Johnson v. Colvin

Filing 13

ORDER by Judge James L. Robart affirming the Commissioner's final decision and dismissing case with prejudice. (PM)

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT SEATTLE

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JEFFREY JOHNSON,
Plaintiff,

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ORDER AFFIRMING
DEFENDANT’S DECISION TO
DENY BENEFITS

v.

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CASE NO. C16-5593JLR

11 CAROLYN W. COLVIN,

Defendant.

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I.

INTRODUCTION

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Plaintiff Jeffrey Johnson seeks review of the denial of his application for disability
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insurance benefits. Mr. Johnson contends that the Administrative Law Judge (“ALJ”)
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erred in evaluating the medical evidence, evaluating Mr. Johnson’s testimony, finding
that he did not meet the Medical Vocational Guidelines for disability, assessing his

19 residual functional capacity (“RFC”), finding him capable of performing past work, and
20 alternatively finding him capable of performing work available in the national economy.
21 (Op. Br. (Dkt. # 9) at 1-2.) Having considered the submissions of the parties, the relevant
22 portions of the record, and the applicable law, the court AFFIRMS Defendant
23 Commissioner Carolyn W. Colvin’s (“the Commissioner”) final decision and

ORDER - 1

1 DISMISSES the case with prejudice.
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II.

BACKGROUND

On July 25, 2014, Mr. Johnson protectively filed an application for disability
insurance benefits. (Administrative Record (“AR”) (Dkt. # 7) at 11.) Mr. Johnson’s
application was denied initially and on reconsideration. (Id.) The ALJ conducted a

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hearing on November 20, 2015, at which Mr. Johnson alleged an amended disability
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onset date of October 24, 2014. (Id.) After the hearing, the ALJ issued a decision
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finding Mr. Johnson not disabled. (Id. at 11-22.)
The ALJ utilized the five-step disability evaluation process,1 and the court

11 summarizes the ALJ’s findings as follows:
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Step one: Mr. Johnson did not engage in substantial gainful activity from October
24, 2014, the alleged onset date of his disability, through December 31, 2015, his
date last insured.
Step two: Through the date last insured, Mr. Johnson had the following severe
impairments: cervical herniated discs, degenerative disc disease, and bilateral
shoulder impingements status post-repair.
Step three: Through the date last insured, Mr. Johnson did not have an
impairment or combination of impairments that met or equaled the requirements
of a listed impairment.2
RFC: Through the date last insured, Mr. Johnson could perform light work as
defined in 20 C.F.R. § 404.1567(b) with the following additional limitations: He
can never climb ladders, ropes, or scaffolds. He can occasionally stoop, kneel,
crouch, and balance. He can never crawl. He cannot perform overhead reaching
but can perform less than occasional pushing or pulling with his arms. He can
stand or walk for an hour at a time for a maximum of three hours in an eight-hour

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20 C.F.R. § 416.920.

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20 C.F.R. Part 404, Subpart P, Appendix 1.

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ORDER - 2

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day. He can sit without limitations but requires the ability to stand after sitting for
one hour. He can occasionally climb ramps and less than occasionally climb
stairs. He should avoid exposure to high impact vibration. He should avoid
concentrated exposure to hazards and cannot be exposed to unprotected heights.
Step four: Through the date last insured, Mr. Johnson was able to perform his
past relevant work as an operation researcher as it is generally performed.
Therefore, he is not disabled.
Step five: Alternatively, because jobs exist in significant numbers in the national
economy that Mr. Johnson could have performed through the date last insured, he
is not disabled.

8 (See AR at 13-22.) The Appeals Council denied Mr. Johnson’s request for review,
9 making the ALJ’s decision the Commissioner’s final decision. (See AR at 1-6.)3
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III.

ANALYSIS

Pursuant to 42 U.S.C. § 405(g), this court must set aside the Commissioner’s
denial of social security benefits if the ALJ’s findings are based on legal error or not

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

Evaluation of the Medical Evidence

Mr. Johnson argues that the ALJ erred in evaluating the medical evidence in the

19 record. (See Op. Br. at 10-16.) Where the medical evidence in the record is not
20 conclusive, resolving “questions of credibility and resolution of conflicts” is solely the
21 responsibility of the ALJ. See Sample v. Schweiker, 694 F.2d 639, 642 (9th Cir. 1982).
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The court omits the rest of the procedural history in this matter because it is not relevant
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ORDER - 3

1 In such cases, “the ALJ’s conclusion must be upheld.” Morgan v. Comm’r, Soc. Sec.
2 Admin., 169 F.3d 595, 601 (9th Cir. 1999).
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In resolving questions of credibility and conflicts in the evidence, an ALJ’s
findings “must be supported by specific, cogent reasons.” See Reddick v. Chater, 157
F.3d 715, 725 (9th Cir. 1998). The ALJ can satisfy this requirement “by setting out a

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detailed and thorough summary of the facts and conflicting clinical evidence, stating his
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interpretation thereof, and making findings.” Id. The ALJ may also draw inferences
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“logically flowing from the evidence.” Sample, 694 F.2d at 642. Further, the court itself
may draw “specific and legitimate inferences from the ALJ’s opinion.” Magallanes v.

11 Bowen, 881 F.2d 747, 755 (9th Cir. 1989).
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The ALJ must provide “clear and convincing” reasons for rejecting the

13 uncontradicted opinion of either a treating or examining physician. Lester v. Chater, 81
14 F.3d 821, 830 (9th Cir. 1996). Even when a treating or examining physician’s opinion is
15 contradicted, that opinion “can only be rejected for specific and legitimate reasons that
16 are supported by substantial evidence in the record.” Id. at 830-31.
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1.

Cindy Toraya, M.D.

Mr. Johnson argues that the ALJ erred by failing to give a specific and legitimate

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reason to discount the opinion of examining physician Cindy Toraya, M.D. (See Op. Br.
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at 10-13.) The court disagrees.
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Dr. Toraya examined Mr. Johnson in October 2014 and opined that he could walk
or stand for no more than two hours in a workday, sit for no more than four hours with

ORDER - 4

1 position changes, and lift or carry no more than 20 pounds occasionally and 10 pounds
2 frequently. (See AR at 1085.) Dr. Toraya also opined that Mr. Johnson should perform
3 no climbing, balancing, stooping, kneeling, crouching, or crawling. (See id.) The ALJ
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gave some weight to Dr. Toraya’s opinion, incorporating the lifting and carrying
restrictions into the RFC. (See AR at 20.) However, the ALJ discounted the other

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limitations because, among other reasons, the severe limitations were inconsistent with
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Dr. Toraya’s objective findings and other treatment records. (See id.)
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An ALJ need not accept a physician’s opinion if it is inadequately supported by
clinical findings. See Batson v. Comm’r, Soc. Sec. Admin., 359 F.3d 1190, 1195 (9th Cir.

11 2004). Here, Dr. Toraya found on physical examination that Mr. Johnson was able to
12 walk to and from the examination room without difficulty, could perform a tandem walk,
13 had fully intact motor function in his legs, and had full range of motion in his hips, knees,
14 and ankles. (See AR at 1083-84.) An ALJ also need not accept a physician’s opinion if it
15 is inadequately supported “by the record as a whole,” including treatment records. See
16 Batson, 359 F.3d at 1195; see also Tommasetti v. Andrue, 533 F.3d 1035, 1041 (9th Cir.
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2008). Here, other treatment providers noted intact muscle strength, normal gait, and
only mild degenerative spinal changes. (See AR at 1179, 1191.) Mr. Johnson reported to

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these providers that he was responding to treatment well, his pain level had decreased to a
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two out of 10, and he had “no complaints” upon his discharge from physical therapy in
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December 2014. (See AR at 1168, 1175.)
Ultimately, if the medical evidence “is susceptible to more than one rational

ORDER - 5

1 interpretation,” including one that supports the ALJ’s decision, the ALJ’s decision “must
2 be upheld.” See Thomas v. Barnhart, 278 F.3d 947, 954 (9th Cir. 2002). The court must
3 not reweigh the evidence. See id. Substantial evidence supports the ALJ’s finding that
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Dr. Toraya’s opinion was inconsistent with Dr. Toraya’s objective findings and other
treatment records. Therefore, the court concludes that the ALJ did not err by discounting

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Dr. Toraya’s opinion.
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2.

Julie Milasich, O.T.

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Mr. Johnson next argues that the ALJ erred by failing to give a germane reason
supported by substantial evidence to discount the opinion of Julie Milasich, O.T. (See

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Occupational therapists are considered “other sources,” and their opinions may be

13 given less weight than those of “acceptable medical sources.” See 20 C.F.R.
14 § 404.1513(d). The testimony of such “other sources” may be discounted if the ALJ
15 “gives reasons germane to each [source] for doing so.” See Molina v. Astrue, 674 F.3d
16 1104, 1111 (9th Cir. 2012) (internal citations omitted).
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In July 2015, Ms. Milasich examined Mr. Johnson and opined that he was
“significantly limited in [his] tolerance for sustained sitting, standing, and walking, and

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[did] not demonstrate the ability to perform full-time work even at the sedentary level.”
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(See AR at 1129.) The ALJ gave no weight to this opinion because, among other
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reasons, it was inconsistent with treatment notes and other objective findings in the
record. (See AR at 19.)

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Again, an ALJ need not accept a physician’s opinion if it is inadequately

2 supported “by the record as a whole,” including treatment records. See Batson, 359 F.3d
3 at 1195; see also Tommasetti, 533 F.3d at 1041. As described above, Mr. Johnson’s
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treatment records were inconsistent with severe limitations in standing, walking, and
sitting. See supra § III.A.1. Therefore, the ALJ provided a germane reason supported by

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substantial evidence for rejecting Ms. Milasick’s opinion that Mr. Johnson could not
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perform even sedentary work.
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B.

Evaluation of Mr. Johnson’s Testimony

Mr. Johnson argues that the ALJ erred in evaluating his subjective complaints.

11 (See Op. Br. at 16-17.) The court disagrees.
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Questions of credibility are solely the responsibility of the ALJ. See Sample, 694

13 F.2d at 642. The court may not second-guess these credibility determinations. Allen v.
14 Heckler, 749 F.2d 577, 580 (9th Cir. 1984). To reject a claimant’s subjective complaints,
15 the ALJ must provide “specific, cogent reasons for the disbelief.” Lester, 81 F.3d at 834
16 (citation omitted). The ALJ “must identify what testimony is not credible and what
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evidence undermines the claimant’s complaints.” Id.; see also Dodrill v. Shalala, 12 F.3d
915, 918 (9th Cir. 1993). Unless affirmative evidence shows the claimant is malingering,

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the ALJ’s reasons for rejecting the claimant’s testimony must be “clear and convincing.”
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Lester, 81 F.2d at 834. An ALJ’s credibility determination remains valid even if some of
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the reasons for discrediting a claimant’s testimony should properly be discounted, as long
as the determination is supported by substantial evidence. Tonapetyan v. Halter, 242

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1 F.3d 1144, 1148 (9th Cir. 2001).
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Here, the ALJ discounted Mr. Johnson’s testimony for several reasons, including

3 that the testimony was inconsistent with Mr. Johnson’s activities and the treatment notes
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in the record. (See AR at 17-18.) An ALJ may discount a claimant’s testimony when a
claimant’s activities of daily living “contradict his other testimony.” See Orn v. Astrue,

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495 F.3d 625, 639 (9th Cir. 2007). Here, Mr. Johnson alleged that, due to his back and
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neck pain, he could only stand for 10 to 15 minutes and sit for 20 minutes at a time and
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that he had problems turning his head. (See AR at 58-60.) He also stated that he had
“bad days” two or three days a week, which then required another two or three days of

11 recovery, during which he spent all day reclining. (See AR at 60-61.) However, his
12 activities of daily living included mowing the lawn, cooking, and taking out the trash, and
13 his reported hobbies included fishing and driving to church services. (See AR at 1088.)
14 Substantial evidence supports the ALJ’s finding that Mr. Johnson’s activities cast doubt
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Also, while a claimant’s testimony may not be rejected “solely because the degree
of pain alleged is not supported by objective medical evidence,” see Orteza v. Shalala, 50
F.3d 748, 749-50 (9th Cir. 1995), a determination that a claimant’s complaints are

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“inconsistent with clinical observations” can satisfy the “clear and convincing” reasons
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requirement. See Regennitter v. Comm’r, Soc. Sec. Admin., 166 F.3d 1294, 1297 (9th
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Cir. 1998). Here, as described above, several clinical treatment notes and examination
findings were inconsistent with the severe limitations to which Mr. Johnson testified. See

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1 supra § III.A.1. Therefore, the ALJ provided clear and convincing reasons supported by
2 substantial evidence to discount Mr. Johnson’s subjective complaints.
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C.

Medical Vocational Guidelines

Mr. Johnson argues that given his age, previous relevant work, and RFC, the
Medical Vocational Guidelines should have mandated a finding of disability under Rule

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201.14. (See Op. Br. at 9.) However, Rule 201.14 applies only to claimants limited to
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sedentary work. See 20 C.F.R. Pt. 404, Subpt. P, App. 2, § 201.14. The ALJ found that
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Mr. Johnson had the RFC to perform light work with some additional limitations. (See
AR at 16.) Therefore, Rule 201.14 does not apply, and the ALJ did not err here.

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D.

Step-Five Finding

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Mr. Johnson argues that the ALJ erred at step five by finding that Mr. Johnson

13 could perform work available in significant numbers in the national economy. (See Op.
14 Br. at 5-9.) The court disagrees.
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At step five of the disability evaluation process, the ALJ must show that the

16 claimant is able to perform a job available in significant numbers in the national
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economy. See Tackett v. Apfel, 180 F.3d 1094, 1098-99 (9th Cir. 1999); 20 C.F.R.
§§ 404.1520(d), (e). The ALJ can accomplish this through the testimony of a vocational

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expert. Osenbrock v. Apfel, 240 F.3d 1157, 1162 (9th Cir. 2000); Tackett, 180 F.3d at
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1100-01. To qualify as substantial evidence, the vocational expert’s testimony must be
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reliable in light of the medical evidence. See Embrey v. Bowen, 849 F.2d 418, 422 (9th
Cir. 1988). Only if a vocational expert’s testimony “appears to conflict” with the

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1 Dictionary of Occupational Titles (“DOT”) must the ALJ obtain “a reasonable
2 explanation for the apparent conflict” between the vocational expert’s testimony and the
3 DOT. See Social Security Ruling (“SSR”) 00-4p, available at 2000 WL 1898704, at *4.
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Mr. Johnson argues that the vocational expert’s testimony contained an
unexplained conflict with the DOT. (See Op. Br. at 6-8.) However, the vocational expert

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specifically identified that his testimony contained deviations from the DOT. (See AR at
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80.) The ALJ asked the vocational expert to explain the conflict, and the vocational
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expert replied that he could testify that Mr. Johnson could still perform the jobs identified
despite the deviations from the DOT “[b]ased on [his] professional experience and

11 knowledge of the labor market.” (See id.) Mr. Johnson argues that “this brief statement
12 does not qualify as a ‘reasonable explanation.’” (See Op. Br. at 7.) However, SSR 00-4p
13 states that a vocational expert’s professional experience is sufficient to reasonably
14 explain a conflict between the vocational expert’s testimony and the DOT. See SSR 0015 4p at *2. Therefore, the ALJ did not err by relying on the testimony of the vocational
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Mr. Johnson also argues that the ALJ erred by failing to establish that the jobs
identified by the vocational expert existed in significant numbers despite erosion based

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on the additional limitations in the RFC. (See Op. Br. at 8-9.) However, the ALJ
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specifically noted that the vocational expert testified that the jobs existed in significant
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numbers despite any erosion. (See AR at 22.) Therefore, the ALJ committed no error at
step five.

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IV.

CONCLUSION

For the foregoing reasons, the court AFFIRMS the Commissioner’s final decision

3 and DISMISSES this case with prejudice.
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DATED this 13th day of January, 2017.

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A

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JAMES L. ROBART
United States District Judge

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ORDER - 11