Bolding v. Commissioner of Social Security
Filing
26
Opinion and Order: The Court affirms the Commissioner's decision. Signed on 7/18/2019 by Magistrate Judge Mustafa T. Kasubhai. (jk)
UNITED STATES DISTRICT COURT
DISTRICT OF OREGON
PORTLAND DIVISION
DONNA B.1,
Case No.: 3:18-cv-00892-MK
Plaintiff,
OPINION AND ORDER
v.
COMMISSIONER, SOCIAL SECURITY
ADMINISTRATION,
Defendant.
KASUBHAI, Magistrate Judge:
Plaintiff Donna Raelene B. brings this action for judicial review of the Commissioner of
Social Security’s (“Commissioner’s”) decision denying her application for Disability Insurance
Benefits under the Social Security Act (the “Act”). This Court has jurisdiction under 42 U.S.C.
§§ 405(g) and 1383(c). Both parties consent to jurisdiction by a U.S. Magistrate Judge.
For the reasons discussed below, the Court affirms the Commissioner’s decision.
1
In the interest of privacy, this Opinion and Order uses only the first name and the initial of the last name of the
non-governmental parties in this case.
1 – OPINION AND ORDER
BACKGROUND
Plaintiff applied for Disability Insurance Benefits on August 7, 2013, alleging disability
beginning September 7, 2012. Tr. 17. Her claims were initially denied, and Plaintiff timely
requested and appeared for a hearing before Administrative Law Judge (“ALJ”) Kelly Wilson on
March 24, 2016. Id. After the hearing, the ALJ received a supplemental record consisting of the
report from consultative examiner John Ellison, M.D., interrogatory responses of impartial
vocational expert Leta Berkshire, and additional medical records. Id. The ALJ denied Plaintiff’s
application in a written decision dated February 28, 2017. See Tr. 17-30. Plaintiff sought review
from the Appeals Council and submitted Plaintiff’s psychiatrist Dr. Stacy Caraballo’s letter. Tr.
15. The Appeals Council admitted Dr. Caraballo’s letter but found that the letter does not relate
to the period at issue. Tr. 2. The Appeals Council denied review of the ALJ’s decision,
rendering the ALJ’s decision the final decision of the Commissioner. Tr. 1-4. Plaintiff now
seeks judicial review of the decision.
STANDARD OF REVIEW
A reviewing court shall affirm the Commissioner’s decision if the decision is based on
proper legal standards and the legal findings are supported by substantial evidence in the record.
42 U.S.C. § 405(g); Batson v. Comm’r of Soc. Sec. Admin., 359 F.3d 1190, 1193 (9th Cir. 2004).
“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 support a conclusion.’” Hill
v. Astrue, 698 F.3d 1153, 1159 (9th Cir. 2012) (quoting Sandgathe v. Chater, 108 F.3d 978, 980
(9th Cir. 1997)). To determine whether substantial evidence exists, a court reviews the
administrative record as a whole, “weighing both the evidence that supports and detracts from
the ALJ’s conclusion.” Davis v. Heckler, 868 F.2d 323, 326 (9th Cir. 1989).
2 – OPINION AND ORDER
DISCUSSION
The Social Security Administration utilizes a five-step sequential evaluation to determine
whether a claimant is disabled. See 20 C.F.R. §§ 404.1520, 416.920. The initial burden of proof
rests upon the claimant to meet the first four steps. Id. If the claimant satisfies her burden with
respect to the first four steps, the burden shifts to the Commissioner at step five. Id.; see also
Johnson v. Shalala, 60 F.3d 1428, 1432 (9th Cir. 1995). At step five, the Commissioner must
show that the claimant is capable of making an adjustment to other work after considering the
claimant’s residual functional capacity (“RFC”), age, education, and work experience. 20 C.F.R.
§§ 404.1520(a)(4)(v) & 416.920(a)(4)(v). If the Commissioner fails to meet this burden, then the
claimant is disabled. Id. If, however, the Commissioner proves that the claimant is able to
perform other work existing in significant numbers in the national economy, the claimant is not
disabled. Id.; see also Bustamante v. Massanari, 262 F.3d 949, 953–54 (9th Cir. 2001).
In the present case, the ALJ found that Plaintiff was not disabled. At step one, the ALJ
found that Plaintiff has not engaged in substantial gainful activity since the onset date of
September 7, 2012. Tr. 19. At step two, the ALJ found Plaintiff had the following severe
impairments: “degenerative disc disease; osteopenia; plantar fasciitis; depressive disorder;
anxiety disorder; [and] polysubstance abuse.” Tr. 20. At step three, the ALJ found that Plaintiff
did not have an impairment or combination of impairments that met or equaled the requirements
of a listed impairments in 20 CFR Part 404, Subpart P, Appendix 1 (“Listings”). Tr. 20-21.
Prior to step four, the ALJ determined that Plaintiff retained residual functional capacity
(“RFC”) that allowed her to perform light work, “except [that] she can frequently balance, stoop,
and climb ramps/stairs; she can occasionally kneel, crouch, and crawl; she cannot climb ladders,
3 – OPINION AND ORDER
ropes, or scaffolds; and she can perform simple and detailed tasks, but would have difficulty
performing more complex tasks consistently.” Tr. 22.
At step four, the ALJ found that Plaintiff is capable of performing past relevant work as a
Receptionist and Waitress. Tr. 30.
Plaintiff seeks review by this Court contending that (1) the ALJ improperly rejected
Plaintiff’s subjective complaints; (2) the Appeals Council erred in receiving but failing to
consider the new evidence of Stacey Caraballo, Ph.D.’s opinion; and (3) the ALJ improperly
rejected the opinion of consultative examiner John Ellison, M.D. Pl.’s Br. 7-20 (ECF No. 13).
I. Subjective Symptom Testimony
When a claimant has medically documented impairments that could reasonably be
expected to produce some degree of the symptoms complained of, and the record contains no
affirmative evidence of malingering, “the ALJ can reject the claimant’s testimony about the
severity of . . . symptoms only by offering specific, clear and convincing reasons for doing so.”
Smolen v. Chater, 80 F.3d 1273, 1281 (9th Cir. 1996) (internal citation omitted). A general
assertion [that] the claimant is not credible is insufficient; instead, the ALJ must “state which …
testimony is not credible and what evidence suggests the complaints are not credible.” Dodrill v.
Shalala, 12 F.3d 915, 918 (9th Cir. 1993). The reasons proffered must be “sufficiently specific
to permit the reviewing court to conclude that the ALJ did not arbitrarily discredit the claimant’s
testimony.” Orteza v. Shalala, 50 F.3d 748, 750 (9th Cir. 1995) (internal citation omitted). If the
ALJ’s finding regarding the claimant’s subjective symptom testimony is “supported by
substantial evidence in the record, [the court] may not engage in second-guessing.” Thomas v.
Barnhart, 278 F.3d 947, 959 (9th Cir. 2002) (internal citation omitted).
4 – OPINION AND ORDER
Social Security Ruling (“SSR”) 16-3p2 provides that “subjective symptom evaluation is
not an examination of an individual’s character,” and requires the ALJ to consider all of the
evidence in an individual’s record when evaluating the intensity and persistence of symptoms.
SSR 16-3p, available at 2016 WL 1119029 at *1-2. The ALJ must examine “the entire case
record, including the objective medical evidence; an individual’s statements about the intensity,
persistence, and limiting effects of symptoms; statements and other information provided by
medical sources and other persons; and any other relevant evidence in the individual’s case
record.” Id. at *4.
The ALJ provided the following reasons for discrediting Plaintiff’s subjective testimony:
(1) treatment for Plaintiff’s physical impairments has been routine, conservative and effective,
and treatment for her mental impairment is effective, Tr. 24-26; (2) after the onset date, Plaintiff
collected unemployment benefits, continued working as a caregiver, and participated in
vocational rehabilitation, which suggest that she considered herself able to work; Tr. 26; (3)
Plaintiff engaged in activities that are inconsistent with her complaints, Tr. 27; (4) Plaintiff was
inconsistent regarding her substance abuse, Id.; and (5) the record reflects that Plaintiff appeared
highly motivated to obtain disability benefits, Tr. 24, 27.
Plaintiff argues that the ALJ merely summarized the medical evidence but failed to
identify what evidence undermined Plaintiff’s testimony. Pl.’s Br. 10 (ECF No. 14) (citing
Reddick v. Chater, 157 F.3d 715, 722 (9th Cir. 1998) (“General findings are insufficient; rather,
the ALJ must identify what testimony is not credible and what evidence undermines the
claimant’s complaints.”). The Commissioner argues that the ALJ’s reasons for discounting
Plaintiff’s subjective testimony were clear and convincing. Def.’s Br. 4-12 (ECF No. 20).
2
Effective March 28, 2016, SSR 16-3p supersedes and replaces SSR 96-7p, which governed the assessment of
claimant’s “credibility.” See SSR 16-3p, available at 2016 WL 1119029.
5 – OPINION AND ORDER
A. Treatment
a. Physical Impairments
An ALJ may discredit a claimant’s pain testimony based on a history of conservative
treatment. Johnson v. Shalala, 60 F.3d 1428, 1434 (9th Cir. 1995) (finding that the ALJ provided
clear and convincing reasons to properly decline to rely on the claimant’s testimony and noting
that the doctor prescribed only “conservative treatment” which suggested a lower level of both
pain and functional limitation). Furthermore, evidence of effective treatment may support an
ALJ’s rejection of symptom allegations. Warre v. Comm’r of Soc. Sec. Admin., 439 F.3d 1001,
1006 (9th Cir. 2006) (“Impairments that can be controlled effectively with medication are not
disabling for the purpose of determining eligibility for SSI benefits.”).
The ALJ found that the record does not contain objective evidence that supports a
disabling degree of limitation for Plaintiff’s physical impairments. Tr. 24. Specifically, the MRI
imaging of the thoracic spine in November 2013 shows only “minimal loss of the vertebral body
height at T4, T6 and T7.” Tr. 628. “There are a few minimal disc protrusions in the thoracic
spine, but no evidence of neural impingement.” Id.
In March 2014, treating physician Dr. Mitchell, D.O., diagnosed neck sprain and
recommended ice, physical therapy, and prescribed Robaxin. Tr. 24, 686-87. The ALJ noted that
Plaintiff was “exercising regularly” around this time. Tr. 24, 881. When Plaintiff sought
treatment in January 2015 for her worker’s compensation neck injury, Dr. Mitchell did not refer
her to chiropractic treatment as she requested but told her to continue with physical therapy until
she found it ineffective. Tr. 677. At the follow-up visit in three weeks, Plaintiff reported that her
symptoms were “almost back to normal” and “therapy is helping so much.” Tr. 674. On
February 7, 2015, Dr. Mitchell documented that Plaintiff “has reached a stable point. … She
6 – OPINION AND ORDER
continues to have pain in the stated areas, but this is of a chronic nature and there has been some
documented improvement per physical therapy report.” Tr. 671. Dr. Mitchell believed that the
“insignificant injuries as stated have essentially resolved.” Id. Plaintiff was “released to return to
work as she has been doing.” Id. Plaintiff reported in March 2015 that she “continues to swim”
and “is able to do things like her ADLs [Activities of Daily Living]” though “it is always
uncomfortable.” Tr. 700.
Regarding Plaintiff’s plantar fasciitis, she reported continued foot pain for 12 years in
March 2014, but she did not want further work-up at that time. Tr. 642. She sought treatment for
plantar fasciitis in September 2015. Tr. 692-95. Dr. Davidson recommended physical therapy
for pelvic tilt and gait training. Tr. 694. Plaintiff then reported in February 2016 that “[t]he pain
of palpation of the feet is resolved” with physical therapy except “throbbing pain.” Tr. 689.
The X-ray imaging in February 2016 for Plaintiff’s cervical, thoracic, and lumbar spine
showed “[m]oderate multilevel degenerative spondylosis in the cervical spine[;] [m]ild
thoracolumbar scoliosis[;] [u]nchanged mild compression fractures at T6 and T7[;] [s]uspected
new mild superior endplate compression fracture at T5 since prior MRI of 2013[;] … [m]ild
degenerative disc disease at L4-L5.” Tr. 742.
Consultative evaluating physician Dr. Ellison, M.D., performed a comprehensive
musculoskeletal exam of Plaintiff in August 2016. Tr. 1035-37. Dr. Ellison confirmed the X-ray
result of “mild thoracolumbar scoliosis” and “mild compression fractures of T6 and T7.” Tr.
1037. Dr. Ellison assessed that Plaintiff’s neck has limited range of motion and her right knee’s
flexion is limited to 90 degrees. Id. Plaintiff’s shoulders are “normal except abduction restricted
bilaterally to about 75 degrees.” Tr. 1036. Dr. Ellison marked that Plaintiff does not use assistive
devices. Id.
7 – OPINION AND ORDER
The record cited by the ALJ consistently documents conservative treatment and the
effectiveness of the treatment for Plaintiff’s physical impairments. The ALJ’s reasons for
discounting Plaintiff’s subject testimony on these grounds are specific and supported by
substantial evidence.
b. Mental Impairment
The ALJ found that Plaintiff’s mental impairment has been generally well managed with
treatment and she retained the mental capacity for simple and detailed tasks. Tr. 25. The ALJ
cited the following record.
In June 2013, a psychiatric evaluation report stated that Plaintiff was not depressed. Tr.
386. In August 2013, Plaintiff received psychotherapy for anxiety due to her son’s new
diagnosis of herpes. Tr. 638. During the therapy, she talked about her plans for her future,
including going back to school, filing for SSDI and not have to work, and move in with her new
boyfriend and not have to work. Id. The record shows that Plaintiff’s anxiety continued in
October 2013 due to new medicine and problems with school. Tr. 907.
In February 2014, Plaintiff reported that “she feels stable since she has started on her
medication through PCBH.” Tr. 868. When asked what she wanted to work on that day related
to her therapy treatment plan goals, Plaintiff responded “nothing.” Id. During that therapy
session, Plaintiff was calm and better rested. Tr. 872. Her attitude was pleasant and cooperative
for the most part. Id. Plaintiff “attributes [her struggle with mood and anxiety] primarily to
situational stress but does not feel like she needs a medication change.” Tr. 873.
Plaintiff continued to report stable mental condition after the February 2014 session. In
August 2014, Plaintiff reported that her mood was stable and good. Tr. 894. The therapy notes
show that Plaintiff “[p]resents overall as psychiatrically stable. … Mood bright and possibly
8 – OPINION AND ORDER
hypomanic, however, is doing well and organized.” Id. In April 2015, while still going through a
lot of situational stress, Plaintiff was managing. Tr. 986. Plaintiff presented to be “notably
calmer, better rested and better nourished.” Tr. 985. Her mood was neutral to mildly bright with
an appropriate affect. Id. Her thought content was appropriate. Id. She was negative for suicidal
or homicidal ideation and free from debilitating preoccupations, false perceptions, or delusions.
Id. Similarly, in November 2015, Plaintiff reported doing well overall. Tr. 960. In March 2016,
Plaintiff reported that “[s]he is slowly improving as she works through her issues.” Tr. 992.
The medical record cited by the ALJ is specific and shows with substantial evidence that
Plaintiff’s mental condition has been stable with treatment since February 2014.
B. Unemployment Benefits and Earnings
“Continued receipt of unemployment benefits does cast doubt on a claim of disability, as
it shows that an applicant holds himself out as capable of working.” Ghanim v. Colvin, 763 F.3d
1154, 1165 (9th Cir. 2014) (citation omitted). However, when “the record does not establish
whether [the claimant] held himself out as available for full-time or part-time work,” an ALJ’s
credibility finding against the claimant on the basis of receipt of unemployment benefits is not
supported by substantial evidence. Carmickle v. Comm'r, Soc. Sec. Admin., 533 F.3d 1155, 1162
(9th Cir. 2008).
The ALJ found that Plaintiff’s allegation of disability is inconsistent with her receipt of
unemployment benefits after the onset date, because “[i]n order to qualify for such benefits,
applicants must affirm that they are capable of working.” Tr. 26. Additionally, Plaintiff’s
participation in vocational rehabilitation and filing of a workers’ compensation claim suggest
that she considered herself able to work. Id. The ALJ also noted that the vocational expert
identified Plaintiff’s job of home attendant “as a medium, semiskilled job of SVP 3.” Id.
9 – OPINION AND ORDER
Plaintiff argues that applying for worker’s compensation or unemployment benefits based
on part-time earnings is not the same as holding out as capable of full-time work. Pl.’s Br. 12
(ECF No. 14). The record does not provide information on whether Plaintiff held herself out as
available for full-time or part-time work. However, according to the record, while Plaintiff
continued working as a home care worker between the last quarter of 2013 and the first quarter
of 2015, she claimed having increased pain, stress, and fatigue and that she could only do
minimal personal care, could not fix her hair, could not be on her feet long enough to prepare
meals, and did no housecleaning. Tr. 239-40, 26-27, 288, 290. The ALJ found that Plaintiff’s
engagement in medium work at close to substantial gainful activity levels suggests that “she
could do far more exertional work at a light or sedentary level for greater number of hours.” Tr.
27.
Because Plaintiff’s work as a home care worker is supported by the record, the Court will
not disturb the ALJ’s finding that Plaintiff’s caregiver job undermines her claim of disability. See
Bray v. Comm’r of Soc. Sec. Admin., 554 F.3d 1219, 1227 (9th Cir. 2009) (upholding the ALJ’s
adverse credibility finding against the plaintiff based in part on the plaintiff’s recent work as a
personal caregiver for two years).
C. Activities of Daily Living
Activities of daily living can form the basis for an ALJ to discount a claimant’s testimony
in two ways: (1) as evidence a claimant can work if the activities “meet the threshold for
transferable work skills”; or (2) where the activities “contradict [a claimant’s] testimony.” Orn v.
Astrue, 495 F.3d 625, 639 (9th Cir. 2007). When considering the factor of daily activities, the
Ninth Circuit has repeatedly warned that ALJs must be especially cautious in concluding that
daily activities are inconsistent with testimony about pain, and only if the level of activity is
10 – OPINION AND ORDER
inconsistent with the claimant’s claimed limitations would these activities have any bearing on
the claimant’s credibility. Garrison v. Colvin, 759 F.3d 995, 1016 (9th Cir. 2014) (citing Smolen,
80 F.3d at 1287 n. 7 (“The Social Security Act does not require that claimants be utterly
incapacitated to be eligible for benefits, and many home activities may not be easily transferable
to a work environment where it might be impossible to rest periodically or take medication.”);
Fair, 885 F.2d at 603 (“[M]any home activities are not easily transferable to what may be the
more grueling environment of the workplace, where it might be impossible to periodically rest or
take medication.”)).
The ALJ found that Plaintiff’s activities are “consistent with an ability to do some light
exertional activities.” Tr. 27. For instance, Plaintiff enrolled in school two months after the onset
date and was taking a computer class, she kept herself limber with regular yoga, she attended
Native American activities such as sweats, pow-wows, and dancing, and she reported being paid
by the state to take care of her mentally ill sister. Tr. 27, 518, 860, 484. Plaintiff reported in late
2013 that “she was very busy and wouldn’t be able to schedule an assessment until after the first
of the year.” Tr. 27, 878. The ALJ also noted that Plaintiff took trips to California. Tr. 27, 843,
969. Furthermore, Plaintiff reported in April 2014 that she was working 15 hours a week and
attending school full time. Tr. 27, 644.
Plaintiff testified at the hearing that she had not engaged in pow-wows, fishing and
hiking for three years. Tr. 796-80. Her travel to California required frequent rest stops. Tr. 81.
She did not attend school full time but took no more than two classes, and she could not
continue. Tr. 9, 55-56. Plaintiff also testified that she did not successfully take care of her sister.
Tr 78.
11 – OPINION AND ORDER
Plaintiff’s testimony is not entirely consistent with the record. For example, Plaintiff
argues and testified that she did not attend school full time, but the record shows that she
reported attending school full time in April 2014. Compare Pl.’s Br. 13 (ECF No. 13) and Tr. 5556 with Tr. 644. The record also documents that Plaintiff reported having two trips to California,
one in November 2013 to visit a high school friend and one in September 2015 for a family
reunion. Tr. 843, 969. However, Plaintiff argues that she only had one trip to California “in a
four-year period.” Pl.’s Br. 13 (ECF No. 13).
“While a claimant need not vegetate in a dark room in order to be eligible for benefits,
the ALJ may discredit a claimant’s testimony when the claimant reports participation in
everyday activities indicating capacities that are transferable to a work setting.” Molina v. Astrue,
674 F.3d 1104, 1112-13 (9th Cir. 2012) (citations and internal punctuation omitted). The ALJ
listed Plaintiff’s activities in the record and found that these activities are consistent with her
ability to perform some light exertional activities. While the ALJ did not explain why these
activities support Plaintiff’s ability to perform light exertional activities, the ALJ’s reasons are
otherwise specific and supported by the record and contradict Plaintiff’s pain testimony. In
addition, Plaintiff’s “very busy” activities after the onset date undermines her claim of
debilitating pain. Therefore, the Court upholds the ALJ’s finding.
D. Inconsistency of Substance Abuse
The ALJ found that Plaintiff’s statements regarding her substance abuse are inconsistent
with the record. Tr. 27. Specifically, in July 2013, Plaintiff denied using methamphetamine but
tested positive, stating that she thought someone was lacing her food with it for a period of two
months. Tr. 27, 495. The ALJ also found that Plaintiff’s substance abuse has interfered with her
ability to obtain work. Tr. 27. Plaintiff reported in December 2013 that “she uses medical
12 – OPINION AND ORDER
marijuana for her pain” and “she has been thinking about giving up medical marijuana use so she
can obtain employment.” Tr. 877-78. The record of the same day further states that “[Plaintiff]
didn’t seem overly interested in … stopping her use of medical marijuana even through [sic] she
said she was. … She did realize she can’t continue to smoke marijuana and do well with any
school studies or gain employment.” Tr. 878.
Plaintiff contends that she did not intentionally use methamphetamine and she did not
withhold information from her medical providers. Pl.’s Br. 13-14 (ECF No. 13). Plaintiff’s
argument is misplaced. The ALJ acknowledged that substance abuse in and of itself does not
impact the reliability of allegations. Tr. 27. Rather, the ALJ found that Plaintiff’s inconsistent
statements regarding her substance abuse casts doubt in her other statements. Id. The ALJ’s
finding regarding Plaintiff’s inconsistent statements is supported by substantial evidence in the
record and the Court upholds the ALJ’s finding.
E. Motivation to Obtain Disability
Where an ALJ sets out specific findings supported by the record, a claimant’s welldocumented motivation to obtain social security benefits may cast doubt on the claimant’s
credibility. See Matney ex rel. Matney v. Sullivan, 981 F.2d 1016, 1020 (9th Cir. 1992).
In August 2013, Plaintiff told her therapist that she has three plans for her future,
including “file for SSDI and not have to work.” Tr. 638. In January 2015, Plaintiff’s treating
physician Dr. Mitchell noted: “The patient is a discouraging case. [S]ince she states she is
earnestly seeking disability[,] I am sure her subjective complaints and evaluations will never
improve until she gets what she is after. I will call her therapist to search for inappropriate pain
behaviors.” Tr. 677. In February 2015, Dr. Mitchell noted: “An important note is that the patient
is highly motivated to get disability. She states she is looking forward to her disability rating
13 – OPINION AND ORDER
deteriorating another point or two because then she will qualify for disability payments.” Tr. 671.
The ALJ found that such evidence tends to undermine Plaintiff’s subjective reports of her
symptoms and limitations. Tr. 27. The ALJ further found that “[i]t is the combination of these
inconsistencies, and not any one inconsistency in particular, that undermines the claimant’s
reliability as an accurate historian.” Tr. 27.
On the issue of Plaintiff’s subjective complaints, the Court finds that the ALJ’s reasons to
discredit Plaintiff are supported by the record. The reasons are specific and convincing.
Accordingly, the Court upholds the ALJ’s decision of a credibility finding against Plaintiff.
II. Medical Opinion Evidence
The ALJ is responsible for resolving conflicts in the medical record, including conflicts
among physicians’ opinions. Carmickle v. Comm’r., Soc. Sec. Admin., 533 F.3d 1155, 1164 (9th
Cir. 2008). Specific and legitimate reasons for rejecting a physician’s opinion may include its
reliance on a claimant’s discredited subjective complaints, inconsistency with medical records,
inconsistency with a claimant’s testimony, inconsistency with a claimant’s daily activities, or
that the opinion is brief, conclusory, and inadequately supported by clinical findings. Bray v.
Commissioner, 554 F.3d 1219, 1228 (9th Cir. 2009); Tommasetti v. Astrue, 533 F.3d 1035, 1040
(9th Cir. 2008); Andrews v. Shalala, 53 F.3d 1035, 1042–43 (9th Cir. 1995). An ALJ errs by
rejecting or assigning minimal weight to a medical opinion “while doing nothing more than
ignoring it, asserting without explanation that another medical opinion is more persuasive, or
criticizing it with boilerplate language that fails to offer a substantive basis” for the ALJ’s
conclusion. Garrison, 759 F.3d at 1013; see also Smolen, 80 F.3d at 1286 (noting that an ALJ
effectively rejects an opinion when he or she ignores it).
14 – OPINION AND ORDER
“An ALJ can satisfy the ‘substantial evidence’ requirement by ‘setting out a detailed and
thorough summary of the facts and conflicting clinical evidence, stating his interpretation
thereof, and making findings.” Garrison, 759 F.3d at 1012 (quoting Reddick, 157 F.3d at 725).
In other words, “[t]he ALJ must do more than offer his conclusions. He must set forth his own
interpretations and explain why they, rather than the doctors’, are correct.” Reddick, 157 F.3d at
725 (citing Embrey v. Bowen, 849 F.2d 418, 421–22 (9th Cir. 1988)). “[T]he opinion of a
nonexamining medical advisor cannot by itself constitute substantial evidence that justifies the
rejection of the opinion of an examining or treating physician.” Morgan v. Comm’r Soc. Sec.
Admin., 169 F.3d 595, 602 (citations omitted); but see id. at 600 (opinions of non-treating or
nonexamining physicians may serve as substantial evidence when the opinions are consistent
with independent clinical findings or other evidence in the record).
Dr. Ellison opined that Plaintiff could perform a reduced range of sedentary to light work.
Tr. 1038-39. According to Dr. Ellison, Plaintiff could lift at the light level and carry at the
sedentary level. Tr. 28, 1038. Additionally, Plaintiff could stand for 2 hours at one time without
interruption, and 4 hours total in an 8-hour work day. Tr. 1039. Plaintiff could sit at one time
without interruption for 4 hours and 8 hours in an 8-hour work day. Id. The ALJ gave some
weight to Dr. Ellison’s opinion regarding Plaintiff’s ability to sit and lift, because it is consistent
with the record as a whole. Tr. 28. The ALJ gave little weight to Dr. Ellison’s opinion regarding
Plaintiff’s ability in carrying, standing, walking, postural activities, manipulative activities, and
environmental limitations, because it is inconsistent with the record as a whole and is based on a
one-time examination. Tr. 28-29.
Plaintiff asserts that the ALJ erred in giving little weight to Dr. Ellison’s opinion. Pl.’s
Br. 18 (ECF No. 13). Plaintiff reasons that “a consultative examiner is a medical source [that is]
15 – OPINION AND ORDER
qualified to provide a medical opinion,” and argues that a one-time examination is not a proper
basis to reject Dr. Ellison’s opinion. Tr. 18-19. Additionally, Plaintiff argues that Dr. Ellison’s
opinion should be given more weight because it is based on a physical examination and a
comprehensive review of the records. Id. at 19.
“Length of treatment relationship and the frequency of examination” are a factor in
weighing medical opinions. 20 C.F.R. § 404.1527(c)(2); Pl.’s Br. 16 (ECF No. 13).
Accordingly, it is proper for the ALJ to consider the one-time examination as a factor in giving
little weight to Dr. Ellison’s opinion. Further, the ALJ set out the following reasons for finding
Dr. Ellison’s opinion being inconsistent with the record: “the claimant’s activities of daily living;
the relatively conservative treatment history; the helpfulness of treatment as reported by the
claimant; and the largely unremarkable objective findings.” Tr. 29. As discussed above, these
reasons are supported by the record when the ALJ discredited Plaintiff’s subjective complaints.
Therefore, the ALJ satisfied the substantial evidence requirement in giving little weight to Dr.
Ellison’s opinion for the same reasons.
Nonetheless, the ALJ notes that “even if Dr. Ellison’s opined exertional limitations were
adopted, the claimant would be able, at step 4 of the sequential evaluation process …, to perform
her past work as a Receptionist …” Tr. 29. Plaintiff concedes the same. Pl.’s Br. 19 (ECF No.
13). A claimant able to perform past relevant work is not disabled. 20 C.F.R. § 404.1560(b)(3).
Accordingly, Plaintiff essentially concedes that she is not disabled if Dr. Ellison’s opinion is
adopted.
III. New Evidence Rejected by The Appeals Council
“The Appeals Council will only consider additional evidence … if [the claimant] show[s]
good cause for … submitting the evidence.” 20 C.F.R. § 404.970(b). Specifically, “the Appeals
16 – OPINION AND ORDER
Council receives additional evidence that is new, material, and relates to the period on or before
the date of the hearing decision, and there is a reasonable probability that the additional evidence
would change the outcome of the decision.” 20 C.F.R. § 404.970(a)(5).
“[W]hen a claimant submits evidence for the first time to the Appeals Council, which
considers that evidence in denying review of the ALJ’s decision, the new evidence is part of the
administrative record, which the district court must consider in determining whether the
Commissioner’s decision is supported by substantial evidence.” Brewes v. Comm’r of Soc. Sec.
Admin., 682 F.3d 1157, 1159-60 (9th Cir. 2012). “Where the Appeals Council was required to
consider additional evidence, but failed to do so, remand to the ALJ is appropriate so that the
ALJ can reconsider its decision in light of the additional evidence.” Taylor v. Comm’r, 659 F.3d
1228, 1233 (9th Cir. 2011). When considering the rejected new evidence, the district court first
determines whether the Appeals Council was required to consider the new evidence. See id. at
1231. If the answer is affirmative, the court then determines “whether, in light of the record as a
whole, the ALJ’s decision was supported by substantial evidence and was free of legal error.” Id.
at 1232.
Plaintiff submitted Dr. Caraballo’s letter as new evidence to the Appeals Council with her
appeal. Tr. 9-10. The Appeals Council received but rejected Dr. Caraballo’s letter because it
“does not relate to the period at issue.” Tr. 2. The Appeals Council then concluded that “it does
not affect the decision about whether [Plaintiff was] disabled beginning on or before February
28, 2017. Id.
Because Dr. Caraballo’s letter addresses Plaintiff’s condition from June 2014, the Court
finds that her opinion “relate[s] to the period at issue.” Tr. 9. The question then is whether there
17 – OPINION AND ORDER
is a reasonable probability that Dr. Caraballo’s letter would change the outcome of the decision.
20 C.F.R. § 404.970(a)(5).
The Commissioner asserts that Dr. Caraballo’s opinion is not supported by the record as a
whole and offers the following examples. Def.’s Br. 15-17 (ECF No. 20). Dr. Caraballo stated
that Plaintiff “will frequently show up to the clinic thinking that she has an appointment when
she doesn’t, and will often miss her appointments because she can’t keep herself organized
enough to keep track of them.” Tr. 9. To the contrary, the record reveals that Plaintiff was
almost always on time and was only late two times according to the record. Tr. 932, 930. Dr.
Caraballo opined that “[Plaintiff’s] ability to function on tasks that require concentration,
persistence, and a consistent pace are markedly affected.” Tr. 9. The ALJ found that the record
showed no more than moderate limitations in concentrating, persisting, or maintaining pace. Tr.
21-22. For example, the ALJ noted that despite her marijuana use prior to an appointment in
December 2013, Plaintiff “presented with a mildly disorganized, distractible thought process,
circumstantial at times but goal-directed with logical associations for the most part.” Tr. 22
(citing Tr. 887). “[Plaintiff] was unable to perform serials 7s but was able to spell ‘world’
backwards and forwards with mild difficulty.” Id. “She was able to recall 2/3 items after a fiveminute delay.” Id. The ALJ also noted that Plaintiff has routinely presented as alert and oriented.
Tr. 22 (citing Tr. 873, 911, 940).
Additionally, Dr. Caraballo opined that Plaintiff’s activities of daily living often becomes
markedly limited when her symptoms increase and when she is in the depressed part of her
Bipolar Disorder. Tr. 10. The Commissioner notes that the medical record does not include a
diagnosis of Bipolar Disorder by any acceptable medical source. Def.’s Br. 16-17 (ECF No. 20).
18 – OPINION AND ORDER
The ALJ also did not find Bipolar Disorder as a severe impairment or an impairment. Id. at 17;
see Tr. 20.
Plaintiff did not file a reply to respond to the Commissioner’s argument and therefore has
waived the argument on this issue. United States v. McEnry, 659 F.3d 893, 902 (9th Cir. 2011)
(where an argument is available but not raised, it is waived). The Court finds that the record
supports the Commissioner’s argument. Because Dr. Caraballo’s opinion is inconsistent with the
record as a whole, the Court finds that Dr. Caraballo’s opinion would not change the outcome of
the decision. The Appeals Council did not err in rejecting the new evidence.
CONCLUSION
For the reasons set forth above, the Court affirms the Commissioner’s decision.
DATED this 18th day of July 2019.
s/ Mustafa T. Kasubhai
MUSTAFA T. KASUBHAI
United States Magistrate Judge
19 – OPINION AND ORDER
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