EASTERUN. SD.I SDTIRSITCRTI COTF CWOAUSRHTI NGTON 2 Sep 09, 2019
SEAN F. MCAVOY, CLERK 3
5 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF WASHINGTON 6
7 SHAREE RAE V., NO: 2:18-CV-214-FVS 8 Plaintiff, ORDER GRANTING DEFENDANT’S 9 v. MOTION FOR SUMMARY JUDGMENT AND DENYING 10 ANDREW M. SAUL, PLAINTIFF’S MOTION FOR COMMISSIONER OF SOCIAL SUMMARY JUDGMENT 11 SECURITY,1
12 Defendant.
13 14 BEFORE THE COURT are the parties’ cross motions for summary 15 judgment. ECF Nos. 12 and 13. This matter was submitted for consideration 16
17 1 Andrew M. Saul is now the Commissioner of the Social Security 18 Administration. Accordingly, the Court substitutes Andrew M. Saul as the 19 Defendant and directs the Clerk to update the docket sheet. See Fed. R. Civ. P. 20 25(d). 21 1 without oral argument. The Plaintiff is represented by Attorney Jeffrey Schwab. 2 The Defendant is represented by Special Assistant United States Attorney Justin L. 3 Martin. The Court has reviewed the administrative record, the parties’ completed 4 briefing, and is fully informed. For the reasons discussed below, the Court
5 DENIES Plaintiff’s Motion for Summary Judgment, ECF No. 12, and GRANTS 6 Defendant’s Motion for Summary Judgment, ECF No. 13. 7 JURISDICTION
8 Plaintiff Sharee Rae V.2 protectively filed for disability insurance benefits 9 and supplemental security income on July 22, 2015, alleging an onset date of 10 January 25, 2015. Tr. 224-34. Benefits were denied initially, Tr. 135-42, and upon 11 reconsideration, Tr. 145-57. Plaintiff appeared for a hearing before an
12 administrative law judge (“ALJ”) on February 7, 2017. Tr. 41-84. Plaintiff was 13 represented by counsel and testified at the hearing. Id. The ALJ denied benefits, 14 Tr. 12-30, and the Appeals Council denied review. Tr. 1. The matter is now
15 before this court pursuant to 42 U.S.C. §§ 405(g), 1383(c)(3). 16 / / / 17 / / / 18
19 2 In the interest of protecting Plaintiff’s privacy, the Court will use Plaintiff’s first 20 name and last initial, and, subsequently, Plaintiff’s first name only, throughout this 21 decision. 1 BACKGROUND 2 The facts of the case are set forth in the administrative hearing and 3 transcripts, the ALJ’s decision, and the briefs of Plaintiff and the Commissioner. 4 Only the most pertinent facts are summarized here.
5 Plaintiff was 23 years old at the time of the hearing. See Tr. 85. She 6 completed high school and attended special education classes; and she attended 7 one year of community college. Tr. 46, 49, 270, 314. She lived with a friend at
8 the time of the hearing. Tr. 38, 46. Plaintiff has work history as a cashier. Tr. 47- 9 48, 72. She testified that she stopped working, and has not attempted to return to 10 work, because of back pain and cyclic vomiting syndrome. Tr. 50. 11 Plaintiff testified that she cannot work because she is not “able to
12 communicate with others because of [her] bipolar”; bipolar and back pain make 13 her irritable with people; she has trouble concentrating; she has trouble sleeping 14 because of chronic back pain; she has cyclic vomiting syndrome; and she has
15 depression. Tr. 54-58, 62-64. Plaintiff reported that she does chores with breaks 16 because of back pain; occasionally goes grocery shopping and cooks; isolates 17 herself in her room; and doesn’t see people often. Tr. 59-60. 18 STANDARD OF REVIEW
19 A district court’s review of a final decision of the Commissioner of Social 20 Security is governed by 42 U.S.C. § 405(g). The scope of review under § 405(g) is 21 limited; the Commissioner’s decision will be disturbed “only if it is not supported 1 by substantial evidence or is based on legal error.” Hill v. Astrue, 698 F.3d 1153, 2 1158 (9th Cir. 2012). “Substantial evidence” means “relevant evidence that a 3 reasonable mind might accept as adequate to support a conclusion.” Id. at 1159 4 (quotation and citation omitted). Stated differently, substantial evidence equates to
5 “more than a mere scintilla[,] but less than a preponderance.” Id. (quotation and 6 citation omitted). In determining whether the standard has been satisfied, a 7 reviewing court must consider the entire record as a whole rather than searching
8 for supporting evidence in isolation. Id. 9 In reviewing a denial of benefits, a district court may not substitute its 10 judgment for that of the Commissioner. If the evidence in the record “is 11 susceptible to more than one rational interpretation, [the court] must uphold the
12 ALJ’s findings if they are supported by inferences reasonably drawn from the 13 record.” Molina v. Astrue, 674 F.3d 1104, 1111 (9th Cir. 2012). Further, a district 14 court “may not reverse an ALJ’s decision on account of an error that is harmless.”
15 Id. An error is harmless “where it is inconsequential to the [ALJ’s] ultimate 16 nondisability determination.” Id. at 1115 (quotation and citation omitted). The 17 party appealing the ALJ’s decision generally bears the burden of establishing that 18 it was harmed. Shinseki v. Sanders, 556 U.S. 396, 409-10 (2009).
19 FIVE-STEP EVALUATION PROCESS 20 A claimant must satisfy two conditions to be considered “disabled” within 21 the meaning of the Social Security Act. First, the claimant must be “unable to 1 engage in any substantial gainful activity by reason of any medically determinable 2 physical or mental impairment which can be expected to result in death or which 3 has lasted or can be expected to last for a continuous period of not less than twelve 4 months.” 42 U.S.C. §§ 423(d)(1)(A), 1382c(a)(3)(A). Second, the claimant’s
5 impairment must be “of such severity that he is not only unable to do his previous 6 work[,] but cannot, considering his age, education, and work experience, engage in 7 any other kind of substantial gainful work which exists in the national economy.”
8 42 U.S.C. §§ 423(d)(2)(A), 1382c(a)(3)(B). 9 The Commissioner has established a five-step sequential analysis to 10 determine whether a claimant satisfies the above criteria. See 20 C.F.R. §§ 11 404.1520(a)(4)(i)-(v), 416.920(a)(4)(i)-(v). At step one, the Commissioner
12 considers the claimant’s work activity. 20 C.F.R. §§ 404.1520(a)(4)(i), 13 416.920(a)(4)(i). If the claimant is engaged in “substantial gainful activity,” the 14 Commissioner must find that the claimant is not disabled. 20 C.F.R. §§
15 404.1520(b), 416.920(b). 16 If the claimant is not engaged in substantial gainful activity, the analysis 17 proceeds to step two. At this step, the Commissioner considers the severity of the 18 claimant’s impairment. 20 C.F.R. §§ 404.1520(a)(4)(ii), 416.920(a)(4)(ii). If the
19 claimant suffers from “any impairment or combination of impairments which 20 significantly limits [his or her] physical or mental ability to do basic work 21 activities,” the analysis proceeds to step three. 20 C.F.R. §§ 404.1520(c), 1 416.920(c). If the claimant’s impairment does not satisfy this severity threshold, 2 however, the Commissioner must find that the claimant is not disabled. 20 C.F.R. 3 §§ 404.1520(c), 416.920(c). 4 At step three, the Commissioner compares the claimant’s impairment to
5 severe impairments recognized by the Commissioner to be so severe as to preclude 6 a person from engaging in substantial gainful activity. 20 C.F.R. §§ 7 404.1520(a)(4)(iii), 416.920(a)(4)(iii). If the impairment is as severe or more
8 severe than one of the enumerated impairments, the Commissioner must find the 9 claimant disabled and award benefits. 20 C.F.R. §§ 404.1520(d), 416.920(d). 10 If the severity of the claimant’s impairment does not meet or exceed the 11 severity of the enumerated impairments, the Commissioner must pause to assess
12 the claimant’s “residual functional capacity.” Residual functional capacity (RFC), 13 defined generally as the claimant’s ability to perform physical and mental work 14 activities on a sustained basis despite his or her limitations, 20 C.F.R. §§
15 404.1545(a)(1), 416.945(a)(1), is relevant to both the fourth and fifth steps of the 16 analysis. 17 At step four, the Commissioner considers whether, in view of the claimant’s 18 RFC, the claimant is capable of performing work that he or she has performed in
19 the past (past relevant work). 20 C.F.R. §§ 404.1520(a)(4)(iv), 416.920(a)(4)(iv). 20 If the claimant is capable of performing past relevant work, the Commissioner 21 must find that the claimant is not disabled. 20 C.F.R. §§ 404.1520(f), 416.920(f). 1 If the claimant is incapable of performing such work, the analysis proceeds to step 2 five. 3 At step five, the Commissioner considers whether, in view of the claimant’s 4 RFC, the claimant is capable of performing other work in the national economy.
5 20 C.F.R. §§ 404.1520(a)(4)(v), 416.920(a)(4)(v). In making this determination, 6 the Commissioner must also consider vocational factors such as the claimant’s age, 7 education and past work experience. 20 C.F.R. §§ 404.1520(a)(4)(v),
8 416.920(a)(4)(v). If the claimant is capable of adjusting to other work, the 9 Commissioner must find that the claimant is not disabled. 20 C.F.R. §§ 10 404.1520(g)(1), 416.920(g)(1). If the claimant is not capable of adjusting to other 11 work, analysis concludes with a finding that the claimant is disabled and is
12 therefore entitled to benefits. 20 C.F.R. §§ 404.1520(g)(1), 416.920(g)(1). 13 The claimant bears the burden of proof at steps one through four. Tackett v. 14 Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999). If the analysis proceeds to step five,
15 the burden shifts to the Commissioner to establish that (1) the claimant is capable 16 of performing other work; and (2) such work “exists in significant numbers in the 17 national economy.” 20 C.F.R. §§ 404.1560(c)(2), 416.960(c)(2); Beltran v. Astrue, 18 700 F.3d 386, 389 (9th Cir. 2012).
19 ALJ’S FINDINGS 20 At step one, the ALJ found Plaintiff has not engaged in substantial gainful 21 activity since January 25, 2015, the alleged onset date. Tr. 17. At step two, the 1 ALJ found that Plaintiff has the following severe impairments: congenital postural 2 lordosis, chronic pain syndrome, long-term use of drug, major depressive disorder, 3 and social anxiety disorder. Tr. 18. At step three, the ALJ found that Plaintiff 4 does not have an impairment or combination of impairments that meets or
5 medically equals the severity of a listed impairment. Tr. 18. The ALJ then found 6 that Plaintiff has the RFC 7 to perform light work as defined in 20 CFR 404.1567(b) and 20 CFR 416.967(b) except she requires a sit-stand option, defined as changing 8 from a standing position to a sitting position, or vice-versa, at least one time per hour for five minutes while remaining at the workstation. She 9 can never climb ladders, ropes, and scaffolds or use moving or dangerous machinery, or be exposed to unprotected heights but can 10 frequently stoop, crouch, kneel, crawl, and climb ramps and stairs. She would need to avoid no more than frequent [as opposed to continuous 11 or repetitive] exposure to pulmonary irritants such [as] fumes, odors, dust, gases, etc. She would also need to work in a low stress 12 environment (defined as not requiring the worker to cope with work related circumstances that could be a danger to the worker or others) 13 and not at a production pace.
14 Tr. 19. At step four, the ALJ found that Plaintiff is unable to perform any past 15 relevant work. Tr. 24. At step five, the ALJ found that considering Plaintiff’s age, 16 education, work experience, and RFC, there are jobs that exist in significant 17 numbers in the national economy that Plaintiff can perform, including: cleaner, 18 housekeeping, garment sorter, and mail clerk. Tr. 24-25. On that basis, the ALJ 19 concluded that Plaintiff has not been under a disability, as defined in the Social 20 Security Act, from January 25, 2015, through the date of the decision. Tr. 25. 21 1 ISSUES 2 Plaintiff seeks judicial review of the Commissioner’s final decision denying 3 her disability insurance benefits under Title II of the Social Security Act and 4 supplemental security income benefits under Title XVI of the Social Security Act.
5 ECF No. 12. Plaintiff raises the following issues for this Court’s review: 6 1. Whether the ALJ properly weighed the medical opinion evidence; 7 2. Whether the ALJ properly considered Plaintiff’s symptom claims;
8 3. Whether the ALJ failed to fully and fairly develop the record; and 9 4. Whether the ALJ erred at step five. 10 DISCUSSION 11 A. Medical Opinions
12 There are three types of physicians: “(1) those who treat the claimant 13 (treating physicians); (2) those who examine but do not treat the claimant 14 (examining physicians); and (3) those who neither examine nor treat the claimant
15 [but who review the claimant's file] (nonexamining [or reviewing] physicians).” 16 Holohan v. Massanari, 246 F.3d 1195, 1201–02 (9th Cir. 2001) (citations omitted). 17 Generally, a treating physician's opinion carries more weight than an examining 18 physician's, and an examining physician's opinion carries more weight than a
19 reviewing physician's. Id. If a treating or examining physician's opinion is 20 uncontradicted, the ALJ may reject it only by offering “clear and convincing 21 reasons that are supported by substantial evidence.” Bayliss v. Barnhart, 427 F.3d 1 1211, 1216 (9th Cir. 2005). Conversely, “[i]f a treating or examining doctor's 2 opinion is contradicted by another doctor's opinion, an ALJ may only reject it by 3 providing specific and legitimate reasons that are supported by substantial 4 evidence.” Id. (citing Lester v. Chater, 81 F.3d 821, 830-31 (9th Cir. 1995)).
5 “However, the ALJ need not accept the opinion of any physician, including a 6 treating physician, if that opinion is brief, conclusory and inadequately supported 7 by clinical findings.” Bray v. Comm'r of Soc. Sec. Admin., 554 F.3d 1219, 1228
8 (9th Cir. 2009) (quotation and citation omitted). 9 Plaintiff argues the ALJ erroneously considered the opinions of treating 10 physician Mark Hanson, M.D. and reviewing physician Myrna Palasi, M.D.3 ECF 11 No. 12 at 12-17.
13 3 Plaintiff also briefly argues that the ALJ erred by rejecting the treating 14 physician’s opinion “in favor of a contradictory opinion from [s]tate agency 15 consultant Wayne Hurley, M.D.” ECF No. 12 at 16. However, while an ALJ 16 generally gives more weight to a treating doctor's opinion than to a non-examining 17 doctor's opinion, a non-examining doctor's opinion may nonetheless constitute 18 substantial evidence if it is consistent with other independent evidence in the 19 record. Thomas v. Barnhart, 278 F.3d 947, 957 (9th Cir.2002); Orn, 495 F.3d at 20 632–33. As noted by Defendant, Dr. Hurley reviewed the available medical 21 evidence and his “opinion was consistent with record evidence, including the 1 1. Mark Hanson, M.D. 2 In May 2015, Plaintiff’s treating physician, Dr. Mark Hanson, opined that she 3 had marked to severe limitations in her ability to work at heights, climb and descend 4 stairs, squat, bend, twist, lift, push, pull, drive, and stand. Tr. 362. Dr. Hanson 5 further opined that Plaintiff was “severely limited” in her ability to perform in a 6 regular predictable manner despite her impairment. Tr. 363. The ALJ granted his 7 opinion little weight for several reasons. Tr. 23. 8 First, the ALJ gave Dr. Hanson’s opinion little weight because “he 9 specifically [stated] that they were still awaiting [Plaintiff’s] MRI results and when 10 asked for her examination findings, Dr. Hanson wrote, ‘see subjective summary.’” 11 Tr. 23. Plaintiff argues that although “Dr. Hanson did not have these results at the 12 time of his evaluation, his opinion was justified by his thorough physical 13 examination,” which included observations of moderate discomfort with ambulation 14 and sitting, standing, and arising from sitting; lordotic lumbar curvature; some 15 tenderness; positive straight leg raise test; and limited range of motion. Tr. 365-66. 16 However, the ALJ may discredit a physician’s opinion that is unsupported by 17 18 physical examinations and diagnostic imaging results, which, [as noted by the 19 ALJ], were mostly unremarkable during the relevant period.” ECF No. 13 at 10. 20 The Court finds no error in the ALJ’s consideration of Dr. Hurley’s opinion. 21 1 objective medical findings. Batson v. Comm’r Soc. Sec. Admin., 359 F.3d 1190, 2 1195 (9th Cir. 2004). And the ALJ may reject a physician’s opinion if it is based “to 3 a large extent” on Plaintiff’s self-reports that have been properly discounted as not 4 credible. Tommasetti v. Astrue, 533 F.3d 1035, 1041 (9th Cir. 2008).
5 Here, as noted by the ALJ, in the “objective” section of Dr. Hanson’s opinion, 6 he relied entirely on Plaintiff’s subjective complaints that her pain was worsened 7 when lifting, bending, twisting, pulling, walking more than thirty minutes, sitting for
8 longer than thirty to forty minutes, driving more than twenty minutes, and standing 9 more than twenty minutes. See Tr. 362, 365. As discussed below, Plaintiff’s 10 subjective complaints were properly discounted by the ALJ. Moreover, Dr. Hanson 11 indicated that he was unable to determine how long the current limitation on work
12 activities would persist with available medical treatment because he was still 13 awaiting the requested MRI results. Tr. 363. To be found disabled, a claimant must 14 be unable to engage in any substantial gainful activity due to an impairment which
15 “can be expected to result in death or which has lasted or can be expected to last for 16 a continuous period of not less than 12 months.” 42 U.S.C. § 423(d)(1)(A); see also 17 Chaudhry v. Astrue, 688 F.3d 661, 672 (9th Cir. 2012). 18 Based on the foregoing, and regardless of evidence that could be considered
19 more favorable to Plaintiff, it was reasonable for the ALJ to conclude that Dr. 20 Hanson’s opinion was unsupported by objective medical findings, and based in large 21 part on Plaintiff’s properly discounted subjective complaints. See Burch v. 1 Barnhart, 400 F.3d 676, 679 (9th Cir. 2005) (where evidence is susceptible to more 2 than one interpretation, the ALJ’s conclusion must be upheld). These were specific 3 and legitimate reasons to reject Dr. Hanson’s opinion. 4 2. Myrna Palasi, M.D.
5 In July 2015, state agency reviewing physician Dr. Myrna Palasi opined that 6 Plaintiff had “severe limitation” in the categories of “postural restriction” and “gross 7 or fine motor skill restrictions.” Tr. 415. Dr. Palasi further opined that Plaintiff was
8 unable to perform activity at all exertional levels,` but simultaneously determined 9 that the highest level of work Plaintiff could perform, based on the exertional table, 10 was sedentary. Tr. 415. Finally, Dr. Palasi noted that “severity is indeterminable 11 based on evidence” regarding Plaintiff’s ability to perform activities within a
12 schedule, maintain regular attendance and be punctual within customary tolerances; 13 perform routine tasks without undue supervision; make simple work-related 14 decisions; be aware of normal hazards and take appropriate precautions; and ask
15 simple questions or request assistance. Tr. 415. The ALJ gave her opinion little 16 weight for several reasons. Tr. 23. 17 First, the ALJ found Dr. Palasi’s assessment of a sedentary RFC “does not 18 comport with indications on the same page that [Plaintiff] was unable to perform
19 sedentary work and that the severity of [Plaintiff’s] limitations was indeterminable 20 based on the evidence.” Tr. 23. Internal inconsistencies within a physician’s 21 report constitute relevant evidence when weighing medical opinions. Morgan v. 1 Comm’r Soc. Sec. Admin., 169 F.3d 595, 603 (9th Cir. 1999). Plaintiff contends 2 that this finding “mischaracterizes the evidence” because Dr. Palasi 3 “acknowledged this discrepancy when she stated that due to the severity of 4 [Plaintiff’s] combined conditions, a less than sedentary RFC was recommended.”
5 ECF No. 12 at 15 (citing Tr. 412). Plaintiff is correct that one portion of Dr. 6 Palasi’s opinion indicated that “due to the severity of this [Plaintiff’s] combined 7 conditions (morbid obesity and L-spine DDD) recommend a less than sedentary
8 RFC.” Tr. 412. However, in support of this finding, the ALJ relies on a separate 9 portion of Dr. Palasi’s opinion that assessed Plaintiff as entirely unable to perform 10 sedentary work according to the “exertional table”; but simultaneously checked the 11 box for the “highest level of work the [Plaintiff] can perform on the Exertional
12 Table above” as “sedentary” as opposed to checking the box for “less than 13 sedentary.” Tr. 415. This internal inconsistency was a specific and legitimate 14 reason to give Dr. Palasi’s reviewing opinion less weight.
15 Second, the ALJ noted that Dr. Palasi “indicated that [Plaintiff] was severely 16 limited for gross and fine skills, for which there has been no evidence.” Tr. 23. 17 “[T]he ALJ need not accept the opinion of any physician, including a treating 18 physician, if that opinion is brief, conclusory and inadequately supported by clinical
19 findings.” Bray, 554 F.3d at 1228; see also Orn v. Astrue, 495 F.3d 625, 631 (9th 20 Cir. 2007) (consistency of a medical opinion with the record as a whole is a relevant 21 factor in evaluating that medical opinion). Plaintiff argues this finding is “incorrect” 1 because Dr. Palasi “indicated” that Plaintiff’s condition was worsened by “gross 2 motor skills” such as lifting and walking; and Plaintiff “consistently” complained of 3 difficulty running, walking, lifting, and performing daily activities. ECF No. 12 at 4 16. However, as argued by Defendant, to the extent Dr. Palasi assessed severe fine
5 motor restrictions, there were no objective findings to support this limitation. ECF 6 No. 13 at 8. Moreover, the evidence cited by Plaintiff in support of this argument, 7 including the evidence cited by Dr. Palasi as to restrictions on Plaintiff’s ability to
8 lift, walk, and sit, is largely comprised of Plaintiff’s subjective complaints, which, as 9 discussed herein, were properly discounted by the ALJ. ECF No. 12 at 16 (citing Tr. 10 412, 334, 338, 356, 364-65, 378-80, 385, 405). For all of these reasons, it was 11 reasonable for the ALJ to conclude that the severity of the limitations assessed by
12 Dr. Palasi was inadequately supported by objective or clinical evidence in the 13 overall record. 14 B. Plaintiff’s Symptom Claims
15 An ALJ engages in a two-step analysis when evaluating a claimant’s 16 testimony regarding subjective pain or symptoms. “First, the ALJ must determine 17 whether there is objective medical evidence of an underlying impairment which 18 could reasonably be expected to produce the pain or other symptoms alleged.”
19 Molina, 674 F.3d at 1112 (internal quotation marks omitted). “The claimant is not 20 required to show that her impairment could reasonably be expected to cause the 21 severity of the symptom she has alleged; she need only show that it could 1 reasonably have caused some degree of the symptom.” Vasquez v. Astrue, 572 2 F.3d 586, 591 (9th Cir. 2009) (internal quotation marks omitted). 3 Second, “[i]f the claimant meets the first test and there is no evidence of 4 malingering, the ALJ can only reject the claimant’s testimony about the severity of
5 the symptoms if [the ALJ] gives ‘specific, clear and convincing reasons’ for the 6 rejection.” Ghanim v. Colvin, 763 F.3d 1154, 1163 (9th Cir. 2014) (internal 7 citations and quotations omitted). “General findings are insufficient; rather, the
8 ALJ must identify what testimony is not credible and what evidence undermines 9 the claimant’s complaints.” Id. (quoting Lester v. Chater, 81 F.3d 821, 834 (9th 10 Cir. 1995)); Thomas v. Barnhart, 278 F.3d 947, 958 (9th Cir. 2002) (“[T]he ALJ 11 must make a credibility determination with findings sufficiently specific to permit
12 the court to conclude that the ALJ did not arbitrarily discredit claimant’s 13 testimony.”). “The clear and convincing [evidence] standard is the most 14 demanding required in Social Security cases.” Garrison v. Colvin, 759 F.3d 995,
15 1015 (9th Cir. 2014) (quoting Moore v. Comm’r of Soc. Sec. Admin., 278 F.3d 920, 16 924 (9th Cir. 2002)). 17 Here, the ALJ found Plaintiff’s medically determinable impairments could 18 reasonably be expected to cause some of the alleged symptoms; however,
19 Plaintiff’s 20 statements concerning the intensity, persistence and limiting effects of these symptoms are not entirely consistent with the medical evidence 21 and other evidence in the record for the reasons explained in the 1 [Plaintiff’s] ability to work only to the extent they can reasonably be accepted as consistent with the objective medical and other evidence. 2 Tr. 20. Plaintiff generally argues that the ALJ failed to provide clear and 3 convincing reasons for rejecting Plaintiff’s symptom claims, and “he failed to 4 identify what testimony was credible and what testimony undermines [Plaintiff’s] 5 complaints.” ECF No. 12 at 18-19. However, Plaintiff does not “specifically and 6 distinctly” identify or challenge any of the ALJ’s reasons for discounting 7 Plaintiff’s symptom claims. See Kim v. Kang, 154 F.3d 996, 1000 (9th Cir. 1998) 8 (the Court may not consider on appeal issues not “specifically and distinctly 9 argued” in the party’s opening brief). Despite Plaintiff’s waiver, in an abundance 10 of caution, the Court will review the ALJ’s findings regarding Plaintiff’s symptom 11 claims. 12 1. Lack of Objective Medical Evidence 13 First, the ALJ noted Plaintiff’s medical records “show that since 2015, her 14 examinations have been unremarkable” and “the only objective findings of record 15 have been exaggerated lordosis curve.” Tr. 20. An ALJ may not discredit a 16 claimant’s pain testimony and deny benefits solely because the degree of pain 17 alleged is not supported by objective medical evidence. Rollins v. Massanari, 261 18 F.3d 853, 857 (9th Cir. 2001); Bunnell v. Sullivan, 947 F.2d 341, 346-47 (9th Cir. 19 1991); Fair v. Bowen, 885 F.2d 597, 601 (9th Cir. 1989). However, the medical 20 evidence is a relevant factor in determining the severity of a claimant’s pain and its 21 1 Here, the ALJ set out the medical evidence contradicting Plaintiff’s claims 2 of disabling physical limitations, including: examinations “throughout 2015” 3 showing Plaintiff had normal curvature of the back, normal motor, normal 4 coordination, and normal reflexes; August 2015 findings that “there were
5 absolutely no significant findings on MRI” aside from the exaggerated lordotic 6 curve; August 2015 examination results of no strength deficits, no sensory loss, 7 and no neural tension signs or abnormal reflexes; September 2015 treatment notes
8 indicating that Plaintiff’s nerve conduction findings did not correlate with her 9 examination and she “gave poor effort throughout most of the examination”; and 10 “her examinations in 2016 were without any significant deficits or limitations.” 11 Tr. 21-22 (citing Tr. 359, 394, 456-61, 479-80, 488, 507, 510, 515, 527, 530, 533-
12 34, 538). Similarly, the ALJ outlined medical evidence inconsistent with 13 Plaintiff’s allegations of disabling mental health limitations, including examining 14 psychiatrist’s conclusion that Plaintiff’s problem was “treatable, with a good
15 likelihood of recovery and is likely to improve within the next 12 months with 16 standard-of-care treatment”; and the general lack of evidence of mental health 17 treatment and “no mention of bipolar symptomatology” at Plaintiff’s “regular 18 medical visits” across the adjudicatory period. Tr. 22; see Burch, 400 F.3d at 680
19 (minimal objective evidence is a factor which may be relied upon in discrediting a 20 claimant’s testimony, although it may not be the only factor); see also Thomas, 278 21 F.3d at 958-59 (“If the ALJ finds that the claimant’s testimony as to the severity of 1 her pain and impairments is unreliable, the ALJ must make a credibility 2 determination . . . [t]he ALJ may consider testimony from physicians and third 3 parties concerning the nature, severity and effect of the symptoms of which the 4 claimant complains.”).
5 As noted above, Plaintiff does not challenge this finding in her opening 6 brief; therefore, the Court may decline to consider this issue. Carmickle v. 7 Comm’r of Soc. Sec. Admin., 533 F.3d 1155, 1161 n.2 (9th Cir. 2008). Regardless,
8 the Court finds the ALJ reasonably relied on evidence from the overall record, as 9 cited extensively above, to support the finding that despite Plaintiff’s complaints of 10 “pain and limitations,” her physical and mental examinations and objective test 11 results were unremarkable. Tr. 20-22. This lack of corroboration of Plaintiff’s
12 claimed limitations by the medical evidence was a clear and convincing reason, 13 supported by substantial evidence, for the ALJ to discount Plaintiff’s symptom 14 claims.
15 2. Improvement with Medication 16 The ALJ found that Plaintiff has “reported significant improvement with 17 medication management in both her allegations of back pain and her allegations of 18 bipolar disorder.” Tr. 20. “Impairments that can be controlled effectively with
19 medication are not disabling.” Warre v. Comm'r of the Soc. Sec. Admin., 439 F.3d 20 1001, 1006 (9th Cir. 2005); see also Tommasetti, 533 F.3d at 1040 (a favorable 21 response to treatment can undermine a claimant's complaints of debilitating pain or 1 other severe limitations). In support of this finding, the ALJ noted that Plaintiff 2 reported to Dr. Hanson in June 2015 that “she had tried cannabis edibles with 3 successful diminishment of pain to 5/10 without adverse side effect”; in December 4 2016 Plaintiff reported that medication was helping to decrease her back pain and
5 she was sleeping better; and records show Plaintiff’s asthma, esophagus reflux, and 6 ulcer have “either improved or remained under control and stable with medication 7 during the adjudication period.” Tr. 21-22 (citing Tr. 399, 505). As to his mental
8 impairments, the ALJ additionally noted that Plaintiff “requested a re-initiation of 9 her medication in June 2015 with significant improvement of mood within a 10 month”; in August 2015 Plaintiff was noted to be “well-controlled on lithium”; in 11 November and December 2015 Plaintiff reported she was doing well on her new
12 medication, which was helping a lot and she felt she was in much better control; 13 and in January 2016 she reported her medication was working “amazingly well.” 14 Tr. 22 (citing Tr. 399, 455, 462, 465, 536, 538).
15 The improvement of Plaintiff’s physical and mental complaints with 16 medication is a clear, convincing, and unchallenged reason to discount his 17 symptom claims. 18 3. Failure to Seek Mental Health Treatment
19 Finally, the ALJ noted that [a]lthough bipolar disorder has been included in her list of diagnoses 20 along with chronic lumbosacral back pain, morbid obesity, and long- term use of and encounter for therapeutic drug monitoring and opioid 21 dependent, there is no evidence of any mental health treatment and 1 more importantly, despite her regular medical visits, there is no mention of any bipolar symptomatology. 2 Tr. 22. An unexplained, or inadequately explained, failure to seek treatment or 3 follow a prescribed course of treatment may be considered when evaluating the 4 claimant's subjective symptoms. Orn, 495 F.3d at 638. Further, when there is no 5 evidence suggesting that the failure to seek or participate in treatment is 6 attributable to a mental impairment rather than a personal preference, it is 7 reasonable for the ALJ to conclude that the level or frequency of treatment is 8 inconsistent with the alleged severity of Plaintiff’s complaints. Molina, 674 F.3d 9 at 1113-14. As noted above, Plaintiff does not raise this issue in her opening brief; 10 nor does the Court discern any evidence suggesting that Plaintiff’s failure to seek 11 ongoing mental health treatment was attributable to her alleged mental health 12 symptoms. Carmickle, 533 F.3d at 1161 n.2. Thus, the Court finds that Plaintiff’s 13 failure to seek mental health treatment was a clear, convincing, and unchallenged 14 reason for the ALJ to reject her symptom claims. 15 The Court concludes that the ALJ provided clear and convincing reasons, 16 supported by substantial evidence, for rejecting Plaintiff’s symptom claims. 17 C. Duty to Develop the Record 18 An ALJ's duty to develop the record is triggered only when there is 19 ambiguous evidence or when the record is inadequate to allow for proper 20 evaluation of the evidence.” Mayes v. Massanari, 276 F.3d 453, 459-60 (9th Cir. 21 1 to fully and fairly develop the record by failing to call a medical expert to testify 2 regarding (1) “limitations from [Plaintiff’s] learning disability” and (2) whether 3 “the orthopedic findings in combination with [Plaintiff’s] obesity and other 4 medical problems” meet or equal a listing at step three. ECF No. 12 at 17.
5 However, Plaintiff fails to identify any limitations related to an alleged cognitive 6 disorder, or combination of “medical problems,” that were not properly accounted 7 for in the RFC. Molina, 674 F.3d at 1115 (error is harmless “where it is
8 inconsequential to the [ALJ’s] ultimate nondisability determination). Moreover, as 9 noted by Defendant, it is Plaintiff’s duty to prove that she is disabled; and this 10 burden cannot be shifted to the ALJ simply by virtue of the ALJ’s duty to develop 11 the record. ECF No. 13 at 12 (citing Mayes, 276 F.3d at 459-60). The ALJ did not
12 find, and the Court is unable to discern, any inadequacy or ambiguity that did not 13 allow for proper evaluation of the record as a whole. See Bayliss, 427 F.3d at 14 1217. Rather, as discussed herein, the ALJ identified sufficient evidence in the
15 record as a whole for a properly supported disability determination and as such 16 there is no ambiguity to be resolved. The ALJ did not err in failing to further 17 develop the record in this case. 18 D. Step Five
19 Last, Plaintiff argues the ALJ failed to account for limitations set forth in the 20 medical opinions discussed above; thus, the ALJ erred at step five by posing an 21 incomplete hypothetical to the vocational expert. ECF No. 12 at 19-20. Plaintiff is 1 correct that “[i]f an ALJ's hypothetical does not reflect all of the claimant's 2 limitations, the expert's testimony has no evidentiary value to support a finding that 3 the claimant can perform jobs in the national economy.” Bray, 554 F.3d at 1228 4 (citation and quotation marks omitted). However, as discussed in detail above, the
5 ALJ's rejection of the medical opinions of Dr. Hanson and Dr. Palasi, and the 6 consideration of Plaintiff’s symptom claims, was supported by the record and free 7 of legal error. The hypothetical proposed to the vocational expert contained the
8 limitations reasonably identified by the ALJ and supported by substantial evidence 9 in the record. Thus, the ALJ did not err at step five. 10 CONCLUSION 11 A reviewing court should not substitute its assessment of the evidence for
12 the ALJ’s. Tackett, 180 F.3d at 1098. To the contrary, a reviewing court must 13 defer to an ALJ’s assessment as long as it is supported by substantial evidence. 42 14 U.S.C. § 405(g). As discussed in detail above, the ALJ properly weighed the
15 medical opinion evidence, provided clear and convincing reasons to discount 16 Plaintiff’s symptom claims, did not err in failing to develop the record fully and 17 fairly, and did not err at step five. After review, the Court finds the ALJ’s decision 18 is supported by substantial evidence and free of harmful legal error.
19 ACCORDINGLY, IT IS HEREBY ORDERED: 20 1. Plaintiff’s Motion for Summary Judgment, ECF No. 12, is DENIED. 21 1 2. Defendant’s Motion for Summary Judgment, ECF No. 13, is GRANTED. 2 The District Court Clerk is directed to enter this Order and provide copies to 3 counsel. Judgement shall be entered for Defendant and the file shall be CLOSED. 4 DATED September 9, 2019.
s/ Rosanna Malouf Peterson 6 ROSANNA MALOUF PETERSON United States District Judge 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21