Carlson v. Commissioner of Social Security Administration
Court Docket Sheet
District of Arizona2:2016-cv-02430 (azd)
First MOTION for Extension of Time to File Responsive Brief, Unopposed by Commissioner of Social Security Administration.
Case 2:16-cv-02430-ESW Document 21 Filed 01/27/17 Page 1 of 2 1 Elizabeth A. Strange Acting United States Attorney 2 District of Arizona 3 Lisa Goldoftas 4 Special Assistant United States Attorney 5 Office of the General Counsel Social Security Administration 6 701 Fifth Avenue, Suite 2900 M/S 221A 7 Seattle, WA 98104-7075 State Bar No. WA40807 8 Fax: (206) 615-2531 email@example.com 9 Telephone: (206) 615-3858 10 Of Attorneys for the Defendant 11 IN THE UNITED STATES DISTRICT COURT 12 DISTRICT OF ARIZONA 13 Craig Allen Carlson, No. CV-16-02430-PHX-ESW 14 15 Plaintiff, 16 DEFENDANT’S MOTION FOR vs. EXTENSION OF TIME 17 Nancy A. Berryhill, 18 (First Request) Acting Commissioner of Social 19 Security1, 20 Defendant. 21 Upon the records and files herein and the following declaration, Defendant moves 22 for an order allowing additional time, through February 17, 2017, in which to file a 23 24 1 Nancy A. Berryhill is now the Acting Commissioner of Social Security. Pursuant to 25 Rule 25(d) of the Federal Rules of Civil Procedure, Nancy A. Berryhill should be 26 substituted for Acting Commissioner Carolyn W. Colvin as the defendant in this suit. No further action needs to be taken to continue this suit by reason of the last sentence of 27 section 205(g) of the Social Security Act, 42 U.S.C. § 405(g). 28 Case 2:16-cv-02430-ESW Document 21 Filed 01/27/17 Page 2 of 2 1 responsive Brief in the above-entitled action, pursuant to Fed. R. Civ. P. 6(b)(1). 2 Plaintiff’s counsel has been contacted and has no objection to this request. 3 4 DATED this 27th day of January 2017. 5 Respectfully submitted, 6 7 ELIZABETH A. STRANGE 8 Acting United States Attorney District of Arizona 9 10 s/Lisa Goldoftas LISA GOLDOFTAS 11 Special Assistant United States Attorney 12 Of Counsel for the Defendant: 13 14 MATHEW W. PILE Acting Regional Chief Counsel, Social Security Administration 15 Office of the General Counsel, Region X 701 Fifth Avenue, Suite 2900 M/S 221A 16 Seattle, WA 98104-7075 17 18 CERTIFICATE OF SERVICE 19 20 I hereby certify that the foregoing Defendant’s Motion for Extension of 21 Time was filed with the Clerk of the Court on January 27, 2017, using the 22 CM/ECF system, which will send notification of such filing to the following: 23 24 Howard D Olinsky. 25 26 s/Megan Moore MEGAN MOORE 27 Paralegal Specialist 28 Office of the General Counsel 2
Text of Proposed Order
Case 2:16-cv-02430-ESW Document 21-1 Filed 01/27/17 Page 1 of 1 1 2 IN THE UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA 3 4 Craig Allen Carlson, No. CV-16-02430-PHX-ESW 5 Plaintiff, 6 ORDER GRANTING MOTION FOR vs. 7 EXTENSION OF TIME 8 Nancy A. Berryhill, Acting Commissioner of Social Security, 9 10 Defendant. 11 After considering the Defendant’s Motion for Extension of Time to file 12 13 Defendant’s response to Plaintiff’s opening brief, and that Plaintiff’s counsel has been 14 contacted and has indicated no objection regarding this motion, it is hereby: 15 16 ORDERED that an extension, to and including February 17, 2017, is granted. 17 IT IS SO ORDERED this _________ day of ____________________, 2017. 18 19 20 21 22 23 24 25 26 27 28
DECLARATION of Lisa Goldoftas re:  First MOTION for Extension of Time to File Responsive Brief, Unopposed by Defendant Commissioner of Social Security Administration.
Case 2:16-cv-02430-ESW Document 22 Filed 01/27/17 Page 1 of 3 1 Elizabeth A. Strange Acting United States Attorney 2 District of Arizona 3 Lisa Goldoftas 4 Special Assistant United States Attorney 5 Office of the General Counsel Social Security Administration 6 701 Fifth Avenue, Suite 2900 M/S 221A 7 Seattle, WA 98104-7075 State Bar No. WA40807 8 Fax: (206) 615-2531 firstname.lastname@example.org 9 Telephone: (206) 615-3858 10 Of Attorneys for the Defendant 11 IN THE UNITED STATES DISTRICT COURT 12 DISTRICT OF ARIZONA 13 Craig Allen Carlson, No. CV-16-02430-PHX-ESW 14 15 Plaintiff, 16 DECLARATION OF vs. LISA GOLDOFTAS 17 Nancy A. Berryhill, 18 Acting Commissioner of Social 19 Security1, 20 Defendant. I, Lisa Goldoftas, declare as follows: 21 22 1. I am Assistant Regional Counsel with the Social Security Administration, Office 23 of the General Counsel, in Seattle, Washington, and counsel for the Commissioner in the 24 1 Nancy A. Berryhill is now the Acting Commissioner of Social Security. Pursuant to 25 Rule 25(d) of the Federal Rules of Civil Procedure, Nancy A. Berryhill should be 26 substituted for Acting Commissioner Carolyn W. Colvin as the defendant in this suit. No further action needs to be taken to continue this suit by reason of the last sentence of 27 section 205(g) of the Social Security Act, 42 U.S.C. § 405(g). 28 Case 2:16-cv-02430-ESW Document 22 Filed 01/27/17 Page 2 of 3 1 above-captioned case. I make this Declaration in support of the Commissioner’s Motion 2 for Extension of Time. 3 2. The Commissioner’s brief in this matter is due January 30, 2017. This is my first 4 5 request for an extension of time in this matter. 6 3. Due to workload issues, I am seeking an extension to attend to this case and file 7 the appropriate response. I have been working on numerous disability cases before this 8 and other district courts, and have prepared answers and responses to attorney fee 9 10 requests and have worked on other pressing legal matters. I have five briefs or other 11 responses due the week of January 30, including two briefs due on January 30. I am 12 attempting to preserve limited judicial resources and have applied the most rapid 13 14 response under the circumstances. 15 4. For these reasons, I am requesting an extension up to and including February 17 16 (18 days). 17 18 5. I contacted Plaintiff’s counsel, who has no objection to my request for an 19 extension. 20 Pursuant to 28 U.S.C. § 1746, I declare under penalty of perjury that the foregoing is true 21 and correct. 22 23 Executed this 27th day of January 2017. 24 s/Lisa Goldoftas 25 LISA GOLDOFTAS Special Assistant U.S. Attorney 26 27 28 2 Case 2:16-cv-02430-ESW Document 22 Filed 01/27/17 Page 3 of 3 1 CERTIFICATE OF SERVICE 2 I hereby certify that the foregoing Declaration of Lisa Goldoftas was filed 3 4 with the Clerk of the Court on January 27, 2017, using the CM/ECF system, which 5 will send notification of such filing to the following: Howard D Olinsky. 6 7 s/Megan Moore 8 MEGAN MOORE 9 Paralegal Specialist Office of the General Counsel 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3
ORDER: granting Defendant's Motion for Extension of Time ; Defendant shall file a response to Plaintiff' Opening Brief no later than 2/17/17. Signed by Magistrate Judge Eileen S Willett on 2/3/17.
Case 2:16-cv-02430-ESW Document 23 Filed 02/03/17 Page 1 of 1 1 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Craig Allen Carlson, No. CV-16-02430-PHX-ESW 10 Plaintiff, ORDER 11 v. 12 Commissioner of Social Security Administration, 13 Defendant. 14 15 16 The Court having considered Defendant’s Motion for Extension of Time (Doc. 21) 17 and Declaration of Lisa Goldoftas (Doc. 22), there being no objection by Plaintiff, and 18 good cause appearing, 19 IT IS ORDERED granting the Motion for Extension of Time (Doc. 21). 20 Defendant shall file a response to Plaintiff’s Opening Brief no later than February 17, 21 2017. 22 Dated this 3rd day of February, 2017. 23 24 25 Honorable Eileen S. Willett United States Magistrate Judge 26 27 28
RESPONSE BRIEF by Commissioner of Social Security Administration.
Case 2:16-cv-02430-ESW Document 24 Filed 02/17/17 Page 1 of 23 1 Elizabeth A. Strange Acting United States Attorney 2 District of Arizona 3 Lisa Goldoftas Special Assistant United States Attorney 4 Office of the General Counsel Social Security Administration 5 701 Fifth Avenue, Suite 2900 M/S 221A Seattle, WA 98104-7075 6 State Bar No. WA40807 Fax: (206) 615-2531 7 email@example.com Telephone: (206) 615-3858s 8 Of Attorneys for the Defendant 9 10 11 IN THE UNITED STATES DISTRICT COURT 12 DISTRICT OF ARIZONA 13 14 Craig Allen Carlson, No. CV-16-02430-PHX-ESW 15 Plaintiff, DEFENDANT’S BRIEF 16 vs. 17 Nancy A. Berryhill, 18 Acting Commissioner of Social Security, 19 Defendant. 20 I. INTRODUCTION 21 Plaintiff Craig A. Carlson brings this action appealing the denial of his application 22 for a period of disability and disability insurance benefits under Title II of the Social-1-Case 2:16-cv-02430-ESW Document 24 Filed 02/17/17 Page 2 of 23 1 Security Act, 42 U.S.C. §§ 401-33. The Act provides for judicial review of a "final 2 decision" of the Commissioner of Social Security under 42 U.S.C. § 405(g). 3 II. STANDARD OF REVIEW 4 This Court has a limited scope of review.1 A district court must affirm the 5 Commissioner’s final decision unless it is unsupported by substantial evidence or is based 6 on legal error.2 Substantial evidence means "more than a scintilla, but not necessarily a 7 preponderance."3 This Court must uphold the Commissioner’s final decision when the 8 evidence is susceptible to more than one rational interpretation, and will not reverse for 9 harmless errors inconsequential to the determination of nondisability.4 10 III. PROCEDURAL HISTORY 11 Plaintiff filed an application for a period of disability and disability benefits under 12 Title II of the Act in June 2012, alleging disability beginning October 1, 2007. Tr. 25, 13 216-17. His claims were denied initially and upon consideration. Tr. 25. On September 2, 14 2014, an administrative law judge (ALJ) heard testimony from Plaintiff, who was 15 represented by an attorney. Tr. 25, 44-98. At the hearing, Plaintiff, through counsel, 16 asked to amend the alleged onset date of disability to October 29, 2010. Tr. 25, 51. The 17 ALJ issued a decision on February 25, 2015, finding Plaintiff not disabled under the Act. 18 Tr. 25-37. The Appeals Council denied review on May 16, 2016, making the ALJ’s 19 1 20 42 U.S.C. § 405(g). 2 Hill v. Astrue, 698 F.3d 1153, 1158 (9th Cir. 2012). 21 3 Richardson v. Perales, 402 U.S. 389, 401 (1971). 22 4 Tommasetti v. Astrue, 533 F.3d 1035, 1038 (9th Cir. 2008).-2-Case 2:16-cv-02430-ESW Document 24 Filed 02/17/17 Page 3 of 23 1 decision to deny benefits the Commissioner’s final decision. Tr. 4-9. This appeal 2 followed. 3 IV. ISSUES AND THE COMMISSIONER’S POSITION 4 Plaintiff raises the issues of whether the ALJ reasonably: (1) made a step-four 5 finding; 2) considered the medical evidence; 3) evaluated Plaintiff’s pain and symptom 6 testimony and lay witness statement; and 4) presented a valid hypothetical question to the 7 vocational expert. Plaintiff’s Brief (Pl.’s Br.), Dkt. 20. The Commissioner respectfully 8 requests that the ALJ’s decision be affirmed, the relief requested in Plaintiff’s complaint be 9 denied, and this case be dismissed. 10 V. STATEMENT OF FACTS 11 Plaintiff was born in 1966. Tr. 56, 216. He had a high school education. Tr. 56, 12 236. Plaintiff had worked as a piano mover, storage-facility rental clerk, motorcycle 13 salesperson (phone center), warehouse manager, and telemarketer. Tr. 36, 61-67, 94-95. 14 259-64. The ALJ’s decision contains further summary of the evidence of record, which 15 the Commissioner adopts, referring to relevant evidence in response to Plaintiff’s 16 arguments. 17 VI. BURDENS AND THE SEQUENTIAL EVALUATION PROCESS 18 The burden is on the claimant to prove he is disabled within the meaning of the 19 Act.5 Disability is the "inability to engage in any substantial gainful activity by reason of 20 any medically determinable physical or mental impairment which can be expected to 21 22 5 Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999).-3-Case 2:16-cv-02430-ESW Document 24 Filed 02/17/17 Page 4 of 23 1 result in death or which has lasted or can be expected to last for a continuous period of 2 not less than 12 months."6 A claimant is disabled only if his impairments are of such 3 severity that he not only is unable to do his previous work, but, considering his age, 4 education, and work experience, cannot engage in any other substantial gainful activity 5 existing in the national economy.7 6 The Commissioner has established a five-step sequential evaluation process to 7 determine whether a claimant is disabled, and findings at each step are potentially 8 dispositive of the claimant’s claim for disability.8 The claimant bears the burden of proof 9 at steps one through four; at step five, the burden of production (not persuasion) shifts to 10 the Commissioner to establish that there are a significant number of jobs in the national 11 economy that the claimant can do given his residual functional capacity, age, education, 12 and work experience.9 At all times, the burden is on the claimant to establish entitlement 13 to disability benefits.10 14 VII. ALJ’S FINDINGS 15 The ALJ made the following findings. At step one, Plaintiff had not engaged in 16 substantial gainful activity since the amended alleged onset date, October 29, 2010, 17 through the date last insured, December 31, 2012. Tr. 27. At step two, Plaintiff had 18 6 42 U.S.C. § 423(d)(1)(A). 19 7 42 U.S.C. § 423(d)(2)(A); Tackett, 180 F.3d at 1098. 20 8 20 C.F.R. § 404.1520. 9 21 Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005); Tackett, 180 F.3d at 1098; 20 C.F.R. § 404.1560(c)(2). 22 10 Tidwell v. Apfel, 161 F.3d 599, 601 (9th Cir. 1998).-4-Case 2:16-cv-02430-ESW Document 24 Filed 02/17/17 Page 5 of 23 1 severe impairments of degenerative disc disease of the lumbar spine, thoracic spine and 2 cervical spine; obstructive sleep apnea; degenerative joint disease; bilateral hand/wrist 3 tenosynovitis; trigger finger; diabetes mellitus, type II; chronic pain syndrome; and 4 obesity. Tr. 27. At step three, Plaintiff’s impairments did not meet or equal a regulatory 5 listing of impairments in 20 C.F.R. pt. 404, subpt. P, app. 1. Tr. 29-30. 6 The ALJ did not entirely accept Plaintiff’s pain and symptom testimony. Tr. 30-7 36. Plaintiff had the residual functional capacity to perform light work, with additional 8 limitations. Tr. 30. Specifically, he could occasionally climb ramps, stairs, and ladders; 9 he could occasionally balance, stoop, kneel, and crouch; and he was precluded from 10 climbing ropes or scaffolds or crawling. Tr. 30. Plaintiff could frequently push and pull 11 with the upper and lower extremities; he could frequently reach, handle, finger, and feel. 12 Tr. 30. He had to avoid moderate exposure to loud noise intensity environments; and he 13 had to avoid hazardous environments, including unprotected heights and moving 14 machinery. Tr. 30. At step four, Plaintiff was capable of performing past relevant work as 15 a storage-facility rental clerk, motorcycle salesperson, warehouse manager, and 16 telemarketer. Tr. 36-37. Thus, Plaintiff was not under a disability within the meaning of 17 the Act through December 31, 2012. Tr. 37. 18 VIII. ARGUMENT 19 A. Plaintiff had the burden to prove disability during the relevant period. 20 Plaintiff claims he became disabled on October 29, 2010, the amended alleged 21 onset date. Tr. 25, 27, 51. He met the insured status requirements of the Act through 22 December 31, 2012. Tr. 25, 27. To be eligible for disability insurance benefits under Title-5-Case 2:16-cv-02430-ESW Document 24 Filed 02/17/17 Page 6 of 23 1 II of the Act, a claimant must establish disability on or before the date last insured.11 2 Thus, Plaintiff had the burden to prove he became disabled before December 31, 2012, 3 and his impairments lasted for a continuous period of not less than 12 months.12 4 B. Plaintiff has identified no harmful error at step four; he challenges only two of four jobs identified as past relevant work that he could perform. 5 At step four, and relying on vocational expert testimony, the ALJ found Plaintiff 6 could perform four jobs that were identified as past relevant work. Tr. 36-37. The ALJ 7 found Plaintiff could perform the jobs of motorcycle salesperson and telemarketer, as 8 actually and generally performed. Tr. 36. Plaintiff also could perform the jobs of storage-9 facility rental clerk and warehouse manager, as generally performed. Tr. 36. 10 Of the four jobs, Plaintiff argues that two jobs—motorcycle salesperson and 11 telemarketer—were not performed as substantial gainful activity. Pl.’s Br. at 11-12. 12 Plaintiff does not contest the ALJ’s findings that he could perform two other jobs at step 13 four, namely storage-facility rental clerk and warehouse manager. Thus, Plaintiff has 14 waived any challenge.13 Even if the Court finds error in two of the jobs, any error would 15 be harmless because it would be inconsequential to the determination of nondisability.14 16 Contrary to Plaintiff’s challenge, there was no error regarding the job of 17 motorcycle salesman. Plaintiff worked as a motorcycle salesperson at a telephone center 18 prior to and ending in 2006. Tr. 259, 261. Plaintiff testified that he worked as a 19 11 20 Burch, 400 F.3d at 679. 12 42 U.S.C. § 423(d)(1)(A); Tackett, 180 F.3d at 1098. 21 13 See Indep. Towers of Wash. v. Wash., 350 F.3d 925, 929 (9th Cir. 2003). 22 14 Tommasetti, 533 F.3d at 1038.-6-Case 2:16-cv-02430-ESW Document 24 Filed 02/17/17 Page 7 of 23 1 motorcycle salesman for six months. Tr. 65. Earnings records show earnings from 2 Mission Yamaha, Inc. of $6,645.98 in 2005, and $1,623.33 in 2006. Tr. 219-20, 226-27. 3 Plaintiff had worked as a warehouse manager/driver from May 1999 to August 2005. Tr. 4 259. If he then began working as a motorcycle salesman at a phone center in August 2005 5 (he failed to list the start date, Tr. 259), Plaintiff would have worked for five months and 6 earned $1,329.20 per month ($6,645.98 divided by 5). Tr. 220. In 2005, presumptive 7 substantial gainful activity was $830 per month for non-blind workers.15 Plaintiff 8 continued to work in 2006, earning $1,623.33 in 2006, which was more than a month’s 9 work. Tr. 220, 227. The evidence is consistent with Plaintiff’s claims that he worked as a 10 motorcycle salesman for at least six months. Tr. 65. In addition, the ALJ found Plaintiff’s 11 work as a motorcycle salesman was SVP5. Tr. 36. "Specific Vocational Preparation" or 12 SVP, is "defined as the amount of lapsed time required by a typical worker to learn the 13 techniques, acquire the information, and develop the facility needed for average 14 performance in a specific job-worker situation."16 Jobs categorized as SVP5 require over 15 six months up to and including one year.17 Thus, the evidence indicates that Plaintiff 16 worked at least six months as a motorcycle salesman, and the ALJ did not err on relying 17 on that job. 18 19 15 20 C.F.R. § 404.1574(b); see also http://www.ssa.gov/OACT/COLA/sga.html (chart of monthly substantial gainful activity amounts by disability type) (last visited February 16, 20 2017). 16 21 Dictionary of Occupational Titles (DOT), Appendix C-Components of the Definition Trailer, available at 1991 WL 688702. 22 17 Id.-7-Case 2:16-cv-02430-ESW Document 24 Filed 02/17/17 Page 8 of 23 1 The Commissioner does not rely on the sedentary telemarketing job Plaintiff 2 performed in 1996 and 1997, because it is unclear how long he worked at the job and 3 Plaintiff did not include information about it in his work history report. Tr. 36, 218, 225, 4 259. If the Court does not affirm, further proceedings would be necessary to ascertain 5 whether Plaintiff worked at the job for at least three months, which is the amount of time 6 necessary to learn SVP3 jobs.18 In summary, the Commissioner relies on three jobs that 7 were past relevant work: motorcycle salesperson, storage-facility rental clerk, and 8 warehouse manager. The claimant "has the burden to prove that he cannot perform his 9 past relevant work either as actually performed or as generally performed in the national 10 economy."19 Plaintiff did not meet his burden at step four. 11 C. The ALJ reasonably evaluated Plaintiff’s symptom and pain testimony and the lay testimony of his mother. 12 1. Plaintiff’s testimony. 13 In determining whether a claimant is disabled, the ALJ engages in a two-stage 14 process for evaluating a claimant’s subjective symptoms, and considers all of the 15 individual’s claimed symptoms, including pain, and the extent to which those symptoms 16 can reasonably be accepted as consistent with the objective medical evidence and other 17 evidence.20 "[Q]uestions of credibility and resolutions of conflicts in the testimony are 18 19 18 Id. 19 20 Stacy v. Colvin, 825 F.3d 563, 569 (9th Cir. 2016) (internal quotation marks omitted). 20 20 C.F.R. § 404.1529(a); see also SSR 96-7p, available at 1996 WL 374186, at *4. 21 SSR 96-7p was superseded by SSR 16-3p effective March 28, 2016. SSR 16-3p, available at 2016 WL 1119029; 2016 WL 1237954 (Notice of Social Security Ruling; 22 correction) ("SSR is effective on March 28, 2016.").-8-Case 2:16-cv-02430-ESW Document 24 Filed 02/17/17 Page 9 of 23 1 functions solely of the ALJ."21 Plaintiff argues the ALJ’s reasons were not clear and 2 convincing.22 Pl.’s Br. at 17. However, the ALJ gave legally sufficient reasons to find 3 Plaintiff’s symptom and pain testimony was not entirely reliable. 4 Plaintiff argues that the ALJ did not consider whether his daily activities were 5 inconsistent with his claims of disability. Pl.’s Br. at 17. Plaintiff argues that the fact that 6 he could engage in activities that included target-shooting, riding motorcycles a short 7 distance, and going trail-riding on a utility task vehicle (UTV) did not mean he could work 8 on a regular and continuing basis. Pl.’s Br. at 17. Plaintiff further argues he did not 9 describe doing any activities "every day or for more than a few minutes" and the activities 10 themselves were not equivalent to an ability to sustain fulltime work activity. Pl.’s Br. at 11 18. The ALJ properly considered Plaintiff’s activities. 12 On the one hand, activities of daily living may indicate activity and skills that could 13 easily transfer to the workplace; on the other hand, the activities may simply contradict a 14 claimant’s other testimony.23 Here, the ALJ found that despite his impairments, Plaintiff’s 15 activities indicated he "engaged in a somewhat normal level of daily activity and 16 21 Greger v. Barnhart, 464 F.3d 968, 972 (9th Cir. 2006) (internal quotation marks omitted). 17 22 The Ninth Circuit has stated that, in some circumstances, ALJs must provide "clear and 18 convincing reasons" to reject a claimant’s testimony or a medical source’s opinion. See Chaudhry v. Astrue, 688 F.3d 661, 670-71 (9th Cir. 2012). Agency rules do not require 19 "clear and convincing" reasons, however, and courts must apply the extremely deferential "substantial evidence" standard of review prescribed by Congress, 42 U.S.C. § 405(g), 20 which does not require that an ALJ’s reasons be especially compelling or convincing. See Perales, 402 U.S. at 401 (Substantial evidence "means such relevant evidence as a 21 reasonable mind might accept as adequate to support a conclusion." (internal quotation marks omitted)). As discussed herein, the ALJ’s reasons suffice under any standard. 22 23 Orn v. Astrue, 495 F.3d 625, 639 (9th Cir. 2007).-9-Case 2:16-cv-02430-ESW Document 24 Filed 02/17/17 Page 10 of 23 1 interaction." Tr. 31-32. The ALJ thus reasonably considered that his activities contradicted 2 Plaintiff’s other testimony. Moreover, the ALJ considered that the physical and mental 3 capabilities requisite to performing many of the tasks described, as well as the social 4 interactions, replicated those necessary for obtaining and maintaining employment. Tr. 32. 5 The ALJ’s reasoning is supported by substantial evidence. Plaintiff testified that 6 he still rode motorcycles and also drove UTVs off-trail. Tr. 77, 82, 86, 88-89. Plaintiff 7 said he "cruised" his motorcycle the month before the hearing, then testified that he went 8 around the block. Tr. 77. Plaintiff explained that the UTV was "like an off-road Jeep" and 9 he used it like a car, but also did a "little off road" that he testified got painful after a 10 while. Tr. 82-83. Plaintiff said he and his buddies went out with their UTVs "every 11 week—or not every week but every couple of months." Tr. 83. He went up to 40 miles 12 per hour on fire roads and trails, stopping when he got to the "rough stuff." Tr. 89-91. He 13 testified he would ride the UTV for an hour at a time. Tr. 91. 14 Plaintiff reported to consultative examining psychologist Greg Peetoom, Ph.D., that 15 he was able to engage in his hobby of repairing motorcycles, and a friend occasionally 16 helped him repair motorcycles. Tr. 543. In a credibility determination, an ALJ considers 17 "whether there are any inconsistencies in the evidence and the extent to which there are 18 any conflicts between your statements and the rest of the evidence."24 The ALJ reasonably 19 considered that Plaintiff’s motorcycle riding and repair, and his UTV off-roading, along 20 with other activities indicated he was capable of engaging in employment, particularly in 21 22 24 20 C.F.R. § 404.1529(c)(4); see also Burch, 400 F.3d at 680.-10-Case 2:16-cv-02430-ESW Document 24 Filed 02/17/17 Page 11 of 23 1 light of his other claims. Tr. 31-32. 2 The ALJ considered Plaintiff’s function reports. Tr. 31, 267-74, 309-316. In 3 September 2012, Plaintiff said that he had moderate to severe leg pain caused by standing, 4 walking, sitting, and lifting. Tr. 265. He described his daily activities as taking pain 5 medications, sitting and watching television, and sometimes going to the store with 6 reliance on a cart. Tr. 267. He took more pain medications and tried to sleep. Tr. 267. 7 Plaintiff claimed he could not sit very long. Tr. 272. In July 2013, he complained that 8 standing, walking, and sitting made the pain worse. Tr. 308. Lying down 90% of the time 9 helped the pain. Tr. 308. He traveled by driving or riding in a car. Tr. 312. He also rode 10 weekly as an "expert rider" but could not race, and he again reported that he could not sit 11 long. Tr. 313, 314. 12 Moreover, the ALJ considered Plaintiff’s testimony that despite his impairments, 13 he could still target-shoot, and practiced about once a month. Tr. 31, 31-32, 73-77. Since 14 2010, his target shooting had been primarily with handguns and small rifles, although he 15 had a couple shotguns. Tr. 75. He did not shoot big shotguns, but had shot a.40 handgun 16 about a year before. Tr. 87-88. Plaintiff also testified that he continued to drive a car two 17 or three times per week. Tr. 31. Plaintiff also testified that he traveled by car several times 18 to visit his sick brother in California. Tr. 31, 78. Additional evidence supports the ALJ’s 19 reasoning. For instance, a couple months before the hearing, Plaintiff and his mother 20 traveled to California in his truck, and he drove part of the time, testifying that he would 21 drive about two or three hours, usually pulling over every hour or so at a rest stop. Tr. 91. 22-11-Case 2:16-cv-02430-ESW Document 24 Filed 02/17/17 Page 12 of 23 1 An ALJ "may weigh inconsistencies between the claimant’s testimony and his or 2 her conduct, daily activities, and work record, among other factors."25 Plaintiff testified 3 that he could sit up to an hour at a time, and that he had up and down days. Tr. 92-93. Yet 4 in function reports he said he could not sit very long. Tr. 272, 314. Plaintiff testified that 5 he went to the movies with his mother every couple of months. Tr. 31, 68, 81-82. He 6 went to the park with his dog, used a computer, did light household chores, prepared 7 meals, and took care of his finances. Tr. 31-32, 72-73. Although the evidence of a 8 claimant’s "daily activities may also admit of an interpretation more favorable to [to the 9 claimant], the ALJ’s interpretation was rational, and [the Court] must uphold the ALJ’s 10 decision where the evidence is susceptible to more than one rational interpretation."26 11 In addition, the ALJ considered that Plaintiff improved with treatment. Tr. 34-35. 12 The effectiveness of treatment is a relevant factor in determining the severity of 13 Plaintiff’s symptoms.27 For example, Plaintiff was diagnosed with diabetes in September 14 2010. Tr. 486. In October 2010, around the date of Plaintiff’s alleged onset date, he had 15 uncontrolled diabetes, and his diabetes was still uncontrolled in December. Tr. 35, 478, 16 485. But by April 2011, the diabetes was controlled with the use of medication. Tr. 35, 17 467. A couple months later, his diabetes was "optimally controlled" with medication. Tr. 18 463. 19 20 25 Bray v. Comm’r of Soc. Sec. Admin., 554 F.3d 1219, 1227 (9th Cir. 2009) (citation omitted). 21 26 Burch, 400 F.3d at 680-81 (internal quotation marks and brackets omitted)). 22 27 20 C.F.R. § 404.1529(c)(3).-12-Case 2:16-cv-02430-ESW Document 24 Filed 02/17/17 Page 13 of 23 1 Plaintiff argues that the ALJ simply recited the objective medical evidence and 2 asserted it was inconsistent with Plaintiff’s described limitations. Pl.’s Br. at 18. But the 3 ALJ not only found Plaintiff’s testimony was not entirely reliable because treatment notes 4 documented minimally objective findings, but also because Plaintiff received routine, 5 conservative, non-emergency treatment from the alleged onset date through the date last 6 insured of December 31, 2012. Tr. 31, 32. Conservative treatment can be "sufficient to 7 discount a claimant’s testimony regarding severity of an impairment."28 8 Here, Plaintiff argues against the ALJ’s interpretation, claiming his insurance 9 declined to cover certain procedures. Pl.’s Br. at 18. For instance, Plaintiff argues that he 10 testified he was told he could try a pain stimulator, but he needed to have failed back 11 surgery before the insurance covered it. Pl.’s Br. at 18; Tr. 85. Plaintiff also argues that 12 surgery was possible for his thoracic condition but "likely too risky as far as potentially 13 resulting in complications, so they declined to perform surgery." Pl.’s Br. at 18. 14 Plaintiff’s argument is unavailing. First, Plaintiff cites a treatment note that was dated 15 almost a year after Plaintiff’s date last insured, and it does not support his argument. Pl.’s 16 Br. at 18 (citing Tr. 641). In October 2013, Examining surgeon Mark Dekutoski, M.D. 17 opined there was no need for surgical intervention. Tr. 642-43. Specifically, Dr. 18 Dekutoski stated that Plaintiff had an "extremely complex pain portfolio with 19 components of anger and frustration [and] lability of symptoms that would not 20 predictably be improved by any surgical intervention familiar to this surgeon. Tr. 641. 21 22 28 Parra v. Astrue, 481 F.3d 742, 750-51 (9th Cir. 2007) (citation omitted)).-13-Case 2:16-cv-02430-ESW Document 24 Filed 02/17/17 Page 14 of 23 1 Dr. Dekutoski ordered a pain psychology consult instead. Tr. 642. Second, Plaintiff 2 argues that there was evidence of insurance denials of "certain medications and 3 procedures"; however, this evidence too is from a period after his date last insured, and 4 consist of denials of an MRI and Cymbalta. Pl.’s Br. at 18 (citing Tr. 654, 819). This also 5 is not persuasive evidence to support Plaintiff’s argument that he was denied surgery 6 during the relevant period and had to settle for conservative treatment. Finally, a 7 claimant’s alternative interpretation of the evidence does not alone invalidate an ALJ’s 8 credibility finding.29 Notwithstanding Plaintiff’s more favorable interpretation of the 9 evidence, the ALJ’s pain and symptom analysis was reasonable and supported by 10 substantial evidence. 11 The ALJ is responsible for determining credibility and resolving conflicts in 12 medical testimony and for resolving ambiguities.30 Moreover, when an ALJ relies on 13 multiple factors for discounting a claimant’s credibility, the decision can be sustained 14 even if some credibility factors are eliminated, provided the remaining credibility factors 15 are valid and based on substantial evidence.31 The ALJ’s pain and symptom analysis was 16 supported by substantial evidence and must be upheld. 17///18 19 20 29 Rollins v. Massanari, 261 F.3d 853, 857 (9th Cir. 2001) (citing Fair v. Bowen, 885 F.2d 597, 604 (9th Cir. 1989)). 21 30 Magallanes v. Bowen, 881 F.2d 747, 750 (9th Cir. 1989) (internal citations omitted). 22 31 Tonapetyan v. Halter, 242 F.3d 1144, 1148 (9th Cir. 2001).-14-Case 2:16-cv-02430-ESW Document 24 Filed 02/17/17 Page 15 of 23 1 2. Lay testimony of Plaintiff’s mother. 2 An ALJ must consider lay evidence and provide at least one germane reason to 3 discredit lay witness statements.32 Plaintiff’s mother completed reports in August 31, 4 2012, and July 26, 2013. Tr. 32, 249-258, 297-306. Here, the ALJ gave legally sufficient 5 reasons, supported by substantially evidence, for discounting Plaintiff’s mother’s third-6 party statements. Tr. 32. First, the ALJ noted that Plaintiff’s mother’s statements were "of 7 the same general nature is the subject of complaints" to which Plaintiff testified. Tr. 32. 8 Rejection of lay witness testimony for the same reasons as Plaintiff’s credibility is 9 sufficient if those reasons were sufficient and if the other source’s statement was similar 10 to Plaintiff’s complaints.33 Because the ALJ gave legally sufficient reasons to reject 11 Plaintiff’s testimony, and his mother’s testimony was similar, it followed that the ALJ 12 also gave germane reasons for rejecting that lay testimony. 13 Second, the ALJ noted that while plaintiff’s mother was not a medical 14 professional, and that the clinical and diagnostic medical evidence discussed elsewhere in 15 the decision did not support her statements. Tr. 32. "An ALJ need only give germane 16 reasons for discrediting the testimony of lay witnesses. Inconsistency with medical 17 evidence is one such reason."34 Plaintiff argues that his mother’s statements were 18 consistent with the opinions of his treating doctors, who completed questionnaires that 19 the ALJ rejected. Pl.’s Br. at 20. However, as discussed below, the ALJ properly 20 32 20 C.F.R. § 404.1513(d)(4); Valentine v. Comm’r Soc. Sec. Admin., 574 F.3d 685, 694 (9th Cir. 2009). 21 33 Valentine, 574 F.3d at 694. 22 34 Bayliss v. Barnhart, 427 F.3d 1211, 1218 (9th Cir. 2005) (citation omitted)).-15-Case 2:16-cv-02430-ESW Document 24 Filed 02/17/17 Page 16 of 23 1 considered the opinions of Plaintiff’s treating doctors, and he has identified no error. The 2 ALJ gave at least one germane reason to discount the lay statements of Plaintiff’s mother. 3 D. The ALJ reasonably considered the medical evidence of treating sources Eric Feldman, M.D., and Atul Syal, M.D., and his reasoning is supported 4 by substantial evidence in the record. 5 An ALJ considers all relevant medical evidence and is responsible for resolving its 6 conflicts.35 Where a physician’s opinion is contradicted by another doctor, it may be 7 rejected for "specific and legitimate" reasons supported by substantial evidence.36 An 8 ALJ must consider whether an opinion is consistent with the record as a whole.37 9 1. Eric Feldman, M.D. 10 The ALJ considered a Residual Functional Capacity Questionnaire by Dr. 11 Feldman dated July 16, 2012. Tr. 35, 422-424. At the hearing, Plaintiff indicated that he 12 no longer saw Dr. Feldman. Tr. 84. In the questionnaire, Dr. Feldman stated that Plaintiff 13 had painful diabetic peripheral neuropathy and epidural lipomatosis with lumbar 14 radiculopathy. Tr. 35, 423. As noted by the ALJ, Dr. Feldman assessed limitations that 15 would prevent the claimant from engaging in substantial gainful activity, including that 16 Plaintiff was likely to be absent from work secondary to his impairments more than four 17 times per month. Tr. 35, 424. Among other limitations, Dr. Feldman opined that Plaintiff 18 could stand/walk 15 minutes at a time, but less than an hour in an eight-hour work day. 19 20 35 20 C.F.R. § 404.1527; Carmickle v. Comm’r, Soc. Sec. Admin., 533 F.3d 1155, 1164 (9th Cir. 2008). 21 36 Carmickle, 533 F.3d at 1164. 22 37 20 C.F.R. § 404.1527(c)(4).-16-Case 2:16-cv-02430-ESW Document 24 Filed 02/17/17 Page 17 of 23 1 Tr. 423. Similarly, he opined that Plaintiff could sit for 15 minutes at a time, but totaling 2 less than one hour in an eight-hour work day. Tr. 423. 3 The ALJ gave Dr. Feldman’s assessment little weight because it was conclusory 4 and unsupported by the record. Tr. 35. Moreover, Dr. Feldman’s treatment notes did not 5 support the extreme limitations he assessed; specifically, they consistently showed 6 normal muscle strength in the lower extremities, and normal gait and station. Tr. 35, 614-7 726. Plaintiff argues that he had positive straight leg raise tests, as well as other 8 abnormalities. Pl.’s Br. at 13. Plaintiff also argues that the ALJ is not qualified to second-9 guess Dr. Feldman’s opinion. Indeed, the ALJ is tasked with evaluating the medical 10 evidence.38 "The ALJ is responsible for resolving conflicts in the medical record."39 11 Here, Dr. Feldman’s opinion conflicted with other evidence in the medical record. 12 In fact, even Plaintiff’s attorney acknowledged that Dr. Feldman’s opinion was "a bit 13 extreme," but he submitted it "only in the fact that Dr. Feldman obviously feels that 14 there’s a disability there. It’s just probably not at the level that he said it’s at." Tr. 53. In 15 the decision, the ALJ provided a detail review of Plaintiff’s medical record. Tr. 32-35. 16 The ALJ noted that Plaintiff’s diabetes was controlled in 2011 with medications. Tr. 34-17 35, 463, 467, 485. He considered the opinions of State agency medical consultants (Jay 18 Rankin, M.D., and Jonathan Norcross, M.D.) who reviewed Plaintiff’s medical records, 19 as well as examining physician Brian Briggs, M.D. Tr. 36, 100-117, 535-40. The ALJ 20 gave great weight to the opinions of the State agency medical consultants because they 21 38 20 C.F.R. §§ 404.1520a, 404.1527. 22 39 Carmickle, 533 F.3d at 1164.-17-Case 2:16-cv-02430-ESW Document 24 Filed 02/17/17 Page 18 of 23 1 were consistent with the evidence of record, which documented mild objective findings 2 during the period of adjudication. Tr. 36. Plaintiff argues that the ALJ improperly 3 credited these opinions over those of his treating physicians. Pl.’s Br. at 15-16. "Although 4 a treating physician’s opinion is generally afforded the greatest weight in disability cases, 5 it is not binding on an ALJ with respect to the existence of an impairment or the ultimate 6 issue of disability."40 A non-examining physician’s opinion may amount to substantial 7 evidence as long as other evidence in the record supports those findings.41 8 Under the regulations, the ALJ is required to consider whether an opinion is 9 consistent with the record as a whole.42 Here, the ALJ properly considered the medical 10 evidence, concluding that Dr. Feldman’s opinion was unreasonable in light of the overall 11 record. Tr. 35. Substantial evidence supports the ALJ’s reasoning. The ALJ noted that 12 findings from physical examinations consistently showed intact neurological 13 examinations and a normal gait. Tr. 31, 33, 429, 437, 443, 444, 447, 449-50, 452, 455, 14 458, 462, 466-67, 468, 470, 471, 473, 474, 481, 483, 685, 714. Imaging in October 2010 15 revealed mild degenerative changes without acute abnormality, and imaging from April 16 2011 revealed minimal disc bulges in the lower back. Tr. 33, 534, 748-50. In mid-2011, 17 Plaintiff’s examinations showed some mild abnormalities, and the plan was to proceed 18 with physical therapy and epidural injections. Tr. 33, 695-97, 725, 726. By August 2011, 19 Plaintiff reported significant pain relief following the epidural injections. Tr. 33, 684. 20 40 McLeod v. Astrue, 640 F.3d 881, 884-85 (9th Cir. 2011) (internal quotation marks omitted). 21 41 Tonapetyan, 242 F.3d at 1149 22 42 20 C.F.R. § 404.1527(c)(4).-18-Case 2:16-cv-02430-ESW Document 24 Filed 02/17/17 Page 19 of 23 1 Plaintiff was referred to an orthopedic surgeon, and subsequent treatment notes continued 2 to document pain complaints but physical examinations that showed minimal 3 abnormalities, and normal neurological findings. Tr. 34, 685, 686, 707-10, 713-14, 716, 4 721. Plaintiff had gastric (weight loss) surgery in 2012, after which he complained of leg 5 pain, numbness, tingling, and pain. Tr. 716. In April, July, and August 2012, Dr. Feldman 6 saw Plaintiff after his weight loss, noted Plaintiff’s pain complaints, and again recorded 7 relatively benign objective findings. Tr. 701-04, 716-20, 721-24. 8 Consultative examining physician Dr. Briggs examined Plaintiff in January 2013. 9 Tr. 35, 535-40. Dr. Briggs’ objective examination indicated normal findings, including a 10 normal neurological examination with normal motor strength, sensation, and reflexes. Tr. 11 35, 536-37. Although the ALJ did not fully accept Dr. Briggs’ opinion that Plaintiff had 12 no severe physical impairments, he noted that Dr. Briggs opined that Plaintiff’s symptom 13 magnification was evident, and declined to assess any functional limitations. Tr. 35, 36, 14 537, 539. 15 In mid-2013, approximately six months after the date last insured, Dr. Feldman’s 16 electrodiagnostic evaluations showed no evidence of peripheral polyneuropathy, focal 17 mononeuropathy, lumbosacral radiculopathy or plexopathy. Tr. 34, 674. Also in mid-18 2013, imaging of the upper and lower spine revealed small disc extrusions, with mild 19 findings, mild degenerative disc disease, and mild disc bulging. Tr. 34, 799, 800-01. 20 More than a year after Plaintiff’s date last insured, imaging in March 2014 showed some 21 mid-spine deformities, but no significant stenosis. Tr. 34, 783. In April 2014, almost a 22-19-Case 2:16-cv-02430-ESW Document 24 Filed 02/17/17 Page 20 of 23 1 year and a half after the date last insured, lower spine imaging yielded findings of 2 Plaintiff’s lower spine that were similar to previous imaging. Tr. 34, 735-36. 3 Dr. Feldman’s treatment notes also support the ALJ’s reasoning. For instance, in 4 October, November, and December 2011, Dr. Feldman saw Plaintiff for complaints of 5 left leg numbness, tingling, and pain. Tr. 686-89, 690-92, 698-99. Recommendations on 6 Plaintiff’s MRI were essentially unremarkable. Tr. 690. On examination, he had some 7 tenderness but full range of motion in the hips, knees, and ankles. His neurologic 8 examination was largely normal. Tr. 686, 690, 698. Dr. Feldman performed a seated 9 slump test (used to evaluate leg and back pain) and straight leg raise (used to determine if 10 low back pain is caused by a herniated disk), and both tests were negative (indicating the 11 pain was not reproduced by testing). Tr. 686, 690, 698. On May 12, 2013, half a year 12 after the date last insured, Dr. Feldman recorded Plaintiff’s pain complaints, but also 13 noted some relief from pain medications. Tr. 648-52. Plaintiff’s examination was limited 14 by pain complaints, but he had full strength, a normal gait, and an ability to heel walk, toe 15 walk, and tandem heel/toe gait. Tr. 651. He did not need an assistive device to walk. Tr. 16 651. His spine was normal, with no instability. And the range of motion was within 17 functional limits in his legs. Tr. 652. A couple months later, Dr. Feldman performed an 18 electrodiagnostic evaluation of Plaintiff’s low back and found all nerve conduction 19 studies were within normal limits. Tr. 674. 20 The ALJ reasonably rejected Dr. Feldman’s opinion in light of the overall 21 evidence, including Plaintiff’s daily activities that were contrary to Dr. Feldman’s 22 opinion. Tr. 35. Even Plaintiff said he spent most of the day sitting and watching-20-Case 2:16-cv-02430-ESW Document 24 Filed 02/17/17 Page 21 of 23 1 television. Tr. 267. He could sit and drive for an hour at a time and even ride a UTV on 2 dirt trails for an hour at a time. Tr. 91. The ALJ reasonably concluded that Dr. Feldman’s 3 opinion was conclusory and unsupported by the record. Tr. 35. 4 2. Atul Syal, M.D. 5 The ALJ also considered a similar questionnaire that was completed by Dr. Syal in 6 June 2014. Tr. 35, 959-61. Dr. Syal started treating Plaintiff in July 2013, seven months 7 after the date last insured. Tr. 35, 595-98, 926-33. In the questionnaire, Dr. Syal 8 diagnosed diabetic neuropathy. Tr. 960. Similar to Dr. Feldman, Dr. Syal opined the 9 claimant was likely to be absent from work secondary to his impairments more than four 10 times per month. Tr. 961. He opined Plaintiff could sit, stand, and walk less than 10 11 minutes at a time and for up to an hour (sitting) and less than an hour (standing/walking) 12 in an eight-hour day. Tr. 960. The ALJ gave this assessment little weight because Dr. 13 Syal began treating the claimant seven months after the date last insured and the evidence 14 of record does not support the limitations he assessed. Tr. 35. Plaintiff argues that 15 Plaintiff’s impairments developed over time, and Dr. Syal’s statement was similar to Dr. 16 Feldman’s. Pl.’s Br. at 15. Howeer, as discussed above, the medical evidence and 17 Plaintiff’s own testimony contradicted the extreme limitations set forth in Dr. Syal’s 18 opinion was well. Plaintiff has identified no error. 19 E. Plaintiff reiterates his prior arguments, but there was no error in the ALJ’s hypothetical question to the vocational expert. 20 Plaintiff reiterates his prior arguments by claiming error in the hypothetical 21 questions the ALJ posed to the vocational expert. Pl.’s Br. at 21. The ALJ did not 22-21-Case 2:16-cv-02430-ESW Document 24 Filed 02/17/17 Page 22 of 23 1 include limitations opined by Drs. Feldman or Syal, or limitations by Plaintiff or his 2 mother that the ALJ discounted. Pl.’s Br. at 95-96. Instead, the ALJ properly posed to the 3 vocational expert a hypothetical that "contained all of the limitations that the ALJ found 4 credible and supported by substantial evidence in the record," and properly relied on the 5 vocational expert’s testimony.43 Tr. 36-37, 95-96. The mere restatement of Plaintiff’s 6 arguments fails to establish error.44 7 IX. CONCLUSION 8 The record contains substantial evidence from which the ALJ, and hence the 9 Commissioner, properly concluded that Plaintiff was not disabled within the meaning of 10 the Act. Because there was no legal error and the ALJ’s conclusion was reached upon the 11 basis of substantial evidence, it should be affirmed. 12 Although Plaintiff requests an immediate finding of disability by this Court, that 13 would not be appropriate in this case. Even if this Court does not affirm the 14 Commissioner’s final decision, the standards for crediting evidence as true are not 15 satisfied, as set forth in Dominguez v. Colvin, 808 F.3d 403, 407 (9th Cir. 2015) (as 16 amended). If the Court does not affirm, the case must be remanded for further 17 proceedings as there are ambiguities and unresolved factual issues. On remand, it would 18 be necessary to ascertain whether Plaintiff worked at the sedentary telemarketing job for 19 at least three months, and to proceed to step five if necessary. Moreover, the ALJ 20 considered and weighed conflicting medical evidence. If this Court does not affirm, the 21 43 Bayliss, 427 F.3d at 1217. 22 44 See Stubbs-Danielson v. Astrue, 539 F.3d 1169, 1175-76 (9th Cir. 2008).-22-Case 2:16-cv-02430-ESW Document 24 Filed 02/17/17 Page 23 of 23 1 case should be remanded so that the ALJ, as the trier of fact, may reevaluate the medical 2 evidence. 3 DATED this 17th day of February 2017. 4 Respectfully submitted, 5 ELIZABETH A. STRANGE Acting United States Attorney 6 District of Arizona 7 s/Lisa Goldoftas LISA GOLDOFTAS 8 Special Assistant United States Attorney 9 Of Counsel for the Defendant: 10 MATHEW W. PILE Acting Regional Chief Counsel, Social Security Administration 11 Office of the General Counsel, Region X 701 Fifth Avenue, Suite 2900 M/S 221A 12 Seattle, WA 98104-7075 13 CERTIFICATE OF SERVICE 14 I hereby certify that the foregoing Defendant’s Brief was filed with the 15 Clerk of the Court on February 17, 2017, using the CM/ECF system, which will 16 send notification of such filing to the following: Howard D. Olinsky. 17 s/Lisa Goldoftas 18 LISA GOLDOFTAS Special Assistant U.S. Attorney 19 Office of the General Counsel 20 21 22-23-
ORDER affirming the decision of the Commissioner of Social Security. The Clerk of Court shall enter judgment accordingly. Signed by Magistrate Judge Eileen S Willett on 7/14/17.
Case 2:16-cv-02430-ESW Document 25 Filed 07/14/17 Page 1 of 21 1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Craig Allen Carlson, No. CV-16-02430-PHX-ESW 10 Plaintiff, 11 v. ORDER 12 Acting Commissioner of the Social Security Administration, 13 Defendant. 14 15 16 Pending before the Court is Craig Allen Carlson’s ("Plaintiff") appeal of the 17 Social Security Administration’s ("Social Security") denial of his application for 18 disability insurance benefits. The Court has jurisdiction to decide Plaintiff’s appeal 19 pursuant to 42 U.S.C. § 405(g). Under 42 U.S.C. § 405(g), the Court has the power to 20 enter, based upon the pleadings and transcript of the record, a judgment affirming, 21 modifying, or reversing the decision of the Commissioner of Social Security, with or 22 without remanding the case for a rehearing. Both parties have consented to the exercise 23 of U.S. Magistrate Judge jurisdiction. (Doc. 17). 24 After reviewing the Administrative Record ("A.R.") and the parties’ briefing 25 (Docs. 20, 24), the Court finds that the Administrative Law Judge’s ("ALJ") decision is 26 supported by substantial evidence and is free of harmful legal error. The decision is 27 therefore affirmed. 28 Case 2:16-cv-02430-ESW Document 25 Filed 07/14/17 Page 2 of 21 1 I. LEGAL STANDARDS 2 A. Disability Analysis: Five-Step Evaluation 3 The Social Security Act provides for disability insurance benefits to those who 4 have contributed to the Social Security program and who suffer from a physical or mental 5 disability. 42 U.S.C. § 423(a)(1). To be eligible for benefits, the claimant must show 6 that he or she suffers from a medically determinable physical or mental impairment that 7 prohibits him or her from engaging in any substantial gainful activity. The claimant must 8 also show that the impairment is expected to cause death or last for a continuous period 9 of at least 12 months. 42 U.S.C. § 423(d)(1)(A). 10 To decide if a claimant is entitled to Social Security benefits, an ALJ conducts an 11 analysis consisting of five questions, which are considered in sequential steps. 20 C.F.R. 12 § 404.1520(a). The claimant has the burden of proof regarding the first four steps: 1 13 Step One: Is the claimant engaged in "substantial gainful 14 activity"? If so, the analysis ends and disability benefits are denied. Otherwise, the ALJ proceeds to Step Two. 15 16 Step Two: Does the claimant have a medically severe impairment or combination of impairments? A severe 17 impairment is one which significantly limits the claimant’s 18 physical or mental ability to do basic work activities. 20 C.F.R. § 404.1520(c). If the claimant does not have a severe 19 impairment or combination of impairments, disability benefits 20 are denied at this step. Otherwise, the ALJ proceeds to Step Three. 21 22 Step Three: Is the impairment equivalent to one of a number of listed impairments that the Commissioner acknowledges 23 are so severe as to preclude substantial gainful activity? 20 C.F.R. § 404.1520(d). If the impairment meets or equals one 24 of the listed impairments, the claimant is conclusively 25 presumed to be disabled. If the impairment is not one that is presumed to be disabling, the ALJ proceeds to the fourth step 26 of the analysis. 27 28 1 Parra v. Astrue, 481 F.3d 742,746 (9th Cir. 2007).-2-Case 2:16-cv-02430-ESW Document 25 Filed 07/14/17 Page 3 of 21 1 Step Four: Does the impairment prevent the claimant from performing work which the claimant performed in the past? 2 If not, the claimant is "not disabled" and disability benefits 3 are denied without continuing the analysis. 20 C.F.R. § 404.1520(f). Otherwise, the ALJ proceeds to the last step. 4 If the analysis proceeds to the final question, the burden of proof shifts to the 5 Commissioner: 2 6 Step Five: Can the claimant perform other work in the 7 national economy in light of his or her age, education, and work experience? The claimant is entitled to disability 8 benefits only if he or she is unable to perform other work. 20 9 C.F.R. § 404.1520(g). Social Security is responsible for providing evidence that demonstrates that other work exists in 10 significant numbers in the national economy that the claimant 11 can do, given the claimant’s residual functional capacity, age, education, and work experience. Id. 12 B. Standard of Review Applicable to ALJ’s Determination 13 The Court must affirm an ALJ’s decision if it is supported by substantial evidence 14 and is based on correct legal standards. Molina v. Astrue, 674 F.3d 1104, 1110 (9th Cir. 15 2012); Marcia v. Sullivan, 900 F.2d 172, 174 (9th Cir. 1990). Although "substantial 16 evidence" is less than a preponderance, it is more than a "mere scintilla." Richardson v. 17 Perales, 402 U.S. 389, 401 (1971) (quoting Consolidated Edison v. NLRB, 305 U.S. 197, 18 229 (1938)). It means such relevant evidence as a reasonable mind might accept as 19 adequate to support a conclusion. Id. 20 In determining whether substantial evidence supports the ALJ’s decision, the 21 Court considers the record as a whole, weighing both the evidence that supports and 22 detracts from the ALJ’s conclusions. Reddick v. Chater, 157 F.3d 715, 720 (9th Cir. 23 1998); Tylitzki v. Shalala, 999 F.2d 1411, 1413 (9th Cir. 1993). If there is sufficient 24 evidence to support the ALJ’s determination, the Court cannot substitute its own 25 determination. See Morgan v. Comm’r of the Social Sec. Admin., 169 F.3d 595, 599 (9th 26 Cir. 1999) ("Where the evidence is susceptible to more than one rational interpretation, it 27 28 2 Parra, 481 F.3d at 746.-3-Case 2:16-cv-02430-ESW Document 25 Filed 07/14/17 Page 4 of 21 1 is the ALJ’s conclusion that must be upheld."); Magallanes v. Bowen, 881 F.2d 747, 750 2 (9th Cir. 1989). This is because the ALJ, not the Court, is responsible for resolving 3 conflicts, ambiguity, and determining credibility. Magallanes, 881 F.2d at 750; see also 4 Andrews v. Shalala, 53 F.3d 1035, 1039 (9th Cir. 1995). 5 The Court also considers the harmless error doctrine when reviewing an ALJ’s 6 decision. This doctrine provides that an ALJ’s decision need not be remanded or 7 reversed if it is clear from the record that the error is "inconsequential to the ultimate 8 nondisability determination." Tommasetti v. Astrue, 533 F.3d 1035, 1038 (9th Cir. 2008) 9 (citations omitted); Molina, 674 F.3d at 1115 (an error is harmless so long as there 10 remains substantial evidence supporting the ALJ’s decision and the error "does not 11 negate the validity of the ALJ’s ultimate conclusion") (citations omitted). 12 II. PLAINTIFF’S APPEAL 13 A. Procedural Background 14 Plaintiff, who was born in 1966, has been employed as a storage facility rental 15 clerk, motorcycle salesman, warehouse manager, piano mover, and telemarketer. (A.R. 16 94, 95, 100). In 2012, Plaintiff filed an application for disability insurance benefits. 17 (A.R. 216-17). Plaintiff’s application alleged that on October 1, 2007, he became unable 18 to work due to the following conditions: sciatica, gastric sleeve surgery, Type II diabetes 19 with neuropathy, "pain in legs," "too much tissue pressing on spine/hereditary," high 20 blood pressure, depression, tinnitus, "limited mobility," deafness in the left ear, and "poor 21 hearing in right ear." (A.R. 100-01). Social Security denied the applications in February 22 2013. (A.R. 143-45). In November 2013, upon Plaintiff’s request for reconsideration, 23 Social Security affirmed the denial of benefits. (A.R. 146-49). Plaintiff sought further 24 review by an ALJ, who conducted a hearing in September 2014. (A.R. 44-98, 150-51). 25 On the date of the hearing, Plaintiff amended his alleged disability onset date to October 26 29, 2010. (A.R. 230). 27 28-4-Case 2:16-cv-02430-ESW Document 25 Filed 07/14/17 Page 5 of 21 1 In his February 25, 2015 decision, the ALJ found that Plaintiff has not been under 2 a disability from October 29, 2010 through December 31, 2012, the date last insured. 3 (A.R. 25-37). The Appeals Council denied Plaintiff’s request for review, making the 4 ALJ’s decision the final decision of the Social Security Commissioner. (A.R. 4-9). On 5 July 20, 2016, Plaintiff filed a Complaint (Doc. 1) pursuant to 42 U.S.C. § 405(g) 6 requesting judicial review and reversal of the ALJ’s decision. 7 B. The ALJ’s Application of the Five-Step Disability Analysis 8 1. Step One: Engagement in "Substantial Gainful Activity" 9 The ALJ determined that Plaintiff has not engaged in substantial gainful activity 10 from October 29, 2010, the amended alleged disability onset date, through the date last 11 insured of December 31, 2012. (A.R. 27). Neither party disputes this determination. 12 2. Step Two: Presence of Medically Severe Impairment/Combination 13 of Impairments 14 The ALJ found that Plaintiff has the following severe impairments: (i) 15 degenerative disc disease of the lumbar spine, thoracic spine, and cervical spine; (ii) 16 obstructive sleep apnea; (iii) degenerative joint disease; (iv) bilateral hand/wrist 17 tenosynovitis; (v) trigger finger; (vi) Type II diabetes mellitus; (vii) chronic pain 18 syndrome; and (ix) obesity. (A.R. 27). This determination is unchallenged. 19 3. Step Three: Presence of Listed Impairment(s) 20 The ALJ found that Plaintiff does not have an impairment or combination of 21 impairments that meets or medically equals the severity of one of the listed impairments 22 in 20 C.F.R. Part 404, Subpart P, Appendix 1 of the Social Security regulations. (A.R. 23 29-30). Neither party disputes the ALJ’s determination at this step. 24 4. Step Four: Capacity to Perform Past Relevant Work 25 The ALJ found that Plaintiff has retained the residual functional capacity ("RFC") 26 to perform light work as defined in 20 C.F.R. § 404.1567(b), except that Plaintiff could frequently push and pull with the upper and lower 27 extremities; he could occasionally climb ramps, stairs, and 28 ladders; he could occasionally balance, stoop, kneel, and crouch; he was precluded from climbing ropes or scaffolds;-5-Case 2:16-cv-02430-ESW Document 25 Filed 07/14/17 Page 6 of 21 1 he was precluded from crawling; he could frequently reach, handle, finger, and feel; he had to avoid moderate exposure to 2 loud noise intensity environments; and he had to avoid 3 hazardous environments including unprotected heights and moving machinery. 4 (A.R. 30). 5 Based on the testimony of a vocational expert ("VE") and Plaintiff’s RFC, the ALJ 6 determined at Step Four that Plaintiff can perform his past relevant work as a storage 7 facility rental clerk, motorcycle salesman, warehouse manager, and telemarketer. (A.R. 8 36). 9 Plaintiff challenges the ALJ’s RFC and Step Four determinations. Plaintiff asserts 10 that the ALJ erroneously identified the motorcycle salesperson and telemarketer positions 11 as past relevant work. (Doc. 20 at 11-12). In addition, Plaintiff argues that the ALJ 12 committed harmful error in assessing Plaintiff’s RFC by improperly rejecting (i) 13 Plaintiff’s testimony regarding his symptoms; (ii) the opinions of Plaintiff’s mother 14 regarding Plaintiff’s symptoms; and (iii) the opinions of Plaintiff’s treating physicians. 15 (Id. at 12-20). Finally, Plaintiff contends that the ALJ posited a deficient hypothetical to 16 the VE at the administrative hearing. (Id. at 21). 17 5. Step Five: Capacity to Perform Other Work 18 The ALJ’s analysis did not proceed to the fifth step as the ALJ found at Step Four 19 that Plaintiff is not disabled. 20 C. Plaintiff’s Challenge to the ALJ’s Step Four Determination 21 1. Plaintiff’s Argument that the ALJ Erroneously Identified 22 "Motorcycle Salesperson" and "Telemarketer" as Past Relevant Work 23 An ALJ may find at Step Four that a claimant is not disabled if the ALJ 24 determines that the claimant can perform his or her past relevant work 3 as it (i) was 25 actually performed or (ii) is generally performed in the national economy. Social 26 27 3 "Past relevant work" is work (i) performed within the past fifteen years, (ii) 28 constituting substantial gainful activity, and (iii) lasting long enough for the individual to have learned how to perform the work. 20 C.F.R. §§ 404.1560(b)(1), 404.1565(a).-6-Case 2:16-cv-02430-ESW Document 25 Filed 07/14/17 Page 7 of 21 1 Security Ruling ("SSR") 82–61, 1982 WL 31387, at *1-2 (1982). The law does not 2 require an ALJ to make "explicit findings at step four regarding a claimant’s past relevant 3 work both as generally performed and as actually performed." Pinto v. Massanari, 249 4 F.3d 840, 845 (9th Cir. 2001) (emphasis in original). An ALJ, however, must make 5 specific findings as to (i) the claimant’s RFC; (ii) the physical and mental demands of the 6 past relevant work; and (iii) the relation of the RFC to the past work. Id. at 845 (citing 7 SSR 82-62). A claimant has the burden of establishing that he or she is incapable of 8 performing his or her past relevant work. 20 C.F.R. § 404.1512; Barnhart v. 9 Thomas, 540 U.S. 20, 25 (2003). 10 As discussed, the ALJ found that Plaintiff’s past relevant work included the 11 positions of piano mover, storage facility rental clerk, motorcycle salesman, warehouse 12 manager, and telemarketer. (A.R. 36). The ALJ found that Plaintiff could perform all of 13 those positions except for the piano mover position. (Id.). 14 Plaintiff argues that the ALJ erred by including the motorcycle salesperson and 15 telemarketer positions in the list of past relevant work. (Doc. 20 at 11-12). Plaintiff 16 argues that he did not perform those jobs at the substantial gainful activity level. (Id. at 17 12). However, where a disability claimant argues that an ALJ has erred, the claimant 18 must also show that the asserted error resulted in actual harm. See Ludwig v. Astrue, 681 19 F.3d 1047, 1054 (9th Cir. 2012) ("The burden is on the party claiming error to 20 demonstrate not only the error, but also that it affected his "substantial rights," which is 21 to say, not merely his procedural rights.") (citing Shinseki v. Sanders, 556 U.S. 396, 407– 22 09 (2009)). Plaintiff does not assert, and the Court does not find, that the ALJ erred by 23 finding that Plaintiff’s past relevant work also includes the storage facility rental clerk 24 and warehouse manager positions. For the reasons discussed herein, the Court does not 25 find that the ALJ erroneously determined Plaintiff is capable of working as a storage 26 facility rental clerk or warehouse manager. Therefore, any error in finding that the 27 motorcycle salesperson and telemarketer positions constitute past relevant work is 28 harmless. See Lind v. Astrue, 370 F. App’x 814, 817 (9th Cir. 2010) ("Any error by the-7-Case 2:16-cv-02430-ESW Document 25 Filed 07/14/17 Page 8 of 21 1 ALJ in considering jobs that did not qualify as past relevant work was harmless because 2 the ALJ found that Lind could perform her past relevant work as a customer service 3 representative, and the ability to perform one of her past jobs is sufficient to meet the 4 standard."). Plaintiff’s first challenge to the ALJ’s decision fails to show error 5 warranting reversal or remand. 6 2. Plaintiff’s Argument that the ALJ Improperly Weighed Medical 7 Source Opinions 8 In weighing medical source opinions in Social Security cases, there are three 9 categories of physicians: (i) treating physicians, who actually treat the claimant; (ii) 10 examining physicians, who examine but do not treat the claimant; and (iii) non-11 examining physicians, who neither treat nor examine the claimant. Lester v. Chater, 81 12 F.3d 821, 830 (9th Cir. 1995). An ALJ must provide clear and convincing reasons that 13 are supported by substantial evidence for rejecting the uncontradicted opinion of a 14 treating or examining doctor. Id. at 830-31; Bayliss v. Barnhart, 427 F.3d 1211, 1216 15 (9th Cir. 2005). An ALJ cannot reject a treating or examining physician’s opinion in 16 favor of another physician’s opinion without first providing specific and legitimate 17 reasons that are supported by substantial evidence, such as finding that the physician’s 18 opinion is inconsistent with and not supported by the record as a whole. Bayliss, 427 19 F.3d at 1216; 20 C.F.R. § 404.1527(c)(4) (an ALJ must consider whether an opinion is 20 consistent with the record as a whole); see also Batson v. Comm’r of Soc. Sec. Admin., 21 359 F.3d 1190, 1195 (9th Cir. 2004); Thomas v. Barnhart, 278 F.3d 947, 957 (9th Cir. 22 2002); Tommasetti, 533 F.3d at 1041 (finding it not improper for an ALJ to reject a 23 treating physician’s opinion that is inconsistent with the record). 24 i. Plaintiff’s Treating Physician Eric Feldman, M.D. 25 On July 16, 2012, Plaintiff’s treating physician, Eric Feldman, M.D., completed a 26 Residual Functional Capacity Questionnaire. (A.R. 423-24). Dr. Feldman opined that 27 Plaintiff’s symptoms associated with his impairments are severe enough to frequently 28 interfere with Plaintiff’s attention and concentration. (A.R. 423). Dr. Feldman also-8-Case 2:16-cv-02430-ESW Document 25 Filed 07/14/17 Page 9 of 21 1 opined that Plaintiff would need to recline or lie down in excess of normal breaks during 2 an eight-hour workday and can only sit and stand/walk for fifteen minutes at a time. 3 (Id.). In response to the question inquiring as to "the total number of hours your patient 4 can sit and stand/walk in an 8-hour workday," Dr. Feldman indicated "0." (Id.). In 5 addition, Dr. Feldman opined that Plaintiff cannot lift or carry anything. (A.R. 424). The 6 ALJ gave Dr. Feldman’s assessment little weight. (A.R. 35). As Dr. Feldman’s opinions 7 are contradicted by another acceptable medical source, 4 the Court must determine 8 whether the ALJ offered specific and legitimate reasons for discounting Dr. Feldman’s 9 assessment. 10 The ALJ found that Dr. Feldman’s assessment "is conclusory and unsupported by 11 the record." (A.R. 35). The ALJ stated that "Dr. Feldman’s notes do no[t] support the 12 extreme limitations he assessed (see Ex. 16F). His notes consistently showed normal 13 muscle strength in the lower extremities, and normal gait and station (id.)." (A.R. 35). 14 Finding that a physician’s opinion is conclusory or inconsistent with his or her treatment 15 notes are valid reasons for discounting the opinion. See Thomas, 278 F.3d at 957 ("The 16 ALJ need not accept the opinion of any physician, including a treating physician, if that 17 opinion is brief, conclusory, and inadequately supported by clinical findings."); Valentine 18 v. Comm'r, Soc. Sec. Admin., 574 F.3d 685, 692–93 (9th Cir. 2009); Rollins v. 19 Massanari, 261 F.3d 853, 856 (9th Cir. 2001) (ALJ permissibly rejected treating 20 physician’s opinion when opinion was contradicted by or inconsistent with treatment 21 reports); Ghanim v. Colvin, 763 F.3d 1154, 1161 (9th Cir. 2014) (a conflict between 22 treatment notes and a treating provider’s opinions may constitute an adequate reason to 23 24 4 Dr. Feldman’s opinions are contradicted by the opinions of the non-examining 25 State agency physicians. (A.R. 108-12, 130-35); see Moore v. Comm'r of Soc. Sec., 278 F.3d 920, 924 (9th Cir. 2002) ("The ALJ could reject the opinions of Moore’s examining 26 physicians, contradicted by a nonexamining physician, only for "specific and legitimate reasons that are supported by substantial evidence in the record."); Mendoza v. Astrue, 27 371 F. App’x 829, 831 (9th Cir. 2010) ("An ALJ may reject an opinion of an examining physician, if contradicted by a non-examining physician, as long as the ALJ gives 28'specific and legitimate reasons that are supported by substantial evidence in the record.’").-9-Case 2:16-cv-02430-ESW Document 25 Filed 07/14/17 Page 10 of 21 1 discredit the opinions of a treating physician); Connett v. Barnhart, 340 F.3d 871, 875 2 (9th Cir. 2003) (treating doctor’s opinion properly rejected when treatment notes 3 "provide no basis for the functional restrictions he opined should be imposed on 4 [claimant]"). 5 Moreover, the Court finds that the ALJ’s conclusion that Dr. Feldman’s 6 assessment is unsupported by treatment notes is a reasonable interpretation of the record. 7 For instance, in an October 5, 2011 treatment record, Dr. Feldman stated that Plaintiff 8 "did have an EMG/nerve conduction study which was reportedly normal." (A.R. 698). 9 In addition, Dr. Feldman observed in a number of treatment notes that Plaintiff had "[f]ull 10 range of motion in the hips knees and ankles" and had "[n]o focal strength deficits in the 11 lower extremities." (A.R. 698, 716, 721). On April 25, 2012, Dr. Feldman assessed that 12 Plaintiff had no weakness. (A.R. 722). Dr. Feldman also stated that Plaintiff could sit for 13 thirty minutes, which contradicts the statement in Dr. Feldman’s Residual Functional 14 Capacity Questionnaire that Plaintiff could sit for only fifteen minutes at a time. (A.R. 15 423, 723). 16 Based on the foregoing, the Court finds that the ALJ provided specific and 17 legitimate reasons supported by substantial evidence for giving Dr. Feldman’s assessment 18 little weight. 19 ii. Plaintiff’s Treating Physician Atul Syal, M.D. 20 Another one of Plaintiff’s treating physicians, Atul Syal, M.D., also completed a 21 Residual Functional Capacity Questionnaire. (A.R. 960-61). The Residual Functional 22 Capacity Questionnaire is dated June 16, 2014, which is after Plaintiff’s last insured date 23 of December 31, 2012. (A.R. 961). Dr. Syal opined that Plaintiff can sit and stand/walk 24 for ten minutes at a time, can sit for one hour out of an eight-hour workday, but cannot 25 stand/walk for any period of time in a workday. (A.R. 960). Dr. Syal assessed that 26 Plaintiff can frequently lift/carry less than ten pounds, can occasionally lift/carry ten 27 pounds, but can never lift/carry twenty or fifty pounds. (A.R. 961). 28-10-Case 2:16-cv-02430-ESW Document 25 Filed 07/14/17 Page 11 of 21 1 In explaining why he gave Dr. Syal’s opinions little weight, the ALJ observed that 2 Dr. Syal began treating Plaintiff seven months after the date last insured. (A.R. 35). "In 3 order to obtain disability benefits, [a claimant] must demonstrate he was disabled prior to 4 his last insured date." Morgan v. Sullivan, 945 F.2d 1079, 1080 (9th Cir. 1991) (citing 42 5 U.S.C. § 423(c); 20 C.F.R. § 404.1520). However, "medical evaluations made after the 6 expiration of a claimant’s insured status are relevant to an evaluation of the pre-7 expiration condition." Sampson v. Chater, 103 F.3d 918, 922 (9th Cir. 8 1996) (quoting Smith v. Bowen, 849 F.2d 1222, 1225 (9th Cir. 1988)). It is error to reject 9 a physician’s opinion solely because the physician rendered an opinion after the 10 claimant’s date last insured. See Wakefield v. Astrue, 267 F. App’x 682, 683 (9th Cir. 11 2008) (finding that the fact that a physician began treating the claimant after the 12 claimant’s date last insured was not a specific and legitimate reason for rejecting the 13 physician’s opinion). Accordingly, Dr. Syal’s opinion may not be discounted for the sole 14 reason that Dr. Syal evaluated Plaintiff after Plaintiff’s date last insured. 15 However, the ALJ also discounted Dr. Syal’s opinion on the ground that "the 16 evidence of record does not support the limitations he assessed." (A.R. 35). This finding 17 is a reasonable interpretation of the record. For instance, on May 30, 2014, Dr. Syal 18 noted that a "[n]eedle exam of the muscles of the bilateral lower extremities and the 19 Lumbosacral paraspinal muscles did not reveal any abnormalities." (A.R. 928). Dr. Syal 20 found that the results of an electromyogram (EMG) are "consistent with the diagnosis of 21 a mild sensory type of polyneuropathy. There is no evidence of radiculopathy based on 22 this exam." (Id.). At a July 31, 2013 exam, Dr. Syal found "strength of 5 out of 5 23 bilaterally and symmetrical except for weakness of the left hip flexion and left knee 24 extension at about 4+ out of 5." (A.R. 931). The Court finds that the ALJ provided a 25 specific and legitimate reason supported by substantial evidence for giving Dr. Syal’s 26 assessment little weight. 27 28-11-Case 2:16-cv-02430-ESW Document 25 Filed 07/14/17 Page 12 of 21 1 iii. Non-Examining State Agency Physicians 2 The ALJ gave great weight to the opinions of the non-examining state agency 3 physicians who reviewed Plaintiff’s medical records. (A.R. 36, 100-39). Plaintiff argues 4 that the ALJ erred by "basing his entire RFC finding" on those opinions. (Doc. 20 at 15). 5 The opinion of a non-examining source cannot alone constitute substantial 6 evidence that justifies rejecting the opinion of either an examining or a treating 7 source. Tonapetyan v. Halter, 242 F.3d 1144, 1149 (9th Cir. 2001) 8 (citing Magallanes, 881 F.2d at 752). However, the opinion of a non-examining source 9 may constitute substantial evidence when it is consistent with other independent evidence 10 in the record. Id. (citing Magallanes, 881 F.2d at 752). Since the opinions of the state 11 agency physicians are consistent with other evidence in the record, the ALJ did not err in 12 giving the opinions substantial weight. Thomas, 278 F.3d at 957 ("The opinions of non-13 treating or non-examining physicians may also serve as substantial evidence when the 14 opinions are consistent with independent clinical findings or other evidence in the 15 record."); Magallanes, 881 F.2d at 753 (upholding an ALJ’s reliance on the opinion of a 16 non-examining physician where the opinion was supported by objective medical 17 evidence). 18 3. Plaintiff’s Challenge to the ALJ’s Credibility Determination of 19 Plaintiff’s Symptom Testimony When evaluating the credibility of a plaintiff’s testimony regarding subjective pain 20 or symptoms, the ALJ must engage in a two-step analysis. Vasquez v. Astrue, 572 F.3d 21 586, 591 (9th Cir. 2009). In the first step, the ALJ must determine whether the claimant 22 has presented objective medical evidence of an underlying impairment "which could 23 reasonably be expected to produce the pain or other symptoms alleged." Lingenfelter v. 24 Astrue, 504 F.3d 1028, 1036 (9th Cir. 2007). The plaintiff does not have to show that the 25 impairment could reasonably be expected to cause the severity of the symptoms. Rather, 26 a plaintiff must only show that it could have caused some degree of the symptoms. 27 Smolen v. Chater, 80 F.3d 1273, 1282 (9th Cir. 1996). 28-12-Case 2:16-cv-02430-ESW Document 25 Filed 07/14/17 Page 13 of 21 1 If a plaintiff meets the first step, and there is no evidence of malingering, the ALJ 2 can only reject a plaintiff’s testimony about the severity of his or her symptoms by 3 offering specific, clear, and convincing reasons. Lingenfelter, 504 F.3d at 1036. The 4 ALJ cannot rely on general findings. The ALJ must identify specifically what testimony 5 is not credible and what evidence undermines the plaintiff’s complaints. Berry v. Astrue, 6 622 F.3d 1228, 1234 (9th Cir. 2010). In weighing a plaintiff’s credibility, the ALJ can 7 consider many factors including: a plaintiff’s reputation for truthfulness, prior 8 inconsistent statements concerning the symptoms, unexplained or inadequately explained 9 failure to seek treatment, and the plaintiff’s daily activities. Smolen, 80 F.3d at 1284; see 10 also 20 C.F.R. § 404.1529(c)(4) (Social Security must consider whether there are 11 conflicts between a claimant’s statements and the rest of the evidence). In addition, 12 although the lack of medical evidence cannot form the sole basis for discounting pain 13 testimony, it is a factor that the ALJ can consider in his or her credibility analysis. See 20 14 C.F.R. § 404.1529(c)(2); Rollins v. Massanari, 261 F.3d 853, 857 (9th Cir. 2001); Burch 15 v. Barnhart, 400 F.3d 676 (9th Cir. 2005). 16 In March 2016, the Social Security Administration issued Social Security Ruling 17 16-3p, 2016 WL 1119029 (March 16, 2016) ("SSR 16-3p"), which provides new 18 guidance for ALJs to follow when evaluating a disability claimant’s statements regarding 19 the intensity, persistence, and limiting effects of symptoms. SSR 16-3p replaces Social 20 Security Ruling 96-7p, 1996 WL 374186 (July 2, 1996) ("SSR 96-7p"). SSR 16-3p 21 eliminates the term "credibility" used in SSR 96-7p in order to "clarify that subjective 22 symptom evaluation is not an examination of the individual’s character." SSR 16-3p, 23 2016 WL 1119029, at *1. That is, "[t]he change in wording is meant to clarify that 24 administrative law judges aren’t in the business of impeaching claimants’ character," but 25 "obviously administrative law judges will continue to assess the credibility of pain 26 assertions by applicants, especially as such assertions often cannot be either credited or 27 rejected on the basis of medical evidence." Cole v. Colvin, 831 F.3d 411, 412 (7th Cir. 28 2016) (emphasis in original).-13-Case 2:16-cv-02430-ESW Document 25 Filed 07/14/17 Page 14 of 21 1 Although SSR 16-3p was issued after the ALJ’s February 2015 decision, it is 2 consistent with Social Security’s prior policies and with prior Ninth Circuit case law. 3 Compare SSR 16-3p with SSR 96-7p (both policies set forth a two-step process to be 4 followed in evaluating a claimant’s testimony and contain the same factors to be 5 considered in determining the intensity and persistence of a claimant’s symptoms). 6 Because 16-3p clarifies rather than changes existing law, 5 the Court will consider the 7 ALJ’s evaluation of Plaintiff’s subjective complaints in light of SSR 16-3p. 8 Plaintiff argues that the ALJ erred in discrediting Plaintiff’s testimony regarding 9 his subjective symptoms. As detailed below, the Court finds that the ALJ has provided 10 clear and convincing reasons supported by substantial evidence for discounting Plaintiff’s 11 testimony. 12 i. Lack of Objective Evidence 13 In explaining why he found Plaintiff’s testimony concerning his symptoms less 14 than fully credible, the ALJ stated that "[d]espite the claimant’s allegations of severe and 15 debilitating back pain and leg pain, the treatment notes documented minimal objective 16 findings...." (A.R. 31). This conclusion is supported by substantial evidence in the 17 record. The ALJ correctly noted that electrodiagnostic testing performed on Plaintiff in 18 June 2013 did not reveal any evidence of peripheral polyneuropathy or lumbosacral 19 radiculopathy. 6 (A.R. 674). Further, the ALJ did not rely solely on the lack of 20 21 5 Administrative rules will not have retroactive effect unless (i) Congress expressly authorized the administrative agency to enact retroactive rules and (ii) the new agency 22 rule states that it is retroactive. Bowen v. Georgetown Univ. Hosp., 488 U.S. 204, 208 (1988). A clarification of a regulation, however, does not raise issues about retroactivity. 23 See Clay v. Johnson, 264 F.3d 744, 749 (7th Cir. 2001) (stating that a clarifying rule "can be applied to the case at hand just as a judicial determination construing a statute can be 24 applied to the case at hand," and does not raise issues of retroactivity); see also Smolen, 80 F.3d at 1281 n.1 ("We need not decide the issue of retroactivity [as to revised 25 regulations] because the new regulations are consistent with the Commissioner’s prior policies and with prior Ninth Circuit case law...."). 26 6 Evidence that post-dates a claimant's date last insured may be probative of 27 whether a claimant had any impairments prior to his or her date last insured. See, e.g., Turner v. Comm'r of Social Security, 613 F.3d 1217, 1228-29 (9th Cir. 2010) 28 ("While the ALJ must consider only impairments (and limitations and restrictions therefrom) that [the claimant] had prior to the DLI, evidence post-dating the DLI is-14-Case 2:16-cv-02430-ESW Document 25 Filed 07/14/17 Page 15 of 21 1 supporting medical evidence in making his credibility determination. As discussed 2 below, the ALJ gave other clear and convincing reasons to discount Plaintiff’s credibility 3 concerning the severity and limiting effects of his pain. Thus, the ALJ properly 4 considered the lack of objective medical evidence supporting Plaintiff’s claimed 5 limitations as one of the factors in weighing Plaintiff’s credibility. Rollins, 261 F.3d at 6 857 ("While subjective pain testimony cannot be rejected on the sole ground that it is not 7 fully corroborated by objective medical evidence, the evidence is still a relevant factor in 8 determining the severity of the claimant’s pain and its disabling effects.") (citing 20 9 C.F.R. § 404.1529(c)(2)). 10 ii. Conservative Treatment 11 In discounting Plaintiff’s testimony, the ALJ observed that Plaintiff has received 12 routine, conservative treatment. (A.R. 31, 32). Generally, "[e]vidence of 13'conservative treatment’ is sufficient to discount a claimant’s testimony regarding 14 severity of an impairment." Parra, 481 F.3d at 751; see also Orn v. Astrue, 495 F.3d 15 625, 638 (9th Cir. 2007) ("Our case law is clear that if a claimant complains about 16 disabling pain but fails to seek treatment, or fails to follow prescribed treatment, for the 17 pain, an ALJ may use such failure as a basis for finding the complaint unjustified or 18 exaggerated.); Meanel v. Apfel, 172 F.3d 1111, 1114 (9th Cir. 1999) (the ALJ properly 19 considered the physician’s failure to prescribe, and the claimant’s failure to request, 20 medical treatment commensurate with the "supposedly excruciating pain" alleged). 21 However, "[d]isability benefits may not be denied because of the claimant’s failure to 22 obtain treatment he cannot obtain for lack of funds." Orn, 495 F.3d at 23 638 (quoting Gamble v. Chater, 68 F.3d 319, 321 (9th Cir. 1995)) (alteration in original). 24 Plaintiff implicitly concedes that his treatment has been conservative, asserting 25 that the ALJ "improperly relied on the history of conservative treatment for his 26 impairments in assessing credibility." (Doc. 20 at 18). Plaintiff asserts that the record 27 shows that his insurance declined to cover certain medications and procedures that his 28 probative of [the claimant’s] pre-DLI disability.").-15-Case 2:16-cv-02430-ESW Document 25 Filed 07/14/17 Page 16 of 21 1 physicians have recommended. (Id.). To support this assertion, Plaintiff cites the 2 following three pages from the administrative record: A.R. 85, 654, and 819. (Id.). 3 None of these pages show that Plaintiff’s conservative treatment was a result of lack of 4 insurance coverage during the relevant period (October 29, 2010 through December 31, 5 2012). 6 A.R. 85 is an excerpt from Plaintiff’s testimony at the hearing. Plaintiff’s attorney 7 asked Plaintiff "what is [Dr. Syal] telling you about the future of your condition?" (A.R. 8 85). Plaintiff stated "Nothing he can do. I was told once that I could try the pain 9 stimulator, but I have to have failed back surgery before the insurance covers it." (Id.). 10 Plaintiff asserts that his "doctors decided surgery was possible for the thoracic spine 11 condition, but was likely too risky as far as potentially resulting in complications, so they 12 declined to perform surgery. (Tr. 641.)" (Doc. 20 at 18). This assertion is not supported 13 by the record. The record cited by Plaintiff above (A.R. 641) is an October 25, 2013 14 treatment note by a physician at the Core Institute. The physician stated that there is not 15 a "neurologically [sic] imperative to surgical intervention" and there "[i]s no evidence of 16 any ongoing cord compression or neural lesion that would be improved with surgical 17 intervention." (Id.). The physician also stated that "[t]he patient has an extremely 18 complex pain portfolio with components of anger and frustration lability of symptoms 19 that would not predictably be improved by any surgical intervention familiar to the 20 examining surgeon." (Id.). 21 A.R. 654 and 819 are treatment notes that post-date Plaintiff’s last insured date of 22 December 31, 2012. A.R. 654 is an April 4, 2013 treatment note that states that 23 Plaintiff’s "insurance company denied his MRI and he is here for a re-evaluation." A.R. 24 819 is a September 18, 2013 treatment record that indicates that Plaintiff’s insurance 25 company did not approve Cymbalta for his low back pain, but that the doctor provided 26 Plaintiff with a sample. 27 The Court finds that the record does not reflect that Plaintiff's impairments 28 required more than conservative treatment during the relevant time period. Plaintiff is-16-Case 2:16-cv-02430-ESW Document 25 Filed 07/14/17 Page 17 of 21 1 ultimately responsible for providing the evidence to be used in making the RFC 2 finding. Andrews, 53 F.3d at 1040 (a claimant bears the burden of proving entitlement to 3 disability benefits); Meanel, 172 F.3d at 1113 (claimant carries burden to present 4 "complete and detailed objective medical reports" of his or her condition from licensed 5 medical professionals). Because an ALJ may infer that pain is not disabling if a claimant 6 seeks only minimal, conservative treatment, the ALJ did not err in concluding that the 7 conservative treatment Plaintiff has received is inconsistent with Plaintiff's allegations 8 regarding the severity of his symptoms. 9 iii. Daily Activities 10 As another reason for discounting Plaintiff’s symptom testimony, the ALJ stated 11 that Plaintiff 12 described every day activities that included going to the movies, taking his dog to the park, using a computer, going 13 target shooting, riding a motorcycle, driving a utility terrain 14 vehicle for off-roading, repairing his motorcycles, doing some light household chores, preparing meals, and taking care of 15 his finances. 16 (A.R. 31-32). The ALJ found that "[t]he physical and mental capabilities requisite to 17 performing many of the tasks described above as well as the social interactions replicate 18 those necessary for obtaining and maintaining employment." (A.R. 32). This a clear and 19 convincing reason supported by substantial evidence for discounting Plaintiff’s symptom 20 testimony. See Curry v. Sullivan, 925 F.2d 1127, 1130 (9th Cir. 1990) (upholding denial 21 of disability benefits where claimant could "take care of her personal needs, prepare easy 22 meals, do light housework, and shop for some groceries"); see also Molina, 674 F.3d at 23 1113 ("Even where [daily] activities suggest some difficulty functioning, they may be 24 grounds for discrediting the claimant's testimony to the extent that they contradict claims 25 of a totally debilitating impairment."). 26 The ALJ’s credibility finding in this case is unlike the brief and conclusory 27 credibility findings that the Ninth Circuit has deemed insufficient in other cases. For 28 example, in Treichler v. Commissioner of Social Sec. Admin., 775 F.3d 1090, 1102-03-17-Case 2:16-cv-02430-ESW Document 25 Filed 07/14/17 Page 18 of 21 1 (9th Cir. 2014), an ALJ stated in a single sentence that "the claimant’s statements 2 concerning the intensity, persistence and limiting effects of these symptoms are not 3 credible to the extent they are inconsistent with the above residual functional capacity 4 assessment." The Court of Appeals held that stopping after this introductory remark 5 "falls short of meeting the ALJ’s responsibility to provide a discussion of the evidence 6 and the reason or reasons upon which his adverse determination is based." Id. at 1103 7 (internal quotation marks omitted). The Court further stated that an ALJ’s "vague 8 allegation that a claimant’s testimony is not consistent with the objective medical 9 evidence, without any specific findings in support of that conclusion is insufficient for 10 our review." Id. (quoting Vasquez v. Astrue, 572 F.3d 586, 592 (9th Cir. 2009). 11 In Robbins v. Astrue, 466 F.3d 880, 883-84 (9th Cir. 2006), the Ninth Circuit 12 found the ALJ’s "fleeting credibility finding" insufficient. In Robbins, the ALJ simply 13 stated that (i) the claimant’s testimony was "not consistent with or supported by the 14 overall medical evidence of record" and (ii) "[claimant’s] testimony regarding his alcohol 15 dependence and abuse problem remains equivocal." Id. In discussing why the ALJ’s 16 finding was insufficient, the Court explained that the ALJ did not provide a "narrative 17 discussion" containing "specific reasons for the finding...supported by the evidence in 18 the record." Id. at 884-85. 19 Similarly, in Lester v. Chater, 81 F.3d 821, 833 (9th Cir. 1995), an ALJ simply 20 concluded that the claimant’s complaints were "not credible" and "exaggerated." The 21 Court held that the finding was insufficient as the ALJ did not provide any specific 22 reasons for disbelieving the claimant other than a lack of objective evidence. Id. at 834. 23 Here, unlike in Treichler, Robbins, and Lester, the ALJ’s decision goes beyond 24 making a "fleeting" and conclusory remark that Plaintiff’s testimony is not credible. The 25 decision discusses the evidence and explains the inconsistencies in the record that the 26 ALJ found discredited Plaintiff’s testimony. The ALJ’s conclusion is supported by 27 substantial evidence in the record. 28-18-Case 2:16-cv-02430-ESW Document 25 Filed 07/14/17 Page 19 of 21 1 It is possible that a different ALJ would find Plaintiff’s symptom testimony 2 credible. But it is not the Court’s role to second guess an ALJ’s decision to disbelieve a 3 Plaintiff’s allegations if the ALJ has articulated specific, clear, and convincing reasons 4 that are supported by substantial evidence in the record. Fair, 885 F.2d at 603 ("An ALJ 5 cannot be required to believe every allegation of disabling pain, or else disability benefits 6 would be available for the asking...."). The Court finds that the reasons provided by the 7 ALJ for discrediting Plaintiff’s testimony are specific, clear, convincing, and are 8 supported by substantial evidence in the record. The Court therefore finds that the ALJ 9 did not err in discrediting Plaintiff’s subjective testimony. 10 4. The ALJ Did Not Improperly Discount the Statements of Plaintiff’s 11 Mother Regarding Plaintiff’s Symptoms 12 A source that is not an acceptable medical source is considered to be an "other 13 source." 20 C.F.R. 404.1513(d). "Other sources" include physician’s assistants, nurse 14 practitioners, and lay witnesses. 20 C.F.R. § 404.1513. Information from these "other 15 sources" must still be considered even though the information cannot establish the 16 existence of a medically determinable impairment. Id. An other source’s opinion can be 17 rejected as long as the ALJ provides "germane" reasons, such as finding that the opinion 18 is inconsistent with medical evidence. Bayliss v. Barnhart, 427 F.3d 1211, 1218 (9th Cir. 19 2005). 20 Plaintiff’s mother completed two third party function reports on Plaintiff’s behalf. 21 (A.R. 249-58, 297-306). After reviewing the reports, the Court concludes that the ALJ 22 correctly found that "[t]he statements in these reports are of the same general nature as 23 the subjective complaints from the claimant’s testimony." (A.R. 32). In explaining why 24 he found Plaintiff’s mother’s statement unpersuasive, the ALJ noted that Plaintiff’s 25 mother is not a medical professional. (Id.). This is an invalid reason for rejecting the 26 statements. See SSR 06–3P, 2006 WL 2329939, at *3 (Aug. 9, 2006) (stating that 27 opinions from other sources "are important and should be evaluated on key issues such as 28 impairment severity and functional effects, along with the other relevant evidence in the-19-Case 2:16-cv-02430-ESW Document 25 Filed 07/14/17 Page 20 of 21 1 file"); Sprague v. Bowen, 812 F.2d 1226, 1232 (9th Cir. 1987) (holding that friends and 2 family members are in a position to observe a claimant's symptoms and daily activities 3 and are competent to testify as to the claimant's condition); Tobeler v. Colvin, 749 F.3d 4 830, 834 (9th Cir. 2014) ("lay witness testimony as to a claimant's symptoms or how an 5 impairment affects ability to work is competent evidence that cannot be disregarded 6 without comment") (emphasis in original). 7 However, the ALJ also found that "the clinical and diagnostic medical evidence" 8 discussed in the decision does not support the statements of Plaintiff’s mother. (A.R. 32). 9 This is a germane reason supported by substantial evidence in the record for discounting 10 the statements. Therefore, although the ALJ’s first reason for discounting the opinion of 11 Plaintiff’s mother is invalid, the error is harmless. See Molina, 674 F.3d at 1115 (where 12 some reasons supporting an ALJ’s credibility analysis are found invalid, the error is 13 harmless if the remaining valid reasons provide substantial evidence to support the ALJ’s 14 credibility determination and "the error does not negate the validity of the ALJ’s ultimate 15 conclusion."). 16 In addition, any error in failing to provide proper reasons for discounting the third 17 party function reports is harmless as the statements of Plaintiff's mother duplicate 18 Plaintiff's testimony, which the ALJ properly discredited. See Valentine v. Comm'r of 19 Soc. Sec., 574 F.3d 685, 694 (9th Cir. 2009) (holding that because "the ALJ provided 20 clear and convincing reasons for rejecting [the claimant's] own subjective complaints, 21 and because [the lay witness’] testimony was similar to such complaints, it follows that 22 the ALJ also gave germane reasons for rejecting [the lay witness’] 23 testimony"); Molina, 674 F.3d at 1117 ("Where lay witness testimony does not describe 24 any limitations not already described by the claimant, and the ALJ's well-supported 25 reasons for rejecting the claimant's testimony apply equally well to 26 the lay witness testimony, it would be inconsistent with our prior harmless error 27 precedent to deem the ALJ's failure to discuss the lay witness testimony to be prejudicial 28 per se.").-20-Case 2:16-cv-02430-ESW Document 25 Filed 07/14/17 Page 21 of 21 1 5. Plaintiff’s Challenge to the ALJ’s Hypothetical to the VE 2 In establishing that a claimant can perform other work, an ALJ may rely on a VE’s 3 testimony. A hypothetical presented to a VE, however, must reflect all of the claimant’s 4 limitations. DeLorme v. Sullivan, 924 F.2d 841, 850 (9th Cir. 1991) (holding that if a 5 VE’s hypothetical does not reflect all the claimant’s limitations, then the VE’s testimony 6 does not support a finding that the claimant can perform jobs in the national economy); 7 Osenbrock v. Apfel, 240 F.3d 1157 (an ALJ must propose a hypothetical to VE that is 8 based on medical assumptions supported by substantial evidence in the record that 9 reflects each of the claimant’s limitations). 10 Plaintiff argues that "in posing his hypothetical questions to the vocational expert, 11 the ALJ omitted Plaintiff’s credible allegations, those of the lay witness, and the 12 limitations assessed by treating doctors...." (Doc. 20 at 21). The Court, however, has 13 determined that the ALJ did not improperly discount Plaintiff’s symptom testimony, the 14 opinions of Plaintiff’s mother, and the opinions of Plaintiff’s treating physicians. The 15 hypothetical that the ALJ posited to the VE included all limitations that the ALJ found 16 credible. Accordingly, Plaintiff’s final challenge to the ALJ’s decision fails to show 17 harmful error. See Roy v. Colvin, 656 F. App’x 816, 819 (9th Cir. 2016) ("The ALJ’s 18 question to the vocational expert was not incomplete because the ALJ properly 19 discounted or construed the limitations Roy claims should have been included in the 20 ALJ’s question."). 21 III. CONCLUSION 22 Based on the foregoing, the Court finds that the ALJ’s decision is supported by 23 substantial evidence and is free from reversible error. Accordingly, the decision of the 24 Commissioner of Social Security is affirmed. 25 IT IS THEREFORE ORDERED affirming the decision of the Commissioner of 26 Social Security. The Clerk of Court shall enter judgment accordingly. 27 Dated this 14th day of July, 2017. 28-21-
CLERK'S JUDGMENT - IT IS ORDERED AND ADJUDGED that pursuant to the Court's Order filed July 14, 2017, the Decision of the Commissioner of Social Security is AFFIRMED and this action is hereby terminated.
Case 2:16-cv-02430-ESW Document 26 Filed 07/14/17 Page 1 of 1 1 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Craig Allen Carlson, NO. CV-16-02430-PHX-ESW 10 Plaintiff, JUDGMENT IN A CIVIL CASE 11 v. 12 Commissioner of Social Security Administration, 13 Defendant. 14 15 Decision by Court. This action came for consideration before the Court. The 16 issues have been considered and a decision has been rendered. 17 IT IS ORDERED AND ADJUDGED that pursuant to the Court’s Order filed July 18 14, 2017, the Decision of the Commissioner of Social Security is AFFIRMED and this 19 action is hereby terminated. 20 Brian D. Karth District Court Executive/Clerk of Court 21 22 July 14, 2017 s/E. Aragon 23 By Deputy Clerk 24 25 26 27 28
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