Smith v. Commissioner Social Security Administration

Filing 15

Opinion. The final decision of the Commissioner denying benefits to Plaintiff is AFFIRMED and this action is DISMISSED. Signed on 1/27/2017 by Judge Malcolm F. Marsh. (ps1)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
GREGORY MAURICE SMITH,
Civil No. 6:15-cv-01625-MA
Plaintiff,
OPINION AND ORDER

v.
CAROLYN W. COLVIN, Acting
Commissioner of Social Security,
Defendant.
KATHERINE L. EITENMILLER
ROBERT A. BARON
Harder, Wells, Baron & Manning, P.C.
474 Willamette, Suite 200
Eugene, OR 97401
Attorneys for Plaintiff
BILLY. J. WILLIAMS
United States Attorney
JANICE E. HEBERT
Assistant United States Attorney
1 - OPINION AND ORDER -

1000 SW Third Ave., Suite 600
Portland, OR 97204
COURTNEY GARCIA
Special Assistant United States Attorney
Office of the General Counsel
Social Security Administration
701 Fifth Avenue, Suite 2900 MIS 221 A
Seattle, WA 98104
Attorneys for Defendant
MARSH, Judge.
Plaintiff, Gregory Maurice Smith, brings this action for judicial review of a final decision
of the Commissioner of Social Security (the "Commissioner") denying his application for disability
insurance benefits ("DIB") and supplemental security income ("SSI") under Title II and XVI Of the
Social Security Act (the "Act"). This Court has jurisdiction pursuant to 42 U.S.C. § 405(g). For the
reasons set fo11h below, the final decision of the Commissioner is AFFIRMED.

PROCEDURAL BACKGROUND
On Februaty 28, 2012, Plaintiff filed an application for DIB and SSI alleging disability
beginning Januaty 7, 2012, caused by gout, learning problems, sciatic nerve, breathing problems, and
bad teeth. Tr. 100, 111,183-192. Plaintiff's claim was denied initially and upon reconsideration.
On January 8, 2014, a hearing was held before an Administrative Law Judge ("ALJ"), at which
Plaintiff, Plaintiff's sister Melinda Smith, and vocational expert ("VE") Katie Macy-Powers testified.
Tr. 30-75.
On Februaty 11, 2014, the ALJ issued a decision denying Plaintiff's application. Tr. 8-29.
Plaintiff requested review of the ALJ's decision, which the Appeals Council denied on June 25,
2015. Tr. 7, 1-4. Accordingly, the ALJ's decision became the final decision of the Commissioner.

2 - OPINION AND ORDER -

FACTUAL BACKGROUND

Born in 1954, Plaintiff was 60 years old at the time of the hearing. Tr. 35. Plaintiff has a
tenth-grade education.

Tr. 35.

Plaintiff has past relevant work as a component assembler,

lubrication servicer, yard worker, general laborer, salvage laborer, and commercial cleaner. Tr.
65-67.
In addition to his testimony at the hearing, Plaintiff submitted an Adult Function Report. Tr.
231-238. Plaintiff's friend Tomas Bolin submitted a Third Pmty Function Report and a Statement,
his friend Patsy Casey submitted a Statement, and his former employer submitted a Statement. Tr.
221-228, 348, 349, 350. StephenPethick, Ph.D., performed a psychological evaluation at the request
ofLane County Vocational Rehabilitation, and Plaintiff submitted Dr. Pethick's report. Tr. 353-359.
Kris Hallenburg, Ph.D., performed a Comprehensive Psychological Evaluation and submitted an
opinion. Tr. 360-365. DeWayde C. Perry, M.D., performed a physical consultative examination and
submitted an opinion. Tr. 366-370. State agency consultants Mary Ann Iyer, M.D., and Patricia
Kraft, Ph.D. reviewed Plaintiffs records and submitted opinions. Tr. 78-88, 89-99.
THE ALJ'S DISABILITY ANALYSIS

The Commissioner has established a five-step sequential process for determining whether
a person is disabled.

Bowen v. Yuckert, 482 U.S. 137, 140-42 (1987); 20 C.F.R. Sec.

404.1520(a)(4)(i)-(v), 416.920(a)(4)(i)-(v). Each step is potentially dispositive. The claimant bears
the burden of proof at steps one tluough four. Tackettv. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999).
The burden shifts to the Commissioner at step five to show that a significant number of jobs exist
in the national economy that the claimant can perform. Yuckert, 482 U.S. at 141-142; Tackett, 180
F.3d at 1098.
3 - OPINION AND ORDER -

The ALJ found that Plaintiff met the insured status requirements of the Act through
September 30, 2014. Tr. 13. At step one, she determined that Plaintiff had not engaged in
substantial gainful activity since Janumy 7, 2012, the alleged onset date. Tr. 13.
At step two, the ALJ found Plaintiff suffered from the following severe impairments:
learning disorder and alcohol abuse in reported remission. Tr. 13. The ALJ found no objective
medical evidence to support Plaintiff's claims of gout, right sciatic nerve problems, breathing
problems, varicose veins, or hearing problems. Tr. 14.
At step three, the ALJ determined that Plaintiff does not have an impairment or combination
of impairments that meet or medically equal any listed impairment. Tr. 14. The ALJ then found
Plaintiff has the following residual functional capacity ("RFC"):
[C]laimant has the residual functional capacity to perform a full range of work at all
exe1iional levels subject to the following nonexertional limitations. The claimant is
able to perform work with simple, routine, and repetitive tasks. He is able to perform
work that does not require assembly or production pace rate. He is able to perform
work that allows him to be off task ten percent of the workday. He would do best
with verbal instructions instead of written instructions.
Tr. 16.
At step four, the ALJ concluded that Plaintiff retained the ability to perform the requirements
of his past relevant work as a general laborer, salvage laborer, or commercial cleaner. Tr. 23. The
ALJ also concluded at step five, in the alternative, that Plaintiff retains the ability to perform other
work existing in significant numbers in the national economy, such as hospital cleaner and linen
room attendant. Tr. 24. Accordingly, the ALJ found that Plaintiff was not disabled within the
meaning of the Act. Tr. 25.

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SUMMARY OF ISSUES

Plaintiff argues the ALJ erred in three respects: (1) in discrediting the Plaintiffs testimony;
(2) in failing to adequately consider the opinion ofDr. Pethick; and (3) in concluding Plaintiffretains
the ability to sustain either past relevant work or "other work" existing in the national economy.
STANDARD OF REVIEW

The district court must affirm the Commissioner's decision if the Commissioner applied
proper legal standards and the findings are supported by substantial evidence in the record. 42
U.S.C. § 405(g); Berry v. Astrue, 622 F.3d 1228, 1231 (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 v. Astrue, 698 F.3d 1153 1159 (2012)
(internal quotations omitted); Valentine v. Commissioner Social Sec. Adm in., 574 F.3d 685, 690 (9th
Cir. 2009). The court must weigh all the evidence, whether it supports or detracts from the
Commissioner's decision.

Martinez v. Heckler, 807 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 ).

5 - OPINION AND ORDER -

DISCUSSION
I.

PlaintifPs Credibility
To determine whether a claimant's testimony regarding subjective pain or symptoms is

credible, an ALJ must perform two stages of analysis. 20 C.F.R. §§ 404.1529, 416.929. The first
stage is a tlu·eshold test in which the claimant must produce objective medical evidence of an
underlying impairment that could reasonably be expected to produce the symptoms alleged. Molina

v. As/rue, 674 F.3d 1104, 1112 (9th Cir. 2012); Tommasetti v. Astrue, 533 F.3d 1035, 1039 (9th Cir.
2008). At the second stage of the credibility analysis, absent evidence of malingering, the ALJ must
provide clear and convincing reasons for discrediting the claimant's testimony regarding the severity
of the symptoms. Carmickle v. Commissioner Soc. Sec. Admin., 533 F.3d 1155, 1166 (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 the court
to conclude that the ALJ did not arbitrarily discredit the claimant's testimony. Ghanim v. Colvin,
763 F.3d 1154, 1163 (9th Cir. 2014); Tommasetti, 533 F.3d at 1039. Factors the ALJ may consider
when making such credibility determinations include the objective medical evidence, the claimant's
treatment history, the claimant's daily activities, inconsistencies in testimony, effectiveness or
adverse side effects of any pain medications, and relevant character evidence. Ghanim, 763 F.3d at
1163. Not all of an ALJ' s reasons for discrediting a claimant must be upheld, as long as substantial
evidence supports the ALJ's determination. Carmickle, 533 F.3d at 1162.
In her decision, the ALJ found that Plaintiff's impairments could reasonably be expected to
cause some symptoms, but that Plaintiff's statements concerning the intensity, persistence, and
limiting effects of his symptoms are not entirely credible. Tr. 17. The ALJ cited several reasons for

6 - OPINION AND ORDER -

discounting Plaintiff's credibility: the treatment record did not fully corroborate the Plaintiff's
testimony, the Plaintiff's claims of debilitated functioning are not consistent with contemporaneous
reports of actual functioning, Plaintiff performed work after the alleged onset date, the Plaintiff
provided inconsistent statements regarding his alcohol use and about his past work, the fact that
Plaintiff left his prior work for reasons unrelated to his impairments, and the fact that Plaintiff
received no treatment for any of his alleged impairments.'
The ALJ provided specific, clear and convincing reasons, backed by substantial evidence,
for discounting the severity of Plaintiff's symptoms. Chaudh1y v. Astrue, 688 F.3d 661, 671 (9th
Cir. 2012). First, the ALJ noted Plaintiff's allegations regarding his symptoms were inconsistent
with other evidence in the record. Tr. 18. An ALJ may reject testimony inconsistent with the
medical and other evidence. Carmickle, 533 F.3d at 1161. Plaintiff alleged he could not work
because his mind was drifting, and that he could not walk or sit very long due to pain. Tr. 51, 231,
236. However, a physical examination in May 2012 by Dr. Perry yielded normal results, and Dr.
Peny assessed no limitations as a result. Tr. 18, 366-70. Moreover, contemporaneous with the
Adult Function Report containing allegations of Plaintiff's physical limitations, Plaintiff represented
to the Lane County Vocational Rehabilitation Department that he had no physical limitations, and
that he was mowing lawns to earn money. Tr. 18, 305-06, 310.
With respect to Plaintiff's reported difficulty maintaining pace and concentration, Dr.
Hallenburg found that Plaintiff demonstrated good concentration and pace. Tr. 362. Plaintiff could
perform mental calculations (including addition, subtraction, and multiplication) quickly and

1

The ALJ also cited Plaintiff's receipt of unemployment benefits during the time of his
alleged disability as a reason to discount his credibility, but the Commissioner does not rely upon
that finding before this Court.
7 - OPINION AND ORDER -

conectly. Tr. 20, 363. Plaintiff remembered six digits forward and three backward, and he
completed six serial sevens with two errors in thhty seconds. Tr. 363. Dr. Hallenburg noted that
although Plaintiff read slowly, he did so accurately, and he demonstrated good retention of the
subject matter after 45 minutes. Tr. 363.
Dr. Pethick administered tests with Plaintiff for several hours. Tr. 50. Plaintiff was able to
complete the tests and focus during the lengthy examination. Tr. 50. Dr. Pethick noted average
verbal comprehension and perceptual reasoning, with low average working memory and borderline
process speed, resulting in a full scale IQ of 82 (low average range). Tr. 355. The ADHD
questionnaire Dr. Pethick administered revealed only mild symptoms related to difficulties with
attention, concentration, or focus. Tr. 355.
The ALJ noted that Plaintiff worked at Garten Services, mowed lawns, and performed odd
jobs after the alleged disability onset date. Tr. 13, 19. Evidence that a claimant has intermittently
worked patt-time, even in jobs that were admittedly too taxing for the claimant, supp01ts the ALJ's
denial of benefits. Drouin v. Sullivan, 966 F.2d 1255, 1258 (9th Cir. 1992). Evidence in the record
shows Plaintiff performed odd jobs for friends and neighbors, which included weekly mowing of
lawns, yard care, and light maintenance. Tr. 19, 204, 209, 305, 306, 348, 349. Performance of job
duties on a part-time basis, while not sufficient to establish work full time, can constitute a legitimate
reason for discounting a claimants assertion of disability. See Bray v. Commissioner ofSoc. 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). This inconsistency is a clear and convincing reason for the ALJ to conclude Plaintiff was not

8 - OPINION AND ORDER -

wholly credible. Mankin v. Commissioner a/Social Sec. Admin., Case No. 6: 14-cv-01249-MA, 2015
WL 4488339, at *5 (D. Or. July 22, 2015).
The ALJ also found Plaintiff made inconsistent statements about his alcohol use and about
his past work. Tr. 18, 19. A claimant's inconsistent statements are specific and convincing reasons
to discount his credibility. Tonapetyan v. Halter, 242 F.3d 1144, 1148 (9th Cir. 2001); SSR 96-7p,
available at 1996 WL 374186, at *5. 2 This standard specifically applies to inconsistent statements
regarding substance abuse. Thomas v. Barnhart, 278 F.3d 947, 959 (9th Cir. 2002); see also
Verduzco v. Apfel, 188 F.3d I 087, I 090 (9th Cir. 1999)(affirming ALJ' s reasoning that inconsistent
statements regarding alcohol use supp01ied negative credibility finding).
The ALJ noted that Plaintiff reported differing levels of alcohol use to medical providers and
counselors. Tr. 19. For example, in March 2012, Plaintiff reported consuming alcohol on occasion
and quitting for a week at a time. Tr. 354. In April, 2012, he stated he drinks three to eight beers,
always drinks the "lightest" alcohol he can find, and that he would go weeks and months without
alcohol, though he drank four beers the night before the examination. Tr. 361-62. By contrast, in
May 2012, Plaintiff reported he drank alcohol every day in various amounts. Tr. 367. Moreover,
vocational rehabilitation notes indicated co-workers smelled alcohol on Plaintiff observed him
drinking mouthwash, claims Plaintiff denied. Tr. 278, 280-83, 286.

2

I note that the Social Security Administration recently "eliminat[ed] the use of the term
'credibility' from [its] sub-regulatoty policy" to "clarify that subjective symptom evaluation is not
an examination of an individual's character." SSR 16-3p; Titles II and SVI: Evaluation of
Symptoms in Disability Claims, 81 Fed. Reg. 14167 (Mar. 16, 2016) (superseding SSR 96-7p).
However, the changes to Administration practice articulated in SSR 16-3p could not apply to the
ALJ decision at issue before this court, because 42 U.S.C. § 405(g) does not contain any express
authorization from Congress allowing the Commissioner to engage in retroactive rulemaking.
Bowen v. Georgetown Univ. Hosp., 488 U.S. 204, 214-215 & n.3 (1988); Garner v. Colvin, 626
Fed.Appx. 699, 701 (9th Cir. 2015).
9 - OPINION AND ORDER -

As to Plaintiffs past work, Plaintiff testified that he lost his job at Garten because he would
be assigned a task, such as mowing lawns, and would get sidetracked by pulling weeds. Tr. 42.
However, his vocational rehabilitation records demonstrated that Plaintiff refused to do the task
assigned him in the manner assigned, demonstrating an uncooperative attitude ratherthan confusion.
Tr. 18, 286. Plaintiff also testified that he could not work at all, yet he stated he performed odd jobs
for neighbors and friends and demonstrated an ability and willingness to show up to work on time
each and every day. Tr. 18-19, 50, 286, 305, 306, 348, 349, 350.
Plaintiff argues alternate explanations of the inconsistencies cited by the ALJ. However,
Plaintiff does not demonstrate that the ALJ's interpretation of the inconsistencies was invalid, and
his disagreement with her interpretation is insufficient to overturn the ALJ' s determination. Burch

v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005).
The ALJ further found that Plaintiff left his prior work for reasons unrelated to his
impairments. Tr. 18. The fact that a claimant stopped work for reasons other than his impairments
is a sufficient basis to disregard his testimony. Bruton v. Massanari, 268 F.3d 824, 828 (9th Cir.
2001 ). The ALJ noted that Plaintiff lost his job at Garten based on his uncooperative attitude. Tr.
18. Plaintiff also stated thathe was laid off from his prior job in2009, and although he testified that
he thought he was not fast enough, he admitted no one ever mentioned anything to him about his
speed or performance prior to the lay-off. Tr. 43, 212.
Finally, the ALJ also cited a lack of treatment for Plaintiffs alleged impairments to support
his credibility determination. Tr. 18. An "unexplained, or inadequately explained, failure to seek
treatment" may be the basis for an adverse credibility finding. Fair v. Bowen, 885 F.2d 597, 603
(9t9h Cir. 1989). However, lack of medical treatment due to an inability to afford medical treatment
10 - OPINION AND ORDER-

does not support an adverse credibility determination. Orn v. Astrue, 495 F.3d 625, 638 (9th Cir.
2007).
Here, the AIJ noted that Plaintiff repotted that he never saw a physician for either his gout
or back pain. Tr. 18. Plaintiff reported, however, that he did not seek medical care because "doctors
are for rich people." Tr. 23 7. Moreover, Plaintiff testified that he did not seek medical care because
he was uninsured for twelve years, and that he obtained medical insurance for the first time only
seven or eight days before the hearing. Tr. 36, 45. Thus, the record does not suppo1t the ALJ's
finding that lack of treatment is a legitimate reason to discredit Plaintiff.
Notwithstanding the ALJ' s error in determining that lack of medical treatment undermined
Plaintiff's credibility, the ALJ' s remaining reasons for discounting Plaintiff's testimony provide clear
and convincing support for the adverse credibility determination and are supported by substantial
evidence in the record. Carmickle, 533 F.3d at 1162-63. An examination of the record as a whole
and the credibility determination specifically, leaves no doubt that the error regarding the Jack of
medical treatment does "not negate the validity of the ALJ's ultimate [credibility] conclusion."

Batson, 359 F.3d at 1197. Accordingly, the ALJ's adverse credibility determination is supported by
specific, clear, and convincing reasons, backed by substantial evidence and inferences reasonably
drawn from the record. Molina, 674 F.3d at 1113.

II. Dr. Pethick's Opinion
Plaintiff contends the ALJ erred by giving "little weight" to the opinion of examining
psychologist, Stephen Pethick, Ph.D. Specifically, Plaintiff argues the ALJ erred in failing to adopt
Dr. Pethick's opinion related to Plaintiffs need for accommodations in the workplace.

11 - OPINION AND ORDER -

The ALJ is responsible for resolving conflicts in the medical record, including conflicts
among physician's opinions. Carmickle, 533 F.3d at 1164. To reject the uncontrove1ied opinion of
a treating or examining physician, the ALJ must present clear and convincing reasons. Bayliss v.

Barnhart, 427 F.3d 1211, 1216 (9th Cir. 2005). If a treating or examining doctor's opinion is
contradicted by another doctor's opinion, it may be rejected by specific and legitimate reasons.

Garrison v. Colvin, 759 F.3d 995, 1012 (9th Cir. 2014); Ghanim, 763 F.3d at 1161.
When evaluating conflicting opinions, an ALJ is not required to accept an opinion that is not
suppo1ted by clinical findings, or is brief or conclusory. Thomas, 278 F.3d at 957. In addition, a
doctor's work restrictions based on a claimant's subjective statements about symptoms are
reasonably discounted when the ALJ finds the claimant less than fully credible. Bray, 554 F.3d at
1228; Batson, 359 F.3d at 1195.
On March 13, 2012, Dr. Pethick examined Plaintiff at the request of Lane County Vocational
Rehabilitation Services in order to assist with case planning and to help Plaintiff find employment.
Tr. 21, 353. Specifically, Dr. Pethick was charged to "assess [Plaintiffs] current level of cognitive
functioning, academic achievement and any coexisting conditions." Tr. 353.
Plaintiff repo1ted to Dr. Pethick a previous diagnosis of learning disorder, which poses
significant challenges for him in negotiating educational and certain employment settings. Tr. 354.
He indicated he had been enrolled in special education classes and that he left school by the eleventh
grade. Tr. 354. Plaintiff reported ongoing difficulties related to reading, spelling, writing and
mathematical sequencing. Tr. 354.
There were no medical records for Plaintiff at the time, so Dr. Pethick had nothing to review.
Tr. 353. Dr. Pethick administered several cognitive tests. Tr. 353. Plaintiff had average verbal

12 - OPINION AND ORDER -

comprehension, average perceptual reasoning, low average working memory, and borderline
processing speed. Tr. 355. Plaintiff received a full-scale IQ score of82, which is in the low average
range. Tr. 355. Dr. Pethick summarized Plaintiff's test results as follows:
[Plaintiff] is a 57-year-old male who generally tested within the "low-average" to
"average" range ofintellectual functioning, although his verbal comprehension skills
are within the average range. He tested in the "average" range on most non-verbal
tasks and within the "borderline" to "low average" range on memmy tasks and timed
visual tasks. There is evidence of a disability, primarily related to language
decoding, spelling, and processing speed. This scoring profile is consistent with
[Plaintiff's] repotted history.
Tr. 358.
Dr. Pethick opined that Plaintiff's stated goal of obtaining work as a mechanic "is realistic."
Tr. 358. He further stated that "[i]t appears to be the case that [Plaintiff] has the desire to attempt
a ce1tain range of employment settings and he may be a good candidate for certain types of
employment." Tr. 358. Dr. Pethick opined that in an employment setting, Plaintiff should not be
expected to rely on his reading and/or writing skills, and will have difficulty with any written
material above the 4th-5th grade level. Tr. 359. He concluded Plaintiff qualifies for job-site
accommodations designed to minimize the impact of his difficulties, which would "vaty in different
employment settings, but should include the possibility" of the following:
- extra time to complete job tasks.
- being provided with clear, appropriately written instructions for job tasks.
- pairing written instructions with verbal and visual instruction, making sure to make
eye contact while giving instructions.
- being asked to complete only one task at a time.

13 - OPINION AND ORDER -

Tr. 359. Dr. Pethick further opined that Plaintiff would benefit from using a planner/organizer to
track daily responsibilities, and that he may want to explore the use of a hand-held tape recorder to
help him in remembering important tasks. Tr. 359.
The ALJ gave little or no weight to Dr. Pethick's opinion. Tr. 21. Specifically, the ALJ
found Dr. Pethick' s opinions related to Plaintiffs need for accommodations for employment are not
suppo1ted by Plaintiffs cognitive test results, by other psychological examination results, or by
Plaintiffs work history. Tr. 21. The ALJ relied upon Dr. Hallenburg's examining opinion, the
opinions of the consulting state agency physicians, and the fact that Dr. Pethick's opinion relied
heavily on Plaintiffs subjective complaints. Tr. 21.
Examining psychologist Dr. Hallenburg found Plaintiff could read, understand, and
remember the content ofa paragraph after a 45 minute delay. Tr. 21, 363. Plaintiff was able to
perform mental calculations quickly and accurately. Tr. 363. Plaintiffs concentration and pace
during the examination were good. Tr. 362. Dr. Hallenburg opined that Plaintiffs job possibilities
"may be limited to areas not requiring many academic skills or computer use," and noted that
Plaintiff has "good interpersonal and social skills." Tr. 364.
State agency physician Patricia Kraft, Ph.D., reviewed all of Plaintiffs records, including his
vocational rehabilitation records and those ofDrs. Pethick, Hallenburg, ;md Peny. Tr. 82-87. Dr.
Kraft concluded Plaintiff could perform work, but noted that he "has relative weakness in processing
speed and working memo1y." Tr. 86. As such, "at times his attention and [persistence] and pace will
be compromised" and he "should not work in environment w/ speeded tasks." Tr. 86.
Finally, the ALJ noted that Dr. Pethick's opinions relied heavily upon Plaintiffs subjective
complaints. Tr. 21. A "physician's opinion of disability 'premised to a large extent upon the
14 - OPINION AND ORDER-

claimant's own accounts of his symptoms and limitations' may be disregarded where those
complaints have been 'properly discounted."' Morgan v. Comm 'r Soc. Sec. Admin, 169 F.3d 595,
602 (9th Cir. 1999) (quoting Fair, 885 F.2d at 605).
Although Plaintiff disagrees with the ALJ' s interpretation of the medical record,"[w]hen the
evidence before the ALJ is subject to more than one rational interpretation, we must defer to the
ALJ's conclusion." Batson, 359 F.3d at 1198. Accordingly, because the ALJ pointed to specific and
legitimate evidence in the record contradicting Dr. Pethick's opinion, as well as reliance on
Plaintiff's subjective complaints that he found not credible, this Court finds that the ALJ did not err
in rejecting Dr. Pethick' s opinion.

Ability to Sustain Past Relevant Work or "Other Work" Existing in the National
Economy

III.

Plaintiff argues the ALJ erred in finding that Plaintiff retained the ability to perform past
relevant work or, in the alternative, "other work" because the ALJ' s hypothetical to the VE was
defective. Had the ALJ fully credited Dr. Pethick's opinion regarding accommodations that would
probably be needed, Plaintiff contends the VE testimony precludes competitive employment.
As discussed above, I have concluded that the ALJ did not err in giving little weight to Dr.
Pethick's opinion or in discounting Plaintiff's credibility. As such, the ALJ did not err in fashioning
Plaintiff's RFC. Because the hypothetical posed to the VE included all of those limitations which
the ALJ deemed to be credible and consistent with the medical evidence, the ALJ could reasonably
rely upon the VE's testimony that Plaintiff retains the ability to sustain either past relevant work or
"other work." Stubbs-Danielson, 539 F.3d 1169, 1176-76 (9th Cir. 2008); Valentine, 574 F.3d at
694.

15 - OPINION AND ORDER-

CONCLUSION
For the reasons stated above, the Commissioner's final decision denying benefits to Plaintiff
is AFFIRMED. This action is DISMISSED.
IT IS SO ORDERED.
DATED this27day of Januaiy, 2017.

fn~<!f'm~

Malcolm F. Marsh
United States District Judge

16 - OPINION AND ORDER-