Joslyn v. Berryhill

Filing 19

ORDER re 3 Complaint -- by Judge J Richard Creatura. The Court ORDERS that this matter be AFFIRMED pursuant to sentence four of 42 U.S.C. § 405(g).(SH)

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT TACOMA

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DANIEL P. JOSLYN,

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Plaintiff,

CASE NO. 14-cv-05277 JRC
ORDER ON PLAINTIFF’S
COMPLAINT

v.
CAROLYN W. COLVIN, Acting
Commissioner of the Social Security
Administration,

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Defendant.
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This Court has jurisdiction pursuant to 28 U.S.C. § 636(c), Fed. R. Civ. P. 73 and

18 Local Magistrate Judge Rule MJR 13 (see also Notice of Initial Assignment to a U.S.
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Magistrate Judge and Consent Form, Dkt. 5; Consent to Proceed Before a United States
Magistrate Judge, Dkt. 6). This matter has been fully briefed (see Dkt. 16, 17, 18).

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After considering and reviewing the record, the Court concludes that the ALJ did
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not err in relying on early opinions from plaintiff’s treating physician as plaintiff has not
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demonstrated that his conditions worsened over time and the ALJ appropriately
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ORDER ON PLAINTIFF’S COMPLAINT - 1

1 concluded that the treating physician was in the best position to provide an opinion
2 regarding plaintiff’s limitations. Similarly, plaintiff’s argument that reliance on the
3 opinions from a state agency physician was improper because the non-examining state
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agency physician did not review later records is not persuasive as plaintiff has not
demonstrated that there was any significant worsening of his limitations from his

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impairments over time. The Court also concludes that the ALJ did not commit harmful
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error in his evaluation of plaintiff’s mental impairments as the ALJ appropriately found
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that plaintiff had not demonstrated that any mental impairment that lasted for a duration
of twelve months. Regarding the ALJ’s assessment of plaintiff’s credibility, it was

11 supported by inconsistent statements made by plaintiff, as well as by the ALJ’s thorough
12 discussion of the medical evidence and the ALJ’s finding that the objective medical
13 evidence did not support plaintiff’s allegations of disabling limitations.
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Therefore, this matter is affirmed pursuant to sentence four of 42 U.S.C. § 405(g).

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BACKGROUND
Plaintiff, DANIEL P. JOSLYN, was born in 1965 and was 46 years old on the
amended alleged date of disability onset of September 27, 2011 (see AR. 44, 165-66,
167-72). Plaintiff has an eleventh grade education (AR. 45). Plaintiff has work

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experience as a construction worker (AR. 62) and briefly as a crew member on a fishing
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troller (AR. 197-98).
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According to the ALJ, plaintiff has at least the severe impairments of
“Degenerative disc disease; [and] bilateral carpal tunnel syndrome status post bilateral

24 carpal tunnel release (20 C.F.R. §§ 404.1520(c) and 416.920(c))” (AR. 24).

ORDER ON PLAINTIFF’S COMPLAINT - 2

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At the time of the hearing, plaintiff was living in a mobile home with his dad and

2 girlfriend (AR. 46-47).
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PROCEDURAL HISTORY
Plaintiff’s application for disability insurance (“DIB”) benefits 1 pursuant to 42
U.S.C. § 423 (Title II) and Supplemental Security Income (“SSI”) benefits pursuant to 42

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U.S.C. § 1382(a) (Title XVI) of the Social Security Act were denied initially and
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following reconsideration (see AR. 70-77, 78-85, 88-94, 95-103). Plaintiff’s requested
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hearing was held before Administrative Law Judge Scott R. Morris (“the ALJ”) on March
11, 2013 (see AR. 39-67). On March 29, 2013, the ALJ issued a written decision in

11 which the ALJ concluded that plaintiff was not disabled pursuant to the Social Security
12 Act (see AR. 18-38).
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In plaintiff’s Opening Brief, plaintiff raises the following issues: (1) Whether or

14 not the ALJ properly evaluated the medical evidence; (2) Whether or not the ALJ
15 properly evaluated plaintiff’s testimony; (3) Whether or not the ALJ properly assessed
16 plaintiff’s residual functional capacity; and (4) Whether or not the ALJ erred by basing
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his step five finding on a residual functional capacity assessment that did not include all
of plaintiff’s limitations (see Dkt. 16, p. 1).

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STANDARD OF REVIEW
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Pursuant to 42 U.S.C. § 405(g), this Court may set aside the Commissioner's
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denial of social security benefits if the ALJ's findings are based on legal error or not

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Plaintiff effectively withdrew his DIB application when he amended his alleged
24 disability onset date at his administrative hearing (see Opening Brief, Dkt. 16, p. 2, n.2).

ORDER ON PLAINTIFF’S COMPLAINT - 3

1 supported by substantial evidence in the record as a whole. Bayliss v. Barnhart, 427 F.3d
2 1211, 1214 n.1 (9th Cir. 2005) (citing Tidwell v. Apfel, 161 F.3d 599, 601 (9th Cir.
3 1999)).
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DISCUSSION
(1)

Whether or not the ALJ properly evaluated the medical evidence.

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a. Non-examining state agency physician, Dr. Norman Staley, M.D.
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Plaintiff first presents arguments regarding the ALJ’s reliance in part on the
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opinion of non-examining state agency physician Dr. Norman Staley, M.D., whose
opinion was given significant weight by the ALJ (AR. 29).
According to Social Security Ruling 96-6p, state agency medical consultants,

12 while not examining doctors, “are highly qualified physicians and psychologists who are
13 experts in the evaluation of the medical issues in disability claims under the Act.” Social
14 Security Ruling (“SSR”) 96-6p, 1996 LEXIS 3 at *4. Therefore, regarding state agency
15 medical consultants, the ALJ is “required to consider as opinion evidence” their findings,
16 and also is “required to explain in his decision the weight given to such opinions.”
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Sawyer v. Astrue, 303 Fed. Appx. 453, *455, 2008 U.S. App. LEXIS 27247 at **2-**3
(9th Cir. 2008) (citing 20 C.F.R. § 416.927(f)(2)(i)-(ii); SSR 96-6p, 1996 SSR LEXIS 3,

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*5) (memorandum opinion) (unpublished opinion). The ALJ did that here.
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Plaintiff contends that the ALJ erred by failing to acknowledge that non21
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examining state agency physician Dr. Staley did not review any evidence beyond
February 2012 (see Opening Brief, Dkt. No. 16, p. 9). However, although plaintiff argues

24 in a conclusory manner that plaintiff’s “carpal tunnel syndrome and back pain worsened

ORDER ON PLAINTIFF’S COMPLAINT - 4

1 over time,” plaintiff does not cite any specific evidence that demonstrates this (see id.).
2 Although this argument is preceded by a general six page recitation of the medical
3 record, plaintiff makes no attempt to connect any particular aspect of the record to his
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argument, and furthermore, the majority of the recitation of the medical evidence covers
a period preceding February, 2012 (see id., pp. 3-9). This is insufficient. It is not the job

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of the Court to pour through a general recitation of facts from plaintiff in an attempt to
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interpret what aspects of the record plaintiff considers supportive of his argument. See
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Maldonado v. Moralex, 556 F.3d 1037, 1048 n.4 (9th Cir. 2009) (“Arguments made in
passing and inadequately briefed are waived”) (citing Halicki Films, L.L.C. v. Sanderson

11 Sales & Mktg., 547 F.3d 1213, 1229-30 (9th Cir. 2008)); see also Alder v. Wal-Mart
12 Stores, Inc., 144 F.3d 664, 669 (10th Cir. 1998) (“Arguments inadequately briefed in the
13 opening brief are waived . . . .) (citing Fed. R. App. P. 28) (other citations omitted).
14 Furthermore, a review of the medical evidence noted by plaintiff regarding the time
15 period after February, 2012 does not demonstrate that plaintiff’s impairments worsened
16 over time and do not demonstrate that any of the ALJ’s findings are not based on
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substantial evidence in the record as a whole, as discussed further below, see infra,
section 1.b. Based on a review of the record, the Court finds persuasive defendant’s

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argument that plaintiff “simply offers a different interpretation of the evidence
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considered by the ALJ” (Dkt. 17, p. 12). As noted by defendant, according to the Ninth
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Circuit, a court should uphold an ALJ’s decision when the evidence is susceptible to
more than one rational interpretation (see id. (citing Tommasetti v. Astrue, 533 F.3d 1035,

24 1040 (9th Cir. 2008)). It is not the job of the court to reweigh the evidence: If the

ORDER ON PLAINTIFF’S COMPLAINT - 5

1 evidence “is susceptible to more than one rational interpretation,” including one that
2 supports the decision of the Commissioner, the Commissioner's conclusion “must be
3 upheld.” Thomas v. Barnhart, 278 F.3d 947, 954 (9th Cir. 2002) (citing Morgan v.
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Comm’r Soc. Sec., 169 F.3d 595, 601 (9th Cir. 1999)).
Based on the record as a whole, and for the reasons stated, the Court concludes

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that plaintiff has not demonstrated that the ALJ erred by not explicitly discussing the fact
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that Dr. Staley did not review any records beyond February, 2012. Even if there was such
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an error, it was harmless and did not affect the ultimate disability determination.
Plaintiff also contends that the ALJ erred by giving significant weight to the

11 opinion of Dr. Staley because Dr. Staley opined that plaintiff did not suffer from
12 manipulative limitations (see Opening Brief, Dkt. No. 16, p. 9). However, even if the
13 ALJ did err with respect to this aspect of Dr. Staley’s opinion, which the Court does not
14 so conclude, any error is harmless, as the ALJ clearly and explicitly explained why he
15 disregarded this aspect of Dr. Staley’s opinion and continued his reasoning regarding his
16 own determination regarding plaintiff’s residual functional capacity (“RFC”) as follows:
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Although the claimant has some limitations due to his carpal tunnel
syndrome, he still maintains the ability to perform most household
chores. He can pull weeds. He can open jars. He can open cans. He
reported he still maintains an active lifestyle preparing meals, taking care
of his personal needs, feeding animals and going grocery shopping. The
claimant’s self-described activities are consistent with the restrictions in
the [RFC] outlined above. Dr. Staley’s opinion is also consistent with
Dr. Lang’s opinion regarding the claimant’s abilities.

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ORDER ON PLAINTIFF’S COMPLAINT - 6

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Therefore, the Court concludes that the ALJ adequately explained why he rejected

2 this aspect of Dr. Staley’s opinion regarding a lack of manipulative limitations, and also
3 supported his RFC finding regarding plaintiff’s manipulative limitations with substantial
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evidence in the record (see id.). Therefore, any error is harmless error.
The Ninth Circuit has “recognized that harmless error principles apply in the

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Social Security Act context.” Molina v. Astrue, 674 F.3d 1104, 1115 (9th Cir. 2012)
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(citing Stout v. Commissioner, Social Security Administration, 454 F.3d 1050, 1054 (9th
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Cir. 2006) (collecting cases)). The Ninth Circuit noted that “in each case we look at the
record as a whole to determine [if] the error alters the outcome of the case.” Id. The court

11 also noted that the Ninth Circuit has “adhered to the general principle that an ALJ’s error
12 is harmless where it is ‘inconsequential to the ultimate nondisability determination.’” Id.
13 (quoting Carmickle v. Comm’r Soc. Sec. Admin., 533 F.3d 1155, 1162 (9th Cir. 2008))
14 (other citations omitted). The court noted the necessity to follow the rule that courts must
15 review cases “‘without regard to errors’ that do not affect the parties’ ‘substantial
16 rights.’” Id. at 1118 (quoting Shinsheki v. Sanders, 556 U.S. 396, 407 (2009) (quoting 28
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U.S.C. § 2111) (codification of the harmless error rule)).
Here, although Dr. Staley’s opinion regarding plaintiff’s lack of manipulative

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limitations may not have been supported by substantial evidence in the record, it is clear
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that the ALJ did not credit this opinion from Dr. Staley, as the ALJ found that plaintiff
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did have manipulative limitations (see AR. 25). The ALJ found that plaintiff only could
“occasionally finger and feel when using his left upper extremity and frequently finger

24 and feel when using his right upper extremity” (see id.). Therefore, any error in Dr.

ORDER ON PLAINTIFF’S COMPLAINT - 7

1 Staley’s opinion regarding manipulative limitations did not affect the ALJ’s RFC, as the
2 ALJ determined that plaintiff did suffer from manipulative limitations, and noted Dr.
3 Staley’s error in that respect. The ALJ also explained how the other aspects of Dr.
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Staley’s opinion were consistent with the opinion of treating physician, Dr. Lang, and
how they were supported by the medical record and by claimant’s statements. The Court

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concludes that there is no error, but even if there was any error in relying in part on Dr.
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Staley’s opinion, any error is harmless and did not affect the ultimate disability
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determination. See Molina, supra, 674 F.3d at 1115.
b. Treating physician, Dr. Robert G.R. Lang, M.D.
Plaintiff also argues that the ALJ erred by giving significant weight to an opinion

12 from Dr. Lang that pre-dated plaintiff’s alleged disability onset date; however, the
13 doctor’s opinion still is relevant as plaintiff has not demonstrated how the record
14 indicates significant worsening of plaintiff’s condition after this point in time.
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For example, regarding plaintiff’s back impairment, approximately a month after

16 plaintiff’s amended alleged date of disability onset of September 27, 2011, plaintiff
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received a second MRI which indicated, as noted by plaintiff:
(1) at L2-L3, a small caudal left foraminal protrusion without neural
compress, unchanged; (2) at L3-L4, a small left foraminal protrusion
with underlying high intensity zone, causing mild effacement at the
exiting left L3 nerve root, unchanged; (3) at L4-L5, left foraminal
herniation and associated osseous ridging with moderate left foraminal
stenosis, unchanged; and (4) at L5-S1, mild bilateral facet arthropathy
and mild annular bulging, unchanged; and mild bilateral foraminal
stenosis, unchanged.
(Dkt. 16, p. 6 (citing AR. 371) (emphases added)).

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ORDER ON PLAINTIFF’S COMPLAINT - 8

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Similarly, as cited by plaintiff, a January, 2012 lumbar spine MRI indicated that

2 “accounting for differences in technique, overall these changes are very similar to the
3 MRI of October, 2011, and no significant progression of disease is evident” (Dkt. 16, p. 7
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(citing AR. 375)). Therefore, plaintiff has not demonstrated that his back impairment
worsened over time, negating the earlier opinion of Dr. Lang.

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Regarding plaintiff’s carpal tunnel syndrome, as noted by plaintiff, in July, 2012,
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Dr. Kirk D. Danielson, M.D. indicated that an electrodiagnostic study on plaintiff
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“showed evidence of moderate bilateral median neuropathy at the wrists (carpal tunnel
syndrome) affecting both sensory and motor components, and he noted that the right side

11 was mildly improved compared to the prior March 2011 study, while the left was
12 relatively similar” (id., pp. 7-8 (citing AR. 423-24) (emphases added)). Also as noted by
13 plaintiff, in March, 2013, among other notations, Dr. Lang noted that plaintiff “had
14 improved sensation in the extremities . . . .” (id., p. 9 (citing AR. 523, 525)) (emphasis
15 added)).
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For the reasons stated and based on the record as a whole, the Court concludes that
plaintiff has not demonstrated error in the ALJ’s reliance on a September 9, 2011 opinion
from Dr. Lang that plaintiff could perform light work with his argument that “medical

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evidence after [September 9, 2011] shows that [plaintiff’s] carpal tunnel syndrome and
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back pain both worsened subsequent to that date” (see id., p. 10 (citing AR. 29-30, 292,
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319)).
Plaintiff also argues that the ALJ erred by relying on Dr. Lang’s January 2012

24 opinion that “[if] the patient was able to obtain his license again it is likely that he would

ORDER ON PLAINTIFF’S COMPLAINT - 9

1 be able to return to productivity” because the opinion “does not prove that [plaintiff]
2 could perform competitive work on a full-time basis” (see id., p. 10 (citing AR. 29-30,
3 292, 319)). Although it is true that this opinion from Dr. Lang does not prove that
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plaintiff was capable of competitive work, this fact does not prevent the ALJ from relying
in part on this opinion from the treating physician. Plaintiff also contends that the ALJ

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erred by relying on this latter opinion from Dr. Lang because “more recent medical
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evidence, including much evidence from Dr. Lang [] shows that [plaintiff’s] carpal tunnel
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syndrome and back pain both continued to worsen over time” (id.). As discussed above,
the medical evidence cited by plaintiff does not demonstrate that plaintiff’s conditions

11 worsened over time.
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Although plaintiff also directs the Court to a particular portion of the record in

13 support of this argument, in that “Dr. Lang’s most recent opinion [indicated] that
14 [plaintiff] had moderate to severe carpal tunnel syndrome of the right hand, which
15 required a second carpal tunnel surgery,” (id. at p. 11 (citing AR. 529)), as cited by
16 plaintiff earlier in his brief, on “March 10, 2011, [Dr.] Mohammad A. Saeed, M.D.,
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found that an electrodiagnostic evaluation of [plaintiff] supported findings compatible
with bilateral carpal tunnel syndrome, right more than the left, appearing moderately

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severe to severe on the right and moderately severe on the left” (id. at p. 4 (citing AR.
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298). Again, plaintiff has not demonstrated that his impairments significantly worsened
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over time, negating the earlier opinions from Dr. Lang relied on by the ALJ.
Based on the reasons stated and on the record as a whole, the Court concludes that

24 plaintiff has not demonstrated that the ALJ erred in relying on the specified opinions of

ORDER ON PLAINTIFF’S COMPLAINT - 10

1 Dr. Lang, plaintiff’s treating physician. Instead, the Court concludes that the ALJ’s
2 determination to give Dr. Lang’s opinion significant weight, “because he is the claimant’s
3 treating provider and is best suited to opine on how the claimant’s impairments impact
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his ability to perform work activities,” and the ALJ’s finding that Dr. Lang’s “opinion is
also consistent with the other objective findings in the claimant’s file and the claimant’s

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own statements regarding his abilities” are supported by substantial evidence in the
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record as a whole (see AR. 30). The Court finds no harmful legal error.
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c. Dr. Kimberly Wheeler, Ph.D., examining psychological doctor
Although plaintiff implies that the ALJ failed to evaluate the opinion of Dr.

11 Wheeler properly and argues that “an ALJ is required to evaluate ‘every medical
12 opinion,’” the ALJ did evaluate the opinion of Dr. Wheeler (see Dkt. 16, p. 11 (citation
13 and footnote omitted)).
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The ALJ included the following discussion in his written opinion:
Dr. Kimberly Wheeler, Ph.D. performed a psychological evaluation of
the claimant in September 2012 and diagnosed him with an adjustment
disorder because of his emotional difficulties dealing with his inability to
perform physical activities (internal citation to Exhibit 29F/2). Dr.
Wheeler even noted that addressing the claimant’s condition as a
disorder “is somewhat of a stretch, but is the best way to capture his
diminished self–esteem in the absence of employment and full physical
integrity” (internal citation to 29F/2). She identified no restrictions in the
claimant’s ability to perform work-related activities due to his
adjustment disorder (internal citation to 29F/2). She also noted the
claimant would not be impaired for any length of time due to his
impairment (internal citation to 29F/4). Furthermore, the claimant’s
alleged mental impairment is not expected to last for more than 12
months. Medical records from January 2013 indicate the claimant had no
mental deficits. He was oriented on all spheres (internal citation to
34F/23). He had normal insight and judgment (internal citation to
34F/23). He had inappropriate mood and affect (internal citation to

ORDER ON PLAINTIFF’S COMPLAINT - 11

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34F/23). Because the claimant was only diagnosed with an adjustment
disorder in September 2012 and he showed no impairment in his mental
functioning and later medical records, his alleged mental impairment is
unlikely to meet the durational requirement necessary to be considered a
severe impairment. There is also no indication that his alleged
adjustment order would more than minimally limits his ability to
perform any work-related activities.
(AR. 24).

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Although plaintiff complains that the ALJ erred when reviewing the opinion of Dr.
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Wheeler, based on a review of the relevant record, the Court concludes that the ALJ’s
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findings with respect to the opinion of Dr. Wheeler are supported by substantial evidence
in the record. As noted by the ALJ, Dr. Wheeler opined that plaintiff’s “emotional

11 sequelae” had to do with diminished self worth, but “[d]ressing it up to the level of
12 disorder is somewhat of a stretch” (see AR. 432). Although Dr. Wheeler opined that
13 plaintiff suffered from some moderate limitations (see AR. 433), she also opined that his
14 thought process and content were within normal limits; his orientation was within normal
15 limits; his perception was within normal limits; his fund of knowledge was within normal
16 limits; his concentration was within normal limits; his abstract thought ability was within
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normal limits; his insight and judgment were within normal limits; and he remembered
three out of three objects immediately and two out of three with a delay and with the third

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object even being recognized among the presence of distractors (see AR. 434-35).
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Therefore, the Court concludes that the ALJ’s finding that Dr. Wheeler “identified no
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restrictions in the claimant’s ability to perform work-related activities due to his
adjustment disorder” is based on substantial evidence in the record as a whole. In

24 addition, importantly as noted by the ALJ, Dr. Wheeler opined that the expected duration

ORDER ON PLAINTIFF’S COMPLAINT - 12

1 of time that plaintiff would suffer from any opined limitations would be “0 months” (see
2 AR. 484). Therefore, the Court concludes that the ALJ’s finding that Dr. Wheeler “also
3 noted the claimant would not be impaired for any length of time due to his impairment” is
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a finding based on substantial evidence in the record. This opinion from Dr. Wheeler also
supports the finding by the ALJ that plaintiff’s impairment would not last the minimum

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duration of twelve months.
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For the reason stated and based on the record as a whole, the Court concludes that
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the ALJ did not err by failing to include any limitations from a mental impairment into
plaintiff’s RFC. The Court concludes that the ALJ did not err in his evaluation of the

11 opinion of Dr. Wheeler.
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As noted by the ALJ, in January, 2013 -- about four months after the assessment

13 from Dr. Wheeler -- plaintiff had intact memory, was oriented to time place person and
14 situation, had normal insight, exhibited normal judgment, and demonstrated an
15 appropriate mood and affect (see AR. 485). This information, too, supports the finding by
16 the ALJ that any mental impairment of plaintiff was not severe and also did not last the
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minimum duration of 12 months. Although plaintiff argues that the ALJ erred by failing
to conclude that plaintiff suffered from a severe mental impairment, for the reason stated

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and based on the record, the Court concludes that this finding by the ALJ is supported by
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substantial evidence in the record. The Court notes that plaintiff bears the burden to
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establish by a preponderance of the evidence the existence of a severe impairment that
prevented performance of substantial gainful activity and that this impairment lasted for

24 at least twelve continuous months. 20 C.F.R. §§ 404.1505(a), 404.1512(a) and (c),

ORDER ON PLAINTIFF’S COMPLAINT - 13

1 416.905(a), 416.912(a) and (c); Yuckert, supra, 482 U.S. at 146; see also Tidwell v. Apfel,
2 161 F.3d 599, 601 (9th Cir. 1998) (citing Roberts v. Shalala, 66 F.3d 179, 182 (9th Cir.
3 1995)). Any impairment that does not last continuously for twelve months does not
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satisfy the requirement. 20 C.F.R. §§ 404.1505(a), 404.1512(a) and (c), 416.905(a),
416.912(a) and (c); Roberts, supra, 66 F.3d at 182.

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Therefore, even if the ALJ did err by failing to fully credit an opinion about
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limitations from Dr. Wheeler, any error would be harmless, as plaintiff did not
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demonstrate that any mental impairment existed for a minimum of twelve months and Dr.
Wheeler herself opined that plaintiff’s limitations would not last for any period of time.

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(2)

Whether or not the ALJ properly evaluated plaintiff’s testimony.

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Plaintiff contends that the ALJ erred by failing to credit fully plaintiff’s allegations

13 and testimony. However, for the reasons stated below and based on the record as a whole,
14 the Court concludes that the ALJ’s credibility determination is proper.
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If the medical evidence in the record is not conclusive, sole responsibility for

16 resolving conflicting testimony and questions of credibility lies with the ALJ. Sample v.
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Schweiker, 694 F.2d 639, 642 (9th Cir. 1999) (citing Waters v. Gardner, 452 F.2d 855,
858 n.7 (9th Cir. 1971) (Calhoun v. Bailar, 626 F.2d 145, 150 (9th Cir. 1980)). An ALJ is

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not “required to believe every allegation of disabling pain” or other non-exertional
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impairment. Fair v. Bowen, 885 F.2d 597, 603 (9th Cir. 1989) (citing 42 U.S.C. §
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423(d)(5)(A) (other citations and footnote omitted)).
If an ALJ rejects the testimony of a claimant once an underlying impairment has

24 been established, the ALJ must support the rejection “by offering specific, clear and

ORDER ON PLAINTIFF’S COMPLAINT - 14

1 convincing reasons for doing so.” Smolen v. Chater, 80 F.3d 1273, 1284 (9th Cir. 1996)
2 (citing Dodrill v. Shalala, 12 F.3d 915, 918 (9th Cir.1993)); see also Reddick v. Chater,
3 157 F.3d 715, 722 (9th Cir. 1998) (citing Bunnell v. Sullivan, 947 F.2d 341, 343, 346-47
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(9th Cir. 1991) (en banc)). The Court notes that this “clear and convincing” standard
recently was reaffirmed by the Ninth Circuit. See Garrison v. Colvin, 759 F.3d 995, 1015

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n.18 (9th Cir. July 14, 2014) (“The government’s suggestion that we should apply a
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lesser standard than ‘clear and convincing’ lacks any support in precedent and must be
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rejected”). As with all of the findings by the ALJ, the specific, clear and convincing
reasons also must be supported by substantial evidence in the record as a whole. 42

11 U.S.C. § 405(g); see also Bayliss v. Barnhart, 427 F.3d 1211, 1214 n.1 (9th Cir. 2005)
12 (citing Tidwell v. Apfel, 161 F.3d 599, 601 (9th Cir. 1999)).
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Plaintiff indicated in November, 2011 that as part of his daily activities, he brings

14 firewood in to the house (see AR. 190), but at his hearing, he testified that he does not lift
15 even a hunk of wood to add it to the fire (see AR. 53). The Court concludes that the ALJ
16 properly relied on this inconsistent testimony when failing to credit fully plaintiff’s
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allegations and testimony about his disabling limitations (see AR. 29). See Turner v.
Comm’r of Soc. Sec., 613 F.3d 1217, 1225 (9th Cir. 2010) (Ninth Circuit affirmed, noting

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that because of a “discrepancy in [the claimant’s] testimony, the ALJ found that [the
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claimant] could not be ‘found to be wholly credible regarding any allegation of total
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disability’”).
The ALJ also relied on a finding that plaintiff’s allegations of disabling limitations

24 were not supported by the objective medical evidence (see AR. 26).

ORDER ON PLAINTIFF’S COMPLAINT - 15

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Although once a claimant produces medical evidence of an underlying

2 impairment, the ALJ may not discredit then a claimant's testimony as to the severity of
3 symptoms based solely on a lack of objective medical evidence to corroborate fully the
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alleged severity of pain, here, the ALJ offered other reasons, such as the inconsistent
statements about plaintiff’s ability to lift and carry firewood into the house, see supra ,

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his statements in the record about his abilities and his activities of daily living (see AR.
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28-29). See Bunnell, supra, 947 F.2d at 343, 346-47 (citing Cotton, supra, 799 F.2d at
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1407).
As noted by the ALJ, Dr. Mohammad A. Saeed, M.D. performed a physical exam

11 of plaintiff and also “performed and electrodiagnostic evaluation of the claimant in
12 October 2011 . . . . [and] concluded the claimant had only a mild abnormal study” (see
13 AR. 27 (citing AR. 302)). The ALJ’s finding is supported by substantial evidence, as Dr.
14 Saeed performed an exam and an electrodiagnostic study on October 27, 2011, and
15 concluded, among other things, that “[this] is a mildly abnormal study” (see AR. 302).
16 This set of findings by the ALJ also supports the ALJ’s finding that plaintiff’s allegations
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of disabling limitations were not supported by the objective medical evidence.
Similarly, the ALJ noted a physical therapy visit in February, 2012 at which

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plaintiff reported that his pain was relieved by steroidal injections (AR. 27 (citing AR.
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313)). The ALJ also included the following regarding the evaluation with physical
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therapist Mr. Brian Reiton, PAC:
A physical examination showed he had full strength in his lower
extremities. His straight leg raise tests were normal on the right side and
the left. The claimant requested to initiate chronic pain management for

ORDER ON PLAINTIFF’S COMPLAINT - 16

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his alleged back pain. Mr. Reiton suggested the claimant stretch and
perform strengthening exercises to eliminate his back pain.

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(Id. (citing AR. 315)).
The ALJ’s discussion regarding this February, 2012 evaluation is supported by

5 substantial evidence in the record. Plaintiff’s lower extremity strength was normal, and
6 the straight leg raise tests were normal on the right and left side (see AR. 315). This
7 treatment note also supports the finding by the ALJ that plaintiff was prescribed only
8 ibuprofen for his pain (see id.). Based on the record as a whole, the Court concludes that
9 this set of findings by the ALJ also supports the ALJ’s finding that plaintiff’s allegations
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of disabling limitations were not supported by the objective medical evidence.
The ALJ also noted examination results from Dr. Lang in March, 2012, such as
plaintiff’s strong grips in both hands; that his opposition, finger extension and abduction

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were strong bilaterally; that plaintiff “walked with a normal gait and was able to heel and
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toe walk [and] [his] straight leg raises were negative on the right and positive on the left;
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[h]owever he had good strength in both of his legs” (see AR. 28 (citing AR. 443)). Again,
the ALJ’s findings are supported by substantial evidence in the record and support his

18 finding that plaintiff’s allegations of disabling limitations are not supported by the
19 objective medical evidence.
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The ALJ also noted various indications from plaintiff such as plaintiff’s report that

21 “he can touch all his thumbs to his fingers; [he] can open a jar of peanut butter; [he] can
22 open a can of beer; [he] prepares meals for himself; [he] feeds his chickens and horses;
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[he] regularly performs household chores and washes the dishes; [he] pulls weeds out of

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ORDER ON PLAINTIFF’S COMPLAINT - 17

1 his garden; [and] [although] the claimant frequently complained of hand numbness, he
2 had good grip strength and range of motion in his upper extremities” (AR. 28-29 (internal
3 citations omitted)). The ALJ also noted as follows:
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[Plaintiff] also has no difficulties performing his activities of daily living
due to his back pain. He manages his own personal care. He cleans, he
does laundry, he makes minor house repairs and gardens. In his Function
Report, he indicated he is capable of lifting 15 to 20 pounds. The
limitations in the residual functional capacity are also supported by the
objective findings in his file. He routinely had full strength in his lower
extremities. He demonstrated good range of motion and had mostly
negative straight leg raises. He consistently walked with a normal gait.
Furthermore, even his treating physician indicated he could return to
work if he had a valid license.

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(AR. 29 (internal citations omitted)).

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For the reasons stated, the Court concludes that the ALJ’s finding regarding lack
of support from the objective medical evidence was supported by substantial evidence in

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the record as a whole and that the ALJ did not err when evaluating credibility of plaintiff.
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The ALJ offered specific, clear and convincing reasons, supported by substantial
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evidence in the record, for the ALJ’s credibility determination.
(3)

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Whether or not the ALJ properly assessed plaintiff’s residual
functional capacity and whether or not the ALJ erred by basing his
step five finding on a residual functional capacity assessment that did
not include all of plaintiff’s limitations.

These arguments by plaintiff depend on the other arguments that already have

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been discussed by the Court and found not persuasive, see supra, sections 1 and 2. The
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Court finds no error.
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ORDER ON PLAINTIFF’S COMPLAINT - 18

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CONCLUSION
Based on the stated reasons and the relevant record, the Court ORDERS that this

3 matter be AFFIRMED pursuant to sentence four of 42 U.S.C. § 405(g).
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JUDGMENT should be for defendant and the case should be closed.
Dated this 29th day of December, 2014.

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A

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J. Richard Creatura
United States Magistrate Judge

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ORDER ON PLAINTIFF’S COMPLAINT - 19