Mankin v. Commissioner Social Security Administration
Filing
15
OPINION AND ORDER. Signed on 07/22/2015 by Judge Malcolm F. Marsh. (pvh)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
Case No. 6:14-cv-01249-MA
VICKI L. MANKIN
Plaintiff,
v.
COMMISSIONER OF SOCIAL
SECURITY ADMINISTRATION
Defendant.
DREW L. JOHNSON
170 Valley River Dr.
Eugene, OR 97401
JOHN E. HAAPALA
410 E. 10th Ave. Suite 240
Eugene, OR 97401
Attorneys for Plaintiff
RONALD K.
Assistant
1000 S.W.
Portland,
SILVER
United States Attorney
Third Ave., Suite 600
OR 97204
SARAH L. MARTIN
Social Security Administration
Office of the General Counsel
701 Fifth Ave., Suite 2900, M/S 221A
Seattle, WA 98104-7075
Attorneys for Defendant
1 - OPINION AND ORDER
OPINION AND ORDER
MARSH, Judge
Plaintiff Vicki L. Martin seeks judicial review of the final
decision
of
the
Commissioner
of
Social
Security
denying
her
application for Disability Insurance Benefits (DIB) under Title II
of the Social Security Act,
42 U.S.C
jurisdiction pursuant to 42 U.S.C.
follow,
§§
§§
401-403. This Court has
405(g). For the reasons that
I affirm the final decision of the Commissioner.
FACTUAL AND PROCEDURAL BACKGROUND
Plaintiff
protectively
filed
an
application
for
DIB
on
December 2, 2010, alleging disability as of September 1, 2006 due
to arthritis in left knee; arthritis in right knee; and back pain.
Plaintiff
meets
the
insured
status
requirements
for
a
DIB
application through December 31, 2010.
Plaintiff's
claims
were
denied
initially
and
upon
reconsideration. Plaintiff filed a request for a hearing before an
administrative law judge (ALJ). An ALJ held a hearing on January
16,
2013,
at
which
plaintiff
appeared
with
her
attorney
and
testified. A vocational expert, Vernon G. Arne also appeared at the
hearing
and
unfavorable
testified.
decision.
On
The
March
13,
Appeals
2013,
Council
the
ALJ
denied
issued
an
plaintiff's
request for review, and therefore, the ALJ's decision became the
final decision of the Commissioner for purposes of review.
Born in 1958, plaintiff was 54 years old on the date of the
ALJ's unfavorable decision. Plaintiff has a eighth grade education.
2 - OPINION AND ORDER
Plaintiff has past relevant work as a certified nursing assistant
(CNA) .
At step one, the ALJ found that plaintiff has not engaged in
substantial
gainful
activity
from
her
alleged
onset
date
of
September 1, 2006 through her date last insured, December 31, 2010.
At step two, the ALJ found that plaintiff had the following severe
impairments:
obesity;
chronic left shoulder pain;
left shoulder
adhesive capsulitis; gastroesophageal reflux disease; history of
alcohol abuse in remission; and mild bilateral knee degenerative
joint
disease.
At
step
three,
the
ALJ
found
that
plaintiff's
impairment or combination of impairments, did not meet or medically
equal a listed impairment.
The ALJ assessed plaintiff with a residual functional capacity
(RFC) to light work as defined in 20 C.F.R.
following
limitations.
Plaintiff
can
§
404.1567 but with the
lift
twenty
pounds
occasionally and ten pounds frequently and can stand or walk for
six hours in an eight-hour workday and sit for six hours in an
eight-hour workday. Plaintiff can occasionally reach overhead with
her
left,
non-dominant
arm and occasionally crouch and
crawl.
Plaintiff should avoid exposure to hazards such as unprotected
heights or dangerous machinery.
At
step
four,
the ALJ found
that
plaintiff
perform her past relevant work. At step five,
is
unable
to
the ALJ concluded
that considering plaintiff's age, education, work experience, and
3 - OPINION AND ORDER
residual functional capacity, jobs exist in significant numbers in
the national economy that plaintiff can perform, such as first aid
attendant,
photocopy operator,
operator. Accordingly,
been
under
a
survey worker,
and mold machine
the ALJ concluded that plaintiff has not
disability
under
the
Social
Security
Act
from
September 1, 2006 through December 31, 2010, the date last insured.
ISSUES ON REVIEW
On appeal to this court,
errors were committed:
plaintiff's testimony;
( 1)
plaintiff contends the following
the ALJ failed to properly evaluate
(2) the ALJ erred in assessing the opinion
of plaintiff's treating physician;
( 3) the ALJ erred in weighing
lay testimony; and (4) because of these errors, the hypothetical
posed to the vocational expert was invalid.
STANDARD OF REVIEW
The district court must affirm the Commissioner's decision if
the
Commissioner
applied
the
proper
legal
standards
and
findings are supported by substantial evidence in the record.
U.S.C.
§
405(g); Berry v. Astrue,
622 F.3d 1228, 1231
the
42
(9th Cir.
2010). "Substantial evidence is more than a mere scintilla but less
than a preponderance; it is such relevant evidence as a reasonable
mind might accept as adequate to support a conclusion." Hill,
698
F.3d at 1159 (internal quotations omitted); Valentine, 574 F.3d at
690. The court must weigh all the evidence, whether it supports or
detracts from the Commissioner's decision. Martinez v. Heckler, 807
4 - OPINION AND ORDER
F.2d 771, 772 (9th Cir. 1986). The Commissioner's decision must be
upheld,
even if the
evidence
is
susceptible
to more
than one
rational interpretation. Batson v. Commissioner Soc. Sec. Admin.,
359 F.3d 1190, 1193 (9th Cir. 2004). If the evidence supports the
Commissioner's conclusion, the Commissioner must be affirmed; "the
court
may
not
substitute
its
judgment
for
that
of
the
Commissioner." Edlund v. Massanari, 253 F.3d 1152, 1156 (9th Cir.
2001) .
DISCUSSION
I.
The ALJ Did Not Err in Evaluating Plaintiff's Credibility
A.
Standards
To
determine
whether
a
claimant's
testimony
regarding
subjective pain or symptoms is credible, an ALJ must perform a two
stage
analysis.
20
C.F.R.
§
404.12629.
The
first
stage
is
a
threshold test in which the claimant must produce objective medical
evidence
of
an
underlying
impairment that
expected to produce the symptoms alleged.
F.3d 1104, 1112
(9th Cir.
2012);
could reasonably be
Molina v.
Tommasetti v.
Astrue,
Astrue,
674
533 F.3d
1035, 1039 (9th Cir. 2008). At the second stage of the credibility
analysis, absent affirmative evidence of malingering, the ALJ must
provide
clear
claimant's
and
testimony
Carmickle v.
convincing
regarding
Commissioner Soc.
5 - OPINION AND ORDER
reasons
the
Sec.
for
severity
Admin.,
discrediting
of
the
the
symptoms.
533 F.3d 1155,
1161
(9th Cir. 2008); Lingenfelter v. Astrue, 504 F.3d 1028, 1036 (9th
Cir. 2007).
The ALJ must make findings that are sufficiently specific to
permit
the
reviewing
court
to
conclude
that
the
ALJ did
not
arbitrarily discredit the claimant's testimony. Ghanim v. Colvin,
763 F.3d
Factors
1154, 1163 (9th Cir. 2014); Tommasetti, 533 F.3d at 1039.
the
ALJ
determinations
claimant's
may
consider
include
treatment
the
when
making
objective
history,
the
such
medical
claimant's
credibility
evidence,
the
daily activities,
inconsistencies in testimony, effectiveness or adverse side effects
of any pain medication, and relevant character evidence. Ghanim,
763 F.3d at 1163; Tommasetti, 533 F.3d at 1039.
B. Analysis
At the hearing, plaintiff testified that she has significant
pain in her left shoulder and is unable to lift her left arm above
her
head.
experience
Tr.
36,
lower
41.
Plaintiff
back pain
in
testified
2009
but
did
that
not
she
began
to
seek medical
treatment at that time. Tr. 38. Plaintiff also testified that she
is able to walk 50 yards at a time, sit for one hour, and stand for
one hour before needing to change positions.
Tr.
39.
Plaintiff
further testified that she can lift half a gallon of milk, perform
squats with her knees, and is able to walk up and down a flight of
stairs. Tr. 40.
6 - OPINION AND ORDER
In a January 3, 2011 Activities of Daily Living (AOL) Report,
plaintiff
noted
that
she
completes
household
chores
such
as
vacuuming, dusting, and mopping. Tr. 144. Plaintiff also noted that
she spends one hour daily preparing dinner.
Tr.
143.
Plaintiff
indicated that she spends two hours a week grocery shopping. Tr.
145. Plaintiff further indicated that she enjoys hobbies such as
bicycling,
camping,
and gardening,
but noted
that
camping
and
gardening are more difficult given her pain. Plaintiff stated that
she can walk one mile before resting and is able to lift ten
pounds.
In a Pain and Fatigue Questionnaire, plaintiff noted that she
experiences pain in her left shoulder, right knee and mid to lower
back throughout the day. Tr. 165. Plaintiff also noted that pain
medication alleviates her pain.
Id.
Plaintiff indicated that she
experiences fatigue and requires a daily one hour nap.
Plaintiff
also indicated that she tries to push herself to stay active all
day. Id.
In
the
decision,
the
ALJ
concluded
that
plaintiff
has
medically determinable impairments that cause symptoms resulting in
some limitations on work activity, but her subjective complaints
and alleged limitations are not fully credible. Tr. 16.
Contrary to plaintiff's assertion,
clear and convincing reasons,
citing specific record evidence,
which undermine her subjective complaints.
7 - OPINION AND ORDER
the ALJ provided three
1. inconsistent with the medical evidence
Contrary to plaintiff's suggestion, the ALJ specifically found
plaintiff's
objective medical
record
is
inconsistent
with
her
subjective allegations of debilitating symptoms. Tr. 18. When the
claimant's own medical record undercuts her assertions, the ALJ may
rely on that contradiction to discredit the claimant.
As true,
481
F.3d
742,
750-51
(9th
Cir.
2007);
Parra
Morgan
v.
v.
Commissioner Soc. Sec. Admin., 169 F.3d 595, 600 (9th Cir. 1999);
Carmickle,
533 F.3d at 1161. The ALJ's findings are supported by
substantial evidence in the record. 1
As the ALJ correctly discussed, the medical findings from the
relevant period,
not
September 1,
2006 through December 31,
corroborate plaintiff's
allegations
of
2010, do
severe debilitating
pain. For example, an August 2009 x-ray of plaintiff's right knee
revealed a small joint effusion with mild spurring at the insertion
of
the
quadriceps
arthritis.
Tr.
tendon
28 9.
1
In
of
an
the
patella
October
2007
with
no
evidence
examination,
of
treating
In her reply brief, plaintiff erroneously applies the
Cotton test to argue that the objective medical evidence was
sufficient to support plaintiff's pain allegations. Cotton v.
Bowen, 799 F.2d 1403 (9th Cir. 1986). The Cotton test is part of
the ALJ's two step analysis in assessing plaintiff's testimony.
In this case, the ALJ found that plaintiff met the Cotton test,
and thus, in the absence of evidence of malingering, the ALJ
provided three clear and convincing reasons, supported by
substantial evidence to reject plaintiff's allegations. Despite
plaintiff's alternative interpretation of the medical evidence,
the ALJ reasonably found that plaintiff's allegations are
inconsistent with the objective medical evidence. See, Molina,
674 F.3d at 1111.
8 - OPINION AND ORDER
physician Rick Hindmarsh, M.D. noted that plaintiff's left shoulder
had limited range of motion; however, by April 2008, Dr. Hindmarsh
noted that plaintiff's shoulder pain was well controlled and noted
a stiff shoulder and spine. Tr. 275, 276, 281. In September 2008,
Dr.
Hindmarsh noted that plaintiff reported that her quality of
life has significantly improved due to her current dosage of pain
medications. Tr. 267. In August 2009, Dr. Hindmarsh noted slight
swelling in the right knee with full range of motion, an absence of
tenderness,
and
palpable
crepitations.
Tr.
260.
Indeed,
Dr.
Hindmarsh noted relatively normal objective findings relating to
plaintiff's knee and shoulder.
See generally Tr.
240,
243,
244,
252, 254, 256, 258.
Additionally, the medical evidence dated after December 31,
2010 also fails to substantiate plaintiff's testimony regarding the
intensity
of
her
pain.
For
example,
a
March
2011
x-ray
of
plaintiff's left shoulder revealed no gross instability with type
II acromion and chronic changes consistent with tendinosis.
Tr.
207. A June 2011 left knee x-ray was negative for degenerative
changes or effusion.
Tr.
225.
A June 2011 x-ray of plaintiff's
lumbar spine revealed mild degenerative changes. Tr. 227. Moreover,
in March 2011,
examining physician Todd J.
Lewis,
M.D.
noted a
re la ti vely normal examination and opined that plaintiff's pain
complaints and behaviors during the examination "appear to exceed
the definable pathology." Tr. 202-206. In fact, as the ALJ noted,
9 - OPINION AND ORDER
plaintiff exhibited poor effort on and actively resisted physical
testing during the examination. Tr. 17, 202-206.
Contrary
to
plaintiff's
argument,
treatment
notes
from
treating physician Patrick Rask, M.D. do not support plaintiff's
allegations of back pain prior to December 31, 2010.
2012 treatment note,
Dr.
In an April
Rask noted that plaintiff subjectively
reported aches and pains in her lower back for the past ten years.
As the ALJ noted, the record shows that although plaintiff alleged
experiencing back pain prior to her date last insured, plaintiff
did not seek any medical treatment for her back pain prior to June
2011. Tr. 13, 228, 229. In the April 2012 treatment note, Dr. Rask
noted that plaintiff fell
and hurt her back recently and then
received a referral from Dr. Hindmarsh to see Dr. Rask. Tr. 317.
In short,
the ALJ reasonably concluded that the objective
medical evidence in the record is inconsistent with the degree of
plaintiff's subjective symptoms and appropriately discounted her
credibility on this basis.
2. ADLs
The ALJ found that plaintiff's variety of activities of daily
living are inconsistent with the level of disability she alleges.
For
example,
the
ALJ
discussed
that
plaintiff
extensive household chores such as laundry,
dusting,
and outdoor work.
Tr.
18.
is
capable
vacuuming,
of
mopping,
Plaintiff indicated that she
spends one hour cooking a full course dinner for her husband every
10 - OPINION AND ORDER
night. Tr. 143. The ALJ also noted that plaintiff reported that she
frequently completes errands for her elderly mother and takes care
of her parents including cooking and cleaning for them.
Furthermore,
daily
activities
concentrate and finish
tasks
demonstrating
indicates a
transferable to a work setting.v Molina,
the
Tr.
18.
ability
to
"capacity
that
[is]
674 F.3d at 1113.
Plaintiff argues that the ALJ erroneously expected plaintiff's
daily
activities
to
show
a
completely
debilitating
medical
impairment, and that the ALJ penalized plaintiff for attempting to
lead a normal life despite her limitations. I disagree.
While a claimant need not be completely incapacitated to be
eligible for disability, here, the record shows that plaintiff's
activities are fairly extensive, and plaintiff attempts to minimize
the record with respect to her ADLs. For example, in August 2009,
Dr. Hindmarsh noted that plaintiff had been experiencing right knee
pain that began after she had been working out on a treadmill for
three
weeks.
Tr.
260.
In
an
August
2010
treatment
Hindmarsh indicated that plaintiff had taken
Japan.
Tr.
238.
In
December
2010,
Dr.
a
note,
recent
Hindmarsh
Dr.
trip to
noted
that
plaintiff bikes for exercise three to four times a week. Tr. 235.
With respect to plaintiff's allegations of pain in her left
shoulder, the ALJ fully considered this limitation. Tr. 18-19. The
RFC finding incorporates a requirement of only occasional reaching
overhead with plaintiff's left, non-dominant arm. Tr. 16.
11 - OPINION AND ORDER
Based on this significant evidence in the record, I conclude
that the ALJ properly discredited plaintiff's testimony because her
level of activity is inconsistent with the degree of impairment
that she alleges.
See
Berry,
622 F. 3d at 1235
(inconsistencies
between self-reported symptoms and activities supported adverse
credibility finding).
3. part-time work
Finally, the ALJ discredited plaintiff's credibility on the
basis of performing part-time work after her alleged disability
onset date. Tr. 17-18. Specifically, the ALJ noted that plaintiff
testified that she worked three days for six hours a week as a
caregiver for an elderly woman until she passed away in 2009.
Plaintiff testified that she provided companionship and assisted
the elderly woman in personal care management, such as bathing. Tr.
3~.
The record supports plaintiff's engagement in part-time work.
In
a
December
2007
treatment
note,
Dr.
Hindmarsh
noted
that
plaintiff was able to continue working while on methadone, a type
of pain medication. Tr. 281. In September 2009, Dr. Hindmarsh noted
that plaintiff's knee pain was worse after a full day of work. Tr.
256. Moreover, in October 2009, Dr. Hindmarsh noted that plaintiff
was
able
to
continue working
with her current
dosage
of pain
medications. Tr. 251.
As the ALJ pointed out,
plaintiff testified that she would
have been able to perform this work full time if it was available.
12 - OPINION AND ORDER
Tr, 18, 46-47. The ALJ correctly found that nthis demonstrates the
capacity to perform some work.n Tr. 18. Performance of job duties
on a part-time basis, while not sufficient to establish work full
time,
can
constitute
a
legitimate
claimant's assertion of disability.
reason
for
See Bray v.
discounting
a
Commissioner of
Soc. Sec. Admin., 554 F.3d 1219, 1227 (9th Cir. 2009) (finding that
ALJ properly discounted claimant's credibility when the claimant
had worked and sought other work since claimant's disability onset
date) .
I
conclude this inconsistency is a clear and convincing
reason for concluding that plaintiff was not wholly credible.
Although plaintiff insists on a different interpretation of
the evidence, I conclude that the ALJ made logical inferences from
the
record
to
support
her
conclusions.
Because
the
ALJ's
interpretation is rational and is supported by substantial evidence
in the record as a whole,
it will not be disturbed.
See e.g.,
Molina, 674 F.3d at llll(ALJ's findings must be upheld if they are
supported
by
Accordingly,
reasonable
inferences
drawn
from
the
record) .
I conclude that this basis combined with the ALJ's
other two reasons amount to clear and convincing support backed by
substantial evidence, for rejecting plaintiff's subjective symptom
statements.
II.
The ALJ Did Not Err in Assessing Treating Source Opinion
In general, the opinion of a treating physician is given more
weight than the opinion of an examining physician, and the opinion
13 - OPINION AND ORDER
of an examining physician is afforded more weight than the opinion
of a nonexamining physician.
Ghanim,
7 63 F. 3d at 1160; Orn,
4 95
F.3d at 632. "If a treating physician's opinion is well-supported
by
medically
techniques
evidence
and is
in
weight."
acceptable
[the]
Orn,
not
clinical
and
laboratory
inconsistent with the
case
record,
F. 3d
495
631
other
substantial
be given]
controlling
(internal
[it will
at
quotations
omitted)(alterations in original);
20 C.F.R.
reject
of
the
physician,
uncontroverted
the ALJ must
Bayliss v. Barnhart,
opinion
present
diagnostic
a
§
404.1527(c).
treating
or
To
examining
clear and convincing
reasons.
427 F.3d 1211, 1216 (9th Cir. 2005).
If a treating or examining physician's opinion is contradicted
by another physician's opinion, it may be rejected by specific and
legitimate reasons. Tonapetyan, 242 F.3d at 1148. When evaluating
conflicting opinions, an ALJ is not required to accept an opinion
that
is
not
supported
by
clinical
findings,
or
is
brief
or
conclusory. Id. at 1149.
Plaintiff argues that the ALJ failed to provide clear and
convincing reasons for rejecting Dr. Hindmarsh's opinion. In a June
29,
2011 physical capacities assessment,
that plaintiff can sit for three hours,
hours
each,
and must
lay down for
Dr.
Hindmarsh assessed
stand and walk for two
two hours
in an eight-hour
workday. Tr. 231. Dr. Hindmarsh opined that plaintiff can lift up
to five pounds; grasp; push and pull; and perform fine manipulation
14 - OPINION AND ORDER
all with the right hand only.
Id.
Dr. Hindmarsh also opined that
plaintiff can occasionally reach but never bend or climb. Id.
Because Dr. Hindmarsh's opinion was contradicted, 2 the ALJ was
required to provide specific and legitimate reasons,
backed by
substantial evidence, to reject his opinion. Bayliss, 427 F.3d at
1216. The ALJ discussed Dr. Hindmarsh's opinion and accorded the
opinion "little weight"
for
three
reasons
Having carefully reviewed the record,
as
discussed below.
I conclude that the ALJ's
reasoning is supported by substantial evidence.
First, the ALJ gave "little weight" to Dr. Hindmarsh' s opinion
because it was assessed after plaintiff's date last insured. In a
claim under Title II of the Act,
establish disability prior
to
the
a claimant has the burden to
date
her
insurance coverage
expires. 42 U.S.C. § 416(i) (3); 20 C.F.R. § 404.131. Consequently,
the
ALJ
may
only
consider
symptoms
and
limitations
from
the
relevant time period, September 2006 through December 31, 2010, in
determining whether a disability was present while plaintiff had
insured status. Flaten v. Secretary of Health & Human Services, 44
F.3d 1453, 1458-59 (9th Cir. 1995). Any subsequent deterioration of
2
In a March 29, 2011 Physical RFC Assessment, nonexamining
physician, William Backlund, M.D., opined that plaintiff could
perform medium level work with a limitation to occasional
overhead reaching with the left arm. Tr. 65-66. On July 7, 2011,
nonexamining physician, Neal Berner, M.D. concurred with this
opinion. Tr. 77-78.
15 - OPINION AND ORDER
impairments after plaintiff's period of eligibility is irrelevant.
Weetman v. Sullivan, 877 F.2d 20, 22
(9th Cir. 1989).
In this case, Dr. Hindmarsh completed the physical assessment
form on June 29, 2011, over six months after plaintiff's date last
insured of December 31, 2010. Dr. Hindmarsh did not indicate that
his June 29, 2011 physical assessment was a retrospective opinion. 3
Moreover,
an
ALJ may
give
less
credit
or
weight
to
opinions
assessed after plaintiff's insured status has expired. See Johnson
v. Shalala, 60 F.3d 1428, 1432-33 (9th Cir. 1995); Lev v. Astrue,
No. C 09-05074 RS, 2010 WL 3037261, at *6,
Indeed,
plaintiff
does
not
challenge
(D. Or. July 30, 2010).
the
ALJ' s
reasoning
for
rejecting Dr. Hindmarsh's opinion on this basis.
Second, the ALJ rejected Dr. Hindmarsh's opinion because it is
inconsistent with plaintiff's concurrent reports of functioning.
Contrary to plaintiff's argument, when read in the context of the
discussion of Dr. Hindmarsh's opinion and the ALJ's decision as a
whole, it is clear that "concurrent reports of functioning" refers
to plaintiff's daily activities. Tr. 16-17, 19. 4
3
An ALJ may not solely disregard a retrospective opinion
because it is retrospective. Smith v. Bowen, 849 F.2d 1222, 1225
(9th Cir. 1988). In this case, although Dr. Hindmarsh's opinion
was not retrospective in nature, the ALJ gave two additional
specific and legitimate reasons for rejecting Dr. Hindmarsh's
opinion.
4
I note that plaintiff appeared to clearly understand
"concurrent reports of functioning" in challenging the ALJ's
finding that plaintiff's allegations were inconsistent with her
16 - OPINION AND ORDER
An ALJ may reject a medical opinion that is inconsistent with
a claimant's activities,
including the ability to perform some
work. See Morgan, 169 F.3d at 601-602. As the ALJ correctly found,
Dr. Hindmarsh's opinion is inconsistent with plaintiff's reported
activities of functioning during the relevant period. For example,
as discussed previously, plaintiff reported running on a treadmill
and biking three to four times a week for exercise. Tr. 235, 260.
In August 2010, plaintiff reported to Dr. Hindmarsh that she had
As the ALJ noted, plaintiff
taken a recent trip to Japan. Tr. 238.
worked six hours a week as a caregiver to an elderly woman and
spent several hours a week showing apartments for her landlord. Tr.
33,
44.
In fact,
in August and October 2008 and October 2009,
plaintiff reported to Dr. Hindmarsh that her pain was well managed
while she worked. Tr. 242, 251, 267.
Once again, plaintiff presents an alternative interpretation
of the facts with respect to her daily activities; however,
ALJ' s
rational
interpretation of her concurrent
inconsistent with
record.
cleaning,
For
Dr.
example,
sweeping,
gardening. Tr.
Hindmarsh' s
as
opinion
discussed
mopping,
is
above,
vacuuming,
concurrent reports of functioning. See Pl. Br.
pp. 15-17.
17 - OPINION AND ORDER
functioning as
supported by
plaintiff
the
reported
completing laundry,
144. As discussed previously,
the
and
the ALJ also noted
(ECF No. 12) at
that. plaintiff
reported
frequently
completing
errands
for
her
elderly mother and taking care of her parents. Tr. 18.
Third, the ALJ rejected Dr. Hindmarsh's opinion on the basis
that it considers limitations from plaintiff's back impairment,
which was diagnosed after December 31,
2010.
On June 29,
2011,
plaintiff first reported low back pain, and Dr. Hindmarsh listed
back pain as a medical problem in plaintiff's treatment notes. Tr.
229. Dr. Hindmarsh's physical functional assessment is also dated
June 29, 2011. Tr. 231. Based on these facts,
concluded
that
Dr.
Hindmarsh's
physical
the ALJ reasonably
assessment
included
limitations from plaintiff's report of back pain. Tr. 19.
Plaintiff
first
argues
that
the ALJ's
inference
that
Dr.
Hindmarsh's opinion incorporated limitations from plaintiff's back
impairment is unreasonable. Specifically, plaintiff argues that her
back impairment had not been fully diagnosed at the time of Dr.
Hindmarsh's
assessment;
incorporate
limitations
consequently,
from
her
back
his
pain.
opinion
did
not
Contradictorily,
plaintiff also contends that Dr. Rask opined that plaintiff's back
problems had existed at least two years prior to the expiration of
her insured status, thus Dr. Hindmarsh's inclusion of limitations
from her back impairment was appropriate.
Plaintiff's arguments
fail.
Prior to June 29, 2011, as the ALJ noted, the record indicates
that plaintiff did not seek medical treatment for her complaints of
18 - OPINION AND ORDER
back pain. Tr. 13, 228. At the hearing, plaintiff testified that
she did not seek any treatment for her back pain prior to December
31,
2010.
Tr.
impairment as
38.
The
ALJ
non-severe at
properly
step two
found
for
the
plaintiff's
back
relevant period,
September 1, 2006 through December 31, 2010. Tr. 13. To be sure,
plaintiff does not challenge the ALJ's step two finding, which I
conclude
is
supported
by
substantial
evidence
in
the
record.
Accordingly, it is not unreasonable for the ALJ to conclude that
Dr.
Hindmarsh' s
assessment
included
limitations
from
her
back
impairment. 5
Furthermore,
challenges
the
to
ALJ's
the
extent
assessment
that
of
Dr.
plaintiff
Rask's
indirectly
opinion,
this
argument is meritless. Plaintiff misstates an opinion from Dr. Rask
when
she
asserts
that
Dr.
Rask
opined
that
plaintiff's
back
impairment existed two years prior to her date last insured. In a
September 12, 2012 letter, Dr. Rask merely summarized plaintiff's
subjective allegation that she "recalls" injuring her back over the
past ten years with her pain worsening two years prior to December
5
Contrary to plaintiff's assertion, the ALJ was not required
to re-contact Dr. Hindmarsh. "Ambiguous evidence, or the ALJ's
own finding that the record is inadequate to allow for proper
evaluation of the evidence, triggers the ALJ' s duty to· 'conduct
an appropriate inquiry.'" Tonapetyan v. Halter, 242 F.3d 1144,
1150 (9th Cir. 2001) (quoting Smolen, 80 F. 3d at 1288)). After a
careful review of the record, I conclude that there are no
ambiguities or inadequacies that would trigger the ALJ's duty to
develop the record.
19 - OPINION AND ORDER
31, 2010. Tr. 347. In this case, the only evidence that plaintiff's
back impairment existed prior to December 31, 2010 is plaintiff's
own testimony, which the ALJ appropriately discredited. Thus, the
ALJ
provided
specific
and
legitimate
reasons,
supported
by
substantial evidence to reject Dr. Rask's opinion.
Finally,
contrary
to
plaintiff's
argument,
the
ALJ
specifically evaluated Dr. Hindmarsh's opinion in accordance with
the specific factors listed in 20 C.F.R.
§
404.1527(c). Tr. 16. The
ALJ rejected Dr. Hindmarsh's opinion for reasons contemplated by
the regulation-namely, its inconsistency with other evidence in the
record,
supportability,
statutory requirement
prior to
that
her date last
416(i) (3); 20 C.F.R.
§
and
its
irrelevance
plaintiff must
insured for
in
light
of
the
establish disability
DIB benefits.
42
U.S.C.
§
404.131. To be sure, plaintiff does not cite
to any legal authority requiring the ALJ to provide a detailed
discussion with respect to each factor listed in the regulation.
In summary, I conclude that the ALJ did not err in evaluating
Dr.
Hindmarsh' s
opinion
and
provided
specific
and
legitimate
reasons backed by substantial evidence in the record as a whole.
III. The ALJ Did Not Err in Evaluating Lay Testimony
Lay witness testimony as to how a claimant's symptoms affect
her ability to work is competent evidence, which the ALJ must take
into account. Bruce v. Astrue, 557 F.3d 1113, 1115 (9th Cir. 2009);
Stout, 454 F.3d at 1053; Nguyen v. Chater, 100 F.3d 1462, 1467 (9th
20 - OPINION AND ORDER
Cir.
1996) .
The ALJ is
required to
account
for
competent
lay
witness testimony, and if it is rejected, provide germane reasons
for doing so. Valentine, 574 F.3d at 694.
In a January 7, 2011 third party Function Report, plaintiff's
husband, Edward Mankin noted that plaintiff has limited range of
motion in her left shoulder and has difficulty walking and climbing
stairs due to the arthritis in her right knee. Tr. 149. Mr. Mankin
testified that plaintiff has no problems with self care. Tr. 150.
Mr. Mankin also noted that plaintiff can lift ten to 15 pounds, can
walk
a
quarter
of
a
mile
before
resting,
and
has
difficulty
squatting, bending, and kneeling. Tr. 154. Mr. Mankin further noted
that plaintiff spends one hour daily cooking a full dinner.
Tr.
151. Mr. Mankin indicated that plaintiff spends one to two hours a
month showing apartments for her landlord.
Tr.
153.
Her husband
also noted that she spends time camping and gardening but needs
help from her husband to engage in these activities. Tr. 153.
In a separate, undated letter, Mr. Mankin noted that plaintiff
is no longer able to stand to wash dishes and prepares only quick
simple meals. Tr. 200. Mr. Mankin also noted that he has taken over
most of the household chores such as vacuum, shopping, dishes and
laundry
. further
due
to
plaintiff's
indicated that
limited
in the past
plaintiff's health deteriorate.
21 - OPINION AND ORDER
abilities.
five
years,
Id.
Mr.
Mankin
he has watched
In the instant action, plaintiff argues that the ALJ failed to
provide sufficient reasons to discount Mr. Mankin's January 7, 2011
Third Party Report. Plaintiff contends that although the ALJ found
Mr.
Mankin's
Third
Party
Report
consistent
with
the
medical
evidence and plaintiff's reports of functioning, in effect, the ALJ
rejected Mr.
Mankin' s
Third
Party Report
because
Mr.
Mankin' s
testimony supports an inability to perform a full range of light
work. I disagree.
In the decision, the ALJ gave little weight to Mr. Mankin's
undated letter,
which was submitted after the hearing.
The ALJ
discredited Mr. Mankin's letter because it reflected plaintiff's
current functioning as opposed to her functioning prior to December
31, 2010 and was not consistent with the medical evidence of record
during the relevant period. 6 With respect to Mr. Mankin's January
7, 2011 Third Party Report, the ALJ found Mr. Mankin's description
of plaintiff's functioning as generally consistent with the medical
evidence and plaintiff's own reports of functioning.
In this case, the ALJ did not reject Mr. Mankin's Third Party
Report.
Mr.
reports
of
Mankin' s
her
own
testimony
daily
6
generally
activities.
For
reflects
example,
plaintiff's
Mr.
Mankin
In her opening brief, plaintiff appears to only challenge
the ALJ's assessment of Mr. Mankin's Third Party Report. However,
.in her reply, plaintiff appears to challenge the ALJ's assessment
of Mr. Mankin's undated letter. Contrary to plaintiff's argument,
I conclude that the ALJ gave two germane reasons for giving
"little weight" to Mr. Mankin's letter.
22 - OPINION AND ORDER
described plaintiff engaging in many daily activities
such as
vacuuming, cleaning, gardening, and cooking full meals. Tr. 151.
Similar
to
plaintiff's
reports,
Mr.
Mankin
also
plaintiff takes care of her elderly parents,
noted
that
including running
errands for them, completing household chores for them, and taking
them to medical appointments. Tr. 150. Moreover,
Dr. Hindmarsh's
2007 through 2010 treatment notes are also consistent with Mr.
Mankin's testimony. See generally Tr. 234, 235, 238, 240, 251.
Contrary to
plaintiff's
assertion,
the
ALJ' s
RFC
finding
incorporates Mr. Mankin's testimony. Consistent with Mr. Mankin's
testimony,
the ALJ found that plaintiff could perform a reduced
level of light work. For example, Mr. Mankin noted that plaintiff
could lift ten to 15 pounds; the ALJ found that plaintiff could
lift ten pounds frequently and 20 pounds occasionally.
Tr.
15.
Similarly, the ALJ found that plaintiff is limited to occasional
reaching overhead with her left non-dominant arm, which reflects
Mr. Mankin's testimony that plaintiff has limited range of motion
in her left arm.
Tr. 15. With respect to Mr. Mankin's testimony
regarding plaintiff's allegations of pain and fatigue, as discussed
above, the ALJ appropriately discredited the alleged severity of
plaintiff's
symptoms.
To
be
sure,
the
ALJ's
RFC
finding
is
generally consistent with Mr. Mankin's testimony.
Furthermore, Mr. Mankin's testimony adds no new allegations on
behalf
of
plaintiff.
23 - OPINION AND ORDER
Failure
to
comment
on
lay
testimony
is
harmless
"[w] here
lay witness
testimony does
not describe
any
limitations not already described by the claimant, and the ALJ's
well supported reasons for rejecting the claimant's testimony apply
equally well to the lay witness testimony." Molina,
1117.
Mr.
Mankin's
testimony
regarding
674,
plaintiff's
F.3d at
pain
and
limitations is similar to that of plaintiff, including allegations
of pain in her left shoulder and difficulty lifting. As discussed
above,
the
ALJ
gave
three
convincing
reasons,
supported
by
substantial
evidence
Specifically,
the ALJ found that plaintiff's allegations of pain
to
discount
plaintiff's
testimony.
were inconsistent with the her activities of daily living, and this
reason is applicable to Mr. Mankin's testimony. Thus, any error on
the part of the ALJ in failing to discuss specific weight assessed
to Mr. Mankin's testimony is harmless. See Burch v. Barnhart, 400
F. 3d 676,
679 (9th Cir. 2005) ("A decision of the ALJ will not be
reversed for errors that are harmless.").
IV.
The ALJ Did Not Err in the Hypothetical Posed to the VE
Plaintiff contends that
because
it
did
not
include
the ALJ' s
all
of
hypothetical
plaintiff's
is invalid
limitations.
Plaintiff's argument is misplaced.
Contrary to plaintiff's argument, the ALJ included all of the
limitations from the RFC finding in the hypothetical posed to the
VE. The ALJ is required to pose a hypothetical composed of only
limitations
that
the
24 - OPINION AND ORDER
ALJ
found
credible
and
supported
by
substantial evidence in the record. Bayliss,427 F.3d at 1217; see
also
Magallanes
v.
Brown,
881
F.2d
747,
756-57
(9th
Cir.
1989) (holding that it is proper for an ALJ to limit a hypothetical
to restrictions supported by substantial evidence in the record) .
As discussed previously, the ALJ properly discredited plaintiff's
allegations that she cannot stand or walk for six hours or that she
must lay down during the workday. Tr. 16-17. To the extent that
plaintiff
indirectly
unsupported,
challenges
plaintiff's
specifically Dr.
the
argument
Hindmarsh' s
ALJ's
fails.
The
RFC
finding
medical
as
record,
2007 through 2010 treatment notes,
clearly support the ALJ's RFC finding. Tr. 234, 235, 238, 240, 251.
After careful review of the record,
I conclude that substantial
evidence supports the ALJ's RFC finding, and thus, the ALJ did not
err in posing a hypothetical to the VE.
CONCLUSION
For
the
reasons
stated
above,
the
Commissioner's
final
decision is AFFIRMED. This action is DISMISSED.
IT IS SO ORDERED.
DATED this "j._2.._ day of JULY, 2015.
Malcolm F. Marsh
United States District Judge
25 - OPINION AND ORDER
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