Walters v. Commissioner Social Security Administration
Filing
23
Opinion and Order signed on 8/8/2014 by Judge Robert E. Jones.The Commisioner's final decision is AFFIRMED. (sp)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
Eugene Division
JULIE A. WALTERS,
Plaintiff,
v.
)
)
)
)
6: 13-CV-00041-JO
)
)
CAROLYN W. COLVIN, Acting Commissioner of )
Social Security,
)
)
Defendant.
)
JONES, J.,
OPINION AND ORDER
Plaintiff Julie Walters appeals the Commissioner's decision denying her application for
disability insurance benefits under Title II of the Social Security Act. The court has jurisdiction
under 42 U.S.C. § 405(g). I AFFIRl\1 the Commissioner's decision.
PRIOR PROCEEDINGS
Walters applied for disability insurance benefits alleging she became disabled in June 1999,
due to chronic pain, myofascial pain syndrome, and fibromyalgia. Admin. R. 79. For reasons that
do not matter in this appeal, the case has a long procedural histmy, including four administrative
hearings, each followed by a determination that Walters was not disabled. The foutih dete1mination
became the Commissioner's final decision and is now before me in this appeal.
1 - OPINION AND ORDER
The ALJ correctly determined that the relevant time for Walters' s claim ended on March 31,
2008, when her insured status under the Social Security Act expired. To prevail on her claim,
Walters must show that she was disabled on or before that date. 42 U.S.C. § 423(a)(l)(A). See
Tidwell v. Apfel, 161F.3d599, 601 (9th Cir. 1998).
The ALJ found that during the relevant time, Walters's ability to perform basic work
activities was limited by chronic pain, epicondylitis, degenerative joint disease of the right knee,
depression, anxiety, and dependence on narcotic pain medications. The ALJ found that, despite
these impairments, Walters retained the residual functional capacity ("RFC") to perfotm unskilled
work involving only routine tasks, light exe1tion, limited postural and climbing activities, and no
more than superficial interaction with the general public. The vocational expert ("VE") testified that
a person having Walters's RFC could perfo1m the activities required in light, unskilled occupations
such as small products assembler, parking lot attendant, and office assistant, and that those
occupations represented hundreds of thousands ofjobs in the national economy. The ALJ therefore
concluded that Walters was not disabled within the meaning of the Social Security Act during the
relevant time.
STANDARD OF REVIEW
The district court must affitm the Commissioner's decision if it is based on proper legal
standards and the findings of fact are supported by substantial evidence in the record as a whole.
Tommasetti v. Astrue, 533 F.3d 1035, 1038 (9th Cir. 2008). Substantial evidence is relevant
evidence that a reasonable person might accept as adequate to suppo1t a conclusion. Richardson v.
Perales, 402 U.S. 389, 401 (1971). Substantial evidence may be less than a preponderance of the
evidence. Robbins v. Soc. Sec. Admin., 466 F.3d 880, 882 (9th Cir. 2006). Under this standard, the
2 - OPINION AND ORDER
comtmust consider the record as a whole, and uphold the Commissioner's factual findings that are
supported by inferences reasonably drawn from the evidence even if another interpretation is also
rational. Robbins, 466 F.3d at 882; Batson v. Comm 'r ofSoc. Sec. Admin., 359 F.3d 1190, 1193
(9th Cir. 2004); Andrews v. Shalala, 53 F.3d 1035, 1039-40 (9th Cir. 1995).
DISCUSSION
I.
Claims of Error
Walters contends the ALJ improperly discounted her credibility, gave insufficient weight to
the medical opinions of Paul Chung, M.D., Karyn Ofa, D.O., and William Melcher, M.D., and
rejected a vocational evaluation report from a rehabilitation counselor. Walters argues that these
errors led the ALJ to improperly conclude that she did not satisfy the criteria for presumptive
disability under the regulatory Listing oflmpainnents and to assess her RFC in a manner that did not
accurately reflect all of her actual limitations. Pl.'s Br. 21-22.
II.
Credibility Determination
The ALJ found that Walters' s impairments could reasonably be expected to produce some
of the symptoms she alleged but that she lacked credibility regarding the extent to which her
symptoms limited her ability to function. Adm in. R. 43. The ALJ accepted that Walters experienced
chronic pain and acknowledged that she had been diagnosed with fibromyalgia, myofascial pain
syndrome, epicondylitis, degenerative changes in the right knee joint, depression, anxiety, and
dependence on narcotic medications. Admin. R. 29. He also believed these impaitments imposed
significant limitations on Walters's ability to work, as reflected in the RFC assessment. Admin. R.
33.
3 - OPINION AND ORDER
The ALJ found that Walters was not credible in her claims of functional limitations beyond
those in the RFC assessment, including those summarized here. Admin. R. 43. Walters's claimed
profound physical limitations that left her essentially bedridden. Admin. R. 325, 328, 1417. She
often described the intensity of her chronic pain as unbearable or 10/10 on the pain scale, which
commonly denotes pain that is beyond excruciating. Admin. R. 531, 547, 572, 581. She said her
pain caused daily agony and made any activity a struggle. Admin. R. 325, 338. She told a consultant
her pain was so severe that she could not sit for one minute, stand for 20 minutes, or walk 100 feet.
Admin. R. 372. She said constant pain left her barely able to walk and made sitting for any length
of time difficult. Admin. R. 1319, 1418. Walters said she could barely lift a cup of coffee. Admin.
R. 338. She alleged she could not retain information because she suffered from "fibro fog." Admin.
R. 338. She said she had difficulty remembering to take her medications. Admin. R. 774. At other
times, Walters said she could sit or stand for no more than 30 minutes and lift no more than a gallon
of milk. Admin. R. 34.
An adverse credibility determination must include specific findings supported by substantial
evidence and clear and convincing reasons. Carmickle v. Comm 'r, Soc. Sec. Adm in., 533 F.3d 1155,
1160 (9th Cir. 2008); Smolen v. Chater, 80 F.3d 1273, 1281-82 (9th Cir. 1996). The findings must
be sufficiently specific to permit the reviewing court to conclude that the ALJ did not arbitrarily
discredit the claimant's testimony. Tommasetti, 533 F.3d at 1039.
The ALJ found Walters's subjective statements about her limitations were not credible in
light of the objective and clinical medical findings, evidence that she engaged in activities that were
inconsistent with her claimed limitations, drug seeking behavior that suggested her subjective
statements about pain were unduly motivated by her dependence on narcotics, and her repeated
4 - OPINION AND ORDER
requests for specific treatment procedures based on her independent view of her medical condition
and failure to follow more appropriate therapies recommended by her physicians. Admin. R. 34-35,
39-43.
The ALJ found that the medical evidence in the record suggested only moderate limitations,
contrary to the profound physical limitations Walters alleged. This conclusion is suppmied by the
treatment records of physicians in various specialties which revealed only normal, benign, and mild
diagnostic findings with very little suggestion of functional limitation. The ALJ could reasonably
expect that the profound functional limitations Walters alleged would be revealed in the
examinations and clinical observations of her physicians. As the following summary shows, such
findings cannot be found in the medical records.
At the alleged onset of disability, Walters's primaiy complaint was chronic neck pain for
which she had been receiving increasing amounts of short acting narcotic pain medication for a
couple of years. Admin. R. 581. Physical exaininations were essentially normal, with free and easy
range of motion. Diagnostic imaging and nerve conduction studies were negative for findings that
would account for her neck symptoms. Her physicians recommended conservative treatment with
physical therapy, exercise, and a tricyclic antidepressant, but Walters insisted that only Percocet
helped. Admin. R. 167, 580-84.
Walters then had a rheumatology evaluation by William Melcher, M.D., who found she had
full ranges of motion, no spasm, little significant tenderness, a negative MRI, and normal blood
laboratory test results. He concluded there was no rheumatological basis for her pain. Admin. R.
163-64. Walters then underwent a physiatry consultation which revealed no musculoskeletal basis
for her pain. She had full painless range of motion and all objective findings and imaging were
5 - OPINION AND ORDER
completely normal. At that time, she did not have the muscular tenderness that would suppo1t a
diagnosis of fibromyalgia or myofascial pain syndrome. Her physicians concluded she had no
medical condition that was keeping her from working. Admin. R. 161, 565. Walters then underwent
a psychiatric evaluation. She reported a subjective histo1y of panic attacks, but Ro1y Green, M.D.,
found no cmTent sign of depression, anxiety, or any other affective disorder and no cognitive deficit.
Admin. R. 159-60. In physical therapy, Walters continued to complain of severe pain, but she had
full ranges of motion and clinical findings were benign except for some tenderness with palpation.
Admin. R. 220. At an 01thopedic follow up consultation, Walters had good range of motion in the
neck and had no tender point pain. Admin. R. 563.
In January 2000, primary care physician Sheila Jhansale, M.D., observed that Walters had
been seen by specialists in occupational health, physical therapy, physiatly, rheumatology,
01thopedics, and psychiatly without remarkable findings other than manifestations of manipulative
behavior to obtain short te1m narcotic pain medications. Dr. Jhansale observed that Walters had
been "requesting disability, but functions okay." She gave Walters a refenal to addiction medicine
for evaluation and treatment of her dependence on short te1m narcotics. Admin. R. 555.
In March 2000, Walters brought copies of internet aiticles about fibromyalgia to Dr.
Jhansale's office to suppo1t her request for sh01t acting narcotics, which Dr. Jhansale refused.
Admin. R. 208, 550. Soon after, Walters changed primaiy care physicians and began seeing Paul
Chung, M.D., to whom she appeared "intent on getting short acting Percocet." Admin. R. 549. In
July 2000, Paul Jacobs, M.D., perfonned another physiatly evaluation. He diagnosed fibromyalgia
syndrome, but did not identify any functional limitations. Walters's physical examination was
essentially normal except she had developed tenderness in the fibromyalgia trigger points and some
6 - OPINION AND ORDER
muscle tension. Dr. Jacobs recommended conservative behavioral therapies such as yoga, tai chi,
and meditation instead of treatment with narcotics. He specifically noted that sho1i acting narcotics
would not be a recommended therapy for fibromyalgia. Admin. R. 545-47.
In September2000, Victoria Carvalho, M.D., examined Walters for complaints oftotal body
pain. Walters said she could not sit for one minute, stand for 20 minutes or walk 100 feet, but Dr.
Carvalho's clinical findings were completely benign. Dr. Carvalho noted positive Waddell's signs
suggesting a nonorganic cause for Walters' s symptoms. She did not make clinical findings of
functional limitation. Admin. R. 372-75.
In October 2000, Duane Kolilis, Ph.D., performed a psychodiagnostic evaluation. Walters
denied depression but said she had problems with mem01y, attention, and concentration. Dr. Kolilis
observed that Walters exhibited pain behaviors that appeared to be exaggerated and to reflect specific
knowledge from the internet of the diagnostic criteria for fibromyalgia. He believed Walters gave
insincere effort on fo1mal assessment, but hermemo1y and arithmetic calculation scores were good.
Dr. Kolilis diagnosed anxiety with depressed mood, pain disorder, and dependence on prescription
opiates. He said a physical capacities examination would be needed to obtain reliable inf01mation
about her true functional limitations, suggesting Walters did not provide a valid presentation. Admin.
R. 376-81.
In February 2001, Walters injured her knee in a snowmobiling accident. She had mild
swelling but otherwise her examination was n01mal. Admin. R. 514-15. In May 2001, William
Mc Garey, M.D., perfo1med an arthroscopic exploration procedure which revealed no acute damage
in the knee.
Admin. R. 597-98.
Dr. McGarey recommended conservative treatment with
glucosamine and vitamins. Admin. R. 514. In October 2001, Walters complained of right elbow
7 - OPINION AND ORDER
pain. On examination, Dr. Chung found only localized tenderness and giveway weakness. Admin.
R. 512.
In May 2002, Walters returned to Dr. Chung at the urging of her lawyer after the remand of
an unfavorable disability determination. She told Dr. Chung she was working part time at a
mercantile store. Her primary complaint was profound fatigue with aches in her neck, lower back,
and hips. On physical examination, Dr. Chung found mild tender spots over the trapezius and
posterior neck, but not much tenderness at the other trigger points. He did not indicate any
functional limitation. Admin. R. 495-96. Walters then saw Dr. McGarey for a follow up regarding
hip pain associated with her previously injured knee.
Dr. McGarey found no evidence of
radiculopathy, bursitis, or artlll'itis of the hips. Walters had slight tenderness, but nothing to account
for her complaints. Admin. R. 492, 495.
In July 2002, Walters saw Dr. Chung for treatment and to obtain a letter for her disability
lawyer. She complained of fatigue and constant pain with prolonged standing and sitting at her part
time job. Dr. Chung's physical examination was generally unremarkable indicating full ranges of
motion, mild insignificant tenderness in places and a negative straight leg rais.e test. Admin. R. 34445. In September 2002, Walters saw another orthopedic surgeon for a second opinion regarding her
knee pain, but his review of Dr. McGarey's arthroscopic findings and a repeat MRI study showed
nothing significant. Admin. R. 480.
In April 2003, Walters saw Dr. McGarey for continuing right knee pain. She said she could
no longer walk on her right leg and driving was painful. She had a handicapped parking permit to
help with her mobility problems. MRI studies of her knees, back, and hips were negative. Dr.
McGarey made no mention of functional limitations. Admin. R. 454-55.
8 - OPINION AND ORDER
In Janumy 2007, Walters saw a gastroenterologist for complaints of lifelong bowel problems.
His examination was normal, but Walters requested a colonoscopy which was also normal. Admin.
R. 835-36, 993. Walters then saw Dr. Chung to discuss her opiate therapy plan. She said she had
been using extra pain medication because of calfpain from using the treadmill and elliptical machine
at the gym. On examination, Dr. Chung found no swelling or tenderness. He did not indicate any
functional limitation. Admin. R. 834.
In April 2007, Walters began bereavement counseling after her sister died. Admin. R. 97 476. She established primary care with Karyn Ofa, M.D., because Dr. Chung was no longer available.
Dr. Ofa noted that Walters was overusing short acting opiate medications in addition to her long
acting morphine prescription, reportedly due to increased pain from going to the gym twice a day.
Admin. R. 833. Walters saw Dr. Ofa in May 2007 for a flare up of back pain after painting a house
with her husband. Dr. Ofa found some tenderness and paraspinal muscle tightness, but Walters had
full range of motion and diagnostic imaging of the spine showed only mild degenerative changes
without acute abnormalities. Admin. R. 831, 1146.
In February 2008, Walters saw Dr. McGarey again for right leg pain from the knee to the hip.
His physical examination was normal except for tenderness at the tronchater. Diagnostic imaging
of the knees showed little change, with only mild degeneration. Imaging of the hips was normal.
Dr. McGarey gave Walters a cortisone shot and recommended home stretching. Admin. R. 907-08,
1144.
This was the extent of the pertinent medical evidence when Walters's insured status under
the Social Security Act expired on March 31, 2008. The remaining medical records from the
relevant period reflect routine health care, numerous frequent communications regarding medication
9 - OPINION AND ORDER
management, primarily emails and telephone calls explaining her numerous requests for early
Percocet refills, and communications regarding her disability claims for social security benefits,
abatement of student loans, and handicapped parking pennits.
In June 2008, Ronald Smith, Ph.D., perfo1med a psychological evaluation of Walters. Dr.
Smith reported.he did not observe any abnormalities in her posture, gait, movements, or mood. His
mental status examination was normal except Walters became tearful due to frustration while
engaged in memory testing. She said she had to write everything down in order to remember. On
foimal memory testing, however, Walters scored in the average range. Walters scored in a highly
variable pattern ranging from borderline to average on different scales of intelligence tests. She
endorsed a high number of depression symptoms on a depression invento1y. Dr. Smith diagnosed
mild depression with mild anxiety. With respect to functioning, Dr. Smith opined that Walters might
be somewhat distractible in work settings due to her somatic pain and might have some slowness if
required to change work activities or adjust to non-routine work patterns. Admin. R. 804-09.
In July 2008, Natalie Zaharoff, D.O., reviewed Walters's medical records and performed a
physical examination. Dr. Zaharoff noted that Walters sat comfortably during the examination and
could change positions, remove and put on her shoes, and get on and off the examination table
without difficulty. She had full ranges of motion throughout. Straight leg raising, muscle strength,
bulk and tone, sens01y exam, and reflexes were all normal. Walters had sufficient tender points to
support a fibromyalgia diagnosis. Nonetheless, with respect to functioning, Dr. Zaharoff found no
objective basis for any restriction in standing, walking, sitting, lifting, engaging in postural activities
such as bending, stooping or crouching, or on manipulative activities such as reaching or grasping.
Admin. R. 818-22.
10- OPINION AND ORDER
The ALJ could reasonably find that the absence of clinical observations of functional
limitations or abnormal objective findings in these medical records conflicts with Walters's
subjective complaints of constant excruciating pain that leaves her with the profound limitations she
claimed in sitting, standing, walking, bending, lifting, and retaining information. Such a conflict
supports an adverse inference that undermines the claimant's credibility. },;Jorgan v. Comm 'r ofSoc.
Sec. Admin., 169 F.3d 595, 600 (9'h Cir. 1999). The absence of medical evidence regarding the
severity of symptoms cannot be the sole basis for discrediting subjective statements, but it remains
a proper factor in the credibility analysis from which reasonable inferences may be drawn.
Lingenfelter v. Astrue, 504 F.3d 1028, 1040 (9th Cir. 2007); Burch v. Barnhart, 400 F.3d 676, 681
(9th Cir. 2005).
The ALJ found that Walters' s activities during the relevant period showed functional abilities
exceeding the limitations she alleged. Admin. R. 31-32, 43. The ALJ found that Walters engaged
in work activities during the relevant period. Admin. R. 28-29. This is supported by her earnings
records and statements to physicians in which she refen-ed to her employment. Admin. R. 167, 208,
494, 495-96, 527, 582-83, 847, 864, 1046, 1051, 1063, 1069, 1073, 1083-84. Although these part
time jobs are not equivalent to sustained full time work, they are inconsistent with the extreme
limitations Walters alleged. Such inconsistencies between a claimant's subjective statements and
conduct provide a basis to discount the claimant's credibility. Light v. Soc. Sec. Admin., 119 F.3d
789, 792 (9th Cir. 1997).
In addition, Walters traveled extensively during the relevant period, flying to the east coast
and Las Vegas, moving frequently between Oregon and Arizona, and driving to and from cities
where her husband built houses, including Roseburg, Portland, Waldpo1i, and Bend, Oregon, and
11 - OPINION AND ORDER
Lake Havasu, Arizona. Admin. R. 378, 440, 544, 831, 841, 905, 942, 944, 954, 988, 989, 1004,
1067, 1401. Walters often sought additional narcotics for increased pain after activities such as boat
trips, a snowmobile trip, long drives, packing and moving her household, readying houses for sale,
painting, crabbing, and working out at the gym. Admin. R. 159-60, 514-15, 524, 543-44, 548, 555,
649, 833-34, 840, 1015. The ALJ couldreasonablyexpectthata person with the limitations Walters
claimed would not engage in these activities. Accordingly, he could reasonably draw an adverse
inference as to the credibility ofWalters's claims from her participation in such activities.
Similarly, Walters alleged that physical limitations, impaired memory and concentration, and
"fibro fog" made it difficult for her to type, sit at a computer, write, retain info1mation, and keep
track of when to take her medications. Admin. R. 325, 326, 335, 338, 774, 777. The record includes
numerous letters and emails that show she was capable of writing long, articulate, organized, and
logical conespondence to advocate for herself and reflect that she was well aware ofher medication
schedule at all times. Admin. R. 41-42, 68-69, 95, 143-45, 243, 275-76, 319, 320-22, 325, 334-35,
338,690,902,905,906,933-37,943-44,949,988-89, 1006.
In sum, the ALJ could reasonably find Walters' s activities inconsistent with the limitations
she alleged. Therefore, her activities provide a proper basis for the ALJ's adverse credibility
dete1mination. Rollins v. 1Vfassanari, 261 F.3d 853, 857 (9th Cir. 2001).
The ALJ appropriately found that Walters's persistent drug seeking behavior and
manipulation of her health care providers suggested that her statements about the intensity of her
subjective pain and associated functional limitations were unreliable. Admin. R. 38-39. Evidence
ofWalters's drug seeking behavior is pervasive throughout the record from before her alleged onset
of disability through the expiration of her insured status. Admin. R. 151, 175, 211, 552-53, 555.
12 - OPINION AND ORDER
She was unable to abide by her pain medication contracts and many of her medical records are
actually coll'espondence with physicians centered on obtaining early refills of short acting narcotics.
Admin. R. 440, 483, 550, 840, 905, 906, 930, 933, 986, 1053, 1067, 1069, 1074, 1106. She failed
to comply with treatment recommendations for behavioral non-narcotic modalities of pain control
and to discontinue short acting narcotics and benzodiazepines. Admin. R. 229, 530. This evidence
supports an adverse inference as to Walters' s credibility regarding the intensity of her symptoms.
Edlundv. lvfassanari, 253 F.3d 1152, 1157 (9th Cir. 2001).
The ALJ' s findings are supported by abundant evidence and show that he did not arbitrarily
discount Walters' s credibility. The reasoning is clear and convincing and I find no error in the ALJ' s
credibility dete1mination. Carmickle, 533 F.3d at 1160; Tommasetti, 533 F.3d at 1039.
III.
Medical Opinions
Walters contends the ALJ gave insufficient weight to the medical opinions of Paul Chung,
M.D., Karyn Ofa, D.O., and William Melcher, M.D. Their treatment records are summarized in the
preceding section of this opinion.
In addition to the treatment described previously, Drs. Chung and Ofa provided opinion
letters in support ofWalters's disability claim. Dr. Chung wrote several times that Walters would
have difficulty working full time on a sustained basis, even at light or sedentary exertion. Admin.
R. 641-44. In another letter he suggested that she had cognitive impairment resulting from her
medications, fatigue, pain with prolonged sitting, standing, or walking, and lifting ability limited to
15 pounds. Admin. R. 800. Dr. Ofa wrote that it would be difficult for Walters to maintain any
employment due to her medical condition and the high doses of narcotics she was taking. Admin.
R. 803, 1256. Walters contends these letters should be given controlling weight.
13 - OPINION AND ORDER
The ALJ discussed these opinions at length, but ultimately gave them little weight relative
to other evidence he found more reliable. Admin. R. 37-43. AnALJ can reject a physician's opinion
in favor of the opinions of other physicians, if the ALJ makes "findings setting forth specific,
legitimate reasons for doing so that are based on substantial evidence in the record." Thomas v.
Barnhart, 278 F.3d 947, 957 (9th Cir. 2002) quotingA'1agallanes v. Bowen, 881F.2d747, 751 (9th
Cir. 1989);Lesterv. Chater, 81F.3d821, 830 (9th Cir. 1995). The disability opinions ofDrs. Chung
and Ofa were inconsistent with other medical opinions and findings. Dr. Jhansale said that despite
her request for a disability letter, Walters functioned adequately. Admin. R. 555. Dr. Melcher asked
her to return to work. Admin. R. 161. Dr. Chung said that her activities showed she was "quite
functional physically." Admin. R. 548. Dr. Zaharoff said that despite her chronic pain and
fibromyalgia diagnosis, Walters could walk, sit, lift, and engage in postural activities without
restriction through an eight-hour day. Admin. R. 818-22. Drs. Green, Kolilis, and Smith found no
limitations in mental function that would preclude routine work. Admin. R. 158-60, 376-81, 809,
815. The ALJ found these opinions were more reliable because they were more consistent with the
record as a whole and less reliant on Walters's subjective description of her limitations.
With respect to the statements in these letters that Walters would be unemployable or would
have difficulty maintaining employment, these are not medical opinions about her capabilities, but
vocational opinions that require expertise medical doctors do not have. An ALJ must consider such
opinions, but they cannot be given controlling weight or special significance.
20 C.F.R. §
404.1527(e); SSR 96-5p, 1996 WL 374183, *2-3.
Drs. Chung and Ofa did not identify clinical findings to support their disability opinions.
Indeed, as described previously, the medical records provide ve1y little clinical evidence of
14- OPINION AND ORDER
functional limitations. The primary source of such evidence is Walters herself. An ALJ may
discount the disability opinions of treating physicians if they are concluso1y and unsupported by
clinical findings. 1\feanal v. Apfel, l 72 F.3d 1111, 1117 (9th Cir. 1999).
The medical records reflect that Drs. Chung and Ofa relied primarily on the diagnostic
findings of others and the subjective description of limitations provided by Walters. For example,
the limitations in Dr. Chung's letter appear to restate the explanation Walters gave him when she
quit working. Admin. R. 800. When Walters asked Dr. Ofa to write a letter in support of her
disability claim, she provided a subjective summary of the limitations preventing her from working.
Admin. R. 881. The ALJ' s finding that Drs. Chung and Ofa relied primarily on Walters' s subjective
description of her limitations can reasonably be inferred from the evidence and the absence of
clinical findings. An ALJ may reject a treating physician's opinion that is premised primarily on
subjective complaints that the ALJ properly found umeliable. Tonapetyan v. Halter, 242 F.3d 1144,
1149 (9th Cir. 2001).
The ALJ also pointed out that Walters was skilled at manipulating her physicians in order
to independently manage her health care. Admin. R. 38-39. The record reflects that Walters
engaged in independent medical research and self diagnosis and directed her treatment. Most
notably, as described previously, Walters was able to overcome the recommendations of addiction
medicine specialists, psychiatrists, and others who recommended that she discontinue using opiates
due to her dependence problems. Her fibromyalgia specialists said the most effective therapies were
behavioral and that if pain medication were used, it should not be short acting narcotics. Despite
these recommendations, Drs. Chung and Ofa repeatedly acquiesced in her preferred treatment with
high doses of short acting narcotics. The ALJ could reasonably infer from this that Drs. Chung and
15 - OPINION AND ORDER
Ofa might be susceptible to manipulation regarding their disability opinions, as well. In addition,
the ALJ found that the disability opinions did not account for the activities Walters engaged in,
which showed her functional capacity far exceeded what Walters claimed.
With respect to Dr. Melcher's opinion, Walters objects that the ALJ did not refer to him by
name and argues that the ALJ improperly ignored two treatment notes. Plfs Br. 25. The first note
relates to a consultation in June 2002, in which Dr. Melcher noted that Walters had a histmy of
chronic nonmalignant pain and fibromyalgia. He acceded to Walters's request for a form of
treatment about which he said "I have not seen good results with this therapy in the past; however,
the patient said it is suppose to be most effective." Admin. R. 500. To the extent this amounts to
an opinion that Walters had a valid diagnosis of chronic pain and fibromyalgia syndrome, the ALJ
did not reject it.
In the other treatment note, from August 2003, Dr. Melcher said he had reviewed Dr.
Chung's letter and agreed with "work restrictions such as lifting less than 15 pounds and limited
walking, standing, climbing." Admin. R. 443. As to this endorsement of Dr. Chung's letter, the ALJ
adequately addressed the limitations in Dr. Chung's opinion as described previously.
The ALJ' s findings are supported by substantial evidence and set fotth specific, legitimate
reasons for discounting the disability letters ofDrs. Chung and Ofa. Thomas v. Barnhart, 278 F.3d
at 957. The ALJ reasonably relied on other evidence he found more reliable. I find no error.
IV.
Vocational Evaluation
In April 2009, more than a year after her insured status expired, Walters unde1went a
vocational evaluation administered by Peggy Wright, a rehabilitation counselor. Wright reported
that Walters was unable to complete a majority of the assessments due to subjectively repo1ted pain,
16- OPINION AND ORDER
fatigue, and cognitive deficits. Walters had severely substandard scores in basic math, ruler reading,
sentence structure concepts, and written communication. On tasks involving upper extremity range
of motion, total body range of motion, dexterity, simulated assembly, and assembly, Walters either
failed to complete the assessment or achieved extremely low scores. Wright attributed her low
scores to poor endurance and an inability to absorb and follow instructions. She believed Walters
gave good effoti. Wright opined that Walters would not be employable in competitive work because
she could not repetitively grasp or engage in fine manipulation, could not keep her neck in a static
or flexed position, and demonstrated inconsistent and unacceptable cognitive and productivity
performance. Admin. R. 1205-13.
An ALJ is required to consider and give due weight to all relevant evidence in the case
record, including opinion evidence from non-medical sources who have seen the claimant in a
professional capacity. An ALJ must consider such evidence and provide germane reasons in order
to properly disregard it. Turner v. Comm 'r ofSoc. Sec., 613 F.3d 1217, 1223-24 (9th Cir. 2010);
Lewis v. Apfel, 236 F.3d 503, 511 (9th Cir.2001).
Here, the ALJ discussed Wright's evaluation, but detetmined it was entitled to no weight in
the disability dete1mination. Admin. R. 42. The ALJ did not agree with Wright's statement that
Walters gave full effoti in the evaluation. Because much of her poor performance was attributed to
subjectively repo1ied fatigue, pain, and inability to absorb instructions, Walters' s lack of credibility
and histo1y of manipulative behavior gave the ALJ reason to doubt the validity of her effort.
Wright's conclusions and Walters's poor performance were inconsistent with evidence from the
relevant period oftime. For example, the ALJ noted that her severely substandard performance on
sentence structure and written communication was contradicted by numerous letters and emails to
17 - OPINION AND ORDER
doctors which showed she had good composition skills. Her poor performance on tasks involving
range of motion, grasping, and fine manipulation were contradicted by physical examinations
showing she had no limitations in these areas. Likewise, several psychological evaluations revealed
no cognitive deficits. In sum, I find no en·or in the ALJ's evaluation of Wright's repo1i.
V.
Listing of Impairments
Walters contends the ALJ should have found that she satisfied the criteria for presumptive
disability under Listing 14.06 Undifferentiated Connective Tissue Disorder or Listing 14.09
Inflammatory Arthritis under the regulatory Listing ofimpairments in Appendix 1 of20 C.F.R. Pait
404, Subpaii P. The ALJ considered the two Listings and found that the reliable evidence did not
support either the diagnostic criteria or the severity criteria. Admin. R. 31-32. Walters contends she
is markedly limited in three broad categories of function, viz. activities of daily living, maintaining
social functioning, and sustained concentration, persistence, or pace. Walters relies on evidence the
ALJ properly discounted, however, and the evidence he found reliable does not suppoit her
contention.
Because I find the ALJ properly evaluated the evidence and reached conclusions that are
supported by substantial evidence, I must affi1m the ALJ' s step three determination even if the
evidence could rationally be interpreted in the manner urged by Walters. Robbins, 466 F.3d at 882;
Batson, 359 F.3d at 1193; Andrews, 53 F.3d at 1039-40. I find no enor in the ALJ's determination
that Walters failed to satisfy the criteria of an impairment in the regulatory Listing of Impahments.
VI.
RFC Assessment
Walters contends the ALJ' s RFC assessment failed to accurately reflect all of her functional
limitations. Again, however, Walters relies only on evidence that the ALJ found umeliable. An
18 - OPINION AND ORDER
ALJ' s RFC assessment need not include limitations the ALJ finds unsupported by the record.
Osenbrock v. Apfel, 240 F.3d 1157, 1163-65 (9th Cir. 2001). Here, the ALJ's RFC assessment
reasonably captures all the limitations supported by the evidence he found reliable. Accordingly,
there is no e1rnr in the RFC assessment.
CONCLUSION
For the foregoing reasons, the Commissioner's final decision is AFFIRMED.
DATED this ~aay of August, 2014.
, Senior Judge
es District Court
19- OPINION AND ORDER
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