Beacock v. Commissioner of Social Security

• Court: District Court, W.D. Washington
• Decided: September 10, 2019
• Docket: 3:19-cv-05169
• Status: Unknown

Opinion

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5 UNITED STATES DISTRICT COURT 6 WESTERN DISTRICT OF WASHINGTON AT SEATTLE 7 8 CHRIS B., 9 Plaintiff, Case No. C19-5169-MLP 10 v. ORDER 11 COMMISSIONER OF SOCIAL SECURITY, 12 Defendant. 13 I. INTRODUCTION 14 Plaintiff seeks review of the denial of his application for Disability Insurance Benefits. 15 Paintiff contends the administrative law judge (“ALJ”) erred in discounting certain medical 16 opinions. (Dkt. # 10 at 1-2.) As discussed below, the Court AFFIRMS the Commissioner’s final 17 decision and DISMISSES the case with prejudice. 18 II. BACKGROUND 19 Plaintiff was born in 1967, has a tenth-grade education, and has worked as a carpet 20 cleaner, recycling truck driver, transfer garbage truck driver, construction driver, and short-haul 21 truck driver. AR at 47, 242. He testified at the 2018 administrative hearing that he started 22 working again part-time after the adjudicated period, in 2016. Id. at 751-52. 23 1 In July 2013, Plaintiff applied for benefits, alleging disability as of June 17, 2013.1 AR at 2 99, 184-90. Plaintiff’s application was denied initially and on reconsideration, and Plaintiff 3 requested a hearing. Id. at 132-34, 136-42. After the ALJ conducted a hearing in December 2015 4 (id. at 39-67), the ALJ issued a decision finding Plaintiff not disabled. Id. at 17-33. The Appeals

5 Council denied Plaintiff’s request for review (id. at 1-4), but the U.S. District Court for the 6 Western District of Washington granted the parties’ stipulation to reverse the Commissioner’s 7 decision and remand the case for further administrative proceedings. Id. at 798. 8 On remand, the ALJ held a hearing in October 2018 (AR at 744-65) and subsequently 9 found Plaintiff not disabled. Id. at 635-52. Utilizing the five-step disability evaluation process,2 10 the ALJ found: 11 Step one: Plaintiff has not engaged in substantial gainful activity during the time between his amended alleged onset date (January 1, 2014) and his date last insured (“DLI”) 12 (December 31, 2015).

13 Step two: Through the DLI, Plaintiff had the following severe impairments: obesity, musculoskeletal conditions described as cervical and lumbar spine degenerative disc 14 disease, rotator cuff injury, and right knee arthritis; and mental health conditions described as borderline intellectual functioning, learning disorder, depression, anxiety, 15 attention deficit disorder, and alcohol abuse in partial remission.

16 Step three: Through the DLI, these impairments did not meet or equal the requirements of a listed impairment.3 17 Residual Functional Capacity (“RFC”): Through the DLI, Plaintiff could perform light 18 work with additional limitations: he could stand and walk two hours in an eight-hour workday, and sit six hours in an eight-hour workday. He could occasionally climb ramps 19 and stairs. He could not climb ladders, ropes, or scaffolds. He could frequently balance, stoop, kneel, crouch and crawl. He could occasionally reach overhead bilaterally. He 20 should avoid concentrated exposure to vibration and hazards such as unprotected heights and exposed moving mechanical parts. He could understand and remember simple 21 instructions and known detailed tasks. He had sufficient concentration, persistence, or 22 1 At the first administrative hearing, Plaintiff amended his alleged onset date to January 1, 2014. AR at 23 43. 2 20 C.F.R. § 404.1520. 3 20 C.F.R. Part 404, Subpart P, Appendix 1. 1 pace to complete simple, routine tasks for a normal workday and workweek with normal breaks. He could adjust to simple changes in workplace procedures. 2 Step four: Through the DLI, Plaintiff could not perform past relevant work. 3 Step five: As there are jobs that exist in significant numbers in the national economy that 4 Plaintiff could have performed during the adjudicated period, Plaintiff was not disabled at any time during the adjudicated period. 5 Id. 6 Plaintiff now seeks judicial review of the ALJ’s decision. 7 III. LEGAL STANDARDS 8 Under 42 U.S.C. § 405(g), this Court may set aside the Commissioner’s denial of social 9 security benefits when the ALJ’s findings are based on legal error or not supported by substantial 10 evidence in the record as a whole. Bayliss v. Barnhart, 427 F.3d 1211, 1214 (9th Cir. 2005). As a 11 general principle, an ALJ’s error may be deemed harmless where it is “inconsequential to the 12 ultimate nondisability determination.” Molina v. Astrue, 674 F.3d 1104, 1115 (9th Cir. 2012) 13 (cited sources omitted). The Court looks to “the record as a whole to determine whether the error 14 alters the outcome of the case.” Id. 15 “Substantial evidence” is more than a scintilla, less than a preponderance, and is such 16 relevant evidence as a reasonable mind might accept as adequate to support a conclusion. 17 Richardson v. Perales, 402 U.S. 389, 401 (1971); Magallanes v. Bowen, 881 F.2d 747, 750 (9th 18 Cir. 1989). The ALJ is responsible for determining credibility, resolving conflicts in medical 19 testimony, and resolving any other ambiguities that might exist. Andrews v. Shalala, 53 F.3d 20 1035, 1039 (9th Cir. 1995). While the Court is required to examine the record as a whole, it may 21 neither reweigh the evidence nor substitute its judgment for that of the Commissioner. Thomas v. 22 Barnhart, 278 F.3d 947, 954 (9th Cir. 2002). When the evidence is susceptible to more than one 23 rational interpretation, it is the Commissioner’s conclusion that must be upheld. Id. 1 IV. DISCUSSION 2 Plaintiff challenges the ALJ’s assessment of certain medical opinions, arguing that the 3 ALJ’s reasons for discounting them were erroneous. For the reasons explained below, the Court 4 finds no harmful legal error in the ALJ’s assessment of the disputed medical opinion evidence.

5 At the outset, the Court notes that Plaintiff also contends that the ALJ read the remand 6 order too narrowly and erroneously incorporated much of the reasoning from her prior decision 7 into her new decision. (Dkt. # 10 at 3.) Plaintiff’s argument depends on a mischaracterization of 8 the remand order: the ALJ was not specifically instructed to consider or reconsider any medical 9 opinion other than an opinion written by Jerry Fisher, M.D. See AR at 798, 807-08. The ALJ was 10 instructed to reconsider other parts of the decision “as necessary” (id. at 798), and the fact that 11 the ALJ incorporated much of her prior rationale suggests that she concluded it was not 12 necessary to rewrite those portions. This conclusion does not demonstrate an erroneous reading 13 of the remand order, and the Court rejects Plaintiff’s suggestion otherwise. 14 A. Legal standards

15 In general, more weight is given to a treating physician’s opinion than to that of a non- 16 treating physician because a treating physician “is employed to cure and has a greater 17 opportunity to know and observe the patient as an individual.” Magallanes, 881 F.2d at 751; see 18 also Orn v. Astrue, 495 F.3d 625, 631 (9th Cir. 2007). A treating physician’s opinion, however, 19 is not necessarily conclusive as to either a physical condition or the ultimate issue of disability, 20 and can be rejected, whether or not that opinion is contradicted. Magallanes, 881 F.2d at 751. If 21 an ALJ rejects the opinion of a treating or examining physician, the ALJ must give clear and 22 convincing reasons for doing so if the opinion is not contradicted by other evidence, and specific 23 and legitimate reasons if it is. Reddick v. Chater, 157 F.3d 715, 725 (9th Cir. 1988). “This can be 1 done by setting out a detailed and thorough summary of the facts and conflicting clinical 2 evidence, stating his interpretation thereof, and making findings.” Id. (citing Magallanes, 881 3 F.2d at 751). The ALJ must do more than merely state his/her conclusions. “He must set forth his 4 own interpretations and explain why they, rather than the doctors’, are correct.” Id. (citing

5 Embrey v. Bowen, 849 F.2d 418, 421-22 (9th Cir. 1988)). Such conclusions must at all times be 6 supported by substantial evidence. Reddick, 157 F.3d at 725. 7 The opinions of examining physicians are to be given more weight than non-examining 8 physicians. Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1995). Like treating physicians, the 9 uncontradicted opinions of examining physicians may not be rejected without clear and 10 convincing evidence. Id. An ALJ may reject the controverted opinions of an examining 11 physician only by providing specific and legitimate reasons that are supported by the record. 12 Bayliss, 427 F.3d at 1216. 13 B. Peter Pfeiffer, M.D. 14 Dr. Pfeiffer examined Plaintiff in October 2011 and his medical source statement reads in

15 relevant part: “The claimant can lift or carry 10 pounds continuously; due to his shoulder pain, 16 neck pain and knee pain. . .There are manipulative limitations in that the claimant should reach 17 with either arm only occasionally, due to his bilateral shoulder pain.” AR at 439-40. 18 The ALJ noted that Dr. Pfeiffer did not indicate the maximum weight Plaintiff could lift 19 or carry, but inferred that because he opined that Plaintiff could lift/carry 10 pounds 20 continuously, he could lift more weight less frequently. AR at 646. This is a reasonable 21 inference, and in any event the ALJ’s RFC assessment is not inconsistent with Dr. Pfeiffer’s 22 opinion as to lifting/carrying because the ALJ found Plaintiff capable of lifting/carrying 10 23 pounds frequently, as did Dr. Pfeiffer. See id. at 641 (citing 20 C.F.R. § 1567(b) (defining light 1 work to require lifting/carrying 10 pounds frequently)). Accordingly, there is no error in the 2 ALJ’s assessment of Dr. Pfeiffer’s opinion as to Plaintiff’s lifting/carrying capacity. 3 The ALJ also noted that although Dr. Pfeiffer opined that Plaintiff was limited to 4 occasional reaching in any direction, this opinion was undermined by the lack of clinical signs

5 documented during the examination that would support this conclusion as well as by Plaintiff’s 6 lack of treatment for his shoulder condition and his daily activities. AR at 648. Instead, the ALJ 7 found Plaintiff was limited to occasional overhead reaching, but had no restrictions in reaching 8 in other directions. Id. Plaintiff disagrees with the ALJ’s characterization of Dr. Pfeiffer’s 9 objective findings, noting that Dr. Pfeiffer found limited range of motion in Plaintiff’s neck and 10 tenderness in muscles in his neck and upper back. (Dkt. # 10 at 4-5 (citing AR at 437-39).) Even 11 if those findings could provide some objective basis for Dr. Pfeiffer’s opinion, Plaintiff has not 12 shown that the ALJ’s other reasons were wholly erroneous. 13 Specifically, the ALJ found that Plaintiff failed to obtain treatment for his shoulder 14 condition since the alleged onset of disability in January 2014, and that this lack of treatment

15 undermines Dr. Pfeiffer’s opinion that this condition causes severe limitations. AR at 648. 16 Plaintiff disputes this, claiming that he did in fact have treatment for his shoulder since 2013. 17 (Dkt. # 10 at 5 (citing AR at 472, 547-59, 890-1069).) Some of Plaintiff’s citations do not 18 reference post-2013 treatment for his shoulders, and some of the cited evidence indicates that he 19 is less limited as to reaching than even the ALJ found. See, e.g., AR at 472 (2011 document 20 mentioning shoulder rehabilitation in the past), 547-49 (2014 appointment note mentioning 21 shoulder pain and the need for an updated MRI), 920 (December 2013 examination report 22 indicating no reaching limitations). But to the extent that some of the evidence could be 23 construed as some degree of treatment for his shoulders (e.g., id. at 930-1068), those treatment 1 notes also document activities that contradict Dr. Pfeiffer’s opinion regarding reaching, such as 2 Plaintiff’s work activities during the adjudicated period as well as motorcycle riding. See, e.g., 3 id. at 948 (Plaintiff reported driving a limousine for eight hours for work in December 2014), 4 999 (Plaintiff reported in November 2014 that he “helped his boss take a roof off a shed and then

5 will put a metal roof on today”), 1003 (Plaintiff reported going on a “short motorcycle ride” in 6 December 2014), 1005 (December 2014 reports driving a limousine for four hours at a time for 7 work), 1014 (same), 1016 (same), 1018 (same), 1046 (Plaintiff reports working as a 8 housecleaner in February 2015). Other treatment notes cited by Plaintiff also mention that he was 9 working full-time or part-time during the adjudicated period. See id. at 902, 903, 904, 905 10 (working less than 10 hours/week as a housecleaner), 1057, 1059, 1061, 1067 (worked an eight- 11 hour day in May 2015). Thus, the portions of the record highlighted by Plaintiff do not 12 corroborate Dr. Pfeiffer’s opinion, and instead severely undermine it. 4 13 Plaintiff also argues that because Dr. Pfeiffer was aware of his daily activities, he must 14 have believed that Plaintiff’s activities were consistent with his opinion. (Dkt. # 10 at 5.) Dr.

15 Pfeiffer’s description of Plaintiff’s activities is not as extensive as the ALJ’s summary, however. 16 Compare AR at 437-38 (Dr. Pfeiffer’s summary) with id. at 645-46 (the ALJ’s summary). 17 Furthermore, Dr. Pfeiffer opined as to Plaintiff’s condition in 2011 in light of the activities he 18 knew of at that time, whereas the ALJ considered Plaintiff’s capabilities and activities during the 19 adjudicated period, years after Dr. Pfeiffer’s evaluation. The Court finds that the ALJ reasonably 20 construed Dr. Pfeiffer’s opinion regarding Plaintiff’s reaching to be inconsistent with his 21 activities, and did not err in discounting the opinion on that basis. See Rollins v. Massanari, 261 22

23 4 The Court is aware that the ALJ did not specifically mention Plaintiff’s work activities during the adjudicated period in her decision, but the Court discusses that evidence here for the purpose of explaining why the treatment notes cited by Plaintiff do not in fact support his argument on appeal. 1 F.3d 853, 856 (9th Cir. 2001) (affirming an ALJ’s rejection of a treating physician’s opinion that 2 was inconsistent with the claimant’s level of activity). 3 C. Paul Tesar, M.D., and Darin Swan, MPT, CSCS 4 The record contains several opinions — including those from Dr. Tesar and Mr. Swan —

5 regarding Plaintiff’s capabilities after his 2008 shoulder injuries. Dr. Tesar opined in February 6 2010 that Plaintiff should avoid repetitive overhead lifting or shoulder-level work, and should 7 not lift more than 10 pounds overhead or at shoulder level. AR at 348. Mr. Swan opined in April 8 2010 that Plaintiff could perform light to medium work at the waist level and above, but could 9 rarely perfrom overhead manipulation or forward-reaching activities, and could only 10 occasionally perform typing and driving. Id. at 422. The ALJ discounted those opinions as 11 remote in time, and inconsistent with the more recent evidence regarding Plaintiff’s shoulder 12 range of motion and conservative treatment for the shoulder conditions. Id. at 649. The ALJ 13 noted that the State agency physicians were able to review the earlier opinions in the context of 14 the longitudinal record, and found that those opinions were entitled to more weight than the

15 earlier opinions. Id. 16 Plaintiff contends that the ALJ erred in discounting Dr. Tesar’s and Mr. Swan’s opinions 17 in light of subsequent evidence, because the ALJ failed to explain how the subsequent evidence 18 contradicted the opinions of Dr. Tesar and Mr. Swan, and the ALJ also failed to note that at least 19 one subsequent opinion from Dr. Fisher actually corroborated the opinions of Dr. Tesar and Mr. 20 Swan. (Dkt. # 10 at 7.) This argument is disingenuous in light of the ALJ’s thorough discussion 21 of the subsequent medical evidence in other parts of the decision, as well as her explicit 22 resolution of the conflicts in the evidence regarding Plaintiff’s lifting, reaching, and manipulative 23 limitations. AR at 642-48. The ALJ also discussed Dr. Fisher’s opinion and explained why she 1 discounted it (id. at 648), and thus Dr. Fisher’s opinion does not constitute a basis for assigning 2 more weight to the opinions of Dr. Tesar and Mr. Swan. 3 Furthermore, the ALJ did not err in considering the extent to which Dr. Tesar and Mr. 4 Swan were familiar with the longitudinal record. See 20 C.F.R. § 404.1527(c)(6) (“[T]he extent

5 to which a medical source is familiar with the other information in your case record [is a] 6 relevant factor[] that we will consider in deciding the weight to give to a medical opinion.”). The 7 ALJ accurately noted that Dr. Tesar and Mr. Swan were less familiar with the record before the 8 ALJ than the State agency doctors, and this is a legitimate reason to give less weight to their 9 opinions. AR at 648. 10 Plaintiff also disputes whether his subsequent normal range of shoulder motion 11 contradicts the opinions of Dr. Tesar and Mr. Swan. Even if this rationale is not legitimate, the 12 ALJ properly went on to note that Plaintiff received routine and conservative treatment for his 13 shoulder conditions after the 2008 shoulder surgery. AR at 649. As discussed above, there is 14 evidence of some treatment for Plaintiff’s shoulder condition, but Plaintiff has not cited any

15 evidence contradicting the ALJ’s characterization of this treatment as routine and conservative. 16 Chiropractic treatment and physical therapy are reasonably characterized as routine or 17 conservative forms of treatment, and the evidence also shows that treatment was effective in 18 alleviating Plaintiff’s pain and increasing his functionality. See, e.g., id. at 902-04 (documenting 19 Plaintiff’s ability to work full-time March-May 2015), 971 (Plaintiff rates his pain as 1-2 on a 1- 20 10 scale), 974 (Plaintiff’s pain has improved to “mild” by March 2015). 21 Although Plaintiff in his briefing describes his conditions as degenerative and expected to 22 worsen over time (dkt. # 10 at 9), he also reported to his provider that he was able to work as a 23 housecleaner for four hours per day in 2017, which would represent an increase in functionality 1 from the limitations he alleged during the adjudicated period. See AR at 1195. In any event, 2 Plaintiff has not shown that the ALJ erred in considering the nature of his shoulder treatment, or 3 in discounting Dr. Tesar’s and Mr. Swan’s opinion based on that routine, conservative treatment. 4 See Rollins, 261 F.3d at 856 (upholding rejection of treating physician’s opinion based on

5 discrepancy between the opinion and the physician’s description of the claimant and prescription 6 of a conservative course of treatment). To the extent that any of the ALJ’s reasons to discount the 7 opinions of Dr. Tesar and Mr. Swan are erroneous, the ALJ provided independent specific and 8 legitimate reasons that renders the erroneous reasoning harmless. See Carmickle v. Comm’r of 9 Social Sec. Admin., 533 F.3d 1155, 1162-63 (9th Cir. 2008). 10 D. Dr. Fisher 11 Dr. Fisher, a treating physician, opined in January 2014 that Plaintiff had “multiple 12 disabilities precluding repetitive physical work.” AR at 472. In April 2015, he opined that 13 Plaintiff could sit for an unlimited time and stand/walk less than two hours in an eight-hour 14 workday, and lift/carry items up to 20 pounds only 0-5% of a workday. Id. at 921-26.

15 The ALJ discounted Dr. Fisher’s January 2014 statement as vague because “repetitive 16 physical work” is not defined and because this comment does not pertain to Plaintiff’s RFC. AR 17 at 648. Plaintiff argues that Dr. Fisher’s comment “lends support” to the opinions of Drs. Pfeiffer 18 and Tesar, and Mr. Swan, but this argument does not address the fundamental vagueness of Dr. 19 Fisher’s statement. (Dkt. # 10 at 12.) Plaintiff has not shown that the ALJ was unreasonable in 20 finding Dr. Fisher’s January 2014 statement vague, because the terms used by Dr. Fisher are not 21 defined or clear in their meaning, and thus the Court finds the ALJ’s interpretation was not 22 erroneous. 23 1 The ALJ discounted Dr. Fisher’s April 2015 opinion because it was rendered after only 2 three visits in 2011, was unexplained, and was inconsistent with the many normal objective 3 findings as well as the routine, conservative course of treatment during the adjudicated period. 4 AR at 648-49. The Court will consider each of these reasons in turn. As to the first reason, it

5 appears that the ALJ misread Dr. Fisher’s opinion as indicating that he saw Plaintiff three times 6 in 2011; Dr. Fisher wrote that he had seen Plaintiff three times “from March 2011, including 7 today (April 22, 2015).” Id. at 649, 921. That Dr. Fisher counted the April 2015 appointment as 8 one of the three appointments suggests that he intended to indicate that he had seen Plaintiff 9 three times between March 2011 and April 2015. In any event, the ALJ did not err in noting the 10 limited nature of Plaintiff’s treating relationship with Dr. Fisher, even if she erred in finding that 11 Dr. Fisher only treated Plaintiff in 2011. See 20 C.F.R. § 404.1527(c)(6) (“[T]he extent to which 12 a medical source is familiar with the other information in your case record [is a] relevant factor[] 13 that we will consider in deciding the weight to give to a medical opinion.”). Although Plaintiff 14 suggests that Dr. Fisher must have reviewed notes from other providers in his clinic (dkt. # 10 at

15 12), there is no indication on Dr. Fisher’s opinion that he did so and the ALJ’s failure to engage 16 in such speculation is not unreasonable or erroneous. Thus, although the ALJ inaccurately 17 described the timing of Plaintiff’s appointments with Dr. Fisher, this error is harmless because 18 the limited number of appointments is nonetheless a valid reason to discount Dr. Fisher’s 19 opinion, because it suggests that he was not particularly familiar with Plaintiff’s longitudinal 20 functionality. 21 Next, the ALJ found that Dr. Fisher’s opinion was unexplained. AR at 649. Plaintiff 22 contends that this conclusion was “unsupported by reasoning” (dkt. # 10 at 13), but it is unclear 23 how much more reasoning the ALJ could have provided with respect to Dr. Fisher’s lack of 1 explanation. The April 2015 opinion is a checkbox form, which by its nature does not lend itself 2 to extensive explanation, and furthermore Dr. Fisher left blank a section asking for explanation 3 of his opinions as to Plaintiff’s sitting, standing, and walking limitations. AR at 924. The ALJ 4 properly considered the extent to which Dr. Fisher explained his opinions regarding Plaintiff’s

5 limitations. See 20 C.F.R. § 404.1527(c)(3) (“The more a medical source presents relvant 6 evidence to support a medical opinion, particularly medical signs and laboratory findings, the 7 more weight we will give that medical opinion. The better explanation a source provides for a 8 medical opinion, the more weight we will give that medical opinion.”). 9 Lastly, the ALJ did not err in finding Dr. Fisher’s conclusions to be inconsistent with the 10 objective evidence and treatment history. The ALJ noted, for example, that Plaintiff exhibited 11 normal gait in most examinations (AR at 649), and yet Dr. Fisher opined that Plaintiff “can’t 12 walk” (id. at 924). And as discussed above, Dr. Fisher’s opinions regarding Plaintiff’s shoulder 13 limitations is inconsistent with his routine, conservative treatment for this condition. These 14 inconsistencies are a specific, legitimate reason to discount Dr. Fisher’s opinion. See Tommasetti

15 v. Astrue, 533 F.3d 1035, 1041 (9th Cir. 2008) (not improper to reject an opinion presenting 16 inconsistencies between the opinion and the medical record). 17 Because the ALJ provided multiple specific, legitimate reasons to discount Dr. Fisher’s 18 opinions, the ALJ’s assessment of that evidence is affirmed. 19 E. Cheryl Brischetto, Ph.D. 20 Dr. Brischetto examined Plaintiff in January 2011 and provided recommendations 21 regarding workplace accommodations in connection with his vocational rehabilitation. AR at 22 351-61. The ALJ noted that Dr. Brischetto found that Plaintiff had auditory processing and 23 learning difficulties, and recommended that directions to be presented to him slowly, one or two 1 at a time, without background noise. Id. at 649-50 (referencing id. at 360). The ALJ found that 2 Plaintiff had been able to perform skilled work before and after Dr. Brischetto’s examination, 3 without the benefit of these accommodations. Id. at 650. The ALJ also noted that Dr. Brischetto 4 diagnosed Plaintiff with attention deficit/hyperactivity disorder (“ADHD”) (id. at 361), but that

5 Plaintiff had never had any treatment for this condition and thus the ALJ found that it was less 6 limiting than alleged. Id. at 644-45, 650. 7 Plaintiff argues that his work history does not contradict Dr. Brischetto’s opinion because 8 his work as a truck driver did not involve processing auditory information. (Dkt. # 10 at 14-15.) 9 Plaintiff cites no authority for this proposition, and in any event the ALJ noted that Plaintiff’s 10 past jobs involved more than simple instructions, which would seem to be inconsistent with Dr. 11 Brischetto’s recommendations. AR at 650. Furthermore, Dr. Brischetto recommended the 12 elimination of auditory distractions and Plaintiff emphasizes this recommendation (dkt. # 10 at 13 15), but driving a garbage truck or a tractor is “loud” work, which again suggests that Plaintiff 14 was able to work without Dr. Brischetto’s recommended accommodations. See Dictionary of

15 Occupational Titles (“DOT”) 905.663-010, 1991 WL 687707 (defining the garbage collector 16 driver job as having a “loud” noise level); DOT 904-383-010, 1991 WL 687703 (same, as to the 17 tractor-trailer-truck driver job). The ALJ reasonably found Plaintiff’s work history to be 18 inconsistent with the recommendations listed by Dr. Brischetto. 19 Plaintiff also disputes the ALJ’s understanding of the connection between Dr. 20 Brischetto’s ADHD diagnosis and her recommendations. Plaintiff contends that because Dr. 21 Brischetto did not tie her recommendations regarding the need for auditory/learning 22 accommodations to Plaintiff’s ADHD, the ALJ erred in discounting Dr. Brischetto’s conclusions 23 as influenced by discounted ADHD symptoms. (Dkt. # 10 at 15-16.) But the body of Dr. 1 Brischetto’s opinion does connect Plaintiff’s ADHD with his distractibility, as well as his need 2 for additional accommodations to help him keep track of tasks, and these accommodations were 3 mentioned in the paragraph of Dr. Brischetto’s opinion that the ALJ discounted. AR at 356. 4 Thus, because it does not appear that Dr. Brischetto compartmentalized her accommodations

5 according to diagnosis, as Plaintiff suggests, the ALJ reasonably found that her discounting of 6 Plaintiff’s ADHD symptoms impacted the probative value of Dr. Brischetto’s opinion. 7 Because the ALJ provided specific, legitimate reasons to discount Dr. Brischetto’s 8 opinion, this portion of the ALJ’s decision is affirmed. 9 V. CONCLUSION 10 For the foregoing reasons, the Commissioner’s final decision is AFFIRMED and this 11 case is DISMISSED with prejudice. 12 Dated this 10th day of September, 2019. 13 A 14 MICHELLE L. PETERSON United States Magistrate Judge 15 16 17 18 19 20 21 22 23