Zdroy v. Commissioner Social Security Administration
Filing
21
OPINION AND ORDER. Because it is based on the proper legal standards and supported by substantial evidence, the Commissioner's ultimate decision is AFFIRMED. Signed on 7/7/2016 by Magistrate Judge John Jelderks. (jtj)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
DANA DON ZDROY,
)
)
Plaintiff,
)
v.
)
)
CAROLYN W. COLVIN,
)
Commissioner of Social Security,
)
)
Defendant.
)
__________________________________________)
Michael Halliday
Halliday Law, P.C.
494 State Street, Suite 250
Salem, OR 97301
Attorney for Plaintiff
Billy J. Williams, U.S. Attorney
Janice E. Hébert, Asst. U.S. Attorney
1000 S.W. 3rd Avenue, Suite 600
Portland, OR 97204-2902
Lisa Goldoftas
Special Assistant U.S. Attorney
Social Security Administration
701 5th Avenue, Suite 2900 M/S 221A
Seattle, WA 98104-7075
Attorneys for Defendant
OPINION & ORDER- 1
Civil No.: 3:14-cv-00901-JE
OPINION AND ORDER
JELDERKS, Magistrate Judge:
Dana D. Zdroy (“Plaintiff”) brings this action pursuant to 42 U.S.C. §§ 405(g) and
1381a seeking judicial review of a final decision of the Commissioner of Social Security (“the
Commissioner”) denying his applications for Disability Insurance Benefits (“DIB”) and
Supplemental Security Income (“SSI”) under the Social Security Act (“the Act”).
For the reasons that follow, the Commissioner’s decision is affirmed.
Procedural Background
Plaintiff filed an application for SSI in April 2010, alleging disability beginning April
13, 2008. Tr. 21, 139-64. Plaintiff’s claims were denied initially and on reconsideration, and a
hearing was held before administrative law judge (“ALJ”) Timothy Mangrum on September 25,
2012. Tr. 39-60. ALJ Mangrum found Plaintiff not disabled in his decision issued December 27,
2012. Tr. 21-32. That decision became the final decision of the Commissioner on April 14,
2014, when the Appeals Council denied Plaintiff’s request for review. Tr. 1-3. Plaintiff now
appeals to this Court for review of the Commissioner’s decision.
Background
Born in 1963, Plaintiff was 45 years old on his alleged onset date. Plaintiff graduated
from high school and attended at least four years of college. Tr. 182. Plaintiff has past relevant
work as an accountant, accounting clerk, hotel night auditor, and parking lot attendant. Tr. 32,
183. Plaintiff alleges disability due to obsessive-compulsive disorder (“OCD”), depression, and
anxiety. Tr. 181.
Disability Analysis
The ALJ engages in a five-step sequential inquiry to determine whether a claimant is
disabled within the meaning of the Act. 20 C.F.R. §§ 404.1520, 416.920. The five step
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sequential inquiry is summarized below, as described in Tackett v. Apfel, 180 F.3d 1094, 109899 (9th Cir. 1999).
Step One. The Commissioner determines whether the claimant is engaged in substantial
gainful activity. A claimant who is engaged in such activity is not disabled. If the claimant is
not engaged in substantial gainful activity, the Commissioner proceeds to evaluate the
claimant’s case under Step Two. 20 C.F.R. §§ 404.1520(b), 416.920(b).
Step Two. The Commissioner determines whether the claimant has one or more severe
impairments. A claimant who does not have any such impairment is not disabled. If the
claimant has one or more severe impairment(s), the Commissioner proceeds to evaluate the
claimant’s case under Step Three. 20 C.F.R. §§ 404.1520(c), 416.920(c).
Step Three. Disability cannot be based solely on a severe impairment; therefore, the
Commissioner next determines whether the claimant’s impairment “meets or equals” one of the
presumptively disabling impairments listed in the Social Security Administration (“SSA”)
regulations, 20 C.F.R. Part 404, Subpart P, Appendix 1. A claimant who has an impairment that
meets a listing is disabled under the Act. If the claimant’s impairment does not meet or equal an
impairment listed in the listings, the Commissioner’s evaluation of the claimant’s case proceeds
under Step Four. 20 C.F.R. §§ 404.1520(d), 416.920(d).
Step Four. The Commissioner determines whether the claimant is able to perform work
he or she has done in the past. A claimant who can perform past relevant work is not disabled. If
the claimant demonstrates he or she cannot do past relevant work, the Commissioner’s
evaluation of claimant’s case proceeds under Step Five. 20 C.F.R. §§ 404.1520(f), 416.920(f).
Step Five. The Commissioner determines whether the claimant is able to do any other
work. A claimant who cannot perform other work is disabled. If the Commissioner finds
OPINION & ORDER- 3
claimant is able to do other work, the Commissioner must show that a significant number of
jobs exist in the national economy that claimant is able to do. The Commissioner may satisfy
this burden through the testimony of a VE, or by reference to the Medical-Vocational
Guidelines, 20 C.F.R. Part 404, Subpart P, Appendix 2. If the Commissioner demonstrates that
a significant number of jobs exist in the national economy that the claimant is able to do, the
claimant is not disabled. If the Commissioner does not meet the burden, the claimant is
disabled. 20 C.F.R. §§ 404.1520(g)(1), 416.920(g)(1).
At Steps One through Four of the sequential inquiry, the burden of proof is on the
claimant. Tackett, 180 F.3d at 1098. At Step Five, the burden shifts to the Commissioner to
show the claimant can perform jobs that exist in significant numbers in the national economy.
Id.
The ALJ’s Decision
At the first step of the disability analysis, the ALJ found Plaintiff had not engaged in
substantial gainful activity since April 13, 2008, the alleged onset date.
At the second step, the ALJ found plaintiff had the following severe impairments:
“depressive disorder; anxiety disorder; obsessive-compulsive disorder; and alcohol abuse, in
reported remission.” Tr. 23. The ALJ also noted the non-severe impairment of “hypertension.”
Tr. 24.
At the third step, the ALJ found Plaintiff did not have an impairment or combination of
impairments that met or equaled a presumptively disabling impairment set out in the Listings,
20 C.F.R. Part 404, Subpart P, App. 1. Id.
Before proceeding to the fourth step, the ALJ assessed Plaintiff’s residual functional
capacity (“RFC”). He found Plaintiff retained the capacity required to perform:
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[A] full range of work at all exertional levels but with the
following nonexertional limitations: . . . occasional public
interaction . . . [and] only occasional changes in a work setting.
Tr. 25. In reaching this conclusion, the ALJ found that Plaintiff’s medically determinable
impairments could reasonably be expected to cause some of the symptoms Plaintiff alleged, but
that his statement concerning the intensity, persistence, and limiting effects of the symptoms
were not entirely credible.
At the fourth step of the disability analysis, the ALJ found Plaintiff could perform his
past relevant work as an accountant and accounting clerk. Tr. 32. Based on this finding, the ALJ
concluded Plaintiff was not disabled within the meaning of the Act. Id.
Standard of Review
A claimant is disabled if he or she is unable “to engage in substantial gainful activity by
reason of any medically determinable physical or mental impairment which . . . has lasted or
can be expected to last for a continuous period of not less than 12 months.” 42 U.S.C. §
423(d)(1)(A). Claimants bear the initial burden of establishing disability. Roberts v. Shalala, 66
F.3d 179, 182 (9th Cir. 1995), cert. denied, 517 U.S. 1122 (1996). The Commissioner bears the
burden of developing the record, DeLorme v. Sullivan, 924 F.2d 841, 849 (9th Cir. 1991), and
bears the burden of establishing that a claimant can perform “other work” at Step Five of the
disability analysis process. Tackett, 180 F.3d at 1098.
The district court must affirm the Commissioner’s decision if it is based on proper legal
standards and the findings are supported by substantial evidence in the record as a whole. 42
U.S.C. § 405(g); see also Andrews v. Shalala, 53 F.3d 1035, 1039 (9th Cir. 1995). “Substantial
evidence means 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.” Andrews, 53
OPINION & ORDER- 5
F.3d at 1039. The court must weigh all of the evidence, whether it supports or detracts from the
Commissioner’s decision. Martinez v. Heckler, 807 F.2d 771, 771 (9th Cir. 1986). The
Commissioner’s decision must be upheld, however, even if “the evidence is susceptible to more
than one rational interpretation.” Andrews, 53 F.3d at 1039-40.
Discussion
Plaintiff contends the ALJ erred in: (1) improperly evaluating medical opinion evidence;
and (2) formulating an RFC which did not account for all of Plaintiff’s functional impairments.
1. Medical Opinion Evidence
Plaintiff contends the ALJ erred in assessing the medical opinion evidence of a treating
physician and an examining physician. The ALJ is responsible for resolving conflicts in the
medical record, including conflicting physicians’ opinions. Carmickle v. Comm’r, Soc. Sec.
Admin., 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 nonexamining 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 physician’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, however, a treating physician’s opinion is contradicted by the opinion of
another physician, the ALJ must provide “specific, legitimate reasons” for discrediting the
treating physician’s opinion. Murray v. Heckler, 722 F.2d 499, 502 (9th Cir. 1983). Specific,
legitimate reasons for rejecting a physician’s opinion may include its reliance on a claimant’s
discredited subjective complaints, inconsistency with the medical records, inconsistency with a
OPINION & ORDER- 6
claimant’s testimony, or inconsistency with a claimant’s activities of daily living (“ADLs”).
Tommasetti v. Astrue, 533 F.3d 1035, 1040 (9th Cir. 2008).
A. Dr. Akalin
Plaintiff contends the ALJ failed to properly weigh the medical opinion evidence of
treating physician Murat Akalin, M.D., who managed care of Plaintiff’s psychiatric issues.1 Dr.
Akalin opined:
[Plaintiff] has serious psychiatric illness which does impair his
ability to work. I think he would have difficulty functioning in
regular full-time work. The safety net of disability subsidy would
benefit him. At the same time, I think he would benefit from
continued work as he is able, and he is interested in this as well.
Tr. 313. The ALJ accorded the April 2010 opinion “little weight,” finding it was internally
inconsistent; inconsistent with Plaintiff’s self-reports; and “not at all consistent with his
objective findings and observations.” Tr. 28, 312-13. Because Dr. Akalin’s opinion is
contradicted by that of state agency physician H. Amado, M.D., the specific-and-legitimate
standard applies.
In support of the ALJ’s finding that Dr. Akalin’s opinion is internally inconsistent, the
ALJ highlighted Dr. Akalin’s opinion Plaintiff would have difficulty functioning in full-time
work, while also finding he would benefit from continued work. Tr. 28. Further, despite the
1
The parties agree that the ALJ erroneously indicated Peter Clark, M.D. treated Plaintiff for
psychiatric issues. Pl.’s Br. 12; Def.’s Br. 6; see tr. 27-28, 30. Dr. Clark also treated Plaintiff,
but chiefly for physical issues rather than psychiatry. See, e.g., tr. 314, 319, 321. Although the
ALJ mistakenly indicated psychiatry chart notes were authored by Dr. Clark, the ALJ
consistently cited to chart notes completed by Dr. Akalin. See Tr. 27-28, 30, 312-13, 315-17,
322-24, 325. As such, the error is immaterial to the weight accorded the psychiatry chart notes
and medical opinion of Dr. Akalin. Plaintiff does not assign harmful error to the discrepancy,
and regardless, the Court agrees with the Commissioner that the error is harmless, as Dr. Clark’s
actual chart notes are not material to the ultimate disability decision. See Pl.’s Br. 12; Def.’s Br.
6-7. Accordingly, where the ALJ mistakenly identified Dr. Clark rather than Dr. Alakin, the
Court will properly attribute the source of the relevant medical evidence as Dr. Alakin in this
Opinion.
OPINION & ORDER- 7
doctor’s assessment, he reported Plaintiff was “pleasant, cooperative, in a good mood, and
without evidence of excessive worry or compulsions.” Tr. 28, 312. An internal inconsistency
within a physician’s report is a valid reason to accord the report diminished weight. Morgan v.
Comm’r of Soc. Sec. Admin.¸169 F.3d 595, 603 (9th Cir. 1999). While Plaintiff does not
expressly address whether Dr. Alakin’s opinion is internally inconsistent, he generally argues
that the ALJ erroneously focused on Plaintiff’s self-reports rather than the doctor’s medical
opinion. Pl.’s Br. 12. In any event, the ALJ’s stated rationale is valid and supported by
substantial evidence. Thus, even assuming other interpretations of the evidence are possible, the
Court must defer to that of the ALJ. Batson, 359 F.3d at 1190.
The ALJ also found Dr. Alakin’s opinion was inconsistent with Plaintiff’s self-reports;
specifically, that “he felt much better reducing his alcohol consumption, and his goal-directed
statements about working.” Tr. 28. An ALJ may reject a doctor’s opinion when it is inconsistent
with the doctor’s own observations. Bayliss v. Barnhart, 427 F.3d 1211, 1216 (9th Cir. 2005).
Dr. Alakin noted Plaintiff “feels much better. His insomnia has resolved. His anxiety has
improved.” Tr. 312. Further, as stated above, the doctor reported Plaintiff was “pleasant and
cooperative . . . mood much better . . . affect euthymic . . . [t]hought content with no
hopelessness or suicidal ideation, no grandiosity, no excessive worry, no psychosis . . . [d]enies
significant obsession or compulsions . . . .” Id. The doctor also reported Plaintiff was
“considering applying for jobs as a night auditor,” and “he is interested” in continued work. Tr.
27-28, 312, 313. Although Plaintiff argues the ALJ impermissibly relied on his reported
statements at the April 2010 visit rather than earlier statements and the doctor’s opinion, the
ALJ’s finding is a rational interpretation of the evidence and supported by the record. Id.
Moreover, Dr. Alakin’s opinion that Plaintiff would “have difficulty functioning in regular full-
OPINION & ORDER- 8
time work” is not binding on the ALJ with respect to the ultimate determination of disability.
Tonapetyan v. Halter, 242 F.3d 1144, 1148 (9th Cir. 2001). As such, the ALJ did not err in
according diminished weight to Dr. Alakin’s medical opinion.
B. Dr. Slatick
Plaintiff also disputes the ALJ’s assessment of the opinion of examining physician, Emil
Slatick, Ph.D. Following a two-day examination in May 2011, Dr. Slatick opined, “it is unlikely
that [Plaintiff] will be successful in academic, training, or employment endeavors at this time . .
. [due to] his significant and persistent anxiety.” Tr. 341. Dr. Slatick additionally assessed a
GAF [“global assessment functioning”] score of 48. Id. The ALJ accorded “little weight” to the
doctor’s opinion and GAF score, finding them inconsistent with the objective findings and
observations of the evaluation, and inconsistent with Plaintiff’s self-reports. Tr. 30. Plaintiff
contends the ALJ’s rationales do not meet the specific-and-legitimate legal standard.
The ALJ noted that in the battery of tests taken as part of Dr. Slatick’s examination, his
verbal and full scale IQ tests were in the average range, his reading and math scores were in the
high average range, and his written language composite score was within the average range. Tr.
29, 336-38. The ALJ recognized Dr. Slatick’s finding that Plaintiff’s intellectual functioning
was “quite variable,” but the doctor also indicated that Plaintiff’s “intellectual functioning
would not be expected to contribute to deficits in adaptive behaviors, including interpersonal,
coping skills, communication, and daily living skills.” Tr. 29, 337. The ALJ found Dr. Slatick’s
low GAF assessment, which was “indicative of an individual with serious symptoms or a
serious impairment in social or occupational functioning,” not consistent with the test results
described above. Tr. 29-30. Even assuming other interpretations of the evidence are plausible, it
was not irrational for the ALJ to conclude Dr. Slatick’s opinion that Plaintiff’s variable
OPINION & ORDER- 9
intellectual functioning would not contribute to deficits in adaptive behaviors was inconsistent
with a GAF score of 48. Batson, 359 F.3d at 1190.
The ALJ further found the assessed GAF score inconsistent with Plaintiff’s “cooperative
behavior, presentation, and unguarded statements.”2 Tr. 30. Indeed, the ALJ’s findings are
supported by Dr. Slatick’s report: Plaintiff was “outwardly cooperative”; “did not exhibit
significant behavioral indications of problematic mood”; “stated that he believes he is typically
happy”; indicated “he loves to read novels and enjoys watching movies, listening to music, and
using the internet”; “sees friends on occasion and will go to bars to watch sports programs”;
would “like to be skiing and traveling.” Def.’s Br. 12; tr. 336-37 (emphasis in original).
Similarly, the ALJ found Plaintiff’s behavior and the aforementioned statements about his
interests, goals, and activities inconsistent with Dr. Slatick’s opinion that Plaintiff would have
difficulty being self-sufficient and maintain employment due to his anxiety. Tr. 341. Indeed, Dr.
Slatick expressed that he observed “no indication of problems with anxiety, obsession or
compulsion or mood,” which the ALJ found contrary to the self-reports described above and the
information provided by his mother. Tr. 29, 339.
Based on the foregoing, it is evident the ALJ fulfilled his duty to “summarize the facts
and conflicting evidence . . . stat[e] his interpretation thereof, and mak[e] findings.” Magallanes
2
The Commissioner argues Plaintiff waived any argument regarding the assessed GAF score
because he failed to specifically address it in his brief. Def.’s Br. 12. In reviewing the record as
a whole, however, the ALJ’s decision does not draw clear distinctions between the reasons for
discounting Dr. Slatick’s GAF assessment and the reasons for discounting the doctor’s opinion
that Plaintiff is disabled. See tr. 29-30. Rather, both the doctor’s conclusions as to the GAF
score and employability, and the ALJ’s reasons for rejecting them, substantially overlap and are
intertwined. As such, although Plaintiff did not specifically argue in support of the GAF score,
the Court interprets Plaintiff’s arguments in support of Dr. Slatick’s opinion to include the GAF
assessment, and therefore addresses the issue here.
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v. Bowen, 881 F.2d 747, 751 (9th Cir. 1989). Moreover, the ALJ’s inferences were reasonable
and are supported by the record. Batson, 359 F.3d at 1193.
Plaintiff argues the ALJ erred in finding internal inconsistency because Dr. Slatick
“earlier in his evaluation recommended therapy and medication,” but later opined that Plaintiff
“should apply for [DIB] in order to receive mental health and financial services.” Pl.’s Br. 11;
tr. 29. Plaintiff contends the ALJ “apparently believes these two recommendations are
inconsistent . . . [but] [c]learly, they are not.” Pl.’s Br. 11. It is unclear the significance the ALJ
accorded the particular statement, though it appears to be cited in support of the ALJ’s finding
of internal inconsistencies in Dr. Slatick’s report. See tr. 29. The Court agrees that Dr.
Slatnick’s two recommendations are not mutually exclusive, and to the extent the ALJ found
otherwise, it was not a reasonable interpretation of the record. Nevertheless, because the ALJ
provided several other valid reasons for discounting Dr. Slatick’s opinion – and particularly
other valid reasons for finding the opinion internally inconsistent – any error was harmless. See
Tackett, 180 F.3d at 1098 (where the evidence reasonably supports the ALJ’s decision, the
Court may not substitute its own judgment) (citation omitted).
Plaintiff further asserts the ALJ erred by failing to consider how the opinion of
vocational rehabilitation counselor Sabrina Cunliffe suggests Dr. Slatnick’s observations that
Plaintiff was cooperative, apparently interested in activities with others, and wished to ski and
travel, does not contradict the doctor’s opinion that Plaintiff’s anxiety is debilitating. Pl.’s Br. 8,
11. In other words, Plaintiff argues that his relatively positive and optimistic clinical
presentation belies severely impaired functionality due to anxiety. See id. However, Plaintiff’s
premise is undermined by the ALJ’s valid rejection of Ms. Cunliffe’s opinion.
OPINION & ORDER- 11
As a vocational rehabilitation counselor, Ms. Cunliffe is considered an “other source”
under the Act, whose testimony the ALJ may reject so long as reasons germane to her are
proffered. 20 C.F.R. § 404.1513(d); Molina v. Astrue, 674 F.3d 1104, 1111 (9th Cir. 2012). Ms.
Cunliffe submitted a letter “in support of [Plaintiff’s] application” for benefits, opining Plaintiff
was “unable to move toward employment without some sort of financial safety net.” Tr. 248.
Ms. Cunliffe stated that Plaintiff “has not been able to set realistic goals for himself, or able to
evaluate his own progress toward setting those goals.” Id. The ALJ considered Ms. Cunliffe’s
letter, but rejected her opinion for two reasons: (1) he considered her opinion as advocating for
a disability determination, and (2) none of Ms. Cunliffe’s records were included in the record,
so there was no objective evidence substantiating her opinion. Tr. 31. Either of these reasons
alone would suffice for rejecting Ms. Cunliffe’s opinion, as each is reasonably supported in the
record and germane to her. See, e.g., Turner v. Comm’r of Soc. Sec., 613 F.3d 1217, 1223-24
(9th Cir. 2010) (ALJ permissibly rejected a lay witness opinion that a claimant was unable to
work because it was not adequately supported) (citation omitted). Thus, because Ms. Cunliffe’s
opinion was properly rejected, Plaintiff’s argument is unavailing.
In sum, the ALJ provided legally sufficient rationales, based on substantial evidence in
the record, for discounting the medical opinion evidence of Drs. Akalin and Slatick. The ALJ’s
findings are affirmed.
2. RFC Formulation
Plaintiff argues the ALJ’s RFC formulation does not comport with his combined mental
limitations as alleged, and additionally, that the ALJ failed to abide Social Security Rulings
(“SSR”) 85-16 and 96-8p. See Pl.’s Br. 5-9; SSR 85-16, available at 1985 WL 56855; SSR 968p, available at 1996 WL 374184. The RFC is the most that a claimant can do despite any
OPINION & ORDER- 12
functional limitations. See 20 C.F.R. § 416.945. In determining the RFC, the ALJ must consider
limitations imposed by all of claimant’s impairments, even those that are not severe, and
evaluate “all of the relevant medical and other evidence,” including a claimant’s testimony. SSR
96-8p. Only limitations supported by substantial evidence must be incorporated into the RFC.
Osenbrock v. Apfel, 240 F.3d 1157, 1164-65 (9th Cir. 2001). Similarly, an ALJ need include
only credible limitations in questions to the VE. Batson, 359 F.3d at 1197.
Plaintiff argues the ALJ “failed to show how [his] OCD behaviors similar to that of
checking/rechecking his work and whether doors are locked or the stove is turned off would
affect his ability to sustain gainful employment.” Pl.’s Br. 5. Plaintiff’s assertion is based on his
own testimony during the administrative hearing. See tr. 43-45. However, the ALJ found that
Plaintiff was not completely credible regarding allegations that his OCD behaviors prevent him
from completing tasks. For example, although Plaintiff initially testified he stopped taking
online courses because he could not finish assignments, when pressed he indicated he stopped
taking the courses in order to pursue employment. Tr. 27, 49. Similarly, although Plaintiff
initially stated he had problems getting reports finished as a parking attendant, he ultimately lost
his job when he was laid-off due to the recession. Tr. 48-49. Further, during the visit with Dr.
Akalin in April 2010, Plaintiff “denied significant obsessions or compulsions . . . .” Tr. 28, 312.
Likewise, Dr. Slatick observed “no indication of problems with anxiety, obsession or
compulsion” despite Plaintiff’s self-reports. Tr. 29.
The ALJ therefore found Plaintiff’s allegations regarding OCD symptoms not fully
credible because they were inconsistent with his prior statements and with evidence in the
record provided by Drs. Akalin and Slatick. Both reasons are valid to discredit Plaintiff’s OCD
symptom allegations; therefore, the ALJ was not compelled to include functional limitations
OPINION & ORDER- 13
arising from the discredited symptom allegations in the RFC. See SSR 16-3p available at 2016
WL 1119029 at *8-9; SSR 96-8p available at 1996 WL 374184; Osenbrock, 240 F.3d at 116465; Batson, 359 F.3d at 1197.3
Plaintiff also contends the ALJ “failed to show how or account for Plaintiff’s anxiety,
panic attacks, depression, and fatigue that keep him from wanting to get up and get going some
days and would cause him to be absent from work frequently.” Pl.’s Br. 5; tr. 45. However, the
ALJ is not required to simply accept every allegation of non-exertional impairment. Orn v.
Astrue, 495 F.3d 625, 635 (9th Cir. 2007) (citation omitted). Further, while Plaintiff submits he
“would be absent from work frequently,” he does not contest the ALJ’s finding that his
credibility regarding his limitations in maintaining employment was diminished, and therefore
waives any argument. Tr. 27; Greenwood v. Fed. Aviation Admin., 28 F.3d 971, 977 (9th Cir.
1994). Even assuming the argument was not waived, the ALJ noted Plaintiff was on time to
both of his consultative examinations with Dr. Slatick, and that Plaintiff himself “denied
significant problems with job performance.” Tr. 27, 335-36. As such, Plaintiff’s argument is
without merit.
3
The Court notes that, pursuant to SSR 16-3p, the ALJ is no longer tasked with making
an overarching credibility determination and instead assesses whether the claimant’s subjective
symptom statements are consistent with the record as a whole. See SSR 16-39, available at 2016
WL 1119029 (superseding SSR 96-7p). The ALJ’s October 2014 decision was issued more than
one year before SSR 16-3p became effective and there is no binding precedent interpreting this
new ruling or whether it applies retroactively. Compare Ashlock v. Colvin, 2016 WL 3438490,
*5 n.1 (W.D. Wash. June 22, 2016) (declining to apply SSR 16-3p to an ALJ decision issued
prior to the effective date), with Lockwood v. Colvin, 2016 WL 2622325, *3 n.1 (N.D. Ill. May
9, 2016) (applying SSR 16-3p retroactively to a 2013 ALJ decision). Because the ALJ’s
findings in regard to this issue pass muster irrespective of which standard governs, the Court
need not resolve this issue. Moreover, Plaintiff does not contest the ALJ’s credibility finding,
and therefore waives any argument. See Indep. Towers of Wash. v. Wash., 350 F.3d 925, 929
(9th Cir. 2003).
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Plaintiff invokes SSR 85-16, available at 1985 WL 56855, providing a brief summary of
SSR’s explanation of how paranoid tendencies may affect work relationships. Pl.’s Br. 5-6.
However, Plaintiff does not articulate an argument on the issue, and regardless, the record does
not reflect, nor does Plaintiff allege, limitations due to paranoid tendencies. Similarly, Plaintiff
contends the ALJ “failed to comply” with SSR 85-15, available at 1985 WL 56857. However,
Plaintiff does not explain how the SSR applies to the facts of his case; instead merely stating his
interpretation of the rule: “[A]ny impairment related limitation created by an individual’s
response to the demands of work . . . must be reflected in the RFC statement.” Pl.’s Br. 8.
Plaintiff does not, however, articulate what impairment-related limitation created by his
response to the demands of work was omitted from the RFC. Therefore, the Court has no basis
to disturb the ALJ’s finding.
Further, Plaintiff quotes a portion of SSR 96-8p, available at 1996 WL 374184, which
describes the requirement that the ALJ provide a narrative discussion in support of the RFC
assessment. Pl.’s Br. 8. Again, Plaintiff does not articulate an argument, but to the extent
Plaintiff alleges the ALJ did not provide a narrative discussion, the argument nevertheless fails,
as the ALJ dedicated more than five full pages to his narrative discussion, whichprovided
sufficient specificity and evidentiary support to uphold its various findings. See tr. 25-31.
Plaintiff also summarizes findings by Dr. Slatnick and Ms. Cunliffe, which, as explained
at length above, were properly discredited by the ALJ. See Pl.’s Br. 6-7. Again, the ALJ is not
required to include in the RFC limitations from properly discounted opinion evidence. Batson,
359 F.3d at 1197.
Finally, Plaintiff contends the ALJ committed error by according “significant weight” to
state agency medical consultant Dr. H. Amado, without specifically identifying the “records and
OPINION & ORDER- 15
evaluations” the ALJ felt were consistent with the doctor’s opinion. Pl.’s Br. 8; see tr. 28.
Plaintiff does not provide support for the contention that the ALJ must provide specific and
legitimate reasons for accepting the opinion of a state agency medical consultant, nor is the
Court aware of any such authority. Rather, the applicable legal standard is the ALJ must provide
an adequate explanation regarding why a medical opinion was rejected. Lester, 81 F.3d at 830.
Although the opinion of a non-examining physician does not alone constitute substantial
evidence that justifies the rejection of a treating physician, here the ALJ provided several other
reasons – described supra – for rejecting the opinions of the treating and examining physicians.
Tr. 27-31; see Morgan, 169 F.3d at 602. Because the ALJ properly discounted the opinions of
Drs. Akalin and Slatick, and Ms. Cunliffe, he was within his authority to accept instead the
limitations set forth by Dr. Amado. Tommasetti, 533 F.3d at 1041 (the ALJ is the final arbiter in
resolving conflicts and ambiguities in the medical record); see also Batson, 359 F.3d at 1197
(ALJ is not required to include properly discredited functional limitation allegations in the
RFC).
Further, the ALJ specifically indicated Dr. Amado’s opinion that Plaintiff “retained the
ability to perform at least detailed and semi-skilled activity” was consistent with “routine
treatment records . . . objective observations from subsequent evaluations . . . and [Plaintiff’s]
goal-directed statements regarding future employment.” Tr. 28. Thus, the ALJ adequately
resolved the inconsistencies between the medical opinions “by setting out a detailed and
thorough summary of the facts and conflicting clinical evidence, stating his interpretation
thereof, and making findings.” Magallanes, 881 F.2d at 755. The ALJ’s finding is therefore
upheld.
3. Request for Remand
OPINION & ORDER- 16
Plaintiff argues that this case be remanded for further proceedings or an award of
benefits. Pl.’s Br. 13. However, because the ALJ’s decision is free of harmful legal error and
supported by substantial evidence, the Commissioner’s ultimate decision is affirmed. See, e.g.,
Burch, 400 F.3d at 679.
Conclusion
Because it is based on the proper legal standards and supported by substantial evidence,
the Commissioner’s ultimate decision is AFFIRMED.
DATED this _7th_ day of July, 2016.
_/s/ John Jelderks_________________________
John Jelderks
U.S. Magistrate Judge
OPINION & ORDER- 17
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