Cotter v. Colvin

Filing 16

ORDER GRANTING 14 DEFENDANT'S MOTION FOR SUMMARY JUDGMENT AND DENYING 13 PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT. Case closed. Signed by Senior Judge Fred Van Sickle. (CV, Case Administrator)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF WASHINGTON

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NO: 2:16-CV-00318-FVS

CHAD D. COTTER,
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Plaintiff,

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v.

ORDER GRANTING DEFENDANT’S
MOTION FOR SUMMARY
JUDGMENT AND DENYING
PLAINTIFF’S MOTION FOR
SUMMARY JUDGMENT

CAROLYN W. COLVIN,
Defendant.

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BEFORE THE COURT are the parties’ cross motions for summary

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judgment. ECF Nos. 13 and 14. This matter was submitted for consideration

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without oral argument. Plaintiff was represented by Dana C. Madsen. Defendant

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was represented by Terrye E. Shea. The Court has reviewed the administrative

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record and the parties’ completed briefing and is fully informed. For the reasons

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discussed below, the court GRANTS Defendant’s Motion for Summary Judgment,

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ECF No. 14, and DENIES Plaintiff’s Motion for Summary Judgment, ECF No. 13.
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JURISDICTION
Plaintiff Chad D. Cotter protectively filed for disability insurance benefits,

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and supplemental security income (“SSI”), on April 16, 2012. Tr. 230-42. Plaintiff

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alleged an onset date of June 30, 2010. Tr. 230, 237. Benefits were denied initially

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(Tr. 141-47) and upon reconsideration (Tr. 149-53). Plaintiff requested a hearing

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before an administrative law judge (“ALJ”), which was held before ALJ Caroline

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Siderius on January 8, 2015. Tr. 36-63. Plaintiff was represented by counsel and

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testified at the hearing. Id. Medical expert Margaret Moore, Ph.D. also testified.

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Tr. 40-43. A subsequent hearing was held on April 2, 2015; during which Plaintiff

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testified again. Tr. 64-91. Medical expert Darius Ghazi, M.D., and vocational

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expert Daniel R. McKinney, also testified. The ALJ denied benefits (Tr. 17-35)

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and the Appeals Council denied review. Tr. 1. The matter is now before this court

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pursuant to 42 U.S.C. § 405(g); 1383(c)(3).

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BACKGROUND

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The facts of the case are set forth in the administrative hearing and

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transcripts, the ALJ’s decision, and the briefs of Plaintiff and the Commissioner,

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and will therefore only the most pertinent facts are summarized here.

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Chad D. Cotter (“Plaintiff”) was 36 years old at the time of the first hearing.

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Tr. 44. Plaintiff finished high school, and testified he was in special education “all

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the way through” school, and primarily in spelling and reading. Tr. 44-45. At the
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time of the hearing, Plaintiff lived with his mother, had no children, and did not

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leave the house very often. Tr. 44, 54-55. He testified that he did a little bit of

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vacuuming and cooking; did his own laundry; and his friends took him to go

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grocery shopping. Tr. 53. Plaintiff’s work history since 1998 is almost

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exclusively doing hard physical labor, such as: construction work of various kinds;

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concrete foundations; and apprentice electrician. Tr. 46-48, 283. In 2004, he was

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in a motorcycle accident that resulted in a separation of his left shoulder. See Tr.

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354.

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Plaintiff testified that he quit working in June 2010 due to pain described by

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Plaintiff as “electricity going down both legs” and an inability to lift his right arm.

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Tr. 48-49. However, as noted by the ALJ, the earliest medical evidence during the

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adjudicatory period is Plaintiff’s office visit with Dr. Belinda Escanio in May

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2011, nearly a year after his alleged onset date of disability; during which Plaintiff

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reported that he had not seen a doctor in 15 years due to lack of insurance.

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Plaintiff alleges disability based on degenerative disc disease, learning disorder,

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and rotator cuff tendonitis with impingement. See Tr. 141. At the first hearing,

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Plaintiff testified that he can only walk 100 feet at one stretch; stand for an hour at

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most; can only pick up ten pounds at most; and his back starts to “throb” after

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sitting for an hour. Tr. 48-51. He also testified that he has to lay down for a total

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of six hours a day, for one to two hours at a time; and only sleeps for two hours a

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night due to pain. Tr. 52.

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STANDARD OF REVIEW
A district court’s review of a final decision of the Commissioner of Social

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Security is governed by 42 U.S.C. § 405(g). The scope of review under § 405(g) is

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limited; the Commissioner’s decision will be disturbed “only if it is not supported

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by substantial evidence or is based on legal error.” Hill v. Astrue, 698 F.3d 1153,

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1158 (9th Cir. 2012). “Substantial evidence” means “relevant evidence that a

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reasonable mind might accept as adequate to support a conclusion.” Id. at 1159

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(quotation and citation omitted). Stated differently, substantial evidence equates to

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“more than a mere scintilla[,] but less than a preponderance.” Id. (quotation and

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citation omitted). In determining whether the standard has been satisfied, a

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reviewing court must consider the entire record as a whole rather than searching

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for supporting evidence in isolation. Id.

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In reviewing a denial of benefits, a district court may not substitute its

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judgment for that of the Commissioner. If the evidence in the record “is

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susceptible to more than one rational interpretation, [the court] must uphold the

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ALJ’s findings if they are supported by inferences reasonably drawn from the

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record.” Molina v. Astrue, 674 F.3d 1104, 1111 (9th Cir. 2012). Further, a district

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court “may not reverse an ALJ’s decision on account of an error that is harmless.”
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Id. An error is harmless “where it is inconsequential to the [ALJ’s] ultimate

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nondisability determination.” Id. at 1115 (quotation and citation omitted). The

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party appealing the ALJ’s decision generally bears the burden of establishing that

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it was harmed. Shinseki v. Sanders, 556 U.S. 396, 409-10 (2009).

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FIVE–STEP SEQUENTIAL EVALUATION PROCESS
A claimant must satisfy two conditions to be considered “disabled” within

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the meaning of the Social Security Act. First, the claimant must be “unable to

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engage in any substantial gainful activity by reason of any medically determinable

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physical or mental impairment which can be expected to result in death or which

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has lasted or can be expected to last for a continuous period of not less than twelve

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months.” 42 U.S.C. §§ 423(d)(1)(A); 1382c(a)(3)(A). Second, the claimant’s

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impairment must be “of such severity that he is not only unable to do his previous

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work[,] but cannot, considering his age, education, and work experience, engage in

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any other kind of substantial gainful work which exists in the national economy.”

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42 U.S.C. §§ 423(d)(2)(A); 1382c(a)(3)(B).

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The Commissioner has established a five-step sequential analysis to

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determine whether a claimant satisfies the above criteria. See 20 C.F.R. §§

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404.1520(a)(4)(i)-(v); 416.920(a)(4)(i)-(v). At step one, the Commissioner

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considers the claimant’s work activity. 20 C.F.R. §§ 404.1520(a)(4)(i);

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416.920(a)(4)(i). If the claimant is engaged in “substantial gainful activity,” the
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Commissioner must find that the claimant is not disabled. 20 C.F.R. §§

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404.1520(b); 416.920(b).

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If the claimant is not engaged in substantial gainful activity, the analysis

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proceeds to step two. At this step, the Commissioner considers the severity of the

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claimant’s impairment. 20 C.F.R. §§ 404.1520(a)(4)(ii); 416.920(a)(4)(ii). If the

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claimant suffers from “any impairment or combination of impairments which

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significantly limits [his or her] physical or mental ability to do basic work

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activities,” the analysis proceeds to step three. 20 C.F.R. §§ 404.1520(c);

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416.920(c). If the claimant’s impairment does not satisfy this severity threshold,

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however, the Commissioner must find that the claimant is not disabled. 20 C.F.R.

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§§ 404.1520(c); 416.920(c).

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At step three, the Commissioner compares the claimant’s impairment to

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severe impairments recognized by the Commissioner to be so severe as to preclude

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a person from engaging in substantial gainful activity. 20 C.F.R. §§

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404.1520(a)(4)(iii); 416.920(a)(4)(iii). If the impairment is as severe or more

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severe than one of the enumerated impairments, the Commissioner must find the

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claimant disabled and award benefits. 20 C.F.R. §§ 404.1520(d); 416.920(d).

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If the severity of the claimant’s impairment does not meet or exceed the

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severity of the enumerated impairments, the Commissioner must pause to assess

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the claimant’s “residual functional capacity.” Residual functional capacity (RFC),
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defined generally as the claimant’s ability to perform physical and mental work

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activities on a sustained basis despite his or her limitations, 20 C.F.R. §§

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404.1545(a)(1); 416.945(a)(1), is relevant to both the fourth and fifth steps of the

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analysis.
At step four, the Commissioner considers whether, in view of the claimant’s

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RFC, the claimant is capable of performing work that he or she has performed in

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the past (past relevant work). 20 C.F.R. §§ 404.1520(a)(4)(iv); 416.920(a)(4)(iv).

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If the claimant is capable of performing past relevant work, the Commissioner

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must find that the claimant is not disabled. 20 C.F.R. §§ 404.1520(f); 416.920(f).

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If the claimant is incapable of performing such work, the analysis proceeds to step

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five.

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At step five, the Commissioner considers whether, in view of the claimant’s

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RFC, the claimant is capable of performing other work in the national economy.

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20 C.F.R. §§ 404.1520(a)(4)(v); 416.920(a)(4)(v). In making this determination,

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the Commissioner must also consider vocational factors such as the claimant’s age,

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education and past work experience. 20 C.F.R. §§ 404.1520(a)(4)(v);

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416.920(a)(4)(v). If the claimant is capable of adjusting to other work, the

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Commissioner must find that the claimant is not disabled. 20 C.F.R. §§

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404.1520(g)(1); 416.920(g)(1). If the claimant is not capable of adjusting to other

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work, analysis concludes with a finding that the claimant is disabled and is

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therefore entitled to benefits. 20 C.F.R. §§ 404.1520(g)(1); 416.920(g)(1).

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The claimant bears the burden of proof at steps one through four above.

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Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999). If the analysis proceeds to

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step five, the burden shifts to the Commissioner to establish that (1) the claimant is

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capable of performing other work; and (2) such work “exists in significant

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numbers in the national economy.” 20 C.F.R. §§ 404.1560(c)(2); 416.920(c)(2);

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Beltran v. Astrue, 700 F.3d 386, 389 (9th Cir. 2012).

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ALJ’S FINDINGS

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At step one, the ALJ found Plaintiff has not engaged in substantial gainful

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activity since June 30, 2010, the alleged onset date. Tr. 22. At step two, the ALJ

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found Plaintiff has the following severe impairments: degenerative disc disease,

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degenerative joint disease of the bilateral shoulders, learning disorder. Tr. 22. At

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step three, the ALJ found that Plaintiff does not have an impairment or

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combination of impairments that meets or medically equals the severity of a listed

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impairment. Tr. 23. The ALJ then found that Plaintiff has the RFC

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to perform light work as defined in 20 CFR 404.1567(b) and 416.967(b)
except the claimant can occasionally lift and carry up to 10 pounds and
frequently lift and carry up to 5 pounds. He can sit for up to 6 hours in an 8hour day and stand and walk for up to 6 hours in an 8-hour day. The
claimant needs to change positions every hour for 5 minutes at a time. The
claimant cannot climb ladders, ropes, or scaffolds. He can occasionally
crawl, crouch, bend, stoop, and kneel. The claimant can occasionally reach
overhead with both arms. The claimant is limited to simple, repetitive, 3-step
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tasks, no detailed work. The claimant cannot perform any job requiring more
than 6th grade math skills.

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Tr. 24. At step four, the ALJ found Plaintiff is unable to perform any past relevant
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work. Tr. 29. At step five, the ALJ found that considering Plaintiff’s age,
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education, work experience, and RFC, there are jobs that exist in significant
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numbers in the national economy that Plaintiff can perform, such as production
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assembler and packing line worker. Tr. 30. On that basis, the ALJ concluded that
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Plaintiff has not been under a disability, as defined in the Social Security Act, from
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June 30, 2010, through the date of the decision. Tr. 31.
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ISSUES
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Plaintiff seeks judicial review of the Commissioner’s final decision denying
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her disability benefits under Title II and supplemental security income benefits
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under Title XVI of the Social Security Act. ECF No. 13. Plaintiff raises the
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following issues for this Court’s review:
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1. Whether the ALJ improperly discredited Plaintiff’s symptom claims; and
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2. Whether the ALJ properly weighed the medical opinion evidence.
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DISCUSSION
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A. Adverse Credibility Finding
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An ALJ engages in a two-step analysis to determine whether a claimant’s
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testimony regarding subjective pain or symptoms is credible. “First, the ALJ must
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determine whether there is objective medical evidence of an underlying
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impairment which could reasonably be expected to produce the pain or other

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symptoms alleged.” Molina, 674 F.3d at 1112 (internal quotation marks omitted).

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“The claimant is not required to show that her impairment could reasonably be

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expected to cause the severity of the symptom she has alleged; she need only show

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that it could reasonably have caused some degree of the symptom.” Vasquez v.

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Astrue, 572 F.3d 586, 591 (9th Cir. 2009) (internal quotation marks omitted).

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Second, “[i]f the claimant meets the first test and there is no evidence of

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malingering, the ALJ can only reject the claimant’s testimony about the severity of

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the symptoms if [the ALJ] gives ‘specific, clear and convincing reasons’ for the

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rejection.” Ghanim v. Colvin, 763 F.3d 1154, 1163 (9th Cir. 2014) (internal

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citations and quotations omitted). “General findings are insufficient; rather, the

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ALJ must identify what testimony is not credible and what evidence undermines

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the claimant’s complaints.” Id. (quoting Lester v. Chater, 81 F.3d 821, 834 (9th

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Cir. 1995)); Thomas v. Barnhart, 278 F.3d 947, 958 (9th Cir. 2002) (“[T]he ALJ

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must make a credibility determination with findings sufficiently specific to permit

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the court to conclude that the ALJ did not arbitrarily discredit claimant’s

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testimony.”). “The clear and convincing [evidence] standard is the most

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demanding required in Social Security cases.” Garrison v. Colvin, 759 F.3d 995,

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1015 (9th Cir. 2014) (quoting Moore v. Comm’r of Soc. Sec. Admin., 278 F.3d 920,

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924 (9th Cir. 2002)).
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In making an adverse credibility determination, the ALJ may consider, inter

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alia, (1) the claimant’s reputation for truthfulness; (2) inconsistencies in the

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claimant’s testimony or between her testimony and her conduct; (3) the claimant’s

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daily living activities; (4) the claimant’s work record; and (5) testimony from

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physicians or third parties concerning the nature, severity, and effect of the

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claimant’s condition. Thomas, 278 F.3d at 958-59.

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Here, the ALJ found Plaintiff’s impairments could reasonably be expected to

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cause the alleged symptoms; however, Plaintiff’s “statements concerning the

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intensity, persistence and limiting effects of these symptoms are not entirely

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credible.” Tr. 25. Plaintiff argues the ALJ improperly discredited Plaintiff’s

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symptom claims. ECF No. 13 at 8-13. The ALJ listed five reasons in support of

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the adverse credibility finding. First, the ALJ found

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while [Plaintiff] does have evidence of impairment in the shoulder and
lumbar spine, the objective medical evidence is not consistent with the
extreme levels of pain alleged by the claimant. Imaging has shown mild
degenerative disc disease some disc bulge but no evidence of nerve root
entrapment such that it would cause the type of radiculopathy as alleged by
the claimant. Imaging and examination of the shoulder also supports some
degree of limitation, especially in the right shoulder, but again, not the
extreme degree as per the claimant.

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Tr. 28. Subjective testimony cannot be rejected solely because it is not
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corroborated by objective medical findings, but medical evidence is a relevant
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factor in determining the severity of a claimant’s impairments. Rollins v.
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Massanari, 261 F.3d 853, 857 (9th Cir. 2001). At the first hearing, Plaintiff
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testified that he experiences “electricity” going down both legs every day, that

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sometimes “collapses [him] down or paralyzes [him];” can’t lift his arm right arm

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for “even a minute;” can only walk 100 feet at one stretch and stand for an hour at

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most; can only pick up ten pounds at most; and his back starts to “throb” after

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sitting for an hour. Tr. 48-51. He also testified that he has to lay down for a total

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of six hours a day, for one to two hours at a time; and only sleeps for two hours a

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night due to pain. Tr. 52. At the second hearing, Plaintiff testified that he has to

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lay down eight times a day for an hour at a time; can walk 100 yards; can lift ten

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pounds; and it hurts to raise his right arm. Tr. 78-79.

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However, as noted by the ALJ, in May 2011, while reporting increased

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shoulder pain when lifting his right arm, and right lower back pain described as

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10/10 on the pain scale; upon exam Dr. Escanio found Plaintiff had normal

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musculature, no joint deformities or abnormalities, and normal range of motion in

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all four extremities for his age. Tr. 25, 334-35. X-rays of Plaintiff’s shoulder and

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spine, respectively, showed mild narrowing of the L5-S1 disc space but “otherwise

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unremarkable examination;” and “no significant abnormalities.” Tr. 336-37. The

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ALJ found these results were not consistent with the level of pain alleged by

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Plaintiff. Tr. 25.

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The next medical visit in the record is with orthopedist William Shanks, ten
months later in March 2012, during which Plaintiff reported lumbar pain and
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radiculopathy from his lumbar spine into his thighs; and right shoulder popping

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and grating. Tr. 25. Dr. Shanks noted tenderness at the L3-4 midline; lateral

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bending and twisting “with pain at the L3 level;” right shoulder tenderness, limited

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range of motion, and pain with lifting that “might be consistent with impingement

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syndrome.” Tr. 25 (citing Tr. 340). Dr. Shanks ordered an MRI of Plaintiff’s

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lumbar spine which found “evidence of DDD from the L3 level distally to the L5

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level.” Tr. 340-41. However, it is notable that Dr. Shanks did not make any

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specific findings as to Plaintiff’s right shoulder complaints; noted that he would

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“mostly likely” require “some form of surgical treatment” for his left shoulder

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problems; and recommended a program of conservative treatment to “better

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control his low back symptoms.” Tr. 341. In May 2012, Plaintiff reported “some

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right shoulder issues but [Plaintiff] feels not too bad now,” and physical

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examination found “some mild pain” but no paraspinal pain, but normal reflexes

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and strength (Tr. 349-50); and in June 2012 physical examination findings were the

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same and Plaintiff reported back pain was “about” the same (Tr. 347). Tr. 26. In

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August 2012, Dr. Robert Rose diagnosed degenerative disc disease of the lumbar

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spine, without findings of acute radiculopathy; and acromioclavicular degenerative

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arthorosis, bilateral shoulders, left greater than right, with impingement syndrome

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bilaterally, NOS; but as correctly noted by the ALJ, Dr. Rose’s objective findings

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showed little pain, and he did not opine as to any functional limitations. Tr. 26
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(citing Tr. 356). In March 2013, Plaintiff described his back as “overall ok but not

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doing much;” he did not have shoulder related complaints; and Jeremy Lewis, D.O.

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noted that Plaintiff “was doing relatively well but needs to keep activity minimal.”

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Tr. 431. In July 2013, Plaintiff reported “infrequent but severe pain that starts

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from his right side and like electricity, goes down both legs and collapses him;”

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however Plaintiff reported “no pain in his back or lower extremities” on the day he

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reported that symptom, and he denied numbness, tingling, or weakness on a

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constant basis. Tr. 412. After that visit, Dr. David Vanos ordered a SPECT scan

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to evaluate sacroiliac joint arthropathy; the results of which were normal. Tr. 404,

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413. Finally, as noted by the ALJ, “[a]dditional records dated through September

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2014 show some treatment for various acute conditions but none for his shoulders

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or back.” Tr. 27 (citing Tr. 380-403).

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Plaintiff cites evidence from the medical record that would tend to support

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his symptom testimony, including: Dr. Shanks’ finding “prominence of AC joint at

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the left shoulder” and observed right shoulder, cervical and lumbar tenderness (Tr.

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339-40); degenerative disc disease diagnosed through x-rays and MRI (Tr. 340);

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limited range of motion during Dr. Rose’s examination (Tr. 356); and Dr. Jay

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Toews, a mental health practitioner’s note that Plaintiff “demonstrated moderately

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severe pain behavior” (Tr. 363). ECF No. 13 at 9-10. Plaintiff also argues that

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there was “no reasonable basis” for the ALJ’s conclusion that the record contained
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“no evidence of nerve root entrapment such that would cause the type of

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radiculopathy as alleged by the [Plaintiff];” because no medical opinion noted that

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nerve entrapment “must be shown to prove radiculopathy,” and the ALJ did not

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examine the medical expert “regarding this issue.” ECF No. 13 at 10 (citing

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Rohan v. Chater, 98 F.3d 966, 970 (7th Cir. 1996) (ALJ must not succumb to the

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temptation to play doctor and make independent medical findings)). However,

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contrary to Plaintiff’s argument, the ALJ did not find that nerve root entrapment

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“must be shown” to prove radiculopathy, she merely noted that the record did not

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include this evidence. Moreover, the medical expert at the second hearing, Dr.

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Darius Ghazi, testified that Plaintiff had no signs of nerve damage, and that

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Plaintiff’s complaints of pain radiating to the lower extremities did not correlate

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with physical findings in the record. Tr. 75-76. Thus, the Court finds that

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regardless of evidence that could be interpreted more favorably to the Plaintiff, the

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ALJ properly relied on substantial evidence, as discussed in detail above,

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supporting his finding that Plaintiff’s claimed limitations were not consistent with

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the overall medical record. See Thomas, 278 F.3d at 958-59 (“If the ALJ finds that

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the claimant’s testimony as to the severity of her pain and impairments is

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unreliable, the ALJ must make a credibility determination … [t]he ALJ may

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consider testimony from physicians and third parties concerning the nature,

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severity and effect of the symptoms of which the claimant complains.”); Burch v.
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Barnhart, 400 F.3d 676, 679 (9th Cir. 2005) (“[W]here evidence is susceptible to

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more than one rational interpretation, it is the [Commissioner’s] conclusion that

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must be upheld.”). The inconsistency between the “extreme levels of pain alleged

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by” Plaintiff’s testimony, and the objective evidence, was a clear and convincing

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reason, supported by substantial evidence, for the ALJ to find Plaintiff was not

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entirely credible.

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Second, the ALJ found that Plaintiff “has received limited treatment since

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the alleged onset date and primary care records show that he has gone many, many

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months without seeking care for his shoulders or spine.” Tr. 28. Unexplained, or

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inadequately explained, failure to seek treatment or follow a prescribed course of

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treatment may be the basis for an adverse credibility finding unless there is a

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showing of a good reason for the failure. Orn v. Astrue, 495 F.3d 625, 638 (9th Cir.

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2007). However, an ALJ “must not draw any inferences about an individual’s

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symptoms and their functional effects from a failure to seek or pursue regular

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medical treatment without first considering any explanations that the individual

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may provide, or other information in the case record, that may explain infrequent

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or irregular medical visits or failure to seek medical treatment.” Social Security

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Ruling (“SSR”) 96-7p (July 2, 1996), available at 1996 WL 374186 at *7.1

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Plaintiff argues that “the record shows [Plaintiff] lacked medical insurance for

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some time and then lacked the financial resources to follow through on some

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treatment;” and thus it was “not appropriate to discount [Plaintiff’s] symptom

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claims for lack of funds.” ECF No. 13 at 11; see Gamble v. Chater, 68 F.3d 319,

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321 (9th Cir. 1995) (disability benefits may not be denied because of a claimant’s

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inability to afford treatment). The first medical visit in the record during the

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adjudicatory period, in May 2011, did indicate that Plaintiff had not seen a doctor

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in 15 years due to not having insurance. Tr. 332. However, the ALJ supports this

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reasoning by pointing to additional gaps in treatment records during which there is

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no indication that Plaintiff was unable to afford treatment, including: no treatment

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for back or shoulder pain between September 2013 and September 2014 (Tr. 27);

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and a lack of treatment for five months after an epidural shot for his spine, which

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1

16

3p (March 16, 2016), available at 2016 WL 1119029. The new ruling also

17

provides that the ALJ must consider possible reasons why a claimant did not

18

comply with treatment or seek treatment. S.S.R. 16-3p at *9. Nonetheless, S.S.R.

19

16-3p was not effective at the time of the ALJ's decision and therefore does not

20

apply in this case.

S.S.R. 96-7p was superseded by S.S.R. 16-3p effective March 16, 2016. SSR 16-

ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY
JUDGMENT AND DENYING PLAINTIFF’S MOTION FOR SUMMARY
JUDGMENT ~ 17

1

he claimed made the pain worse (Tr. 55). Moreover, the record indicates that

2

Plaintiff did have medical insurance from April 2012 through March 2015. Tr.

3

347-53; 380-458. Thus, the ALJ reasonably considered Plaintiff’s unexplained

4

lack of treatment during the relevant period as a reason to find his testimony not

5

entirely credible.

6

Third, the ALJ found that Plaintiff “has never been prescribed opiates for

7

either his shoulders or his back, indicating his treatment providers did not find it

8

necessary.” Tr. 28-29. Evidence of conservative treatment is sufficient to discount

9

Plaintiff’s testimony regarding the severity of an impairment. Parra v. Astrue, 481

10

F.3d 742, 751 (9th Cir. 2007). Plaintiff argues the ALJ is “simply mistaken” and

11

cites records wherein Plaintiff was prescribed hydrocodone, ultram, naproxen and

12

flexeril. ECF No. 13 at 11. However, consistent with the ALJ’s finding, as noted

13

by Defendant, Plaintiff was prescribed hydrocodone “only twice, each time due to

14

short-term reports of acute pain in his toe, not for his shoulder or back pain.” ECF

15

No. 14 at 12-13 (emphasis added) (citing Tr. 399, 457). Plaintiff was prescribed

16

ultram on two occasions for his back pain (Tr. 427, 454); as well as naproxen (a

17

NSAID), and flexeril (a muscle relaxer), a handful of times throughout the record

18

for his back pain. Tr. 350, 388, 437, 445. The Court also notes that in March

19

2012, examining orthopedist Dr. Shanks recommended an MRI study of Plaintiff’s

20

left shoulder; and an evaluation at a spine clinic “for a program of conservative
ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY
JUDGMENT AND DENYING PLAINTIFF’S MOTION FOR SUMMARY
JUDGMENT ~ 18

1

measure[s] to better control his back symptoms.” Tr. 341. Again, regardless of

2

evidence that Plaintiff was prescribed medication to address his pain, it was

3

reasonable for the ALJ to consider the lack of opiates prescribed for Plaintiff’s

4

back and shoulder pain as evidence of conservative treatment sufficient to discount

5

Plaintiff’s testimony that back and shoulder pain was so severe as to be completely

6

disabling. See Parra, 481 F.3d at 751; see also Burch, 400 F.3d at 679 (“[W]here

7

evidence is susceptible to more than one rational interpretation, it is the

8

[Commissioner’s] conclusion that must be upheld.”).

9

Fourth, the ALJ found Plaintiff’s allegations were not fully credible because

10

he “has stated that he had to cease working as a construction worker due to back

11

pain but specifically told Dr. Shanks that he was laid off and that is why he stopped

12

working.” Tr. 29. When considering a claimant's contention that she cannot work

13

because of her impairments, it is appropriate to consider whether the claimant has

14

not worked for reasons unrelated to her alleged disability. See Bruton v.

15

Massanari, 268 F.3d 824, 828 (9th Cir. 2001) (the fact that the claimant left his job

16

because he was laid off, rather than because he was injured, was a clear and

17

convincing reason to find him not credible); see also Smolen v. Chater, 80 F.3d

18

1273, 1284 (9th Cir.1996) (in making a credibility evaluation, the ALJ may also

19

rely on ordinary techniques of credibility evaluation, including inconsistent

20

statements). Plaintiff reported to Dr. Shanks in March 2012 that “[h]e has worked
ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY
JUDGMENT AND DENYING PLAINTIFF’S MOTION FOR SUMMARY
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1

in construction labor jobs, but due to a layoff [sic] from the result of the economy,

2

he states he has not worked for a year or so. He was getting pain in his back

3

during the time he was working.” Tr. 338. Plaintiff argues this “single notation is

4

an aberration and does not constitute a clear and convincing reason” to find

5

Plaintiff not credible. ECF No. 13 at 12. However, it was reasonable for the ALJ

6

to rely on this statement as a reason to find Plaintiff not entirely credible, both as a

7

reason for stopping work unrelated to his alleged disability, and a statement

8

inconsistent with his claim that he stopped working because of his alleged back

9

and shoulder pain.

10

Fifth, and finally, the ALJ found Plaintiff’s “level of activity reported to his

11

care providers exceeds that of his testimony, and there is little to no evidence that

12

his impairments affect his ability to perform activities of daily living.” Tr. 29. It is

13

well-settled that a claimant need not be utterly incapacitated in order to be eligible

14

for benefits. Id.; see also Orn, 495 F.3d at 639 (“the mere fact that a plaintiff has

15

carried on certain activities…does not in any way detract from her credibility as to

16

her overall disability.”). However, even where activities “suggest some difficulty

17

functioning, they may be grounds for discrediting the [Plaintiff’s] testimony to the

18

extent that they contradict claims of a totally debilitating impairment.” Molina, 674

19

F.3d at 1113. Plaintiff argues it is “unclear which activities” Plaintiff reported to

20

his care providers that exceed the scope of his testimony “so as to impact his
ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY
JUDGMENT AND DENYING PLAINTIFF’S MOTION FOR SUMMARY
JUDGMENT ~ 20

1

credibility.” ECF No. 13 at 11. The Court agrees. Plaintiff consistently reported

2

to care providers, in his function report, and in his testimony; that he could attend

3

to his self-care, assist with grocery shopping, and perform light housework. Tr.

4

53-54, 80, 86, 354, 268-70, 361. Moreover, in making a credibility finding, the

5

ALJ “must specifically identify the testimony she or he finds not to be credible,

6

and must explain what evidence undermines the testimony.” Holohan v.

7

Massanari, 246 F.3d 1195, 1208 (9th Cir.2001). Here, the ALJ failed to provide

8

the requisite detail to sufficiently determine whether Plaintiff’s daily activities

9

contradicted his claims of disability. See Thomas, 278 F.3d 958 (ALJ must ‘make

10

a credibility determination with findings sufficiently specific to permit the court to

11

conclude that the ALJ did not arbitrarily discredit the claimant’s testimony.’).

12

However, any error is harmless because, as discussed in detail above, the ALJ’s

13

ultimate credibility finding is adequately supported by substantial evidence.

14

Carmickle v. Comm’r of Soc. Sec. Admin., 533 F.3d 1155, 1162-63 (9th Cir. 2008).

15
16
17
18

Overall, the ALJ provided specific, clear and convincing reasons for
rejecting Plaintiff’s symptom claims.
B. Medical Opinions
There are three types of physicians: “(1) those who treat the claimant

19

(treating physicians); (2) those who examine but do not treat the claimant

20

(examining physicians); and (3) those who neither examine nor treat the claimant
ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY
JUDGMENT AND DENYING PLAINTIFF’S MOTION FOR SUMMARY
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1

[but who review the claimant's file] (nonexamining [or reviewing] physicians).”

2

Holohan, 246 F.3d at 1201–02 (citations omitted). Generally, a treating physician's

3

opinion carries more weight than an examining physician's, and an examining

4

physician's opinion carries more weight than a reviewing physician's. Id. If a

5

treating or examining physician's opinion is uncontradicted, the ALJ may reject it

6

only by offering “clear and convincing reasons that are supported by substantial

7

evidence.” Bayliss v. Barnhart, 427 F.3d 1211, 1216 (9th Cir.2005). Conversely,

8

“[i]f a treating or examining doctor's opinion is contradicted by another doctor's

9

opinion, an ALJ may only reject it by providing specific and legitimate reasons

10

that are supported by substantial evidence.” Id. (citing Lester v. Chater, 81 F.3d

11

821, 830–831 (9th Cir.1995)). “However, the ALJ need not accept the opinion of

12

any physician, including a treating physician, if that opinion is brief, conclusory

13

and inadequately supported by clinical findings.” Bray v. Comm'r of Soc. Sec.

14

Admin., 554 F.3d 1219, 1228 (9th Cir. 2009)(quotation and citation omitted).

15

Plaintiff argues the ALJ committed reversible error by (1) improperly rejecting a

16

portion of Jay Toews, Ed.D.’s opinion; (2) improperly rejecting a portion of

17

Belinda Escanio, M.D.’s opinion; and (3) failing to weigh the opinions of Jeremy

18

Lewis, D.O., Robert J. Rose, M.D., and Margaret Moore, Ph.D. ECF No. 13 at 14-

19

16.

20

1. Dr. Jay Toews
ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY
JUDGMENT AND DENYING PLAINTIFF’S MOTION FOR SUMMARY
JUDGMENT ~ 22

1

In August 2012, examining psychologist Dr. Toews opined that Plaintiff is

2

capable of remembering “simple one and two-step instructions;” and “appears

3

capable of remembering routine, repetitive types of work activity.” Tr. 363. Dr.

4

Toews also noted that Plaintiff showed no signs of coordination or dexterity

5

problems; and there was “no indication of any mood or affective barriers to

6

employability.” Tr. 363. The ALJ granted Dr. Toews’ opinion “great weight but

7

for the ‘one and two step’ qualifier to simple work, as the [Plaintiff’s] subtest score

8

on block design and matrix reasoning were higher than his mean subtest score,

9

indicating more ability with analyzing whole part relationships and solving new

10

puzzles. This reasonably allows for the completion of at least a newly learned

11

three step task.” Tr. 29, 362. Plaintiff argues the ALJ made an “untenable and

12

inappropriate independent medical finding” because “[t]here is no basis for the

13

ALJ’s interpretation of the test score or the ALJ’s conclusion.” ECF No. 13 at 14-

14

15. Generally, the ALJ is responsible for “resolving conflicts in medical

15

testimony, and for resolving ambiguities.” Andrews v. Shalala, 53 F.3d 1035, 1039

16

(9th Cir. 1995). However, it is inappropriate for the ALJ to substitute his or her

17

own medical judgment for that of medical professionals. Tackett, 180 F.3d at

18

1102-03. Here, Dr. Toews specifically considered that Plaintiff’s block design and

19

matrix reasoning scores were “significantly higher” than his mean subtest score;

20

and found it “indicates [Plaintiff] has relatively good skills in visual-spatial
ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY
JUDGMENT AND DENYING PLAINTIFF’S MOTION FOR SUMMARY
JUDGMENT ~ 23

1

perception and visual-motor coordination and speed.” Tr. 362. Dr. Toews also

2

noted that there is “a moderate difference in ability to process routine visual

3

information and ability to attend to and process more complex verbal information;”

4

and presumably based on this finding, he limited Plaintiff to remembering simple

5

one and two step instructions. Tr. 363. As noted by Plaintiff, the ALJ also did not

6

support his finding with medical evidence from the record; nor did she examine the

7

psychological expert as to Plaintiff’s ability to complete newly learned three step

8

tasks, as opposed to the “two-step” qualifier opined by Dr. Toews. See Tr. 40-43.

9

Thus, it was inappropriate for the ALJ to substitute her own medical judgment for

10
11

that of Dr. Toews.
However, regardless of this error, Plaintiff fails to identify with specificity

12

how it was consequential to the ALJ’s ultimate determination that Plaintiff was not

13

disabled. See Molina, 674 F.3d at 1115 (error is harmless “where it is

14

inconsequential to the [ALJ’s] ultimate nondisability determination.”). The ALJ’s

15

assessed RFC limited Plaintiff to simple, repetitive, 3-step tasks; with no detailed

16

work. Tr. 24. Then, at step five, the ALJ relied on the VE’s testimony that given

17

this RFC, Plaintiff would be able to perform the requirements of a production

18

assembler and a packing line worker. However, these occupations do not include a

19

requirement that an individual must be able to perform a three-step task. See DOT

20

706.687.010, available at 1991 WL 679074; DOT 753.687-038, available at 1991
ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY
JUDGMENT AND DENYING PLAINTIFF’S MOTION FOR SUMMARY
JUDGMENT ~ 24

1

WL 680354. Thus, even assuming that the ALJ improperly rejected the portion of

2

Dr. Toews’ opinion that Plaintiff was capable of remembering simple one or two-

3

step instructions, any error is harmless because it is irrelevant to the ALJ’s ultimate

4

disability determination. See Stout v. Comm'r Soc. Sec. Admin., 454 F.3d 1050,

5

1055 (9th Cir. 2006) (error harmless where it is non-prejudicial to claimant or

6

irrelevant to ALJ's ultimate disability conclusion).

7

2. Dr. Belinda Escanio

8

In May 2011, treating physician Dr. Escanio opined that Plaintiff could stand

9

for one hour in an eight hour work day; sit for one hour in an eight hour work day;

10

lift ten pounds occasionally; and lift five pounds frequently. Tr. 375. The ALJ

11

accorded Dr. Escanio’s opinion “some weight as to the lifting and carrying

12

restrictions.” Tr. 29. However, the ALJ found “the stand/walk limits are not

13

consistent with the objective findings pertaining to the claimant’s lumbar spine;

14

even in the face of imaging and the claimant’s pain complaints[,] limiting the

15

claimant to one hour total standing and one hour total sitting is unsubstantiated.”

16

Tr. 29. An ALJ may discredit a physicians’ opinions that are conclusory, brief,

17

and unsupported by the record as a whole or by objective medical findings. Batson

18

v. Comm’r, Soc. Sec. Admin., 359 F.3d 1190, 1195 (9th Cir. 2004). Plaintiff argues

19

that “if the treating source has seen a patient a number of times and long enough to

20

have obtained a longitudinal picture of the impairment we will give the opinion
ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY
JUDGMENT AND DENYING PLAINTIFF’S MOTION FOR SUMMARY
JUDGMENT ~ 25

1

controlling weight.” ECF No. 13 at 15. However, as noted by Defendant, Dr.

2

Escanio’s opinion was dated May 6, 2011, the same day she initially examined

3

Plaintiff, and before she reviewed any objective test results; and during her first

4

examination she found no abnormalities in Plaintiff’s back or spine and normal

5

range of motion in all extremities. Tr. 332-33, 376. Moreover, as discussed above,

6

and noted by the ALJ in the decision, the overall medical record does not support

7

the severity of Dr. Escanio’s limitations on Plaintiff’s standing and walking. For

8

example, Dr. Escanio’s noted on May 19, 2011, less than two weeks after the

9

opinion at issue, that the x-rays of Plaintiff’s spine were largely normal. Tr. 25,

10

334. Dr. Shanks reviewed MRI results that confirmed degenerative disc disease of

11

the lumbar spine from the L3-4 level distally to L5-S1; but recommended that

12

Plaintiff pursue conservative treatment to control his low back pain, and found that

13

it was appropriate for Plaintiff to participate in employment activities. Tr. 341-45.

14

Dr. Rose, an examining physician, diagnosed degenerative disc disease of the

15

lumbosacral spine without findings of acute radiculopathy; but examination

16

findings “showed little pain or functional limits.” Tr. 26, 355-56.

17

Thus, the overall record supports the ALJ’s finding that the objective

18

findings pertaining to Plaintiff’s lumbar spine are not consistent with the severity

19

of the stand/walk limitations opined by Dr. Escanio. This was a specific and

20

legitimate reason for the ALJ to reject this portion of Dr. Escanio’s opinion.
ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY
JUDGMENT AND DENYING PLAINTIFF’S MOTION FOR SUMMARY
JUDGMENT ~ 26

1

3. “Unexamined Opinions”

2

In March 2013, treating physician Dr. Jeremy Lewis noted at an “office

3

visit” that Plaintiff was “doing relatively well but needs to keep activity minimal.”

4

Tr. 430-31. In August 2012, Dr. Robert Rose, an examining physician, completed

5

a consultative examination of Plaintiff, and diagnosed: acromioclavicular

6

degenerative arthrosis, bilateral shoulders, left greater than right; with

7

impingement syndrome bilaterally. Tr. 356. Plaintiff argues the ALJ improperly

8

failed to weigh these “opinions;” which Plaintiff contends are supportive of his

9

claimed limitations. ECF No. 13 at 15-16. As an initial matter, the Court notes

10

that the ALJ did specifically consider this evidence as part of the decision. See Tr.

11

26-27. Further, the ALJ did not err in failing to specifically discuss and provide

12

reasons for rejecting these “opinions” because neither one assessed any specific

13

functional limitations as to Plaintiff’s ability to work. See Turner v. Comm’r of

14

Soc. Sec. Admin., 613 F.3d 1217, 1223 (9th Cir. 2010) (where physician’s report

15

did not assign any specific limitations or opinions in relation to an ability to work,

16

“the ALJ did not need to provide ‘clear and convincing reasons’ for rejecting [the]

17

report because the ALJ did not reject any of [the report’s] conclusions”); see also

18

Kay v. Heckler, 754 F.2d 1545, 1549 (9th Cir. 1985) (the “mere diagnosis of an

19

impairment … is not sufficient to sustain a finding of disability.”).

20
ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY
JUDGMENT AND DENYING PLAINTIFF’S MOTION FOR SUMMARY
JUDGMENT ~ 27

1

Finally, Plaintiff argues that the ALJ failed to weigh medical expert Dr.

2

Margaret Moore’s opinion testimony; and that the RFC failed account for Dr.

3

Moore’s opined moderate limitation on Plaintiff’s concentration, persistence and

4

pace. ECF No. 13 at 16 (citing Tr. 42). However, contrary to this assertion, the

5

ALJ did grant Dr. Moore’s opinion “great weight,” and noted her opinion that

6

Plaintiff was “moderately limited in concentration, persistence, and pace due to his

7

learning disability.” Tr. 29. Thus, the pertinent question is whether the ALJ’s

8

RFC properly accounted for the moderate limitations on Plaintiff’s concentration,

9

persistence, and pace, as opined by Dr. Moore. Here, the RFC limited Plaintiff to

10

“simple, repetitive, 3-step tasks, [and] no detailed work.” Tr. 24. The Court finds

11

the ALJ properly accounted for Dr. Moore’s opinion when formulating this RFC,

12

which is consistent with the medical record. Stubbs-Danielson v. Astrue, 539 F.3d

13

1169, 1174 (9th Cir. 2008) (“an ALJ’s assessment of a claimant adequately

14

captures restrictions related to concentration, persistence, or pace where the

15

assessment is consistent with restrictions identified in the medical testimony.”). Of

16

particular note, the only other psychological opinion in the record from examining

17

provider Dr. Toews, which also included extensive objective testing, found

18

Plaintiff was capable of “remembering simple one and two step instructions” and

19

“performing routine, repetitive types of work activity.” Tr. 363. For all of these

20

reasons, the ALJ’s RFC assessment adequately captured the restrictions identified
ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY
JUDGMENT AND DENYING PLAINTIFF’S MOTION FOR SUMMARY
JUDGMENT ~ 28

1

in the medical testimony of Dr. Moore related to Plaintiff’s concentration,

2

persistence, or pace, by limiting Plaintiff to simple, repetitive, non-detailed work.

3
4

CONCLUSION
A reviewing court should not substitute its assessment of the evidence for

5

the ALJ’s. Tackett, 180 F.3d at 1098. To the contrary, a reviewing court must

6

defer to an ALJ’s assessment as long as it is supported by substantial evidence. 42

7

U.S.C. § 405(g). As discussed in detail above, the ALJ provided clear and

8

convincing reasons to discount Plaintiff’s symptom testimony, and properly

9

weighted the medical opinion evidence. After review the court finds the ALJ’s

10

decision is supported by substantial evidence and free of harmful legal error.

11

ACCORDINGLY, IT IS HEREBY ORDERED:

12

1. Plaintiff’s Motion for Summary Judgment, ECF No. 13, is DENIED.

13

2. Defendant’s Motion for Summary Judgment, ECF No. 14, is
GRANTED.

14
15

The District Court Executive is hereby directed to enter this Order and

16

provide copies to counsel, enter judgment in favor of the Defendant, and CLOSE

17

the file.

18
19
20

DATED September 15, 2017.
s/Fred Van Sickle
Fred Van Sickle
Senior United States District Judge
ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY
JUDGMENT AND DENYING PLAINTIFF’S MOTION FOR SUMMARY
JUDGMENT ~ 29