Bond v. Commissioner Social Security Administration

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF OREGON

KENWYN B.,1 1:19-cv-01128-BR

Plaintiff, OPINION AND ORDER

v.

Commissioner, Social

Security Administration,

Defendant.

TIM D. WILBORN

Wilborn Law Office, P.C.

P.O. Box 370578

Las Vegas, NV 89137

(702) 240-0184

Attorneys for Plaintiff

BILLY J. WILLIAMS

United States Attorney

RENATA GOWIE

Assistant United States Attorney

1000 S.W. Third Avenue, Suite 600

Portland, OR 97204-2902

(503) 727-1003

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.

1 - OPINION AND ORDER

MICHAEL W. PILE

Acting Regional Chief Counsel

SHATA STUCKY

Social Security Administration

Office of the General Counsel

701 Fifth Avenue

Suite 2900 M/S221A

Seattle, WA 98104-7075

(206) 615-2909

Attorneys for Defendant

BROWN, Senior Judge.

Plaintiff Kenwyn B. seeks judicial review of a final

decision of the Commissioner of the Social Security

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

for Supplemental Security Income (SSI) and Disability Insurance

Benefits (DIB) under Titles XVI and II of the Social Security

Act.

For the reasons that follow, the Court AFFIRMS the decision

of the Commissioner and DISMISSES this matter.

ADMINISTRATIVE HISTORY

Plaintiff filed her applications for SSI and DIB on

August 14, 2015. Tr. 209, 215.2 Plaintiff alleged a disability

onset date of October 31, 2014. Her applications were denied

initially and on reconsideration. An Administrative Law Judge

2 Citations to the official transcript of record filed by

the Commissioner on November 25, 2019, are referred to as "Tr."

2 - OPINION AND ORDER

(ALJ) held a hearing on March 21, 2018. Tr. 33-62. Plaintiff

and a vocational expert (VE) testified at the hearing, and

Plaintiff was represented by an attorney.

On July 5, 2018, the ALJ issued an opinion in which he

found Plaintiff is not disabled and, therefore, is not entitled

to benefits. Tr. 13-26. Pursuant to 20 C.F.R. § 404.984(d) that

decision became the final decision of the Commissioner on May 23,

2019, 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 9, 1969. Tr. 209. Plaintiff

was 49 years old at the time of the hearing. Plaintiff graduated

from high school and has “some college.” Tr. 38. Plaintiff has

past relevant work experience as a driver, floral arranger, and

pharmacy technician. Tr. 55.

Plaintiff alleges disability due to morbid obesity,

diabetes, chronic myofacial pain, polyneuropathy, hypertension,

spinal stenosis, degenerative disc disease, facet spondylosis,

depression, and anxiety. Tr. 65.

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

3 - OPINION AND ORDER

medical evidence. See Tr. 18-19, 21-24.

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.,

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

4 - OPINION AND ORDER

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

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), 416.920(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

5 - OPINION AND ORDER

Commissioner determines the claimant does not have any medically

severe impairments or combination of impairments. 20 C.F.R.

§§ 404.1520(a)(4)(ii), 416.920(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), 416.920(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

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

§§ 404.1520(e), 416.920(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)).

6 - OPINION AND ORDER

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),

416.920(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),

416.920(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),

416.920(g)(1).

ALJ'S FINDINGS

At Step One the ALJ found Plaintiff has not engaged in

substantial gainful activity since her October 31, 2014, onset

date. Tr. 15.

At Step Two the ALJ found Plaintiff has the severe

impairments of degenerative disc disease of the lumbar and

7 - OPINION AND ORDER

cervical spine, degenerative joint disease of the right knee,

obesity, osteoarthritis of the left shoulder, carpal-tunnel

syndrome in the bilateral wrist, and peripheral neuropathy

Tr. 15. The ALJ found Plaintiff’s hypertensive heart disease,

diarrhea, obstructive sleep apnea, diabetes mellitus, depression,

and anxiety are not severe impairments. Tr. 16-17. The ALJ

also found Plaintiff’s seizure disorder is not a medically

determinable impairment. Tr. 16.

At Step Three the ALJ concluded Plaintiff's medically

determinable impairments or combination of impairments do 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

Plaintiff has the RFC to perform light work

except she can occasionally lift and carry 20

pounds and frequently lift and carry 10 pounds.

She can stand and/or walk for a total of four

hours and sit a total of six hours in an

eight-hour workday. She can frequently climb

ramps and stairs but never climb ladders, ropes,

or scaffolds. She can frequently balance, kneel,

and crouch. She can occasionally stoop but never

crawl. She must avoid concentrated exposure to

vibration, hazardous machinery and unprotected

heights. Additionally, bilateral handling and

fingering is limited to frequent.

Tr. 20.

At Step Four the ALJ found Plaintiff is unable to perform

her past work. Tr. 24.

At Step Five the ALJ found Plaintiff can perform other work

that exists in the national economy. Accordingly, the ALJ found

8 - OPINION AND ORDER

Plaintiff is not disabled. Tr. 25.

DISCUSSION

Plaintiff contends the ALJ erred when he (1) partially

rejected Plaintiff’s testimony; (2) partially rejected the lay-

witness statement of Justin Funk, Plaintiff’s son; (3) did not

address the opinions of treating physicians Peter Grant, M.D.,

and Kiley Ziegler, M.D.; (4) gave only “some weight” to the

opinion of examining psychologist Thomas Shields, Ph.D.; and

(5) gave only “some weight” to the opinion of Mason Harrison,

N.P., treating nurse practitioner.

I. The ALJ did not err when he partially rejected Plaintiff’s

testimony.

Plaintiff alleges the ALJ erred when he 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), aff'd in Bunnell v. Sullivan, 947 F.2d 341 (9th Cir.

1991). The claimant, however, need not produce objective medical

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

F.3d at 1284.

9 - OPINION AND ORDER

If the claimant satisfies the above test and there is not

any affirmative evidence of malingering, the ALJ can reject the

claimant's pain testimony only if he 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 she has not worked

since October 2014 because she experiences pseudoseizures that

affect her communication. She stutters, she cannot speak, her

hands and head shake, and she cannot communicate when she has a

seizure. Plaintiff’s seizures last a few minutes, but she

experiences “a period of confusion for several minutes, sometimes

up to an hour after the seizure.” Tr. 41. Plaintiff had

seizures during her time as a driver, but “to date [she has not]

had a seizure while [she has] been behind the wheel of a vehicle”

because she has “auroras . . . pre-seizure and [she is] able to

get the vehicle to the side of the road.” Tr. 43. Plaintiff

stated she had four seizures between January 2018 and the

March 21, 2018, hearing. Plaintiff states she also has “a lot of

pain and swelling in [her] legs and feet,” pain in her lower

back, and pain in her neck that makes it hard for her to turn her

1 0- OPINION AND ORDER

head. Tr. 44. Plaintiff stated she has swelling in her legs

and feet every day, and she has to elevate her feet for a

total of five or six hours a day to reduce swelling. Plaintiff

also has lower-back pain. Although surgery “has been suggested

. . . [, she] was told [she] cannot have [it] because of [her

weight] and because of the narrowing in [her] spinal column.”

Tr. 46. Plaintiff must change positions frequently to alleviate

her back pain. Plaintiff also has pain in both of her shoulders,

wrists, and hands. Although Plaintiff has had carpal-tunnel

surgery three times and an ulnar-nerve release on one elbow, she

continues to have pain and discomfort in her arms and hands.

Plaintiff has pain in her neck and lower back as well as swelling

in her legs and feet when she does dishes. Plaintiff has a hard

time bending down to get clothing out of the dryer and needs help

carrying the laundry basket due to back pain. The ALJ asked

Plaintiff if she could “maintain work activity consistently” if

she had a job

that would allow [her] to sit and stand whenever

[she] wish[ed], [she] wouldn't be able to elevate

[her] feet, but sit and stand whenever [she]

wish[ed], and a job that would require [her]

lifting no more than ten pounds occasionally and

light weights, pencil, pens, more frequently and a

job that would require very little contact with

coworkers and general public, maybe that wouldn't

be a problem, but anyway, very little contact with

both, but a job that would require [her] to be

present and working and be on task during an eight

hour work day, with typical breaks and a job that

would require you to be working a 40 hour work

week.

1 1- OPINION AND ORDER

Tr. 51-52. Plaintiff stated she did not believe she could do

such a job because she has difficulty concentrating due to pain.

Plaintiff testified her activities of daily living have “not

changed significantly since” she completed her October 19, 2015,

Adult Function Report in which she stated she sits on the edge of

her bed for ten or fifteen minutes when she wakes up in the

morning before she tries to stand due to stiffness and pain. She

then sits in her recliner. Throughout the day she “putters”

around the house doing parts of tasks and taking frequent breaks

sitting in the recliner due to pain. Plaintiff feeds her fish,

lets her dog out, brushes her dog, and rolls a ball for her dog.

Plaintiff has difficulty falling asleep and wakes frequently

during the night due to pain and muscle spasms. Plaintiff

prepares meals with help from her family. Plaintiff can vacuum,

fold laundry, load the washer, sweep, mop, dust, and make beds,

but she must take breaks to recline. Plaintiff shops for

groceries weekly with help from her family. Plaintiff enjoys

watching television and movies and talking to friends and family

on the telephone or over social media, but she avoids crowds and

social gatherings due to anxiety.

The ALJ found Plaintiff’s “medically determinable

impairments could reasonably be expected to cause the alleged

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

persistence and limiting effects of [her] symptoms are not

1 2- OPINION AND ORDER

entirely consistent with the medical evidence and other evidence

in the record.” Tr. 23.

Although Plaintiff stated she suffers from swelling in her

lower extremities to the degree that she must elevate her legs

for five or six hours every day, the ALJ noted the medical record

consistently reflects Plaintiff did not have any edema or

cyanosis. See, e.g, Tr. 583, 872, 883, 934, 945, 991, 997. In

addition, an ultrasound of Plaintiff’s legs “demonstrat[ed]

complete compressibility and normal flow.” Tr. 378. Plaintiff

points to a record from January 2015 in which she reported having

edema, but on physical examination Plaintiff did not have any

edema. Tr. 392. Plaintiff also relies on an examination in

August 2015 in which Plaintiff had grade-two edema, which

indicates a three-to-four millimeter indentation that lasts

fifteen seconds or less when pressure is applied. Tr. 366.

Plaintiff’s medical treatment provider at the time, however, did

not direct Plaintiff to elevate her legs to address edema. In

fact, the record does not contain any recommendation by a medical

professional that Plaintiff elevate her legs.

The ALJ also noted a July 2015 computed topography (CT) scan

of Plaintiff’s cervical spine reflected “mild to moderate

degenerative disc disease and facet spondylosis.” Tr. 537. A

July 2015 x-ray revealed “[m]ild disc narrowing [at] C5-C6 C6-C7,

with associated mild vertebral spurring.” Tr. 708. A February

1 3- OPINION AND ORDER

2016 x-ray of Plaintiff’s lumbar spine reflected “vertebral body

heights are within normal limits” and “disc spaces demonstrate

mild narrowing at L5-S1.” Tr. 763. A February 2016 MRI

reflected mild facet arthropathy at L1-L2 and L2-L3; “moderate

facet arthropathy . . . with ligamentum flavum thickening[,]

minimal central canal stenosis . . . [, and] moderate bilateral

lateral recess narrowing” at L3-L4; a “[s]mall circumferential

disc bulge . . . with a focal RIGHT paracentral disc tear and

extrusion [that] . . . encroaches upon the RIGHT L4 nerve root in

the lateral recess and the LS nerve root in the central canal

. . . [as well as] moderate facet arthritis with moderate LEFT

lateral recess[,] foraminal narrowing [and] moderate RIGHT

lateral recess[, and] mild RIGHT foraminal narrowing” at L4-L5;

and “mild central canal stenosis[,] moderate facet arthropathy[,]

. . . moderate to severe LEFT lateral recess narrowing with

encroachment upon the LEFT L5 nerve root[, and] moderate RIGHT

lateral recess narrowing” at L5-S1. Tr. 767. A November 2017

MRI of Plaintiff’s lumbar spine reflected “no evidence of disc

bulge, protrusion[,] herniation[,] . . . significant degenerative

change[, or] . . . appreciable narrowing of the central canal or

neural foramen” at T12-L1; mild degenerative changes with mild

facet hypertrophy and “no significant neural foraminal narrowing”

at L1-L2 and L2-L3; mild degenerative changes with mild facet

hypertrophy and “minimal narrowing or the central canal” at L3-

1 4- OPINION AND ORDER

L4; mild degenerative changes and “a diffuse disc bulge” with “a

very tiny LEFT paracentral disc protrusion,” bilateral facet

hypertrophy, mild narrowing of the central canal, and moderate

narrowing of the neural foramen at L4-L5; and degenerative

changes with “loss of height of the disc space and prominent

osteophytes,” a diffuse disc bulge “with a small central disc

protrusion,” mild facet arthropathy, and “moderate to severe

narrowing of both neural foramen LEFT worse than RIGHT” at L5-S1.

Tr. 1028-29.

The ALJ also noted Plaintiff was referred for physical

therapy for her back pain a number of times from 2015 to 2017.

In January 2016 Plaintiff’s physical therapist noted Plaintiff

“appears to be responding with the current treatment approach.”

Tr. 842. On February 24, 2016, however, Robert McLane, P.T.A.,

noted Plaintiff’s “prescription for physical therapy has expired.

[Plaintiff] cancelled many times which caused her therapy

sessions [to] be very intermittent.” Tr. 837. In July 2016

Plaintiff began physical therapy and tolerated water exercises

well and with “minimal low back soreness.” Tr. 906. On

September 9, 2016, however, Jeff Wood, M.S.P.T., noted Plaintiff

“was seen in therapy for 5 treatments and was last seen on

8/3/16. She cancelled her last 3-4 visits and her therapy scrip

has not been renewed. We will plan to [discontinue] her from

therapy at this time.” Tr. 899. Plaintiff also underwent

1 5- OPINION AND ORDER

physical therapy for her wrist and hand pain. On September 22,

2015, Mary Paige Barker, P.T., noted Plaintiff had “made

excellent progress in therapy with improved strength and ROM of

the wrist and hand. [Plaintiff] has returned to all AOL's

without difficulty and reports that she can push up from a chair

and push a grocery cart without any hand or wrist pain. Patient

also has restored full grip strength and feels she is ready to

self manage with exercises on her own.” Tr. 627.

In addition, the ALJ pointed out that on December 14, 2015,

Kenny Durant, P.A.C., noted x-rays of Plaintiff’s hips were

negative. Durant diagnosed Plaintiff with bursitis in her right

hip and provided Plaintiff with stretching exercises.

Finally, the ALJ noted Plaintiff received mainly

conservative treatment for her back, hip, hand, and wrist that

included physical therapy, stretching, and analgesics.

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

when he partially rejected Plaintiff’s testimony regarding the

intensity, persistence, and limiting effects of her symptoms

because the ALJ provided clear and convincing reasons supported

by substantial evidence in the record for doing so.

II. The ALJ did not err when he gave limited weight to the

Third-Party Function Report of Plaintiff’s son, Justin Funk.

Plaintiff alleges the ALJ erred when he gave some weight to

the Third-Party Function Report of Plaintiff’s son, Justin Funk.

1 6- 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).

In his October 21, 2015, Third-Party Function Report Funk

noted Plaintiff’s lower back and extremities frequently hurt, and

her feet and ankles swell when she sits upright or stands for ten

or fifteen minutes. Plaintiff “takes a lot of breaks in her

recliner with her feet up,” and usually by four or five in the

afternoon “she hurts so bad she is in her recliner until

bedtime.” Tr. 257. Plaintiff’s hands go numb and begin to swell

and hurt when she sits at a desk or table or drives “for any

length of time.” Tr. 250. Plaintiff’s back sometimes hurts “so

bad[ly] she can’t stand up,” she walks with a limp, and “her legs

cut out on her making her fall sometimes so she uses a cane.”

Tr. 250. Plaintiff can do “little bits [of housework] at a

time,” and she needs help with all of the household chores.

1 7- OPINION AND ORDER

Tr. 252. Plaintiff shops weekly for groceries and household

items, but she does not go out alone due to mobility issues.

Plaintiff does not attend social gatherings because she gets

anxious, but she talks to friends on the telephone and computer.

The ALJ gave only “some weight” to Funk’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

partially 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 he partially rejected Funk’s Third-Party Function Report

because the ALJ gave reasons germane to Funk supported by

substantial evidence in the record.

III. The ALJ did not err when he did not address the opinions of

treating physicians Peter Grant, M.D., and Kiley Ziegler,

M.D.

1 8- OPINION AND ORDER

Plaintiff contends the ALJ erred when he did not address the

opinions of Drs. Grant and Ziegler, treating physicians.

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).

Although Plaintiff refers to the “opinions” of Drs. Grant

and Ziegler, the portions of the record Plaintiff relies on are

not, in fact, opinions, but rather the treatment notes of

Drs. Grant and Ziegler. For example, Plaintiff states Dr. Grant

conducted an EMG study of Plaintiff’s hands and wrists on

December 6, 2016, and asserts he “opined Plaintiff should avoid

repetitive use of the left arm and hand.” Pl.’s Opening Br. at

13. Dr. Grant, however, did not offer an opinion. Instead his

treatment notes indicate the EMG reflected “evidence of

[Plaintiff’s] old median neuropathy in the carpal tunnel area and

a very mild recurrent component.” Tr. 934. Dr. Grant found

Plaintiff likely had “chronic posttraumatic myofacial left neck,

1 9- OPINION AND ORDER

shoulder, and penscapular and upper extremity pain syndrome with

associated upper extremity referred symptoms” and “minimal

recurrence of left carpal tunnel syndrome.” Dr. Grant

recommended physical therapy and noted “no surgical intervention

is felt to be warranted for her minimally recurrent left carpal

tunnel syndrome.” Tr. 934. Dr. Grant noted “conservative

efforts may be helpful with wrist splinting, NSAID use, and

avoidance of repetitive/strenuous use of the left arm and hand.”

Id. Dr. Grant’s chart treatment notes are recommendations rather

than a medical opinion, and, as such, the ALJ was not required to

address or to include them in his analysis. See Valentine v.

Comm’r, 574 F.3d 685, 691-92 (9th Cir. 2009)(“Dr. Storzbach's

observation about ‘highly routinized, overlearned tasks with low

cognitive demand’ is neither a diagnosis nor statement of

Valentine's functional capacity. It is rather a recommended way

for Valentine to cope with his PTSD symptoms. The ALJ therefore

did not err by excluding it from the RFC.”).

Similarly, Plaintiff points to a note by Dr. Ziegler in

which, according to Plaintiff, he “opined Plaintiff would benefit

from activity modification, such as limiting elbow flexion for

prolonged times.” Pl.’s Opening Br. at 13. The note Plaintiff

refers to is part of a March 2, 2017, record of treatment by

Dr. Ziegler in which he states the following:

The patient has electrodiagnostic evidence of left

carpal tunnel syndrome, but provocative testing is

2 0- OPINION AND ORDER

negative. She does have provocative testing

consistent with cubital tunnel syndrome, though no

electrodiagnostic evidence. I would agree that

the majority of her shoulder, neck, and

periscapular pain is likely myofascial in nature.

She may have some more proximal peripheral nerve

compression, though this is difficult to be sure.

I do not think that she will benefit from repeat

carpal tunnel release. She would benefit from

treatment of her cubital tunnel syndrome. We

discussed appropriate activity modifications,

including limiting elbow flexion for prolonged

time as well as direct pressure on the medial side

of the elbow. Nonsteroidal anti-inflammatory

medications can be helpful as needed. She will

make these appropriate activity modifications, and

can follow-up with me in the future if she should

have further problems.

Tr. 889. As with Dr. Grant, this is a treatment note rather than

an opinion. Treatment notes are merely recommendations, and, as

such, the ALJ was not required to address or to include them in

his analysis. See Valentine, 574 F.3d at 692.

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

when he did not include in his evaluation of Plaintiff’s RFC

recommendations found in the treatment notes of Drs. Grant and

Ziegler.

IV. The ALJ did not err when he gave only “some weight” to the

opinion of Dr. Shields, examining psychologist.

As noted, Plaintiff contends the ALJ erred when he gave only

some weight to the opinion of Dr. Shields.

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,

2 1- OPINION AND ORDER

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 November 24, 2015, Dr. Shields conducted a psychological

evaluation of Plaintiff. Dr. Shields noted Plaintiff’s mood was

euthymic, her affect was appropriate, and she fully participated

in the evaluation. Plaintiff was

alert and fully oriented to person, place, time,

and situation. She correctly spell[ed] the term

'world' both forwards and backwards. She

repeat[ed] a string of seven digits forwards and

five digits backwards. Her registration

appear[ed] intact as she repeat[ed] three nouns

immediately. On a simple measure of recent

auditory memory, she retrieve[d] all three of the

initial three nouns after one intervening task.

Tr. 664. As for Plaintiff’s cognition, reasoning, and

perception, Dr. Shields noted Plaintiff’s

intellect is casually estimated in the average

range. She correctly names the number of days,

weeks, and months in one year. She correctly

names the first president of the United States.

She names the last four presidents of the United

States. Her abstracting ability appears intact as

assessed by her ability to name the conceptual

similarity between seemingly different items. For

instance, she states a cat and a monkey are

"animals." She states a guitar and a flute are

"musical instruments." She states an airplane and

a bicycle are "modes of transportation." Her

2 2- OPINION AND ORDER

thought process is sequential and goal-directed.

There are no indications of pressured thinking,

derailment, delusional thinking, or hallucinosis

[sic] noted or reported.

Tr. 664. Dr. Shields diagnosed Plaintiff with “Persistent

depressive disorder (dysthymia), fairly well controlled on

medication; Panic disorder; Agoraphobia; Adjustment disorder with

anxiety (worrying and stress about her impoverished financial

situation).” Tr. 664. Dr. Shields concluded Plaintiff

is capable of understanding, remembering, and

carrying out both simple and detailed

instructions. There are no indications of

disruption in her capacity to sustain

concentration on tasks over extended periods of

time, although intermittent bouts of anxiety/

panic are likely to cause her to be distracted in

some settings. She was able to sustain

concentration and remain engaged without

complication throughout this interview process.

Socially, she is anxiety [sic], prone to panic in

crowded settings, and has relied more and more on

avoidance as a coping style. Without appropriate

psychological treatment, the prognosis of her

panic and agoraphobia is poor. Given the recent

onset of the symptoms, however, her prognosis is

expected to be favorable if she becomes targeted

psychotherapy [sic]. At this time, persistence

and pace are expected to be limited by her panic

disorder and avoidant behavior. Her stress

tolerance is also low and she is known to

experience pseudo-seizures in response to

high-stress situations.

Tr. 665.

The ALJ gave only some weight to Dr. Shields’s opinion as to

Plaintiff’s difficulties with concentration, persistence, and

pace. The ALJ noted Dr. Shields’s examination reflected

Plaintiff did not have any “indications of disruption in her

2 3- OPINION AND ORDER

capacity to sustain concentration on tasks over extended periods

of time,” and Plaintiff’s mental-status examination did not

reflect any problems with memory, concentration, or persistence.

In addition, Plaintiff’s medical providers did not note Plaintiff

had any problems with concentration, persistence, pace, memory,

or interpersonal interactions.

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

he gave only some weight to Dr. Shield’s opinion because the ALJ

provided clear and convincing reasons for doing so based on

substantial evidence in the record.

V. The ALJ did not err when he gave only “some weight” to the

opinion of Mason Harrison, N.P., treating nurse

practitioner.

Plaintiff alleges the ALJ erred when he gave only “some

weight” to the opinion of Mason Harrison, N.P., Plaintiff’s

treating nurse practitioner.

Medical sources are divided into two categories:

"acceptable" and "not acceptable." 20 C.F.R. § 416.902.

Acceptable medical sources include licensed physicians and

psychologists. 20 C.F.R. § 416.902. Medical sources classified

as "not acceptable" include, but are not limited to, nurse

practitioners, therapists, licensed clinical social workers, and

chiropractors. SSR 06-03p, at *2. Factors the ALJ should

consider when determining the weight to give an opinion from

those "important" sources include the length of time the source

2 4- OPINION AND ORDER

has known the claimant and the number of times and frequency that

the source has seen the claimant, the consistency of the source's

opinion with other evidence in the record, the relevance of the

source's opinion, the quality of the source's explanation of his

opinion, and the source's training and expertise. SSR 06-03p,

at *4. The ALJ must explain the weight assigned to such sources

to the extent that a claimant or subsequent reviewer may follow

the ALJ's reasoning. SSR 06-03p, at *6.

On November 24, 2015, N.P. Harrison, completed a Residual

Functional Capacity Form in which he noted he had seen Plaintiff

“several times annually for 5+ years.” Tr. 668. N.P. Harrison

noted Plaintiff has chronic pain in her back and lower

extremities, numbness and weakness in her lower extremities,

sleep apnea, muscle spasms, migraines, and depression.

N.P. Harrison stated Plaintiff can stand for ten or fifteen

minutes at one time; can sit for 20 minutes at one time; can walk

less than 100 feet on a “bad pain day” and one or two blocks on

“a good day”; can lift and/or carry five-to-ten pounds “during an

eight-hour period”; can lift and/or carry less than five pounds

“regularly/daily”; can “rarely” reach above her shoulders, reach

“down to waist level,” or reach “down towards the floor”; and can

“frequently carefully handle objects” with her fingers. Tr. 670.

N.P. Harrison noted Plaintiff needs to lie down three-to-five

times a day to relieve pain and numbness. Plaintiff also cannot

2 5- OPINION AND ORDER

stand and/or sit for six-to-eight hours because of “numbness,

tingling, and pain.” Tr. 670.

The ALJ gave only some weight to N.P. Harrison’s opinion

because it was based on Plaintiff’s subjective reports and was

not supported by the medical evidence.

This Court has already concluded the ALJ did not err when

he partially rejected Plaintiff’s testimony because it was

not supported by the record. The Court, therefore, also

concludes the ALJ did not err when he gave only some weight to

N.P. Harrison’s opinion because the ALJ gave reasons germane to

N.P. Harrison based on substantial evidence in the record.

CONCLUSION

For these reasons, the Court AFFIRMS the decision of the

Commissioner and DISMISSES this matter pursuant to sentence four

of 42 U.S.C. § 405(g).

IT IS SO ORDERED.

DATED this 9th day of April, 2020.

/s/ Anna J. Brown

ANNA J. BROWN

United States Senior District Judge

2 6- OPINION AND ORDER