The opinion
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
DAWN O.,!
Plaintiff, No. 3:18-CV-02055-MC
Vv. OPINION AND ORDER
COMMISSIONER, SOCIAL SECURITY
ADMINISTRATION,
Defendant.
MCSHANE, Judge:
Plaintiff Dawn O. brings this action for judicial review of a final decision of the
Commissioner of Social Security (“Commissioner”) denying her application for Social Security
Disability Insurance (“SSDI”) benefits under Title XVI of the Social Security Act. The Court has
jurisdiction under 42 U.S.C. § 405(g).
Plaintiff argues that the Administrative Law Judge (“ALJ”) erred by rejecting the opinions
of Plaintiff's treating medical sources and rejecting Plaintiffs testimony about the onset date of
her cancer. Because the Commissioner’s decision is based on proper legal standards and supported
by substantial evidence, the Commissioner’s decision is AFFIRMED.
STANDARD OF REVIEW
A reviewing court will affirm the Commissioner’s decision if it is based on proper legal
standards and the legal findings are supported by substantial evidence in the record. 42 U.S.C. §
| In the interest of privacy, this opinion uses only the first name and the initial of the last name of the non-governmental
party.
1 — OPINION AND ORDER
405(g); Batson v. Comm’r Soc. Sec. Admin., 359 F.3d 1190, 1193 (9th Cir. 2004). “Substantial
evidence is ‘more than a mere scintilla but less than a preponderance; it is such relevant evidence
as a reasonable mind might accept as adequate to support a conclusion.’” Hill v. Astrue, 698 F.3d
1153, 1159 (9th Cir. 2012) (quoting Sandgathe v. Chater, 108 F.3d 978, 980 (9th Cir. 1997)). To
determine whether substantial evidence exists, the Court reviews the entire administrative record,
weighing both the evidence that supports and detracts from the ALJ’s decision. Davis v. Heckler,
868 F.2d 323, 326 (9th Cir. 1989).
DISCUSSION
The Social Security Administration uses a five-step sequential evaluation to determine
whether a claimant is disabled. 20 C.F.R. §§ 404.1520; 416.920 (2012). The initial burden of proof
rests on the claimant to meet the first four steps. If the claimant satisfies his burden with respect
the first four steps, the burden shifts to the Commissioner for step five. 20 C.F.R. § 404.1520. At
step five, the Commissioner must show that the claimant can adjust to other work after considering
the claimant’s RFC, age, education, and work experience. Id. If the Commissioner fails to meet
this burden, then the claimant is disabled. 20 C.F.R. §§ 404.1520(a)(4)(v); 416.920(a)(4)(v). If,
however, the Commissioner finds that the claimant can perform other work existing in significant
numbers in the national economy, the claimant is not disabled. Bustamante v. Massanari, 262 F.3d
949, 953–54 (9th Cir. 2001).
At step two, the ALJ found that Plaintiff had some medically determinable impairments
but did not find that Plaintiff had any severe impairments, i.e., “an impairment or combination of
impairments that significantly limited the ability to perform basic work-related activities for [a
year].” Tr. 18.2 Accordingly, the ALJ found that Plaintiff “was not under a disability . . . at any
2 “Tr” refers to the Transcript of the Social Security Administrative Record provided by the Commissioner.
time from January 9, 2009, the alleged onset date, through December 31, 2013, the date last
insured.” Tr. 23 (citing 20 C.F.R. § 404.1520(c)).
Plaintiff argues that the ALJ erred by improperly rejecting the opinions of treating medical
sources and incorrectly rejecting Plaintiff’s testimony about the onset date of her cancer.
I. Treating Physicians Opinions
Plaintiff contends that the ALJ incorrectly weighed the medical opinions provided by Dr.
Alice Wang-Chesebro and Dr. Alison Conlin. Pl.’s Op. Br. 3, ECF No. 14. Dr. Wang-Chesebro
was Plaintiff’s radiation oncologist since September 2014. Tr. 1014. In May 2017, she responded
to an attorney-generated questionnaire that Plaintiff met Listings 13.10A and 13.10E as of
Plaintiff’s date last insured. Tr. 1014–16. Dr. Wang-Chesebro opined that Plaintiff’s breast mass,
discovered in January 2014, would have been there before the date last insured. Tr. 1015. Dr.
Conlin, Plaintiff’s treating oncologist since January 29, 2014, agreed. Tr. 996-98. Like Dr. Wang-
Chesebro, Dr. Conlin responded to an attorney-generated questionnaire in May 2017. Tr. 996.
While the questionnaire includes several errors and inconsistencies, Plaintiff is right in her
assertion that Dr. Conlin implied that the onset of Plaintiff’s cancer possibly occurred before the
date last insured. Pl.’s Op. Br. 8 (citing tr. 996–97).
But while Dr. Wang-Chesebro and Dr. Conlin opined that Plaintiff met Listings 13.10A
and 13.10E, testifying medical expert Dr. Robert B. Sklaroff disagreed. At Plaintiff’s hearing, Dr.
Sklaroff testified that Plaintiff did not meet Listing 13.10A and that Plaintiff had no severe
impairments during the period at issue. See tr. 47–51. After considering these differing opinions,
the ALJ assigned greater weight to Dr. Sklaroff’s opinion. Tr. 21–22.
Generally, a treating doctor’s opinion is entitled to more weight than an examining doctor’s
opinion, which in turn is entitled to more weight than a reviewing doctor’s opinion. Garrison v.
Colvin, 759 F.3d 995, 1012 (9th Cir. 2014). But when faced with conflicting medical evidence,
the ALJ is charged with determining credibility and resolving any conflicts. Chaudhry v. Astrue,
688 F.3d 661, 671 (9th Cir. 2012). “If a treating or examining doctor’s opinion is contradicted by
another doctor’s opinion, an ALJ may only reject it by providing specific and legitimate reasons
that are supported by substantial evidence.” Id. (quoting Bayliss v. Barnhart, 427 F.3d 1211, 1216
(9th Cir. 2005)).
Here, the ALJ provided multiple reasons for assigning little weight to either Dr. Wang-
Chesebro’s or Dr. Conlin’s opinion. Beginning with Dr. Wang-Chesebro, the ALJ noted that
Plaintiff began receiving treatment after the date last insured. Tr. 21 (“[Dr. Wang-Chesebro] was
not the claimant’s treating doctor at the time of diagnosis or the claimant’s surgeon and did not
begin treatment until later in 2014.”). The ALJ also noted that Dr. Wang-Chesebro did not review
any evidence before the date last insured and instead relied on evidence obtained afterwards. Tr.
1014–15. An ALJ may find that a retroactive opinion, based on examination after the date last
insured and inconsistent with other medical evidence, is a valid basis to assign less weight. Tidwell
v. Apfel, 161 F.3d 599, 602 (9th Cir. 1999).
Likewise, the ALJ found that Dr. Conlin also provided a retroactive opinion based on an
examination after the date last insured. Tr. 22. Dr. Conlin relied on imaging taken after the date
last insured when formulating her opinon. Tr. 996–97. Because of the retroactive basis for Dr.
Conlin’s opinion, the ALJ could assign it less weight. Tidwell, 161 F.3d at 602. The ALJ was also
rightfully confused about whether Dr. Conlin’s opinion was supported by clinical findings. Tr. 22;
see also Pl.’s Op. Br. 8 (“This questionnaire included several errors and inconsistencies.”). An
“ALJ need not accept the opinion of any physician, including a treating physician, if that opinion
is brief, conclusory, and inadequately supported by clinical findings.” Chaudhry, 688 F.3d at 671
(emphasis added).
The ALJ ultimately found that Dr. Sklaroff’s testimony had more support in the record. Tr.
21. Dr. Sklaroff testified that Plaintiff did not have any severe impairments and that she failed to
meet Listing 13.10A. Tr. 47–51. Dr. Sklaroff’s opinion had the advantage of relying on the entire
record, including the opinions from Dr. Wang-Chesebro and Dr. Conlin. See tr. 34–67. An ALJ
may reject “the opinion of a treating or examining physician, based in part on the testimony of a
nontreating, nonexamining medical advisor.” Morgan v. Comm’r of Soc. Sec. Admin., 169 F.3d
595, 602 (9th Cir. 1999) (emphasis in original) (citations omitted). Here, the ALJ rejected
testimony from Dr. Wang-Chesebro and Dr. Conlin in part based on the contradictory evidence
provided by Dr. Sklaroff, but also in part on the fact that none of the physicians relied on evidence
relating to the time before the date last insured. Tr. 21–22.
Plaintiff counters that the lack of evidence does not necessarily mean that a condition does
not exist. Pl.’s Op. Br. 8. But rather than establishing that the ALJ erred, Plaintiff’s argument
instead only supports an alternative interpretation. When the evidence is susceptible to more than
one rational interpretation, the ALJ’s conclusion must be upheld. Burch v. Barnhart, 400 F.3d 676,
679 (9th Cir. 2005). Because the ALJ could rationally conclude that Dr. Sklaroff’s opinion was
entitled to more weight, the ALJ’s decision to discount the treating physicians’ opinions was
supported by “substantial evidence.” Bray v. Comm’r Soc. Sec. Admin., 554 F.3d 1219, 1222 (9th
Cir. 2009) (quoting Andrews v. Shalala, 53 F.3d 1035, 1039 (9th Cir. 1995)).
II. Plaintiff’s Onset Date Testimony
Plaintiff next argues that the ALJ erred in rejecting her testimony about the onset date of
her cancer. Pl.’s Op. Br. 8. An ALJ follows a two-step process in evaluating a claimant’s
symptoms. SSR 16-3p, 2017 WL 5180304, at *3–4 (Oct. 25, 2017). At step one, the ALJ
determines whether the claimant has a medically determinable impairment that could reasonably
be expected to produce the claimant’s alleged symptoms. Id. At step two, the ALJ evaluates the
intensity and persistence of a claimant’s symptoms and determines how much an individual’s
symptoms limit their ability to perform work-related activities. Id. at *4. Here, at step one, the ALJ
determined that “that the [Plaintiff’s] medically determinable impairments could have been
reasonably expected to produce the alleged symptoms.” Tr. 19. At step two, the ALJ found that
“the [Plaintiff’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.”
Tr. 19.
The ALJ “is responsible for determining [the] credibility” of a claimant’s subjective
complaints. Andrews, 53 F.3d at 1039. An ALJ may only discount subjective symptom testimony
by identifying specific, clear, and convincing reasons supported by substantial evidence in the
record. Brown-Hunter v. Colvin, 806 F.3d 487, 488–89 (9th Cir. 2015). “Contradiction with the
medical record is a sufficient basis for rejecting the claimant’s subjective testimony,” Carmickle
v. Comm’r Soc. Sec. Admin., 533 F.3d 1155, 1161 (9th Cir. 2008), along with “ordinary techniques
of credibility evaluation.” Ghanim v. Colvin, 763 F.3d 1154, 1163 (9th Cir. 2014). “If the ALJ’s
credibility finding is supported by substantial evidence in the record, [the reviewing court] may
not engage in second-guessing.” Thomas v. Barnhart, 278 F.3d 947, 959 (9th Cir. 2002). The
ALJ’s decision to discount Plaintiff’s testimony is supported by substantial evidence in the record.
The ALJ specifically noted there was no evidence to support Plaintiff’s claims during the
period at issue. Tr. 20 (“No treatment notes of [Plaintiff] being sick or ill in 2013, which shows
that the claimant had no functional impairment from such lump prior to her date last insured.”).
“We have long held that, in assessing a claimant’s credibility, the ALJ may properly rely on
unexplained or inadequately explained failure to seek treatment.” Molina v. Astrue, 674 F.3d 1104,
1113 (9th Cir. 2012) (quotation and citation omitted). Plaintiff explained that she had noticed the
breast lump the prior year and had been seeking treatment for years. Tr. 399. Plaintiff also stated
that she lacked insurance until January 1, 2014. Tr. 780. An ALJ will consider a claimant’s ability
to afford treatment. SSR 16-3p, 2017 WL 5180304, at *10 (Oct. 25, 2017). The ALJ did so here
but found that Plaintiff’s “complaints of being unable to get an appointment with complaints of a
breast lump and the fact that her reasons for not scheduling an appoint vary over time . . . [and]
stretch credulity.” Tr. 20. The ALJ also noted that if Plaintiff was “concerned or was having
functional symptoms, she likely would have sought treatment at an urgent care facility or the
emergency room.” Tr. 20. The Court finds that the ALJ properly relied on Plaintiff’s inadequately
explained failure to seek treatment when discounting her testimony.
The ALJ also noted the post diagnosis record still failed to support Plaintiff’s allegations.
Tr. 20. A lack of supportive evidence is a valid consideration when evaluating testimony. Burch,
400 F.3d at 681. When Plaintiff was diagnosed, the mass was described as non-tender. Tr. 400.
And a couple of weeks later, Plaintiff reported that she was “feeling well otherwise.” Tr 411. In
early March 2014, Plaintiff continued to report that she was not experiencing any unusual
symptoms. Tr. 425. As noted by the ALJ, it was not until March 26, 2014, after Plaintiff’s first
chemotherapy cycle, that Plaintiff reported symptoms which impacted her daily life. Tr. 429. The
ALJ cited all this evidence when determining that before Plaintiff’s date last insured, Plaintiff
lacked evidence supporting a determination that she was disabled. Tr. 20–21.
While Plaintiff argues otherwise, substantial evidence in the record supports the ALJ’s
determination to discount Plaintiff’s testimony about her onset date. Thomas, 278 F.3d at 959.
Further, the Court “may not engage in second-guessing.” Id. The Court thus finds that the ALJ did
not commit legal error here.
CONCLUSION
For these reasons, the Commissioner’s final decision is AFFIRMED.
IT IS SO ORDERED.
DATED this 31st day of August, 2020.
_s/Michael J. McShane____________
Michael J. McShane
United States District Judge