Burgess v. Commissioner Social Security Administration

UNITED STATES DISTRICT COURT

DISTRICT OF OREGON

PORTLAND DIVISION

JAMES B., Ca se No. 3:20-cv-01158-AC

Plaintiff, OPINION AND ORDER

v.

COMMISSIONER SOCIAL SECURITY

ADMINISTRATION,

Defendant.

_____________________________________

ACOSTA, Magistrate Judge:

Plaintiff James B.1 (“Plaintiff”) seeks judicial review of the final decision of the

Commissioner of Social Security denying his application for Disability Insurance Benefits (“DIB”)

under Title II of the Social Security Act (“Act”), 42 U.S.C. §§ 1381-1383f. This court has

jurisdiction pursuant to 42 U.S.C. § 1383(c)(3). All parties have consented to allow a magistrate

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.

Page 1 – OPINION AND ORDER

judge to enter final orders and judgment in this case in accordance with 28 U.S.C. § 636(c). For

the reasons set forth below, the Commissioner’s final decision is AFFIRMED.

Procedural Background

Plaintiff protectively filed for DIB on November 14, 2017, alleging disability beginning

January 1, 2009, due to fibromyalgia, back pain, depression, anxiety, and attention-deficit disorder

(“ADD”). Tr. Soc. Sec. Admin. R. (“Tr.”) at 157–58, 180, ECF No. 11. Plaintiff amended the

alleged onset date to January 16, 2013. Tr. 13, 43. Plaintiff’s date last insured (“DLI”) for

benefits was December 31, 2014. Tr. 168. His application was initially denied on March 27,

2018, and upon reconsideration on July 18, 2018. Tr. 94, 100. Plaintiff requested a hearing

before an Administrative Law Judge (“ALJ”), which took place on July 9, 2019. Tr. 28–47.

After receiving testimony from Plaintiff and a vocational expert (“VE”), the ALJ issued a decision

on August 20, 2019, finding Plaintiff not disabled within the meaning of the Act. Tr. 10–27. The

Appeals Council denied Plaintiff’s request for review on May 13, 2020. Tr. 1–3. Therefore, the

ALJ’s decision is the Commissioner’s final decision and subject to review by this court. 20 C.F.R.

§ 416.1481.

Plaintiff was born on September 21, 1969, was thirty-nine on his alleged onset date, and

forty-five on the date of the ALJ’s decision. Tr. 66. Plaintiff has at least a high school education

and has past relevant work as a bus driver. Tr. 181–82.

The ALJ’s Decision

At step one, the ALJ determined that Plaintiff has not engaged in substantial gainful

employment since January 16, 2013, the alleged onset date. Tr. 16. At step two, the ALJ

determined that Plaintiff has the following severe impairments: fibromyalgia, and status post

discectomy and fusion of the cervical spine. Tr. 16. At step three, the ALJ determined that

Page 2 – OPINION AND ORDER

Plaintiff’s severe impairments, singly or in combination, do not meet or equal the listing criteria

of 20 CFR Part 404, Subpart P, Appendix 1 (20 CFR 404.1520(d), 404.1525, and 404.1526) and

the criteria of listings 1.04, 1.00(B)(2)(b), and 14.06. Tr. 18.

The ALJ determined that Plaintiff has the residual functional capacity (“RFC”) to perform

light work as defined in 20 CFR 404.1567(b) except: Plaintiff could lift and carry twenty pounds

occasionally and ten pounds frequently; Plaintiff could occasionally climb ramps and stairs but no

other climbing; Plaintiff could occasionally balance, stoop, kneel, crouch, and crawl; and the

Plaintiff could occasionally do overhead work above the shoulders. Tr. 18. At step four, the ALJ

determined that Plaintiff was unable to perform past relevant work. Tr. 21. At step five, the ALJ

found that considering Plaintiff’s age, education, work experience, and RFC, jobs exist in

significant numbers in the national economy that Plaintiff can perform, including such relevant

occupations as assembler, and office helper. Tr. 22–23. Accordingly, the ALJ found that

Plaintiff was not disabled under the Act and denied his application for disability benefits. Tr. 23.

Issues for Review

Plaintiff asserts the ALJ made the following errors: (1) improperly rejected Plaintiff’s

subjective symptom testimony; (2) improperly rejected the opinion of Plaintiff’s treating doctor;

and (3) the ALJ’s step five findings are unsupported by substantial evidence. (Pl.’s Br., ECF No.

12, at 2.) The Commissioner argues the ALJ’s decision is supported by substantial evidence and

is free of legal error. (Def.’s Br., ECF No. 16, at 2.)

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

Page 3 – OPINION AND ORDER

“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

When a claimant has medically documented impairments that could reasonably be

expected to produce some degree of the symptoms complained of, and the record contains no

affirmative evidence of malingering, “the ALJ can reject the claimant’s testimony about the

severity of . . . symptoms only by offering specific, clear and convincing reasons for doing so.”

Smolen v. Chater, 80 F.3d 1273, 1281 (9th Cir. 1996) (citation omitted). A general assertion that

the claimant is not credible is insufficient; the ALJ must “state which . . . testimony is not credible

and what evidence suggests the complaints are not credible.” Dodrill v. Shalala, 12 F.3d 915,

918 (9th Cir. 1993). The proffered 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) (internal citation omitted). If the “ALJ’s credibility

Page 4 – OPINION AND ORDER

finding is supported by substantial evidence in the record, [the court] may not engage in second-

guessing.” Thomas v. Barnhart, 278 F.3d 947, 959 (9th Cir. 2002) (citation omitted).

Effective March 28, 2016, the Commissioner superseded Social Security Ruling (“SSR”)

96-7p, governing the assessment of a claimant’s “credibility,” and replaced it with SSR 16-3p.

See SSR 16-3p, available at 2016 WL 1119029. SSR 16-3p eliminates the reference to

“credibility,” clarifies that “subjective symptom evaluation is not an examination of an individual’s

character,” and requires the ALJ to consider all the evidence in an individual’s record when

evaluating the intensity and persistence of symptoms. Id. at *1–2. The ALJ must examine “the

entire case record, including the objective medical evidence; an individual’s statements about the

intensity, persistence, and limiting effects of symptoms; statements and other information provided

by medical sources and other persons; and any other relevant evidence in the individual’s case

record.” Id. at *4.

B. Analysis

Here, the ALJ found Plaintiff’s “medically determinable impairments could reasonably be

expected to cause some of the alleged symptoms” and did not identify evidence of malingering.

Tr. 19. However, the ALJ concluded 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 for the reasons explained in this decision.” Tr. 19. In particular, the

ALJ cited the medical record and other evidence to support the decision. Plaintiff argues the ALJ

failed to identify clear and convincing reasons for discounting his subjective symptom testimony.

(Pl.’s Br. at 12–16.) The court disagrees.

/ / / / /

/ / / / /

Page 5 – OPINION AND ORDER

1. Objective Medical Evidence

“An ALJ does not provide specific, clear, and convincing reasons for rejecting a claimant’s

testimony by simply reciting the medical evidence in support of his or his residual functional

capacity determination.” Brown-Hunter v. Colvin, 806 F. 3d 487, 489 (9th Cir. 2015). Instead,

“the ALJ must specifically identify the testimony she or he finds not to be credible and must

explain what evidence undermines the testimony.” Holohan v. Massanari, 246 F.3d 1195, 1208

(9th Cir. 2001); see also Orteza v. Shalala, 50 F.3d 748, 750 (9th Cir. 1995) (holding the reasons

proffered must be “sufficiently specific to permit the reviewing court to conclude that the ALJ did

not arbitrarily discount the claimant’s testimony.”). Additionally, although lack of supporting

medical evidence cannot form the sole basis for discounting subjective pain testimony, it is a factor

the ALJ can consider. See Burch v. Barnhart, 400 F.3d 676, 681 (9th Cir. 2005).

In the decision, the ALJ notes Plaintiff’s complaints of neck pain and fibromyalgia, adding

that Plaintiff testified he continues to experience pain in his neck despite surgery and that pain

limits his “movement to the left” and pain radiates down his right arm, shoulder, lower back, and

right leg. Tr. 19. The ALJ also notes Plaintiff occasionally experiences tingling and numbness

in the right arm and he “sometimes has difficulty lifting with the right hand and drops things.”

Tr. 19. Furthermore, the ALJ notes Plaintiff testified he can only sit or stand for brief periods and

stress triggers his fibromyalgia. Tr. 19. Finally, the ALJ notes Plaintiff testified physical therapy

was “helpful” and his primary care physician prescribes pain medication. Tr. 19.

After careful consideration of the evidence, the ALJ determined “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. To support that finding, the ALJ cited extensively to the

Page 6 – OPINION AND ORDER

medical record. With respect to Plaintiff’s alleged fibromyalgia, the ALJ noted Plaintiff’s

treatment was conservative. Tr. 19. The ALJ further observed:

In September of 2013 and February of 2014, the claimant presented to the

emergency department complaining of abdominal pain and pain in his left shoulder,

respectively[]. Emergency providers noted his pain, prescribed medication, and

discharged him home[]. Notably, in August of 2014, the claimant’s primary care

physician’s treatment notes reflected that he was previously on several medications,

including pain medication, but is “off all these now and feeling pretty good”[]. In

October of 2014 he reported that his pain was a little worse due to the weather

change, but that he continued to exercise, walk dogs, and take breaks[]. His provider

continued to prescribe medication[]. Treatment notes reflected both positive and

negative findings, including that the claimant had decent range of motion of his left

shoulder but with tenderness over the left trapezius area, and walked with a limp,

but no reference to using an assistive device. Despite a lack of specialized

treatment, and periods with no medication, the record does not reflect exacerbation

of the claimant’s fibromyalgia required inpatient hospitalization or ongoing

treatment from the emergency department.

Tr. 19–20 (citing Tr. 328–29, 331, 433, 424–25).

With respect to Plaintiff’s alleged cervical spine impairment, the ALJ found the physical

examination findings did not support the Plaintiff’s alleged level of limitation. Specifically, the

ALJ stated:

In August of 2014, the claimant’s provider noted that he hasda [sic] long history of

chronic pain and fatigue, secondary to surgery of the cervical spine for bone spurs

and bulging discs[]. As mentioned above, the claimant was prescribed medication

from his primary care physician for his pain, though the record reflected him not

always taking medication as prescribed[]. Treatment notes reflected both positive

and negative findings, including that the claimant had decent range of motion of his

left shoulder but with tenderness over the left trapezius area, and walked with a

limp, but no reference to using an assistive device. Despite a lack of specialized

treatment, and periods with no medication, the record does not reflect exacerbation

of the claimant’s cervical spine that has required inpatient hospitalization or

ongoing treatment from the emergency department.

Tr. 20 (citing Tr. 515, 433). The ALJ noted Plaintiff’s treatment of fibromyalgia, including

medication prescribed by his primary care physician, coupled with no treatment from a specialist,

was conservative and the record did not reflect any provider recommending aggressive treatment

Page 7 – OPINION AND ORDER

or additional surgery for Plaintiff’s cervical pain, which is reflected in the limitations the ALJ set

forth in Plaintiff’s RFC. Tr. 18. Therefore, the court concludes the ALJ’s first rationale provides

a specific, clear, and convincing reason for discounting Plaintiff’s subjective symptom testimony.

2. Other Evidence

“Other evidence” includes: the claimant’s hearing testimony and any other information the

claimant provides regarding symptoms at any step of the administrative process. 20 C.F.R. §§

404.1529(c)(1)-(3), 416.929(c)(1)-(3); SSR 16-3p, at *6-9. “Other evidence” factors are

identified in the regulations as a single list. The list includes three primary domains: claimant’s

activities of daily living; claimant’s reported descriptions of symptoms; and claimant’s treatment

history. 20 C.F.R. §§ 404.1529(c)(3)(i)-(vii), 416.929(c)(3)(i)-(vii).

a. Activities of Daily Living

An ALJ may invoke activities of daily living in the context of discrediting subjective

symptom testimony to (1) illustrate a contradiction in previous testimony or (2) demonstrate that

the activities meet the threshold for transferable work skills. Orn v. Astrue, 495 F.3d 625, 639

(9th Cir. 2007).

The ALJ noted Plaintiff’s extensive descriptions about his symptoms and how they affected

his daily activities, explaining he continues to experience pain in his neck despite surgery and that

pain limits his “movement to the left” and pain radiates down his right arm, shoulder, lower back,

and right leg. Tr. 19. The ALJ also notes Plaintiff occasionally experiences tingling and

numbness in the right arm and he “sometimes has difficulty lifting with the right hand and drops

things,” and stress triggers his fibromyalgia. Tr. 19. Furthermore, the ALJ noted Plaintiff

testified he can “only sit or stand for brief periods, can walk for twenty minutes, and can lift a half-

gallon of milk.” Tr. 19. The ALJ contrasted Plaintiff’s complaints with his report “that his pain

Page 8 – OPINION AND ORDER

was a little worse due to the weather change, but that he continued to exercise, walk dogs, and take

breaks.” Tr. 19 (citing Tr. 424).

The ALJ reasonably used Plaintiff’s activities of daily living to illustrate contradictions in

his testimony and thus reasonably rejected Plaintiff’s symptom testimony on this basis. See Orn,

495 F.3d at 639. Contradictory statements are a clear and convincing reason to reject symptom

testimony. Bruton v. Massanari, 268 F.3d 824, 828 (9th Cir. 2001). In sum, the ALJ’s

interpretation was reasonable and the ALJ made the requisite specific findings to reject Plaintiff’s

subjective symptom testimony.

Furthermore, the ALJ’s reasoning is supported by substantial evidence in the record. See

Tr. 36 (When asked if physical therapy was helpful, Plaintiff replied: “It does help. I actually

do—my first physical therapist when I first got diagnosed, he had a bunch of exercises for me

which I do and I also try to do some—I have been known to do some Tai Chi on occasion.”); Tr.

36 (When asked if physical therapy and Tai Chi hurts or makes pain worse, Plaintiff replied: “No.

As long as I do it slow motion where it gets done, I don’t believe.”); Tr. 388 (Treating physician

Dr. Bryden noted Plaintiff “tries to do Tai Chi daily btu [sic] doesnt [sic] always get to it.); Tr. 39

(Plaintiff stated, “I have been known to be able to sit and watch a movie, but I usually try to do up

and down movements all day.”); Tr. 39 (Plaintiff stated after twenty minutes of walking he is a

“[l]ittle fatigued,” and sometimes he is unable to “get through it and [has] to stop somewhere and

finish it up.”); Tr. 41 (Plaintiff stated his pain is “between three and five” on a pain scale of one to

ten, ten indicating the worst pain. Furthermore, Plaintiff stated “I think I have probably more bad

days than good,” but stated “at least four out of seven days” are worse than others.); Tr. 433

(Treating physician Dr. Bryden notes Plaintiff “was on several rx meds including [sic] gabapentin,

zoloft, zanaflex, tramadol, vitamins and testosterone but off all these now and feeling pretty godd

Page 9 – OPINION AND ORDER

[sic].”); Tr. 515 (Treating physician Dr. Bryden notes Plaintiff “no longer on pain meds and has

learned to cope with his pain which is constantly at a level 3-4/10.”). Because the ALJ’s findings

are supported, they must be upheld. See Batson v. Comm’r of Soc. Sec. Admin., 359 F.3d 1190,

1193 (9th Cir. 2004) (holding if evidence exists to support more than one rational interpretation,

the court is bound to uphold the ALJ’s findings).

III. The ALJ Did Not Err in Evaluating Medical Evidence

A. Standards – Medical Opinions

Plaintiff filed his application for benefits on November 14, 2017. For claims filed on or

after March 27, 2017, Federal Regulation 20 C.F.R. § 404.1520c governs how an ALJ must

evaluate medical opinion evidence under Title II and 20 C.F.R. § 416.920c governs under Title

XVI. Revisions to Rules Regarding the Evaluation of Medical Evidence (Revisions to Rules), 82

Fed. Reg. 5844, available at 2017 WL 168819 (Jan. 18, 2017).

Under these new regulations, ALJs no longer “weigh” medical opinions, but rather

determine which are most “persuasive.” 20 C.F.R. §§ 404.1520c(a)-(b), 416.920c(a)-(b). To

that end, controlling weight is no longer given to any medical opinion. Revisions to Rules, 82

Fed. Reg. at 5867-68; see also 20 C.F.R. §§ 404.1520c(a), 416.920c(a). Instead, the

Commissioner evaluates the persuasiveness of all medical opinions based on (1) supportability;

(2) consistency; (3) relationship with the claimant; (4) specialization; and (5) other factors, such

as “evidence showing a medical source has familiarity with the other evidence in the claim or an

understanding of our disability program’s policies and evidentiary requirements.” 20 C.F.R. §§

404.1520c(a), (c)(1)-(5), 416.920c(a), (c)(1)-(5). The factors of “supportability” and

“consistency” are considered to be “the most important factors” in the evaluation process. 20

C.F.R. §§ 404.1520c(c), 416.920c(c). The new regulations require an ALJ to articulate how

Page 10 – OPINION AND ORDER

persuasive the ALJ finds the medical opinions and to explain how the ALJ considered the

supportability and consistency factors. 20 C.F.R. §§ 404.1520c(a), (b), 416.920c(a), (b); see

Tyrone W. v. Saul, No. 3:19-CV-01719-IM, 2020 WL 6363839, at *7 (D. Or. Oct. 28, 2020).

“The ALJ may but is not required to explain how other factors were considered, as

appropriate, including relationship with the claimant (length, purpose, and extent of treatment

relationship; frequency of examination); whether there is an examining relationship;

specialization; and other factors, such as familiarity with other evidence in the claim file or

understanding of the Social Security disability program’s policies and evidentiary requirements.”

Linda F. v. Comm’r Soc. Sec. Admin., No. C20-5076-MAT, 2020 WL 6544628, at *2 (W.D. Wash.

Nov. 6, 2020). However, ALJs are required to explain “how they considered other secondary

medical factors [if] they find that two or more medical opinions about the same issue are equally

supported and consistent with the record but not identical.” Tyrone, 2020 WL 6363839, at *6

(citing 20 C.F.R. §§ 404.1520c(b)(2) and 404.1520c(b)(3)).

Furthermore, the court must continue to consider whether the ALJ’s decision is supported

by substantial evidence. See Revisions to Rules, 82 Fed. Reg. at 5852 (“Courts reviewing claims

under our current rules have focused more on whether we sufficiently articulated the weight we

gave treating source opinions, rather than on whether substantial evidence supports our final

decision.”); see also 42 U.S.C. § 405(g).

B. Analysis

Plaintiff argues the ALJ erred in evaluating the opinion of treating physician Leslie Bryden,

M.D. (Pl.’s Br. at 4–12.) Plaintiff argues the opinion of Dr. Bryden should be credited as true.

The court disagrees.

Page 11 – OPINION AND ORDER

In a questionnaire dated July 18, 2019, Dr. Bryden explained that she has been Plaintiff’s

primary care provider since August 2014, and his medical conditions include osteoarthritis of the

cervical spine, fibromyalgia, obstructive sleep apnea, and depression with anxiety. Tr. 805. Dr.

Bryden noted that Plaintiff’s primary symptoms include chronic fatigue and pain especially in the

neck and arms, and mild depression with anxiety. Tr. 805. Dr. Bryden opined Plaintiff can

occasionally lift and/or carry less than ten pounds but cannot frequently lift and/or carry any

weight, and Plaintiff can stand and/or walk two hours in an eight-hour day but only twenty minutes

at a time. Tr. 806. Dr. Bryden also opined Plaintiff can sit two hours at a time and four hours

during an eight-hour day, and the rest of Plaintiff’s time is spent “lying down, resting” and he can

“do about [one] thing per day” and “will have to take a break/lay down after about [twenty] minutes

of yardwork.” Tr. 806. Furthermore, Dr. Bryden stated Plaintiff can never push and/or pull,

climb, balance, stoop/bend, kneel, crouch, crawl, reach overhead, but can occasionally reach

shoulder height, handle, finger, and feel. Tr. 806. Dr. Bryden opined Plaintiff would be off-task

10% of a standard workweek, and he would miss at least two workdays per month from even a

simple, routine job in relation to days where he has increased pain, poor sleep, or was too fatigued

to work. Tr. 807. In a medical visit dated August 25, 2014, Dr. Bryden assessed Plaintiff with

fibromyalgia, ADD, predominantly inattentive type, obstructive sleep apnea, and an adjustment

disorder with depressed mood. Tr. 432–33. Dr. Bryden stated at the end of this visit that Plaintiff

is capable of at least part-time work. Tr. 433. Dr. Bryden then opined that Plaintiff cannot do

any physical labor or sit all day, but that he may be able to find part-time work with alternating

sitting and standing. Tr. 433. The ALJ found the opinion of Dr. Bryden “unpersuasive.” Tr.

21.

/ / / / /

Page 12 – OPINION AND ORDER

1. Unsupported by Plaintiff’s Medical Record

The ALJ found the opinion of Dr. Bryden was unsupported by Plaintiff’s “treatment notes,

which reflect no medication, without an exacerbation of his symptoms.” Tr. 21 (citing Tr. 427).

As supportability is one of the most important factors an ALJ must consider when determining

how persuasive a medical opinion is, 20 C.F.R. §§ 404.1520c(b)(2), 416.920c(b)(2), the ALJ’s

finding that the opinion of Dr. Bryden was not supported by Plaintiff’s medical record was a

relevant consideration.

The ALJ found this opinion poorly supported by the record as a whole. Specifically, Dr.

Bryden noted Plaintiff “has not [been] on [anxiety] meds for about 1 year after going to jail,” Tr.

422; his “pain has been a little worse lately with weather change,” and “has been trying to deal

with it though,” and “has been trying to get some exercise still” by “walkign [sic] dogs” and “taking

more breaks recently,” Tr. 424. Furthermore, Dr. Bryden notes Plaintiff “is no longer on pain

meds and has learned to cope with his pain which is consistantly [sic] at a level 3-4/10.” Tr. 427.

Thus, the ALJ’s finding that plaintiff’s medical record did not support the opinion of Dr. Bryden

is supported by substantial evidence. See Fisher v. Schweiker, 568 F.Supp. 900, 903 (N.D. Cal.

1983) (stating that it is permissible to rely on a plaintiff symptom testimony as substantial evidence

to reject a medical opinion).

2. Inconsistent with Plaintiff’s Medical Record

The ALJ also rejected the opinion of Dr. Bryden for being inconsistent with the record as

a whole. Tr. 21 (citing 805–808, 424–27).

Consistency is the other most important factor an ALJ must consider when determining

how persuasive a medical opinion is. 20 C.F.R. §§ 404.1520c(b)(2), 416.920c(b)(2). The more

Page 13 – OPINION AND ORDER

consistent the opinion is with other medical sources, the more persuasive the opinion. 20 C.F.R.

§§ 404.1520c(c)(2), 416.920c(c)(2).

The ALJ found this opinion inconsistent because the record

reflects conservative treatment by the claimant’s primary care physician. This

opinion was not supported by the claimant’s self-report from October of 2014 that

he was managing his pain with exercising and walking the dogs[]. Additionally,

the record reflects that that [sic] the claimant returned to work and thought that he

was performing the job duties[].

Tr. 21 (citing 805–808, 424–27, 38–39). As stated above, the record includes statements from

Dr. Bryden indicating Plaintiff “has not [been] on [anxiety] meds for about 1 year after going to

jail,” Tr. 422; and his “pain has been a little worse lately with weather change,” and “has been

trying to deal with it though,” and “has been trying to get some exercise still” by “walkign [sic]

dogs” and “taking more breaks recently,” Tr. 424. Dr. Bryden also notes Plaintiff “is no longer

on pain meds and has learned to cope with his pain which is consistantly [sic] at a level 3-4/10.”

Tr. 427. Thus, the ALJ’s finding that plaintiff’s medical record does not support the opinion of

Dr. Bryden is supported by substantial evidence. Thus, the ALJ’s finding that plaintiff’s medical

record is inconsistent with the opinion of Dr. Bryden is supported by substantial evidence.

Although Plaintiff argues for a different interpretation of the record and cites evidence in

support of his argument that Plaintiff’s medical record does not contradict Dr. Bryden’s opinion,

the court affirms the ALJ’s finding because it was reasonable and supported by substantial

evidence. See Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005) (variable interpretations of

the evidence are insignificant if the ALJ’s is reasonable).

In sum, the ALJ satisfied the supportability and consistency consideration and articulation

requirements. 20 C.F.R. §§ 404.1520c(b), 416.920c(b). Thus, the ALJ’s rejection of Dr.

Bryden’s opinion is supported by substantial evidence, and, accordingly, the ALJ did not err.

Page 14 – OPINION AND ORDER

IV. The ALJ’s Step Five Finding are Supported by Substantial Evidence

Plaintiff assigns error to the ALJ’s step five finding. Specifically, Plaintiff argues, using

Job Browser Pro, the 2018 data shows there were 5,323 jobs in the national economy for the

occupation of an Assembler Electrical Accessories and 4,516 jobs in the national economy for the

occupation of an Office Helper, and therefore the wide discrepancy between the job numbers

provided by the VE and the job numbers provided by the Plaintiff meets the standard required for

a remand. (Pl.’s Br. at 16–18.) The ALJ accepted the VE’s testimony that there were 35,000

jobs in the national economy for the occupation of an Assembler Electrical Accessories and 41,000

jobs in the national economy for the occupation of an Office Helper. Tr. 22–23, 44–45.

The Plaintiff must contest jobs numbers at the ALJ hearing to preserve the issue on appeal.

“[W]hen a claimant fails entirely to challenge a vocational expert’s job numbers during

administrative proceedings before the agency, the claimant waives such a challenge on appeal, at

least when that claimant is represented by counsel. Specifically, our holding encompasses

challenges based on an alleged conflict with alternative job numbers gleaned from the CBP

[County Business Patterns] or the OOH [Occupational Outlook Handbook].” Shaibi v. Berryhill,

883 F.3d 1102, 1109 (9th Cir. 2017).

Here, when the ALJ asked if he had any questions for the VE, Plaintiff replied: “Just one,

Your Honor. And just again, housekeeping, what’s the source of your job numbers?” Tr. 46.

The VE responded “[t]his comes from Job Browser, the records from the Job Browser.” Tr 46.

Plaintiff then said “[t]hank you, Doctor,” and there were no further questions. Tr. 46. In Shaibi

v. Berryhill, the Ninth Circuit stated:

We do not suggest that a claimant must, within minutes of a VE’s initial testimony,

cross-examine a VE with specific alternative job calculations based on the CBP,

OOH, or other published sources. It is enough to raise the job-numbers issue in a

Page 15 – OPINION AND ORDER

general sense before the ALJ. A claimant may do so by inquiring as to the

evidentiary basis for a VE’s estimated job numbers, or inquiring as to whether those

numbers are consistent with the CBP, OOH, or other sources listed in 20 C.F.R. §

404.1566(d). If that is done, an ALJ, on request, ordinarily would permit the

claimant to submit supplemental briefing or interrogatories contrasting the VE’s

specific job estimates with estimates of the claimant's own. See Brault v. Soc. Sec.

Admin., Comm’r, 683 F.3d 443, 451 (2d Cir. 2012). If the ALJ declines to do so,

a claimant may raise new evidence casting doubt on a VE’s job estimates before

the Appeals Council, provided that evidence is both relevant and “relates to the

period on or before the ALJ’s decision.” See Brewes v. Comm’r of Soc. Sec.

Admin., 682 F.3d 1157, 1162 (9th Cir. 2012).

883 F.3d at 1110. Here, for “housekeeping” reasons, Plaintiff inquired about the VE’s

source. The ALJ left the record open for fourteen days and Plaintiff failed to supplement

the record concerning the VE testimony. Therefore, Plaintiff waives such a challenge on

appeal. Thus, the ALJ’s step five findings are supported by substantial evidence.

Conclusion

Based on the foregoing, the Commissioner’s final decision is AFFIRMED.

IT IS SO ORDERED.

DATED this 31st day of January, 2022.

_____________________________

JOHN V. ACOSTA

United States Magistrate Judge

Page 16 – OPINION AND ORDER