# Fagg v. Commissioner Social Security Administration

> District Court, D. Oregon · August 5, 2020

URL: https://www.frixlaw.com/law-library/cases/10392295

## Case

- **Court:** District Court, D. Oregon
- **Decided:** August 5, 2020
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10392295

## How later opinions describe it (automated extraction)

- affirming ALJ’s finding where ALJ noted “[Burch] had not had any treatment for her back for about three or four months” (emphasis added)
- affirming ALJ because, in part, claimant’s “physical ailments were treated with an over-the-counter pain medication”

## Opinion text

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON

ALAN F.,1 Case No. 6:19-CV-1466-IM

Plaintiff, OPINION AND ORDER

v.

ANDREW M. SAUL, Commissioner of
Social Security,

Defendant.

Jeffrey H. Baird, Dellert Baird Law, PLLC, 6525 California Ave. SW #101, Seattle, WA 98136.
Attorney for Plaintiff.

Billy J. Williams, United States Attorney, and Renata Gowie, Assistant United States Attorney,
UNITED STATES ATTORNEY’S OFFICE, 1000 S.W. Third Avenue, Suite 600, Portland, OR 97204;
Sarah Moum, Special Assistant United States Attorney, OFFICE OF GENERAL COUNSEL, Social
Security Administration, 701 Fifth Avenue, Suite 2900 M/S 221A, Seattle, WA 98104.
Attorneys for Defendant.

IMMERGUT, Judge

Plaintiff, Alan F., seeks review of a final decision of the Commissioner of Social Security
(“Commissioner”) denying his application for Disability Insurance Benefits (“DIB”) under Title

1 In the interest of privacy, this opinion uses only the first name and the initial of the last
name of the non-governmental party in this case.
II of the Social Security Act. For the following reasons, this Court AFFIRMS the
Commissioner’s decision.
STANDARD OF REVIEW
The district court must affirm the Commissioner’s decision if it is based on the proper
legal standards and the findings are supported by substantial evidence. 42 U.S.C. § 405(g); see

also Hammock v. Bowen, 879 F.2d 498, 501 (9th Cir. 1989). “Substantial evidence means more
than a mere scintilla but less than a preponderance.” Bray v. Comm’r of Soc. Sec. Admin., 554
F.3d 1219, 1222 (9th Cir. 2009) (quoting Andrews v. Shalala, 53 F.3d 1035, 1039 (9th
Cir. 1995)). It means “such relevant evidence as a reasonable mind might accept as adequate to
support a conclusion.” Id. (quoting Andrews, 53 F.3d at 1039).
Where the evidence is susceptible to more than one rational interpretation, the
Commissioner’s conclusion must be upheld. Burch v. Barnhart, 400 F.3d 676, 679 (9th
Cir. 2005). Variable interpretations of the evidence are insignificant if the Commissioner’s
interpretation is a rational reading of the record, and this Court may not substitute its judgment
for that of the Commissioner. See Batson v. Comm’r of Soc. Sec. Admin., 359 F.3d 1190, 1193,

1196 (9th Cir. 2004). “[A] reviewing court must consider the entire record as a whole and may
not affirm simply by isolating a specific quantum of supporting evidence.” Orn v. Astrue, 495
F.3d 625, 630 (9th Cir. 2007) (quoting Robbins v. Soc. Sec. Admin., 466 F.3d 880, 882 (9th
Cir. 2006) (quotation marks omitted)). A reviewing court, however, may not affirm the
Commissioner on a ground upon which the Commissioner did not rely. Id.; see also Bray, 554
F.3d at 1226.
BACKGROUND
A. Plaintiff’s Application
Plaintiff protectively filed an application for disability insurance benefits (DIB) on
August 27, 2015, alleging disability beginning on April 1, 2015. AR 209–10. Plaintiff was born
April 7, 1972, and he was 42 years old as of the alleged disability onset date for DIB. AR 31. He
alleged disability due to herniated disc back pain, high blood pressure, hearing loss in both ears,

poor sleep, fatigue, arthritis, numbness in arms, hands and fingers, ankle and knee problems,
depression, and anxiety. AR 82–83, 230. The Commissioner denied his application initially and
upon reconsideration. AR 111–15, 117–19. Thereafter, Plaintiff requested a hearing before an
Administrative Law Judge (“ALJ”). AR 120–21. A hearing was held on April 26, 2018. AR 40.
After the hearing, the ALJ found that Plaintiff had not been disabled from April 1, 2015, through
the date of the decision, July 25, 2018. AR 32. The Appeals Council denied Plaintiff’s request
for review, making the ALJ’s decision the final of the Commissioner. AR 1–4.
B. The Sequential Analysis
Disability is the “inability to engage in any substantial gainful activity by reason of any
medically determinable physical or mental impairment which can be expected to result in death

or 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). “Social Security Regulations set out a five-step sequential
process for determining whether an applicant is disabled within the meaning of the Social
Security Act.” Keyser v. Comm’r Soc. Sec. Admin., 648 F.3d 721, 724 (9th Cir. 2011); see also
20 C.F.R. §§ 404.1520; Bowen v. Yuckert, 482 U.S. 137, 140 (1987). Each step is potentially
dispositive. 20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4). The five-step sequential process asks
the following series of questions:
1. Is the claimant performing “substantial gainful activity?” 20 C.F.R.
§§ 404.1520(a)(4)(i), 416.920(a)(4)(i). This activity is work involving
significant mental or physical duties done or intended to be done for pay
or profit. 20 C.F.R. §§ 404.1510, 416.910. If the claimant is performing
such work, she is not disabled within the meaning of the Act. 20 C.F.R.
§§ 404.1520(a)(4)(i), 416.920(a)(4)(i). If the claimant is not performing
substantial gainful activity, the analysis proceeds to step two.
2. Is the claimant’s impairment “severe” under the Commissioner’s
regulations? 20 C.F.R. §§ 404.1520(a)(4)(ii), 416.920(a)(4)(ii). An
impairment or combination of impairments is “severe” if it significantly
limits the claimant’s physical or mental ability to do basic work activities.
20 C.F.R. §§ 404.1521(a), 416.921(a). Unless expected to result in death,
this impairment must have lasted or be expected to last for a continuous
period of at least 12 months. 20 C.F.R. §§ 404.1509, 416.909. If the
claimant does not have a severe impairment, the analysis ends. 20 C.F.R.
§§ 404.1520(a)(4)(ii), 416.920(a)(4)(ii). If the claimant has a severe
impairment, the analysis proceeds to step three.
3. Does the claimant’s severe impairment “meet or equal” one or more of the
impairments listed in 20 C.F.R. Part 404, Subpart P, Appendix 1? If so,
then the claimant is disabled. 20 C.F.R. §§ 404.1520(a)(4)(iii),
416.920(a)(4)(iii). If the impairment does not meet or equal one or more of
the listed impairments, the analysis continues. At that point, the ALJ must
evaluate medical and other relevant evidence to assess and determine the
claimant’s “residual functional capacity” (“RFC”). This is an assessment
of work-related activities that the claimant may still perform on a regular
and continuing basis, despite any limitations imposed by his or her
impairments. 20 C.F.R. §§ 404.1520(e), 404.1545(b)-(c), 416.920(e),
416.945(b)-(c). After the ALJ determines the claimant’s RFC, the analysis
proceeds to step four.
4. Can the claimant perform his or her “past relevant work” with this RFC
assessment? If so, then the claimant is not disabled. 20 C.F.R.
§§ 404.1520(a)(4)(iv), 416.920(a)(4)(iv). If the claimant cannot perform
his or her past relevant work, the analysis proceeds to step five.
5. Considering the claimant’s RFC and age, education, and work experience,
is the claimant able to make an adjustment to other work that exists in
significant numbers in the national economy? If so, then the claimant is
not disabled. 20 C.F.R. §§ 404.1520(a)(4)(v), 416.920(a)(4)(v),
404.1560(c), 416.960(c). If the claimant cannot perform such work, he or
she is disabled. Id.
See also Bustamante v. Massanari, 262 F.3d 949, 954 (9th Cir. 2001).
The claimant bears the burden of proof at steps one through four. Id. at 953; see also
Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999); Yuckert, 482 U.S. at 140–41. The
Commissioner bears the burden of proof at step five. Tackett, 180 F.3d at 1100. At step five, the
Commissioner must show that the claimant can perform other work that exists in significant

numbers in the national economy, “taking into consideration the claimant’s residual functional
capacity, age, education, and work experience.” Id.; see also 20 C.F.R. §§ 404.1566, 416.966
(describing “work which exists in the national economy”). If the Commissioner fails to meet this
burden, the claimant is disabled. 20 C.F.R. §§ 404.1520(a)(4)(v), 416.920(a)(4)(v). If, however,
the Commissioner proves that the claimant is able to perform other work existing in significant
numbers in the national economy, the claimant is not disabled. Bustamante, 262 F.3d at 953–54;
Tackett, 180 F.3d at 1099.
C. The ALJ’s Decision
As a preliminary matter, the ALJ determined that Plaintiff met the insured status
requirement of the Social Security Act through December 31, 2020. AR 15. Thus, for his DIB

claim, Plaintiff must establish disability on or before that date.
At the first step of the disability analysis, the ALJ found that Plaintiff had not engaged in
substantial gainful activity since April 1, 2015, his alleged onset date. Id.
At step two, the ALJ found that Plaintiff’s degenerative disc disease of the cervical and
lumbar spine, inguinal hernia, major depressive disorder and generalized anxiety disorder all
constituted severe impairments, meaning that they more than minimally affected his ability to
perform basic work activities. Id. The ALJ found that the other medical conditions discussed in
the medical records or alleged by the Plaintiff were not severe impairments. AR 17–18.
At step three, the ALJ found that Plaintiff did not have an impairment of combination of
impairments that met or equaled the severity of one of the listed impairments in 20 C.F.R.
§§ 404.1520(d), 404.1525, 404.1526. AR 18–20. The ALJ next assessed Plaintiff’s RFC as
capable of:
perform[ing] modified light work as defined in 20 C.F.R.
§404.1567(b) except he can only occasionally stoop and climb
ramps and stairs and he can never crawl or climb ladders, ropes,
and scaffolds. The claimant can occasionally reach overhead with
the bilaterally upper extremities. He needs to avoid all exposure to
extreme cold, excessive vibrations, and work at unprotected
heights. The claimant can perform simple, routine tasks and have
only occasional interactions with the public.

AR 20.
At step four, based on that determination and recommendation of the vocational expert
(“VE”), the ALJ found that after Plaintiff’s alleged onset date of disability, he was no longer
capable of performing past relevant work. AR 30. At step five, however, the ALJ determined
that, considering Plaintiff’s age, education, work experience, and RFC, there were other jobs that
existed in significant numbers in the national economy that Plaintiff could perform, including
small parts assembler (DOT 739.687-030), electronics worker (DOT 726.6877-010), and marker
II (DOT 920.687-126). AR 32. Thus, the ALJ ruled that Plaintiff is not disabled. Id.
DISCUSSION
Plaintiff seeks review of the determination by the ALJ that he was not disabled. He
argues that the ALJ erred in making that determination by: (1) failing to provide clear and
convincing reasons to discount Plaintiff’s subjective symptom allegations; and (2) improperly
evaluating medical opinion evidence, thereby erroneously concluding that Plaintiff retained the
ability to work. Each argument will be addressed in turn.
A. Plaintiff’s Subjective Symptoms Allegations
There is a two-step process used in the Ninth Circuit for evaluating a claimant’s
testimony about the severity and effect of the claimant’s symptoms. Vasquez. v. Astrue, 572 F.3d
586, 591 (9th Cir. 2009). First, the ALJ “must determine whether the claimant has presented

objective medical evidence of an underlying impairment ‘which could reasonably be expected to
produce the pain or other symptoms alleged.’” Lingenfelter v. Astrue, 504 F.3d 1028, 1036 (9th
Cir. 2007) (quoting Bunnell v. Sullivan, 947 F.2d 341, 344 (9th Cir. 1991) (en banc)). When
doing so, the claimant “need not show that her impairment could reasonably be expected to cause
the severity of the symptom she has alleged; she need only show that it could reasonably have
caused some degree of the symptom.” Smolen v. Chater, 80 F.3d 1273, 1282 (9th Cir. 1996).
Second, “if the claimant meets this first test, and there is no evidence of malingering, ‘the
ALJ can reject the claimant’s testimony about the severity of his symptoms only by offering
specific, clear and convincing reasons for doing so.’” Lingenfelter, 504 F.3d at 1036 (quoting

Smolen, 80 F.3d at 1281). It is “not sufficient for the ALJ to make only general findings; he must
state which pain testimony is not credible and what evidence suggests the complaints are not
credible.” Dodrill v. Shalala, 12 F.3d 915, 918 (9th Cir. 1993). Those reasons must be
“sufficiently specific to permit the reviewing court to conclude that the ALJ did not arbitrarily
discredit the claimant’s testimony.” Orteza v. Shalala, 50 F.3d 748, 750 (9th Cir. 1995) (citing
Bunnell, 947 F.2d at 345–46).
The ALJ’s evaluation of a claimant’s subjective symptom testimony may be upheld
overall even if not all of the ALJ’s reasons for rejecting the testimony are upheld. See Batson,
359 F.3d at 1197. However, the ALJ may not reject testimony “solely because” the claimant’s
symptom testimony “is not substantiated by objective medical evidence.” Robbins, 466 F.3d at
883.
At the hearing, Plaintiff testified that he had problems with his neck and low back and
that those impairments limited his ability to sit or stand for long periods of time. AR 43–44, 46,
49–50. Plaintiff also testified that he had problems with his arms and hands, and that they would

go numb using the phone. AR 65. He further testified that he had constant headaches, stating that
“there is no second that I haven’t had a headache in three years.” AR 51. Plaintiff also testified
that he suffered hernia pains and migraines a couple of times per week. AR 52, 64. In his
Function Report, Plaintiff reported that his neck and back hurt all the time, he was unable to
stand for more than an hour or two and was unable to lift more than 25 pounds. AR 254. He
further reported that when sleeping, he would lose feeling in his arms, fingers and hands and that
he would sometimes need help getting dressed due to his back pain. AR 255.
The ALJ, applying the first step of the credibility framework, found that “the claimant’s
medically determinable impairments could reasonably be expected to cause the alleged

symptoms.” AR 23. In applying the second step of the required analysis, however, the ALJ found
that “the claimant’s statements concerning the intensity, persistence and limiting effects of these
symptoms are not entirely consistent with the medical evidence and other evidence in the
record.” Id.
Plaintiff asserts the ALJ’s findings lacked specificity and therefore ran afoul of Ninth
Circuit precedent, citing Brown-Hunter v. Colvin, 806 F.3d 487, 493 (9th Cir. 2015). ECF 10 at
11. Plaintiff is correct to note that per Brown-Hunter, an ALJ is required to specify which
testimony he finds not credible and then provide clear and convincing reasons, supported by
evidence in the record, to support that determination. Id. at 489. The ALJ here—over the course
of five pages and nineteen paragraphs—provided sufficient rationales for rejecting portions of
Plaintiff’s symptom testimony. AR 24–28. The ALJ’s primary two rationales included: (1)
Plaintiff’s failure to seek and follow through with treatment; and (2) discrepancies between
Plaintiff’s testimony, his prior statements and other medical evidence.
1. Failure to seek and follow through with treatment

A claimant’s failure to follow a treatment regimen has been recognized as a clear and
convincing reason to question the veracity of symptom allegations. Burch, 400 F.3d at 681
(citing Fair v. Bowen, 885 F.2d 597, 603 (9th Cir. 1989)). If a claimant has failed to follow
prescribed treatment that might improve symptoms, the ALJ may properly find the alleged
intensity and persistence of his symptoms inconsistent with the overall evidence. See SSR 16-3p,
2017 WL 5180304, at *9 (Oct. 25, 2017).
In this case, the ALJ noted that despite alleging disabling neck pain and upper extremity
symptoms, Plaintiff failed to seek or follow through with treatment for more than six months after his
neck surgery. AR 24. The ALJ reasoned that this gap in treatment undermined Plaintiff’s allegations
that surgery produced only a temporary improvement in his symptoms. Id.; see Fair v. Bowen, 885
F.2d 597, 603 (9th Cir. 1989) (gaps in treatment undermine a claimant’s claim about the severity of
impairments). In arriving at this determination, the ALJ noted that Plaintiff had surgery in May 2015,
and reported resolution of his arm pain, numbness, and paresthesia at his follow up appointment in

July 2015. AR 24, 326, 331. At that appointment, Plaintiff’s x-rays were noted as “excellent” and his
exam did not show any objective neurological deficits. AR 24, 326. His surgeon, Dr. Brett,
recommended physical therapy “2-3 times per week over the next 8-10 weeks” and a reassessment in
September 2015. AR 24, 326. Instead of following the prescribed physical therapy regimen and
returning to Dr. Brett for that post-op visit in September, Plaintiff had two visits with a chiropractor a
week apart in August 2015. AR 24, 390. Although Plaintiff testified that he was told by the
chiropractor not to come see him anymore because it “wouldn’t do any good,” AR 53, the
chiropractor’s notes show that Plaintiff’s symptoms improved from the first week to the second week
of therapy, and Plaintiff was to “[c]ontinue with . . . therapy and return as needed.” AR 390. There is
no evidence Plaintiff sought or received any further treatment until March 2016. AR 24; see also AR
427 (as of March 1, 2016 chart note describing Plaintiff as “currently not under active care
treatment”).
Plaintiff objects that he complained of pain at his appointments prior to and after this gap in
treatment, and argues the ALJ did not base his reasoning on inferences reasonably drawn from the

record. ECF 10 at 11–12. But precedent from the Ninth Circuit undermines this assertion. See, Burch,
400 F.3d at 681 (affirming ALJ’s finding where ALJ noted “[Burch] had not had any treatment for
her back for about three or four months” (emphasis added)). Whether Plaintiff complained before or
after his lengthy gap in treatment, the ALJ reasonably found that his failure to follow up with a
doctor for more than six months undermines his allegations that any improvement was very brief. AR
24.
The ALJ also noted that despite Plaintiff’s allegations that he was disabled by neck and back
pain, Plaintiff was not taking any pain medications. AR 27–28. A claimant’s use of only over-the-
counter pain medication justifies an ALJ’s rejection of subjective complaints. See Parra v. Astrue,
481 F.3d 742, 750-51 (9th Cir. 2007) (affirming ALJ because, in part, claimant’s “physical ailments
were treated with an over-the-counter pain medication”). The ALJ reasonably found Plaintiff’s
failure to take any pain medication undermined his allegations and suggested his symptoms were
generally tolerable with merely over-the-counter medications.
Plaintiff contends that he was limited to over-the-counter medication because his clinic did
not prescribe medications. ECF 10 at 10; AR 47. Plaintiff’s inconsistent statements about seeking
pain medication, however, belied his explanation. See AR 26. On March 10, 2016, Plaintiff told a
provider that he was “not interested in focusing on medication management.” AR 491. A week later,
Plaintiff told a different provider he had an appointment with pain management later that month. AR
605. In April 2016, however, he told the agency that he had been referred to a pain management
doctor but had not yet scheduled an appointment. AR 284. Thus, while the record confirms that
Plaintiff’s clinic did not prescribe pain medication, it also shows that Plaintiff repeatedly failed to
follow up on referrals for pain medication management.
In addition to having a lengthy gap in treatment following his surgery and then treating his
pain symptoms with only over-the-counter medications, Plaintiff also failed to follow through with

treatment for his allegedly disabling pain allegations since July 2017. AR 27. Although Plaintiff
reported to his provider in July 2017 that he had tried physical therapy two years earlier without any
benefit, there is no evidence that Plaintiff engaged in physical therapy since his onset date of April 1,
2015. AR 27, 447. Moreover, when an additional course of physical therapy was recommended to
Plaintiff, there is no evidence that Plaintiff engaged in physical therapy nor had any other significant
treatment for his back pain since July 2015. AR 27. The ALJ reasoned that Plaintiff’s failure to
pursue any physical therapy, despite repeated recommendations from his providers to seek out
additional treatment, and to take prescription pain medications collectively indicates that his
symptoms are not as intolerable as alleged.
Plaintiff objects that the ALJ did not address any of the reasons for the lack of treatment
before rejecting his symptom allegations. ECF 10 at 12–13. In his decision, however, the ALJ
acknowledged Plaintiff’s explanation for failing to seek more aggressive pain management was due
to alleged financial limitations. AR 28. The record also shows that Plaintiff declined further
procedures, such as surgery, for financial reasons. AR 26, 500. But at the hearing, the ALJ discerned
that Plaintiff is fully insured with a 20 percent deductible, and that he has some expendable income.
AR 28, 58. It was reasonable for the ALJ conclude that if Plaintiff were as disabled as alleged, he
would have used his available resources to obtain necessary treatment. There is no evidence Plaintiff
did so, nor any evidence that, when recommendations for physical therapy were made, he explained
any inability to afford it. See AR 27, 447.
The ALJ reasonably considered Plaintiff’s gap in treatment, failure to follow
recommendations to pursue treatment recommendations, failure to treat after 2017, and failure to use
prescription pain medication in evaluating his symptom complaints. Accordingly, the ALJ’s finding
is supported by substantial evidence.
2. Discrepancies between Plaintiff’s testimony, his prior statements and other
medical evidence
Prior inconsistent statements have also been recognized as a clear and convincing reason
to reject a claimant’s symptom testimony. See Ghanim v. Colvin, 763 F.3d 1154, 1163 (9th Cir.
2014) (citing Smolen, 80 F.3d at 1284); Tommasetti v. Astrue, 533 F.3d 1035, 1041 (9th Cir.
2008). In addition, where it is not the sole reason to discredit a Plaintiff’s symptom allegations,
inconsistency with the objective medical evidence can constitute a clear and convincing

rationale. Thomas v. Barnhart, 278 F.3d 947, 959 (9th Cir. 2002).
The ALJ found Plaintiff’s symptom complaints inconsistent with findings on examination.
AR 25. For instance, Plaintiff testified that he had “absolutely no strength for anything” due to his
nerve damage and pain. AR 65. His objective medical findings, however, show no evidence of
neurological deficits, loss of muscle strength, weakness, or muscle atrophy consistent with these
allegations. AR 25. Apart from Plaintiff’s subjective tenderness, subjective range of motion deficits,
and some sensory deficits in February 2017, Plaintiff has had essentially normal objective findings
on examination with intact gross and fine motor skills, normal sensation, and normal strength and
reflexes. AR 25, 490–91, 499–500, 645.
The ALJ also discounted Plaintiff’s allegations because Plaintiff made no reports to medical
providers of his allegedly debilitating symptoms. An ALJ may reject a claimant’s symptom
testimony if the claimant “did not report” such symptoms to clinicians. Greger v. Barnhart, 464 F.3d
968, 972–73 (9th Cir. 2006). For example, although Plaintiff reported that his symptoms were
aggravated by movement, there is no indication he reported difficulty standing for more than a few
minutes, difficulty holding his head up, difficulty walking upright at times, difficulty grasping or
manipulating objects, or having to lie down for most of the day due to pain. AR 25, 326, 605.
Though Plaintiff told the ALJ “there is no second that I haven’t had a headache in over three years”
AR 51, the record is replete with instances in which Plaintiff expressly denied headaches. AR 26,
341, 453, 461, 469, 638. Likewise, though Plaintiff testified of ongoing hernia pain that occurs a
couple of times a week without provocation, AR 52, there is no evidence of ongoing reports of such

symptoms; instead, he reported “excellent” pain control. AR 26, 644. The ALJ thus reasonably found
Plaintiff’s symptom allegations were not reflected in the medical records.
Daily activities can undermine a claimant’s credibility if they contradict the claimant’s
other testimony. 20 C.F.R. § 404.1529(c)(3)(i); see also Orn, 495 F.3d at 639; Rollins v.
Massanari, 261 F.3d 853, 857 (9th Cir. 2001). Plaintiff testified he spends much of his day sitting or
lying down, cannot stand for more than a few minutes, and cannot sit for more than 30 minutes. AR
28, 50, 56, 64. The record shows, however, he went “camping/hunting” with friends for “several
day[s],” AR 28, 554, has engaged in physical activities such as using a saw to cut wood, AR 28, 344,
went fishing, AR 28, 266, and presided at a wedding, AR 28, 384. These activities are reasonably
inconsistent with Plaintiff’s allegations that “he has absolutely no strength for anything” and spends
the majority of his time lying down. AR 64–65.
Plaintiff objects that he qualified his hunting activities. ECF 10 at 15–16. But an ALJ can
reasonably discount a claimant’s testimony based on his activities even if he made qualified,
equivocal statements regarding his ability to perform those activities. See Rollins, 261 F.3d at 857.

When, as here, the “evidence reasonably supports either confirming or reversing the ALJ’s
[credibility] decision, [the reviewing court] may not substitute [its] judgment for that of the ALJ.”
Batson, 359 F.3d at 1196. Here, while Plaintiff reported when hunting he often just sits on the road
alone or stays at camp, he did not allege he spends his time lying down.
In sum, the ALJ gave clear and convincing reasons for discounting Plaintiff’s testimony.
He identified what testimony was not credible and what evidence undermined Plaintiff’s
complaints. See Lester v. Chater, 81 F.3d 821, 834 (9th Cir. 1995). In light of these reasons, any
other errors did not “negate the validity of the ALJ’s ultimate conclusion” as to Plaintiff’s

testimony and were thus harmless. Batson, 359 F.3d at 1197. Plaintiff’s briefing presents an
alternate interpretation of the evidence in the record. But ‘“[w]here the evidence is susceptible to
more than one rational interpretation,’ the ALJ’s decision must be affirmed.” Vasquez, 572 F.3d
at 591 (quoting Andrews, 53 F.3d at 1039–40).
B. Evaluation of Medical Opinion Evidence
The ALJ generally will give more weight to opinions from treating sources because they
“bring a unique perspective to the medical evidence that cannot be obtained from the objective
medical findings alone” or from one-time evaluations performed by consulting physicians. 20
C.F.R. §§ 404.1527(c)(2); 416.927(c)(2). The longer a treating source has treated claimant and
the more times claimant has been seen by the treating source, the more weight will be given to

that source’s medical opinion. 20 C.F.R. § 404.1527(c)(2)(i). “Where the treating doctor’s
opinion is not contradicted by another doctor, it may be rejected only for ‘clear and convincing’
reasons.” Lester, 81 F.3d at 830.
Plaintiff argues that the ALJ failed to give clear and convincing reasons for discounting
the medical opinions of Dr. Brett, Plaintiff’s surgeon. ECF 10 at 6. Plaintiff was referred to Dr.
Brett for a neurosurgical consultation after suffering back and neck pain which interfered with his
work, and he was treated by Dr. Brett for approximately three months from April to July 2015. AR
326–28.
At his initial consultation with Dr. Brett in April 2015, Plaintiff agreed to be scheduled for
C6-C7 anterior cervical arthroplasty. AR 329. Prior to Plaintiff’s surgery in May 2015, Dr. Brett
wrote a letter to Plaintiff’s chiropractor dated April 14, 2015, stating Plaintiff could work in light-
duty, but “should not lift or carry more than 25 lbs., perform any repetitive or heavy exertion with the
upper extremities, or maintain any awkward or stationary neck positions that aggravate his pain.” AR
327. After surgery, on July 20, 2015, Dr. Brett wrote again to Plaintiff’s chiropractor, reporting
positively on the surgery, restating the same functional restrictions, and noting that Plaintiff “will be
reassessed here in September when I hope to perform a closing examination and return him to his

regular occupation.” AR 326. Plaintiff’s regular occupation was a warehouse worker which required
Plaintiff to frequently lift 25 pounds and at times to lift 100 pounds or more. AR 240, 242.
Plaintiff contends that the ALJ erred in failing to give the limitations in Dr. Brett’s opinions
great weight. ECF 10 at 5. The ALJ assigned minimal and partial weight, respectively, to Dr. Brett’s
opinions, finding that they did not intend to profess permanent functional limitations for Plaintiff. AR
29.
Specifically, as to Dr. Brett’s first opinion dated April 14, 2015, one reason the ALJ gave it
minimal weight is that he mistakenly believed the opinion predated Plaintiff’s alleged disability onset
date of April 1, 2015. Id. Though the ALJ misstated and misapplied the alleged onset date, any error
here is harmless because the ALJ provided another reason to discount the April 2015 opinion. See
Carmickle v. Comm’r of Soc. Sec. Admin., 533 F.3d 1155, 1162–63 (an error in an ALJ’s reasoning
to discount evidence is not automatically harmful where other reasons remain supported by
substantial evidence). The other reason the ALJ discounted Dr. Brett’s April 2015 opinion was based
on its temporal scope: it was “provided prior to [Plaintiff’s] surgery” and therefore it was of limited
value in assessing Plaintiff’s functioning after his surgery was performed. AR 29. Dr. Brett
anticipated curative results: his April 2015 letter states that Plaintiff’s prognosis with surgery “is
excellent,” and his assessed limitations are only applicable “in the interim” until surgery. AR 327.
Thus, Dr. Brett’s letter confirms the ALJ’s reasoning that the restrictions referenced in the April 2015
letter were only intended to be applicable for a limited duration and only prior to surgery. This was a
clear and convincing reason for the ALJ to assign minimal weight to Dr. Brett’s April 2015 opinion.
As for Dr. Brett’s July 2015 opinion, the ALJ assigned it partial weight because it was given
less than two months after surgery and it also contained temporary restrictions. AR 29. An ALJ may
discount an opinion that reflects only temporary limitations because disability requires twelve
months of inability to engage in substantial gainful activity. 42 U.S.C. § 423(d)(1)(A); 20 C.F.R.

§ 404.1509; see Carmickle, 533 F.3d at 1165. The wording of Dr. Brett’s July 2015 letter assessing
limitations, AR 326, confirms the ALJ’s reasoning. After restating the functional restrictions that he
had listed pre-surgery which limited Plaintiff to light work, Dr. Brett noted that Plaintiff “will be
reassessed” two months later and at that time, he “hope[d] to perform a closing examination and
return him to his regular occupation.” Id. The ALJ found Dr. Brett’s functional limitations were an
interim measure meant only to apply to a recovery period, as Dr. Brett anticipated that in two
months’ time, Plaintiff would be able to return to his occupation which required much heavier lifting.
AR 75, 240, 242. The record contains no evidence showing that Plaintiff returned to Dr. Brett for that
September visit. AR 29. The ALJ thus gave a clear and convincing reason that Dr. Brett’s opinion
was only partially credited: because it was not intended to be a final assessment on Plaintiff’s post-op
functioning. Id.
Plaintiff contends that the ALJ’s finding that the limitations assessed by Dr. Brett were
temporary was not a clear and convincing reason when considered in the light of the entire record,
including the subsequent treatment Plaintiff underwent. ECF 10 at 7. The ALJ, however, did not limit
his findings to the three-month timeframe surrounding Plaintiff’s surgery. The ALJ supported his
decision to discount Dr. Brett’s opinions by noting that in the two years after his surgery, Plaintiff did
not report any limitations in his ability to perform repetitive movements with his upper extremities to
any medical provider, including any problems with movements that required frequently lifting only
ten pounds per the “light work” designation in Plaintiff’s RFC. AR 29.
Furthermore, although Dr. Brett’s 2015 opinions also assessed a limitation against awkward
or stationary neck positions, the ALJ noted the dearth of Plaintiff’s post-surgery reports to medical
providers regarding any difficulties with maintaining his neck position. AR. 29, 487. By including a
frequency limitation in Plaintiff’s RFC for reaching overhead with bilateral extremities, however, the
ALJ incorporated more restrictive limitations than the opinions of the two Disability Determination
Services reviewing physicians Neal Berner, M.D., and Susan Moner, M.D. AR 90–91, 103–04. The

ALJ thus determined that any limitation in neck position was generally accounted for by the RFC’s
limitations in overhead work.
The ALJ’s discounting of Dr. Brett’s opinion is supported by substantial evidence and was
based on a permissible determination within the ALJ’s province. Though Plaintiff may disagree with
the ALJ’s evaluation of the opinion evidence, it is supported by substantial evidence in the record
and this Court does not have the discretion to second-guess it. Batson, 359 F.3d at 1193 (when
evidence is susceptible to more than one rational interpretation, the reviewing court must uphold the
reasonable interpretation of the ALJ).
CONCLUSION
The Commissioner’s decision that Plaintiff was not disabled is AFFIRMED.
IT IS SO ORDERED.

DATED this 5th day of August, 2020.

/s/ Karin J. Immergut
Karin J. Immergut
United States District Judge

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10392295. Public record. Not legal advice.