Fenton v. Commissioner Social Security Administration
Filing
22
Opinion and Order - The Commissioner's motion for an amended or corrected judgment (Dkt. 20 ) is GRANTED. The Court amends the Discussion section of its March 9, 2015 Opinion and Order as set forth herein. The Court VACATES its March 9, 2015 Judgment. The Commissioner's decision that Plaintiff is not disabled within the meaning of the Social Security Act is AFFIRMED. Signed on 5/13/2015 by Judge Michael H. Simon. (mja)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
DONA C. FENTON,
Plaintiff,
Case No. 6:14-cv-0350-SI
OPINION AND ORDER
v.
CAROLYN W. COLVIN,
Commissioner of Social Security,
Defendant.
Alan Stuart Graf, 208 Pine Street, Floyd, VA 24091. Attorney for Plaintiff.
S. Amanda Marshall, United States Attorney, and Ronald K. Silver, Assistant United States
Attorney, UNITED STATES ATTORNEYS OFFICE, District of Oregon, 1000 S.W. Third
Avenue, Suite 600, Portland, OR 97201-2902; Lisa Goldoftas, Special Assistant United States
Attorney, OFFICE OF THE GENERAL COUNSEL, Social Security Administration, 701 Fifth
Avenue, Suite 2900 M/S 221A, Seattle, WA 98104-7075. Attorneys for Defendant.
Michael H. Simon, District Judge.
On March 9, 2015, the Court reversed the decision of the Commissioner of Social
Security (“Commissioner”) and remanded this case for an award of benefits. Dkts. 18 and 19. On
April 6, 2015, the Commissioner filed a motion under Federal Rule of Civil Procedure 59(e),
requesting that the Court amend or correct its Opinion and Order and Judgment remanding the
case for an award of benefits. Dkt. 20.
PAGE 1 – OPINION AND ORDER
Under Federal Rule of Civil Procedure 59(e), a court has discretion to alter or amend a
judgment if: (1) it is presented with newly discovered evidence; (2) it committed clear error or
made an initial decision that was manifestly unjust; or (3) there is an intervening change in
controlling law. Ybarra v. McDaniel, 656 F.3d 984, 998 (9th Cir. 2011), cert. denied, 133 S.
Ct. 424 (2012); see also McDowell v. Calderon, 197 F.3d 1253, 1255 (9th Cir. 1999) (“A motion
for reconsideration under Rule 59(e) should not be granted, absent highly unusual circumstances,
unless the district court is presented with newly discovered evidence, committed clear error, or if
there is an intervening change in the controlling law.”) (citation and quotation marks omitted).
Reconsideration is an “extraordinary remedy, to be used sparingly in the interests of finality and
conservation of judicial resources.” Kona Enters., Inc. v. Estate of Bishop, 229 F.3d 877, 890
(9th Cir. 2000) (quotation marks and citation omitted).
The Commissioner argues that an amended or corrected opinion and judgment are
appropriate in this case because the Court erroneously relied on the date that certain medical
records were printed as the date the medical records were created. The correct dates of the
medical records demonstrate that Plaintiff had very long periods of time with no symptoms and
during which time she did not seek treatment and thus, the Commissioner argues, demonstrate
that the ALJ did not err in her credibility determinations. Plaintiff argues that the Court’s
mistaken review of the evidence should not affect the Court’s rejection of the ALJ’s credibility
determinations.
The Court agrees with the Commissioner that the Court’s misunderstanding of the dates
of the medical evidence rendered the Opinion and Order erroneous and unjust. The Court
therefore amends the Discussion section of its March 9, 2015 Opinion and Order as set forth
below.
PAGE 2 – OPINION AND ORDER
DISCUSSION
A. Headache Treatment Summary
Considering the correct dates of the medical evidence, Plaintiff’s headache and treatment
history with Dr. Mia Schreiner are as follows:
June 2009: Dr. Schreiner begins treating Plaintiff for daily headaches. AR 269-73.
July 21, 2009: Plaintiff reports that her headaches are now episodic instead of
daily and Dr. Schreiner notes that Plaintiff’s headaches are now approximately
four headaches in every 10-12 days.1 AR 261-63.
August 2009: Plaintiff has two visits with Dr. Schreiner, reporting continuing
episodic headaches. Dr. Schreiner notes that she would like Plaintiff to continue
not working because Plaintiff has a “very strenuous job” and exertion makes
Plaintiff’s headaches worse. AR 255-60.
September 22, 2009: Plaintiff reports only four headaches in the last three weeks,
but reports dizziness from her medication. Dr. Schreiner notes that she would like
Plaintiff to continue not working because of the dizziness, which Dr. Schreiner
expects will resolve in a few weeks. AR 252-54.
1
Dr. Schreiner’s treatment notes contain an “impression” section at the end. For
Plaintiff’s July 21, 2009 visit, Dr. Schreiner notes in that section that Plaintiff’s headaches had
been daily and were “now” episodic, with approximately four in every 10-12 days. This notation
continues nearly verbatim in the “impression” section of Dr. Schreiner’s treatment notes for each
of Plaintiff’s appointments thereafter (except for Plaintiff’s post-hearing visit on September 24,
2012), even though in the treatment notes regarding each specific visit, Dr. Schreiner details
Plaintiff’s contemporaneous reports regarding the duration and severity of her headaches as of
that specific visit. For visits after July 21, 2009, the Court considers the specific
contemporaneous notes by Dr. Schreiner regarding the severity and duration of Plaintiff’s
headaches. The Court does not consider the boiler-plate summary that Plaintiff’s headaches are
approximately four in every 10-12 days that is contained in the “impression” section and that
remains unchanged after July 21, 2009.
PAGE 3 – OPINION AND ORDER
October 15, 2009: Plaintiff reports no headaches since her last visit, her dizziness
from the medication has resolved, and she thinks she can return to work.
Dr. Schreiner gives Plaintiff a release back to work. AR 250-51.
December 4, 2009: Plaintiff reports only two mild headaches since her last visit,
both of which were precipitated by lifting something heavy at work and that she
continues to do well on her medication. Plaintiff reports her headaches are doing
well and her job has been mostly stress-free. Dr. Schreiner does not mention any
work restrictions. AR 248-49.
December 15, 2009: Plaintiff reports a headache lasting four days triggered by the
stress of having to work the cash register at work. Dr. Schreiner administers a
right greater occipital nerve block. Dr. Schreiner writes a note to Plaintiff’s job
regarding the stress of having Plaintiff work the cash register triggering
headaches. AR 245-47.
March 5, 2010: Plaintiff reports daily headaches occurring for the previous three
weeks, after weeks of relief from the nerve block administered on December 15,
2009. Dr. Schreiner administers another right greater occipital nerve block.
Dr. Schreiner does not mention any work restrictions. AR 242-44.
April 1, 2010: Plaintiff’s amended disability onset date.
April 2010: Plaintiff leaves her job at Big Lots, expecting to take a job with her
cousin that would not require lifting and would be less hours. AR 36-37.
April 1, 2011: Plaintiff reports that she had been doing well until the last few
months, when her pain returned and could last for several days at a time.
Dr. Schreiner opines that Plaintiff’s worsening headaches may have been caused
PAGE 4 – OPINION AND ORDER
by Plaintiff’s November 2010 motor vehicle accident and the resulting physical
therapy neck exercises. Dr. Schreiner administers a right greater occipital nerve
block. Dr. Schreiner advises Plaintiff to avoid pressure on the back of Plaintiff’s
head but does not mention any work or other restrictions. AR 286-88.
July 1, 2011: Plaintiff reports that she has been doing “very well” since her last
visit and that she has not had any headaches. Dr. Schreiner advises Plaintiff to
continue to avoid pressure on the back of Plaintiff’s head but does not mention
any work or other restrictions.AR 284-85.
January 3, 2012: Plaintiff reports that she lowered the dosage of her medication
and that triggered headaches beginning in November 2011 so she raised her
dosage and since then has been doing well without any headaches and without
any side effects. Dr. Schreiner again advises Plaintiff to avoid pressure on the
back of Plaintiff’s head but does not mention any work or other restrictions.
AR 281-83.
March 23, 2012: Dr. Schreiner completes a medical opinion form supplied by
Plaintiff’s counsel, implying that Plaintiff left work in April 2010 due to her
headaches, opining that Plaintiff’s condition lasts or could be expected to last
greater than 12 months, opining that Plaintiff would miss two or more days per
month of work, and marking “yes” that Plaintiff has been unable to work since
June 10, 2009. AR 348-50.
September 17, 2012: Plaintiff testifies at the hearing that she has headaches four
to six days a week and gets dizzy 20 times per day. She also testifies that she can
PAGE 5 – OPINION AND ORDER
walk one to two miles, has no problems sitting, and can lift approximately six
pounds. AR 43-45.
September 24, 2012: After the hearing, Plaintiff reports to Dr. Schreiner that
Plaintiff’s headaches and dizziness “returned” in August 2012, are daily, and are
at a level 8 on the pain scale. Dr. Schreiner notes that there is no clear cause for
Plaintiff’s returning headaches and that Plaintiff’s examination was normal.
AR 352-54.
September 25, 2012: Dr. Schreiner completes a report provided to her by
Plaintiff’s counsel. Dr. Schreiner notes that on September 24, 2012, Plaintiff
reported a “return” of daily and incapacitating headaches in August 2012, without
having made any changes to her medication. Dr. Schreiner further notes that
headaches are unpredictable and tend to be worse at some times and better at
other times. Dr. Schreiner checks “yes” to questions asking if Plaintiff’s
headaches would wax and wane; if Plaintiff would miss two days a month of
work, despite Plaintiff’s periods of improvement; and if low stress jobs would
make it more likely that Plaintiff would experience headaches. AR 356-59.
B. Plaintiff’s Credibility
Plaintiff argues that the ALJ improperly found her not credible. There is a two-step
process for evaluating the credibility of a claimant's own testimony about the severity and
limiting effect of the claimant's symptoms. Vasquez v. Astrue, 572 F.3d 586, 591 (9th Cir. 2009)
(citing Lingenfelter v. Astrue, 504 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.”
PAGE 6 – OPINION AND ORDER
Lingenfelter, 504 F.3d at 1036 (quotation marks and citation omitted). When doing so, the
claimant “need not show that her impairment could reasonably be expected to cause the severity
of the symptom she has alleged; she need only show that it could reasonably have caused some
degree of the symptom.” Smolen v. Chater, 80 F.3d 1273, 1282 (9th Cir. 1996)
Second, “if the claimant meets this first test, and there is no evidence of malingering, ‘the
ALJ can reject the claimant's testimony about the severity of her symptoms only by offering
specific, clear and convincing reasons for doing so.’” Lingenfelter, 504 F.3d at 1036 (quoting
Smolen, 80 F.3d at 1281). It is “not sufficient for the ALJ to make only general findings; he must
state which pain testimony is not credible and what evidence suggests the complaints are not
credible.” Dodrill v. Shalala, 12 F.3d 915, 918 (9th Cir. 1993). Those reasons 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) (citing
Bunnell v. Sullivan, 947 F.2d 341, 345–46 (9th Cir. 1991)).
The ALJ may consider objective medical evidence and the claimant’s treatment history,
as well as the claimant’s daily activities, work record, and observations of physicians and third
parties with personal knowledge of the claimant’s functional limitations. Smolen, 80 F.3d at
1284. The Commissioner recommends assessing the claimant’s daily activities; the location,
duration, frequency, and intensity of the individual’s pain or other symptoms; factors that
precipitate and aggravate the symptoms; the type, dosage, effectiveness, and side effects of any
medication the individual takes or has taken to alleviate pain or other symptoms; treatment, other
than medication, the individual receives or has received for relief of pain or other symptoms; and
any measures other than treatment the individual uses or has used to relieve pain or other
symptoms. See SSR 96–7p, 1996 WL 374186 (Jul. 2, 1996).
PAGE 7 – OPINION AND ORDER
Further, the U.S. Court of Appeals for the Ninth Circuit has said that an ALJ “may
consider . . . ordinary techniques of credibility evaluation, such as the claimant's reputation for
lying, prior inconsistent statements concerning the symptoms, . . . other testimony by the
claimant that appears less than candid [, and] unexplained or inadequately explained failure to
seek treatment or to follow a prescribed course of treatment.” Smolen, 80 F.3d at 1284. The ALJ
may not, however, make a negative credibility finding “solely because” the claimant’s symptom
testimony “is not substantiated affirmatively by objective medical evidence.” Robbins, 466 F.3d
at 883. The ALJ’s credibility decision may be upheld overall even if not all of the ALJ’s reasons
for rejecting the claimant’s testimony are upheld. See Batson, 359 F.3d at 1197.
Plaintiff alleges a disability onset date of April 1, 2010.2 Plaintiff testified at the
September 17, 2012 hearing that she is unable to work due to recurring debilitating headaches.
Plaintiff testified that she had left her job at Big Lots in April 2010 because she intended to take
a job with her cousin that would not require her to lift objects and would require fewer hours.
This job never materialized and Plaintiff did not work after leaving Big Lots. Plaintiff also
testified that her headaches got worse in 2012, but admitted that she had not seen a doctor for her
headaches since January, 2012.
The ALJ found Plaintiff’s testimony to be not fully credible. The ALJ found Plaintiff’s
statements regarding the limiting effects of her headaches to be inconsistent with and
unsupported by the medical evidence, contradicted by Plaintiff’s activities of daily living,
contradicted by Plaintiff’s improvements with medication, and incredible in light of Plaintiff’s
2
Plaintiff originally asserted a disability onset date of June 10, 2009, but at the hearing
amended it to April 1, 2010, because Plaintiff had continued to work after the original alleged
disability onset date.
PAGE 8 – OPINION AND ORDER
failure to seek treatment. The Court previously rejected each of these as a clear and convincing
reason to reject Plaintiff’s testimony.
With the corrected treatment dates before the Court, the accurate timeline of Plaintiff’s
treatment records evidences that the ALJ’s determination that Plaintiff’s testimony was not fully
credible is supported by substantial evidence in the record. The ALJ’s determination that
Plaintiff’s improvement with medication, Plaintiff’s failure to seek treatment, and the
inconsistency between Plaintiff’s medical records and her testimony were clear and convincing
reasons to discredit Plaintiff’s testimony was a rational interpretation of the evidence.3 Although
the evidence may also support another interpretation, the Court must uphold the ALJ’s
interpretation if it is rational. See Burch v. Barnhart, 400 F .3d 676, 679 (9th Cir. 2005) (“Where
evidence is susceptible to more than one rational interpretation, it is the ALJ’s conclusion that
must be upheld.”).
1. Improvement with medication
As the Court previously found, the record supports that Plaintiff improved with
medication and improvement with medication may be a clear and convincing reason to discount
credibility. The Court’s previous finding that the medical evidence supports Plaintiff’s testimony
that her current symptoms are not improved, however, is no longer supported by the evidence.
The Court had determined that Plaintiff reported improvement from April 2011 through
January 2012, but then reported in February 2012 episodic headaches of approximately four in
every 10-12 days. There was, however, no such report of worsening symptoms in February 2012.
3
The Court does not amend its finding regarding Plaintiff’s daily living activities
contradicting Plaintiff’s testimony regarding her headaches. Headaches are episodic in nature
and it follows that during the periods when Plaintiff is not suffering a migraine headache, she
would not be significantly limited in her daily functioning. It is thus consistent with Plaintiff’s
testimony that, when not suffering a migraine, she is able to perform the daily activities noted by
the ALJ.
PAGE 9 – OPINION AND ORDER
The record thus shows that from April 2011 through the date of the hearing, Plaintiff’s reports to
Dr. Schreiner were that Plaintiff’s symptoms had improved with medication and that Plaintiff
suffered no headaches after April 2011 except for a time period where Plaintiff had tested
lowering her medication. The fact that Plaintiff reported to Dr. Schreiner a few days after the
hearing that Plaintiff’s headaches had “returned” in August 2012 does not detract from her
repeated reports of improvement with medication that occurred before the ALJ questioned at the
hearing the veracity of Plaintiff’s testimony that her symptoms had not improved with
medication. Thus, the ALJ did not err in determining that Plaintiff’s improvement with
medication was a clear and convincing reason to discredit her hearing testimony.
2. Failure to seek treatment
“Unexplained or inadequately explained failure to seek treatment or to follow a
prescribed course of treatment” is a factor the ALJ may consider in weighing a claimant’s
credibility. Tommasetti v. Astrue, 533 F.3d 1035, 1039 (9th Cir. 2008). Here, Plaintiff testified in
September 2012 that her headaches were debilitating, but she had not sought treatment since her
July 2011 and January 2012 visits with Dr. Schreiner where she reported having no headaches.
The fact that the Court had mistakenly determined that Plaintiff had sought treatment in
February 2012 and complained of headaches renders the Court’s finding that Plaintiff’s treatment
gaps did not support rejecting her credibility erroneous and unjust. With the accurate treatment
timeline, the fact that Plaintiff did not seek treatment at all in 2012 for her allegedly debilitating
headaches was a clear and convincing reason to discount Plaintiff’s credibility.
Plaintiff’s treatment records show that when her headaches returned or increased in
severity, she sought treatment from Dr. Schreiner. For example, Plaintiff saw Dr. Schreiner on
December 4, 2009, and her follow up was not supposed to be until three months later. Plaintiff,
however, sought treatment less than two weeks later, on December 15, 2009, because she had a
PAGE 10 – OPINION AND ORDER
headache that lasted four days. This treatment resulted in Plaintiff being headache-free for many
weeks. When her headaches returned, she sought treatment on March 5, 2010. This treatment
resulted in Plaintiff being headache-free for nearly a year. When her headaches returned, she
sought treatment from Dr. Schreiner on April 1, 2011. This treatment worked and as of
July 2011, Plaintiff reported having no headaches. She again reported having no headaches in
January 2012, except for in November 2011 when she experimented with lowering her
medication.
Plaintiff offered no explanation at the hearing for why, if her headaches returned after
January 2012, she did not seek treatment for those headaches as she had in the past. Her past
treatments had been successful and there was no indication that treatment in 2012 would be futile
or unsuccessful. Plaintiff also offers no argument to the Court for why she did not seek treatment
in 2012 until a few days after the hearing, after the ALJ had questioned her failure to seek
treatment for her allegedly debilitating headaches. Plaintiff does not argue that she does not have
insurance or could not afford treatment. To the contrary, immediately after the hearing Plaintiff
sought treatment from Dr. Schreiner.
Plaintiff reported to Dr. Schreiner on September 24, 2012, that Plaintiff’s headaches
“returned” in August 2012, one month before Plaintiff’s hearing before the ALJ. Plaintiff
reported that this “return” of headaches occurred without any triggering event such as stress or
lifting heavy objects or a medication change, such as had triggered Plaintiff’s previous reports of
returning headaches. This report to Dr. Schreiner, however, was also inconsistent with Plaintiff’s
testimony at the hearing, which was that Plaintiff had not had periods of improvement in 2011
or 2012.
PAGE 11 – OPINION AND ORDER
The ALJ did not err in considering Plaintiff’s failure to seek treatment after her
headaches allegedly returned in 2012 a clear and convincing reason to discount Plaintiff’s
credibility.
3. Inconsistency with the medical records
Dr. Schreiner’s treatment records show that Plaintiff reported on July 1, 2011 that she had
been headache-free since her April 1, 2011 visit. Plaintiff also reported on January 3, 2012 that
she had been headache-free, except for in November 2011 when she attempted to reduce her
medication dosage. At the hearing, however, Plaintiff testified that she had not been headachefree in 2011 or 2012. The Court’s previous finding that Dr. Schreiner had noted that Plaintiff’s
headaches had returned by July 2011 was erroneous. Dr. Schreiner’s treatment notes state that
Plaintiff reported no headaches in her July 1, 2011 visit. Specifically, Dr. Schreiner reports:
[Plaintiff] has been doing very well since I last saw her in April.
Since increasing the Tegretol at that time to 100 mg 2 tablets t.i.d.,
she has not had any headaches at all. She denies any side effects
from Tegretol except occasionally feeling off balance. She would
like to continue the current dose of Tegretol as it is helping her
headaches a lot.
AR 284.
Similarly, in January 2012 Dr. Schreiner reports that Plaintiff had wanted to decrease her
Tegretol to see if she still needed it. Plaintiff reduced her dose and began having headaches in
November 2011. Plaintiff increased her dose and reported to Dr. Schreiner that after increasing
her medication she is “doing fine again without any headaches. No Tegretol side effects.”
AR 281.
Further, the Court’s previous reliance on the fact that Plaintiff had two types of
headaches does not negate Plaintiff’s reports to Dr. Schreiner in July 2011 and January 2012 of
being headache-free, because Dr. Schreiner clarified that those reports by Plaintiff and
PAGE 12 – OPINION AND ORDER
Dr. Schreiner’s statements regarding Plaintiff being headache-free applied to both types of
Plaintiff’s headaches. AR 357. Thus, Plaintiff’s testimony at the September 2012 hearing was
inconsistent with her contemporaneous reports to Dr. Schreiner in 2011 and 2012. As noted
above, Plaintiff’s report to Dr. Schreiner on September 24, 2012 that Plaintiff’s headaches had
returned in August 2012 is also inconsistent with her testimony at the hearing. The ALJ did not
err in considering the inconsistencies between Plaintiff’s testimony and her reports to
Dr. Schreiner to be a clear and convincing reason to discount Plaintiff’s credibility.
C. Treating Neurologist Dr. Mia Schreiner
The ALJ is responsible for resolving conflicts in the medical record, including conflicts
among physicians’ opinions. Carmickle v. Comm’r, 533 F.3d 1155, 1164 (9th Cir. 2008). The
Ninth Circuit distinguishes between the opinions of three types of physicians: treating
physicians, examining physicians, and non-examining physicians. The opinions of treating
physicians are generally accorded greater weight than the opinions of non-treating physicians.
Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1995). A treating doctor’s opinion that is not
contradicted by the opinion of another physician can be rejected only for “clear and convincing”
reasons. Baxter v. Sullivan, 923 F.2d 1391, 1396 (9th Cir. 1991).
If a treating doctor’s opinion is contradicted by the opinion of another physician, the ALJ
must provide “specific, legitimate reasons” for discrediting the treating doctor’s opinion. Murray
v. Heckler, 722 F.2d 499, 502 (9th Cir. 1983). In addition, the ALJ generally must accord greater
weight to the opinion of an examining physician than that of a non-examining physician.
Lester, 81 F.3d at 830. As is the case with the opinion of a treating physician, the ALJ must
provide “clear and convincing” reasons for rejecting the uncontradicted opinion of an examining
physician. Pitzer v. Sullivan, 908 F.2d 502, 506 (9th Cir. 1990). If the opinion of an examining
physician is contradicted by another physician’s opinion, the ALJ must provide “specific,
PAGE 13 – OPINION AND ORDER
legitimate reasons” for discrediting the examining physician’s opinion. Lester, 81 F.3d at 830.
Specific, 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, and inconsistency with a claimant’s daily activities. Tommasetti v.
Astrue, 533 F.3d 1035, 1040 (9th Cir. 2008); Andrews, 53 F.3d at 1039. It is error to ignore an
examining physician’s medical opinion without providing reasons for doing so. An ALJ
effectively rejects an opinion when he ignores it. Smolen, 80 F.3d at 1286.
On March 23, 2012, Dr. Schreiner opined that Plaintiff would miss two or more days of
work per month and confirmed that Plaintiff has been unable to work since June 10, 2009. On
September 25, 2012, Dr. Schreiner opined that Plaintiff’s headaches would wax and wane, she
would still miss two days of work per month despite her periods of improvement, and even low
stress jobs would make it more likely that Plaintiff would experience headaches.
The ALJ rejected these opinions by Dr. Schreiner. Instead, the ALJ gave some weight to
the opinions of the state agency physicians, who both assessed limitations that would not
preclude substantial gainful activity, thus contradicting Dr. Schreiner’s opinion. AR 20, 63-72,
75-84. The ALJ was therefore required to provide specific, legitimate reasons for rejecting
Dr. Schreiner’s controverted opinion. Lester, 81 F.3d at 830.
The ALJ noted that Dr. Schreiner’s opinion was inconsistent with her own progress
notes. AR 20. With the corrected timeline of Plaintiff’s treatment history before it, the Court now
finds that Dr. Schreiner’s opinion was inconsistent with her treatment records. When
Dr. Schreiner completed the March 2012 medical evaluation form, Plaintiff had reported to
Dr. Schreiner that Plaintiff had no headaches since April 2011, except for the period of time
when Plaintiff reduced her medication dosage. Those headaches resolved as soon as Plaintiff
PAGE 14 – OPINION AND ORDER
returned her medication dosage to its effective level. Plaintiff had no side effects from the
medication. Thus, as of March 2012, Dr. Schreiner’s opinion that Plaintiff would miss two or
more days per week because of her headaches was inconsistent with Dr. Schreiner’s treatment
notes detailing Plaintiff’s successful treatment with Tegretol that had rendered Plaintiff
headache-free for nearly a year, with the exception of the time period when Plaintiff reduced her
medication.
Additionally, Dr. Schreiner’s report in March 2012 that Plaintiff had been unable to work
since June 10, 2009, was inconsistent with Dr. Schreiner releasing Plaintiff to work in
October 2009 and with the fact that the only work limitations recommended by Dr. Schreiner
after that date were that Plaintiff should not work the register at Big Lots because that job was
too stressful and that Plaintiff should not have pressure against the back of her head. This
opinion by Dr. Schreiner is also contradicted by the fact that Plaintiff did work after June 10,
2009—she worked from October 2009 until April 2010. These are specific, legitimate reasons to
discount Dr. Schreiner’s March 2012 opinion.
Much of Dr. Schreiner’s March 2012 opinion and all of Dr. Schreiner’s September 25,
2012 opinion appear to be based on Plaintiff’s self-reports to Dr. Schreiner. For example,
Dr. Schreiner’s September 25, 2014 is based on Plaintiff’s report on September 24, 2012, that
Plaintiff’s headaches had returned and were strong, daily, and had no apparent cause. Because
the ALJ properly discredited Plaintiff’s testimony, it was not error for the ALJ to discredit
Dr. Schreiner’s opinions that were based on Plaintiff’s self-reporting. See Ryan v. Astrue, 528
F.3d 1194, 1199–1200 (9th Cir. 2008) (holding that an ALJ may reject portions of a physician’s
opinion predicated on reports of a claimant properly found not credible).
PAGE 15 – OPINION AND ORDER
The ALJ also rejected Dr. Schreiner’s opinion because the ALJ found that when Plaintiff
left her job in April, 2010, it was not due to her disability; rather, it was with the intention of
taking another, less strenuous, job with fewer hours. The record reveals that Dr. Schreiner
recommended that Plaintiff cease working because the strain of her heavy exertion job
precipitated her headaches. The record does not show that Dr. Schreiner believed a low stress job
would cause Plaintiff to suffer headaches. Until the September 25, 2012 report, Dr. Schreiner did
not place any limitation on Plaintiff’s ability to work a low stress or sedentary job. Dr. Schreiner
only advised Plaintiff against strenuous and stressful jobs and having pressure against the back of
Plaintiff’s head. Thus, Dr. Schreiner’s opinion that Plaintiff cannot work even a low stress job is
not supported by Dr. Schreiner’s treatment records.
In sum, the ALJ provided sufficient specific, legitimate reasons for rejecting
Dr. Schreiner’s opinion.
D. VE Testimony and DOT
Plaintiff also argues that the ALJ erred by relying upon testimony of a vocational expert
(“VE”) that conflicted with the Dictionary of Occupational Titles (“DOT”). Here, the ALJ
limited Plaintiff to sedentary work; the VE identified that Plaintiff could perform the occupations
of label coder and clerical collator, both light exertion jobs. Where there is an apparent conflict
between VE testimony and the DOT, the ALJ “must elicit a reasonable explanation for the
conflict before relying on the VE evidence to support a determination or decision about whether
the claimant is disabled.” SSR 00-4p at *2; see also Massachi v. Astrue, 486 F.3d 1149, 1154
(9th Cir. 2007) (“Thus, the ALJ must first determine whether a conflict exists. If it does, the ALJ
must then determine whether the vocational expert’s explanation for the conflict is reasonable
and whether a basis exists for relying on the expert rather than the Dictionary of Occupational
Titles.”). The VE testified that her testimony was consistent with the DOT. The ALJ did not
PAGE 16 – OPINION AND ORDER
elicit an explanation for the inconsistency between the RFC limitation to sedentary work and the
fact that the label coder and clerical collator jobs were light exertion. This was error.
This error, however, was harmless. The VE also identified the sedentary job of
addressing clerk (DOT 209.587-010).4 Because the ALJ found at step five that Plaintiff could
perform the sedentary job of addressing clerk consistent with the RFC, any error in the ALJ’s
reliance upon the VE’s other testimony was harmless. Molina v. Astrue, 674 F.3d 1104, 1115
(9th Cir. 2012) (an ALJ’s error may be harmless if it has no effect on the ultimate non-disability
determination).
CONCLUSION
The Commissioner’s motion for an amended or corrected judgment (Dkt. 20) is
GRANTED. The Court amends the Discussion section of its March 9, 2015 Opinion and Order
as set forth herein. The Court VACATES its March 9, 2015 Judgment. The Commissioner’s
decision that Plaintiff is not disabled within the meaning of the Social Security Act is
AFFIRMED.
IT IS SO ORDERED.
DATED this 13th day of May, 2015.
/s/ Michael H. Simon
Michael H. Simon
United States District Judge
4
The VE identified the proper DOT code, but mislabeled the position as “records clerk,
warehouse.” This error is not material, and was not challenged by Plaintiff.
PAGE 17 – OPINION AND ORDER
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