Riggs v. Commissioner Social Security Administration
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)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
DAVID BRIAN RIGGS,
Case No. 3:16-cv-01626-AC
OPINION AND ORDER
NANCY A. BERRYHILL,
Acting Commissioner of Social Security, 1
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
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
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.)
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.
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)
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
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.
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.)
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
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
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.
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.
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.
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
IT IS SO ORDERED.
!ates Magistrate Judge
Page 19 - OPINION AND ORDER
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