McCahill v. Commissioner Social Security Administration
Filing
18
Opinion and Order: The ALJ's decision is free of legal error and supported by substantial evidence. The Commissioner's final decision is therefore affirmed. Signed on 9/18/2019 by Judge Michael J. McShane. (cp)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
JOHN M.,1
Plaintiff,
v.
Civ. No. 6:18-cv-00111-MC
OPINION AND ORDER
Commissioner of the Social Security
Administration,
Defendant.
_____________________________
MCSHANE, Judge:
Plaintiff brings this action for judicial review of the Commissioner’s decision denying his
application for disability insurance benefits (“DIB”). This court has jurisdiction under 42 U.S.C.
§§ 405(g).
Plaintiff alleged disability as of April 15, 2007. Tr. 21.2 On October 27, 2016, Plaintiff
appeared at a hearing before an Administrative Law Judge (ALJ) and presented testimony under
oath. Tr. 49-97. On November 28, 2016, the ALJ determined Plaintiff was not disabled through
December 31, 2012 (the date last insured), and was not disabled through July 4, 2016, but that
Plaintiff was disabled as of July 5, 2016 (when he turned 55 years old). Tr. 43-44.
1
In the interest of privacy, this opinion uses only the first name and the initial of the last name of the nongovernmental party in this case.
2
“Tr” refers to the Transcript of Social Security Administrative Record provided by the Commissioner.
1 – OPINION AND ORDER
Plaintiff argues the ALJ erred in rejecting his subjective complaints of symptoms and
limitations and in rejecting certain opinions of treating and examining physicians. Because the
Commissioner’s decision is based on proper legal standards and supported by substantial
evidence, the Commissioner’s decision is AFFIRMED.
STANDARD OF REVIEW
A reviewing court shall affirm the decision of the Commissioner of Social Security if her
decision is based on proper legal standards and the legal findings are supported by substantial
evidence in the record. 42 U.S.C. § 405(g); Batson v. Comm’r Soc. Sec. Admin., 359 F.3d 1190,
1193 (9th Cir. 2004). “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 (9th Cir. 2012) (quoting Sandgathe v.
Chater, 108 F.3d 978, 980 (9th Cir. 1997)). To determine whether substantial evidence exists,
the district court must review the administrative record as a whole, weighing both the evidence
that supports and detracts from the ALJ’s decision. Davis v. Heckler, 868 F.2d 323, 326 (9th Cir.
1989).
DISCUSSION
The Social Security Administration utilizes a five-step sequential evaluation to determine
whether a claimant is disabled. 20 C.F.R. §§ 404.1520 & 416.920 (2012). The initial burden of
proof rests upon the claimant to meet the first four steps. If the claimant satisfies his burden with
respect to the first four steps, the burden shifts to the Commissioner for step five. 20 C.F.R. §
404.1520. At step five, the Commissioner must show that the claimant is capable of making an
adjustment to other work after considering the claimant’s residual functional capacity (“RFC”),
age, education, and work experience. Id. If the Commissioner fails to meet this burden, then the
2 – OPINION AND ORDER
claimant is disabled. 20 C.F.R. §§ 404.1520(a)(4)(v); 416.920(a)(4)(v). If, however, the
Commissioner proves that the claimant is able to perform other work existing in significant
numbers in the national economy, the claimant is not disabled. Bustamante v. Massanari, 262
F.3d 949, 953-54 (9th Cir. 2001).
At step two, the ALJ found that Plaintiff had the following severe impairments: right
shoulder impingement and acromioclavicular joint arthrosis status post arthroscopic repair; a
long history of classic and common migraines; anxiety disorder not otherwise specified with
traits of OCD; PTSD; panic disorder; agoraphobia; moderate single-episode major depressive
disorder; and mild degenerative disc disease. Tr. 24-25. In formulating Plaintiff’s RFC, the ALJ
concluded that Plaintiff could perform light work with the following relevant limitations: he
could stand/and or walk six hours; he could sit for six hours; he could occasionally reach
overhead with his right hand; he must have access to bathroom facilities within five minutes of
his work station; he could perform work limited to simple, routine tasks; and he could perform
tasks requiring simple workplace judgment. Tr. 30. Based on the vocational expert’s (“VE”)
testimony, the ALJ concluded Plaintiff could not perform past relevant work, but could perform
the jobs of cleaner housekeeping, garment folder, and agriculture produce sorter. Tr. 41-42. As
the Plaintiff could perform the above jobs, the ALJ determined Plaintiff was not disabled until
reaching the “advanced age” of 55 years old, at which point Plaintiff was disabled because he
could not perform past relevant work. Tr. 42-43.
Plaintiff argues the ALJ erred in finding his testimony as to the extent of his symptoms
and limitations less-than fully credible. Plaintiff also argues the ALJ erred in rejecting certain
opinions of treating and examining physicians. I disagree and turn first to the ALJ’s
determination that Plaintiff was not fully credible as to the extent of his limitations.
3 – OPINION AND ORDER
1. The ALJ’s Adverse Credibility Determination
“Where, as here, Claimant has presented evidence of an underlying impairment and the
government does not argue that there is evidence of malingering, we review the ALJ’s rejection
of her testimony for ‘specific, clear and convincing reasons.’” Burrell v. Colvin, 775 F.3d 1133,
1136 (9th Cir. 2014) (quoting Molina v. Astrue, 674 F.3d 1104, 1112 (9th Cir. 2012)). The ALJ
is not “required to believe every allegation of disabling pain, or else disability benefits would be
available for the asking, a result plainly contrary to 42 U.S.C. § 423(d)(5)(A).” Molina, 674 F.3d
at 1112 (quoting Fair v. Bowen, 885 F.2d 597, 603 (9th Cir.1989)). The ALJ “may consider a
wide range of factors in assessing credibility.” Ghanim v. Colvin, 763 F.3d 1154, 1163 (9th Cir.
2014). These factors can include “ordinary techniques of credibility evaluation,” id., as well as:
(1) whether the claimant engages in daily activities inconsistent with the alleged
symptoms; (2) whether the claimant takes medication or undergoes other
treatment for the symptoms; (3) whether the claimant fails to follow, without
adequate explanation, a prescribed course of treatment; and (4) whether the
alleged symptoms are consistent with the medical evidence.
Lingenfelter v. Astrue, 504 F.3d 1028, 1040 (9th Cir. 2007). The ALJ in this case supported his
credibility determination with references to several of the above factors.
The ALJ noted Plaintiff testified that he stopped working not because of his symptoms,
but because his employer laid him off. Tr. 32. An ALJ may legitimately conclude a Plaintiff’s
limitations are not as severe as alleged when the Plaintiff admits his employment ended for
reasons unrelated to his limitations and symptoms. See Bruton v. Massanari, 268 F.3d 824, 828
(9th Cir. 2001) (concluding ALJ did not err in disregarding symptom testimony when evidence
supported the determination that claimant “left his job because he was laid off, rather than
4 – OPINION AND ORDER
because he was injured[.]”). Here, Plaintiff alleged disability as of April 2007, the date he
testified his employer laid him off.3
Additionally, the ALJ noted that “the evidence of record shows that his level of
functioning was not as fully limiting as alleged[.]” Tr. 32. The ALJ pointed out that although
Plaintiff alleged his vision presented difficulties in filling out forms, he failed to follow up with a
referral to an ophthalmologist to rule out vision-caused headaches. Tr. 26. And although Plaintiff
alleged hearing loss in his disability forms, a neurologist found Plaintiff’s hearing “intact to soft
whisper” and an examining physician found normal hearing bilaterally. Tr. 26. Although
Plaintiff claimed to suffer from debilitating migraine headaches, he failed to follow through with
medication for migraines and failed to follow up with his neurologist. These findings are
supported by substantial evidence in the record.
At the October 2016 hearing, Plaintiff testified he suffers up to 15 migraines per month.
Tr. 68. “Sometimes they last for 5 minutes; sometimes they last for three days, and I’ll lose
vision too. I’ll lose a big chunk of my vision, where I can’t see.” Tr. 68. Although Plaintiff told
his neurologist in January of 2010 that he suffered migraines for 20 years, Tr. 619, he waited
nearly a year to present for a follow up appointment, Tr. 727. Plaintiff’s neurologist noted “He
was to have returned after a number of months, but failed to do so.” Tr. 727. At that follow up,
the neurologist stated Plaintiff’s complaints of continuous headaches were inconsistent with the
fact that he used headache medications “only several times per month.” Tr. 628. When Plaintiff’s
neurologist retired in June 2011, she informed Plaintiff that one of her practice partners would
treat Plaintiff if the prescribed medication proved ineffective. Tr. 638. Plaintiff next saw a
3
As discussed below, each of the three specific and legitimate reasons supporting an adverse credibility decision
discussed in Bruton are met here. Like Bruton, Plaintiff here also waited many months (i.e. over three years) after
being laid off to seek treatment and, at least initially, failed to seek treatment despite complaints of severe pain.
Bruton, 268 F.3d at 828.
5 – OPINION AND ORDER
neurologist nearly four years later, when he complained of frequent headaches with aura and a
constant left frontal headache. Tr. 649. Four months later, Plaintiff’s neurologist noted
medication was effective and instructed Plaintiff to return in one month if need be. Tr. 653.
Plaintiff never returned. The ALJ reasonably concluded that although Plaintiff alleges severe
limitations from migraines, “the record reveals that he has not been fully compliant with
treatment recommendations and that he has intermittent treatment with a neurologist.” Tr. 32. An
unexplained failure to follow a prescribed course of treatment is a valid reason supporting a
finding that a Plaintiff is not fully credible as to the extent of his limitations. Lingenfelter, 504
F.3d at 1040.
The ALJ also noted inconsistencies between Plaintiff’s statements about his limitations
and the record. For example, at the hearing, Plaintiff stated he suffered a shoulder injury at work.
Tr. 63. Plaintiff testified that after being laid off, he did not search for other work because “My
shoulder was wrecked. I was trying to get surgery. . . . I couldn’t move my arm. If I sneezed or
coughed or anything, it would just fall dead . . . and it was always pins and needles in my
[hand].” Tr. 64. Plaintiff testified he was “in bad shape” at his last job, and after being laid off, “I
was laying in bed crying most of the time.” Tr. 65. The ALJ noted that despite alleging
debilitating shoulder pain since at least April 2007, “he did not seek orthopedic treatment until
December 2009.” Tr. 32. And although Plaintiff claimed never being released back to work
following his August 2010 rotator cuff surgery, “the record reveals that he was released to work
in early November 2010, three months after his surgery.” Tr. 32. These inconsistencies support
the ALJ’s finding that Plaintiff was not fully credible as to his alleged limitations. Bruton, 268
F.3d at 828 (holding that leaving a job for reasons unrelated to one’s alleged symptoms, waiting
to seek treatment for nine months after employment ended, and failure to seek treatment despite
6 – OPINION AND ORDER
allegations of severe pain constitute specific and legitimate reasons for finding subjective
complaints not entirely credible).
The ALJ did not err in utilizing “ordinary techniques of credibility evaluation” in
weighing the validity of Plaintiff’s self-reported limitations. Ghanim, 763 F.3d at 1163;
Lingenfelter, 504 F.3d at 1040. Although Plaintiff argues another interpretation of the record is
reasonable, that is not a legitimate reason for overturning the ALJ’s conclusions. See Gutierrez v.
Comm’r of Soc. Sec. Admin., 740 F.3d 519, 523 (9th Cir. 2014) (“If the evidence can reasonably
support either affirming or reversing, ‘the reviewing court may not substitute its judgment’ for
that of the Commissioner.”) (quoting Reddick v. Chater, 157 F.3d 715, 720-21 (9th Cir. 1996))).
Because the ALJ provided “specific, clear and convincing reasons” for finding Plaintiff less-than
credible regarding the extent of his limitations, the ALJ did not err in giving little weight to
Plaintiff’s testimony regarding those limitations. Vasquez v. Astrue, 572 F.3d 586, 591 (9th Cir.
2009) (quoting Smolen v. Chater, 80 F.3d 1273,1282 (9th Cir. 1996)).
2. The ALJ’s Weighing of the Medical Evidence
Plaintiff argues the ALJ erred in rejecting certain opinions of Dr. Yeh, his primary care
physician, and Drs. Hallenburg and Gomes, two examining psychologists. I disagree and address
each argument in turn.
i) Dr. Yeh
Dr. Yeh began treating Plaintiff in December 2010, when Plaintiff established care for
chronic headaches. Tr. 416. At the time, Plaintiff was attending mental health counseling and
informed Dr. Yeh that his PTSD was improving with counseling. Tr. 416. One month later,
Plaintiff complained of migraines and IBS. At the next visit, in June 2011, Plaintiff’s primary
complaint remained his constant headaches. “He said he has had a chronic headache all the time,
7 – OPINION AND ORDER
which is nonstop.” Tr. 566. Plaintiff “seems to be managing [IBS] fine with the help of”
medication. Tr. 568. Dr. Yeh ordered Plaintiff to continue following up with his neurologist for
migraines. Tr. 568.4
Dr. Yeh next treated Plaintiff nine months later, in March 2012. Tr. 568. Plaintiff’s chief
complaint was neck pain following a car accident two days prior. Tr. 566. “Prior to [the car
accident], his frequency of migraine headache has dropped down to once every 6 weeks. He
believes all the medications and supplements he has been taking have helped. His bowel
movements are fine.” Tr. 569. Plaintiff’s X-ray “revealed only mild degenerative change,” and
Dr. Yeh prescribed more stretching exercises. Tr. 569. Additionally, Dr. Yeh noted:
He has been walking more due to working with the Occupy Eugene campaign and
now he is doing some volunteer work at the office they established. He does
volunteer work for Egan Warming Center during the winter. He does have some
pain in the right heel after long walking. On the other hand, he has lost 23 pounds
since the last visit due to healthier eating at the campus.
Tr. 569.
Three months later, Plaintiff presented with a primary complaint of pain in his right heel,
hurting for over one year. Tr. 571. Plaintiff’s reported walking 4-5 miles per day for his
volunteer work. In fact, despite his heel pain, Plaintiff walked “a lot on a daily basis.”5 Tr. 57172. Plaintiff’s migraine “is still out of control.” Tr. 571. Dr. Yeh instructed Plaintiff to establish
care with another neurologist for his migraines.6 Dr. Yeh treated Plaintiff a month later and,
4
Plaintiff’s neurologist, Dr. Wilkens, retired one week before Dr. Yeh ordered Plaintiff to continue following up
with his neurologist. Despite Dr. Wilkens’s comment that his practice partners would continue to treat Plaintiff for
migraines, and despite Dr. Yeh’s directive to continue following up with a neurologist, Plaintiff did not see another
neurologist for over three years.
5
The evidence of Plaintiff’s daily walking, often for several miles at a time, is inconsistent with Plaintiff’s testimony
at the hearing that “standing on anything, other than padded carpet, is like walking on knives.” Tr. 67. Plaintiff’s
testimony is also inconsistent with the fact that he saw a podiatrist on only one occasion, in July 2012. Tr. 483. The
podiatrist discussed conservative management of stretching and heat/ice. Tr. 486. Although Plaintiff was invited to
check back in 4-6 weeks, the record does not indicate Plaintiff ever followed up with the podiatrist.
6
As noted, Plaintiff did not see a neurologist for another three years.
8 – OPINION AND ORDER
despite his chief complaint of pain in the heels of both feet, “He is still doing ‘Occupy’ work
with plenty of walking.” Tr. 572. Plaintiff’s head and shoulder pain was stable.
Plaintiff’s next visit was one year later, in August 2014, when he presented with foot pain
and migraines. The doctor noted, once again, that Plaintiff would follow up with a neurologist.
Two weeks later, Plaintiff saw Dr. Yeh again for a chronic pain follow up. Tr. 604. Dr. Yeh
noted “He has been biking more and has lost some weight.” Tr. 604. Plaintiff was encouraged
“to try to remain as active as possible.” Tr. 606.
In January 2015, Plaintiff presented with foot and right shoulder pain, and daily
headaches. Tr. 643. Three months later, Dr. Yeh noted Plaintiff “continues to see benefit with
use of the pain medicines with no significant side effects. Tr. 656. Plaintiff’s headaches were
better controlled with medication. Tr. 657.
Plaintiff’s last visit with Dr. Yeh came in July 2015. Plaintiff’s foot pain had improved
and he had fewer headaches. Tr. 661. “He has been helping out at the camp site for homeless and
involved in Occupy Eugene” as before. Tr. 661. As for Plaintiff’s migraines, he had a good
response to medication as needed. Tr. 662.
Over one year later, in October 2016, Dr. Yeh provided a medical evaluation form. Tr.
676. She diagnosed Plaintiff with chronic multiple pains, migraine with aura, and cubital tunnel
syndrome of the right arm. Chronic pain was the one diagnosis expected to last at least one year.
Plaintiff’s symptoms included intractable pain, impaired walking distance, and sleep disturbance.
As relevant here, Dr. Yeh opined Plaintiff would need to lie down or rest “for at least an hour
due to the pain” and Plaintiff’s impairments would result in more than four days of missed work
each month. Tr. 678-79.
9 – OPINION AND ORDER
The ALJ is responsible for resolving conflicts in the medical record, including conflicts
among physicians’ opinions. Carmickle v. Comm’r, 533 F.3d 1155, 1164 (9th Cir. 2008).
Generally, a treating doctor’s opinion is entitled to more weight than an examining doctor’s
opinion, which in turn is entitled to more weight than a reviewing doctor’s opinion. Garrison v.
Colvin, 759 F.3d 995, 1012 (9th Cir. 2014). When a treating physician’s opinion is contradicted
by another medical opinion, the ALJ may reject the treating physician’s opinion only by
providing “specific and legitimate reasons supported by substantial evidence in the record.” Orn
v. Astrue, 495 F.3d 625, 632 (9th Cir. 2007).
The ALJ gave little weight to Dr. Yeh’s opinion that Plaintiff had to lie down or rest at
least one hour every day and that Plaintiff would miss at least four days of work each month.7 Tr.
40. The ALJ concluded those portions of Dr. Yeh’s opinion were inconsistent with the
longitudinal medical record, other medical opinions, and inconsistent with Dr. Yeh’s own
treatment notes. Tr. 40. The ALJ noted “at no time did the claimant report that he must lie down
periodically during the day nor does the evidence show the claimant was unable to make
appointments with Dr. Yeh.” Tr. 40. In fact, the first mention in the record regarding a need to lie
down comes in Dr. Yeh’s medical evaluation form. A “discrepancy” between a doctor’s
examination notes and his medical opinion “is a clear and convincing reason for not relying on
the doctor’s opinion.” Bayliss v. Barnhart, 427 F.3d 1211, 1216 (9th Cir. 2005).
The ALJ noted that although Plaintiff complained in June 2011 of “a chronic headache all
the time, which is nonstop,” Tr. Tr. 566, he failed to follow up when Dr. Yeh referred him to a
neurologist. Tr. 40. During that visit, Dr. Yeh, noted medication “seems to be managing”
Plaintiff’s IBS. Tr. 568. Although Dr. Yeh ordered Plaintiff to follow up in a few months,
Plaintiff did not return until nine months later, complaining of neck pain from a car crash. Tr.
7
Dr. Yeh was the only physician to suggest these limitations.
10 – OPINION AND ORDER
569. During that visit, and in fact during every visit for the next few years, Dr. Yeh reported
Plaintiff walked 4-5 miles per day, Tr. 571, was “still doing ‘Occupy’ work with plenty of
walking,” Tr. 572, and Plaintiff’s biking to lose weight. Tr. 606. The ALJ reasonably concluded
Dr. Yeh’s opinion that Plaintiff lie down at least an hour every day was inconsistent with his
September 2014 treatment note where Dr. Yeh encouraged Plaintiff “to try to remain as active as
possible.” Tr. 606. Indeed, at the last visit before Dr. Yeh filled out the evaluation, occurring
over one year before Dr. Yeh provided his opinion, Dr. Yeh noted Plaintiff had less foot pain,
fewer migraines (which were responding well to medications), and that Plaintiff continued to
help out at the homeless camp and Occupy Eugene. Tr. 661-62.
The ALJ provided clear and convincing reasons, supported by substantial evidence in the
record, for giving little weight to Dr. Yeh’s opinion that Plaintiff lie down or rest one hour each
day and would miss at least four days of work each month. Although Plaintiff argues another
interpretation of the record is reasonable, that is not a legitimate reason for overturning the ALJ’s
conclusions. See Gutierrez v. Comm’r of Soc. Sec. Admin., 740 F.3d 519, 523 (9th Cir. 2014) (“If
the evidence can reasonably support either affirming or reversing, ‘the reviewing court may not
substitute its judgment’ for that of the Commissioner.”) (quoting Reddick v. Chater, 157 F.3d
715, 720-21 (9th Cir. 1996))).
ii) The Opinions of Drs. Hallenburg and Gomes
Plaintiff argues the ALJ erred in rejecting portions of the opinions of two examining
psychiatrists, Dr. Hallenburg and Dr. Gomes. On May 25, 2011, Dr. Hallenburg performed a 45minute pyschodiagnostic interview of Plaintiff. Tr. 424. Plaintiff stated he could not work due to
panic attacks, and because “He stated he is hypervigilant and therefore does not sleep.” Plaintiff
reported PTSD, nightmares, memory problems, and paranoia. Tr. 424. Plaintiff reported “a
11 – OPINION AND ORDER
general depression” and stated he “is easily upset, withdraws from people, feels hopeless,
worthless, has low self-esteem, and a loss of interest in activities.” Tr. 424. Plaintiff reported
anxiety from IBS, as “he has to know where the bathrooms are and that they are in the safe area.
He spends hours in the bathroom.” Tr. 425. IBS “is a major problem for him.” Tr. 425. “He said
he gets a migraine every day all day and gets them with an aura of about two or three times a
week. He feels it is getting worse.” Tr. 425. Dr. Hallenburg noted:
His last job was Monaco Coach between 2002 and 2007 in production. He sated
he was fired because the man next to him wanted to fight because the claimant
was having a problem with the way he was doing his job. The claimant was also
having difficulty keeping that job because of his irritable bowel syndrome
problems and had to leave often to use the restroom. He has looked for jobs since
2007 but has not been successful.
Tr. 426.
Dr. Hallenburg wrote, “He is anxsious about going out of his house at any time and does
not go out unless he has to.” Tr. 427. Dr. Hallenburg concluded Plaintiff:
presented with a mix of anxiety symptoms and depression. He has quite a few
symptoms of obsessive-compulsive disorder but it has not interfered with work in
the past. His level of functioning has significantly declined in the last five years.
His level of depression and anxiety may be possible contributors to his physical
ailments, which are severely restricting him. Mental health symptoms would most
likely respond to a better medication regime.
Tr. 429.
Dr. Hallenburg believed Plaintiff was capable of learning detailed and simple tasks, but
that “It is likely that his anxiety would significantly interfere with working at this point,
especially if he is not being able to sleep.” Tr. 429. The ALJ accepted Dr. Hallenburg’s opinion
that Plaintiff was capable of learning simple tasks, but rejected other parts of the opinion. Tr. 35.
The ALJ determined Dr. Hallenburg’s remaining opinions were inconsistent with other evidence
in the record, and that Dr. Hallenburg “appears to rely heavily on the claimant’s subjective
12 – OPINION AND ORDER
complaints that are not supported by the longitudinal record, including the claimant’s own
testimony.” Tr. 429. These conclusions are supported by substantial evidence in the record.
The ALJ reasonably concluded that Dr. Hallenburg relied heavily on Plaintiff’s
subjective complaints. Dr. Hallenburg concluded Plaintiff’s “physical ailments . . . are severely
restricting him” and his “mental health symptoms would most likely respond to a better
medication regime.” Tr. 429. Dr. Hallenburg also noted Plaintiff’s IBS “is a major problem for
him.” Tr. 425. However, six days after Dr. Hallenburg’s examination of Plaintiff, Dr. Yeh
reported Plaintiff “seems to be managing [IBS] fine with the help of” medication. Tr. 568. As
noted, Plaintiff did not see Dr. Yeh again for nine months, after hurting his neck in a car
accident. Tr. 569. And although Dr. Hallenburg noted Plaintiff “said he gets a migraine every
day all day,” Plaintiff failed to follow up with Dr. Yeh’s directive six days later to follow up with
a neurologist for his migraines. Although Plaintiff told Dr. Hallenburg he was fired from Monaco
for fighting, Plaintiff told the ALJ he was simply laid off. Although Dr. Hallenburg reported
Plaintiff has “looked for jobs since 2007,” Tr. 426, Plaintiff testified he did not look for other
work after being laid off because his shoulder “was wrecked,” he could not move his arm, and he
was trying to get surgery, Tr. 64. Although Dr. Hallenburg noted Plaintiff’s depression resulted
in a significant decrease in functioning over the past five years, Tr. 429, Plaintiff told Dr. Yeh six
months earlier that his PTSD was getting better with counseling and he denied other mental
health issues, Tr. 418. The ALJ provided specific and legitimate reasons, supported by
substantial evidence in the record, for assigning Dr. Hallenburg’s opinion little weight.
On May 8, 2014, Dr. Gomes performed a psychiatric examination of Plaintiff. Tr. 586.
Dr. Gomes noted that although Plaintiff received mental health therapy in 2011, “he stopped
going to therapy in 2012, when the Center’s office closed. He did report that the therapy for
13 – OPINION AND ORDER
PTSD was very helpful.” Tr. 587. Plaintiff told Dr. Gomes he was fired from Monaco “because a
coworker started to have a fight with him in addition to his frequent IBS bathroom breaks. He
states that he thought he was set up and fired because he was coming up on his fifth year of
tenure.” Tr. 588. Plaintiff stated “he has never been medically released to return to work.” Tr.
588. Plaintiff reported short and long term memory difficulties. Plaintiff reported not walking
much, and having few recreational activities or hobbies. Tr. 589. Dr. Gomes noted Plaintiff
“acknowledges having significant concentration and focusing difficulty. . . . He reports having
both short-term and long-term difficulty.” Tr. 589. “He endorsed significant problems with
getting around physically, household life activities, participation in society, and his ability to
understand and communicate.” Tr. 591. Plaintiff was “Barely able to walk into here today”
because of the pain. Tr. 591. Dr. Gomes opined that Plaintiff:
has some significant impairment noted by his ability to focus and concentrate on
detailed and complex tasks because he reports that it gives him headaches or
potentially a migraine. He also complains he has many other physical and medical
problems. . . . He has low moderate impairment noted with his ability to interact
with others because of his preoccupation with his own anxiety and hypervigilance
in addition to his preoccupation with pain. . . . He has moderate severity in his
ability to hold a schedule because of his poor sleep quality. . . . Severe impairment
in his ability to manage usual workplace stressors. He states that even attending
this interview was overwhelming. [H]e is generally in a high state of anxiety with
low release, especially if outside the comfort and safety of his home.
Tr. 592.
The ALJ noted that although the record supports Dr. Gomes’s opinion regarding “some
impairment in maintaining focus and concentration for detailed tasks,” the remaining opinions
were not consistent with the record. Tr. 35. Additionally, according to the ALJ, Dr. Gomes’s
opinions relied heavily on Plaintiff’s subjective reporting of his limitations. These findings are
supported by substantial evidence in the record.
14 – OPINION AND ORDER
The ALJ noted that although Plaintiff presented to Dr. Gomes in a confused manner,
requiring the assistance of his spouse to fill out paperwork, Plaintiff appeared alone to an
examination two weeks later, presented no symptoms of hypervigilance, and scored 29-30 on a
mini-mental status exam. Tr. 35. Although Plaintiff told Dr. Gomes he did not walk much, Dr.
Yeh noted Plaintiff walked 4-5 miles per day for his volunteer work. Tr. 571. Although Plaintiff
told Dr. Gomes he was not active with hobbies or recreational activities, the ALJ noted Plaintiff
was heavily involved in volunteer activities. Tr. 35. Although Plaintiff told Dr. Gomes he could
barely make it through the examination due to pain, the ALJ determined, as outlined above, that
Plaintiff’s subjective reports of his symptoms were less-than fully credible.
Although Plaintiff told Dr. Gomes he stopped receiving mental health therapy when the
clinic closed, the ALJ pointed to notes from the clinic demonstrating Plaintiff simply stopped
attending therapy sessions. Tr. 33. Plaintiff’s mental health notes indicated Plaintiff’s PTSD
improved with therapy, and Plaintiff stated “I can go in big crowds and address people [in
volunteer work].” Tr. 467. Plaintiff was proud of his volunteer work, as he appreciated feeling
productive and needed. Tr. 411. Despite demonstrating “commitment and follow-through
relating to attendance and coping strategies,” Tr. 467, Plaintiff at some point stopped attending
appointments and did not respond to calls from the clinic, Tr. 464.
Rather than fully credit Dr. Gomes’s opinion, the ALJ instead gave great weight to the
opinions of Dr. Belcher, who performed a psychological examination of Plaintiff two years after
Dr. Gomes’s examination. Tr. 36. The ALJ determined Dr. Belcher’s opinion was more
consistent with the record-as-a-whole. As noted by Dr. Belcher, “He reported being very
involved in Country Fair activities and said he is politically and socially active in the community.
He and his wife garden, ride bicycles, and have family activities. He reported participating in a
15 – OPINION AND ORDER
recent large family reunion. He spends a lot of time reading.” Tr. 609. Although Plaintiff told Dr.
Belcher he had social anxiety, the only symptom Plaintiff provided was avoiding the mall. Tr.
610. Notably, Dr. Belcher observed:
He said, because of the security work he did in the past and having to be in “high
alert status,” he watches people carefully and “looks for danger” when he is in
crowds. He reported other aspects of hypervigilance that included always sitting
with his back to the wall and “constantly looking around.” During this evaluation,
he sat for a brief time while completing the informed consent forms with his back
to the door, and he rarely looked around the office. Instead, he tended to stare at
the floor.
Tr. 610.
Dr. Belcher noted that “Although this client reports being extremely hypervigilant, he did
not exhibit any such behavior at this evaluation.” Tr. 611. “He reports having social anxiety, but
his description of it is the hypervigilance he professes. he reports no other symptoms of anxiety.”
Dr. Belcher’s notes of Plaintiff’s extensive volunteer activities conflict with Dr. Gomes’s opinion
that Plaintiff “is generally in a high state of anxiety with low release, especially if outside the
comfort and safety of his home.” Tr. 591. Where there exists conflicting medical evidence, the
ALJ is charged with determining credibility and resolving any conflicts. Chaudhry v. Astrue,
688 F.3d 661, 671 (9th Cir. 2012). Here, the ALJ provided specific and legitimate reasons,
supported by substantial evidence in the record, for assigning greater weight to Dr. Belcher’s
opinion than to that of Dr. Gomes or Dr. Hallenburg.
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16 – OPINION AND ORDER
CONCLUSION
The ALJ’s decision is free of legal error and supported by substantial evidence. The
Commissioner’s final decision is therefore AFFIRMED.
IT IS SO ORDERED.
DATED this 18th day of September, 2019.
_______/s/ Michael J. McShane________
Michael McShane
United States District Judge
17 – OPINION AND ORDER
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