1 2
FILED IN THE 3 U.S. DISTRICT COURT EASTERN DISTRICT OF WASHINGTON
Mar 23, 2020 4 SEAN F. MCAVOY, CLERK 5
UNITED STATES DISTRICT COURT 6 EASTERN DISTRICT OF WASHINGTON
7 ALPHONSO M.,
8 Plaintiff, No. 1:19-CV-03003-RHW
9 v. ORDER GRANTING DEFENDANT’S MOTION FOR 10 COMMISSIONER OF SOCIAL SUMMARY JUDGMENT SECURITY, 11
Defendant. 12
13 Before the Court are the parties’ cross-motions for summary judgment. ECF 14 Nos. 11, 16. Plaintiff brings this action seeking judicial review pursuant to 42 15 U.S.C. § 1383(c)(3) of the Commissioner of Social Security’s final decision, which 16 denied his application for supplemental security income under Title XVI of the 17 Social Security Act, 42 U.S.C. §1381-1383F. See Administrative Record (AR) at 18 1-6, 12-35. After reviewing the administrative record and briefs filed by the 19 parties, the Court GRANTS Defendant’s Motion for Summary Judgment and 20 DENIES Plaintiff’s Motion for Summary Judgment. 1 I. Jurisdiction 2 Plaintiff filed his application for supplemental security income on March 3,
3 2015. See AR 15, 191-95. His alleged onset date of disability was January 15, 4 2005.1 AR 191. Plaintiff’s application was initially denied on May 15, 2015, see 5 AR 116-19, and on reconsideration on October 7, 2015. See AR 123-28. On
6 October 26, 2015, Plaintiff filed a request for a hearing. AR 129-131. 7 A hearing with Administrative Law Judge (“ALJ”) Glenn G. Meyers 8 occurred on May 18, 2017. AR 36-88. On January 31, 2018, the ALJ issued a 9 decision concluding that Plaintiff was not disabled as defined in the Act and was
10 therefore ineligible for benefits. AR 12-35. On November 7, 2018, the Appeals 11 Council denied Plaintiff’s request for review, AR 1-6, thus making the ALJ’s 12 ruling the final decision of the Commissioner. See 20 C.F.R. § 416.1481. On
13 January 3, 2019, Plaintiff timely filed the present action challenging the denial of 14 benefits. ECF No. 1. Accordingly, Plaintiff’s claims are properly before this Court 15 pursuant to 42 U.S.C. § 405(g) and 42 U.S.C. § 1383(c)(3). 16 II. Five-Step Sequential Evaluation Process
17 The Social Security Act defines disability as the “inability to engage in any 18 substantial gainful activity by reason of any medically determinable physical or 19
1 However, for claims under Title XVI, benefits are not payable prior to the application’s 20 filing date. See 20 C.F.R. § 416.335. At the hearing, Plaintiff amended his alleged onset date to the date of his application. AR 42. 1 mental impairment which can be expected to result in death or which has lasted or 2 can be expected to last for a continuous period of not less than twelve months.” 42
3 U.S.C. § 1382c(a)(3)(A). A claimant shall be determined to be under a disability 4 only if the claimant’s impairments are so severe that the claimant is not only 5 unable to do his or her previous work, but cannot, considering claimant’s age,
6 education, and work experience, engage in any other substantial gainful work that 7 exists in the national economy. 42 U.S.C. § 1382c(a)(3)(B). 8 The Commissioner has established a five-step sequential evaluation process 9 for determining whether a claimant is disabled within the meaning of the Act. 20
10 C.F.R. § 416.920(a)(4). Step one inquires whether the claimant is presently 11 engaged in “substantial gainful activity.” 20 C.F.R. § 416.920(b). Substantial 12 gainful activity is defined as significant physical or mental activities done or
13 usually done for profit. 20 C.F.R. § 416.972. If the claimant is engaged in 14 substantial activity, he or she is not entitled to disability benefits. 20 C.F.R. § 15 416.920(b). If not, the ALJ proceeds to step two. 16 Step two asks whether the claimant has a severe impairment, or combination
17 of impairments, that significantly limits the claimant’s physical or mental ability to 18 do basic work activities. 20 C.F.R. § 416.920(c). A severe impairment is one that 19 has lasted or is expected to last for at least twelve months, and must be proven by
20 objective medical evidence. 20 C.F.R. § 416.908-09. If the claimant does not have 1 a severe impairment, or combination of impairments, the disability claim is denied 2 and no further evaluative steps are required. Otherwise, the evaluation proceeds to
3 the third step. 4 Step three involves a determination of whether one of the claimant’s severe 5 impairments “meets or equals” one of the listed impairments acknowledged by the
6 Commissioner to be sufficiently severe as to preclude substantial gainful activity. 7 20 C.F.R. §§ 416.920(d), 416.925, 416.926; 20 C.F.R. § 404 Subpt. P. App. 1 (“the 8 Listings”). If the impairment meets or equals one of the listed impairments, the 9 claimant is per se disabled and qualifies for benefits. Id. If the claimant is not per
10 se disabled, the evaluation proceeds to the fourth step. 11 Step four examines whether the claimant’s residual functional capacity 12 enables the claimant to perform past relevant work. 20 C.F.R. § 416.920(e)-(f). If
13 the claimant can still perform past relevant work, the claimant is not entitled to 14 disability benefits and the inquiry ends. Id. 15 Step five shifts the burden to the Commissioner to prove that the claimant is 16 able to perform other work in the national economy, taking into account the
17 claimant’s age, education, and work experience. See 20 C.F.R. §§ 416.912(f), 18 416.920(g), 416.960(c). To meet this burden, the Commissioner must establish that 19 (1) the claimant is capable of performing other work; and (2) such work exists in
20 1 “significant numbers in the national economy.” 20 C.F.R. § 416.960(c)(2); Beltran 2 v. Astrue, 676 F.3d 1203, 1206 (9th Cir. 2012).
3 III. Standard of Review 4 A district court’s review of a final decision of the Commissioner is governed 5 by 42 U.S.C. § 405(g). The scope of review under this section is limited, and the
6 Commissioner’s decision will be disturbed “only if it is not supported by 7 substantial evidence or is based on legal error.” Hill v. Astrue, 698 F.3d 1144, 8 1158-59 (9th Cir. 2012) (citing § 405(g)). In reviewing a denial of benefits, a 9 district court may not substitute its judgment for that of the ALJ. Matney v.
10 Sullivan, 981 F.2d 1016, 1019 (9th Cir. 1992). When the ALJ presents a reasonable 11 interpretation that is supported by the evidence, it is not the role of the courts to 12 second-guess it. Rollins v. Massanari, 261 F.3d 853, 857 (9th Cir. 2001). Even if
13 the evidence in the record is susceptible to more than one rational interpretation, if 14 inferences reasonably drawn from the record support the ALJ’s decision, then the 15 court must uphold that decision. Molina v. Astrue, 674 F.3d 1104, 1111 (9th Cir. 16 2012); see also Thomas v. Barnhart, 278 F.3d 947, 954-59 (9th Cir. 2002).
17 IV. Statement of Facts 18 The facts of the case are set forth in detail in the transcript of proceedings 19 and only briefly summarized here. Plaintiff was 27 years old on the alleged date of
20 onset and 37 years old when he filed his application, which the regulations define 1 as a younger person. AR 29, 90; see 20 C.F.R. § 416.963(c). He attended high 2 school through the 11th grade and can read, write, and communicate in English.
3 AR 210, 212, 291-96. He has past work as a fast food cook, game attendant, and 4 agricultural worker. AR 56-57, 212, 219-221. 5 V. The ALJ’s Findings
6 The ALJ determined that Plaintiff was not under a disability within the 7 meaning of the Act at any time from March 3, 2015 (the date Plaintiff filed his 8 application) through January 31, 2018 (the date the ALJ issued his decision). AR 9 16, 30.
10 At step one, the ALJ found that Plaintiff had not engaged in substantial 11 gainful activity since the application filing date. AR 18. 12 At step two, the ALJ found that Plaintiff had the following severe
13 impairments: low body mass index, spinal disorder with myofascial pain, rule-out 14 intellectual disorder, and affective disorder. AR 18. 15 At step three, the ALJ found that Plaintiff did not have an impairment or 16 combination of impairments that met or medically equaled the severity of one of
17 the listed impairments in 20 C.F.R. § 404, Subpt. P, Appendix 1. AR 19. 18 At step four, the ALJ found that Plaintiff had the residual functional 19 capacity to perform sedentary work as defined in 20 C.F.R. § 416.967(a). AR 21.
20 With respect to Plaintiff’s physical abilities, the ALJ found that Plaintiff could 1 occasionally stoop, squat, crouch, crawl, kneel, and climb ramps and stairs, but 2 could never climb ladders, ropes, or scaffolds. AR 21. With respect to Plaintiff’s
3 mental abilities, the ALJ found that Plaintiff could engage in unskilled, repetitive, 4 and routine tasks in two-hour increments. AR 21. He could have superficial contact 5 with the public, occasional contact with supervisors, and work in proximity to co-
6 workers but not in coordination with them. AR 21. Given these physical and 7 psychological limitations, the ALJ found that Plaintiff was unable to perform any 8 past relevant work. AR 29. 9 At step five, the ALJ found that in light of Plaintiff’s age, education, work
10 experience, and residual functional capacity, there were jobs that existed in 11 significant numbers in the national economy that he could perform. AR 29. These 12 included the jobs of an assembler, a dowel inspector, and a waxer. AR 30.
13 VI. Issues for Review 14 Plaintiff argues that the ALJ: (1) improperly evaluated and weighed the 15 medical opinion evidence, (2) failed to properly assess Listing 5.08 (weight loss 16 due to a digestive disorder), (3) improperly discredited his subjective pain
17 complaint testimony, and (4) improperly found at step five that other jobs existed 18 in significant numbers in the national economy that he could perform. ECF No. 11 19 at 2, 4-21.
20 /// 1 VII. Discussion 2 A. The ALJ did not Err in Weighing the Medical Opinion Evidence
3 Plaintiff argues that the ALJ erred in assessing and weighing the medical 4 opinion evidence from two providers: (1) treating physician Jeremiah Crank, M.D., 5 and (2) examining psychiatrist Erum Khaleeq, M.D. ECF No. 11 at 4-12.
6 1. Legal standards 7 Title XVI’s implementing regulations distinguish among the opinions of 8 three types of physicians: (1) those who treat the claimant (treating physicians); (2) 9 those who examine but do not treat the claimant (examining physicians); and (3)
10 those who neither examine nor treat the claimant but who review the claimant’s 11 file (non-examining physicians). Holohan v. Massanari, 246 F.3d 1195, 1201-02 12 (9th Cir. 2001); see 20 C.F.R. § 416.927(c)(1)-(2). If a treating or examining
13 doctor’s opinion is contradicted by another doctor’s opinion—as is the case here— 14 an ALJ may only reject it by providing “specific and legitimate reasons that are 15 supported by substantial evidence.” Bayliss v. Barnhart, 427 F.3d 1211, 1216 (9th 16 Cir. 2005). An ALJ satisfies this standard by “setting out a detailed and thorough
17 summary of the facts and conflicting clinical evidence, stating his [or her] 18 interpretation thereof, and making findings.” Garrison v. Colvin, 759 F.3d 995, 19 1012 (9th Cir. 2014). In contrast, an ALJ fails to satisfy the standard when he or
20 she “rejects a medical opinion or assigns it little weight while doing nothing more 1 than ignoring it, asserting without explanation that another medical opinion is more 2 persuasive, or criticizing it with boilerplate language that fails to offer a
3 substantive basis for his [or her] conclusion.” Id. at 1012-13. 4 2. Treating physician Jeremiah Crank, M.D. 5 Dr. Crank treated Plaintiff for neck and low back pain from June 2014 to
6 October 2016. AR 394-97, 532-538. Throughout Dr. Crank’s treatment of Plaintiff, 7 he consistently noted that Plaintiff never had any pain, tenderness, weakness, or 8 numbness in his upper extremities. See AR 380 (“ue/le nl strength and sensation”), 9 383 (same), 386 (same), 394 (“Pertinent negatives include…tenderness or tingling
10 in the arms.”), 459 (“ue/le nl strength and sensation”), 464 (same), 552 (same), 560 11 (“no radiation of pain/weakness/numbness ue”), 564 (“ue/le nl strength and 12 sensation”). He never noted any arm, hand, or finger problems, or any limitations
13 with manipulation, handling, reaching, or with fine or gross motor skills. See AR 14 376-380 (Feb. 2015), 381-83 (Dec. 2014), 384-87 (Sept. 2014), 394-97 (June 15 2014), 454-459 (May 21, 2015), 460-64 (May 12, 2015), 532-538 (Oct. 2016), 16 539-545 (Aug. 2016), AR 546-552 (Feb. 2016), 559-564 (Aug. 2015).
17 In May 2015, Dr. Crank submitted a physical functional evaluation in which 18 he described Plaintiff’s physical capabilities. AR 466-470. He diagnosed Plaintiff 19 with cervical strain, lumbar strain, lower back pain, and degenerative changes of
20 the neck. AR 468. Despite these conditions, he opined that Plaintiff could still 1 sustain sedentary work on an ongoing basis. AR 467. In the section of the form that 2 asked him to list the affected work activities by associating them with letters, he
3 noted the range of letters generally encompassing all physical activities (“a” to 4 “k”). See AR 468. These included sitting, standing, walking, lifting, carrying, 5 handling, pushing, pulling, reaching, stooping, and crouching. AR 468.
6 The ALJ assigned significant weight to Dr. Crank’s opinion, reasoning that 7 he was Plaintiff’s treating physician. AR 26-27. However, the ALJ also found that 8 his opinion appeared to overstate Plaintiff’s limitations, given the mild imaging 9 and examination findings, Plaintiff’s unremarkable presentation during
10 appointments, Plaintiff’s ability to work with these conditions for many years, and 11 the discrepancies in Plaintiff’s reports. AR 26. The ALJ further noted that he was 12 adopting this opinion for purposes of assessing Plaintiff’s limitations stemming
13 from his spinal condition and low body weight. AR 26. The ALJ ultimately 14 determined that Plaintiff could perform sedentary work and could only 15 occasionally stoop, squat, crouch, crawl, and kneel. AR 21. 16 Plaintiff argues that the ALJ erred by not also including Dr. Crank’s
17 limitations with respect to reaching and handling. ECF No. 11 at 5-6. This was 18 important, he argues, because “[m]ost unskilled sedentary jobs require good use of 19 both hands and fingers” and having manipulative limitations greatly decreases the
20 number of sedentary jobs available. Id. at 6. Had the ALJ accounted for these 1 reaching and handling limitations, Plaintiff argues, “there would almost certainly 2 have been no jobs in the nation” he could have done. Id.
3 Even assuming Dr. Crank intended to limit Plaintiff’s abilities to reach and 4 handle, the ALJ did not err by not crediting this portion of his opinion. Throughout 5 his treatment of Plaintiff, Dr. Crank never noted any issues with or limitations in
6 Plaintiff’s shoulders, arms, hands, or fingers. In fact, he consistently noted no pain, 7 tenderness, weakness, or numbness in these areas. This was a legitimate reason to 8 not include his purported reaching and handling limitations in the residual 9 functional capacity. See Connett v. Barnhart, 340 F.3d 871, 875 (9th Cir. 2003)
10 (physicians’ opinions may be rejected if unsupported by their own treatment 11 notes). This is supported by the rest of the record, which is devoid of any reference 12 to problems in Plaintiff’s upper extremities. Plaintiff never alleged any upper
13 extremity symptoms in his application for benefits or in his hearing testimony. AR 14 43-67, 76-83, 90, 211. Moreover, his other physicians—including Dr. Steven 15 Foster and Dr. Juan Hurtarte—consistently noted normal upper extremity strength, 16 normal motor skills, and that “pushing, pulling, and reaching do not cause
17 significant pain.” AR 389; see also AR 346, 358, 362, 391-92, 421-22, 446. 18 3. Examining psychiatrist Erum Khaleeq, M.D. 19 Dr. Khaleeq evaluated Plaintiff in September 2015. AR 578-581. In
20 preparing for the examination, her review of records consisted of “a front sheet 1 listing his medical problems as lower back pain, neck pain, [and] left hip pain,” in 2 addition to a clinic questionnaire “listing coronary heart disease as a risk.” AR 578.
3 She then interviewed Plaintiff and performed a mental status examination. AR 4 578-580. She diagnosed Plaintiff with unspecified intellectual disability and 5 depression due to his 1999 back injury. AR 580.
6 With respect to Plaintiff’s work limitations, Dr. Khaleeq opined that Plaintiff 7 could perform simple tasks but may get districted with more detailed and complex 8 ones. AR 581. She further opined that he could accept instructions from 9 supervisors but would have difficulty interacting with co-workers and the public.
10 AR 581. She believed he “may take some time to perform work activities on a 11 consistent basis,” given his difficulty answering questions on the intellectual 12 functioning portion of the mental status examination. AR 581. She also thought he
13 “may have difficulty maintaining attendance in the workplace” in light of his self- 14 reported back pain. AR 581. She concluded that “[t]he usual stress encountered in 15 the workplace could further aggravate his psychiatric condition.” AR 581. 16 The ALJ assigned partial weight to Dr. Khaleeq’s assessment. AR 27-28. He
17 agreed with her that Plaintiff was limited to simple tasks and would have trouble 18 interacting with co-workers and the public. AR 21, 28. He disagreed, however, that 19 Plaintiff would have problems consistently performing work activities, maintaining
20 attendance, or dealing with workplace stress. AR 28. The ALJ reasoned that: (1) 1 Dr. Khaleeq did not conduct IQ testing to support her diagnosis of intellectual 2 disability, (2) in diagnosing depression, she relied on Plaintiff’s subjective
3 complaints and did not review any of his medical records, (3) both of her diagnoses 4 were inconsistent with the rest of the medical record, which indicated that Plaintiff 5 did not have an intellectual disability or depression, (4) to the extent her opinion
6 relied on Plaintiff’s complaints of back pain, she was not qualified to assess 7 Plaintiff’s physical function, nor did she review any of his medical records, which 8 demonstrated normal imaging and examination findings, and (5) Plaintiff’s mother 9 indicated in a third party function report that Plaintiff had no problems
10 concentrating, handling changes in routine, or handling stress.2 See AR 18, 28. 11 Generally, these are all legitimate bases for discounting a medical provider’s 12 opinion. See Dixon v. Colvin, 2016 WL 3661262, at *4 n.2 (E.D. Ky. 2016) (citing
13 20 C.F.R. § 416.927(c)(3)) (concluding that ALJ was entitled to discount 14 psychiatrist’s borderline I.Q. diagnosis “because he did not actually perform I.Q. 15 testing”); Bayliss, 427 F.3d at 1217 (doctor’s failure to review other medical 16 records is a basis to discount his or her opinion); 20 C.F.R. § 416.927(c)(6) (in
17 weighing medical opinion, ALJ will consider “extent to which a medical source is 18 familiar with the other information in your case record”); Cox v. Astrue, 2012 WL 19 2 Plaintiff argues that “the ALJ erred in giving less weight to Dr. Khaleeq on the basis she only saw [him] for a single evaluation.” ECF No. 11 at 11. While the ALJ noted that Dr. Khaleeq 20 only examined Plaintiff once, his point was that her findings conflicted with and were outweighed by the longitudinal treatment record. See AR 28. 1 3862135, at *8 (D. Or. 2012) (“[F]ailure to review all records is a legitimate reason 2 to reject a medical opinion.”); Batson v. Comm’r of Soc. Sec. Admin., 359 F.3d
3 1190, 1195 (9th Cir. 2004) (opinions consistent with medical record are entitled to 4 more weight); Sandgathe v. Chater, 108 F.3d 978, 980 (9th Cir. 1997) (ALJ may 5 discount psychologist’s opinion about a claimant’s mental limitations if that
6 opinion rests on claimant’s self-reports of physical ailments); Castilleja v. Colvin, 7 2016 WL 6023846, at *5-6 (E.D. Wash. 2016) (Peterson, J.) (ALJ properly 8 discounted psychiatrist’s opinion on the basis that it was inconsistent with third 9 party function report completed by claimant’s husband).
10 i. Reliance on back symptoms 11 Plaintiff first argues that the ALJ improperly discounted Dr. Khaleeq’s 12 opinion to the extent it relied on Plaintiff’s back symptoms. ECF No. 11 at 8-9. He
13 disagrees with the ALJ’s reasoning that Dr. Khaleeq was not qualified to assess his 14 physical function and that she did not review his medical records. Id. First, he 15 argues that Dr. Khaleeq is a medical doctor who specializes in psychiatry and “is 16 therefore qualified to assess both physical and psychiatric limitations.” Id. at 9.
17 While this is true, she did not perform a physical examination. See AR 578-80. 18 Plaintiff acknowledges that Dr. Khaleeq did not review any medical records, but 19 argues that she personally observed that he was underweight and walked in pain.
20 ECF No. 11 at 9. However, a failure to review records is a valid basis to discount 1 an opinion despite a doctor’s personal observations during an examination. See 2 Cox, 2012 WL 3862135, at *7-8. Finally, Plaintiff implies that Dr. Khaleeq would
3 have reached the same result even if she had reviewed his medical records because 4 most of the records were from Dr. Crank, who “assessed disabling physical 5 limitations.” ECF No. 11 at 9. Dr. Crank, however, specifically opined that
6 Plaintiff could work, albeit on a sedentary basis. See AR 467. 7 ii. Reliance on depression 8 Next, Plaintiff argues that the ALJ improperly discounted Dr. Khaleeq’s 9 depression diagnosis and corresponding limitations. ECF No. 11 at 9-11. He
10 disagrees with the ALJ’s reasoning that Dr. Khaleeq relied on his subjective 11 complaints, did not review his medical records, and that this diagnosis was 12 inconsistent with the rest of the medical record. Id.
13 Plaintiff first points out that psychiatric evaluations are necessarily 14 subjective. Id. at 10 (quoting Buck v. Berryhill, 869 F.3d 1040, 1049 (9th Cir. 15 2017)). While this is true, Dr. Khaleeq opined that Plaintiff’s depression was 16 “stemming out from his back injury back in 1999 causing him chronic pain and
17 difficulty.” AR 581. Because her psychological opinion rested on a physical 18 ailment, the ALJ was entitled to discount it based on self-reports. Sandgathe, 108 19 F.3d at 980.
20 1 Plaintiff also argues that the ALJ erred in finding that Dr. Khaleeq’s 2 depression diagnosis was inconsistent with the rest of the medical record. ECF No.
3 11 at 10. He argues that Dr. Khaleeq was the only psychiatrist who evaluated him 4 and that other providers did not “inquire or comment” about his mental health, as 5 these conditions were beyond their specialties. Id. However, Dr. Crank and Dr.
6 Hurtarte did inquire into, comment on, and evaluate Plaintiff for potential 7 depression. They administered the Patient Health Questionnaire3 nine times over 8 the course of two years and each test revealed no depression. AR 377-78 (Feb. 9 2015), 382 (Dec. 2, 2014), 385 (Sept. 2014), 501 (Jan. 2015), 504 (Dec. 5, 2014),
10 533-34 (Oct. 2016), 547-49 (Feb. 2016), 554-55 (Dec. 2015), 560-61 (Aug. 2015). 11 And although they are not psychiatrists, they are medical doctors and are - as 12 Plaintiff himself acknowledges -“therefore qualified to assess both physical and
13 psychiatric limitations.” ECF No. 11 at 9. 14 Finally, Plaintiff argues that the ALJ “failed to consider Dr. Khaleeq’s own 15 objective, supportive findings.” ECF No. 11 at 11. The ALJ thoroughly analyzed 16 Dr. Khaleeq’s report and was undoubtedly aware of these findings. See AR 28.
17 However, the ALJ simply determined that in light of the other physicians’ 18 19
20 3 The PHQ is a multipu rpose instrument for screening, diagnosing, monitoring, and measuring the severity of depression. 1 consistent findings to the contrary, these either reflected transient symptoms or 2 were of questionable reliability. See Batson, 359 F.3d at 1195.
3 iii. Plaintiff’s mother’s third party function report
4 Finally, Plaintiff argues that the ALJ erred in discounting Dr. Khaleeq’s 5 opinion based on his mother’s observations that he had no problems concentrating, 6 handling changes in routine, or handling stress. ECF No. 11 at 11-12. He argues 7 that these lay observations should be outweighed by a psychiatric professional’s 8 opinion. Id. at 12. This argument fails in light of Castilleja v. Colvin, 2016 WL 9 6023846 (E.D. Wash. 2016). In that case, a psychiatrist wrote a report that was
10 virtually identical to Dr. Khaleeq’s. Id. at *4. The ALJ discounted the opinion in 11 part on the basis that it “was not consistent with the third party function report 12 completed by Ms. Castilleja’s husband.” Id. This court upheld that determination,
13 reasoning that it fell within the ALJ’s prerogative to interpret the evidence. Id. at 14 *6. 15 Plaintiff also argues that other aspects of his mother’s report indicated that 16 he was disabled. ECF No. 11 at 12. He points out that his mother also observed
17 that he did not go anywhere often, that he was “in pain all the time,” and that he 18 could not walk, stand, or bend “for a long time.” AR 239-241, 243. While true, the 19 ALJ focused on the aspects of his mother’s report that conflicted with Dr.
20 1 Khaleeq’s opinion—his ability to concentrate, handle changes, and handle stress— 2 which was not improper. AR 28.
3 B. Listing 5.08 (Weight Loss Due to any Digestive Disorder)
4 Plaintiff argues the ALJ erred in finding that he did not meet or equal the 5 criteria for Listing 5.08. ECF No. 11 at 12-15. 6 The Listings describe, for each major body system, impairments that are 7 severe enough to be per se disabling. 20 C.F.R. § 416.925. Listing 5.08 is met if 8 the claimant: (1) has weight loss due to any digestive disorder, (2) has a body mass 9 index of less than 17.50 calculated on at least two evaluations at least 60 days apart
10 within a six-month period, and (3) still experiences symptoms despite prescribed 11 treatment. 20 C.F.R. § 404 Subpt. P. App. 1, 5.08. To establish this listing, a 12 claimant must provide “a record of [his or her] medical evidence, including clinical
13 and laboratory findings,” and show that “the technique used is the proper one to 14 support the evaluation and diagnosis of the disorder.” Id., 5.00(B). 15 The ALJ found that Plaintiff’s body mass index fell below 17.50 and 16 therefore that he met the body mass requirement. AR 19. However, the ALJ
17 concluded that Plaintiff did not meet the other criteria because there was no 18 evidence that he had any kind of digestive disorder. AR 19. The ALJ reasoned that 19 his abdominal and pelvic imaging was normal, see AR 510, 514, and that he
20 1 always denied experiencing any gastrointestinal symptoms. AR 382, 385, 390, 458, 2 461, 464, 544, 551, 557, 563.
3 Plaintiff argues that he did have a qualifying digestive disorder—either 4 malnutrition or malabsorption. ECF No. 11 at 14. He cites an internet website that 5 describes symptoms associated with malabsorption—including unexplained weight
6 loss, vitamin deficiency, weakness, fatigue, and bone pain—and argues that he 7 experiences some of these same symptoms. Id. at 14-15. 8 However, Plaintiff points to no medical evidence in the record diagnosing 9 him with a digestive disorder. See id. Plaintiff appears to concede this,
10 acknowledging that “the search for the specific disorder is ongoing,” but 11 nevertheless asks the Court to find that such a disorder likely exists based on his 12 various symptoms. ECF No. 11 at 15. This is not the Court’s role. 20 C.F.R.
13 § 416.921. Substantial evidence supports the ALJ’s finding that Plaintiff did not 14 meet or equal the criteria for Listing 5.08. 15 C. The ALJ did not Improperly Reject Plaintiff’s Subjective Complaints
16 Plaintiff argues the ALJ erred by discounting the credibility of his testimony 17 regarding his subjective symptoms. ECF No. 11 at 15-19. 18 Once a claimant produces objective medical evidence of an underlying 19 impairment that could reasonably produce some degree of the symptoms alleged—
20 as Plaintiff has done—the ALJ can reject the claimant’s symptom testimony only 1 by providing “specific, clear, and convincing reasons.” Tommasetti v. Astrue, 533 2 F.3d 1035, 1039 (9th Cir. 2008). Here, the ALJ found that Plaintiff’s complaints of
3 disabling limitations were undermined by: (1) the different stories he gave 4 regarding his alleged motor vehicle accidents, which he alleged caused his 5 disability; (2) his subsequent work history after the first alleged car accident; and
6 (3) the inconsistencies between his allegations and the medical evidence, which 7 included normal imaging studies, benign physical and mental examination 8 findings, and normal presentation during examinations. See AR 22-26. 9 1. Inconsistent stories regarding the alleged motor vehicle accidents
10 Plaintiff testified that two motor vehicle accidents were “the cause of all of 11 [his] health problems.” AR 64. However, he inconsistently reported dates and 12 details regarding these incidents. In June 2014, at his intake appointment with Dr.
13 Crank, he reported that he was in a car crash in 1999 and that this caused the onset 14 of his back pain. AR 394. He also said that a second incident occurred in 2005, 15 when a car hit him from behind. AR 394. 16 Six days later, at his intake appointment with Dr. Foster, he reported that he
17 was hit as a pedestrian in 1995 and that the car crash occurred in 2007.4 AR 388- 18 89. He said his back pain first began after the 2007 accident. AR 389. 19
4 The ALJ incorrectly stated that Plaintiff only reported the 1995 incident to Dr. Foster 20 and did not mention any other motor vehicle accidents. AR 22. Plaintiff correctly notes that he reported both. ECF No. 11 at 16. 1 In September 2015, Plaintiff told Dr. Khaleeq that the car crash happened in 2 1991, when he was 21 years old, and this was when his back pain began. AR 578.
3 He stated that the car hit black ice, flipped four times, and the driver broke his 4 back. AR 578. He did not mention any other car accidents. See AR 578-81. 5 In December 2015, Plaintiff told Andrew Hilty, ARNP, that the car crash
6 occurred in 2005 and that he was hit as a pedestrian in 2010. AR 553. He stated his 7 back pain began after the 2010 incident. AR 553. 8 At the hearing, Plaintiff first testified that he was hit as a pedestrian in the 9 1990s. AR 56. He testified that he did not go to the hospital afterward because he
10 did not have insurance. AR 61. When pressed why he did not go to an emergency 11 room, Plaintiff responded that he did not get hit “real bad” and was able to walk 12 away from the incident. AR 61. Later, he testified that it was the car crash that
13 occurred in the 1990s. AR 64. He testified that the car flipped and the driver (who, 14 per his earlier report to Dr. Khaleeq, had broken his back) had to walk to a pay 15 phone to call for help. AR 64. He then clarified that he was hit as a pedestrian in 16 2005. AR 64.
17 The ALJ outlined these discrepancies and found that they undermined the 18 reliability of Plaintiff’s self-reported limitations. AR 22. This was proper. Smolen 19 v. Chater, 80 F.3d 1273, 1284 (9th Cir. 1996) (ALJs may consider prior
20 1 inconsistent statements and other testimony that appears less than candid in 2 weighing a claimant’s credibility).
3 Plaintiff argues that these inconsistencies were irrelevant because the Social 4 Security Act “is unconcerned with the cause of a disorder.” ECF No. 11 at 16. 5 While true, the ALJ’s concern was not whether the car accidents actually caused
6 Plaintiff’s back conditions, but rather whether his reports were consistent, which 7 sheds light on his reliability. This was permissible. See SSR 16-3p. 8 Plaintiff also argues that he has an intellectual disability and that “limitations 9 in remembering dates and events is [] consistent with his presentation.” ECF No.
10 11 at 16. However, the ALJ disagreed that Plaintiff had an intellectual disorder. 11 AR 18; see AR 392 (Dr. Foster’s report noting “normal intellect”). While 12 intellectual disability was one possible explanation for the inconsistencies in
13 Plaintiff’s reports, the ALJ concluded that another explanation was more plausible. 14 And on appellate review, it is not the Court’s role to reweigh evidence that is 15 susceptible to more than one rational interpretation. Thomas, 278 F.3d at 959. 16 2. Subsequent work history after alleged car accident
17 Next, the ALJ found that even accepting Plaintiff’s testimony that he was 18 involved in a serious motor vehicle accident in the 1990s, his allegations were 19 inconsistent with his subsequent work history. AR 22. His earning records show
20 that he was employed at Eakin Fruit Company as a seasonal agricultural worker 1 from 1997 to 2001, which required him to stand, walk, and crouch for 9.5-hour 2 shifts. AR 200-01, 221. This work ended due to its seasonal nature. AR 212.
3 The ALJ found that this work activity after Plaintiff’s alleged disabling car 4 accident undermined his allegations that his spinal pain precluded him from 5 standing or walking for more than a few minutes at a time. AR 22. This was
6 proper. Osenbrock v. Apfel, 240 F.3d 1157, 1165 (9th Cir. 2001) (alleged 7 limitations were properly rejected where claimant was able to work after the injury 8 causing the alleged limitations); Trisdale v. Astrue, 334 Fed. Appx. 85, 87 (9th Cir. 9 2009) (holding that claimant’s “work activity after the accident” was a proper basis
10 for discounting credibility); Parsons v. Comm’r of Soc. Sec., 2012 WL 4468542, at 11 *7 (E.D. Cal. 2012) (claimant’s work activity after car accident, which he claimed 12 caused his disabling back injury, was a proper basis for rejecting his alleged
13 limitations). 14 Plaintiff argues that this work activity occurred before his alleged onset date. 15 ECF No. 11 at 17. While true, it was after the initial car accident that he alleged 16 caused his disabling back condition. AR 64; see Osenbrock, 240 F.3d at 1165. He
17 also argues that the ALJ should not have discounted his allegations because he 18 “tried to work for a short period of time and, because of [his] impairments, failed.” 19 ECF No. 11 at 17. But the record indicates he stopped working because the job was
20 seasonal. AR 212. Finally, he argues he made less than $32,000 total and was 1 never at substantial gainful activity levels. ECF No. 11 at 17. Nevertheless, it was 2 something the ALJ was entitled to consider. Casas v. Comm’r of Soc. Sec., 2017
3 WL 2222613, at *6 (D. Ariz. 2017) (“To the extent Plaintiff is actually arguing that 4 the ALJ should not have considered any of Plaintiff’s work activity because such 5 work activity did not amount to SGA, (Doc. 22 at 2-3), this argument also fails.”).
6 3. Complaints inconsistent with medical evidence 7 Finally, the ALJ reasoned that Plaintiff’s alleged limitations were generally 8 inconsistent with the medical evidence, which included normal or mild imaging 9 studies, benign physical and mental examination findings, and normal presentation
10 during examinations. AR 22-26. 11 First, the ALJ outlined nine imaging studies of Plaintiff’s cervical, thoracic, 12 and lumbar spine from between 2014 and 2016. AR 23. Nearly all of these were
13 “completely normal” and, at most, revealed only mild or minimal changes. AR 23; 14 see AR 508 (December 2016 MRI showing normal lumbar spine), 509 (December 15 2015 MRI showing normal thoracic spine), 511 (June 2015 x-ray showing normal 16 thoracic spine), 512 (June 2015 x-ray showing normal lumbar spine except for
17 “minimal scoliosis”), 513 (March 2015 x-ray showing normal lumbar spine except 18 for “minimal scoliosis”), 535 (June 2014 x-ray showing normal lumbar spine and 19 “mild degenerative changes” of cervical spine), 575 (August 2016 x-ray showing
20 normal thoracic spine), 576 (August 2016 x-ray showing normal lumbar spine, 1 with “mild scoliotic deformity resolved”). Plaintiff’s pain doctor reviewed the 2 imaging and noted, “No etiology is appreciated for the patient’s symptoms.” AR
3 509, 566. The ALJ reasoned that given Plaintiff’s descriptions of incapacitating 4 back symptoms due to the motor vehicle accidents, one would expect to see some 5 findings. AR 23. However, all of the imaging studies demonstrated normal or, at
6 most, mild findings throughout Plaintiff’s spine. AR 23. 7 Next, the ALJ outlined two years’ worth of chart notes from Plaintiff’s 8 physicians and noted that his physical examinations were largely benign. AR 23- 9 24. The ALJ described how Plaintiff consistently had full range of motion in his
10 cervical, thoracic, and lumbar spine, as well as in both arms. AR 23-24; see AR 11 346, 358, 362, 401-02, 406, 410, 470, 490, 493, 502, 505, 566. He had a normal 12 gait, normal balance, could walk on his heels and toes, and denied weakness. AR
13 346, 358, 362, 392, 406, 410, 490, 493, 502, 505, 566. He had full motor strength, 14 normal muscle tone, and no muscle atrophy. AR 392, 490, 493, 502, 505, 566. He 15 generally had negative straight leg raise tests, with some exceptions. AR 23-24, 16 380, 383, 386, 392, 477, 564, 566. He also generally had normal sensation, again
17 with some exceptions in his left thigh and leg. AR 490, 493, 502, 505, 564, 566. 18 Finally, the ALJ noted that Plaintiff presented unremarkably during his 19 examinations and was always well-appearing, cooperative, and in no distress. AR
20 1 346, 358, 362, 406, 410, 429, 445, 480, 482, 484, 487, 490, 493, 502, 505, 568, 2 571, 573.
3 The ALJ found that Plaintiff’s physical5 examination findings and benign 4 presentation were inconsistent with his allegations of debilitating back pain and his 5 alleged inability to stand, walk, or sit for more than a few minutes. AR 24. The
6 ALJ also noted that although Plaintiff claimed to be very sedentary, he had not lost 7 muscle tone or developed atrophy. AR 24. This was proper. Carmickle v. Comm’r 8 of Soc. Sec., 533 F.3d 1155, 1161 (9th Cir. 2008) (ALJ may discount claimant’s 9 subjective symptom complaints when they are inconsistent with the medical
10 evidence and examination findings); Tonapetyan v. Halter, 242 F.3d 1144, 1148 11 (9th Cir. 2001) (same). 12 Plaintiff first argues that the ALJ improperly rejected his subjective pain
13 complaints because he did not produce medical evidence corroborating them. ECF 14 No. 11 at 18. While this would be error, this is not what the ALJ did. Rather, the 15 ALJ discredited Plaintiff’s testimony because the medical records affirmatively 16 contradicted it, which is permissible.
17 18 5 The ALJ also discoun ted Plaintiff’s credibility in part because his test results for depression were consistently negative and he also consistently denied experiencing depressive 19 symptoms. AR 25-26. However, Plaintiff never alleged that he suffered from depression either in his application or at the hearing. AR 64, 90, 211. In fact, he denied it. AR 64. Therefore, Plaintiff’s allegations are consistent with the medical record in this respect and the ALJ erred in 20 discrediting them on this basis. The error, however, was harmless because the ALJ properly found that Plaintiff’s physical complaints were belied by the medical evidence. 1 Plaintiff also cites a variety of abnormal examination findings scattered 2 throughout the medical record, which he asserts are consistent with and support his
3 testimony. ECF No. 11 at 18-19. He argues these records indicate limited range of 4 motion, “increased cervical lordosis,” “reduced lumbar lordosis,” “kyphotic 5 deformity,” weakness, decreased sensation, “pectus excavatum,” and positive
6 straight leg tests. Id. However, (1) these are isolated findings that do not reflect the 7 totality of the medical record, (2) the ALJ agreed there were some abnormal 8 findings, but noted that these were exceptions, (3) some of these conditions, such 9 as sunken chest, are not at issue in this case and have no identifiable functional
10 limitations, (4) almost none of these records are from acceptable medical sources, 11 see AR 318, 320, 324, 325, 327, 329, 330, 392, 418, 430, 439, unlike the records 12 upon which the ALJ relied, and (5) many of these records actually reveal normal
13 findings, e.g., AR 318 (cited for reduced range of motion, which were instead 14 “WNL”), 469 (same). 15 When the ALJ presents a reasonable interpretation that is supported by 16 substantial evidence, it is not the Court’s role to second-guess it. For the reasons
17 discussed above, the ALJ did not err when discounting Plaintiff’s subjective 18 complaint testimony because he provided multiple clear and convincing reasons 19 for doing so.
20 1 D. Substantial Evidence Supports the ALJ’s Step Five Finding that Other Jobs Existed in Significant Numbers in the National Economy that 2 Plaintiff Could Perform
3 Finally, Plaintiff argues that substantial evidence does not support the ALJ’s 4 step five finding because the vocational expert’s job number estimates were 5 inaccurate. ECF No. 11 at 19-21. He asserts that he performed his own labor 6 market research in Job Browser and that his search produced job number estimates 7 that were significantly lower than the vocational expert’s. Id. at 20-21. 8 In this case, the vocational expert testified that Plaintiff’s residual functional 9 capacity allowed him to perform the jobs of: (1) assembler, of which there are
10 29,000 jobs nationwide, (2) dowel inspector, of which there are 13,000 jobs 11 nationwide, and (3) waxer, of which there are 6,700 jobs nationwide. AR 84-85. 12 Relying on this testimony—which the ALJ was entitled to do, see Shaibi v.
13 Berryhill, 883 F.3d 1102, 1109 (9th Cir. 2018)—the ALJ found that Plaintiff could 14 perform these three jobs. AR 30. 15 Plaintiff contends that he performed his own labor market research in Job 16 Browser and that his search produced job number estimates that were significantly
17 lower than the vocational expert’s. ECF No. 11 at 20-21. However, submitting 18 one’s own research from Job Browser—evidence that is unauthenticated, unsworn, 19 outside of the record, not subject to questioning, and unaccompanied by any
20 analysis or explanation from a vocational expert to put the raw data into context— 1 is not a sufficient basis to undermine the reliability of a testifying vocational 2 expert’s opinion. Michelle S. v. Comm. of Soc. Sec., No. 1:18-CV-03199-RHW,
3 ECF No. 17, at 24-25 (E.D. Wash. 2020) (Whaley, J.); Helen P. v. Comm. of Soc. 4 Sec., No. 1:18-CV-03236-RHW, ECF No. 17, at 9-11 (E.D. Wash. 2020) (Whaley, 5 J.); Martinez v. Colvin, 2015 WL 4270021, at *9 (C.D. Cal. 2015); Cardone v.
6 Colvin, 2014 WL 1516537, at *5 (C.D. Cal. 2014); Vera v. Colvin, 2013 WL 7 6144771, at *22 (C.D. Cal. 2013); Solano v. Colvin, 2013 WL 3776333, at *1 8 (C.D. Cal. 2013). 9 VIII. Order
10 Having reviewed the record and the ALJ’s findings, the Court finds the 11 ALJ’s decision is supported by substantial evidence and is free from legal error. 12 Accordingly, IT IS ORDERED:
13 1. Plaintiff’s Motion for Summary Judgment, ECF No. 11, is DENIED. 14 2. Defendant’s Motion for Summary Judgment, ECF No. 16, is 15 GRANTED. 16 ///
17 /// 18 /// 19 ///
20 /// 1 3. Judgment shall be entered in favor of Defendant and the file shall be 2 CLOSED.
3 IT IS SO ORDERED. The District Court Executive is directed to enter this 4 Order, forward copies to counsel, and close the file. 5 DATED this March 23, 2020.
6 s/Robert H. Whaley ROBERT H. WHALEY Senior United States District Judge 7 8 9 10 11 12 13 14 15 16
17 18 19