Schlundt v. Commissioner Social Security Administration

Filing 20

OPINION AND ORDER: The Commissioner's decision is AFFIRMED, and this case is DISMISSED. Signed on 5/25/2021 by Judge Ann L. Aiken. (ck)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
EUGENE DIVISION
EDWARD S.,1

Case No. 6:18-cv-00249-AA
OPINION AND ORDER

Plaintiff,
vs.
ANDREW SAUL, Commissioner,
Social Security Administration,
Defendant.
_______________________________________
AIKEN, District Judge:
Plaintiff Edward S. brings this action pursuant to the Social Security Act
(“Act”), 42 U.S.C. § 405(g), to obtain judicial review of a final decision of the
Commissioner of Social Security (“Commissioner”) denying plaintiff’s application for
Disability Insurance Benefits (“DIB”) and Supplemental Security Income (“SSI”). For
the reasons set forth below, the Commissioner’s decision is AFFIRMED.

In the interest of privacy, this opinion uses only the first name and the initial of the last name
of the non-governmental party or parties in this case. Where applicable, this opinion uses the same
designation for a non-governmental party’s immediate family member.
1

BACKGROUND
In October 2013, plaintiff filed applications for Disability Insurance Benefits
and Supplemental Security Income, alleging disability beginning December 1, 2012
due to chest neuropathy, hip bursitis, hand numbness, and knee pain. Tr. 184–95,
202–15. Plaintiff’s claims were denied both initially and upon reconsideration. Tr.
121–32, 134–44. Plaintiff appeared before an Administrative Law Judge (“ALJ”) in
March 2016. Tr. 40-92. At the hearing plaintiff was represented by an attorney. Tr.
42. A vocational expert also appeared and testified at the hearing. Id. Following the
hearing, the ALJ issued an unfavorable decision and the Appeals Council denied
review, making the ALJ’s decision the final decision of the Commissioner. Tr. 15–19,
1–6. This action followed.
STANDARD OF REVIEW
The Court must affirm the Commissioner’s decision if it is based upon 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” means “more than a mere scintilla, but less than a preponderance.” Bray
v. Comm ‘r Soc. Sec. Admin., 554 F.3d 1219, 1222 (9th Cir. 2009) (quoting Andrews
v. Shalala, 53 F.3d 1035, 1039 (9th Cir. 1995) (quotation marks omitted)). It means
“such relevant evidence as a reasonable mind might accept as adequate to support a
conclusion.” Id. (quoting Andrews, 53 F.3d at 1039).
The court must weigh “both the evidence that supports and the evidence that
detracts from the ALJ’s conclusion.” Mayes v. Massanari, 276 F.3d 453, 459 (9th

Cir.2001).

Where the evidence is susceptible to more than one rational

interpretation, the Commissioner’s conclusion must be upheld. Burch v. Barnhart,
400 F.3d 676, 679 (9th Cir. 2005). Variable interpretations of the evidence are
insignificant if the Commissioner’s interpretation is a rational reading of the record,
and the Court may not substitute its judgment for that of the Commissioner. See
Batson v. Comm’r of Soc. Sec. Admin., 359 F.3d 1190, 1193 (9th Cir. 2004). “[A]
reviewing court must consider the entire record as a whole and may not affirm simply
by isolating a specific quantum of supporting evidence.” Orn v. Astrue, 495 F.3d 625,
630 (9th Cir. 2007) (quoting Robbins v. Soc. Sec. Admin., 466 F.3d 880, 882 (9th Cir.
2006) (quotation marks omitted)). However, a reviewing court may not affirm the
Commissioner on a ground upon which the Commissioner did not rely. Id.; see also
Bray, 554 F.3d at 1225-26 (citing SEC v. Cheney Corp., 332 U.S. 194, 196 (1947)).
COMMISIONER’S DECISION
The Social Security Administration uses a five-step sequential evaluation to
determine whether a claimant is disabled.

See 20 C.F.R. §§ 404.1520(a)(4),

416.920(a)(4). The burden of proof falls to the claimant at steps one through four,
and with the Commissioner at step five. Id.; Bustamante v. Massanari, 262 F.3d 949,
953–54 (9th Cir. 2001). At step five, the Commissioner must show that the claimant
can adjust to other work after considering the claimant’s residual functional capacity
(“RFC”), age, education, and work experience.

20 C.F.R. §§ 404.1520(a)(4)(v),

416.920(a)(4)(v). If the Commissioner fails to meet this burden, then the claimant is
disabled. Id. If, however, the Commissioner proves that the claimant can perform

other work existing in significant numbers in the national economy, the claimant is
not disabled. Id.; see also Bustamante, 262 F.3d at 953–54.
Here the ALJ found that plaintiff was not disabled. At step one, the ALJ found
that plaintiff had not engaged in “substantial gainful activity” since the alleged
disability onset date of December 1, 2012. 20 C.F.R. § 404.1571 et seq.; 20 C.F.R. §
416.971 et seq. At step two, the ALJ found that plaintiff had the following severe
impairments: clinically stable coronary artery disease status post quadruple vessel
bypass in March 2011, left hip trochanteric calcific tendinitis, mild degenerative
changes of the right shoulder with rotator cuff strain, mild multilevel cervical
degenerative disc disease, unspecified obesity. 20 C.F.R. § 404.1520(c); 416.920(c).
At step three, the ALJ determined that plaintiff’s impairments, whether considered
singly or in combination, did not meet or equal “one of the listed impairments” that
the Commissioner acknowledges are so severe as to preclude substantial gainful
activity. 20 C.F.R. § 404.1520(d); 404.1525; 404.1526; 416.920(d); 416.925; 416.926.
The ALJ then assessed plaintiff’s residual functional capacity (“RFC”). 20 C.F.R. §
404.1520(e); 416.920(e). The ALJ found that plaintiff had the RFC to perform light
work as defined in 20 C.F.R. § 404.1567(b) and 416.967(b) subject to the following
limitations:
The claimant is able to lift and/or carry twenty pounds occasionally and
ten pounds frequently with the left upper extremity and both upper
extremities. He is able to lift ten pounds maximum with his right upper
extremity alone. He is able to stand and/or walk six hours each in an
eight-hour workday with normal breaks. He is able to sit for six hours
in an eight-hour workday with normal breaks. He requires the freedom
to shift between sitting and standing at thirty-minute intervals to
manage hip discomfort. He is able to reach overhead occasionally with

his left upper extremity. He is able to handle and finger frequently with
the right upper extremity. He is able to climb ladders, ropes, or scaffolds
occasionally. He is able to climb stairs and/or ramps, balance, stoop,
kneel, crouch, and crawl frequently. He must avoid concentrated
exposure to hazards due to side effects of Lyrica and/or pain medication.
Tr. 25. At step four, the ALJ concluded that plaintiff is capable of performing past
relevant work as a skip tracer. Tr. 32; 20 C.F.R. § 404.1565; 416.965. The ALJ
continued to step five and found that plaintiff could perform work existing in the
national economy; specifically, plaintiff could work as a gate guard and guard
security. Tr. 33; 20 C.F.R. § 404.1569; 404.1569(a); 416.969; 416.969(a).
DISCUSSION
On appeal, plaintiff contends that the ALJ erred by (1) failing to identify legally
sufficient bases supported by substantial evidence in the record to reject the treating
medical source opinion of Walter Scott Williams, M.D. and (2) failing to identify
specific, clear and convincing reasons supported by substantial evidence in the record
to reject plaintiff’s subjective symptom testimony. I address each argument in turn.
I.

Dr. Williams’ Medical Opinions
Plaintiff asserts that the ALJ erred in discounting the medical opinions of Dr.

Walter Scott Williams, M.D., plaintiff’s treating physician since January 2013. Tr.
382, 404. Dr. Williams provided medical opinions concerning plaintiff’s physical and
psychological limitations in a November 2013 RFC Questionnaire and a January
2016 Physical Assessment. Tr. 404–05, 495–96.
Social security law recognizes three types of medical sources: (1) treating, (2)
examining, and (3) non-examining. Garrison v. Colvin, 759 F.3d 995, 1012 (9th Cir.
2014). Generally, more weight is given to the opinion of a treating physician than to

the opinion of those who do not actually treat the claimant. Id. More weight is also
given to an examining physician than to a non-examining physician. Id. To reject
the uncontradicted opinion of a treating doctor, an ALJ must state “clear and
convincing reasons that are supported by substantial evidence.” Ryan v. Comm’r of
Soc. Sec., 528 F.3d 1194, 1198 (9th Cir. 2008). Here, however, Dr. Williams’ opinions
were contradicted by state agency consultants and an examining physician. Thus,
the ALJ was required to provide “specific and legitimate reasons that are supported
by substantial evidence” to discount Dr. Williams’ opinions. Ryan, 528 F.3d at 1198.
In 2013, Dr. Williams reported that he had diagnosed plaintiff with
neuropathic chest pain and memory loss, which caused continuous chest pain and
poor focus. Tr. 404. Medication increased plaintiff’s drowsiness and memory loss.
Id.

He opined that plaintiff’s prognosis was “poor” and plaintiff’s symptoms

“frequently” were “severe enough to interfere with the attention & concentration
needed to perform simple work-related tasks.” Id. He also opined that plaintiff
needed 30-60 minute, unscheduled breaks every 4 hours during a workday; that
plaintiff could walk eight blocks without rest or significant pain; that plaintiff could
sit for up to an hour at a time and for a total of 4 hours per day, and stand or walk
for up to 30 minutes at a time and for a total of 2 hours per day. Id. Plaintiff needs
a job where he can shift at will between sitting, standing, and walking. Id. Dr.
Williams also opined that plaintiff could occasionally lift under 10 pounds but could
never lift 10 pounds or more; could grasp, turn, and twist objects and perform fine
manipulation 50 percent of the day; and could never reach. Tr. 405. He opined that

plaintiff would likely miss work more than four times a month and was not physically
capable of working an 8-hour day, 5 times a week on a sustained basis. Id. Finally,
Dr. Williams opined that plaintiff had “significant memory impairment affecting
work.” Id.
By 2016, Dr. Williams had diagnosed plaintiff with “Anoxic brain injury – mild
to moderate,” neuropathic chest pain, cardiovascular disease, angina, hip arthritis,
and hand pain. Tr. 495. He opined that plaintiff’s symptom were “constantly” severe
enough to interfere his ability to focus at work and that plaintiff needed 10-15 minute
breaks hourly. Id. He also opined that plaintiff was limited to walking two blocks at
a time, sitting for a total of two hours a day, and standing or walking for one hour a
day. Id. Plaintiff’s ability to lift improved to lifting up to 20 pounds occasionally, but
never 50 pounds. Id. He opined that plaintiff was able to grasp, turn, twist, and
perform fine manipulation 10 percent and to reach for 5-10 percent of the day. Id.
Finally, Dr. Williams opined that plaintiff would likely miss work more than four
times a month and that he “has cognitive dysfunction with decrease in memory and
executive function.” Tr. 496.
The ALJ gave Dr. Williams’ opinions “little weight.” Tr. 31.
As an initial matter, plaintiff argues that the “ALJ failed to consider Dr.
Williams’ opinions under the appropriate factors, which ‘alone constitutes reversible
legal error.’” Pl.’s Br. at 6 (quoting Trevizo v. Berryhill, 871 F.3d 664, 676 (9th Cir.
2017)).

An ALJ’s failure to consider factors like the length of the treating

relationship, frequency of medical examinations, the nature and extent of the

treatment relationship, and the supportability of the opinion constitutes reversible
error. Trevizo, 871 F.3d at 676 (citing 20 C.F.R. § 404.1527(c)(2)–(6)). Here, the ALJ
recognized that Dr. Williams was plaintiff’s “[p]rimary treating physician.” Tr. 30.
Although the ALJ did not expressly discuss the nature, length, and extent of Dr.
William’s treating relationship, the ALJ’s decision, which thoroughly discusses
plaintiff’s treatment record at step two and step five, demonstrates that the ALJ
reviewed Dr. Williams’ treatment notes and gave his opinions the careful
consideration owed to them under the regulations. Tr. 21–24, 26–29. The ALJ did
not err in this regard.
Plaintiff also argues that the ALJ failed to provide specific and legitimate
reasons that are supported by substantial evidence to discount Dr. Williams’
opinions. The ALJ provided three reasons for his treatment of the opinions.
First, the ALJ reasoned that Dr. Williams’ opinions were inconsistent and
unsupported by the longitudinal evidence of record, including Dr. Williams’ own
treatment notes.

Tr. 31.

Specifically, the ALJ noted as an example that “Dr.

Williams’ extreme limitations opinions” were contrary to his “mostly normal”
examination findings “regarding [plaintiff’s] upper extremities and hips.” Id. He also
observed that plaintiff’s “imaging shows normal to only mild findings, mostly normal
cardiac catheterized angiogram results, and his nerve conduction (EMG) testing
shows completely normal results.” Id. These are specific, legitimate reasons to reject
a treating physician’s opinions. Tommasetti v. Astrue, 533 F.3d 1035, 1041 (9th Cir.
2008); Ghanim v. Colvin, 763 F.3d 1154, 1161 (9th Cir. 2014).

The ALJ’s decision discussed plaintiff’s medical history and treatment in
detail, impairment by impairment. In doing so, the ALJ recognized that Dr. Williams’
examinations and imaging revealed some abnormalities.

For example, the ALJ

discussed examinations showing tenderness and decreased range of motion in
plaintiff’s shoulder, hip, elbow, wrist, and hand, some loss of sensation and, at one
point, loss of strength in plaintiff’s hand.

And the ALJ acknowledged that x-rays

showed evidence of “calcific tendinosis” in plaintiff’s left hip, Tr. 27 (citing Tr. 444);
“mild glenohumeral degenerative change” in plaintiff’s right shoulder, id. citing (Tr.
451, 483–84); and a cardiac angiogram showing “multilevel coronary artery disease,
left main without angiographic stenosis, left anterior descending artery with fifty to
ninety percent stenosis with a left circumflex occluded in mid portion of vessel and
the right coronary artery only proximally occluded[,]” Tr. 26 (citing Tr. 424–25). At
the same time, treatment notes reported that plaintiff’s coronary artery disease had
been clinically stable for the period at issue, id. (citing Tr. 293, 359–61, 424, 457, 469,
473, 488-89, 493); plaintiff’s hip and shoulder issues waxed and waned, Tr. 27 (citing
Tr. 348, 352, 378–79, 451, 458, 461, 472, 479–93); and he reported right elbow and
hand issues “infrequently,” Tr. 28 (citing 454, 457, 472, 487, 489–90). And, besides
the abnormalities previously mentioned, plaintiff’s examination results generally
showed normal movement, strength, and sensation, Tr. 27–28 (citing Tr. 352, 460,
468, 492 (hip); Tr. 378–79, 479, 484, 487–88, 493 (shoulder); 456–57, 472, 487, 489–
90, 493 (elbow and hand)) and imaging showed either mild abnormalities or, in the

case of plaintiff’s EMG testing, normal functioning, Tr. 27–28 (citing Tr. 444 (hip),
Tr. 451 (shoulder), Tr. 401 (elbow and hand)).
Having reviewed this evidence and the full medical record, the Court finds that
the ALJ’s discussion and assessment of the record is reasonable, as were his
characterizations of Dr. Williams’ treatment notes and imaging results.

ALJ

reasonably found that Dr. Williams’ opinions of extreme physical limitation conflicted
with his notes and objective medical evidence. Plaintiff offers his own summary of
his medical record and asserts that it supports Dr. Williams’ opinions. But “where
evidence is susceptible to more than one rational interpretation, the ALJ’s decision
should be upheld.” Trevizo, 871 F.3d at 674–75.
Second, the ALJ reasoned that plaintiff’s reported activities, like using a
pressure washer and working as a mechanic, are “inconsistent with Dr. Williams’
opinions of extreme physical restriction.”

Tr. 31.

Conflict between a treating

physician’s opinions and a plaintiff’s reported activities may justify rejecting those
opinions.

Ghanim, 763 F.3d at 1162.

In March 2013, plaintiff reported to Dr.

Williams that he had injured his elbow after trying to use a pressure washer. Tr. 313.
And at the hearing, plaintiff testified that he does mechanic work for neighbors every
“couple of months or a couple times in a month, but sometimes . . . goes a few months
without doing anything.” Tr. 74–75. The week of the hearing, or the week before, he
had charged and checked a dead battery and before that he put speakers in a friend’s
pickup truck. Tr. 74. The hardest job he did in the last year was changing the breaks
of a car, which took him two days, and involved using a floor jack, jack stand, and air

wrench. Tr. 75. Plaintiff’s single, failed attempt to use a pressure washer does not
conflict with Dr. Williams’ opinions. However, weighed in conjunction with plaintiff’s
other mechanic activities, the ALJ reasonably concluded that plaintiff’s reported
activities suggested that he was able to do more than Dr. Williams’ opined limitations
would allow. “Even where [reported] activities suggest some difficulty functioning,
they may be grounds for discrediting the claimant’s testimony to the extent that they
contradict claims of a totally debilitating impairment.” Molina, 674 F.3d at 1113
(citing Turner v. Comm’r of Sec. Sec., 613 F.3d 1217, 1225 (9th Cir. 2010)).
Finally, the ALJ reasoned that Dr. Williams’ opinions concerning plaintiff’s
psychological functioning were “completely inconsistent with the opinions of
psychological experts and examiners,” Drs. Kordell N. Kennemer, PsyD, Megan D.
Nicoloff, PsyD, and Julien Guillaumot, Ph.D., ABPP, MSCP. Tr. 31. Drs. Kennemer
and Nicoloff are state agency consultants who reviewed plaintiff’s medical record in
February and June 2013, respectively. Tr. 99, 111. Although “[t]he opinion of a
nonexamining medical advisor cannot by itself constitute substantial evidence that
justifies the rejection of the opinion of an examining or treating physician[,]” the
Ninth Circuit has “consistently upheld the Commissioner’s rejection of a treating or
examining physician, based in part on the testimony of a nontreating, nonexamining
medical advisor,” when the ALJ has pointed to additional evidence in support of this
decision. Morgan v. Comm’r of Soc. Sec. Admin., 169 F.3d 595, 602 (9th Cir. 1999)
(emphases added). And “[o]pinions of a nonexamining, testifying medical advisor

may serve as substantial evidence when they are supported by other evidence in the
record and are consistent with it.” Id. at 600.
Here, the ALJ also relied on the opinions of Julien Guillaumot, Ph.D., to reject
Dr. Williams’ opinions. Dr. Guillaumot did examine plaintiff in April 2016, on Dr.
Williams’ referral, Tr. 498, and the ALJ found that Dr. Guillaumot’s opinions were
“consistent with and supported by the longitudinal evidence of record, including Dr.
Guillaumot’s own examination findings,” Tr. 31.

The ALJ also found that the

opinions of Drs. Kennemer and Nicoloff were “consistent with and supported by the
evidence of record, including” the findings Dr. Guillaumot’s neuropsychological
evaluation. Id. Accordingly, the ALJ did not err in relying on these opinions to reject
Dr. Williams’ opinion.
In sum, the ALJ did not err in discounting Dr. Williams’ opinion testimony.
II.

Plaintiff’s Symptom Testimony
Plaintiff also asserts that the ALJ erred by discounting his testimony about his

physical and psychological symptoms, which plaintiff provided in a November 2013
Function Report and at the hearing in March 2016.
In 2013, plaintiff claimed that he could not work because of “neuropathy in
chest” caused by his 2011 “quad bypass,” sternum irritation caused by overuse of his
arms, poor memory, hip bursitis that “makes sitting and standing for a period a
problem as well as walking,” and that “painful numbness” in his right hand, which
causes him to drop things. Tr. 234. Plaintiff estimated that he could walk up to two
blocks before needing to stop and rest for a couple hours and could concentrate for up

to a half hour. Tr. 239. He reported that he would “sometimes draw a blank” and
“lose track of what [he] was trying to do[,]” that instructions would sometimes not
register right away after he read them, and that he will forget spoken instructions if
he does not write them down.” Tr. 238–39. Plaintiff also claimed that his symptoms
prevented him from being able to “mow the yard, [do] mechanics, work, [and] build
computers.” Tr. 235.
Plaintiff testified that he has trouble gripping, which impacts his ability to use
a hammer and lift thing. Tr. 64, 73. Plaintiff testified that he could lift a half gallon
of milk, but once dropped a gallon of milk. Tr. 73. He also testified that he could
stand for about twenty minutes at a time, sit for an hour in a comfortable chair, and
spent most of his days changing positions “constantly.” Tr. 73–74. Plaintiff’s hand
numbness wakes him up three to four times a month.

Tr. 71.

Regarding his

psychological functioning, plaintiff testified that he has had word finding and memory
problems since his heart attack and surgery, and often burns food while cooking
because he forgets to set a timer. Tr. 65–68, 72, 75–76.
When a claimant’s medically documented impairments reasonably could be
expected to produce some degree of the symptoms complained of, and the record
contains no affirmative evidence of malingering, the ALJ must provide “specific, clear
and convincing reasons” for rejecting the claimant’s testimony regarding the severity
of her symptoms. Lingenfelter v. Astrue, 504 F.3d 1028, 1036 (9th Cir. 2007). A
general assertion that the claimant is not credible is insufficient; the ALJ must “state
which . . . testimony is not credible and what evidence suggests the complaints are

not credible.” Dodrill v. Shalala, 12 F.3d 915, 918 (9th Cir. 1993). 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, 763 F.3d
at 1163.
An ALJ may consider a range of factors in assessing credibility, including
“ordinary techniques of credibility evaluation,” like “prior inconsistent statements
concerning the symptoms[;]” “unexplained or inadequately explained failure to seek
treatment or to follow a prescribed course of treatment;” and “the claimant’s daily
activities.” Id. If the “ALJ’s credibility finding is supported by substantial evidence
in the record, [the court] may not engage in second-guessing.” Thomas v. Barnhart,
278 F.3d 947, 959 (9th Cir. 2002).
Here, the ALJ found that plaintiff’s medically determinable impairments could
be reasonably expected to cause the alleged symptoms, but that his “statements
concerning the intensity, persistence and limiting effects of these symptoms are not
entirely consistent with the medical evidence and other evidence in the record.” Tr.
26. The ALJ reasoned, generally, that the record “shows that [plaintiff’s] level of
functioning is not as fully limiting as alleged” and that objective medical findings
were not “generally consistent with the degree of impairment alleged by” plaintiff.
Id. But the ALJ noted that he did include additional restrictions in the RFC based
on plaintiff’s testimony, including “frequent handling and fingering with the right
upper extremity, ten-pound lifting limitations for the right upper extremity, and
freedom to shift sit/stand positions at thirty-minute intervals.” Id.

The ALJ reasoned that plaintiff’s work activity after the alleged onset date,
though not disqualifying substantial gainful activity, “indicate[s] that [plaintiff’s]
daily activities have, at least at times, been somewhat greater than the claimant has
generally reported.” Tr. 29. The ALJ noted that plaintiff reported using a pressure
washer machine and doing odd jobs as a vehicle mechanic. Id. (citing Tr. 313, 60–62,
74–75). As mentioned, an ALJ may discount symptom testimony that is inconsistent
with a plaintiff’s claimed limitations. Molina, 674 F.3d at 1113. Here, the ALJ
reasonably found plaintiff’s mechanic work throughout the period at issue, though
sporadic, contradicted his 2013 allegation that he was not able to work as a mechanic
and involved physical demands that were inconsistent with the full extent of his
alleged physical limitations.
The ALJ also reasoned that plaintiff’s alleged physical and psychological
limitations were inconsistent with objective medical evidence. Tr. 26, 29. Although
“subjective pain testimony cannot be rejected on the sole ground that it is not fully
corroborated by objective medical evidence, the medical evidence is still a relevant
factor in determining the severity of the claimant’s pain and its disabling effects.”
Rollins v. Massanari, 261 F.3d 853, 857 (9th Cir. 2001). As noted above, the ALJ’s
decision provided an impairment-by-impairment discussion of evidence of plaintiff’s
pain and other physical symptoms. The ALJ could reasonably find that plaintiff’s
physical symptom testimony was inconsistent with his mostly normal examination
and imaging findings.

The ALJ also reasonably found that plaintiff’s claims that he has word-finding
and memory problem inconsistent with Dr. Guillaumot’s finding that plaintiff had
“no indication” of verbal or memory deficits during the exam. Tr. 29 (citing Tr. 501).
Plaintiff argues that the ALJ failed to account for his decision not to take medications
that impact his mental functioning on the day of the evaluation. Tr. 503. The record
shows that side effects of plaintiff’s medication include increased drowsiness and
cognitive issues.

Tr. 382, 404. 495.

But, contrary to plaintiff’s assertions, this

evidence does not clearly show that his cognition is significantly worsened by his
medication.

Further, the record suggests that the cause of plaintiff’s mental

symptoms, if any, are unclear and complex. Dr. Williams opined that plaintiff’s
memory issues were caused, in part, by anoxic brain injury following surgery. Dr.
Guillaumot opined that plaintiff a “mild overall slowness” that “possibly in part”
existed before surgery and was “mediated by pain or his intake of pain medication.”
Tr. 503.

Thus, the ALJ did not err in finding inconsistency between plaintiff’s

testimony and his performance at his neurological evaluation.
The ALJ also discredited plaintiff, in part, because of prior inconsistent
statements. Specifically, the ALJ noted that plaintiff reported in his 2013 function
report that he is not able to work as a mechanic, but at the hearing he testified that
he performed mechanic work out of his home, sometimes for money and other times
as a favor, throughout the period at issue. Tr. 29 (citing Tr. 235). The ALJ also cited
disability reports plaintiff submitted in March and July 2014, where plaintiff stated
that he had not worked since his last report. Id. (citing Tr. 262, 272). As mentioned,

an ALJ may rely on prior inconsistent statements to discount subjective symptom
testimony. Ghanim, 763 F.3d at 1163.
Plaintiff also challenged other reasons asserted by the ALJ, including
plaintiff’s receipt of unemployment benefits in 2013, findings that plaintiff failed to
comply with certain treatment recommendations and that many symptoms were well
controlled with treatment, and alleged symptom magnification. But any error in
relying on those reasons would be harmless because the ALJ’s credibility
determination is supported by the specific, clear and convincing reasons and by
substantial evidence, as discussed above. Carmickle v. Comm’r, 533 F.3d 1155, 1162–
63 (9th Cir. 2008).
In sum, the ALJ’s decision is supported by substantial evidence and free of
harmful legal error.
CONCLUSION
For the reasons above, the Commissioner’s decision is AFFIRMED, and this
case is DISMISSED.
25th
Dated this ______ day of May 2021.

/s/Ann Aiken
__________________________
Ann Aiken
United States District Judge