Turner v. Commissioner Social Security Administration

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF OREGON

CONNIE T.,1 6:19-cv-00217-BR

Plaintiff, OPINION AND ORDER

v.

Commissioner, Social

Security Administration,

Defendant.

KATHERINE EITENMILLER

BRENT WELLS

Harder Wells Baron & Manning

474 Willamette Street

Eugene, OR 97401

(541) 686-1969

Attorneys for Plaintiff

1 In the interest of privacy this Court uses only the first

name and the initial of the last name of the nongovernmental

party in this case.

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BILLY J. WILLIAMS

United States Attorney

RENATA GOWIE

Assistant United States Attorney

1000 S.W. Third Avenue, Suite 600

Portland, OR 97204-2902

(503) 727-1021

MICHAEL W. PILE

Acting Regional Chief Counsel

RYAN TA LU

Special Assistant United States Attorney

Social Security Administration

701 Fifth Avenue, Suite 2900, M/S 221A

Seattle, WA 98104

(206) 615-2034

Attorneys for Defendant

BROWN, Senior Judge.

Plaintiff Connie T. seeks judicial review of a final

decision of the Commissioner of the Social Security

Administration (SSA) in which he denied Plaintiff's application

for Disability Insurance Benefits (DIB) under Title II of the

Social Security Act. This Court has jurisdiction to review the

Commissioner's final decision pursuant to 42 U.S.C. § 405(g).

For the reasons that follow, the Court AFFIRMS the decision

of the Commissioner and DISMISSES this matter.

ADMINISTRATIVE HISTORY

Plaintiff filed an application for DIB on July 10, 2015,

alleging a disability onset date of January 14, 2014. Tr. 216-

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19.1 The application was denied initially and on

reconsideration. An Administrative Law Judge (ALJ) held a

hearing on November 2, 2017. Tr. 32-67. Plaintiff was

represented at the hearing. Plaintiff and a vocational expert

(VE) testified.

The ALJ issued a decision on March 6, 2018, in which she

found Plaintiff was not disabled before her December 31, 2014,

date last insured and, therefore, is not entitled to benefits.

Tr. 10-31. Pursuant to 20 C.F.R. § 404.984(d), that decision

became the final decision of the Commissioner on December 14,

2018, when the Appeals Council denied Plaintiff's request for

review. Tr. 1-6. See Sims v. Apfel, 530 U.S. 103, 106-07

(2000).

BACKGROUND

Plaintiff was born on January 26, 1969, and was 56 years old

at the time of the hearing. Tr. 216. Plaintiff has a high-

school education. Tr. 237. Plaintiff has past relevant work

experience as a department manager and assistant retail manager.

Tr. 58.

Plaintiff alleges disability during the relevant period due

to bipolar disorder, depression, lower-back pain, anxiety,

1 Citations to the official transcript of record filed by

the Commissioner on November 15, 2017, are referred to as "Tr."

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“trouble concentrating,” and “trouble interacting with people.”

Tr. 128-29.

Except when noted, Plaintiff does not challenge the ALJ’s

summary of the medical evidence. After carefully reviewing the

medical records, this Court adopts the ALJ’s summary of the

medical evidence. See Tr. 23-25.

STANDARDS

The initial burden of proof rests on the claimant to

establish disability. Molina v. Astrue, 674 F.3d 1104, 1110 (9th

Cir. 2012). To meet this burden, a claimant must demonstrate her

inability "to engage in any substantial gainful activity by

reason of any medically determinable physical or mental

impairment which . . . has lasted or can be expected to last for

a continuous period of not less than 12 months." 42 U.S.C.

§ 423(d)(1)(A). The ALJ must develop the record when there is

ambiguous evidence or when the record is inadequate to allow for

proper evaluation of the evidence. McLeod v. Astrue, 640 F.3d

881, 885 (9th Cir. 2011)(quoting Mayes v. Massanari, 276 F.3d

453, 459–60 (9th Cir. 2001)).

The district court must affirm the Commissioner's decision

if it is based on proper legal standards and the findings are

supported by substantial evidence in the record as a whole. 42

U.S.C. § 405(g). See also Brewes v. Comm’r of Soc. Sec. Admin.,

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682 F.3d 1157, 1161 (9th Cir. 2012). Substantial evidence is

“relevant evidence that a reasonable mind might accept as

adequate to support a conclusion.” Molina, 674 F.3d. at 1110-11

(quoting Valentine v. Comm’r Soc. Sec. Admin., 574 F.3d 685, 690

(9th Cir. 2009)). "It is more than a mere scintilla [of

evidence] but less than a preponderance." Id. (citing Valentine,

574 F.3d at 690).

The ALJ is responsible for determining credibility,

resolving conflicts in the medical evidence, and resolving

ambiguities. Vasquez v. Astrue, 572 F.3d 586, 591 (9th Cir.

2009). The court must weigh all of the evidence whether it

supports or detracts from the Commissioner's decision. Ryan v.

Comm’r of Soc. Sec., 528 F.3d 1194, 1198 (9th Cir. 2008). Even

when the evidence is susceptible to more than one rational

interpretation, the court must uphold the Commissioner’s findings

if they are supported by inferences reasonably drawn from the

record. Ludwig v. Astrue, 681 F.3d 1047, 1051 (9th Cir. 2012).

The court may not substitute its judgment for that of the

Commissioner. Widmark v. Barnhart, 454 F.3d 1063, 1070 (9th Cir.

2006).

DISABILITY ANALYSIS

I. The Regulatory Sequential Evaluation

The Commissioner has developed a five-step sequential

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inquiry to determine whether a claimant is disabled within the

meaning of the Act. Parra v. Astrue, 481 F.3d 742, 746 (9th Cir.

2007). See also 20 C.F.R. § 404.1520. Each step is potentially

dispositive.

At Step One the claimant is not disabled if the Commissioner

determines the claimant is engaged in substantial gainful

activity. 20 C.F.R. § 404.1520(a)(4)(I). See also Keyser v.

Comm’r of Soc. Sec., 648 F.3d 721, 724 (9th Cir. 2011).

At Step Two the claimant is not disabled if the Commissioner

determines the claimant does not have any medically severe

impairment or combination of impairments. 20 C.F.R. §§ 404.1509,

404.1520(a)(4)(ii). See also Keyser, 648 F.3d at 724.

At Step Three the claimant is disabled if the Commissioner

determines the claimant’s impairments meet or equal one of the

listed impairments that the Commissioner acknowledges are so

severe as to preclude substantial gainful activity. 20 C.F.R.

§ 404.1520(a)(4)(iii). See also Keyser, 648 F.3d at 724. The

criteria for the listed impairments, known as Listings, are

enumerated in 20 C.F.R. part 404, subpart P, appendix 1 (Listed

Impairments).

If the Commissioner proceeds beyond Step Three, he must

assess the claimant’s residual functional capacity (RFC). The

claimant’s RFC is an assessment of the sustained, work-related

physical and mental activities the claimant can still do on a

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regular and continuing basis despite her limitations. 20 C.F.R.

§ 404.1520(e). See also Social Security Ruling (SSR) 96-8p. “A

'regular and continuing basis' means 8 hours a day, for 5 days a

week, or an equivalent schedule." SSR 96-8p, at *1. In other

words, the Social Security Act does not require complete

incapacity to be disabled. Taylor v. Comm’r of Soc. Sec. Admin.,

659 F.3d 1228, 1234-35 (9th Cir. 2011)(citing Fair v. Bowen, 885

F.2d 597, 603 (9th Cir. 1989)).

At Step Four the claimant is not disabled if the

Commissioner determines the claimant retains the RFC to perform

work she has done in the past. 20 C.F.R. § 404.1520(a)(4)(iv).

See also Keyser, 648 F.3d at 724.

If the Commissioner reaches Step Five, he must determine

whether the claimant is able to do any other work that exists in

the national economy. 20 C.F.R. § 404.1520(a)(4)(v). See also

Keyser, 648 F.3d at 724-25. Here the burden shifts to the

Commissioner to show a significant number of jobs exist in the

national economy that the claimant can perform. Lockwood v.

Comm’r Soc. Sec. Admin., 616 F.3d 1068, 1071 (9th Cir. 2010).

The Commissioner may satisfy this burden through the testimony of

a VE or by reference to the Medical-Vocational Guidelines set

forth in the regulations at 20 C.F.R. part 404, subpart P,

appendix 2. If the Commissioner meets this burden, the claimant

is not disabled. 20 C.F.R. § 404.1520(g)(1).

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ALJ'S FINDINGS

At Step One the ALJ found Plaintiff did not engage in

substantial gainful activity from her January 14, 2014, alleged

onset date through her December 31, 2014, date last insured.

Tr. 16.

At Step Two the ALJ found Plaintiff had the severe

impairment of lumbar disc disease.2 Tr. 16.

At Step Three the ALJ concluded Plaintiff's medically

determinable impairments during the relevant period did not meet

or medically equal one of the listed impairments in 20 C.F.R.

part 404, subpart P, appendix 1. Tr. 20. The ALJ found during

the relevant period that Plaintiff had the RFC to perform light

work with the following limitations: Plaintiff could

occasionally balance, stoop, kneel, crouch, crawl, and climb

ramps and stairs and could never climb ladders, ropes, or

scaffolds or be exposed to “hazards such as machinery and

unprotected heights.” Tr. 20.

At Step Four the ALJ found Plaintiff could perform her past

relevant work as an assistant retail manager during the relevant

2 In the heading of the ALJ’s opinion relating to her Step

Two analysis, the ALJ states Plaintiff’s depression was severe

during the relevant period. In the ALJ’s conclusion of her Step

Two analysis, however, the ALJ concludes Plaintiff’s depression

was nonsevere during the relevant period. The substance of the

ALJ’s analysis at Step Two makes clear that the heading is a

scrivener’s error and that the ALJ, in fact, concluded

Plaintiff’s depression was nonsevere during the relevant period.

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period. Tr. 25.

In the alternative, the ALJ found at Step Five Plaintiff

could perform other work that existed in the national economy

during the relevant period. Tr. 26. Accordingly, the ALJ

concluded Plaintiff was not disabled from January 14, 2014,

through December 31, 2014.

DISCUSSION

Plaintiff contends the ALJ erred when she (1) found at Step

Two that Plaintiff’s depression was nonsevere during the relevant

period; (2) partially rejected Plaintiff’s testimony; (3) gave

only “some weight” to the Third-Party Function Report of Matt H.,

Plaintiff’s son; and (4) partially rejected the opinions of Laura

Rung, M.D., treating physician.

I. The ALJ did not err at Step Two when she found Plaintiff’s

depression was nonsevere during the relevant period.

As noted, Plaintiff contends the ALJ erred at Step Two when

she found Plaintiff’s depression was nonsevere during the

relevant period.

At Step Two the claimant is not disabled if the Commissioner

determines the claimant does not have any medically severe

impairment or combination of impairments. 20 C.F.R. §§ 404.1509,

404.1520(a)(4)(ii). See also Keyser, 648 F.3d at 724. A severe

impairment "significantly limits" a claimant's "physical or

mental ability to do basic work activities." 20 C.F.R.

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§ 404.1521(a). See also Ukolov v. Barnhart, 420 F.3d 1000, 1003

(9th Cir. 2005). The ability to perform basic work activities is

defined as "the abilities and aptitudes necessary to do most

jobs." 20 C.F.R. §§ 404.1521(a), (b). Plaintiff has the burden

at Step Two to establish the existence of a severe impairment and

to show any error is harmful.

Courts have held Step Two is “merely a threshold

determination meant to screen out weak claims.” Bowen v.

Yuckert, 482 U.S. 137, 146-47 (1987). See also Buck v.

Berryhill, 869 F.3d 1040, 1048 (9th Cir. 2017)(same). Step Two

“is not meant to identify the impairments that should be taken

into account when determining the RFC. In fact, ‘[i]n assessing

RFC, the adjudicator must consider limitations and restrictions

imposed by all of an individual's impairments, even those that

are not severe.’” Buck, 869 F.3d at 1048-49 (quoting SSR 96-8p,

1996 WL 374184, at *5 (S.S.A. July 2, 1996)).

The ALJ concluded Plaintiff’s depression was a medically

determinable impairment, but she concluded it did not cause more

than “mild” limitations in Plaintiff’s ability to understand, to

remember, or to apply information; to interact with others; to

concentrate, to persist, or to maintain pace; or to adapt or to

manage herself during the relevant period. The ALJ noted

Plaintiff was able to take care of her personal needs, to care

for her minor foster child, to travel alone, to drive a car, and

10 - OPINION AND ORDER

to do minor household chores during the relevant period. The ALJ

stated although Plaintiff was unable to tend to her horses,

sheep, and goats during the relevant period, it was due to her

physical limitations rather than her mental limitations. The ALJ

also noted the record reflected Plaintiff took her granddaughter

to a pumpkin patch, went shopping on Black Friday for several

hours, and took her daughter swimming at the local swimming pool

during the relevant period. Plaintiff testified at the hearing

that she was unable to go to state fairs or to her daughter’s

sporting events due to her physical limitations rather than her

mental-health issues. Finally, the ALJ noted the record reflects

Plaintiff’s mental-health issues improved during the relevant

period due to medication and therapy.

In addition, the Ninth Circuit has held when the ALJ has

resolved Step Two in a claimant’s favor, any error in designating

specific impairments as severe at Step Two does not prejudice a

claimant if the ALJ considered the impairments when assessing

Plaintiff’s RFC. See, e.g., Vivian v. Saul, 780 F. App'x 526,

527 (9th Cir. 2019)(“Any error at step two in failing to list

Vivian’s hand, knee, and hip impairments and spinal

osteoarthritis was harmless because the ALJ resolved step two in

Vivian’s favor and considered all of his symptoms in formulating

the residual function capacity.”); Buck, 869 F.3d at 1049

(“[S]tep two was decided in [the plaintiff’s] favor after both

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hearings. He could not possibly have been prejudiced. Any

alleged error is therefore harmless and cannot be the basis for a

remand.”)(citation omitted). Here the ALJ resolved Step Two in

Plaintiff’s favor and considered Plaintiff’s mild mental-health

limitations in her assessment of Plaintiff’s RFC.

Accordingly, on this record the Court concludes the ALJ did

not err when she found at Step Two that Plaintiff’s depression

was nonsevere during the relevant period. In the alternative the

Court concludes because the ALJ resolved Step Two in Plaintiff's

favor, any error by the ALJ in failing to identify Plaintiff’s

depression as severe is harmless.

II. The ALJ did not err when she partially rejected Plaintiff’s

testimony.

As noted, Plaintiff contends the ALJ erred when she

partially rejected Plaintiff’s testimony.

In Cotton v. Bowen the Ninth Circuit established two

requirements for a claimant to present credible symptom

testimony: The claimant must produce objective medical evidence

of an impairment or impairments, and she must show the impairment

or combination of impairments could reasonably be expected to

produce some degree of symptom. Cotton, 799 F.2d 1403 (9th Cir.

1986). The claimant, however, need not produce objective medical

evidence of the actual symptoms or their severity. Smolen, 80

F.3d at 1284.

If the claimant satisfies the above test and there is not

12 - OPINION AND ORDER

any affirmative evidence of malingering, the ALJ can reject the

claimant's pain testimony only if she provides clear and

convincing reasons for doing so. Parra v. Astrue, 481 F.3d 742,

750 (9th Cir. 2007)(citing Lester v. Chater, 81 F.3d 821, 834 (9th

Cir. 1995)). General assertions that the claimant's testimony is

not credible are insufficient. Id. The ALJ must identify "what

testimony is not credible and what evidence undermines the

claimant's complaints." Id. (quoting Lester, 81 F.3d at 834).

Plaintiff testified at the hearing that during the relevant

period she would experience “flare” ups of lower-back pain and

would be unable to bend over, to tie her shoes, or to move.

Plaintiff described the pain during a flare as “like needles

shoving you if you go to move.” Tr. 49. Plaintiff explained

when she was not having “a flare,” she could dress herself, put

on shoes, “move around the house,” sit, and stand without

problems. Tr. 49. Plaintiff noted her doctors had given her

different exercises to avoid having “flares,” “some kind of

medication for a muscle relaxant during a flare,” and Trazadone.

Tr. 48. During the relevant period Plaintiff’s flares would

“last a week, sometimes ten days.” Tr. 49. The frequency of

Plaintiff’s flares “would depend . . . on [her] activity.”

Tr. 50. For example, if Plaintiff had to stand in one place for

more than ten minutes or do “any kind of lifting,” it would bring

on a flare. Tr. 50. Plaintiff testified she was unable to go to

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the state fair or to her daughter’s athletic activities because

she could not stand in line without having a flare. During the

relevant period Plaintiff “usually [had] one [flare] at least

every three months.” Tr. 51.

Plaintiff noted she began going to Linn County Mental Health

just before the relevant period because she was “extremely

depressed,” she could not “get along with anybody,” and “life

was miserable.” Tr. 51. Plaintiff was put on antidepressants

and a mood stablilizer and began counseling, “which helped

tremendously.” Tr. 51.

During the relevant period Plaintiff lived with her husband

and foster daughter in a house on five acres. Plaintiff’s

brother-in-law and her son and daughter-in-law also lived on the

property. Plaintiff’s children train horses and have horses,

sheep, and goats on the property. During the relevant period

Plaintiff’s children took care of the animals because Plaintiff’s

back issues prevented her from caring for the animals.

The ALJ found Plaintiff’s “medically determinable

impairments could reasonably be expected to cause the alleged

symptoms,” but Plaintiff’s testimony “concerning the intensity,

persistence and limiting effects of [her] symptoms [is] not

entirely consistent with the medical evidence and other evidence

in the record.” Tr. 21. Specifically, the ALJ noted on

April 12, 2014, Plaintiff was seen by Hank Holmes, M.D., for back

14 - OPINION AND ORDER

pain that “has been aggravated for the last 7 days.” Tr. 335.

Dr. Holmes noted Plaintiff appeared to be “very uncomfortable,”

but she had a negative straight-leg raise. Dr. Holmes

administered a Medrol injection, which decreased Plaintiff’s pain

by eighty percent, and “she was able to stand pain-free for the

first time in [a] long time.” Tr. 336.

On April 12, 2014, Plaintiff had an x-ray of her lumbar

spine that showed only “mild to moderate disc space narrowing

[at] L5-S1.” Tr. 338.

On October 27, 2014, Dr. Rung, treating physician, discussed

the “very mild findings on x-ray of L5-S1” with Plaintiff.

Tr. 402. Dr. Rung noted her “clinical findings [are] consistent

with the L5-S1 disc as [Plaintiff’s] pain generator” and that

Plaintiff understood “this is not treatable by surgery and . . .

it is a common finding [that is] not necessarily pathological for

many people.” Tr. 402. Plaintiff reported when she suffers a

flare she has “severe pain immediately on standing up[, which]

continues for about 3 hours until gradual diminution.” Tr. 399.

Dr. Rung recommended Plaintiff should put heat on her lower back,

take ibuprofen, avoid bending for the first two hours, and “walk

around gently” when she suffered an “acute flare[].” Tr. 402.

Dr. Rung also prescribed gabapentin to treat pain during flares

and recommended a home-exercise program “to increase

[Plaintiff’s] endurance for standing and walking” although she

15 - OPINION AND ORDER

noted this was “not likely [to] eliminate the severe flares.”

Tr. 402. On January 15, 2015, Plaintiff reported to Dr. Rung

that she had suffered only one flare since her October 2014

visit. The flare was “as severe as usual,” but gentle walking

“was very helpful” in relieving the pain. Tr. 404.

The ALJ also noted Plaintiff was able to care for her 13-

year old foster daughter, to do household chores, to shop, to

drive, to feed her goats, and to assist with caring for other

animals during the relevant period. On October 31, 2014,

Plaintiff reported to Nickie Frisch Taylor, MSW, LCSW, that she

felt “overwhelmed by taking care of her children’s horses. She

is feeling taken advantage of and [that] she [is] failing to do a

good job.” Tr. 465.

The ALJ noted Plaintiff’s mental-health issues improved when

Plaintiff regularly took medications and attended therapy. In

January 2014 Plaintiff was prescribed Lithium to treat her

symptoms of depression. On July 11, 2014, Plaintiff reported to

Ben Newman, RN, MN, PMHNP, that she had stopped taking Lithium

because it made her feel sleepy. Plaintiff continued to take

Paxil for depression, and Newman discussed with Plaintiff “the

fact that Paxil will probably make her mood swings worse if she

is not taking a mood stabilizer at the same time.” Tr. 350.

Newman prescribed Lamotrigine as a mood stabilizer. On August 5,

2014, Plaintiff reported Lamotrigine was “starting to be helpful

16 - OPINION AND ORDER

with her moods.” Tr. 375. On August 29, 2014, Plaintiff

reported her mood swings were “greatly improved,” but she was

feeling depressed. Newman switched Plaintiff from Paxil to

Cymbalta. On September 4, 2014, Plaintiff reported feeling “much

better” and “more normal.” Tr. 457. On October 7, 2014, Newman

noted Cymbalta “seems to be helping with [Plaintiff’s] mood,

[and] . . . she is not getting as depressed as she used to.”

Tr. 379. Plaintiff reported “occasionally using a Lorazepam

prescription that she has had in the past,” and Newman “cautioned

her against using that.” Tr. 379. Overall Newman reported

Plaintiff’s depression was “somewhat alleviated and [her] mood

swings are not getting as low as they have.” Tr. 379. By

January 2015 Plaintiff reported “doing overall a lot better since

she first [went for mental-health treatment] one year ago. She

believes her meds are helping her.” Tr. 366.

The Court concludes on this record that the ALJ did not err

when she partially rejected Plaintiff’s testimony about the

intensity, persistence, and limiting effects of her symptoms

because the ALJ supported her opinion with substantial evidence

in the record.

III. The ALJ did not err when she gave only some weight to the

Third-Party Function Report of Matt H., Plaintiff’s son

Plaintiff alleges the ALJ erred when he gave some weight to

the Third-Party Function Report of Matt H., Plaintiff’s son.

17 - OPINION AND ORDER

Lay-witness testimony regarding a claimant's symptoms is

competent evidence that the ALJ must consider unless he

"expressly determines to disregard such testimony and gives

reasons germane to each witness for doing so." Lewis v. Apfel,

236 F.3d 503, 511 (9th Cir. 2001). See also Merrill ex rel.

Merrill v. Apfel, 224 F.3d 1083, 1085 (9th Cir. 2000)("[A]n ALJ,

in determining a claimant's disability, must give full

consideration to the testimony of friends and family members.").

The ALJ's reasons for rejecting lay-witness testimony must also

be "specific." Stout v. Comm’r, 454 F.3d 1050, 1054 (9th Cir.

2006).

On August 14, 2015, Matt H. completed a Third-Party Function

Report in which he stated Plaintiff suffers symptoms and

limitations similar to those set out by Plaintiff in her

testimony. Specifically, he stated Plaintiff experiences flares

in back pain that make it so she is “unable to do nearly

everything” when she “stands, sits, or moves for any length of

time.” Tr. 244. Matt H. also noted Plaintiff has “mental

instability” that causes her to “get[] angry very easily[, . . .]

go[] off on people for the smallest things,” and struggle to

handle change. Tr. 244. Matt H. noted Plaintiff feeds the

family dog; sometimes helps to look after the family’s goats and

sheep, “but nothing too strenuous”; mows the lawn with the riding

lawn mower; occasionally grocery shops; watches television daily;

18 - OPINION AND ORDER

and can drive a car. Tr. 247-48. Matt H. also noted Plaintiff

is often depressed during winter time; will pick fights with

family members; has gone on “manic shopping sprees”; does not get

along with anyone; cannot keep friends; cannot take instructions

or orders from anyone; cannot stay on topic for an entire

conversation; and “is unable to logically think thru [sic] a

stressful situation[, she] freaks out and yells at people.”

Tr. 249-50.

The ALJ gave “some weight” to Matt H.’s statements on the

grounds that they were not supported by medical evidence in the

record and are based, in part, on Plaintiff’s self-reported

symptoms, which the Court has already concluded the ALJ properly

rejected. Germane reasons for discrediting lay-witness testimony

include inconsistency with the medical evidence and the fact that

the testimony "generally repeat[s]" the properly discredited

testimony of a claimant. Bayliss v. Barnhart, 427 F.3d 1211,

1218 (9th Cir. 2005). See also  Williams v. Astrue, 493 F. App'x

866 (9th Cir. 2012); Molina, 674 F.3d at 1117 (When a lay witness

does not describe limitations beyond those described by Plaintiff

and the ALJ properly rejected the Plaintiff's subjective symptom

testimony, any error in rejecting the lay-witness testimony would

be harmless.).

The Court concludes on this record that the ALJ did not err

when she partially rejected Matt H.’s Third-Party Function Report

19 - OPINION AND ORDER

because the ALJ gave reasons germane to Matt H. supported by

substantial evidence in the record.

II. The ALJ did not err when she gave “limited weight” to the

opinions of Dr. Rung.

Plaintiff asserts the ALJ erred when she gave limited weight

to the January 2015 and September 2017 opinions of Dr. Rung,

treating physician.

An ALJ may reject a treating physician's opinion when it is

inconsistent with the opinions of other treating or examining

physicians if the ALJ makes "findings setting forth specific,

legitimate reasons for doing so that are based on substantial

evidence in the record." Thomas v. Barnhart, 278 F.3d 947, 957

(9th Cir. 2002). When the medical opinion of a treating

physician is uncontroverted, however, the ALJ must give "clear

and convincing reasons" for rejecting it. Thomas, 278 F.3d at

957. See also Lester v. Chater, 81 F.3d 821, 830-32 (9th Cir.

1996).

On January 15, 2015, Dr. Rung completed a note in which she

stated Plaintiff is under her care for lower-back pain and “L5-S1

disc degeneration.” Tr. 356. Dr. Rung noted Plaintiff “has had

more than 10 years of severe episodes of low back pain, plus

ongoing chronic low back pain between episodes.” Tr. 356.

Dr. Rung explained: “During her flares of pain [Plaintiff] is

totally disabled, usually for 3-6 days. These have happened

about every 2 months in the past while unemployed. These are

20 - OPINION AND ORDER

likely to occur more frequently if working.” Tr. 356.

On September 21, 2017, Dr. Rung completed a Medical

Evaluation Form in which she noted she has been Plaintiff’s

treating physician since October 27, 2014. Dr. Rung stated

Plaintiff suffers from chronic lower-back pain due to an L5-S1

disc degeneration, which results in lower-back pain and stiffness

daily as well as “flares of acute, incapacitating low back pain.”

Tr. 523. Dr. Rung noted when Plaintiff is suffering a flare, she

must alternate lying down and walking. Dr. Rung stated Plaintiff

can walk two or three city blocks without pain, can stand and/or

walk for ten minutes at a time, can sit for an hour at a time,

can occasionally lift up to 20 pounds, and can never lift 50

pounds. Dr Rung noted during a flare Plaintiff can sit for one

hour in an eight-hour work day and stand or walk for one hour in

an eight-hour work day. When Plaintiff is not experiencing a

flare, she can sit for seven hours in an eight-hour work day and

stand or walk for one hour in an eight-hour work day. As to

whether Plaintiff “need [sic] to take any unscheduled breaks

during an 8-hour workday,” Dr. Rung stated it “varies

dramatically from day to day. During flares she is not able to

go to work.” Tr. 525. Dr. Rung, however, noted Plaintiff would

miss three or four days of work per month.

Tr. 526.

The ALJ gave limited weight to Dr. Rung’s opinions on the

21 - OPINION AND ORDER

grounds that they are unsupported by her treatment notes during

the relevant period, she had seen Plaintiff only twice at the

time of her first opinion, and she saw Plaintiff only once during

the relevant period. Specifically, the only time Plaintiff saw

Dr. Rung before her date last insured, Plaintiff reported she was

experiencing pain at a level of one out of ten (ten being the

highest level of pain). Plaintiff had normal paraspinal muscle

tone, normal lumbar strength, a normal lower-extremity

examination, normal sensation, normal reflexes, and a normal gait

and station. Tr. 401-02. Dr. Rung discussed with Plaintiff her

“very mild findings on x-ray of L5-S1 disc degeneration” and

noted “it is a very common finding not necessarily pathological

for many people.” Tr. 402. An ALJ may reject a treating

physician's opinion if it is inconsistent with her treatment

notes. Weetman v. Sullivan, 877 F.2d 20, 22-23 (9th Cir. 1989).

In addition, the nature and extent of the treatment relationship

is an acceptable factor for the ALJ to consider when assessing

the credibility of a medical opinion. Trevizo v. Berryhill, 871

F.3d 664, 676 (9th Cir. 2017)(citing 20 C.F.R. § 404.1527(c)).

On this record the Court concludes the ALJ did not err when

he gave limited weight to Dr. Rung’s opinions because the ALJ

provided clear and convincing reasons for doing so based on

substantial evidence in the record.

22 - OPINION AND ORDER

CONCLUSION

For these reasons, the Court AFFIRMS the decision of

the Commissioner and DISMISSES this matter.

IT IS SO ORDERED.

DATED this 5th day of March, 2020.

/s/ Anna J. Brown

ANNA J. BROWN

United States Senior District Judge

23 - OPINION AND ORDER