# Cavender v. Commissioner Social Security Administration

> District Court, D. Oregon · November 23, 2020

URL: https://www.frixlaw.com/law-library/cases/10392637

## Case

- **Court:** District Court, D. Oregon
- **Decided:** November 23, 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/10392637

## How later opinions describe it (automated extraction)

- observing that a “claimant need not vegetate in a dark room in order to be eligible for benefits” (quotation marks omitted)
- finding ALJ reasonably concluded that claimant’s allegations of total disability were undermined by daily activities, despite having some difficulty functioning
- holding that “[t]he court will uphold the ALJ’s conclusion when the evidence is susceptible to more than one rational interpretation”

## Opinion text

UNITED STATES DISTRICT COURT

DISTRICT OF OREGON

PORTLAND DIVISION

TERESA C., Ca se No. 3:19-cv-01268-AC

Plaintiff, OPINION AND ORDER
v.

COMMISSIONER SOCIAL SECURITY
ADMINISTRATION,

Defendant.
_____________________________________

ACOSTA, Magistrate Judge:

Plaintiff Teresa C.1 seeks judicial review of the Commissioner of Social Security’s final
decision denying her application for a period of disability and disability insurance benefits, under
Title II of the Social Security Act, 42 U.S.C. §§ 401-403. This court has jurisdiction pursuant to
42 U.S.C. § 405(g). For the following reasons, the Commissioner’s decision is affirmed.2

1 In the interest of privacy, this Opinion and Order uses only the first name and the initial of the
last name of the non-governmental party in this case.
2 All parties have consented to allow a Magistrate Judge to enter final orders and judgment in
this case in accordance with 28 U.S.C. § 636(c).

Page 1 – OPINION AND ORDER
Procedural Background
On October 1, 2014, Plaintiff protectively filed an application for a period of disability and
disability benefits, alleging disability beginning September 18, 2013, due to tremors, gastroparesis,
recurrent emesis, weight loss, benign positional vertigo, chorea, uncontrollable involuntary

movements, depression, nausea, vomiting, and chronic sinusitis. Tr. Soc. Sec. Admin. R. (“Tr.”)
95-96, ECF No. 16. Plaintiff’s claims were denied initially and upon reconsideration. Plaintiff
filed a request for a hearing before an administrative law judge (“ALJ”). The ALJ held a hearing
on July 19, 2017, at which Plaintiff appeared with her attorney and testified. A vocational expert,
Francene Geers, also appeared and testified at the July 19, 2017 hearing. The ALJ held a
supplemental hearing on March 23, 2018, at which an impartial medical expert, Nihar Umesh
Shah, M.D., appeared and testified. On June 6, 2018, the ALJ issued an unfavorable decision.
The Appeals Council denied Plaintiff’s request for review, and therefore, the ALJ’s decision
became the final decision of the Commissioner for purposes of review.
Plaintiff was born in 1970, was forty-three years old on the alleged onset date of disability,

and was forty-eight years old on the date of the ALJ’s decision. Tr. 27-28. Plaintiff completed
high school, some college courses, some automotive technical training, and has past relevant work
as a cleaner, store laborer, and delivery driver. Tr. 27.
The ALJ’s Decision
The ALJ determined that Plaintiff meets the insured status requirements through March 31,
2019, and found at step one that she has not engaged in substantial gainful employment since her
alleged onset date of September 18, 2013. Tr. 16. At step two, the ALJ determined that Plaintiff
had the following severe impairments: chronic constipation, trigeminal neuralgia, migraine
headaches, bilateral carpal tunnel syndrome status post release, mild cervical osteoarthritis, and

Page 2 – OPINION AND ORDER
depression. Tr. 17. At step three, the ALJ determined that Plaintiff’s severe impairments did not
meet or equal any listed impairment. Tr. 19. Reviewing all the evidence in the record, the ALJ
determined Plaintiff has the residual functional capacity (“RFC”) to lift and/or carry up to twenty
pounds occasionally and ten pounds frequently, and can sit, stand, and walk each for six hours in

an eight-hour workday, with the following additional limitations: she can never climb ladders,
ropes, or scaffolds; can frequently climb ramps and stairs, stoop crouch, kneel, and crawl, and
frequently finger objects; she must have no more than occasional exposure to hazards, such as
unprotected heights and large moving equipment; she can understand, remember, and apply
information to complete tasks that require a GED Reasoning Level of 2; and she must work in a
setting with ready access to a bathroom. Tr. 21-21.
At step four, the ALJ determined that Plaintiff is unable to perform any past relevant work.
Tr. 27. At step five, the ALJ found that jobs exist in significant numbers in the national economy
that Plaintiff can perform, including such representative occupations as marker, photocopy
machine operator, and collator operator. Tr. 28. Therefore, the ALJ found that Plaintiff was not

disabled from September 18, 2013, through the date of the decision and denied Plaintiff’s
application for disability benefits. Tr. 29.
Issues on Review
Plaintiff argues that the ALJ committed the following errors: (1) improperly evaluated
her subjective symptom testimony; (2) improperly evaluated the opinions of the treating and
examining physicians; and (3) the RFC fails to account for the limitations caused by her migraine
headaches.
\ \ \ \ \
\ \ \ \ \

Page 3 – OPINION AND ORDER
Standard of Review
The district court must affirm the Commissioner’s decision if the Commissioner applied
proper legal standards and the findings are supported by substantial evidence in the record. 42
U.S.C. § 405(g); Trevizo v. Berryhill, 871 F.3d 664, 674 (9th Cir. 2017). Substantial evidence is

“more than a mere scintilla” and is “such relevant evidence as a reasonable mind might accept as
adequate to support a conclusion.” Biestek v. Berryhill, 139 S. Ct. 1148, 1154 (2019) (internal
quotation and citation omitted); Ford v. Saul, 950 F.3d 1141, 1154 (9th Cir. 2020); Garrison v.
Colvin, 759 F.3d 995, 1009 (9th Cir. 2014). To determine whether substantial evidence exists,
the court must weigh all the evidence, whether it supports or detracts from the Commissioner’s
decision. Trevizo, 871 F.3d at 675; Garrison, 759 F.3d at 1009. “‘If the evidence can reasonably
support either affirming or reversing,’ the reviewing court ‘may not substitute its judgment’ for
that of the Commissioner.” Gutierrez v. Comm’r Soc. Sec. Admin., 740 F.3d 519, 523 (9th Cir.
2014) (quoting Reddick v. Chater, 157 F.3d 715, 720-21 (9th Cir. 1996)).
Discussion

I. The ALJ Did Not Err in Evaluating Plaintiff’s Subjective Symptom Testimony
A. Standards
To determine whether a claimant’s testimony regarding subjective pain or symptoms is
credible, an ALJ must perform two stages of analysis. Trevizo, 871 F.3d at 678; 20 C.F.R. §§
404.1529, 416.929. The first stage is a threshold test in which the claimant must produce
objective medical evidence of an underlying impairment that could reasonably be expected to
produce the symptoms alleged. Treichler v. Comm’r Soc. Sec. Admin., 775 F.3d 1090, 1102 (9th
Cir. 2014); Tommasetti v. Astrue, 533 F.3d 1035, 1039 (9th Cir. 2008). At the second stage,
absent affirmative evidence that the claimant is malingering, the ALJ must provide clear and

Page 4 – OPINION AND ORDER
convincing reasons for discrediting the claimant’s testimony regarding the severity of the
symptoms. Carmickle v. Commissioner Soc. Sec. Admin., 533 F.3d 1155, 1160 (9th Cir. 2008);
Lingenfelter v. Astrue, 504 F.3d 1028, 1036 (9th Cir. 2007).
The ALJ must make findings that are sufficiently specific to permit the reviewing court to

conclude that the ALJ did not arbitrarily discredit the claimant’s testimony. Brown-Hunter v.
Colvin, 806 F.3d 487, 493 (9th Cir. 2015). Clear and convincing reasons for rejecting a claimant’s
subjective symptom testimony include “conflicting medical evidence, effective medical treatment,
medical noncompliance, inconsistencies in the claimant’s testimony or between her testimony and
her conduct, daily activities inconsistent with the alleged symptoms, and testimony from
physicians and third parties about the nature, severity and effect of the symptoms complained of.”
Bowers v. Astrue, No. 11-cv-583-SI, 2012 WL 2401642, at *9 (D. Or. June 25, 2012); Ghanim v.
Colvin, 763 F.3d 1154, 1163 (9th Cir. 2013); Tommasetti, 533 F.3d at 1039.
B. Analysis
As the ALJ accurately described, Plaintiff has a “complex medical history that is dominated

by complaints of abdominal pain, chronic constipation, nausea, vomiting, diarrhea, weight loss,
fatigue, and migraine headaches.” Tr. 17. At the hearing, Plaintiff testified that she could no
longer work due to her frequent bowel movements, recurrent vomiting, tremors, and weakness.
She complained of intermittent constipation and frequent bowel movements with a high degree of
variability. Tr. 70. She testified that she vomits four or five times per week. Tr. 69. She
described having difficulty with her hands, and that she has trouble dressing herself. Tr. 72. She
stated that the most she can frequently lift and carry is two pounds, that she can sit for thirty
minutes before needing to change position, and can stand and walk for five minutes. Tr. 73. She
testified that she naps every day and has difficulty sleeping due to pain and numbness. Tr. 73-74.

Page 5 – OPINION AND ORDER
She estimated her pain at typically a seven out of ten. Tr. 75. She testified that she has lost forty
pounds due to her gastrointestinal issues, has difficulty with short-term memory loss, and
experiences migraine headaches four-to-five times per week. Tr. 79-80.
Plaintiff stated that she was prescribed oxcarbazepine, lisinopril, reglan, gabapentin, and

folic acid for her impairments. Tr. 65. She testified that her medications are effective because
they have lessened the pain that she feels, but they make her tired. Tr. 65.
Plaintiff described that she formerly worked as a service worker for a mass transit provider
fueling, sweeping, mopping, and washing buses. Tr. 60. She stated that part of her job included
filling oil and antifreeze levels in the buses, and that doing so involved moving large fifty-five
gallon drums of oil and antifreeze by hand or with a handtruck. Tr. 60-61. She testified that she
was “medically terminated” from that job because she could not attend to work on a reliable basis.
Tr. 62. She also described working as a counter parts person in a parts department for an
automotive dealership. Tr. 62. She testified that she managed the routes for the deliveries of
parts and occasionally delivered parts when they were needed quickly. Tr. 64.

Plaintiff testified that she lives in a home with roommates and that she pays the mortgage,
and her roommates perform most of the household chores and yardwork. Tr. 66. She stated that
she does her own grocery shopping once a week and occasionally does her own laundry. Tr. 66.
She testified that approximately three times per week she drives herself to her own medical
appointments, to the store, and to visit family. Tr. 67. She stated that she had helped her brother
and father with their nursery businesses, but has been unable to do so since 2013 or 2014. Tr. 68.
In this case, there is no evidence of malingering and the ALJ was required to provide
specific, clear, and convincing reasons for discrediting Plaintiff’s symptom testimony. Here, the
ALJ identified three reasons: (1) Plaintiff’s daily activities were inconsistent with her alleged

Page 6 – OPINION AND ORDER
symptoms; (2) her symptoms improved with medication; and (3) her allegations were not
supported by the objective medical evidence of record. Notably, Plaintiff challenges only the
ALJ’s assessment of her work history in the credibility determination. After careful examination,
the court finds that the ALJ’s has provided specific, clear and convincing reasons for discounting

Plaintiff’s subjective complaints.
1. activities of daily living
Activities of daily living may provide a basis for discounting a claimant’s subjective
symptoms if they contradict her testimony or meet the threshold for transferable work skills.
Molina v. Astrue, 674 F.3d 1104, 1112-13 (9th Cir. 2012); superseded by regulation on other
grounds as stated in Schuyler v. Saul, 813 F. App’x 341, 342 (9th Cir. 2020). However, a claimant
does not need to be utterly incapacitated to receive disability benefits, and a claimant’s ability to
complete certain routine activities is insufficient to discount subjective symptom testimony.
Molina, 674 F.3d at 1112-13 (observing that a “claimant need not vegetate in a dark room in order
to be eligible for benefits” (quotation marks omitted)); Benecke v. Barnhart, 379 F.3d 587, 594

(9th Cir. 2004) (“One does not need to be ‘utterly incapacitated’ in order to be disabled.”).
The ALJ found Plaintiff’s allegations of total disability undermined by her ability to drive
herself two-to-three times per week, and her ability to attend family gatherings. Tr. 22. At the
hearing, Plaintiff testified that she attends “a lot of family gatherings when I’m able to.” Tr. 67.
She stated that her primary impediment to working is her alternating periods of constipation and
diarrhea, and intermittent periods of vomiting. Contrary to the ALJ’s findings, Plaintiff’s ability
to perform some household chores and attend family gatherings during asymptomatic periods is
not inconsistent with her allegations of disability. Ghanim, 763 F.3d at 1164 (holding claimant

Page 7 – OPINION AND ORDER
did not purport to be unable to perform all basic activities, thus ALJ erred in discounting
testimony).
The ALJ reasonably could infer, however, that Plaintiff’s ability to shop, drive herself to
appointments, and remain socially active when not bothered by diarrhea and vomiting are

inconsistent with her hearing testimony of being able to lift only two pounds or walk for five
minutes. The ALJ also found that Plaintiff’s reports of being so weak that she can only wear pull-
on clothing and needing help from roommates inconsistent with the record. Tr. 22. The ALJ
found this extreme level of incapacity unsupported by the medical record, and specifically
undermined by Plaintiff’s report to an examining physician, and thus discounted her testimony on
this basis. Tr. 22.
The ALJ’s finding in this regard is wholly supported by substantial evidence. As the ALJ
correctly observed, during a September 19, 2017 neurocognitive evaluation with Paul S. Stoltzfus,
Psy. D., Plaintiff described her daily activities as including spending time with family, reading,
gardening, and walking daily. Tr. 887. Plaintiff reported her activity level was health-

dependent, but the ALJ reasonably could find her allegations of extreme incapacity inconsistent
with her description of daily activities to Dr. Stoltzfus on this basis. Moreover, Plaintiff does not
challenge the ALJ’s assessment of this evidence. Therefore, the court concludes the ALJ has
provided a specific, clear, and convincing reason for discounting Plaintiff’s testimony. Molina,
674 F.3d at 1112-13 (finding ALJ reasonably concluded that claimant’s allegations of total
disability were undermined by daily activities, despite having some difficulty functioning).
2. improvement with medication
In the decision, the ALJ noted that Plaintiff alleged she is unable to sustain work because
she suffers from multiple painful migraines per week, which require her lie down in a dark room.

Page 8 – OPINION AND ORDER
Tr. 22. An ALJ “may consider . . . the claimant’s daily activities, inconsistencies in testimony,
effectiveness or adverse side effects of any pain medication” when assessing how much weight to
give a claimant’ s symptom testimony. Orteza v. Shalala, 50 F.3d 748, 750 (9th Cir. 1995); Warre
v. Comm’r Soc. Sec. Admin., 439 F.3d 1001, 1006 (9th Cir. 2006) (“Impairments that can be

controlled effectively with medication are not disabling” (citations omitted)). The ALJ found
Plaintiff’s report of disabling migraines undermined by her reports to providers that her migraines
had improved on medication. Tr. 23. The ALJ discussed Plaintiff’s migraines and trigeminal
neuralgia at length. The ALJ discussed that in January 2016, Plaintiff was prescribed
oxcarbazepine for trigeminal neuralgia and her migraines, and that her treatment providers added
gabapentin for better control, with Zomig for breakthrough migraines. Tr. 17, 23, 756. The ALJ
noted that two months later, Plaintiff reported the combination of oxcarbazepine and gabapentin
was very effective, such that she rarely needed to use Zomig. Tr. 23, 753. As the ALJ accurately
noted, in January 2017, Plaintiff reported her trigeminal neuralgia was “minimally bothersome.”
Tr. 806.

The ALJ’s findings are wholly supported by substantial evidence in the record. Her
migraines and trigeminal neuralgia responded well to medication (Tr. 1267, 1279), and her
reported depression improved after beginning treatment with medication. Tr. 23. Again, the
ALJ’s findings in this regard are fully supported by substantial evidence and reasonable inferences
drawn from the record, and unchallenged by Plaintiff. Accordingly, the court finds that ALJ’s
second rationale is a specific, clear, and convincing reason to discount Plaintiff’s subjective
symptom testimony.
3. inconsistencies with medical evidence
An ALJ may consider objective medical evidence in evaluating a claimant’s subjective

Page 9 – OPINION AND ORDER
symptom testimony, so long as the ALJ does not reject such testimony solely because it is
unsubstantiated by the objective medical evidence. Robbins v. Soc. Sec. Admin., 466 F.3d 880,
883 (9th Cir. 2006); McCloud v. Saul, 818 F. App’x 730, 732 (9th Cir. 2020) (finding ALJ properly
rejected subjective symptom testimony based in part on lack of objective medical evidence).

The ALJ discounted Plaintiff’s testimony because it was inconsistent with the objective
medical evidence, observing that Plaintiff “has a lot of complaints with minimal objective findings
corresponding to those complaints.” Tr. 22. The ALJ found that Plaintiff’s allegations of
gastroparesis were undermined by the results of a negative January 2017 gastric emptying study.
The ALJ discussed that Plaintiff underwent a similar study, which revealed that she suffers from
slowed emptying consistent with constipation. Tr. 22, 840, 841. Additionally, the ALJ found
Plaintiff’s testimony that she suffers from fifteen episodes of loose stools per day inconsistent with
her reports to her physicians, reflecting complaints of only up to ten episodes. Tr. 22, 783, 907,
1215. The ALJ’s findings are wholly supported by substantial evidence in the record. As the
ALJ accurately observed, the medical record reflects that Plaintiff reported variable episodes of

constipation and diarrhea, but do not support Plaintiff’s reported level or that they were
accompanied by hygienic accidents.
The ALJ also discounted Plaintiff’s testimony about weight loss. After noting that that
Plaintiff lost thirty-two pounds between March and November of 2016, the ALJ found Plaintiff’s
weight loss “not [] severe” because her body mass index remained within a normal range and
averaged four pounds lost per month. Tr. 22. And, the ALJ observed that Plaintiff’s weight
remained stable after November 2016. Further, the ALJ found that Plaintiff’s allegations of
frequent vomiting undermined by her stable weight and by her reports to her treating physician
that her vomiting had become less frequent. Upon careful examination, the court concludes that

Page 10 – OPINION AND ORDER
the ALJ’s findings are supported by substantial evidence and are a reasonable interpretation of the
record.
The court notes that Plaintiff’s weight loss is well documented in the record, as the ALJ
accurately noted, (see, e.g., Tr. 783, 798, 801, 824), but disagrees with the ALJ’s characterization

of Plaintiff’s thirty-two-pound weight loss as “gradual” and not “alarmingly fast.” Tr. 22. An
unexplained, unintentional weight loss of more than thirty pounds would be distressing for many
people even if occurring over several months, and the record reflects that it clearly was distressing
for Plaintiff. Tr. 797. Nevertheless, the court concludes the ALJ could reasonably conclude that
Plaintiff’s complaints of excessive vomiting are not fully supported by the record. Plaintiff’s
weight loss stabilized as of late 2016, and the ALJ’s finding that Plaintiff’s complaints of vomiting
were somewhat less frequent are supported by the record. Plaintiff does not challenge the ALJ’s
finding in this regard, however, and even if the court could conclude differently, the ALJ’s
conclusion is reasonably supported by the substantial evidence is the record and must be upheld.
Revels v. Berryhill, 874 F.3d 648, 654 (9th Cir. 2017) (providing that ALJ’s decision must be

upheld “‘where evidence is susceptible to more than one rational interpretation’” (quoting Orn v.
Astrue, 495 F.3d 625, 630 (9th Cir. 2007)). Accordingly, the court finds that the ALJ’s third
reason supplies another specific, clear, and convincing reason to discount Plaintiff’s subjective
symptom testimony.
Finally, the ALJ discounted Plaintiff’s subjective complaints because she could no longer
perform heavy work, but that she failed to look for alternative lighter work. Tr. 22. Plaintiff
argues that the ALJ erred in evaluating her subjective symptom testimony by failing to consider
her “stellar work history.” (Pl.’s Br. at 33, ECF No. 17.) Plaintiff’s argument is insufficient to
overcome the ALJ’s reasons for discounting her subjective symptom testimony. Even if the ALJ

Page 11 – OPINION AND ORDER
erred in discounting Plaintiff’s testimony in this regard, the ALJ has provided several other reasons
that amount to specific, clear, and convincing support, backed by substantial evidence, for doing
so. Therefore, any error in failing to consider Plaintiff’s work history or for failing to look for
other work is harmless. Baston v. Comm’r Soc. Sec. Admin., 359 F.3d 1190, 1195-97 (9th Cir.

2004) (holding error in evaluating credibility is harmless where the error “does not negate the
validity of the ALJ’s ultimate conclusion”).
II. The ALJ Did Not Err in Evaluating the Medical Opinion Evidence
As noted above, Plaintiff has a complex medical history, with years’ long complaints of
intermittent abdominal pain, chronic constipation, diarrhea, vomiting, weight loss, fatigue,
tremors, and migraine headaches. But extensive clinical testing has not definitively identified a
specific diagnosis for Plaintiff’s abdominal ailments or source of her tremor. She alleges that the
ALJ erred by failing to give her treating physicians controlling weight by properly considering the
factors in 20 C.F.R. § 404.1527(c), including the examining relationship, treatment relationship,
supportability, consistency, and specialization. The Commissioner responds that that ALJ

reasonably weighed the conflicting medical evidence, and that the ALJ’s decision should not be
disturbed.
A. Standards
The ALJ is responsible for resolving conflicts in the medical record, including conflicts
among physicians’ opinions. Carmickle, 533 F.3d at 1164. In general, the opinion of a treating
physician is given more weight than the opinion of an examining physician, and the opinion of an
examining physician is afforded more weight than the opinion of a nonexamining physician.
Ghanim, 763 F.3d at 1160; Orn v. Astrue, 495 F.3d 625, 632 (9th Cir. 2007); 20 C.F.R. § 404.1527.
“If a treating physician’s opinion is well-supported by medically acceptable clinical and laboratory

Page 12 – OPINION AND ORDER
diagnostic techniques and is not inconsistent with the other substantial evidence in [the] case
record, [it will be given] controlling weight.” Orn, 495 F.3d at 631 (internal quotations omitted)
(alterations in original); Trevizo, 871 F.3d at 675 (same); 20 C.F.R. § 404.1527(c).3 “When a
treating physician’s opinion is not controlling, it is weighted according to factors such as the length

of the treatment relationship and the frequency of examination, the nature and extent of the
treatment relationship, supportability, consistency with the record, and specialization of the
physician.” Trevizo, 871 F.3d at 675; 20 C.F.R. § 404.1527(c)(2)-(6).
To reject the uncontroverted opinion of a treating or examining physician, the ALJ must
present clear and convincing reasons. Bayliss v. Barnhart, 427 F.3d 1211, 1216 (9th Cir. 2005).
If a treating or examining doctor’s opinion is contradicted by another doctor’s opinion, it may be
rejected by specific and legitimate reasons. Trevizo, 871 F.3d at 675; Garrison, 759 F.3d at 1012.
To meet this burden, the ALJ must set out a “detailed and thorough summary of the facts and
conflicting clinical evidence, stating his interpretation thereof, and making findings.”
Magallanes v. Bowen, 881 F.2d 747, 751 (9th Cir. 1989). When evaluating conflicting opinions,

an ALJ is not required to accept an opinion that is not supported by clinical findings, or is brief or
conclusory. Bray v. Comm’r Soc. Sec. Admin., 554 F.3d 1219, 1228 (9th Cir. 2009).
\ \ \ \ \

3 For all claims filed on or after March 27, 2017, the regulations set forth in 20 C.F.R. § 404.1520c
(not § 404.1527) govern. The new regulations provide that the Social Security Administration
“will not defer or give any specific evidentiary weight, including controlling weight, to any
medical opinion(s) or prior administrative medical finding(s), including those from your medical
sources.” 20 C.F.R. § 404.1520c. Thus, the new regulations eliminate the term “treating
source,” as well as what is customarily known as the treating source or treating physician rule.
See 20 C.F.R. § 404.1520c. In this case, Plaintiff filed her claim for benefits October 2014, well
before March 27, 2017. See 20 C.F.R. § 404.614 (defining when an application for benefits is
considered filed). Thus, the court analyzes Plaintiff’s claim utilizing § 404.1527 (providing the
rules for evaluating opinion evidence for claims filed prior to March 27, 2017).

Page 13 – OPINION AND ORDER
B. Keith A. White, M.D.
Dr. White was Plaintiff’s primary care physician and treated Plaintiff approximately twenty
times between 2013 and 2018, and he opined multiple times that Plaintiff is disabled. In a March
27, 2017 treatment note, Dr. White observed that Plaintiff continued to suffer from persistent

abdominal pain, accompanied by constipation, diarrhea, and weight loss, and that she is
“completely disabled.” Tr. 806. In a November 21, 2017 medical source statement for physical
impairments, Dr. White opined that Plaintiff is “unfit for any kind of employment.” Tr. 927. In
that statement, Dr. White indicated he had been Plaintiff’s treating physician since 2012, and that
Plaintiff has diagnoses of tic douloureaux, 4 intestinal malabsorption, hypovitaminosis,
malnutrition, excessive weight loss, migraine headaches, COPD, mild chronic nausea, vomiting,
constipation alternating with diarrhea, and major depressive disorder. Tr. 927. Dr. White stated
that Plaintiff’s prognosis was poor for recovery and estimated she would be absent from work
more than twice per month. Tr. 927-28. In that statement, Dr. White did not provide specific
functional limitations, stating that a formal functional work capacity test would be necessary to

assess those limitations. Tr. 927.
In a November 21, 2017 medical source statement for mental impairments, Dr. White
opined that Plaintiff is unable to maintain competitive employment due to her major depressive
disorder. Tr. 932. In the check-the-box form, Dr. White opined that the Plaintiff would be
unable to function in numerous categories: remembering work-like procedures, maintaining
attention, maintaining regular attendance, working with others without being distracted, complete

4 Trigeminal neuralgia is also known as tic douloureux. https://www.mayoclinic.org/diseases-
conditions/trigeminal-neuralgia/symptoms-causes/syc-20353344 (last visited November 21,
2020).

Page 14 – OPINION AND ORDER
a normal workday without distractions from psychological symptoms, working at a consistent
pace, responding appropriately to criticism from supervisors, getting along with co-workers,
handling normal work stresses, handling stress of semiskilled and skilled work. Tr. 931. Dr.
White also opined that Plaintiff would be absent from work due to her major depressive disorder

more than twice per month. Tr. 932.
On January 8, 2018, Dr. White authored a letter in which he opined that Plaintiff “is
unsuitable for substantial gainful activity.” Tr. 1253. Dr. White explained that Plaintiff’s most
limiting condition is her gastroparesis, which results in alternating bouts of constipation and
uncontrollable diarrhea. Tr. 1253. Dr. White explained that this has resulted in a thirty-two-
pound weight loss and vitamin deficiency. Tr. 1253. Dr. White indicated that Plaintiff’s vitamin
deficiency showed malabsorption and malnutrition, which has resulted in muscle wasting and
weakness. Tr. 1253. Dr. White noted that Plaintiff describes uncontrollable diarrhea with up to
fifteen loose stools, which required her to wear a diaper. Tr. 1253. Dr. While explained that
despite his efforts and those of Plaintiff’s gastroenterologist, they have not been able to control her

gastrointestinal issues. Dr. White further explained that Plaintiff suffers from tic douloureux,
which causes severe unilateral facial pain, for which Plaintiff takes oxcarbazepine and gabapentin,
with variable success. Additionally, Dr. White explained that Plaintiff has migraine headaches,
which are poorly controlled and episodically disabling. Tr. 1253. He described that with the
help of the neurologist, Plaintiff has improved. According to Dr. White, Plaintiff’s ability to
perform tasks is severely limited by her bouts of diarrhea that may last for a few days and her
intermittent migraine headaches and tic douloureux. Tr. 1254.
In the decision, the ALJ discussed Dr. White’s opinion that Plaintiff had “poor ability” in
areas of “cognitive and social functioning” and that she would be absent more than twice per

Page 15 – OPINION AND ORDER
month, and that she could not hold any job. Tr. 25, 930-32. The ALJ gave Dr. White’s medical
source statement concerning Plaintiff’s mental health impairments “limited weight,” because it
was inconsistent with other medical evidence and the opinions of examining physicians Thomas
W. L. Potter, Ph.D., and Paul S. Stoltzfus, Psy.D. Tr. 24-25. Because Dr. White’s opinion was

contradicted, the ALJ was required to provide specific and legitimate reasons for discounting it.
The ALJ’s analysis readily satisfies this standard.
The ALJ noted that Dr. White’s Dr. White’s own treatment notes undermined his check-
the-box opinion that Plaintiff was severely limited by her depression. The ALJ explained that
Plaintiff complained of depression for two years, but refused medication and did not undertake
counseling. Tr. 23. The ALJ also noted that after Plaintiff began medication in December 2017,
Dr. White’s treatment notes showed that Plaintiff’s mood improved, and he assessed her
depression as mild to moderate dysthemia. Tr. 23, 1206. As the ALJ correctly observed,
Plaintiff reported continued improvement of her depression in January through March 2018,
through medication. Tr. 1267, 1279. Based on Plaintiff’s positive response to the medication,

the ALJ reasonably could discount Dr. White’s opinion that Plaintiff’s mental health symptoms
totally disabled her. Therefore, the court concludes that the ALJ provided a specific and
legitimate reason, backed by substantial evidence, for discounting Dr. White’s 2017 check-the-
box opinion concerning Plaintiff’s mental health limitations. See Ford, 950 F.3d at 1155 (finding
ALJ properly discounted physician opinion when contained in check-off report that failed to
provide support for limitations).
Next, the ALJ gave Dr. White’s 2017 medical source statement concerning Plaintiff’s
physical limitations “limited weight” because it was inconsistent with the medical evidence of
record. Tr. 25. The ALJ noted that Dr. White declined to provide any functional limitations,

Page 16 – OPINION AND ORDER
noting that Plaintiff would need a formal work capacity assessment, that Plaintiff’s prognosis for
recovery was poor, that Plaintiff has bad days and worse day, and that she would be absent from
work more than two times per month. Tr. 25, 922. Although the ALJ did not provide a detailed
rejection of Dr. White’s November 2017 medical source statement concerning Plaintiff’s physical

limitations, the ALJ did discuss those assessed limitations in conjunction with Dr. White’s 2018
opinion. Lewis v. Apfel, 236 F.3d 503, 513 (9th Cir. 2001) (holding ALJ must discuss and
evaluate evidence supporting decision, but need do so under specific heading).
The ALJ declined to give Dr. White’s 2018 opinion letter “controlling weight,” instead
affording it “moderate weight” because of “errors, exaggerations, and discrepancies” between
Plaintiff’s statements to Dr. White and his opinion. Tr. 25. Dr. White’s opinions concerning
Plaintiff’s physical limitations are contradicted by agency physicians, Drs. Wiggins and Berner;
the testifying medical expert, Dr. Shah; and examining physician, Cory Maughan, D.O. Tr. 41-
52, 99-101, 112-14, 603. Therefore, the ALJ was required to provide specific and legitimate
reasons backed by substantial evidence for discounting Dr. White’s opinions.

The ALJ discounted Dr. White’s opinion of Plaintiff’s physical impairments based on
discrepancies between his opinion and his treatment notes. A conflict between treatment notes
and a treating provider’s opinion may be an adequate reason to discount the opinion. Ghanim,
763 F.3d at 1161. The ALJ detailed that Dr. White’s treatment records do not reflect that Plaintiff
reported fifteen bowel movements per day; Dr. White’s treatment notes instead reflect that Plaintiff
reported at most ten episodes. Tr. 907 (discussing six to ten bowel movements per day). Dr.
White’s notes make no mention of any muscle wasting due to malabsorption syndrome during his
lengthy treatment of Plaintiff. Tr. 25. Although Dr. White’s notes occasionally reflect
weakness, they also uniformly reflect normal gait and that her extremities were normal. Tr. 25,

Page 17 – OPINION AND ORDER
797, 803, 808, 813, 825, 899, 1205, 1212, 1217-18, 1223, 1228-29, 1234, 1270-71, 1276, 1282.
And Dr. White’s opinion that treatment of Plaintiff’s migraines and tic douloureux had variable
success is inconsistent with his treatment notes: as noted above, Dr. White’s treatment notes reflect
that Plaintiff’s migraines and tic douloureux improved on medication. Therefore, upon a careful

review of Dr. White’s voluminous medical records, the court concludes that ALJ’s findings are
supported by substantial evidence in the record, and the ALJ reasonably discounted his opinion on
this basis.
The ALJ also discounted Dr. White’s opinion of because it contains a gastroparesis
diagnosis, which the ALJ found unwarranted following a normal gastric emptying study in 2017.
Again, the ALJ’s finding is supported by substantial evidence in the record. Tr. 841, 843, 864,
907. The ALJ rationally determined, based on the discrepancy between the medical testing and
this opinion, that Dr. White’s opinion was not entitled to full weight. Although Plaintiff suggests
an alternative interpretation of the evidence, the ALJ’s interpretation is reasonable and will not be
disturbed. Ford, 950 F.3d at 1156 (holding that “[t]he court will uphold the ALJ’s conclusion

when the evidence is susceptible to more than one rational interpretation”) (citing Tommasetti, 533
F.3d at 1038). Accordingly, the ALJ’s rationale is a specific and legitimate basis for not giving
Dr. White’s opinion controlling weight.
The court disagrees with Plaintiff’s assertion that the ALJ failed to consider the factors in
20 C.F.R. § 404.1527(c). The ALJ acknowledged and discussed Dr. White’s role as Plaintiff’s
treating provider and that the record contains his treating records dating back to 2015.
Additionally, the ALJ thoroughly and accurately discussed Dr. White’s opinion, and its
supportability and consistency with other record evidence. The ALJ provided reasoning

Page 18 – OPINION AND ORDER
consistent with § 404.1527 for giving Dr. White’s opinion less than controlling weight, and for
crediting the opinions of others. The ALJ did not err in evaluating Dr. White’s opinion.
C. Laura Ouellette, M.D.
Dr. Ouellette, one of Plaintiff’s treating physicians, treated her at least twenty times

between 2011 and 2014. Plaintiff regularly sought treatment for tremor, abdominal pain,
vomiting, and alternating constipation and diarrhea. E.g., Tr. 384, 409, 423, 426, 443. On
November 5, 2013, Dr. Ouellette provided a note for Plaintiff’s employer indicating Plaintiff’s
ongoing illness had worsened, she was unable to return to work, and she required further
evaluation. Tr. 1170. On November 23, 2013, Dr. Ouellette completed paperwork for Plaintiff’s
long-term disability insurance in which she opined that Plaintiff had been unable to perform her
job functions since September 17, 2013, and that she should remain off work for sixty days. Tr.
1172-73. On March 5, 2014, Dr. Ouellette opined that Plaintiff is “completely disabled with
respect to her prior job, and would have difficulty with any kind of gainful employment at this
time.” Tr. 358. That same day, Dr. Ouellette provided a medical source statement for Plaintiff’s

long-term disability insurance carrier listing diagnoses of abdominal pain, emesis, tremor, and
gastroparesis. Tr. 356. Dr. Ouellette opined that Plaintiff had severe limitations and could not
perform minimal, sedentary activity, had limited ability to walk and stand, and could not lift more
than twenty pounds. Tr. 357. Dr. Ouellette also opined that Plaintiff had moderate limitations
in her interpersonal relations because of stress, and that she did not plan to return to work. Tr.
357.
The ALJ gave Dr. Ouellette’s opinion, as provided on the insurance forms, “limited
weight” because the “degree of limitation suggested” was inconsistent with the medical evidence
of record, and because Dr. Ouellette relied on Plaintiff’s subjective symptom reports rather than

Page 19 – OPINION AND ORDER
objective evidence when “identifying diagnoses and functional limitations.” Tr. 26. Dr.
Ouellette’s opinion that Plaintiff was unable to maintain competitive employment was contradicted
by those of Drs. Wiggins, Berner, and Shah. Tr. 3, 41-52, 99-101, 112-14. Thus, the ALJ was
required to provide specific and legitimate reasons backed by substantial evidence for discounting

Dr. Ouellette’s opinion. The ALJ reasoning satisfies this standard.
“A physician’s opinion can be discredited based on contradictions between the opinion and
the physician’s own notes.” Buck v. Berryhill, 869 F.3d 1040, 1050 (9th Cir. 2017) (citing
Bayliss, 427 F.3d at 1216). As the ALJ discussed, a normal gastric emptying study undermined
Dr. Ouellette’s diagnosis of gastroparesis. Tr. 843. Moreover, the ALJ’s reasoning is supported
by substantial evidence when viewed in the context of the whole record. The ALJ thoroughly
discussed Dr. Ouellette’s treatment notes at step two in finding that Plaintiff’s tremor was an
intentional tremor secondary to her habits and anxiety, or perhaps a side effect of medication. Tr.
18. And, the record reveals that neurological testing for her tremor was normal and, as the ALJ
discussed, Plaintiff’s tremor improved with medication. Tr. 18, 585. Although not specifically

addressed under the RFC heading, the ALJ clearly reviewed and considered all of Dr. Ouellette’s
records and found that the severity of Dr. Ouellette’s assessed limitations was not supported by
objective evidence or clinical findings. See Lewis, 236 F.3d at 513 (holding the ALJ is required
to “discuss and evaluate the evidence that supports his or her conclusion; it does not specify that
the ALJ must do so under the heading ‘Findings.’”); Kennedy v. Colvin, 738 F.3d 1172, 1178 (9th
Cir 2013) (same).
Furthermore, as the ALJ accurately indicated, Dr. Ouellette’s assessed limitation that
Plaintiff was unable to perform minimal sedentary activity is not supported by her treatment notes.
A review of Dr. Ouellette’s treatment notes reveals very few limitations other than those associated

Page 20 – OPINION AND ORDER
with Plaintiff’s tremor. Therefore, the court concludes that the ALJ’s evaluation of Dr.
Ouellette’s opinion is backed by substantial evidence, and the incongruity between Dr. Ouellette’s
opinion and the medical record provides a specific and legitimate basis for discounting it.
Tommasetti, 533 F.3d at 1041.

Next, the ALJ found that Dr. Ouellette’s opinion appeared based on Plaintiff’s subjective
complaints, a finding Plaintiff does not challenge. “[A] doctor’s work restrictions based on a
claimant’s subjective statements about symptoms are reasonably discounted when the ALJ finds
the claimant less than fully credible.” Murray v. Comm’r Soc. Sec. Admin., 226 F. Supp. 3d 1122,
1135 (D. Or. 2017); Bray, 554 F.3d at 1228 (9th Cir. 2009); Batson, 359 F.3d at 1195. Because
of the lack of objective medical evidence and clinical findings to support the severity of the
limitations Dr. Ouellette described, the ALJ reasonably could have inferred the opinion was
premised on Plaintiff’s subjective complaints. Crowley v. Comm’r Soc. Sec. Admin., No. CV-18-
0561-TUC-BGM, 2020 WL 2782569 (D. Ariz. May 29, 2020) (stating that ALJ could discount
physician’s opinion premised on properly discounted subjective complaints). For all these

reasons, the ALJ has provided specific and legitimate reasons for discounting Dr. Ouellette’s
opinion.
Contrary to Plaintiff’s contention, the ALJ considered the factors in 20 C.F.R. §
404.1527(c), including that Dr. Ouellette was Plaintiff’s treating physician and the consistency and
supportability of her opinion with the record as a whole. Therefore, the court concludes that the
ALJ did not err in evaluating Dr. Ouellette’s opinion.
D. Shelly Svoboda M.D., Julie Solomon, FNP, Mary Placek, M.D.
Dr. Svoboda is a neurologist that treated Plaintiff two times in 2014 for her tremor and two
times for her migraines in 2016. Tr. 543, 548, 753, 757. On April 18, 2014. Dr. Svoboda opined

Page 21 – OPINION AND ORDER
that Plaintiff could not continue working because she was unable to “coordinate her hands to
manage keyboarding, fine movements, [or] carrying/lifting.” Tr. 543. Dr. Svoboda completed a
medical source statement for Plaintiff’s long-term disability, dated April 18, 2014, in which she
opined that Plaintiff was “unable to work.” Tr. 551. Ms. Solomon is a nurse practitioner

working with Dr. Svoboda and treated Plaintiff two times. Tr. 540, 544. In a February 18, 2014
medical statement pertaining to Plaintiff’s long-term disability, Ms. Solomon indicated that
Plaintiff was diagnosed with chorea, and that she had symptoms of clumsiness, tremor and
involuntary movements. Tr. 547. Ms. Solomon indicated that she had been treating Plaintiff for
two months, that medications had not yet been successful, and that she recommended Plaintiff stop
working. Tr. 547. In a June 2, 2014 treatment note, Dr. Solomon observed that Plaintiff
continues to have a head tremor, tongue tremor, resting kick tremor in her left leg, and resting
tremor in her hands bilaterally. Tr. 541.
Dr. Placek is an examining physician that treated Plaintiff on November 11, 2014. Tr.
683. Dr. Placek’s treatment note indicates that Plaintiff was following up on her medical care for

a functional tremor and that she needed disability paperwork completed. Tr. 683. Dr. Placek
indicated that Plaintiff reported improvement with sleep and tremor symptoms on amitriptyline.
Tr. 683. Plaintiff reported to Dr. Placek at that time that she was unable to perform her duties for
manual labor as a CDL driver and mechanic. Tr. 683. Dr. Placek observed that Plaintiff’s
functional tremor waxed and waned throughout their discussion. Tr. 683.
On December 22, 2014, Dr. Placek completed a form for Plantiff’s long-term disability
carrier, and indicated that Dr. Placek was “unable to say with certainty” the extent of Plaintiff’s
disability, and opined that Plaintiff was able to perform seven-to-eight hours of light activity
(lifting and carrying ten pounds frequently and twenty pounds occasionally) and one-to-two hours

Page 22 – OPINION AND ORDER
of medium activity (lifting and carrying twenty-five pounds frequently and fifty pounds
occasionally). Tr. 682. Additionally, Dr. Placek stated that Plaintiff was able to engage in only
limited stress situations and engage in limited interpersonal relations. Tr. 682.
In the decision, the ALJ discussed the opinions of Drs. Svoboda, Placek, and Ms. Solomon

in conjunction with those of Dr. Ouellette as they all were provided for Plaintiff’s long-term
disability carrier and gave the opinions “limited weight.” Tr. 26. Because the opinions were
contradicted, the ALJ was required to provide a specific and legitimate rationale for discounting
them. The ALJ’s analysis meets this standard.
The ALJ found the degree of limitation in Dr. Svoboda and Solomon’s opinions is
inconsistent with the medical evidence of record and referenced earlier discussions of the evidence.
An ALJ may reject a treating or examining physician’s opinion when it “is not well-supported” or
“is inconsistent with other substantial evidence in the record.” Orn, 495 F.3d at 631; Batson, 359
F.3d at 1195 (“[A]n ALJ may discredit treating physicians’ opinions that are conclusory, brief, and
unsupported by the record as a whole, or by objective medical findings”) (internal citation

omitted).
As noted above, the ALJ thoroughly discussed the Plaintiff’s tremor at step two and found
it to be nonsevere, and those findings are backed by substantial evidence and are a reasonable
interpretation of the record. The ALJ observed that Dr. Svoboda and Ms. Solomon did not include
any functional limitations in their early 2014 opinions. “An ALJ is not required to take medical
opinions at face value, but may take into account the quality of the explanation when determining
how much weight to give a medical opinion.” Ford, 950 F.3d at 1155. As the Ninth Circuit
recently observed in Ford, an ALJ may not reject an opinion simply because it is expressed as a
check-the-box questionnaire, but the ALJ may reject those opinions that fail to provide an

Page 23 – OPINION AND ORDER
explanation for their conclusions. Id. (citing Popa v. Berryhill, 872 F.3d 901, 907 (9th Cir.
2017)). Here, as the ALJ correctly noted, little objective support or explanation existed for Dr.
Svoboda’s and Ms. Solomon’s respective long-term disability insurance opinions. As the ALJ
discussed, by December 2014, Dr. Placek noted that Plaintiff’s tremor was improved on

medication and that she was “uncertain” of the degree of her disability and indicated that Plaintiff
could perform at least light work with moderate cognitive and social limitations. Tr. 26, 682-83.
As the ALJ found, Plaintiff’s tremor continued to improve on medication into 2016, such that it
was noted to be “minimally bothersome.” Tr. 18. After a careful review, the court concludes
that the ALJ provided specific and legitimate reasons backed by substantial evidence for
discounting the medical source statements of examining physicians Drs. Svoboda and Placek, and
for Ms. Solomon’s opinion.
E. Paul S. Stoltzfus, Psy. D.
On September 19, 2017, Dr. Stoltzfus performed a neurocognitive evaluation of Plaintiff.
Tr. 884. Dr. Stoltzfus conducted a clinical interview; reviewed documents; conducted a mental

status examination; and performed objective testing for intellectual functioning, executive
function, memory, learning, and speech and language functioning. Tr. 884-91. Dr. Stoltzfus
noted that during testing, Plaintiff experienced headaches, and that “the response to headaches of
weeping and excessive apology during the memory portion of the test compromised her ability to
function well, and clearly compromised test scores.” Tr. 888. Aside from invalid memory
scores, measures of intellect, reasoning, comprehension, and reading were average. Tr. 891. Dr.
Stoltzfus diagnosed major depressive disorder, cerebella tremor, peripheral neuropathy,
malabsorption, cholecystectomy, loss of weight, episodic gastro paresis, chronic and severe
headaches, and fatigue with insomnia. Tr. 891. Dr. Stoltzfus opined that Plaintiff had no

Page 24 – OPINION AND ORDER
limitations in her ability to understand, remember, and carry out simple instructions, and was
moderately limited in her ability to understand, remember and carry out complex instructions. Tr.
894. Dr. Stoltzfus opined that “[w]hen free from headaches, [Plaintiff] has no cognitive difficulty.
During episode headaches, occurring at random, multiple times each day, she is unable to perform

complex tasks. Tr. 894. Dr. Stoltzfus also opined that Plaintiff is markedly limited in her ability
to interact with the public, with supervisors, with co-workers, and respond appropriately to usual
work situations due to her “severe incapacitating headaches” occurring multiple times each day
“which compromises consistent daily functioning.” Tr. 895.
In the decision, the ALJ accurately summarized Dr. Stoltzfus’s opinion and gave his
opinion “some weight.” Tr. 24. The ALJ credited Dr. Stoltzfus’s diagnosis of major depressive
disorder because it was consistent with other medical evidence, including that from her primary
care provider. However, the ALJ discounted his Dr. Stoltzfus’s opinion that Plaintiff has “marked
limitations in all areas of social functioning.” Tr. 24. Because the opinion was contradicted by
the opinion of examining physician Thomas W.L. Potter, Ph.D., the ALJ was required to provide

specific and legitimate reasons for discounting Dr. Stoltzfus’s opinion. Ford, 950 F.3d at 1154;
Bayliss, 427 F.3d at 1216. The ALJ has provided two specific and legitimate reasons.
First, the ALJ found that Dr. Stoltfus’s opinion premised on Plaintiff’s “recitation of the
impact of her headaches on her ability to handle environmental factors and interpersonal contact.”
Tr. 24. An ALJ may reject the opinion of an examining physician where it is primarily based on
a claimant’s properly discounted subjective complaints. Tommasetti, 533 F.3d at 1041 (finding
ALJ may reject physician’s opinion based primarily on claimant’s self-reports that have been
properly discounted). As the court discussed above, the ALJ provided specific, clear, and
convincing reasons for discounting Plaintiff’s testimony, including the severity of her migraine

Page 25 – OPINION AND ORDER
headaches. At the hearing, Plaintiff testified that she stopped taking any medication for migraines
because none had been effective. Tr. 80. However, as the ALJ detailed, Plaintiff inconsistently
reported to providers that her migraine headaches and tic douloureux substantially diminished and
were minimally bothersome after being prescribed gabapentin and oxcarbazepine. Tr. 753, 756,

806-07, 835, 1267, 1279. The ALJ’s findings are fully supported by substantial evidence in the
record. Based on this inconsistency, the ALJ could reasonably discount Dr. Stoltzfus’s opinion.
Second, the ALJ found that Plaintiff’s reports of the severity of her migraine headaches
were inconsistent with medical evidence. Inconsistency with objective medical evidence is a
specific and legitimate reason to discount a physician’s opinion. Batson, 359 F.3d at 1196
(finding ALJ may discredit treating physicians’ opinions that are unsupported by objective medical
findings or the record as a whole). The ALJ explained that shortly after Dr. Stoltzfus’s evaluation,
Plaintiff reported to her physician that her migraine severity was mild, that she was having three
to four visual auras per day, and that she did not report any interference with her functioning due
to the auras. Tr. 24. As the ALJ accurately noted, in December 2017, Plaintiff reported to Dr.

White that her migraine headaches were “mild” and she denied any memory loss. Tr. 1202.
Indeed, Dr. White’s treatment note reflects that Plaintiff denied having “huge headaches,” and
instead was having “background headaches” that Dr. White described were “not intractable.” Tr.
1202. And, in January 2018, Plaintiff described that she was having two-to-five auras a day and
a dull headache, not a migraine. Tr. 1279. In October 2017, Plaintiff reported to Dr. Davidson
that she was experiencing persistent auras that were not intractable. Tr. 900. In 2018, Dr.
Davidson recommended Depakote for any breakthrough migraines, though the record does not
reveal whether Plaintiff was prescribed or took that medication. Tr. 1284. Therefore, the ALJ

Page 26 – OPINION AND ORDER
reasonably could conclude that the medical record is devoid of any indication that the auras
described by Plaintiff markedly interfered with all aspects of her social functioning. Tr. 895.
The ALJ’s findings are wholly supported by substantial evidence in the record. The ALJ
reasonably discounted Dr. Stoltzfus’s opinion based on its inconsistency with other evidence, and

this rationale readily provides a specific and legitimate basis for discounting it. Again, even if the
court were to conclude differently, the ALJ’s interpretation is rational and thus must be upheld.
Ford, 950 F.3d at 1154.
F. Cory Maughan, D.O.
On May 2, 2015, Dr. Maughan completed a neurological examination of Plaintiff. Tr.
603. Plaintiff reported to Dr. Maughan that she has a tremor disorder and experiences migraine
headaches, and they are helped with medication and rest. Tr. 603. Plaintiff reported that she also
suffers from severe episodes of nausea and vomiting, and wears adult diapers due to frequent bowel
movements. Tr. 603. Dr. Maughan’s evaluation reflects that Plaintiff reported she can perform
all household chores and personal hygiene care. Tr. 604. On examination, Dr. Maughan noted

that Plaintiff transferred easily from the chair to the examination table, sat comfortably, removed
her shoes without difficulty, and walked easily to the examination room. Tr. 604. Dr. Maughan
noted no abnormalities with Plaintiff’s gait, tandem walk, toe-heel walk, hopping, squatting,
Romberg, rapid alternating of the hands, or finger-to-nose testing. Tr. 605. Dr. Maughan found
that Plaintiff was able to grip and hold objects securely, could grasp and manipulate large and
small objects with the first three digits, and found no diminution of function with repetition, and
that sensation to touch and pin were normal in all fingers. Tr. 606. Based on his examination,
Dr. Maughan opined that Plaintiff had no exertional limitations or postural limitations, and opined
that she is limited to occasional handling, fingering, and feeling based on her ongoing tremors, and

Page 27 – OPINION AND ORDER
that she should not work around chemicals, but otherwise had no environmental limitations. Tr.
607.
In the decision, the ALJ gave “some weight” to Dr. Maughan’s opinion of Plaintiff’s
manipulative limitations. Tr. 24. Dr. Maughan’s opinion was contradicted by those of Drs.

Wiggins and Berner, and the ALJ was required to provide specific and legitimates reasons for
discounting his opinion. The ALJ did so here.
First, the ALJ found that Dr. Maughan’s opinion regarding Plaintiff’s tremor unsupported
by the medical evidence in the record. As noted previously, the ALJ thoroughly discussed
Plaintiff’s allegations of tremor and their improvement with medication, and those findings are
fully supported by substantial evidence. As the ALJ accurately noted, Plaintiff reported to Dr.
Svoboda that her tremors had diminished substantially on medication, and again reported to Dr.
White that her tremor was much improved. Tr. 753, 774. Therefore, the ALJ has provided a
specific and legitimate basis for partially discounting Dr. Maughan’s opinion. Batson, 359 F.3d
at 1195.

Second, the ALJ found that Dr. Maughan’s manipulative limitations were based on
Plaintiff’s subjective reports. An ALJ may discount an examining physician’s limitations that are
premised on a claimant’s properly discounted subjective complaints. Burrell v. Colvin, 775 F.3d
1133, 1141 (9th Cir. 2014). This is supported by substantial evidence in the record. Dr.
Maughan’s gross and fine motors skills testing results were normal and he based his opinion solely
on Plaintiff’s subjective reports, a finding largely unchallenged by Plaintiff. Tr. 607.
Accordingly, the ALJ has provided specific and legitimate reasons for discounting Dr. Maughan’s
opinion.

Page 28 – OPINION AND ORDER
Plaintiff argues that the ALJ erred by failing to consider a closed period of disability with
respect to her tremors. Plaintiff contends that even if the ALJ properly discounted Dr. Maughan’s
opinion because her tremors improved, the ALJ should have considered whether she was disabled
prior to the date of Dr. Maughan’s opinion. (Pl.’s Br. at 25-26.) The court disagrees. As

discussed above, the court has concluded that the ALJ did not err in evaluating the opinions of
Drs. Ouellette and Svoboda, or of Ms. Solomon, or in evaluating Plaintiff’s subjective symptoms.
Because the ALJ’s non-disability decision is free of harmful legal error and supported by
substantial evidence, the ALJ did not err in failing to consider a closed period of disability. Yang
v. Comm’r Soc. Sec. Admin., Case No. 1:19-cv-00890-SAB, 2020 WL 5816575, at *24 (E.D. Cal.
Sept. 30, 2020) (holding ALJ did not err in failing to consider closed period of disability and
collecting cases holding same).
In summary, the court concludes that the ALJ did not err in evaluating the medical
evidence. The ALJ, as final arbiter of resolving conflicts in the record, carefully reviewed the
voluminous and challenging medical record, resolved conflicts in the medical record consistent

with governing rules, and meticulously explained the rationale in a lengthy, well-reasoned
decision. Again, even if the court were to conclude otherwise, the ALJ’s interpretation of the
evidence is rational, supported by substantial evidence in the record as a whole, and therefore must
be upheld. Garrison, 759 F.3d at 1010 (providing that where the evidence can reasonably support
either affirming or reversing a decision, the court may not substitute it judgment for that of the
ALJ).
\ \ \ \ \
III. The ALJ Did Not Err in Failing to Include Limitations for Plaintiff’s Migraines in the RFC

Page 29 – OPINION AND ORDER
Plaintiff argues that the ALJ erred by failing to include any limitations in the RFC to
account for her migraine headaches. According to Plaintiff, the ALJ should have credited her
testimony, and the opinions of Drs. Stoltzfus and White, who opined that Plaintiff suffered
limitations that would preclude competitive employment, if credited. As made clear in this

Opinion and Order, the ALJ did not err in rejecting Plaintiff’s subjective symptom testimony or
the medical evidence concerning her migraines. Therefore, the RFC properly includes only those
limitations credited by the ALJ and supported by substantial evidence in the record. Stubbs-
Danielson v. Astrue, 539 F.3d 1169, 1174 (9th Cir. 2008) (providing that ALJ is responsible for
resolving conflicts in the medical testimony and translating claimant’s impairments into functional
limitations); Osenbrock v. Apfel, 240 F.3d 1157, 1163-65 (9th Cir. 2001) (holding ALJ did not err
in excluding depression from RFC and hypothetical question posed to the vocational expert where
ALJ properly discounted claimant’s subjective allegations). The ALJ did not err in failing to
include in the RFC additional limitations for Plaintiff’s migraines.
Conclusion

Based on the foregoing, the Commissioner’s final decision is AFFIRMED. This action is
DISMISSED.
IT IS SO ORDERED.

DATED this 23rd day of November, 2020.
_____________________________
JOHN V. ACOSTA
United States Magistrate Judge

Page 30 – OPINION AND ORDER

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10392637. Public record. Not legal advice.