Blodgett v. Commissioner of Social Security

• Court: District Court, W.D. Washington
• Decided: September 1, 2020
• Docket: 3:20-cv-05012
• Status: Unknown

Opinion

1 2 3 4

5 UNITED STATES DISTRICT COURT 6 WESTERN DISTRICT OF WASHINGTON AT TACOMA 7 8 JAMI B., 9 Plaintiff, Case No. C20-5012-MLP 10 v. ORDER 11 COMMISSIONER OF SOCIAL SECURITY, 12 Defendant. 13

14 I. INTRODUCTION 15 Plaintiff seeks review of the denial of her application for Disability Insurance Benefits. 16 Plaintiff contends the administrative law judge (“ALJ”) erred by: (1) failing to properly assess 17 the medical opinion evidence; (2) failing to properly evaluate Plaintiff’s subjective complaints; 18 and (3) that new evidence submitted to the Appeals Council since the ALJ’s determination 19 supports remand of this matter. (Dkt. # 10 at 1.) As discussed below, the Court AFFIRMS the 20 Commissioner’s final decision and DISMISSES the case with prejudice. 21 II. BACKGROUND 22 Plaintiff was born in 1972, has a GED, and has past relevant work history as a dental 23 assistant. AR at 88-89. Plaintiff was last gainfully employed in December 2016. Id. at 78. 1 On March 17, 2017, Plaintiff applied for benefits, alleging disability as of December 30, 2 2016. AR at 76. Plaintiff’s applications were denied initially on July 18, 2017, and on 3 reconsideration on September 25, 2017, and Plaintiff requested a hearing. Id. After the ALJ 4 conducted a hearing on September 18, 2018, the ALJ issued a decision finding Plaintiff not

5 disabled. Id. 6 Utilizing the five-step disability evaluation process,1 the ALJ found:

7 Step one: Plaintiff has not engaged in substantial gainful activity since December 30, 2016 (20 C.F.R. 404.1571 et seq.). 8 Step two: Plaintiff has the following severe impairments: status-post left leg surgery and 9 adjustment disorder with depression (20 C.F.R. § 404.1520(c)).

10 Step three: These impairments do not meet or equal the requirements of a listed impairment.2 11 Residual Functional Capacity: Claimant can perform a restricted light level of work, to 12 wit: Plaintiff can lift/carry 20 pounds occasionally and 10 pounds frequently; stand and/or walk for four hours in an eight-hour workday; and sit for at least six hours in an eight- 13 hour workday. Additionally, Claimant can perform no climbing of ladders, ropes and scaffolds; occasional climbing of stairs and ramps; occasional crawling, stooping, 14 kneeling, and crouching; occasional use of foot controls with the left lower extremity; and have occasional exposure to vibration and extreme cold temperatures. The claimant 15 can understand, remember, and apply short, simple instructions; perform routine tasks, but not in a fast-paced, production type environment; make simple decisions; 16 occasionally interact with the general public; and have occasional exposure to workplace changes. 17 Step four: Plaintiff is unable to perform any past relevant work (20 C.F.R. § 404.1565). 18 Step five: As there are jobs that exist in significant numbers in the national economy that 19 Plaintiff can perform, Plaintiff is not disabled (20 C.F.R. §§ 404.1569, 404.1569(a)).

20 AR at 78-90. As the Appeals Council denied Plaintiff’s request for review, the ALJ’s decision is 21 the Commissioner’s final decision. Id. at 1-3. Plaintiff appealed the final decision of the 22 Commissioner to this Court. (Dkt. # 1.) 23 1 20 C.F.R. §§ 404.1520, 416.920. 2 20 C.F.R. Part 404, Subpart P. Appendix 1. 1 After the ALJ’s decision, Plaintiff submitted additional medical record evidence 2 concerning her Crohn’s Disease to the Appeals Council. AR at 2. This evidence consisted of 3 medical records from: (1) Montesano Internal Medicine Clinic, dated September 2018 through 4 March 2019; (2) Olympia Orthopaedic Associates, dated October 2018; and (3) Gregory

5 Bogdanovich, O.D., dated March 2018 through January 2019. Id. On November 8, 2019, the 6 Appeals Council denied Plaintiff’s request, finding the additional evidence did not show a 7 reasonable probability that it would change the outcome of the decision. Id. at 2, 4. 8 III. LEGAL STANDARDS 9 Under 42 U.S.C. § 405(g), this Court may set aside the Commissioner’s denial of social 10 security benefits when the ALJ’s findings are based on legal error or not supported by substantial 11 evidence in the record as a whole. Bayliss v. Barnhart, 427 F.3d 1211, 1214 (9th Cir. 2005). As a 12 general principle, an ALJ’s error may be deemed harmless where it is “inconsequential to the 13 ultimate nondisability determination.” Molina v. Astrue, 674 F.3d 1104, 1115 (9th Cir. 2012) 14 (cited sources omitted). The Court looks to “the record as a whole to determine whether the error

15 alters the outcome of the case.” Id. 16 “Substantial evidence” is more than a scintilla, less than a preponderance, and is such 17 relevant evidence as a reasonable mind might accept as adequate to support a conclusion. 18 Richardson v. Perales, 402 U.S. 389, 401 (1971); Magallanes v. Bowen, 881 F.2d 747, 750 (9th 19 Cir. 1989). The ALJ is responsible for determining credibility, resolving conflicts in medical 20 testimony, and resolving any other ambiguities that might exist. Andrews v. Shalala, 53 F.3d 21 1035, 1039 (9th Cir. 1995). While the Court is required to examine the record as a whole, it may 22 neither reweigh the evidence nor substitute its judgment for that of the Commissioner. Thomas v. 23 1 Barnhart, 278 F.3d 947, 954 (9th Cir. 2002). When the evidence is susceptible to more than one 2 rational interpretation, it is the Commissioner’s conclusion that must be upheld. Id. 3 IV. DISCUSSION 4 A. The ALJ Did Not Err in Evaluating the Medical Opinion Evidence

5 In general, more weight should be given to the opinion of a treating doctor than to a 6 non-treating doctor, and more weight to the opinion of an examining doctor than to a 7 non-examining doctor. Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1996). Where not 8 contradicted by another doctor, a treating or examining doctor’s opinion may be rejected only for 9 “clear and convincing” reasons. Id. (quoting Baxter v. Sullivan, 923 F.2d 1391, 1396 (9th Cir. 10 1991)). Where contradicted, a treating or examining doctor’s opinion may not be rejected 11 without “‘specific and legitimate reasons’ supported by substantial evidence in the record for so 12 doing.” Lester, 81 F.3d at 830-31 (quoting Murray v. Heckler, 722 F.2d 499, 502 (9th Cir. 13 1983)). 14 1. Yong K. Shin, M.D.

15 Plaintiff initially argues the ALJ improperly rejected the opinion of Dr. Yong K. Shin. 16 (Dkt. # 10 at 6-8.) She argues the ALJ erred in relying on the State Agency non-examining 17 medical consultants to reject Dr. Shin’s primary treating opinion. (Id. at 6.) Plaintiff additionally 18 argues the ALJ erred in discounting Dr. Shin’s check-box opinion, finding his opinion was 19 inconsistent with the objective medical record, and determining it was internally inconsistent 20 with his own clinical findings. (Id.) 21 Dr. Shin is Plaintiff’s primary care physician. AR at 86. In August 2018, Dr. Shin offered 22 a comprehensive physical function assessment, covering a treatment period from December 2016 23 to August 2018, which found Plaintiff physically limited since December 2016. Id. at 969-71. 1 Dr. Shin opined Plaintiff was limited in the following ways: (1) she could sit 30 minutes at a 2 time for two hours per day; (2) she could stand/walk 30 minutes at a time for four hours per day; 3 (3) she would require a job that permits shifting positions at will; (4) she would require 4 unscheduled breaks two to four times per day, at a length of 10 to 20 minutes each; and (5) she

5 could lift less than 10 pounds and engage in postural activities occasionally. Id. at 969-71. Dr. 6 Shin additionally opined she would need to be off-task 20 percent of the day, absent up to two 7 days per week, and that her legs would not need to be elevated with prolonged periods of sitting. 8 Id. 9 In his decision, the ALJ gave little weight to Dr. Shin’s opinion because he determined it 10 was not supported by his own objective examinations of Plaintiff nor consistent with other 11 objective medical evidence in the record. AR at 87. The ALJ specifically noted Plaintiff’s gait 12 was normal at most of her visits to Dr. Shin and that Dr. Shin’s opinion was inconsistent with her 13 treatment notes from Dr. Ryan Halpin, which demonstrated she exhibited full muscle strength in 14 all her extremities and no motor function difficulties. Id. at 87, 876, 914. The ALJ also

15 discounted Dr. Shin’s opinion on the basis it was done in a checklist-style form without rationale 16 given for the functional limitations opined. Id. at 87. 17 Here, the ALJ reasonably rejected Dr. Shin’s opinion. Plaintiff primarily disputes the 18 weight afforded to Dr. Shin’s opinion because the State Agency consultants were afforded 19 significant weight (AR at 87) despite primarily reviewing Dr. Shin’s findings as a treating 20 provider (id. at 181-85, 188, 197-203, 206, 210). (Dkt. # 10 at 6.) However, the ALJ did not 21 discount Dr. Shin’s opinion solely on the basis he credited the State Agency consultants over Dr. 22 Shin. See AR at 86. Instead, the ALJ found Dr. Shin’s opined limitations were either inconsistent 23 1 with Dr. Shin’s own findings, Dr. Halpin’s findings, the medical record, or that Dr. Shin failed to 2 give adequate explanation for the limitations opined. Id. 3 In considering the reasons given by the ALJ, it is clear Dr. Shin’s physical examination 4 findings are reasonably inconsistent with the limitations opined and the physical examination

5 findings of Dr. Halpin. See Tommasetti v. Astrue, 533 F.3d 1035, 1041 (9th Cir. 2008) (not 6 improper to reject an opinion presenting inconsistencies between the opinion and the medical 7 record). While Dr. Shin opined Plaintiff’s ability to walk and stand was limited, his physical 8 findings during her appointments routinely demonstrated she had a normal gait during the 9 treatment period. AR at 87, 813, 815, 901, 939-40, 952, 955. Dr. Halpin’s examination in June 10 2017 noted Plaintiff had a mildly antalgic gait, but full muscle strength in all her extremities, 11 normal muscle bulk and tone, full sensation except for dullness over the medial left calf, and 12 normal reflexes. Id. at 87, 876. Dr. Halpin’s examination in October 2017 additionally noted 13 Plaintiff could walk without difficulty. Id. at 87, 914. 14 Moreover, an ALJ is not required to take medical opinions at face value and may

15 consider the quality of the explanation when determining how much weight to give the opinion. 16 20 C.F.R. § 404.1527(c)(3); Orn v. Astrue, 495 F.3d 625, 631 (9th Cir. 2007). Though Dr. Shin’s 17 opinion indicated Plaintiff’s medical record was the basis for his opinion, Dr. Shin failed to 18 provide explicit reasons for each of his opined functional limitations. See AR at 969-71. Instead, 19 Dr. Shin’s August 2018 opinion noted Plaintiff’s limitations solely in checkbox form. Id. at 86, 20 969-71. Consequently, the ALJ did not err in discounting his opinion on this basis. See Molina, 21 674 F.3d at 1111 (quoting Crane v. Shalala, 76 F.3d 251, 253 (9th Cir. 1996)) (“The ALJ may 22 permissibly reject check-off reports that do not contain any explanation of the bases of their 23 conclusions.”). 1 Because the ALJ provided specific and legitimate reasons, supported by substantial 2 evidence, for discounting Dr. Shin’s opinion, the ALJ did not err. See Morgan v. Comm’r of 3 Social Sec. Admin., 169 F.3d 595, 603 (9th Cir. 1999) (ALJ appropriately considers internal 4 inconsistencies within and between physicians’ reports); Bayliss, 427 F.3d at 1216 (rejecting

5 physician’s opinion due to discrepancy or contradiction between opinion and the physician’s 6 own notes or observations is “a permissible determination within the ALJ’s province”). 7 2. Darren Davidson, M.D. 8 Plaintiff next argues the ALJ improperly rejected the opinion of Dr. Darren Davidson. 9 (Dkt. # 10 at 8-10.) She argues the ALJ erred in discounting Dr. Davidson’s opinion on the basis 10 he authored his opinion six months after seeing Plaintiff, that he failed to note that her gait began 11 to improve, and in finding his opinion was inconsistent with the overall medical record. (Id. at 9.) 12 Dr. Davidson, Plaintiff’s orthopaedic surgeon, issued a physical function assessment 13 opinion in late September 2017. AR at 908-10. Dr. Davidson opined Plaintiff was limited in the 14 following ways: (1) she could sit two hours at a time, up to four hours per day; (2) she could

15 stand/walk 45 minutes at a time, up to two hours per day; (3) she would require a job that permits 16 shifting positions at will; (4) she would require one to two unscheduled breaks per day of 5-10 17 minutes each; (5) she would need to elevate her legs to hip level with prolonged sitting; (6) she 18 could lift 20 pounds occasionally and 10 pounds frequently; (7) she would require minor postural 19 limitations and no handling limitations; and (8) she would need to be off-task 20 percent of the 20 day and absent 2 days per month. Id. 21 The ALJ rejected Dr. Davidson’s limitations, noting Plaintiff had not treated with Dr. 22 Davidson since April 2017, which was nearly six months prior to offering his opinion. AR at 86. 23 At Plaintiff’s last visit, the ALJ noted that Dr. Davidson found that her leg was symmetric in size 1 to her right leg, which was indicative of a lack of swelling, and that she did not have a central 2 cause to the pain in her lower extremity. Id. The ALJ determined Dr. Davidson’s opinions were 3 also inconsistent with the medical record, specifically Dr. Halpin’s treatment notes. Id. 4 The ALJ reasonably discounted Dr. Davidson’s opined limitations because of the length

5 of time between his examination of Plaintiff in April 2017, and the issuance of his opinion in late 6 September of that year, and due to its inconsistency with the medical record. An ALJ properly 7 considers the length of the treatment relationship, and the frequency of examination when 8 evaluating a medical source’s opinion. 20 C.F.R. §§ 404.1527(c)(2)(i), 404.1527(c)(6). The ALJ 9 could reasonably conclude Dr. Davidson’s findings were at odds with Plaintiff’s presentation at 10 her other examinations in the record during the period between Dr. Davidson’s examination and 11 his opinion. See id. at 85, 87, 813, 815, 876, 901, 914, 952, 955. Furthermore, as previously 12 discussed regarding Dr. Shin’s similar opined physical limitations, the ALJ reasonably 13 concluded Dr. Davidson’s opinion was inconsistent with Dr. Halpin’s treatment notes. See id. at 14 87, 876, 914. Therefore, the ALJ provided specific and legitimate reasons for discounting Dr.

15 Davidson’s opinion. See Morgan, 169 F.3d at 603; Bayliss, 427 F.3d at 1216. 16 3. Alexander Patterson, Psy.D. 17 Finally, Plaintiff argues the ALJ improperly rejected the opinion of Dr. Alexander 18 Patterson. (Dkt. # 10 at 10-14.) She argues the ALJ erred in finding his opinion was internally 19 inconsistent with the treatment notes cited or with Plaintiff’s record of mental health treatment. 20 (Id. at 12.) Plaintiff specifically argues the ALJ’s interpretation of Plaintiff’s treatment notes 21 22 23 1 from Dr. Shin and Dr. Halpin failed to undermine Dr. Patterson’s opinion, but instead, validated 2 Plaintiff’s pain claims.3 (Id. at 14.) 3 Plaintiff underwent a psychological consultative examination with Dr. Patterson in July 4 2017. AR at 85, 879-94. At that examination, Plaintiff reported feeling hopeless, that she was

5 easily irritable, and that she had difficulty concentrating. Id. at 85, 879. Dr. Patterson noted 6 Plaintiff sobbed uncontrollably during her examination and was in a great deal of emotional 7 distress. Id. at 85, 879, 881. Based on her mental status examination, Dr. Patterson diagnosed 8 Plaintiff with an adjustment disorder with depressed mood (severe). Id. at 85, 882. 9 Dr. Patterson opined Plaintiff would have difficulty performing detailed and complex 10 tasks, but would not have difficulty performing work activities, maintaining regular attendance, 11 and that she would not have difficulties accepting instructions from supervisors. AR at 87, 883. 12 Dr. Patterson opined Plaintiff would have difficulty completing a normal workday without 13 mental health interruptions and found it “difficult to imagine [Plaintiff] interacting with people 14 on a day-to-day basis.” Id. Dr. Patterson concluded Plaintiff was highly impaired, her depression

15 was unlikely to remit without corresponding improvement in her health, and that she was 16 susceptible to decompensating under normal stress. Id. at 883. 17 The ALJ assessed no weight to Dr. Patterson’s opinion. AR at 87-88. The ALJ 18 determined Dr. Patterson’s opinion was inconsistent with Plaintiff’s other mental status 19 examination findings in the record, which demonstrated she had intact memory and 20 concentration, improved mood, and reduced irritability with medication. Id. at 88. The ALJ 21

3 As previously considered above, Plaintiff’s challenge to the ALJ’s assessment of the treatment note 22 evidence concerning Dr. Shin and Dr. Halpin merely seeks an alternative interpretation of the record. (Dkt. # 10 at 13-14.) Plaintiff’s challenge regarding Dr. Patterson’s observations of Plaintiff’s pain and 23 mental impairments melding, and how those observations were corroborated by Dr. Shin and Dr. Halpin’s treatment notes, largely reiterates the same challenge. (Id.) Therefore, the ALJ’s interpretation is entitled deference. Molina, 674 F.3d at 1111. 1 additionally discounted Dr. Patterson’s opinion because of Plaintiff’s lack of treatment from a 2 mental health specialist. Id. at 88. 3 The ALJ reasonably discounted Dr. Patterson’s opinion because of the noted conflict 4 with the other objective medical evidence in the record concerning Plaintiff’s mental status. See

5 20 C.F.R. §§ 404.1527(c)(4), 416.927(c)(4); Ghanim v. Colvin, 763 F.3d 1154, 1161 (9th Cir. 6 2014) (An ALJ may give less weight to medical opinions that conflict with treatment notes). Dr. 7 Shin and Dr. Halpin both noted Plaintiff displayed normal mood and affect during her 8 examinations. AR at 85, 876, 914; see id. at 812. Plaintiff routinely conveyed her medications 9 helped her depression symptoms. Id. at 85, 144-45, 817, 820, 880, 940, 946, 948. She was 10 described as “pleasant” and “cooperative” and displayed normal memory and attention during 11 other examinations. Id. at 85, 876, 914; see id. at 457, 475. Therefore, the ALJ provided specific 12 and legitimate reasons, supported by substantial evidence, for discounting Dr. Patterson’s 13 opinion because of inconsistency with the record. See Batson v. Comm’r of Soc. Sec. Admin., 359 14 F.3d 1190, 1195 (9th Cir. 2004) (that opinions were “contradicted by other statements and

15 assessments of [claimant’s] medical conditions” and “conflict[ed] with the results of a 16 consultative medical evaluation” were specific and legitimate reasons to discount the opinions). 17 Plaintiff has additionally failed to demonstrate the ALJ erred in considering her lack of 18 treatment from a mental health specialist. As previously noted, an ALJ properly considers the 19 frequency of examination when evaluating a medical source’s opinion. 20 C.F.R. 20 §§ 404.1527(c)(2)(i), 404.1527(c)(6); see, e.g., Flaten v. Sec’y of Health & Human Servs., 44 21 F.3d 1453, 1464 (9th Cir. 1995) (holding that in assessing medical opinions an ALJ may 22 properly consider the level or frequency of treatment for allegedly disabling conditions over the 23 course of a claimant’s history of medical care); Evans v. Berryhill, 759 Fed. App’x. 606, 608 1 (9th Cir. Jan. 7, 2019) (affirming an ALJ’s rejection of a treating physician’s opinion in part 2 because plaintiff “received only sporadic treatment for his condition”). Because the record 3 demonstrates Plaintiff sought minimal mental health treatment—primarily consulting through 4 Dr. Shin for her adjustment disorder (AR at 85)—and Plaintiff concedes she did not have regular

5 mental health visits with a specialist (dkt. # 10 at 14) despite the severity of Dr. Patterson’s 6 opined limitations, Plaintiff’s lack of mental health treatment was a specific and legitimate 7 reason to discount Dr. Patterson’s opinion. 8 Because the ALJ provided several specific and legitimate reasons, supported by 9 substantial evidence, to discount the above-referenced medical opinions, the Court affirms the 10 ALJ’s assessment of the medical opinion evidence. 11 B. The ALJ Did Not Err in Evaluating Plaintiff’s Subjective Complaints 12 Plaintiff next contends the ALJ failed to properly evaluate her subjective complaints. 13 (Dkt. # 10 at 16-17.) She argues her subjective complaints concerning her condition were 14 established in the treatment record by Dr. Shin, Dr. Davidson, and Dr. Patterson (AR at 817, 879,

15 880, 901, 912-13, 970) and all three doctors found her to be a credible witness (AR at 894, 910, 16 971). (Id.) 17 It is the province of the ALJ to determine what weight should be afforded to a claimant’s 18 testimony, and this determination will not be disturbed unless it is unsupported by substantial 19 evidence. A determination of whether to accept a claimant’s subjective symptom testimony 20 requires a two-step analysis. 20 C.F.R. § 416.929; Smolen v. Chater, 80 F.3d 1273, 1281 (9th 21 Cir. 1996). First, the ALJ must determine whether the claimant’s medically determinable 22 impairments reasonably could be expected to cause the claimant’s symptoms. 20 C.F.R. 23 § 416.929(b); Smolen, 80 F.3d at 1281-82. Once a claimant produces medical evidence of an 1 underlying impairment, the ALJ may not discredit the claimant’s testimony as to the severity of 2 symptoms solely because they are unsupported by objective medical evidence. Bunnell v. 3 Sullivan, 947 F.2d 341, 343 (9th Cir. 1991) (en banc); Reddick v. Chater, 157 F.3d 715, 722 (9th 4 Cir. 1998). Absent affirmative evidence showing the claimant is malingering, the ALJ must

5 provide “clear and convincing” reasons for rejecting a claimant’s testimony. Burrell v. Colvin, 6 775 F.3d 1133, 1136-37 (9th Cir. 2014) (citing Molina, 674 F.3d at 1112); see also Lingenfelter 7 v. Astrue, 504 F.3d 1028, 1036 (9th Cir. 2007). 8 At the hearing, Plaintiff testified: (1) she had a general pain level of “seven” with her 9 medications; (2) she felt like she was unable to get out of bed or socialize; (3) she was unable to 10 complete household tasks; and (4) she dealt with several side effects from her medications, 11 including drowsiness and fogginess. AR at 140-41, 144, 150-52, 157. She also testified she went 12 days without sleeping due to her pain. Id. at 157-58. 13 In his decision, the ALJ determined Plaintiff’s subjective reports of symptom intensity, 14 persistence, and limiting effects did not support her allegations of disabling limitations. AR at

15 86. The ALJ rejected Plaintiff’s subjective claims because he found: (1) the record demonstrated 16 she remained cancer-free, did not need further surgery, and she reported improvement in her 17 depression with her medications; (2) despite Plaintiff claiming she spent “80% of her day” in a 18 recliner with her legs elevated, Dr. Shin opined she did not need to elevate her legs with 19 prolonged sitting; and (3) Plaintiff independently engaged in activities such as personal hygiene, 20 grocery shopping, and managing her household finances despite her reports of difficulty 21 concentrating and interacting with others. Id. The ALJ additionally noted Plaintiff held herself 22 out as employable by applying for unemployment benefits, which was inconsistent with her 23 1 allegations of being unable to work full-time and indicative her symptoms were not as severe as 2 her allegations indicated. Id. 3 The ALJ’s reference to Plaintiff obtaining unemployment benefits was not a clear and 4 convincing reason for rejecting her testimony. The record demonstrates Plaintiff received

5 unemployment benefits in late 2016 and early 2017, but her alleged onset date was December 31, 6 2016. AR at 282-84, 293-94. As such, there was little to no overlap in her receipt of 7 unemployment benefits with Plaintiff’s onset date. Id. The Commissioner additionally concedes 8 this reason was insufficient. (Dkt. # 11 at 7.) Furthermore, the ALJ’s reference to Plaintiff’s daily 9 activities was not a clear and convincing reason to undermine her subjective complaints. Cf. 10 Rollins v. Massanari, 261 F.3d 853, 856 (9th Cir. 2001) (affirming an ALJ’s rejection of a 11 treating physician’s opinion that was inconsistent with the claimant’s level of activity). 12 Plaintiff’s ability to personally care for her hygiene, manage her finances, and make trips to the 13 grocery store does not reasonably relate to her ability to concentrate or to socially function in a 14 work environment.

15 Nevertheless, substantial evidence in the record supports the ALJ’s discounting of 16 Plaintiff’s subjective complaints. Medical records showing improvement with treatment provide 17 a clear and convincing reason to reject claims of lack of improvement. Morgan, 169 F.3d at 599. 18 Contrary to Plaintiff’s complaints of active symptoms, the ALJ reasonably concluded her 19 symptoms from her seroma, back pain, and depression improved with treatment. AR at 86. In 20 February 2017, an orthopaedic specialist concluded Plaintiff did not need additional treatment 21 for her seroma and she instead required treatment for her back. AR at 84, 427-28. Plaintiff was 22 then referred to Seattle Cancer Care Alliance Pain Clinic where she was advised to continue 23 physical therapy and her medications. Id. at 84-85, 747. Beginning in March 2017, the record 1 demonstrates improvement with Plaintiff’s right leg and gait. Id. at 85; compare id. at 813, 815, 2 901, 914, 939-40, 952, 955, with id. at 876, 972, 989, 994. As previously noted, Plaintiff’s 3 depression symptoms also responded well to medication. See id. at 85, 144-45, 817, 820, 880, 4 940, 946, 948. Therefore, the ALJ reasonably interpreted the record as demonstrating treatment

5 relieved Plaintiff’s symptoms. See Thomas, 278 F.3d at 954 (when evidence is susceptible to 6 more than one rational interpretation, the Commissioner’s must be upheld). 7 The ALJ reasonably discounted Plaintiff’s testimony that she spent “80% of her day” in a 8 recliner with her legs elevated because the degree of limitation asserted by her was inconsistent 9 with the medical evidence. See Carmickle v. Comm’r, Soc. Sec. Admin., 533 F.3d 1155, 1161 10 (9th Cir. 2008) (“Contradiction with the medical record is a sufficient basis for rejecting a 11 claimant’s subjective testimony.”). Although a lack of medical evidence cannot form the sole 12 basis for discounting pain testimony, it is a factor the ALJ can consider in his credibility analysis. 13 See Burch v. Barnhart, 400 F.3d 676, 681 (9th Cir. 2005). Here, Dr. Shin’s opinion determined 14 Plaintiff would not need to elevate her legs to hip level with prolonged sitting. AR at 86, 908-10.

15 Given that Plaintiff’s testimony was not consistent with this aspect of the medical record, the 16 ALJ reasonably discounted this portion of her subjective complaints. See Carmickle, 533 F.3d 17 at1161; Burch, 400 F.3d at 681. 18 Any errors in assessing Plaintiff’s testimony is harmless in light of the ALJ’s valid 19 reasons to discount her testimony. See Carmickle, 533 F.3d at 1162-63. Given the evidence in 20 the record, the ALJ provided clear and convincing reasons, supported by substantial evidence, 21 for discounting Plaintiff’s testimony. See Burrell, 775 F.3d at 1136-37; Molina, 674 F.3d at 22 1112. 23 1 C. The New Appeals Council Medical Evidence Does Not Require Remand

2 Finally, Plaintiff argues the Court should consider new medical evidence submitted to the 3 Appeals Council, pursuant to Brewes v. Comm. of Soc. Sec. Admin, 682 F.3d 1157 (9th Cir. 4 2012), concerning her Crohn’s Disease. (Dkt. # 10 at 15-16.) She argues the new evidence 5 demonstrates her Crohn’s Disease affected her functioning, was not well-treated, caused her 6 lower-back pain and gastrointestinal symptoms, and supports Dr. Shin’s assessment that she 7 would have difficulties sustaining work due to her pain. (Id. at 16.) 8 The ALJ considered Plaintiff’s Crohn’s Disease at step two. AR at 78-79. The ALJ 9 determined Plaintiff’s Crohn’s Disease was non-severe because there was no history of active 10 symptomology and her condition was being controlled with medication. Id. Consequently, the 11 ALJ found Plaintiff’s Crohn’s Disease did not result in any continuous exertional or 12 non-exertional functional limitations. Id. 13 The new medical evidence provided to the Appeals Council contained additional 14 longitudinal record findings for Plaintiff’s Crohn’s Disease. AR at 15-16, 23-31, 40-44. In early

15 2019, Dr. Shin noted Plaintiff had a history of Crohn’s disease “but has not had much 16 symptoms.” Id. at 43. Plaintiff reported the stomach pain she did have generally improved with 17 bowel movements and medications. Id. at 23, 25. In October 2019, approximately one year after 18 the ALJ rendered his decision, Dr. Shin noted Plaintiff suffered from worsening abdominal pain 19 due to constipation, which stemmed from an acute flare-up of her Crohn’s Disease. Id. at 29. Dr. 20 Shin concluded Plaintiff had “significant disability from her Crohn’s.” Id. at 24. The Appeals 21 Council determined the additional evidence did not show a reasonable probability that it would 22 change the outcome of the ALJ’s decision. Id. at 2, 4. 23 1 “[W]hen the Appeals Council considers new evidence in deciding whether to review a 2 decision of the ALJ, that evidence becomes part of the administrative record, which the district 3 court must consider when reviewing the Commissioner’s final decision for substantial evidence.” 4 Brewes, 682 F.3d at 1163. This Court must, in other words, “determine whether the ALJ’s

5 finding of nondisability was supported by substantial evidence in the entire record—including 6 any new evidence in the administrative record that the Appeals Council considered—not just the 7 evidence before the ALJ.” Gardner v. Berryhill, 856 F.3d 652, 656 (9th Cir. 2017). 8 The Court has reviewed the evidence submitted to the Appeals Council as part of the 9 administrative record and finds it merely elaborates on the worsening of Plaintiff’s Crohn’s 10 Disease symptoms, which were previously disclosed to the ALJ and considered at step two. AR 11 78-79. The record before the ALJ from Dr. Shin’s treatment notes documented Plaintiff’s 12 Crohn’s disease was well-managed at that time and without complications. Id. at 812, 824, 901, 13 921, 930, 933, 939. In one of the last treatment notes before her hearing, Dr. Shin opined 14 Plaintiff’s Crohn’s disease might be causing her back pain and he referred her for a

15 gastroenterology consultation. Id. at 921. Plaintiff’s gastroenterology consultation did not reveal 16 any evidence of “inflammation or abnormalities” Id. at 978. Upon return to Dr. Shin, Plaintiff 17 continued to deny abdominal pain. Id. at 990. Dr. Shin did not reference Plaintiff’s Crohn’s 18 Disease in his August 2018 opinion. See id. at 969-71. 19 The new medical evidence demonstrates Plaintiff suffered from worsening abdominal 20 pain because of an acute flare-up of her Crohn’s Disease. AR at 29. However, impairments that 21 can be controlled effectively with treatment are not disabling. Warre ex rel. E.T. IV v. Comm’r of 22 Soc. Sec. Admin., 439 F.3d 1001, 1006 (9th Cir. 2006). Plaintiff reported relief of her upper 23 abdominal pain with bowel movements and Dr. Shin’s treatment notes indicate he was in the 1 process of considering immunosuppressive treatments for the lower abdominal discomfort 2 Plaintiff still had. AR at 23-24. Dr. Shin also noted Plaintiff’s inflammation was responding well 3 to a prescribed steroid. Id. at 27. While the new medical evidence provides more detail regarding 4 Plaintiff’s Crohn’s Disease symptoms after a flare, the evidence does not show a reasonable

5 probability that it would change the outcome of the ALJ’s previous analysis of Plaintiff’s 6 functional limitations, due to her Crohn’s Disease, during the relevant period. See Gardner, 856 7 F.3d at 656; 20 C.F.R. §§ 404.970(a)(5), 416.1470(a)(5). Accordingly, because substantial 8 evidence in the record supports the ALJ’s nondisability determination, the ALJ’s decision should 9 be affirmed. 10 V. CONCLUSION 11 For the foregoing reasons, the Commissioner’s final decision is AFFIRMED, and this 12 case is DISMISSED with prejudice. 13 14 Dated this 1st day of September, 2020.

15 16 A 17 MICHELLE L. PETERSON United States Magistrate Judge 18

19 20 21 22 23