Scafidi v. Commissioner Social Security Administration

Filing 15

Opinion and Order. Signed on 6/7/2017 by Judge Malcolm F. Marsh. (ma2)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON

MICHELLE M. SCAFIDI,
Plaintiff,
v.
COMMISSIONER SOCIAL SECURITY
ADMINISTRATION,
Defendant.
DREW L. JOHNSON
1700 Valley River Drive
Eugene, OR 97405
JOHN E. HAAPALA, JR.
401 E. 10th A venue, Suite 240
Eugene, OR 97401
Attorneys for Plaintiff
BILLY J. WILLIAMS
United States Attorney
District of Oregon
JANICE E. HEBERT
Assistant United States Attorney
1000 S.W. Third Ave., Suite 600
Portland, OR 97204-2902

1 - OPINION AND ORDER

Case No. 6:16-cv-00967-MA
OPINION AND ORDER

JORDAN D. GODDARD
Social Security Administration
Office of the General Counsel
701 Fifth Ave., Suite 2900 MIS 221A
Seattle, WA 98104-7075
Attorneys for Defendant
MARSH, Judge
PlaintiffMichelle M. Scafidi seeks judicial review of the final decision of the Commissioner
of Social Security denying her application for a period of disability and disability insurance benefits
("DIB") under Title II of the Social Security Act, 42 U.S.C. §§ 401-403, and denying her application
for Supplemental Security Income ("SSI") disability benefits under Title XVI of the Social Security
Act, 42 U.S.C. §§ 1381-1383f. This Court has jurisdiction pursuant to 42 U.S.C. §§ 405(g) and
1383(c)(3). For the reasons that follow, the decision of the Commissioner is affomed.
PROCEDURAL AND FACTUAL BACKGROUND
Plaintiff protectively filed her DIB and SSI applications on March 22, 2012, alleging
disability beginning August 15, 2011, due to fibromyalgia, diabetes, heart disease, back and leg pain,
depression, arthritis, neuropathy, carpal tunnel syndrome, and degenerative disc disease. Tr. Soc.
Sec. Admin. R. ("Tr.") 259, ECF No. 12. Plaintiffs claims were denied initially and upon
reconsideration. Plaintiff filed a request for a hearing before an administrative law judge ("ALJ").
The ALJ held a hearing on August 29, 2014, at which Plaintiff appeared with her attorney and
testified. A vocational expert, Stephen R. Cardinal, also appeared at the hearing and testified. On
Januaiy 9, 2015, the ALJ issued an unfavorable decision. The Appeals Council denied Plaintiffs
request for review, and therefore, the ALJ's decision became the final decision of the Commissioner
for purposes of review.

2 - OPINION AND ORDER

Plaintiff was born in 1962, and was 49 years old on the alleged onset of disability date, and
52 years old on the date of the hearing. Plaintiff completed high school, and attended cosmetology
school for two years. Tr. 26, 45, 751. Plaintiff has past relevant work as a meat wrapper and cook,
and also has worked as a cashier, day care provider, and barista. Tr. 26, 45, 48.

THE ALJ'S DISABILITY ANALYSIS
The Commissioner has established a five-step sequential process for detennining whether
a person is disabled. Bowen v. Yuckert, 482 U.S. 137, 140 (1987); 20 C.F.R. §§ 404.1520, 416.920.
Each step is potentially dispositive. The claimant bears the burden of proof at steps one through
four. See Valentine v. Commissioner Soc. Sec. Admin., 574 F.3d 685, 689 (9th Cir. 2009); Tackett
v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999). At step five, the burden shifts to the Commissioner
to show that the claimant can do other work which exists in the national economy. Hill v. Astrue,
698 F.3d 1153, 1161 (9th Cir. 2012).
The ALJ found that Plaintiff meets the insured status requirements through June 30, 2017.
At step one, the ALJ found that Plaintiff has not engaged in substantial gainful activity since her
alleged onset of disability. At step two, the ALJ found that Plaintiff had the following severe
impairments: obesity; diabetic peripheral neuropathy of the lower extremities; moderate carpal
tunnel syndrome, status-post right side release; meralgia paresthetica; fibromyalgia; lumbar
degenerative disc disease; cervical degenerative disc disease; well-controlled diabetes mellitus,
status-post thyroid ablation; sleep apnea; depressive disorder; and panic disorder. At step three, the
ALJ found that Plaintiffs impairments, or combination of impairments, did not meet or medically
equal a listed impainnent.

3 - OPINION AND ORDER

The ALJ assessed Plaintiff with a residual functional capacity ("RFC") to perform a range
of light work with additional limitations:
[Plaintiff! can lift 20 pounds occasionally, and 10 pounds frequently. [Plaintiff! can
sit, stand, and walk, each up to 6 hours in an 8-hour workday for a combined total of
8 hours of activity. [Plaintiff! requires the option to changes positions from standing
to seated three times an hour, while still performing essential tasks. [Plaintiff! can
frequently handle; and frequently finger, and feel with the dominant, right upper
extremity. [Plaintiff! can never climb ladders, ropes, or scaffolds. [Plaintiff! should
not be exposed to hazards, such as unprotected heights, and large moving equipment.
[Plaintiff! can never crawl. [Plaintiff! can frequently balance, and occasionally stoop,
crouch, and kneel. [Plaintiff! is able to understand, remember, and cany out simple
instructions in a setting with no more than occasional public contact.
Tr. 19.
At step four, the ALJ found that Plaintiff is unable to perfo1m her past relevant work. At step
five, the ALJ found that considering Plaintiffs age, education, work experience, and residual
functional capacity, jobs exist in significant numbers in the national economy that Plaintiff can
perform, including such representative occupations as: mail clerk, info1mation router, and order
filler. Alternatively, the ALJ found that if Plaintiff is limited to no more than occasional handling
bilaterally, the following representative occupations are within Plaintiffs RFC and exist in
significant numbers: wire worker, collater operator, and key cutter. Accordingly, the ALJ concluded
that Plaintiff has not been under a disability under the Social Security Act from August 15, 2011
through the date of the decision.

ISSUES ON REVIEW
On appeal to this court, Plaintiff contends the following errors were committed: ( 1) the ALJ
improperly evaluated her testimony; (2) the ALJ improperly evaluated the opinions of treating
physician Arezo Fathie, M.D., examining psychologist Alison Prescott, Ph.D., and examining

4 - OPINION AND ORDER

physician Alec Fedorov, M.D., and (3) the RFC fails to incorporate all of her limitations. The
Commissioner argues that the ALJ' s decision is suppo1ied by substantial evidence and is free oflegal
error. Alternatively, the Commissioner contends that even if the ALJ erred, Plaintiff has not
demonstrated harmful error.

STANDARD OF REVIEW
The district co mi must affom the Commissioner's decision if the Commissioner applied
proper legal standards and the findings are suppo1ied 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, 698 F.3d at 1159 (internal quotations
omitted); Valentine, 574 F.3d at 690. The court must weigh all the evidence, whether it suppmis or
detracts from the Commissioner's decision. Garrison v. Colvin, 759 F.3d 995, 1009 (9th Cir. 2014);
1Vfartinez 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
judgmentforthatofthe Commissioner." Edlundv. 1Wassanari, 253F3d1152, 1156 (9th Cir. 2001);
Garrison, 759 F.3d at 1010.

DISCUSSION

I.

The ALJ Did Not Err in Evaluating Plaintiff's 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. The first stage is a

5 - OPINION AND ORDER

threshold test in which the claimant must produce objective medical evidence of an underlying
impairment that could reasonably be expected to produce the symptoms alleged. 1Vfolina v. Astrue,
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 affirmative 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 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); Brown-Hunter v. Colvin, 806 F.3d 487, 493 (9th Cir. 2015).
Factors the ALJ may consider when making such credibility detenninations include the objective
medical evidence, the claimant's treatment history, the claimant's daily activities, and
inconsistencies in testimony. 1 Ghanim, 763 F.3d at 1163; Tommasetti, 533 F.3d at 1039.
At the hearing, Plaintiff testified that she takes a variety of medication for her ailments, and
that they cause her to become fatigued. Tr. 57. Plaintiff testified that she takes pain medication for
her feet, aims, and back, and that she takes clonazepam for her anxiety. Tr. 58.
1

Social Security Ruling ("SSR") 16-3p eliminated the use of the term "credibility."
However, SSR 16-3p became effective March 28, 2016. The Court has previously determined
that SSR 16-3p does not apply retroactively because 42 U.S.C. § 405(g) does not contain any
express authorization from Congress allowing the Commissioner to engage in retroactive
rulemaking. Smith v. Colvin, No. 6: 15-cv-O 1625-MA, 2017 WL 388814, at *4 n.2 (D. Or. Jan.
27, 2017). See, e.g., Wright v. Colvin, No. 15-cv-02495-BLF, 2017 WL 697542, *9 (N.D. Cal.
Feb. 22, 2017) (holding SSR 16-3p does not apply retroactively); Thayer v. Colvin, No.
2:16-cv-00545-DWC, 2017 WL 132450, at *7 (W.D. Wash. Jan. 13, 2017) (same). The Court
adheres to that rationale here. Therefore, because the ALJ's decision in this case was issued
Januaty 9, 2015 -well before the effective date - SSR 16-3p does not apply in this instance.

6 - OPINION AND ORDER

Plaintiff stated that she has not seen a counselor for her anxiety. Tr. 58. Plaintiff admitted
that she has not seen a rheumatologist since being diagnosed with fibromyalgia. Tr. 59. Plaintiff
testified that she is able to drive, but does so as little as possible, and that she averages driving three
times a month. Tr. 60.
Plaintiff lives with her daughter who is 18. Tr. 61. Plaintiff described that she tries to cook,
but relies on her daughter to perform the other household chores. Tr. 61. Plaintiff said that she can
bathe herself and get dressed, but that she occasionally needs help from her daughter with a
particular item of clothing. Tr. 62. Plaintiff testified that she drops things because of difficulty with
her hands, and that she is having carpal tunnel release surgery soon after the hearing. Tr. 62.
Plaintiff testified that she can lift three pounds. Plaintiff testified that she cannot lift a frying pan
or the coffee pot. Tr. 63. Plaintiff estimated she could sit for 30 to 40 minutes before needing to get
up, could stand for 10 minutes before needing to sit, and could walk for only 10 minutes. Tr. 63.
Plaintiff testified that she does not exercise, and spends the majority of her day lying down.
Tr. 64. Plaintiff stated that her pain is typically at an eight on a 10 point scale, and that after taking
narcotics, the pain is at six or seven. Plaintiff testified that her pain is worst in her toes, arms, hands,
legs and back. Tr. 66. Plaintiff testified that she is unable to walk to the mailbox. Tr. 63, 68.
Plaintiff noted that her pain is worse on her right side, and that her right leg tingles from her knee
to her hip. Tr. 67. Plaintiff testified that the pain in her hands makes it difficult to hold a cup of
coffee, work on the computer, or hold her cane. Tr. 69-70. Plaintiff estimated she could work on
the computer for 10 minutes. Tr. 70.
In a May 5, 2012 Function Repo1t-Adult, Plaintiff stated that she is completely debilitated
by clu·onic pain and fatigue. Tr. 267. Plaintiff described that she has difficulty with self-care when

7 - OPINION AND ORDER

she is having a major flare with hands and arms. Tr. 268. Plaintiff stated that she occasionally needs
reminders to take her medications because she takes so many of them. Tr. 269. Plaintiff described
that she is able to do very light housework and laundry, but she does not fold. Tr. 269. Plaintiff does
not perfo1m yard work. Tr. 270 Plaintiff stated that she leaves the house daily, is able to drive, and
she goes groce1y shopping once per week. Tr. 270. Plaintiff also stated that she is home bound, and
is able to talk on the telephone and that her only hobby is watching television. Tr. 271. Plaintiff
described that her impairments affect her ability to lift, squat, bend, stand, reach, walk, sit, kneel,
climb stairs, memmy, complete tasks, concentrate, and use her hands. Tr. 272. Plaintiff indicated
that she uses a cane and braces and splints for her carpal tuilllel. Tr. 273.
In the decision, the ALJ offered several specific, clear, and convincing reasons for
discounting Plaintiffs testimony. Brown-Hunter, 806 F.3d at 488-89. First, the ALJ found
Plaintiffs inconsistent presentation to treating and examining providers occun'ing shortly after the
hearing significantly undermined her credibility. Inconsistencies in a Plaintiffs reports conceming
the severity of symptoms can be a clear and convincing reason to discount that testimony. Burch v.

Barnhart, 400 F.3d 676, 680 (9th Cir. 2005); Tonapetyan v. Halter, 242 F.3d 1144, 1148 (9th Cir.
2001) (upholding adverse credibility determination based on claimant's presentation at hearing, lack
of cooperation with examiners, inconsistent statements, and tendency to exaggerate). Here, the ALJ
detailed several discrepancies between Plaintiffs subjective complaints and the observations and
results of examining physician James Reder, M.D. Dr. Reder performed at physical evaluation on
September 23, 2014, approximately two weeks after the hearing. Tr. 737. As the ALJ accurately
indicated, Plaintiff brought a cane with her, yet Dr. Reder observed that Plaintiff walked into the
examination room without difficulty and easily transferred from the chair to the examination table.

8 - OPINION AND ORDER

Tr. 21, 23, 740. Additionally, as the ALJ noted, Dr. Heder noted that Plaintiff sat comfortably, was
not in any acute distress, and easily removed her sandals. Tr. 21, 739. The ALJ discussed that
during Dr. Heder's examination, Plaintiff complained of significant pain during toe and heel
walking, and refused to hop or squat, yet her Romberg test was negative. Tr. 21. As the ALJ
indicated, Dr. Heder specifically noted in his report that it was difficult to tell whether Plaintiff was
providing full effort during the examination given her presentation, list of complaints, and refusal
to perform certain examination tasks. Tr. 21, 741. The ALJ's findings are wholly supported by
substantial evidence. Indeed, contra1y to Plaintiffs hearing testimony that she is independent with
self-care and needs only occasional help from her daughter, Plaintiff reported to Dr. Heder that she
is "fully dependent" on her daughter to shower and get dressed. Tr. 61-62, 738. Additionally, as the
ALJ discussed, Plaintiff informed Dr. Heder that she uses a cane for short walks and uses a rolling
walker for longer distances, yet there are no objective findings of impaired strength or balance to
support the use of a walker and one has not been prescribed by any provider. Tr. 23, 739. Based on
the numerous discrepancies between Plaintiffs subjective complaints and her presentation to Dr.
Heder, ALJ could reasonably discount Plaintiffs testimony. See Chaud1y v. As/rue, 688 F.3d 661,
671 (9th Cir. 2012) (affirming adverse credibility determination based on claimant's non-prescribed
use of a wheelchair and cane and less than full exertion during testing).
Second, the ALJ detailed numerous inconsistencies between Plaintiff subjective allegations
and her presentation to examining psychologist Alison Prescott, Ph.D.

Tr. 21. Dr. Prescott

perf01med a psychodiagnostic evaluation of Plaintiff on October 7, 2014, some two weeks following
Dr. Heder's evaluation and approximately five weeks after the hearing. Tr. 751. As the ALJ
discussed, Plaintiff ambulated slowly and used a cane. Tr. 21, 7 52. The ALJ found this inconsistent
9 - OPINION AND ORDER

with Plaintiffs presentation two weeks prior to Dr. Heder, who observed that Plaintiff walked
without difficulty and could transfer easily from the chair to the examination table. Tr. 21.
Additionally, the ALJ detailed that Plaintiff provided inconsistent statements to Dr. Prescott
regarding her hand functioning. Plaintiff inf01med Dr. Prescott that the carpal tunnel release surgery
perfo1med a month earlier "did not go well," her hands were numb, and that she cannot grasp or pick
up any weight. Tr. 7 52. As the ALJ discussed, during post-operative testing perfo1med by Dr. Heder
just two weeks earlier, Plaintiff demonstrated normal motor strength, nmmal grip strength, normal
ability to grasp large and small objects, with intact sensation to touch and pinprick in all fingers. Tr.
21, 741. The ALJ found that these inconsistencies "significantly diminish" Plaintiffs credibility.
The ALJ findings are readily suppmied by substantial evidence in the record and provide specific,
clear, and convincing reasons to discount Plaintiffs subjective allegations. Tommasetti, 533 F.3d
at 1040.
Plaintiffs contends that the severity of her carpal tunnel symptoms and attendant limitations
persisted after carpal tunnel release surgery, and that the ALJ erred in discrediting her on this basis.
According to Plaintiff, on September 23, 2014, Robe1i Choi, M.D., Plaintiffs treating neurologist,
found mild sensory deficits along the median nerve on the right and left side. Pl.'s Br. 18, ECF No.
13. Plaintiff suggests that Dr. Choi and Dr. Heder reached opposite conclusions concerning her hand
functioning abilities post-surge1y, yet they examined Plaintiff on the same day. Plaintiffs argument
misses the mark. As Plaintiff correctly states, Dr. Choi's treatment note does state that Plaintiff has
"mild sensory deficit along the median nerve distribution on the right hand." Tr. 802. However, that
notation is contained in a paragraph referring to the "trochanteric bursa" or hip area, and the
remainder of the note discusses Plaintiffs lower extremity complaints. Thus, the Comi determines

10- OPINION AND ORDER

the notation to a "right hand" sensoty deficit is likely a typographical error. Moreover, Dr. Reder
perfo1med a series of tests of Plaintiffs gross and fine motor skills and limited Plaintiff to frequent
handling, fingering, and feeling to account for her carpal tunnel symptoms. Tr. 742. Dr. Choi's
notes do not reflect any such functional limitation testing of Plaintiffs right hand during his
examination.

Thus, even if the Court could interpret the evidence differently, the ALJ's

interpretation of Dr. Reder's opinion of Plaintiffs hand functioning and Dr. Choi's treatment notes
is rational and will not be disturbed. Batson, 359 F.3d at 1196.
Third, the ALJ detailed that the severity of Plaintiffs alleged walking limitations and alleged
difficulty with hand functioning is not suppotied by the objective medical record. The lack of
objective medical evidence to suppoti a claimant's allegations can be a clear and convincing reason
to discredit a claimant, so long as it is not the only reason. Burch, 400 F.3d at 680-81. As the ALJ
accurately detailed, objective medical evidence elsewhere in the record fu11her under undennines
Plaintiffs allegations. To be sure, despite Plaintiffs allegations of dropping things, there is no
objective medical evidence in the record of decreased grip strength, either before or after her surge1y.
Tr. 741, 829. Alec Fedorov, M.D., the physician who perfo1med the carpal tulllel release surge1y,
found decreased sensation prior to surgery, but"[n]o weakness of grip strength or pinch strength."
Tr. 829. After surge1y, Dr. Fedorov's notes indicate she was healing well, could make a fist, and had
"no1mal sensation in all fingers." Tr. 805. And, contrary to Plaintiffs allegation that surgery on her
right arm was unsuccessful, Plaintiff inquired about perfo1ming the same surge1y on her left aim.
Tr. 802.
Fmihermore, as the ALJ conectly indicated, Plaintiffs allegations to Drs. Reder and Prescott
that she needs a walker at times is not suppo11ed objective medical evidence elsewhere in the record.

11 - OPINION AND ORDER

To the contrary, Plaintiffs treatment notes consistently reflect she was "ambulating normally," had
a normal gait and station, and normal strength and tone in all extremities. See, e.g., Tr. 417, 425,
440,448,470,476,480,585,595,603,610,617,626,636,643,651,661,668,678,685,692, 700.
Additionally, repeated EMG/nerve conduction studies did not reveal radiculopathy (pain, numbness
or weakness due to a compressed nerve in the spine), but rather mild peripheral neuropathy (tingling
and numbness due to nerve damage) due to Plaintiffs diabetes. For example, in 2013, EMG/Nerve
conduction studies showed some latency across Plaintiffs left thigh, but otherwise her peroneal and
tibial motor nerve responses were normal bilaterally. Tr. 428-29.
In July 2014, Plaintiff met Dr. Choi for her continued complaints of leg and hip pain and
numbness, as well as carpal tunnel. Tr. 707. Dr. Choi diagnosed meralgia paresthetica on the right
side, low back pain, and diabetic neuropathy with decreased sensation in both feet. Tr. 708.
Following an EMG study, there was evidence of mild peripheral neuropathy, with no evidence of
any significant radiculopathy in her lower extremeties. Tr. 763, 779. Indeed, Dr. Choi's treatment
notes from September 2014 indicate that Plaintiff complained of tingling in her thighs, with sensory
deficit on the left side, but "there is quite a bit of giveaway weakness." Tr. 802. Dr. Choi indicated
that Plaintiffs recent MRI scan "does not show any evidence of encroachment of the L3 neural
foramen." Tr. 802. Dr. Choi recommended that Plaintiff inquire about an injection for her hip, and
opined that he does not believe Plaintiff "has any significant radiculopathy or any nerve problem
other than mild peripheral neuropathy, which I think is actually better as she appears to have good
sensation in her toes now." Dr. Choi recommended Plaintiff follow up in six months. Tr. 802. At
no point did Dr. Choi indicate that Plaintiffs mild perip.heral neuropathy wananted a walker.

12 - OPINION AND ORDER

In short, as the ALJ indicated, the objective medical findings do not support the severity of
Plaintiffs alleged walking and hand functioning limitations. The ALJ's findings are wholly
supported by substantial evidence in the record, and futiher bolster the ALJ' s adverse credibility
dete1mination. Accordingly, the ALJ did not e!T.

II.

The ALJ Did Not Improperly Evaluate the Medical Evidence
A.

Standards

In general, the opinion of a treating physician is given more weight than the opinion of an
examining physician, and the opinion of an examining physician is afforded more weight than the
opinion of a nonexamining physician. Ghanim, 763 F.3d at 1160; Garrison, 759 F.3d at 1012; Orn

v. Astrue, 495 F.3d 625, 632 (9th Cir. 2007). "If a treating physician's opinion is well-suppo1ied by
medically acceptable clinical and laborat01y diagnostic techniques and is not inconsistent with the
other substantial evidence in [the] case record, [it will be given] controlling weight." Orn, 495 F.3d
at 631 (internal quotations omitted) (alterations in original); 20 C.F.R. §§ 404.1527(c), 416.927(c).
To reject the uncontradicted opinion of a treating physician, the ALJ must provide "clear and
convincing reasons that are supp01ied by substantial evidence." Bayliss v. Barnhart, 427 F Jd 1211,
1216 (9th Cir. 2005).
If the treating physician's opinion is contradicted, the ALJ must consider how much weight
it is entitled to considering the factors in 20 C.F.R. § 404.1527(c)(2-6). The factors include the
length ofthe treatment relationship, the frequency of examination, the nature and suppo1iability of
the opinion, and its consistency with other evidence in the record as a whole. 20 C.F .R. §
404.1527(d)(2-6); Ghanim, 763 F.3d at 1161. If a treating or examining doctor's opinion is
contradicted by another doctor's opinion, it may be rejected by specific and legitimate reasons.

13 - OPINION AND ORDER

Ghanim, 763 F.3d at 1161. However, "[t]he ALJ need not accept the opinion of any physician,
including a treating physician, if that opinion is brief, conclusory, and inadequately supported by
clinical findings." Thomas v. Barnhart, 278 F.3d 947, 957 (9th Cir. 2002).

B.

The ALJ Did Not Err in Discounting Dr. Fathie 's Opinion

Plaintiff contends that the ALJ erred in discounting the opinion of her treating physician,
Arzeo Fathie, M.D. Dr. Fathie was Plaintiffs primmy treating physician from 2008 t!U'ough 2013.
On April 15, 2013, Dr. Fathie wrote a letter listing the "multiple medical conditions" that make
Plaintiff a "candidate for disability due the combined effects of all the conditions." Tr. 578. Dr.
Fathie listed 14 conditions, including diabetes, breast cancer, chronic fibromyalgia, bilateral carpal
tunnel, fibromyalgia, morbid obesity, chronic meralgia paresthetica, and others. Dr. Fathie then
opined that Plaintiff"is currently unable to work." Tr. 578.
The ALJ considered Dr. Fathie's opinion, and provided three reasons for giving it little
weight: (1) the opinion is conclusmy and fails to contain any specific functional limitations based
on objective findings; (2) the opinion is inconsistent with contemporaneous physical examination
findings; and (3) is a determination reserved to the Commissioner. Dr. Fathie's opinion was
contradicted by those of Dr. Reder, Mayenne Karelitz, M.D., and Rene Pena, M.D. Because Dr.
Fathie's opinion is contradicted, the ALJ was required to provide specific and legitimate reasons,
backed by substantial evidence, for discounting it.
Plaintiff contends that the ALJ failed to provide specific and legitimate reasons for
discounting Dr. Fathie's opinion. Plaintiff insists that Dr. Fathie provided specific functional
limitations based on objective findings and that Dr. Fathie 's opinion is consistent with his
contemporaneous examination notes and findings.
14- OPINION AND ORDER

First, the ALJ reasonably discounted Dr. Fathie's April 15, 2013 opinion because it was
conclusmy and lacked any specific functional limitations based on objective findings as detailed in
the opinion itself. An ALJ need not accept any opinion, even those from a treating physician, that
are concluso1y and inadequately supported. Bray v. Comm 'r Soc. Sec. Admin., 554 F.3d 1219, 1228
(9th Cir. 2009); Thomas, 278 F.3d at 957. Reviewing Dr. Fathie's brief letter confirms the ALJ's
finding that it simply lists Plaintiffs assorted conditions, and summarily provides that Plaintiff is
unable to work. Tr. 578. The letter contains no explanation supported by objective findings by Dr.
Fathie for reaching the conclusion that Plaintiff is unable to work. Thus, the court determines that
the ALJ reasonably discounted Dr. Fathies' opinion because it fails to identify any specific functional
limitations of Plaintiffs abilities supported by objective findings. Therefore, the ALJ has identified
a specific and legitimate reason for discounting Dr. Fathie' s April 2013 opinion that is supported by
substantial evidence.
Second, the ALJ discounted Dr. Fathie's opinion that Plaintiff is unable to work because it
is inconsistent with contemporaneous treatment notes.

Inconsistency between a physician's

treatment notes and the physician's opinion is a specific and legitimate basis to discount it.

Tommasetti, 533 F.3d at 1041. Here, the ALJ specifically discussed Dr. Fathie's April 15, 2013
treatment note in which Dr. Fathie observed Plaintiff to be ale1i, active, healthy-appearing, that
Plaintiff presented with a nonnal mood and affect, and ambulated normally. Tr. 22, 579. The ALJ
indicated that Dr. Fathie's treatment notes reflect that Plaintiff complained of overall tenderness, but
she had no cyanosis, varicosities, or edema. And, the ALJ noted that Dr. Fathie's treatment note
shows that despite some abnormal sensations in her lower extremities, she had normal muscle
strength, normal gait and station, and her deep tendon reflexes were normal. As discussed above
15 - OPINION AND ORDER

with respect to Plaintiffs credibility, Dr. Fathie' s treatment notes consistently reflect that Plaintiffs
ambulation, muscle strength and tone, and gait and station are n01mal, and that she had a n01mal
mood and affect. See, e.g., Tr. 417, 425, 440, 448, 470, 476, 480, 585, 595, 603, 610, 617, 626, 636,
643, 651, 661, 668, 678, 685, 692, 700. Thus, these findings are backed by substantial evidence.
The Court concludes that the ALJ reasonably determined that Dr. Fathie's opinion that Plaintiff is
unable to work is inconsistent with large po1iions of Dr. Fathie's treatment notes. Thus, the ALJ has
provided a specific and legitimate reason for discounting Dr. Fathie's opinion. Tommasetti, 533 F.3d
at 1041.
Indeed, as discussed by the ALJ, Dr. Fathie's April 15, 2013 treatment note shows that
Plaintiffs chief complaint was to obtain a de1matology referral, review lab results, and refill
prescriptions. Tr. 579. Dr. Fathie indicates that Plaintiff complained of shoulder pain, wrist pain,
diffuse finger pain, lumbar pain and thigh tingling and numbness. Tr. 583. Plaintiff acknowledged
that an injection to her shoulder was helpful, but that her shoulder pain was returning. Dr. Fathie's
notes reflect that Plaintiff was not entirely compliant and consistent with taking her cholesterol and
triglyceride medications, and that she did not complete her blood sugar or blood pressure logs. Tr.
583. Although the ALJ incorrectly stated that Plaintiff did not have edema in her lower extremities,
contrmy to Plaintiffs contention, the ALJ correctly stated that Plaintiffs reflexes were consistently
normal. Tr. 22, 585.
Plaintiff insists that Dr. Fathie's opinion that Plaintiff is unable to work is substantiated by
the bulk of Dr. Fathie's treatment notes, reflecting that Plaintiff complained of asso1ied mihralgias,
back pain, numbness, and fatigue. Plaintiff contends that Dr. Fathie's treatment note of May 10,
2012 is consistent with the opinion that Plaintiff is unable to work. In that treatment note, Dr. Fathie

16- OPINION AND ORDER

indicates that Plaintiff repo1ied her back pain was a nine or 10 on a 10 point scale, she reported
difficulty grocery shopping, difficulty cooking, and that she cannot stand for more than one hour.
Tr. 650-51. According to Plaintiff, Dr. Fathie's treatment note reflects that an April 23, 2012 MRI
indicated severe foraminal stenosis and herniated discs. Tr. 651.
This is a close case, and the record could supp01i Plaintiffs alternative interpretation.
However, the record.as a whole also supports the ALJ's determination. As the ALJ indicated, Dr.
Fathie's opinion that Plaintiff is not able to work is not fully suppo1ied by objective medical findings
elsewhere in the record. Dr. Fathie refe11'ed Plaintiff to other specialists for evaluation of her pain
complaints. Yet, that objective testing does not fully support the severity of Plaintiffs symptoms
or Dr. Fathie's opinion. Contrary to Plaintiffs complaints of pain in her shoulder and lower
extremities, EMO/nerve conduction studies ordered by Dr. Fathie were negative for lumbar
radiculopoathy, and Dr. Mullen in January 30, 2013, found that Plaintiff ambulated with a no1mal
stride, could tandem walk, and had 5/5 motor strength with normal tone. Tr. 440. To be sure,
despite Plaintiffs allegations of pain, she was consistently observed to ambulate normally. See, e.g.,
Tr.417,425,440,448,470,476,480,585,595,603,610,617,626,636,643,651,661,668,678,
685, 692, 700. Fmihermore, although an April 23, 2012 MRI of Plaintiffs lumbar spine appeared
to show some nerve root displacement at L5-S I, a more recent 2014 MRI "does not show any
evidence of encroachment on the L3 neural foramen. 2 Tr. 489, 802.
2

The March 17, 2014 lumbar MRI does not appear to be pati of the record. Additionally,
Plaintiff does not identify the MRI in the transcript or cite to it in her briefing. See Pl.'s Br. 8-10,
ECF No. 13. Instead, the March 17, 2014 lumbar MRI is mentioned by Dr. Choi who indicated
there was no evidence of encroachment. Tr. 802. And, the March 17, 2014 lumbar MRI is noted
by Marat Gadzhiev, M.D., who indicated in his there were degenerative changes at L5-S 1 with
disk protrusion and facet hype1irophy, with mass effect. Tr. 783.

17 - OPINION AND ORDER

Based on the Court's careful review, the ALJ' s findings are supported by substantial evidence
in the record as a whole.

Even if the evidence could be interpreted differently, the ALJ's

interpretation is rational, and based on reasonable inferences drawn from the record. Accordingly,
the Comt will not engage in second-guessing. Tommaselli, 533 F.3d at 1039 ..
Finally, the ALJ observed that Dr. Fathie's opinion that Plaintiff is unable to work is reserved
to the Commissioner, and gave it little weight. Tr. 22. It is true that a treating physician's statement
on an issue reserved to the Commissioner, such as the determination of a claimant's ultimate
disability, is not binding on the ALJ or entitled to special weight. 20 C.F.R. §§ 404.1527( d)(l) ("A
statement by a medical source that you are 'disabled' or 'unable to work' does not mean that we will
determine that you are disabled."), 416.927(d)(l) (same); SSR 96-5p, 1996 WL 374183, at *5
(treating-source opinions that a person is disabled or unable to work "can never be entitled to
controlling weight or given special significance"); see also lvfcleodv. Astrue, 640 F.3d 881, 885 (9th
Cir. 2011) ("A disability is an administrative detennination of how an impahment, in relation to
education, age, technological, economic, and social factors, affects ability to engage in gainful
activity."). Here, the ALJ provided several reasons, backed by substantial evidence, for rejecting Dr.
Fathie's opinion that Plaintiff is unable to work. Therefore, the ALJ did not ell" in rejecting Dr.
Fathie's opinion on this basis.
In short, the ALJ has provided specific and legitimate reasons, backed by substantial evidence
in the record as whole, for discounting Dr. Fathie's opinion. "Where the evidence is susceptible to
more than one rational interpretation, one of which suppmis the ALJ' s decision, the ALJ' s
conclusion must be upheld." Thomas v. Barnhart, 278 F.3d 947, 954 (9th Cir. 2002).

18- OPINION AND ORDER

C.

The ALJ Did Not Err in Evaluating Dr. Prescott's Opinion

Alison Prescott, Ph.D., performed a psychodiagnostic evaluation of Plaintiff on October 7,
2014. In that evaluation, Plaintiff reported to Dr. Prescott that her primaiy impediment to working
is her chronic pain from cancer, fibromyalgia, gout, arthritis, and neuropathy. Tr. 751-52. Plaintiff
informed Dr. Prescott that her health has deteriorated since being diagnosed with breast cancer and
diabetes approximately five years earlier. Plaintiff indicated that her blood sugars are not stable, her
carpal tunnel surge1y did not go well, and that she cannot grasp or pick up any weight. Tr. 752.
Plaintiff also rep01ied to Dr. Prescott that she has a great deal of problems with her right leg, and that
she needs a cane or walker to walk. Tr. 752. Plaintiff indicated that her pain level is typically a
seven on a 10 point scale, and that she can stand for only 10 minutes. Tr. 752. Plaintiff stated that
she has depression from her chronic pain, as well as panic and aindety. Tr. 752. Plaintiff rep01ied
that she does not perform any household chores, cannot read, does not use the computer, and cannot
bathe or get dressed without assistance. Tr. 753.
Dr. Prescott observed that Plaintiff ambulated slowly and used a cane, her speech was slow
and rambling, her affect restricted and mood irritable, and she was tearful at times. On testing,
Plaintiff had good short te1m memory, had some impairment with concentration, and had average
intellectual functioning. Tr. 753. Dr. Prescott diagnosed Plaintiff with major depressive disorder
and a panic disorder. Tr. 753.
Dr. Prescott also completed a Medical Source Statement dated October 19, 2012, in which
she opined that Plaintiff has no limitations in understanding, remembering, and ca11·ying out simple
instructions and make simple work-place judgments. Tr. 755. Dr. Prescott opined that Plaintiff was
markedly limited in her ability to understand, remember and ca11y out complex instrnctions and

19- OPINION AND ORDER

make complex work-related decisions. Tr. 755. Dr. Prescott assessed that Plaintiff is moderately
limited in her ability to interact appropriately with the public, co-workers, supervisors, and to
appropriately respond to usual work situations or changes in routine. Tr. 756. Dr. Prescott indicated
her limitations in this area were due to Plaintiffs poor coping skills and social functioning due to
her chronic pain. Tr. 756. Additionally, Dr. Prescott opined that Plaintiffs ability to work an eight
hour day and manage normal work stress was limited due to her physical limitations of walking,
standing, and inability to perform daily routines without help from her daughter. Tr. 756.
In the decision, the ALJ accurately summarized Dr. Prescott's opinions and evaluation. The

ALJ gave significant weight to the portion of Dr. Prescott's evaluation demonstrating Plaintiffs
good memory function, with some limits in concentration. Tr. 24. The ALJ found this portion of
Dr. Prescott's opinion consistent with Plaintiffs mental status results and Plaintiffs presentation.
Tr. 24. However, the ALJ gave less weight to Dr. Prescott's opinion that Plaintiff could not
complete an eight hour workday and manage normal work stress because it is inconsistent with the
objective examination itself, is based upon Plaintiffs discredited subjective complaints, and is
inconsistent with the physical examination of Dr. Reder.
It is well settled that an ALJ may reject a doctor's opinion "'if it is based to a large extent on

a claimant's self-reports that have been properly discounted as incredible."' Burrell v. Colvin, 775
F.3d 1133, 1141 (9th Cir. 2014) (quoting Tommasetti, 533 F.3d at 1041). "However, when an
opinion is not more heavily based on a patient's self-reports than on clinical observations, there is
no evidentiaiy basis for rejecting the opinion." Ghanim, 763 F.3d at 1162.
Plaintiff contends that the ALJ ened in rejecting a portion of Dr. Prescott's opinion and
Medical Source Statement. Plaintiff argues that Dr. Prescott's opinion was not based upon
20 - OPINION AND ORDER

Plaintiffs discredited self-reports, but was instead based upon Dr. Prescott's clinical observations.
The Comi disagrees.
Contrary to Plaintiffs contentions, the ALJ could reasonably find Dr. Prescott's opinion that
Plaintiff is not capable of handling an eight hour work day and work stressors is based on Plaintiffs
incredible self-rep01is. Indeed, in the Medical Source Statement when asked to identify factors to
suppo1i her assessment that Plaintiff cannot work eight hours a day or manage no1mal work stressors,
Dr. Prescott acknowledged as much, stating "[Plaintiff! has physical limitations with walking,
standing, and daily routines. She needs help from her daughter." Tr. 7 56. As discussed above with
respect to credibility, Plaintiffs statement to Dr. Prescott that she is unable to get dressed and bathe
without assistance from her daughter was directly contradicted by Plaintiffs hearing testimony
approximately five weeks earlier that she could perform such tasks without help. Compare Tr. 61-62

·with Tr. 753, 756. And, as the ALJ discussed, Plaintiffs statement to Dr. Prescott that her carpal
tunnel surgery did not go well and that she could not grasp or pick up items was undermined by Dr.
Reder' s contemporaneous examination demonstrating normal grip strength and manipulation
abilities. Tr. 805. Additionally, Plaintiffs statements are undermined by Dr. Fedorov's postoperative notes indicating that Plaintiff was doing well after surgery and she had normal sensation
in all fingers. Tr. 741. As the ALJ discussed, Plaintiff appeared at Dr. Prescott's evaluation
ambulating slowly with cane, whereas at Dr. Heder's contemporaneous examination, Plaintiff was
observed to ambulate without difficulty, removed her sandals without difficulty, and easily
transfelTed from the chair to the examination table. Tr. 740. To be sure, as the ALJ indicated, Dr.
Prescott performed no physical capacities testing during the mental status examination. Tr. 751-54.
As discussed at length above, the ALJ appropriately discounted Plaintiffs credibility in paii based

21 - OPINION AND ORDER

upon her questionable presentation to Dr. Prescott. And, because Dr. Prescott's psychodiagnositic
evaluation specifically relied upon Plaintiffs unreliable statements about her physical capacities to
opine that she is not capable of working for eight hours, the ALJ has provided a specific and
legitimate reason, backed by substantial evidence, for discounting that portion of Dr. Prescott's
opinion. Bray, 554 F.3d at 1228; Tommasetti, 533 F.3d at 1041. The ALJ did not en".
Finally, the ALJ appropriately credited the portion of Dr. Prescott's opinion indicating that
Plaintiff had some limits in concentration based on mental status testing. Tr. 24. In the nanative
opinion, Dr. Prescott indicated that Plaintiff showed "impairment with concentration," finding that
Plaintiff was able spell "world" backwards, had difficultyperfotming serial Ts after 93, but was able
to perform serial 3's from 20 slowly. Dr. Prescott also found that Plaintiff could name four
Presidents since 1950, could not add a multi-digit number in her head, and could report only two
digits backwards. Tr. 753. Based on these results, Dr. Prescott opined in the Medical Source
Statement that Plaintiffhad "no limitations" in understanding, remembering and carrying out simple
instructions, but had marked limitations in her ability to understand, remember, and cany out
complex instructions and make judgments on complex work-related decisions. Tr. 755. In the
decision, the ALJ concluded that Plaintiff only had moderate limitations with concentration,
persistence and pace based on Dr. Prescott's mental status findings. Tr. 18. Contrary to Plaintiffs
suggestion, the ALJ specifically discounted the limitations in the Medical Source Statement that
were inconsistent with Dr. Prescott's objective clinical findings. Tr. 24, 755. Having carefully
reviewed the Dr. Prescott's Medical Source Statement and the clinical findings, in conjunction with
the vety limited evidence of mental health treatment, the ALJ could reasonably find that Dr.
Prescott's opinion that Plaintiff has marked limitations with concentration, persistence and pace is
22 - OPINION AND ORDER

inconsistent with the objective findings, and appropriately discounted them on that basis.

Tommasetti, 533 F.3d at 1041 (inconsistency between treatment notes and opinion is a specific and
legitimate reason for discounting opinion). Because the ALJ's findings are suppo1ted by substantial
evidence in the record as whole, the ALJ' s has provided a specific and legitimate reason for partially
rejecting Dr. Prescott's opinion.

D.

The ALJ Did Not Commit Harmfitl Error in Failing to Discuss Dr. Fedorov's
Treatment Notes

Plaintiff argues that the ALJ erred in failing to discuss the medical evidence from Alec
Fedorov, M.D., the physician who perfonned Plaintiffs right hand carpal release surgery in August
2014. Tr. 827. Plaintiff correctly states that the ALJ did not discuss Dr. Fedorov's treatment notes.
The Commissioner acknowledges the error, but contends that any error is harmless because
Plaintiffs carpal tunnel release surgery successfully resolved her symptoms. 3 The court agrees.
An ALJ ens by ignoring the opinion of a treating physician. }vfarsh v. Colvin, 792 F.3d
1170, 1172 (9th Cir. 2015). However, "ALJ errors in social security cases are harmless if they are
inconsequential to the ultimate nondisability dete1mination and that a reviewing court cannot
consider [an] error harmless unless it can confidently conclude that no reasonable ALJ ... could
have reached a different disability determination." j\;Jarsh, 792 F.3d at 1173 (internal quotations and
citation omitted). An ALJ's determination may be upheld where the '"the agency's path may be
reasonably discerned, even ifthe agency explains its decision with less than ideal clarity.'" Brown-

Hunterv. Colvin, 806 F.3d 487, 492 (9th Cir. 2015)(quoting Treichlerv. Comm 'r Soc. Sec. Admin.,
775 F.3d 1090, 1099 (9th Cir. 2014)). In this instance, the ALJ's path is readily discerned.
3

Plaintiff did not respond to the Commissioner's argument that the error is harmless.

23 - OPINION AND ORDER

In August 2014, Dr. Fedorov indicated that Plaintiffs EMG/nerve conduction studies
confirmed bilateral carpal tunnel syndrome, severe on the right, mild on the left. Tr. 726-28. Dr.
Fedorov's examination showed that Plaintiff had decreased sensation to touch in median nerve
distribution, but no weakness of grip strength or pinch strength. Tr. 726. Dr. Fedorov opined that
Plaintiff is "very disabled by her bilateral carpal tunnel as it makes it difficult for her to use both
hands." Tr. 728. Dr. Fedorov recommended right hand carpal tunnel release surgery; the surge1y
was performed the following month. Tr. 728, 805. Two weeks after the surge1y, Dr. Fedorov's
September 18, 2014 treatment notes show that Plaintiffs right hand was doing well, she could make
a fist, and she had normal sensation in all fingers. Tr. 805. There are no other treatment notes from
Dr. Fedorov.
In the decision, the ALJ on multiple occasions discussed the fact that Plaintiff is post-status
carpal tunnel release surgery. For example, at step two, the ALJ identified "moderate carpal tunnel
syndrome, status-post right side release" as a severe impairment. Tr. 15. Additionally, at step three,
the ALJ discussed that Plaintiffs moderate carpal tunnel, status-post right side release did not meet
Listing l.02(B), major dysfunction of a joint. Tr. 17. Indeed, the ALJ discussed that the evidence
did not show that Plaintiff has a gross anatomical deformity in connection with chronic pain and
limited motion that result in her inability to perform fine and gross movements effectively. Tr. 17.
The ALJ then thoroughly discussed the consultative physical capacities examination conducted by
Dr. Reder on September 23, 2014 when assessing Plaintiffs RFC. Tr. 737. To be sure, Dr. Heder's
thorough examination of Plaintiffs gross and find motor skills was perfo1medjust five days after
Dr. Fedorov's last examination. As the ALJ found, Dr. Heder indicated that Plaintiff could grasp
and manipulate large and small objects with the first three digits of her hands, and that there was no

24 - OPINION AND ORDER

evidence of myotonia, grip release, localized tenderness, erythema, effusion, or diminution of
function with repetition, Tr. 17. Indeed, based on Plaintiffs carpal tunnel syndrome and testing
results, Dr. Heder limited Plaintiff to frequent handling, fingering and feeling, and the ALJ gave
significant weight to that portion of Dr. Heder' s opinion - a finding not challenged by Plaintiff. The
ALJ's findings are wholly supported by substantial evidence. Tr. 741. Moreover, as discussed at
length above, the ALJ did not err in discounting Plaintiffs subjective symptoms of her hand
functioning based on Dr. Heder's examination.
Therefore, the sole basis for Dr. Fedorov's pre-operative opinion that Plaintiff was disabled
was successfully r~solved by the right side carpal tunnel release surgery - facts the ALJ repeatedly
and adequately discussed.

Additionally, based on Drs. Fedorov and Heder's post-surgical

examinations, no reasonable ALJ would reach different disability dete1mination concerning
Plaintiffs hand functioning. Therefore, not only can the agency's path be readily discerned, the
comt can confidently conclude that the eirnr in failing to discuss Dr. F edorov' s pre-operative opinion
and treatment notes was harmless. ivfarsh, 792 F.3d at 1173; 1Vfolina, 674 F.3d at 1115; accord

Robinson v. Benyhill, _

F. App'x _ , 2017 WL 1735280, *2 (9th Cir. May 3, 2017) (finding

hmmless e1Tor where ALJ failed to discuss opinion of treating doctor).

III.

The Hypothetical to the VE included All of Plaintiff's Credited Limitations
Plaintiff asse1ts that the ALJ's RFC and attendant hypothetical posed to the VE failed to

account for her deficits in concentration. Pl.'s Opening Br. 15, ECF No. 13. The ALJ's RFC
assessment represents all of a claimant's work-related limitations, including non-severe limitations.
20 C.F.R. §§ 404.1545(a)(l-2); 416.945(a)(l-2). An RFC restricting a claimant to "simple" tasks,

25 - OPINION AND ORDER

if based upon the record, may be consistent with a moderate or mild limitation in concentration,
persistence, and pace. Stubbs-Danielson v. Astrue, 539 F.3d 1169, 1173-74 (9th Cir. 2008).
In this case, at step three, the ALJ's found that Plaintiff has "moderate" limitations in
concentration, persistence, and pace. Tr. 18. In the RFC, the ALJ indicated that Plaintiff is "able
to understand, remember, and carry out simple instructions." Tr. 19. Plaintiff appears to suggest that
the RFC limiting Plaintiff to simple instructions fails to account for Dr. Prescott's concentration
limitations, and the ALJ's assessed moderate limitations at step three. Pl. 's Br. 15, ECF No. 13.
This comt has found that such a work restriction alone, without fmiher explanation by the
ALJ, does not adequately capture a "moderate" limitation in concentration, persistence, and pace.
See Lee v. Colvin, 80 F.Supp.3d 1137, 1150-51 (D. Or. 2015) (concluding that moderate limitation

in concentration, persistence, and pace was not addressed by ALJ, included in RFC or hypotheticals
to vocational expert); Brink v. Comm 'r Soc. Sec. Admin., 343 F. App'x 211, 212 (9th Cir. 2009)
(finding the ALJ erred by accepting that claimant had limitations as to concentration, persistence,
or pace but failing to include such limitations in the RFC and hypothetical questions to vocational
expe1t); Abrego v. Comm 'r Soc. Sec. Admin., No. CIV. 99-6173-JO, 2000 WL 682671, *3 (D. Or.
May 25, 2000) (finding hypothetical posed by the ALJ failed to fully and accurately state claimant's
deficiencies in concentration, persistence, or pace). The comi finds these cases distinguishable.
On August 24, 2012, Susan Kotler, Ph.D., a reviewing psychologist for Disability
Dete1mination Services ("DDS"), found that Plaintiff has "mild" restrictions in concentration,
persistence, and pace in the psychiatric review technique utilized for assessing the "B" criteria for
psychological impahments. Tr. 95. However, later in a more detailed assessment of Plaintiffs
functioning, Dr. Kotler specifically indicated that Plaintiff has not received any specific mental
26 - OPINION AND ORDER

health treatment aside from medications. Tr. 95. Dr. Kotler opined that Plaintiff should be able to
sustain concentration, persistence and pace for all levels of task complexity, and that her mental
impairments were nonsevere. Tr. 95. On reconsideration, Pastora Roldan, Ph.D., another reviewing
psychologist for DDS, likewise found Plaintiff had mild limitations with concentration persistence
and pace for the "B" critera. Tr. 132. Similarly, Dr. Roldan provided additional detail when
assessing Plaintiffs mental health functioning, indicating that Plaintiff has been on medication for
anxiety and depression, but had not received mental health treatment. Tr. 132. Dr. Roldan opined
that Plaintiff could sustain concentration, persistence and pace for all levels of task complexity, and
that her mental impairments were nonsevere. Tr. 132.
In the decision, at step three, the ALJ found that Plaintiff had moderate limitations in
concentration, persistence, and pace for purposes of the "B" findings, in part based on Dr. Prescott's
evaluation. Tr. 18. Later, when assessing Plaintiffs RFC, the ALJ discounted Plaintiffs subjective
allegations, and credited that portion of Dr. Prescott's opinion providing that Plaintiff has no
limitations in her ability to make judgments on simple, work-related decisions. The ALJ discounted
Drs. Kotler and Roldan's opinions that Plaintiffs mental health impairments were nonsevere based
on Dr. Prescott's updated evidence. Tr. 22. As discussed above, the ALJ's findings are supported
by substantial evidence.
In Stubbs-Danielson, the Ninth Circuit held that "an ALJ's assessment of a claimant
adequately captures restrictions related to concentration, persistence, or pace where the assessment
is consistent with restrictions identified in the medical testimony." Id. at 1174. Here, the ALJ
accepted medical testimony from Dr. Prescott that Plaintiff has no limitations to perform simple
work, and rejected more severe limitations assessed by Dr. Prescott and Plaintiffs similar subjective

27 - OPINION AND ORDER

complaints. Indeed, Dr. Prescott identified no other limitations stemming from concentration deficits
and identified no specific limitations with persistence or pace. Tr. 755-56. The cases cited by
Plaintiff caution only that an ALJ must explain how a "simple" work restriction adequately captures
a "moderate" limitation in concentration, persistence and pace. Here the ALJ gave such an
explanation. The ALJ's RFC limiting Plaintiff to simple instructions adequately captures her
"moderate" limitations with concentration persistence and pace.
Therefore, unlike Abrego and akin to Stubbs-Danielson, the accepted medical testimony
reflects that Plaintiff would have moderate limitations with detailed tasks, but she has no limitations
in her ability to understand, remember and cany out and maintain concentration, persistence, and
pace for simple work. Tr. 22. Thus, the RFC adequately reflects the accepted medical testimony,
is supported by substantial evidence in the record as a whole, and therefore, the ALJ did not err.
Stubbs-Danielson, 539 F.3d at 1174; see also Bray, 554 F.3dat 1228-29 (ALJ did not en where RFC

adequately accounted for limitations on detailed tasks); Aiitchell v. Colvin, 642 F.App'x 731, 732-33
(9th Cir. 2016) (moderate limitations in concentration, persistence and pace adequately captured in
RFC limiting claimant to simple work); Hartman v. Astrue, Case No. 3:10-cv-06305-ST, 2011 WL
7452802, *8-9 (D. Or. Dec. 2, 2011) (same).

Ill/
Ill/
Ill/
/Ill
Ill/
Ill!
28 - OPINION AND ORDER

CONCLUSION

For the reasons set forth above, the Commissioner's final decision denying benefits to
Plaintiff is AFFIRMED. This action is DISMISSED.
IT IS SO ORDERED.
DATED this L

day of JUNE, 2017.

?rt&~ fn~
Malcolm F. Marsh
United States District Judge

29 - OPINION AND ORDER