Makoviney v. Berryhill

Filing 20

ORDER re 1 Complaint filed by Bret J. Makoviney; AFFIRMING the decision of the Commissioner and DISMISSING this matter with prejudice; signed by Judge Ronald B. Leighton. (DN)

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT TACOMA

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BRETT M.,
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Case No. C18-5402 RBL

Plaintiff,

ORDER AFFIRMING DENIAL OF
BENEFITS

v.
COMMISSIONER OF SOCIAL SECURITY,

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Defendant.

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I.

INTRODUCTION

This matter is before the Court on Plaintiff Brett1 M.’s Complaint (Dkt. 1) for review of

15 the Commissioner of Social Security’s denial of his application for disability insurance benefits.
16 This is the third time this matter has been before the Court. See AR at 439-44, 1323-33.
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Plaintiff has severe impairments of degenerative joint disease, degenerative disc disease,

18 shoulder abnormality, status post spinal trauma, and shoulder strain. Id. at 1204. Plaintiff also
19 alleged mental impairments, but the Administrative Law Judge (“ALJ”) found them not severe.
20 See id. at 1204-06.
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Plaintiff applied for disability benefits on March 31, 2008, alleging a disability onset date

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Plaintiff’s name is spelled “Bret” in the Complaint, but the Administrative Record indicates that

23 Plaintiff spells his name as “Brett.” See Admin. Record (“AR”) (Dkt. 7) at 214. The Court uses
Plaintiff’s spelling of his name.
ORDER AFFIRMING DENIAL OF BENEFITS
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1 of October 9, 2001 due to a workplace accident. See id. at 91, 176. His date last insured was
2 December 31, 2003, which meant he had to establish disability, as defined in the Social Security
3 Act, on or before that date. See id. at 1202.
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Plaintiff’s application was denied on initial review and on reconsideration. Id. at 91-92.

5 At Plaintiff’s request, ALJ Gary Suttles held a hearing on Plaintiff’s claims. Id. at 31-90. On
6 April 20, 2010, ALJ Suttles issued a decision denying Plaintiff benefits. Id. at 8-27. The
7 Appeals Council denied review. Id. at 1-3. Plaintiff then sought review before this Court. See
8 id. at 439-44.
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On November 10, 2011, the Court entered an order remanding the case pursuant to the

10 parties’ stipulation. Id. at 440-42.
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On remand, ALJ Robert Kingsley held a hearing and again denied Plaintiff’s claims for

12 benefits. Id. at 365-86, 394-438. On July 18, 2014, the Appeals Council denied review. Id. at
13 348-51. Plaintiff again sought the Court’s review. See id. at 1323-33.
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On August 5, 2015, the Magistrate Judge Mary Alice Theiler entered an order remanding

15 the case. AR at 1328-33. The Commissioner conceded that the ALJ had erred, but asked the
16 Court to remand the case to the Appeals Council. See id. at 1331. Magistrate Judge Theiler
17 rejected the Commissioner’s request, and remanded the matter for further administrative
18 proceedings. Id. at 1333.
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On remand, ALJ Kelly Wilson held a hearing on February 12, 2016. Id. at 1234-54. ALJ

20 David Johnson, after taking over the case, held another hearing on November 28, 2017. Id. at
21 1255-75. ALJ Johnson issued a decision again denying Plaintiff’s claim for benefits on January
22 18, 2018. Id. at 1201-18. The Appeals Council did not assume jurisdiction, and Plaintiff did not
23 file written exceptions to the ALJ’s decision within 60 days of that decision. See Compl. ¶ 12.
ORDER AFFIRMING DENIAL OF BENEFITS
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1 The ALJ’s decision thus became the Commissioner’s final decision. See 20 C.F.R. § 404.984(d).
2 Plaintiff subsequently filed the present Complaint.
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Plaintiff argues that the ALJ erred in (a) rejecting Plaintiff’s testimony, (b) evaluating the

4 medical evidence, (c) evaluating the lay witness testimony, and (d) assessing Plaintiff’s residual
5 functional capacity (“RFC”) and basing his findings at step five of the disability evaluation
6 process on that RFC. See Pl. Op. Br. (Dkt. 11) at 1. Plaintiff argues that the Court should
7 remand this matter for an award of benefits. Id.
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II.

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DISCUSSION

Pursuant to 42 U.S.C. § 405(g), the Court may set aside the Commissioner’s denial of

10 social security benefits if the ALJ’s findings are based on legal error or not supported by
11 substantial evidence in the record as a whole. Bayliss v. Barnhart, 427 F.3d 1211, 1214 n.1 (9th
12 Cir. 2005). The ALJ is responsible for determining credibility, resolving conflicts in medical
13 testimony, and resolving any other ambiguities that might exist. Andrews v. Shalala, 53 F.3d
14 1035, 1039 (9th Cir. 1995). While the Court is required to examine the record as a whole, it may
15 neither reweigh the evidence nor substitute its judgment for that of the ALJ. See Thomas v.
16 Barnhart, 278 F.3d 947, 954 (9th Cir. 2002). “Where the evidence is susceptible to more than
17 one rational interpretation, one of which supports the ALJ’s decision, the ALJ’s conclusion must
18 be upheld.” Id.
19 A.

The ALJ Did Not Harmfully Err in Rejecting Plaintiff’s Testimony

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Plaintiff contends that the ALJ erred in rejecting his subjective symptom testimony. Pl.

21 Op. Br. at 10-15. The Ninth Circuit has “established a two-step analysis for determining the
22 extent to which a claimant’s symptom testimony must be credited.” Trevizo v. Berryhill, 871
23 F.3d 664, 678 (9th Cir. 2017). The ALJ must first determine whether the claimant has presented
ORDER AFFIRMING DENIAL OF BENEFITS
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1 objective medical evidence of an impairment that “‘could reasonably be expected to produce the
2 pain or other symptoms alleged.’” Id. (quoting Garrison v. Colvin, 759 F.3d 995, 1014-15 (9th
3 Cir. 2014)). At this stage, the claimant need only show that the impairment could reasonably
4 have caused some degree of the symptoms; he does not have to show that the impairment could
5 reasonably be expected to cause the severity of the symptoms alleged. Id. The ALJ found that
6 Plaintiff met this step because his medically determinable impairments could reasonably be
7 expected to cause the symptoms he alleged. AR at 1207.
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If the claimant satisfies the first step, and there is no evidence of malingering, the ALJ

9 may only reject the claimant’s testimony “‘by offering specific, clear and convincing reasons for
10 doing so. This is not an easy requirement to meet.’” Trevizo, 871 F.3d at 678 (quoting
11 Garrison, 759 F.3d at 1014-15). In evaluating the ALJ’s determination at this step, the Court
12 may not substitute its judgment for that of the ALJ. Fair v. Bowen, 885 F.2d 597, 604 (9th Cir.
13 1989). As long as the ALJ’s decision is supported by substantial evidence, it should stand, even
14 if some of the ALJ’s reasons for discrediting a claimant’s testimony fail. See Tonapetyan v.
15 Halter, 242 F.3d 1144, 1148 (9th Cir. 2001).
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The ALJ found that “the weight that can be given to the claimant’s symptom reports is

17 undermined” for several reasons. AR at 1207. First, the ALJ found affirmative evidence of
18 malingering, as Plaintiff exaggerated his symptoms. Id. at 1211. Second, the ALJ found that the
19 medical evidence was inconsistent with the severity of symptoms Plaintiff alleged. Id. at 1210.
20 Third, the ALJ found that Plaintiff’s symptoms were improved with treatment. Id. Fourth, the
21 ALJ found that Plaintiff’s testimony was undermined by his lack of participation and follow22 through with treatment. Id. at 1210-11. Fifth, the ALJ found that Plaintiff’s daily activities
23 contradicted his symptom testimony regarding the degree of his limitations. Id. Taken as a
ORDER AFFIRMING DENIAL OF BENEFITS
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1 whole, the ALJ provided clear and convincing reasons for rejecting Plaintiff’s symptom
2 testimony, and did not harmfully err.
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1.

The ALJ Did Not Err in Rejecting Plaintiff’s Testimony Because He Exaggerated
His Symptoms

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The ALJ determined that the evidence suggested Plaintiff was exaggerating his
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symptoms and limitations. AR at 1211. Affirmative evidence of malingering—standing alone—
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can support an ALJ’s rejection of Plaintiff’s testimony. See Schow v. Astrue, 272 F. App’x 647,
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651 (9th Cir. 2008) (The existence of “affirmative evidence suggesting malingering vitiates the
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clear and convincing standard of review”) (internal quotation marks omitted).
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Plaintiff has not shown error here. The ALJ noted that Clyde Carpenter, M.D., one of
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Plaintiff’s treating doctors, found Plaintiff had two of five Waddell signs, an indicator of
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exaggeration. AR at 590. Robert Campbell, M.D., an examining doctor, found that Plaintiff had
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one positive Waddell sign, and give-way weakness rather than true weakness with his upper
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extremities. Id. at 271. The ALJ reasonably interpreted these findings as affirmative evidence of
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malingering and did not err in rejecting Plaintiff’s symptom testimony on this basis. See
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Thomas, 278 F.3d at 958-59.
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2.
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The ALJ Did Not Err in Determining That Plaintiff’s Testimony was Inconsistent
with the Medical Evidence

The ALJ determined that the medical evidence was inconsistent with the severity of

19 symptoms Plaintiff alleged. AR at 1210. In making this determination, the ALJ focused on the
20 fact that Plaintiff needed to prove that he met the disability requirements by December 31, 2003,
21 his date last insured. See id. at 1208-10.
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The ALJ’s reasoning here is insufficient on its own as a basis to reject Plaintiff’s

23 symptom testimony, but the ALJ did not err in discussing or interpreting this evidence. An ALJ
ORDER AFFIRMING DENIAL OF BENEFITS
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1 may not reject a Plaintiff’s subjective symptom testimony “based solely on a lack of objective
2 medical evidence to fully corroborate the alleged severity of pain,” Bunnell v. Sullivan, 947 F.2d
3 341, 345 (9th Cir. 1991), but may consider the lack of supporting medical evidence in weighing
4 Plaintiff’s allegations, Burch v. Barnhart, 400 F.3d 676, 681 (9th Cir. 2005) (upholding ALJ’s
5 rejection of claimant’s testimony and noting that “[a]lthough lack of medical evidence cannot
6 form the sole basis for discounting pain testimony, it is a factor that the ALJ can consider in his
7 credibility analysis”). Here, the ALJ reasonably determined that there was a lack of objective
8 medical evidence between the alleged onset date and Plaintiff’s date last insured to support the
9 severity of symptoms Plaintiff claimed. See AR at 1210. And the ALJ reasonably determined
10 that some of the objective clinical findings were inconsistent with Plaintiff’s allegations. See id.
11 This analysis could not on its own support rejecting Plaintiff’s testimony, but the ALJ was
12 allowed to consider it, and Plaintiff has not shown that the ALJ erred in the analysis itself.
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3.

The ALJ Erred in Rejecting Plaintiff’s Testimony Based on His Alleged
Improvement with Treatment

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The ALJ next reasoned that Plaintiff’s symptoms had improved with treatment,
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undermining Plaintiff’s testimony. Id. The ALJ’s discussion on this point did not provide a
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clear and convincing reason to reject Plaintiff’s testimony. Plaintiff improved with treatment in
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some areas, but continued to have limitations in others. See id. at 575-80, 611, 620, 624, 914-24.
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The ALJ’s discussion was not convincing in demonstrating that Plaintiff’s testimony should be
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rejected because he experienced some amount of improvement. Cf. Garrison, 759 F.3d at 1017
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n.23 (“‘There can be a great distance between a patient who responds to treatment and one who
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is able to enter the workforce . . . .”) (quoting Scott v. Astrue, 647 F.3d 734, 739-40 (7th Cir.
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2011)). The ALJ thus erred in rejecting Plaintiff’s symptom testimony on this basis.
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//
ORDER AFFIRMING DENIAL OF BENEFITS
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4.

The ALJ Did Not Err in Rejecting Plaintiff’s Testimony Based on Lack of
Participation and Follow-Through with Treatment

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The ALJ further rejected Plaintiff’s symptom testimony because Plaintiff did not fully
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participate or follow through with recommended treatment. AR at 1210-11. This was a clear
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and convincing reason to reject Plaintiff’s symptom testimony. See Tommasetti v. Astrue, 533
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F.3d 1035, 1039 (9th Cir. 2008) (upholding ALJ’s adverse credibility determination where the
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ALJ inferred that the plaintiff’s symptoms were not as severe as alleged because he stopped
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taking an effective medication due to mild side effects and did not seek more aggressive
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treatment); Orn v. Astrue, 495 F.3d 625, 638 (9th Cir. 2007) (“[A]n ‘unexplained, or
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inadequately explained, failure to seek treatment’ may be the basis for an adverse credibility
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finding unless one of a ‘number of good reasons for not doing so’ applies.”) (quoting Fair, 885
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F.2d at 603). As the ALJ noted, Plaintiff’s physical therapist reported that Plaintiff needed to
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increase his compliance and attendance with therapy. AR at 920, 1211. Plaintiff’s chiropractor
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recommended three visits a week for three weeks, but Plaintiff did not follow through on this
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recommendation. See id. at 587, 1211.
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Plaintiff argues that the ALJ could not rely on this reason to reject his testimony without
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first inquiring why Plaintiff did not obtain additional treatment. Pl. Op. Br. at 11-12. The ALJ
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does not need to investigate why Plaintiff failed to seek treatment when Plaintiff puts forth no
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excuse. See Baricevic v. Berryhill, 720 F. App’x 858, 859 (9th Cir. 2018). Plaintiff has thus
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failed to show that the ALJ erred in rejecting Plaintiff’s testimony for failure to comply with
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recommended treatment.
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5.
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The ALJ Did Not Err in Rejecting Plaintiff’s Testimony Because It was
Inconsistent with His Daily Activities

The ALJ last rejected Plaintiff’s symptom testimony because it was inconsistent with his
ORDER AFFIRMING DENIAL OF BENEFITS
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1 daily activities. AR at 1211. An ALJ may discount a claimant’s testimony if his daily activities
2 “contradict [the claimant’s] other testimony.” See Orn, 495 F.3d at 639.
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Plaintiff testified that he could not stand or sit for very long. AR at 66. Yet Plaintiff also

4 testified that he walked a mile a day. Id. 65-66. Plaintiff testified that he helped mow his
5 parents’ four-acre property, using both a push mower and a sit-down mower. Id. at 69. The ALJ
6 reasonably determined that these and other facts were inconsistent with the severity of symptoms
7 Plaintiff alleged, and did not err in rejecting Plaintiff’s testimony on this basis. See Rollins v.
8 Massanari, 261 F.3d 853, 857 (9th Cir. 2001) (upholding ALJ’s rejection of plaintiff’s symptom
9 testimony where it was contradicted by her daily activities).
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6.

Plaintiff Has Not Shown That the ALJ Committed Harmful Error in Rejecting
Plaintiff’s Symptom Testimony

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Although not all of the ALJ’s reasons for rejecting Plaintiff’s symptom testimony were
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clear and convincing, Plaintiff has failed to show harmful error. See Molina v. Astrue, 674 F.3d
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1104, 1111 (9th Cir. 2012) (“‘[T]he burden of showing that an error is harmful normally falls
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upon the party attacking the agency’s determination.’”) (quoting Shinseki v. Sanders, 556 U.S.
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396, 409 (2009)). The ALJ included valid reasons that withstand scrutiny despite his inclusion
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of erroneous reasons, so those erroneous reasons were “‘inconsequential to the ultimate disability
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determination,’” Molina, 674 F.3d at 1115 (quoting Carmickle v. Comm’r, Soc. Sec. Admin., 533
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F.3d 1155, 1162 (9th Cir. 2008)), and therefore harmless.
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B.

The ALJ Did Not Harmfully Err in Evaluating the Medical Evidence

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Plaintiff contends that the ALJ erred in evaluating the medical evidence. Pl. Op. Br. at 321
9. Plaintiff argues that the ALJ erred in rejecting the opinions of Richard Johnson, M.D., Robert
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Campbell, M.D., and Katherine Brewer, M.D.; giving partial weight to the opinions of John
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Daniel, M.D.; giving great weight to the opinions of Robert Hoskins, M.D., Cynthia
ORDER AFFIRMING DENIAL OF BENEFITS
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1 Collingwood, Ph.D., John Robinson, Ph.D., and Faren Akins, Ph.D.; and dismissing opinions
2 from Leonard Albert, M.D., Ph.D., and Yoshihiro Yamamoto, M.D. with little discussion. Id.
3 The Court disagrees.
4

1.

5

Dr. Johnson testified at the hearing on March 12, 2013. AR at 399-409. He did not

The ALJ Did Not Harmfully Err in Rejecting Dr. Johnson’s Opinions

6 examine Plaintiff, but based his opinions on a review of the medical records. Id. at 399. Dr.
7 Johnson opined that Plaintiff suffered from depression and chronic pain disorder, and met
8 listings 12.04 and 12.07. Id. at 400.
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The ALJ gave Dr. Johnson’s opinions no weight. Id. at 1213. The ALJ reasoned that the

10 medical evidence from the period before Plaintiff’s date last insured did not support Dr.
11 Johnson’s opinions; Dr. Johnson’s opinions were inconsistent with Plaintiff’s providers’
12 treatment notes; Dr. Johnson’s opinions were contradicted by the opinions of examining
13 specialist Linda Miller, D.O.; and Dr. Johnson’s opinions were inconsistent with the fact that
14 Plaintiff did not seek or receive mental health treatment during the period before his date last
15 insured. Id.
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The ALJ did not err in rejecting Dr. Johnson’s opinions. An ALJ may reject a non-

17 examining doctor’s opinions when they are inconsistent with or unsupported by the record as a
18 whole. See 20 C.F.R. § 404.1527(c)(3)-(4). As the hearing testimony revealed, Dr. Johnson’s
19 opinions were not supported by evidence from the period before Plaintiff’s date last insured. See
20 AR at 400-06. Moreover, Dr. Miller’s examination from July 2003 revealed an unremarkable
21 mental status exam, and Plaintiff denied having mental symptoms that would prevent him from
22 working. See id. at 278-80. Plaintiff has not shown that the ALJ erred in evaluating this
23 evidence.
ORDER AFFIRMING DENIAL OF BENEFITS
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Plaintiff argues that Dr. Johnson’s opinions should have been accepted because they were

2 based on his review of all of Plaintiff’s medical records, and were consistent with Dr.
3 Campbell’s opinions. Pl. Op. Br. at 3-4. Plaintiff is asking for a different interpretation of the
4 evidence, but fails to show that the ALJ’s interpretation of that evidence is irrational. Plaintiff
5 has therefore failed to show harmful error. See Thomas, 278 F.3d at 954.
6

2.

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Dr. Campbell examined Plaintiff on April 2, 2003 in connection with his workplace

The ALJ Did Not Harmfully Err in Rejecting Dr. Campbell’s Opinions

8 accident claim. See AR at 267-74. Dr. Campbell opined that Plaintiff had multiple trauma to his
9 cervical spine and low back, bilateral shoulder strain, anxiety/alcoholism, and somatoform type
10 presentation with anxiety, which complicated the physical examination. Id. at 272. Dr.
11 Campbell opined that Plaintiff was “unable to work in any capacity because of [his] severe
12 limitations,” and “would be limited to only sedentary work, at best, alternating sitting and
13 standing.” Id. at 274.
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The ALJ gave Dr. Campbell’s opinions little weight. Id. at 1212. The ALJ reasoned that

15 Dr. Campbell noted evidence of exaggeration, which undermined the reliability of Dr.
16 Campbell’s assessment. Id. The ALJ further reasoned that Dr. Campbell’s opinions were
17 inconsistent with clinical findings from Plaintiff’s treatment providers. Id.
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The ALJ did not harmfully err in rejecting Dr. Campbell’s opinions. An ALJ must

19 provide “specific and legitimate reasons that are supported by substantial evidence in the record”
20 to reject the opinion of an examining doctor when it is contradicted. See Lester v. Chater, 81
21 F.3d 821, 830-31 (9th Cir. 1996) (citing Andrews, 53 F.3d at 1042).
22

The ALJ’s first reason—that Plaintiff exaggerated his symptoms—fails. Dr. Campbell

23 noted that Plaintiff appeared to exaggerate his symptoms. AR at 271. Dr. Campbell’s report
ORDER AFFIRMING DENIAL OF BENEFITS
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1 makes clear that he considered Plaintiff’s exaggeration in forming his opinions. See id. at 2712 73. And Dr. Campbell made a number of objective findings on which he based his opinions.
3 See id. at 271-72. The ALJ irrationally interpreted the evidence in finding that Dr. Campbell’s
4 opinions were unreliable due to Plaintiff’s exaggeration because Dr. Campbell clearly factored
5 that into his opinions.
6

The ALJ’s second reason—that Dr. Campbell’s opinions were inconsistent with the

7 clinical findings of Plaintiff’s treatment providers—withstands scrutiny. As the ALJ noted,
8 Plaintiff’s treating doctor found that Plaintiff had normal muscle strength in all extremities and
9 normal reflexes shortly after the alleged onset date. Id. at 606, 1212. Plaintiff’s treating doctors
10 found that he had normal range of motion, gait, sensation, and reflexes during the alleged
11 disability period. Id. at 590, 619, 1212. Plaintiff has failed to show that this was an irrational
12 interpretation of the evidence, and thus the ALJ did not err in rejecting Dr. Campbell’s opinions
13 on this basis. See Thomas, 278 F.3d at 954.
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Plaintiff has also failed to show harmful error. Although the ALJ’s first reason for

15 rejecting Dr. Campbell’s opinions was erroneous, his second reason was valid. Any error was
16 therefore harmless. See Molina, 674 F.3d at 1115 (quoting Carmickle, 533 F.3d at 1162).
17

3.

18

Dr. Brewer—one of Plaintiff’s treatment providers—issued three opinions. See AR at

The ALJ Did Not Harmfully Err in Rejecting Dr. Brewer’s Opinions

19 629-32. In late 2003, Dr. Brewer opined that Plaintiff could not return to his prior job, but was
20 able to return to light duty work. Id. at 632. Dr. Brewer opined that Plaintiff could sit, stand,
21 and walk for four hours in an eight-hour work day, and lift and carry up to five pounds
22 frequently and six to ten pounds seldomly. Id. at 631. Dr. Brewer opined that Plaintiff could
23 seldom bend, squat, kneel, crawl, climb, or reach above shoulder level, and should avoid
ORDER AFFIRMING DENIAL OF BENEFITS
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1 unprotected heights, being around moving machinery, and being exposure to marked changes in
2 temperature and humidity. Id. Dr. Brewer opined that these restrictions were temporary, and
3 expected them to last six months. Id. at 632.
4

On January 31, 2004, Dr. Brewer opined that Plaintiff could not perform his prior job of

5 heavy equipment operator. Id. at 629. Dr. Brewer opined that Plaintiff could not lift more than
6 20 pounds, and “should work at a sedentary/light job.” Id.
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The ALJ gave Dr. Brewer’s opinions little weight. Id. at 1212. The ALJ reasoned that

8 Dr. Brewer’s 2003 opinions did “not give a reliable longitudinal opinion regarding the claimant’s
9 functioning,” and were inconsistent with Dr. Brewer’s unremarkable physical exams. Id. The
10 ALJ reasoned that the 2003 and 2004 opinions were inconsistent with the clinical findings of
11 Plaintiff’s treatment providers, and “used undefined terms” of light and sedentary work. Id.
12

Plaintiff has failed to show that the ALJ committed harmful error in weighing Dr.

13 Brewer’s opinions. See Molina, 674 F.3d at 1111. Plaintiff devotes one sentence of his opening
14 brief to suggesting that the ALJ erred, noting that “Dr. Brewer was able to base her opinion on
15 her observation that [Plaintiff] ‘walked stiffly,’ and her review of [Plaintiff’s] x-rays and his
16 ‘orthopedic workup.’” Pl. Op. Br. at 7 (quoting AR at 632, 637). Plaintiff merely reiterates this
17 argument on reply. Pl. Reply Br. (Dkt. 19) at 4. This is an alternative explanation for how the
18 ALJ could have weighed Dr. Brewer’s opinions. But it is not an adequately developed argument
19 to establish error. See Indep. Towers of Wash. v. Wash., 350 F.3d 925, 929 (9th Cir. 2003)
20 (holding that the court will “review only issues which are argued specifically and distinctly in a
21 party’s opening brief. . . . [A] bare assertion of an issue does not preserve a claim”) (internal
22 citations and quotation marks omitted); see also Youngblood v. Berryhill, 734 F. App’x 496, 498
23 (9th Cir. 2018).
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1

Furthermore, the ALJ reasonably found that—like Dr. Campbell’s opinions—Dr.

2 Brewer’s opinions were inconsistent with the clinical findings of her treatment providers. See
3 supra Part II.B.2. This reason, standing alone, supports the ALJ’s determination, and therefore
4 the ALJ did not harmfully err rejecting Dr. Brewer’s opinions. See Molina, 674 F.3d at 1115
5 (quoting Carmickle, 533 F.3d at 1162).
6

4.

7

Dr. Daniel was one of Plaintiff’s treating doctors. See AR at 593-94. In November 2002,

The ALJ Did Not Harmfully Err in Evaluating Dr. Daniel’s Opinions

8 Dr. Daniel opined that Plaintiff had not reached maximum medical improvement, but could
9 return to work in a modified form. Id. at 593. Dr. Daniel opined that Plaintiff could lift and
10 carry 11 to 20 pounds frequently; frequently squat and kneel; and occasionally bend, crawl, and
11 climb. Id. at 594. Dr. Daniel opined that Plaintiff should avoid unprotected heights. Id.
12

The ALJ gave Dr. Daniel’s opinions “some weight.” Id. at 1212. He determined that Dr.

13 Daniel’s opinions were “somewhat consistent with the medical evidence during the relevant
14 period.” Id.
15

Plaintiff has failed to show that the ALJ committed harmful error. See Molina, 674 F.3d

16 at 1111. Plaintiff points to other evidence in the record, but fails to explain what error the ALJ
17 committed with respect to Dr. Daniel’s opinions. The RFC accounts for Dr. Daniel’s opined
18 limitations. See id. at 594, 1206. To the extent Plaintiff is arguing that the ALJ erred in
19 accepting Dr. Daniel’s opinions, the ALJ is not required to provide reasons in support of
20 incorporating a medical opinion into the RFC determination. See Turner v. Comm’r of Soc. Sec.
21 Admin., 613 F.3d 1217, 1223 (9th Cir. 2010) (“the ALJ did not need to provide ‘clear and
22 convincing reasons’ for rejecting [a treating doctor’s] report because the ALJ did not reject any
23 of [his] conclusions”). The ALJ thus did not harmfully err in evaluating Dr. Daniel’s opinions.
ORDER AFFIRMING DENIAL OF BENEFITS
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1

5.

The ALJ Did Not Err in Evaluating the Opinions of Dr. Hoskins, Dr.
Collingwood, Dr. Robinson, and Dr. Akins

2
Dr. Hoskins, Dr. Collingwood, Dr. Robinson, and Dr. Akins were all non-examining
3
doctors. See AR at 289-302, 346-47. Dr. Hoskins issued a one-page opinion agreeing with the
4
assessment of physical consultant Kassia Randall. See id. at 281-88, 347. Dr. Collingwood
5
evaluated Plaintiff’s mental health and determined that he did not have a medically determinable
6
impairment other than alcohol abuse. Id. at 289, 297, 301. Dr. Robinson issued an opinion
7
affirming Dr. Collingwood’s evaluation. Id. at 346. Dr. Akins similarly found that there was
8
insufficient information in the record to determine the severity of any work-related limitations
9
due to anxiety or alcohol abuse between Plaintiff’s alleged disability onset date and his date last
10
insured. Id. at 1800-01.
11
The ALJ gave the opinions of Dr. Hoskins, Dr. Collingwood, and Dr. Robinson some
12
weight, while he gave the opinions of Dr. Akins great weight. Id. at 1213. Plaintiff has not
13
shown that the ALJ erred in doing so. An ALJ is not required to provide reasons in support of
14
incorporating a medical opinion into the residual functional capacity determination. See Turner,
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613 F.3d at 1223. Plaintiff merely argues that the ALJ should have weighed the evidence
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differently, which is not a sufficient basis for this Court to reverse. See Thomas, 278 F.3d at 954.
17
Plaintiff has consequently failed to show harmful error.
18
6.
19
20

The ALJ Did Not Harmfully Err in Rejecting the Opinions of Dr. Albert and Dr.
Yamamoto

Plaintiff argues that the ALJ erred in failing to discuss the medical evidence beyond

21 2003. Pl. Op. Br. at 7-8. Plaintiff’s only specific argument here is that the ALJ failed to address
22 the medical evidence from Dr. Albert and Dr. Yamamoto. See id. Because Plaintiff has failed to
23 provide any specificity with respect to any of the other medical evidence after 2003, the Court
ORDER AFFIRMING DENIAL OF BENEFITS
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1 will limit its analysis to the ALJ’s treatment of records from Dr. Albert and Dr. Yamamoto. See
2 Carmickle, 533 F.3d at 1161 n.2 (citing Paladin Assocs., Inc. v. Mont. Power Co., 328 F.3d
3 1145, 1164 (9th Cir. 2003)).
4

Dr. Albert treated Plaintiff in 2008 and 2009. See AR at 303-16, 925-65. The record

5 includes Dr. Albert’s treatment notes, but does not include a specific opinion from him regarding
6 Plaintiff’s functional and work-related abilities. See id. Dr. Yamamoto performed surgery on
7 Plaintiff’s neck in November 2010. Id. at 1158-59. As with Dr. Albert, the record includes Dr.
8 Yamamoto’s treatment notes, but does not include a specific opinion from him regarding
9 Plaintiff’s functional and work-related abilities. See id. at 1146-97.
10

The ALJ gave these opinions “little weight because they do not describe the claimant’s

11 functioning during the period at issue. Furthermore, the medical evidence during the relevant
12 period supports the limitations set forth in the . . . [RFC].” Id. at 1213.
13

Plaintiff has once again failed to show harmful error. The ALJ reasonably determined

14 that records from Dr. Albert and Dr. Yamamoto that were based on treatment five to seven years
15 after Plaintiff’s date last insured did not reliably reflect Plaintiff’s condition prior to the date last
16 insured. See Bodnarchuk v. Barnhart, 70 F. App’x 411, 413 (9th Cir. 2003) (affirming ALJ’s
17 rejection of treating physician’s opinion when it was rendered nearly twenty years after the
18 claimant’s insured status expired). Moreover, the ALJ was only required to “explain why
19 ‘significant probative evidence has been rejected.’” Vincent ex rel. Vincent v. Heckler, 739 F.2d
20 1393, 1394-95 (9th Cir. 1984) (quoting Cotter v. Harris, 642 F.2d 700, 706 (3d Cir. 1981)).
21 Plaintiff has failed to show that evidence from 2008 to 2011 was probative of whether he was
22 disabled in 2003. Plaintiff has consequently failed to show harmful error.
23
ORDER AFFIRMING DENIAL OF BENEFITS
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1

In sum, although the ALJ’s analysis of the medical evidence was not free from error,

2 Plaintiff has failed to show that any of the ALJ’s errors were harmful.
3 C.

The ALJ Did Not Harmfully Err in Evaluating the Lay Witness Testimony

4

Plaintiff argues that the ALJ erred in rejecting the lay witness testimony. Pl. Op. Br. at

5 15-16. Plaintiff’s brother testified at the hearing in 2010 and submitted a written statement. AR
6 at 79-85, 584. Plaintiff’s mother and one of Plaintiff’s friends submitted written statements. Id.
7 at 582-83. Plaintiff referenced these last two statements in his opening brief, but did not make
8 any specific argument that the ALJ erred in considering them. See Pl. Op. Br. at 15-16. The
9 Court therefore does not address whether the ALJ erred in considering the statements from
10 Plaintiff’s mother and friend. See Carmickle, 533 F.3d at 1161 n.2 (citing Paladin Assocs., 328
11 F.3d at 1164).
12

In determining disability, “‘an ALJ must consider lay witness testimony concerning a

13 claimant’s ability to work.” Bruce v. Astrue, 557 F.3d 1113, 1115 (9th Cir. 2009) (quoting Stout
14 v. Comm’r, Soc. Sec. Admin., 454 F.3d 1050, 1053 (9th Cir. 2006)). The ALJ must “give reasons
15 germane to each witness” before he can reject such lay witness evidence. Molina, 674 F.3d at
16 1111 (internal citations and quotation marks omitted). “Further, the reasons ‘germane to each
17 witness’ must be specific.” Bruce, 557 F.3d at 1115 (quoting Stout, 454 F.3d at 1054).
18

Plaintiff’s brother testified at the hearing on March 17, 2010. AR at 79-85. He testified

19 that Plaintiff was always in pain, had trouble sleeping, and had trouble keeping focused. Id. at
20 80. Plaintiff’s brother testified that Plaintiff no longer hunted or fished, and socialized less than
21 he did before his workplace accident. Id. at 84.
22

Plaintiff’s brother also submitted a written statement dated November 2, 2012. Id. at 584.

23 Plaintiff’s brother stated that Plaintiff “has no desire to do anything because he physically isn’t
ORDER AFFIRMING DENIAL OF BENEFITS
- 16

1 able to” and that the two barely speak anymore. Id.
2

The ALJ rejected Plaintiff’s brother’s testimony and written statement for several

3 reasons. Id. at 1214. First, Plaintiff’s brother’s testimony that Plaintiff was unable to do things
4 because of depression was inconsistent with Plaintiff’s testimony at the hearing in 2010. Id.
5 Second, Plaintiff’s “brother’s testimony about pain limiting [Plaintiff was] somewhat
6 inconsistent with the observations by and opinions of treating [doctors] Daniel and Carpenter.”
7 Id. Third, Plaintiff’s brother’s written statement from 2012 reflected Plaintiff’s situation at that
8 time, “not during [the] insured period.” Id. at 1214.2
9

The ALJ’s first reason withstands scrutiny. A conflict between Plaintiff’s testimony and

10 that of his brother is a germane reason to reject Plaintiff’s brother’s testimony. See Lindquist v.
11 Colvin, 588 F. App’x 544, 547 (9th Cir. 2014). Plaintiff testified that he was not depressed,
12 contradicting his brother’s statement that Plaintiff could not do things because of depression.
13 See AR at 65.
14

The ALJ’s second reason is too vague to withstand scrutiny. Although contradiction with

15 the medical evidence is a germane reason to reject lay witness testimony, the ALJ must identify
16 the contradictions on which he relies. See Burrell v. Colvin, 775 F.3d 1133, 1138 (9th Cir. 2014)
17 (“Our decisions make clear that we may not take a general finding . . . and comb the
18 administrative record to find specific conflicts.”). The ALJ did not identify any specific
19 inconsistencies, nor are any readily apparent. See id. at 1214.
20
21
22

2

The ALJ also included a discussion that even if Plaintiff were more limited, the Dictionary of
Occupational Titles contained jobs that Plaintiff could still perform. Id. at 1214. The Court does not
23 address this discussion because the ALJ gave other reasons that are sufficient to justify discounting
Plaintiff’s brother’s testimony.
ORDER AFFIRMING DENIAL OF BENEFITS
- 17

1

The ALJ’s third reason withstands scrutiny. The ALJ reasonably interpreted the evidence

2 in finding that Plaintiff’s brother’s written statement from 2012 did not reflect Plaintiff’s
3 situation prior to the date last insured in 2003. See id.
4

Although the ALJ’s evaluation of Plaintiff’s brother’s testimony and statement was not

5 without error, Plaintiff has failed to show harmful error. The ALJ included valid reasons for
6 rejecting Plaintiff’s brother’s testimony, and those reasons remain valid despite the ALJ’s error.
7 Therefore, the ALJ’s error was harmless. See Molina, 674 F.3d at 1115.
8 D.

The ALJ Did Not Err in Assessing Plaintiff’s RFC and Conducting the Step Five
Evaluation

9
Plaintiff argues that the ALJ erred in assessing Plaintiff’s RFC, and consequently erred at
10
step five of the disability evaluation process. Pl. Op. Br. at 16-17. This argument is derivative
11
of Plaintiff’s other arguments, as it is based on the contention that the ALJ failed to properly
12
evaluate Plaintiff’s symptom testimony, the medical evidence, and the lay witness testimony.
13
See id. Because the Court has found that the ALJ did not err in his assessment of Plaintiff’s
14
testimony, the medical evidence, and the lay witness testimony, Plaintiff’s argument fails. See
15
Stubbs-Danielson v. Astrue, 539 F.3d 1169, 1174 (9th Cir. 2008).
16
III.

CONCLUSION

17
For the foregoing reasons, the Commissioner’s final decision is AFFIRMED and this
18
case is DISMISSED with prejudice.
19

DATED this 9th day of April, 2019.

20

A

21

Ronald B. Leighton
United States District Judge

22
23
ORDER AFFIRMING DENIAL OF BENEFITS
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