discrediting the claimant's testimony to the extent that they Page 9 - OPINION AND ORDER conu·adict claims ofa totally debilitating impairment." Molina v. Astrue, 674 F Jd 1105, 1113 (9th Cir. 2012) (citation omitted). Moreover, the ALl identified otherreasons for finding plaintiff's allegations about the severity and limiting effects ofhis pain not fully credible, including conservative treatment. Evidence of conservative treaUnentofsymptoms undermines a plaintiff's allegations of disabling pain. Fairv. Bowen, 885 F.2d 597, 604 (9th Cir. 1989). For example, allegations of severe pain may be impugned ifa claimant requires nonprescription medications to alleviate symptoms, orreceives relieffrom minimal treaUnent. Parra v. Astrue, 481F.3d742, 751 (9th Cir. 2007); Tommasettiv. Astrue, 533 F.3d 1035, 1040 (9th Cir. 2008). Here, the ALJ found that "claimant's medications do not indicate the presence ofan impairment that was more limiting than found in this opinion." (Tr. 25.) The ALJ' s finding was supported elsewhere in his decision, where he noted that, following claimant's 2013 car accident, his back pain reportedly improved with conservative measmes, including chiropractic treaUnents twice weekly, icing and heating, and non-steroidal anti-inflammatory("NSAID") medication and a muscle relaxer. (Tr. 23, 337); see Thomas v. Berryhill, No. 3:16-cv-00800-HZ, 2017WL 1073367,at *5 (D. Or. Mar. 21, 2017) (affirmingALJ'sfindingsthat "muscle relaxers" and "NSAIDs" may constitute conservative treaUnent). The ALJ also noted that in 2014, claimant indicated that his shoulder pain had been relieved by taking fom Aleve tablets daily for five years, but lately was no longer as effective. (Tr. 23, 337.) Fmther, at the hearing, plaintiff testified that prior to August2014, he took over-the-counter medications for pain. (Tr. 43.) Plaintiff argues that the ALJ' s finding was faulty, because plaintiff"has been prescribed numerous pain medications for his impahments, which he takes regularly, with limited relief." PL' s Br. 13. In support, plaintiff cites the testimony already recited above, and records documenting prescription pain medications prescribed Page 10 - OPINION AND ORDER immediately after his car accidentin2013. Id However, as the ALJ noted, plaintiff subsequently improved with medication and limited treatment. As such, the ALJ reasonably found that plaintiffs conservative treatment regimen undenninedhis allegations of disabling pain since the alleged onset date of disability. Although plaintiff suggests an alternative interpretation ofthe record, the coUlt is compelled to uphold the ALJ's finding because it was rational and is supported by substantial evidence in the record. Batson, 359 FJd at 1197; Garrison v. Colvin, 759 FJd 995, 1010 (9th Cir. 2014). Finally, the ALJ discounted plaintiffs symptom allegations based on the objective record. In suppott, the ALJ noted that imaging studies reflected only minor findings regardingthe left shoulder, lumbar spine, thoracic spine, and right knee. (Tr. 22, 320, 324, 355.) Although one interpretation ofa September 9, 2013 MRI showed moderate mid-thoracic spondylosis, the treating physicians reviewing the imaging indicated there was "no evidence of acute fracture, dislocation, or disc herniation .... slight anterior wedging of TS that appears chronic in nature ... no spinal cord or nerve root compression. (Tr. 364.) ALJ noted thatfollowingplaintiff s August 2013 car accident, a November 2013 physical examination was "unremarkable." Id. Indeed, the doctors who examined plaintiff in November 2013 also reported that prior to the accident, plaintiffwas "in his usual good health." (Tr. 22, 361.) The doctors further noted plaintiffwas "asymptomatic" until the accident, and despite the MRI findings, indicated plaintiffwas still able to cany up to 25 pounds at work. (Tr. 364.) The doctors noted that plaintiff was not a candidate for surgical intervention, and felt he would heal with conservative treatment. Id. Plaintiff does not directly dispute the ALJ' s finding regarding the inconsistency between the objective medical evidence and his allegations of disabling pain. See Pl.' s Br. 11-14; 4-5. Based on the analysis above, the court finds that the ALJ' s finding was reasonable, and suppmted by substantial evidence Page 11 - OPINION AND ORDER in the record, which the ALJ specifically cited in his written decision. Accordingly, the ALJ' s finding must be affirmed. Batson, 359 F.3d at 1197; Garrison, 759 F.3d at 1010. III. Medical Opinion Evidence Plaintiff argues the ALJ erroneously discounted the opinion oftreating physician Dr. Olson, who perfmmed a one-time physical examination onDecember20, 2012. (Tr. 306-12.) AnALJ is responsible forresolving ambiguities and conflicts in the medical testimony. Magallanesv. Bowen, 881F.2d747, 750 (9th Cir. 1989). The ALJ must provide clear and convincing reasons for rejecting the uncontradicted medical opinion of a treating or examining physician, or specific and legitimate reasons for rejecting contradicted opinions, so long as they are supported by substantial evidence. Bayliss v. Barnhart, 427 F.3d 12 I I, 1216 (9th Cir. 2005). Nonetheless, treating or examining physicians are owed deference and often will be entitled to the greatest, if not controlling, weight. Orn, 495 F.3d at 633 (citation and internal quotation omitted). An ALJ can satisfy the substantial evidence requirement by setting out a detailed summaty ofthe facts and conflicting evidence, stating his interpretation, and making findings. Morgan v. Comm 'r Soc. Sec. Admin., 169 F.3d 595, 600-01 (9th Cir. 1999). However, "the ALJ must do more than offer his conclusions. He must set fotth his own interpretations and explain why they, rather than the doctors', are conect." Reddick, 157 F.3d at 725 (citation omitted). On this record, Dr. Olsons's assessment was contradicted in patt by the State agency medical examiners. Accordingly, the ALJ's reasons for rejecting the doctor's opinion must be specific and legitimate, and suppmted by substantial evidence. See Garrison, 759 F.3d at 1012. As the Commissioner accurately asserts, the only material difference between the opinions to which the ALJ accorded great weight, the State Agency medical consultants, and diminished weight, Dr. Olson, Page 12 - OPINION AND ORDER is that the agency doctors found plaintiff could stand/walk for six hours in an eight-hour workday, rather than/our. Defendant's Br. 14 ("Def.'sBr.") (ECFNo. 19); (Tr. 23-24, 73-75, 86-88, 311). Following her examination ofplaintiff, Dr. Olson opined that plaintiffwas able to stand and/or walk only forfour hours in an eight-hour workday, "likely secondary to aherniated disc." (Tr. 311.) However, Dr. Olson indicated she was unable to confirm the herniated disc diagnosis because she did not have an MRI to review. Id When the State Agency doctors reviewed imaging in January 2013, they indicated it did not show a herniated disc, but rather "slight endplate sclerosis and small right-sided marginal osteophytes." (Tr. 71, 85, 320.) Further, although a later MRI was not reviewed by the doctors, it did not reflect that plaintiffhad · a herniated disc in his thoracic spine. (Tr. 355-57 .) Thus, the ALJ' s finding was specific and legitimate, and is supported by substantial evidence in the record. The ALJ further found that Dr. Olson's examination notes were not consistent with her own conclusions. In support, the ALJ noted that plaintiff demonstrated notmal strength and sensation without spasms or tenderness. (Tr. 24.) Although plaintiff argues that the ALJ "omitted" findings that were not favorable to his disability claim, the argument is not persuasive because the ALJ included findings which suppotied some limitations, including inability to do toe-heel walking, positive straight leg test, and pain in the lower back radiating to the hips. Id Plaintiff also argues thatthe ALJ e1Ted in rejecting Dr. Olson's opinion that he was limited by a disc herniation, stating that a2013 x-rayrevealed "worsening symptoms and marked degenerative disc disease in his back." Pl.'s Br. 9-10; Pl.'s Reply 3-4 (ECFNo. 20). As discussed above, however, the disc herniation Dr. Olson hypothesized about was not later substantiated by medical imaging. (Tr. 71, 85, 320.) Similarly, although marked degenerative changes were observed in the back in 2013, they were observed in his cervical spine, rather than the lumbar spine, which Dr. Olson Page 13 - OPINION AND ORDER had identified as the source ofthe pain. (Tr. 24, 310 ("the pain was located in his lower back").) As such, plaintiff's arguments are not persuasive. The third reason offered by the ALJ for discounting Dr. Olson's opinion was that it did not compmt to prior examinations; specifically, plaintiffpreviously demonstrated a normal gait. (Tr. 24.) Again, the ALJ' s finding is supported by substantial evidence: numerous chart notes, both before and after Dr. Olson's examination, document that plaintiffwalked with normal gait. (Tr. 228-29, 262, 264, 267, 33233, 362.) Fmther, during the hearing, plaintiff explained that he used a cane after the car accident but "I loaned it to somebody that got injured, and I never got it back." (Tr. 46.) Inconsistency with other medical evidence is a specific and legitimate rationale for discounting an examining physician's opinion, and here the ALJ' s rationale was adequate. Finally, plaintiff argues that the opinions ofthe non-exan1ining State Agency consultants do not constitute substantial evidence to reject Dr. Olson's exanlining opinion. Pl. 's Reply 3. Plaintiffs assertion does not fully mticulate the relevant law. Rather,"[a]n ALJ may reject the testimony ofan examining, but non-treating physician, in favor of a non[-]examining, non[-]trnating physician when he gives specific, legitimate reasons for doing so, a11d those reasons are suppmted by substantial record evidence." Lester v. Chafer, 81 F.3d 821, 831 (9th Cir. 1995) (citation omitted) (emphasis in original). Here, the ALJ did just that: he provided three separate specific and legitimate reasons forrejecting Dr. Olson's testimony, and as discussed, each was supported by substantial evidence. Thus, the ALJ did not en- in rejecting Dr. Olson's opinion. IV. Step Two Identification of Severe Impairments Plaintiff contends that the ALJ e1rnneously failed to find certain impainnents to be "severe" at step Page 14 - OPINION AND ORDER two ofthe sequential evaluation process. Step two is the de minim is screening mechanism for disability claims. See, e.g., Webb v. Barnhart, 433 F.3d 683, 687 (9th Cir. 2005). An impairment or combination ofimpairments is "not severe only ifthe evidence establishes a slight abnormality that has no more than a minimal effect on and individual's ability to work." Id at 686. Where an ALJ fails to identify a severe impairment at step two, but nonetheless proceeds with the sequential process, and at subsequent steps considers all ofthe claimant's severe and non-severe impairments, the error by omission is harmless. Lewis v. Astrue, 498 F.3d 909, 911 (9th Cir. 2007). Plaintiff specifically argues that the ALJ failed to find the following medically-dete1minable irnpaitments to be severe: right wrist history of carpal tunnel syndrome; rightelbowepicondylitis secondaiy to overnse and overcompensation with associated pain; history of multiple surgeries of the right knee, resulting in inflanunation and pain with likely osteoarthritis; and diabetes. Pl. 's Br. 3. Plaintiff's contention is unavailing, for the reasons described below. Atthe administrative hearing, the ALJ asked plaintiff about his carpal tunnel syndrome. Plaintiff testified that he continued working while he had caipal tunnel, and further testified that he was able to lift a gallon of milk with the right hand despite the condition. Tr. 39-40. Moreover, although plaintiff presumably relies on Dr. Olson's diagnosis of"right wrist history of caipal tunnel," she reported "he no longer has the pain that he had in his right wrist." (Tr. 307-08.) Additionally, both tests for carpal tunnel were negative on examination. (Tr. 310.) Dr. Olson concluded that the condition had "resolved." (Tr. 311.) Finally, there is no evidence that plaintiff's history ofcarpal tunnel syndrome results in any limitation greater than that set forth in the RFC, and plaintiffdoes not allege any such impairment. Accordingly, any error in omitting the condition from the list of severe impairments at step two was hmmless. Lewis, 498 Page 15- OPINION AND ORDER F.3d at 911. In regards to impairment arising from a history ofright lmee surgeries, plaintiff again cites Dr. Olson's report, which noted: "Right knee pain secondary to history of surgery and subsequent osteoarthritis most likely. Anx-ray of the rightknee would be helpful." Pl. 's Reply4; (Tr. 311). As discussed above, one of plaintiffs primary contentions is thatthe ALJ should have adopted Dr. Olson's four-hour stand/walk capacity assessment rather than the six-hour capacity endorsed by the State Agency doctors. However, the ALJ provided legally adequate reasons to reject Dr. Olson's opinion. See supra. Furthermore, although the ALJ did not find any knee condition at step two, the ALJ appeared to consider it inf01mulating the RFC. See (Tr. 21 (adopting all ofDr. Olson's postural limitations aside from the fourhour stand/walk limitation), 22 (discussing 2013 x-rays ofplaintiffs rightlmee), 24 (noting Dr. Olson found normal strength and sensation on examination, and contrasting Dr. Olson's observations with "past exams where he displayed a normal gait)). Thus, any error in failing to find the knee condition was a severe impairment at step two was haimless. Lewis, 498 F.3d at 911. Plaintiff additionally maintains the ALJ erred by declining to find diabetes a severe impaim1ent at step two. However, even assuming the ALJ erred in not finding diabetes was severe at step two, the ALJ considered the impairment at subsequent steps ofthe sequential evaluations. Specifically, the ALJ noted that plaintiffwas hospitalized with high glucose in 2010, but subsequently began insulin treatment and lost weight. Tr. 22. While the ALJ also noted that plaintiffs diabetes was "not at target" in 2011, plaintiff testified at the hearing that his diabetes was well-controlled. Tr. 22, 43-44. Thus, because impairments that can be controlled effectively are not disabling, plaintiffhas not demonstrated that any step two error was harmful. See Warre ex rel. E.T. !Vv. Comm 'r ofSoc. Sec. Admin., 439 F.3d 1001, 1006 (9th Cir. Page 16 - OPINION AND ORDER 2006). Moreover, plaintiff has not alleged why the omission was harmful. Lewis, 498 F.3d at 911. V. Step Five Analysis Plaintiff argues the ALJ eil'ed in identifying other work in the national economy which plaintiff could perform based on his assessed RFC. Specifically, plaintiff argues the ALJ erred by posing hypothetical questions to the RFC that did not include the stand/walk limitation opined by Dr. Olson, or limitations set forth in the evidence submitted to the Appeals Council but not made part ofthe record. However, because the ALJ did not err in discounting Dr. Olson's opinion, and because the other evidence is not part ofthe administrative record in this matter and therefore not properly before this court, plaintiffs contentions are unavailing for the reasons described herein. See Stubbs-Danielson v. Astrue, 539F.3d 1169, 1175-76 (9th Cir. 2008) (rejecting step five assignment of eil'or which essentially rehashed previous arguments). Plaintiffadditionally argues thatthe ALJ failed to consider Medical-Vocational Rule 202.02 for an individual ofadvanced age because the hearing date was less than two months prior to his 55th birthday, and which would have resulted in a finding of disabled. Pl.'sBr. 17, Pl.'sReply7-8;see 20C.F.R. Part 404, Subpart P, Appendix 2. The Medical-Vocational Guidelines ("the Grids") are another way, as an alternative to VE testimony, that the Commissioner can meet his burden of showing that claimant can perform other work in the national economy. Lockwood v. Comm 'r Soc. Sec. Adm in., 616 F .3d 1068, 1071 (9th Cir. 2010). The Grids "reflect the analysis ofthe various vocational factors (i.e., age, education, and work experience) in combination with the individual's [RFC]." 20 C.F.R. Pt. 404, Subpt. P, App. 2, § 200.00(a). Plaintiff argues that the ALJ committed reversible error by "failing to explain whether [plaintiff's] borderline age situation was considered and which factors were weighed." Pl.' s Br. 17. In support, plaintiff cites the Hearings, Appeals, and Litigation Manual ("HALLEX"), an internal Page 17 - OPINION AND ORDER Social Security Administration policy manual: SSA will not apply the age categories mechanically in a borderline age situation. Ifa claimant is within a few days to a few months ofreaching an older age category .. , and using the higherage category would result in a determination ofdecision thatthe claimant is disabled, SSA will consider whether to use the higher age categmy after evaluating the overall impact ofall the factors ofthe case .... The ALJ will explain in the decision that he or she considered the borderline age situation, state whether he or she applied the higher age category or the chronological age, and note the specific factor( s) he or she considered. HALLEXI-2-2-42. However, the facts in this case are analogous to those in Lockwood, which declined to find reversible error although Lockwood was one month and three days from becoming "a person of advanced age" under the Grids. Lockwood, 616 F.3d at 1069-70. There, the Ninth Circuit held that the HALLEX did not "impose judicially enforceable duties on either the ALJ or this court." Id at 1072. Further, the Lockwood court determined that so long as the ALJ "considers" whether to use an older age categmy, the ALJ does not run afoul of the HALLEX guidance at issue. Id Accordingly, the Commissioner argues that plaintiffwas not as close to the next age category as the claimant in Lockwood. Def.'s Br. 19. Further, the Commissioner argues that, like the ALJ in Lockwood, the ALJ properly considered using an older age category by identifying plaintiff's birth date and his age at the alleged onset date. Id.; see Lockwood, 616 F.3d at 1071-72. Indeed, here the ALJ identified plaintiffs birth date and his age at the alleged onset date. (Tr. 26.) Additionally, the ALJ explicitly considered whether plaintiffwas disabled under both Grid Rule 202.18 (younger individual) and Grid Rule 202.11 (closelyapproachingadvancedage). See (Tr. 27); Lockwood, 616F.3dat1071-72. Therefore, pursuant to the precedent set forth in Lockwood, the ALJ in the instant case satisfied the requirement ofconsidering the next age category. Id; see 20 C.F .R. § 404. l 563(b) ("we will consider Page 18 - OPINION AND ORDER whether to use the older age category"). In his opening briefplaintiff does not attempt to distinguish his case from that in Lockwood, nor does plaintiff substantively respond to the Commissioner's argument in his reply brief See Pl. 's Br. 16-17; Pl.' s Reply 8. Rather, plaintiff merely maintains that the Commissioner is "incorrect," but neglects to address the relevant, precedential case law. PL' s Reply 8. Plaintiffs approach is unpersuasive. Here, the record reflects that the ALJ adequately considered plaintiffs age at step five-and did not mechanically apply the age categories- by relying on VE testimony instead. (Tr. 59-62.) The ALJ did not, therefore, err. Lockwood, 616 F.3d at 1071-72, 1074. Conclusion For the reasons stated above, the ALJ' s decision was based on substantial evidence and free of haimful legal error. Therefore, the Commissioner's decision is AFFIRMED and this case is hereby DISMISSED. IT IS SO ORDERED. DATEDthis ?i-1/,, U ofJanuary2018. I Unite !ates Magistrate Judge I I I I! Ii l i Page 19 - OPINION AND ORDER

Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.


Why Is My Information Online?