# Lukcik v. Commissioner Social Security Administration

> District Court, D. Oregon · August 11, 2023

URL: https://www.frixlaw.com/law-library/cases/10396292

## Case

- **Court:** District Court, D. Oregon
- **Decided:** August 11, 2023
- **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/10396292

## How later opinions describe it (automated extraction)

- noting “[w]e may not reweigh the evidence or substitute our judgment for that of the ALJ”
- holding that a treating physician’s reliance on a patient’s own discredited subjective complaints is a specific and legitimate reason for discounting the physician’s opinion
- affirming the ALJ’s credibility finding when the plaintiff’s testimony of weight fluctuation was inconsistent with the medical record

## Opinion text

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF OREGON

JONATHAN L.,1 No. 3:19-CV-1419-MO

Plaintiff, OPINION & ORDER

v.

COMMISSIONER, SOCIAL
SECURITY ADMINISTRATION,

Defendant.

MOSMAN, District Judge:

This matter comes before me on Plaintiff Jonathan L.’s Complaint [ECF 1] against
Defendant Commissioner of the Social Security Administration. For the reasons given below, I
AFFIRM the Commissioner’s decision and DISMISS this case.

1 In the interest of privacy, this opinion uses only the first name and the initial of the last name of
the nongovernmental party in this case.
PROCEDURAL BACKGROUND
On June 11, 2015, Plaintiff applied for Disability Insurance Benefits (“DIB”) and
Supplemental Security Income (“SSI”) under Titles II and XVI of the Social Security Act. Tr.
20, 205, 212-17. The Social Security Administration (“SSA”) denied his claim initially and upon
reconsideration. Tr. 20, 109-10. Plaintiff appeared before Administrative Law Judge (“ALJ”)

Linda Thomasson on January 17, 2018. Tr. 43-74. On February 12, 2018, the ALJ issued a
decision denying Plaintiff’s claims for benefits. Tr. 7, 21, 35-36. Plaintiff filed an appeal, and the
Appeals Council denied review. Tr. 1-2.
THE ALJ’S FINDINGS
At step one, the ALJ found that Plaintiff had not engaged in substantial gainful activity
since his protective filing date of June 11, 2015. Tr. 22. At step two, the ALJ determined that
Plaintiff had the following severe impairments: schizophrenia, ADHD, depression, obesity,
bilateral foot disorder (plantar fasciitis), hernia, and asthma. Tr. 22. The ALJ determined that
Plaintiff’s medically determinable impairments of lumbar spine disorder, severe OSA, and left

shoulder/elbow pain were non-severe. Tr. 23-24. At step three, the ALJ found that Plaintiff’s
impairments did not meet the severity of one of the listed impairments in 20 C.F.R. §§
404.1520(d), 404.1525, 404.1526. Tr. 24. The ALJ assessed Plaintiff’s residual functional
capacity (“RFC”) to:
perform light work as defined in 20 CFR 416.967(b) except he can never climb
ladders, ropes, or scaffolds; and can occasionally climb ramps and stairs, stoop,
crawl, kneel, and crouch. The claimant can have no exposure to hazards, such as
moving mechanical parts, unprotected heights, or operating a motor vehicle. He
can have occasional exposure to fumes, odors, dusts, gases, and other pulmonary
irritants. The claimant is limited to jobs with a reasoning level of 2 or less. He is
limited to performing simple and routine tasks, and is limited to simple, work-
related decisions. The claimant can have no contact with the public.

Tr. 26.
At step four, the ALJ determined that Plaintiff had no past relevant work. Tr. 34. At step
five, the ALJ found that Plaintiff retained the capacity to perform jobs that exist in significant
numbers in the national economy, specifically production assembler, inspector/hand packager,
and folder. Tr. 35. The ALJ therefore found Plaintiff not disabled. Tr. 35-36.
LEGAL STANDARD

Courts must uphold the ALJ’s decision if it “was supported by substantial evidence and
based on proper legal standards.” Lewis v. Astrue, 498 F.3d 909, 911 (9th Cir. 2007).
“Substantial evidence is “more than a mere scintilla,” and means only “such relevant evidence as
a reasonable mind might accept as adequate to support a conclusion. Biestek v. Berryhill, 139 S.
Ct. 1148, 1150 (2019) (internal quotation marks omitted). When “evidence is susceptible of more
than one rational interpretation ... the ALJ’s conclusion ... must be upheld.” Burch v. Barnhart,
400 F.3d 676, 679 (9th Cir. 2005). Errors in the ALJ’s decision do not warrant reversal if they
are harmless. Stout v. Comm’r Soc. Sec. Admin., 454 F.3d 1050, 1054 (9th Cir. 2006).
DISCUSSION

Plaintiff raises two primary issues with the ALJ’s decision. First, he contends that the
ALJ unreasonably discounted his symptom testimony without clear and convincing reasons for
doing so. And second, Plaintiff argues that the ALJ erred in disregarding examining occupational
therapist Trevor Tash’s medical opinions. I address each issue in turn.
I. Subjective Symptom Testimony
The ALJ is responsible for evaluating symptom testimony. SSR 16-3p, 2017 WL
5180304, at *1 (Oct. 25, 2017). The ALJ engages in a two-step analysis for subjective symptom
evaluation. Molina v. Astrue, 674 F.3d 1104, 1112 (9th Cir. 2012) (superseded on other
grounds). First, the ALJ determines whether there is “objective medical evidence of an
underlying impairment which could reasonably be expected to produce the pain or other
symptoms alleged.” Id. (internal quotations omitted). Second, “if the claimant has presented such
evidence, and there is no evidence of malingering, then the ALJ must give specific, clear and
convincing reasons in order to reject the claimant’s testimony about the severity of the
symptoms.” Id. (internal quotations omitted).

When evaluating subjective symptom testimony, “[g]eneral findings are insufficient.”
Reddick v. Chater, 157 F.3d 715, 722 (9th Cir. 1998) (quoting Lester v. Chater, 81 F.3d 821, 834
(9th Cir. 1995)). “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 her 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
(9th Cir. 2001); see also Orteza v. Shalala, 50 F.3d 748, 750 (9th Cir. 1995) (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.”).
Plaintiff testified that past full-time work attempts were unsuccessful due to extreme
exhaustion, mental fatigue, and feeling physical ill. Tr. 102-03, 105-06, 108. Interacting with
“challenging customers” caused anxiety and made it difficult for him to think clearly. Tr. 109.
He lived on his own but stayed at his mother’s house a few nights a week. Tr. 104. His mother
paid his rent, assisted him with transportation, made phone calls on his behalf, and helped
advocate for him. Tr. 104. He was enrolled in college, where he received disability
accommodations, including extra time and quiet environments for testing and additional breaks
during class. Tr. 104. His classes were about two-and-a-half hours long, and he usually needed to
take a couple of ten-minute breaks per class because he had trouble focusing. Tr. 104-05.
Plaintiff testified that he sometimes forgets to take his medication or to go to appointments. Tr.
105. His mother and grandmother provide a lot of reminders and assistance. Tr. 105. He has
daytime fatigue despite getting a full night of sleep with medication. Tr. 106. He stated that he
feels stable some days, then other days experiences mood swings, anxiety, difficulty focusing,

and difficulty dealing with conflict. Tr. 107. He is socially awkward and has a hard time in large
crowds. Tr. 107. He is prone to stress and anxiety, and he testified to panic and difficulty
thinking clearly. Tr. 107.
The ALJ found Plaintiff’s medically determinable impairments could reasonably be
expected to cause some symptoms and did not identify evidence of malingering. Tr. 26.
However, the ALJ concluded that Plaintiff’s statements concerning the intensity, persistence and
limiting effects of his symptoms were not entirely consistent with the medical evidence and other
evidence in the record. Tr. 26. Specifically, the ALJ found Plaintiff’s symptom allegations were
inconsistent with the objective medical evidence, inconsistent with Plaintiff’s activities of daily

living and work history, and that Plaintiff’s conditions improved with treatment.
A. Objective Medical Evidence
The ALJ is instructed to evaluate objective evidence in considering a claimant’s symptom
allegations. 20 C.F.R. § 416.929(c)(2) (“Objective medical evidence ... is a useful indicator to
assist us in making reasonable conclusions about the intensity and persistence of your
symptoms[.]”). Indeed, “[w]hen objective medical evidence in the record is inconsistent with the
claimant’s subjective testimony, the ALJ may indeed weigh it as undercutting such testimony.”
Smartt v. Kijakazi, 53 F.4th 489, 498 (9th Cir. 2022)(emphasis in original); see also Connett v.
Barnhart, 340 F.3d 871, 874 (9th Cir. 2003) (affirming the ALJ’s credibility finding when the
plaintiff’s testimony of weight fluctuation was inconsistent with the medical record).
Concerning Plaintiff’s testimony about his schizophrenia, ADHD, and depression, the
ALJ reasonably discounted these allegations as inconsistent with the record. Conflict with
objective medical evidence is a sufficient basis for discounting a claimant’s testimony. Smartt,

53 F.4th at 498; 20 C.F.R. §§ 404.1529(c)(2), 416.929(c)(2). At the hearing, Plaintiff testified
that he “hear[s] voices sometimes” and that it’s “hard to concentrate.” Tr. 65. The ALJ
reasonably contrasted this testimony with the medical record, which suggested Plaintiff’s mental
health impairments were well under control. Tr. 27. For example, Plaintiff’s mental health
examination was unremarkable, and subsequent treatment notes did not contain significant
mental health examination findings. Tr. 27, 787-90, 823, 830, 833, 842, 844, 848, 857. Similarly,
in 2015, his therapist noted Plaintiff had a euthymic mood and regulated affect, with a polite and
collaborative attitude. Tr. 27, 825. The longitudinal record showed similarly unremarkable
mental status examinations over the next few months and years. Tr. 27, 28-29 (citing, e.g., Tr.

636, 637, 685-92, 696-98). For instance, at a consultative evaluation in December 2015,
Plaintiff’s mental status examination was relatively unremarkable. Tr. 28, 636. He reported that
medication helped with voices, which he heard “rarely,” he did not feel sad or down, and he was
not anxious. Tr. 28, 637. In November 2017, Plaintiff’s mental status examination indicated no
change, with a normal affect, thought content and process, and intellectual functioning. Tr. 30,
1093. In all, substantial evidence supported the ALJ’s decision to discount Plaintiff’s testimony
about schizophrenia, ADHD, and depression because it conflicted with the record evidence.
The ALJ also reasonably found the medical record did not bear out Plaintiff’s testimony
about the severity of his physical impairments. At the hearing, Plaintiff testified that his sleep
apnea rendered him tired and unable to focus, and that his plantar fasciitis made it difficult and
painful for him to stand or walk for long periods. Tr. 60-62, 66. Concerning Plaintiff’s sleep, the
ALJ noted that while Plaintiff had some difficulty sleeping, a sleep study in early 2016 showed
he responded well to CPAP. Tr. 24, 959-61. And, in May 2017, Plaintiff had surgery for a
deviated septum to continue improving his sleep apnea issues when CPAP was no longer an

option. Tr. 24, 1033; see also Tr. 964, 992, 993, 995. Concerning Plaintiff’s foot pain, the ALJ
accepted that Plaintiff had a “severe” bilateral foot disorder. Tr. 22. But the ALJ discounted
testimony suggesting Plaintiff could not stand or walk due to his plantar fasciitis because
numerous medical records showed Plaintiff had a normal gait, normal lower extremity strength
and sensation. Tr. 30, 34 (citing Tr. 526, 549, 619-20, 615, 667-69, 1000-01, 1015). Because the
ALJ sufficiently accounted for Plaintiff’s foot impairment in the RFC, and substantial evidence
supported the decision to discount the bleaker symptom allegations in Plaintiff’s testimony, the
Court will uphold the ALJ’s decision.
Plaintiff argues the ALJ erred in discounting his testimony about foot pain because the

balance of the medical evidence supports his, rather than the ALJ’s interpretation of the
evidence. Specifically, Plaintiff points to a variety of medical records where he reported
significant foot pain that support his claim that he is unable to stand or walk for long periods or
work for consecutive full workdays. Pl. Br. ECF No. 20 at 10 (citing Tr. 614, 997, 999, 1003-04,
1006, 1009, 1030, 1107-11). But Plaintiff’s arguments are an effort to have this Court re-weigh
the evidence, which this Court may not do. Ahearn v. Saul, 988 F.3d 1111, 1115 (9th Cir. 2021)
(noting “[w]e may not reweigh the evidence or substitute our judgment for that of the ALJ”). The
Court evaluates only whether the ALJ’s decision was supported by “substantial evidence,” i.e.,
whether it has the “power to convince.” Smartt, 53 F.4th at 499. As described above, the ALJ
supported the decision to discount Plaintiff’s testimony with sufficient record evidence, and the
Court will not disturb that factual finding on review.
B. Improvement with Treatment
An ALJ may reject a claimant’s symptom testimony if that testimony is contradicted by
evidence in the medical record. Carmickle v. Comm’r of Soc. Sec. Admin., 533 F.3d 1155, 1161

(9th Cir. 2008). If the record shows a claimant’s symptoms have improved with treatment, that
improvement is “an important indicator of the intensity and persistence of ... symptoms.” 20
C.F.R. §§ 404.1529(c)(3), 416.929(c)(3). The Ninth Circuit has held that “evidence of medical
treatment successfully relieving symptoms can undermine a claim of disability.” Wellington v.
Berryhill, 878 F.3d 867, 876 (9th Cir. 2017).
The ALJ reasonably concluded that Plaintiff’s fatigue and mental health symptoms
improved with treatment, which undermined his hearing testimony. Although Plaintiff
complained that he was unable to work due to fatigue and inability to focus, after restarting his
medications in July 2015, Plaintiff presented at medical appointments as fully oriented and alert,

with a normal mood, affect, and behavior. Tr. 27, 1004, 1015, 1024. At an August 2015
assessment he reported that he only “sometimes” heard voices, and that his medication managed
auditory hallucinations. Tr. 27, 787-90. The therapist Plaintiff saw in 2015 likewise reported
Plaintiff’s mental health symptoms were “well controlled,” and the medical record showed
similar unremarkable mental status examinations over the next few months and years. Tr. 27, 28-
29; see, e.g., Tr. 636, 637, 685-92, 696-98, 704, 738-39, 752-58, 861, 1093. The record shows
that medication, and ultimately surgery for a deviated septum, lessened his fatigue symptoms as
well. Tr. 24, 959-61, 1033. This is another clear and convincing reason, supported by substantial
evidence to discount Plaintiff’s symptom testimony, and the Court upholds the ALJ’s decision to
discount Plaintiff’s testimony on the basis that his symptoms improved with treatment.
C. Daily Activities & Work History
The ALJ also discounted Plaintiff’s subjective symptom testimony about his foot pain,
fatigue, and mental health limitations because it was inconsistent with his reported daily

activities. Tr. 22-31. Activities of daily living can form the basis for an ALJ to discount a
claimant’s testimony in two ways: (1) as evidence a claimant can work if the activities “meet the
threshold for transferable work skills”; or (2) where the activities “contradict [a claimant’s]
testimony.” Orn, 495 F.3d at 639. The relevant regulations require an ALJ to consider a
claimant’s daily activities when evaluating subjective symptom statements. 20 C.F.R. §§
404.1529(c)(3)(i), 416.929(c)(3)(i). The Ninth Circuit has even found such routine activities as
playing video games, using public transportation, and preparing meals to undercut a claimant’s
testimony of disabling limitations. Ahearn v. Saul, 988 F.3d 1111, 1117 (9th Cir. 2021). An ALJ
can also consider “any work activity, including part-time work, in determining whether a

claimant is disabled.” Ford, 950 F.3d at 1156 (citing Drouin v. Sullivan, 966 F.2d 1255, 1258
(9th Cir. 1992).
At the hearing, Plaintiff testified that he went out alone, used public transportation,
shopped in stores, and worked in public settings. Tr. 32, 302-06. Plaintiff also attended college
classes on campus, where he earned As and Bs, with a 3.3 grade point average the quarter before
the administrative hearing. Tr. 24, 25, 32, 52. Plaintiff studied math, writing, and computer
skills, spending 10 to 15 hours studying and obtaining help from a tutor. Tr. 32, 60-61. He had a
friend at school and enjoyed his classes, although he had a lot of homework. Tr. 32, 52-53. He
planned to pursue a degree. Tr. 53. As far as daily activities, Plaintiff shared that he prepared
meals and performed household chores, including cleaning, laundry, mopping, repairs, and
mowing. Tr. 31-32, 304. He went out a few times a day and walked, rode a bicycle, and used
public transportation. Tr. 32, 305. He quit a full-time job because it was “annoying.” Tr. 32, 635-
36, 706, 738, 752, 1098. In mid-2017, Plaintiff worked with three temporary agencies, a couple
of which kept him busy “all the time,” but he just wanted to work part time, and if he got

disability, he would like to work “a little less often.” Tr. 32, 756. Plaintiff also reported that he
got a lot of exercise and walked a lot. Tr. 32, 738, 1038. Plaintiff reported that he had started
working the prior month doing minimal work as a cashier and prep cook. Tr. 28, 635. He got
along with coworkers and supervisors on the job. Tr. 32, 635-36.
At the hearing, Plaintiff testified to difficulty standing and walking due to physical pain,
and fatigue and difficulty focusing due to his mental health issues and sleep apnea. Tr. 103-109,
which the ALJ reasonably concluded conflicted with his other testimony about working,
recreating, and attending school. Even when they do not show transferable work skills, daily
activities “may be grounds for discrediting the claimant’s testimony to the extent that they

contradict claims of a totally debilitating impairment.” Molina, 674 F.3d at 1112-13. The ALJ
reasonably found Plaintiff’s record at community college, where he received good grades and
planned to graduate, contradicted his testimony of disabling mental health symptoms at the
hearing. Tr. 32, 52-53. Plaintiff’s significant walking, biking, and ability to do chores likewise
undermined his testimony about difficulty standing and walking. Tr, 31-32. The ALJ also
emphasized that Plaintiff’s work history was inconsistent with testimony suggesting Plaintiff was
physically or mentally unable to work. Tr. 32. The ALJ rationally found that these activities,
while limited, undermined Plaintiff’s allegations of disability and this is a further clear and
convincing reason, supported by substantial evidence, bolstering the ALJ’s decision to discount
his allegations.
II. Medical Opinion Evidence
Effective March 27, 2017, the Social Security Administration amended its regulations
and Social Security Rulings (“SSRs”) relating to the evaluation of medical evidence, including

the consideration of “acceptable medical sources” and “non-acceptable medical sources” or
“other medical sources.” Most of these changes were effective only for claims filed after March
27, 2017. The Administration, however, implemented revised versions of 20 C.F.R. §§
404.1527(f) and 416.927(f) to provide “clear and comprehensive guidance” about how to
consider “other” medical sources for claims filed before March 27, 2017. Revisions to Rules
Regarding the Evaluation of Medical Evidence, 82 Fed. Reg. 5844 (Jan. 18, 2017). Because
Plaintiff’s claim was filed before March 27, 2017, and the ALJ issued his opinion after March
27, 2017, the revised versions of 20 C.F.R. § 404.1527, § 416.927, §§ 404.1527 and 416.927
governs Plaintiff's claim.

The revised regulations incorporate the policy in SSR 06-03p of separating acceptable
medical sources (licensed physicians and certain other qualified specialists) from “other”
medical sources, and generally giving less deference to other medical sources. It also
incorporates the policies of requiring the ALJ to consider “other” medical source opinions,
explain the weight given to such opinions, provide sufficient analysis to allow a subsequent
review to follow the ALJ's reasoning, and to provide sufficient detail and explanation if the ALJ
gives greater weight to an opinion from an “other” medical source than a medical opinion from a
treating source. Revisions to Rules Regarding the Evaluation of Medical Evidence, 82 Fed. Reg.
5844-45; see also 20 C.F.R. §§ 404.1527(f), 416.927(f). Because Mr. Tash is an occupational
therapist (“OT”), he is an “other” medical source. Id.; see also Pl. Br. at 9.
An ALJ may not reject the competent testimony of “other” medical sources without
comment. Stout v. Comm'r, 454 F.3d 1050, 1053 (9th Cir. 2006). To reject the competent
testimony of “other” medical sources, the ALJ need only give “reasons germane to each witness

for doing so.” Molina v. Astrue, 674 F.3d 1104, 1111 (9th Cir. 2012) (quoting Turner v. Comm'r
of Soc. Sec., 613 F.3d 1217, 1224 (9th Cir. 2010)). In rejecting such testimony, the ALJ need not
“discuss every witness's testimony on an individualized, witness-by-witness basis. Rather, if the
ALJ gives germane reasons for rejecting testimony by one witness, the ALJ need only point to
those reasons when rejecting similar testimony by a different witness.” Id. at 1114. The ALJ also
may “draw inferences logically flowing from the evidence.” Sample v. Schweiker, 694 F.2d 639,
642 (9th Cir. 1982).
A. Trevor Tash, OT
Trevor Tash, OT, conducted a functional capacity examination of Plaintiff on December

18, 2017. Tr. 1098-1102. He observed Plaintiff perform a variety of physical tasks and provided
an opinion regarding his abilities based on that observation, a review of Plaintiff’s impairments,
and Plaintiff’s reports to Mr. Tash. Id. Mr. Tash opined that Plaintiff would be able to work at
the light to medium level but not for consecutive days if he were required to stand or walk
frequently. Tr. 1101. He observed Plaintiff walking at a slower than average pace. Tr. 1099.
Plaintiff reported that being on his feet for an eight-hour day was extremely painful. Tr. 1099-
1100. Mr. Tash also noted that Plaintiff reported that his feet were burning during the testing. Tr.
1100. He noted that Plaintiff exhibited deconditioning. Tr. 1100. The ALJ rejected Mr. Tash’s
opinion about Plaintiff’s limited ability to stand and walk, and that he would be unable to work
consecutive days if he had to be on his feet. Tr. 34. The ALJ found assigned little weight to this
portion of Mr. Tash’s opinion because it was inconsistent with the medical record and Plaintiff’s
daily activities, and relied too heavily on Plaintiff’s subjective reports. Id. Both were germane
reasons supported by substantial evidence.
First, the ALJ reasonably discounted Mr. Tash’ medical opinion limiting Plaintiff’s

ability to stand and walk because it lacked support in the record. The ALJ may discount the
testimony of other sources by giving “reasons germane to each witness for doing so.” Turner v.
Comm’r of Soc. Sec., 613 F.3d 1217, 1223-24 (9th Cir. 2010) (internal quotations and citation
omitted) “An ALJ is not required to take medical opinions at face value, but may take into
account the quality of the explanation” when evaluating a medical opinion. Ford v. Saul, 950
F.3d 1141, 1155 (9th Cir. 2020). Upon physical examination, Mr. Tash observed a range of
motion within functional limits of the hips, knees, ankles, and feet. Tr. 31, 1099. Plaintiff had
normal strength in his upper and lower extremities, and his sensation was intact. Tr. 31, 1099.
Plaintiff could walk on his heels and toes, and there was no significant tenderness to palpation in

the bilateral soles of the feet, knees, or low back. Tr. 31, 1099. Mr. Tash observed Plaintiff could
sit for 30 minutes, stand stationary for 45 minutes, and move/walk about for 45 minutes. Tr. 31,
1099. Plaintiff’s balance was “unimpaired” and he had no manipulative limitations. Tr. 31, 1101.
The ALJ also stressed that medical evidence throughout the record showed Plaintiff had normal
gait and normal lower extremity strength and sensation. Tr. 34, 526, 549, 619-20, 615, 667-69,
1000-01, 1015. The ALJ also found that Plaintiff’s work history and daily activities further
undermined Mr. Tash’s conclusion. Tr. 34. Ultimately, the ALJ reasonably concluded that Mr.
Tash’s opinion about difficulty standing and walking was incompatible with objective medical
evidence and other evidence in the record.
The ALJ also reasonably considered that Mr. Tash’s opinion was overly reliant on
Plaintiff’s subjective complaints. An ALJ may reject a treating physician’s opinion if it is based
‘to a large extent’ on a claimant’s self-reports that have been properly discounted as incredible.”
Tommasetti v. Astrue, 533 F.3d 1035, 1041 (9th Cir. 2008) (citation omitted)); Fair v. Bowen,
885 F.2d 597, 605 (9th Cir. 1989) (holding that a treating physician’s reliance on a patient’s own

discredited subjective complaints is a specific and legitimate reason for discounting the
physician’s opinion). Here, Mr. Tash stated that the “brevity of the evaluation prohibited
prolonged testing of postural endurance” (sitting, standing, and walking). Tr. 34, 1102. Plaintiff
told Mr. Tash that it was hard for him to work full-time, and claimed pain in his feet and knees
impaired him from working on a day-to-day basis. Tr. 31, 1098. Mr. Tash explained the
projection in his opinion that Plaintiff would be limited in sitting, standing, and walking was
“based on professional judgment considering diagnosis, observed behavior and worker report.”
Tr. 34, 1102. The ALJ reasonably discounted Plaintiff’s subjective symptom testimony about
these limitations, and substantial evidence therefore also supported the ALJ’s decision reject Mr.

Tash’s opinion to the extent it relied on the same faulty testimony.
Plaintiff argues that the record does not, in fact, conflict with Mr. Tash’s assessed
limitations, and that the ALJ selectively cited medical evidence to support her conclusion. Pl.
Br., ECF No. 20 at 10-12. As before, Plaintiff points to the weight of the evidence, which he
believes points in favor of finding Mr. Tash’ opinions persuasive. But again, it is not this Court’s
job to weigh the evidence, only to assess whether the ALJ’s rationale is “clear enough that it has
the power to convince.” Smartt, 53 F.4th at 499. The ALJ satisfied that standard, and provided
germane reasons supported by substantial evidence when deciding Mr. Tash’s opinion about
Plaintiff's ability to sit, stand, and walk was unpersuasive. The Court will therefore affirm the
ALJ’s findings.”
CONCLUSION
For the reasons given above, I AFFIRM the Commissioner’s decision and DISMISS this
case with prejudice.
IT IS SO ORDERED.
DATED:___ 8/11/2023 .

MICHAEL W. MOSMAN
United States District Judge

> Even if the ALJ did err by discounting this portion of Mr. Tash’s opinion, such error
would be harmless. As Defendant points out, the vocational expert testified that an individual
with Plaintiff's residual functional capacity, age, education, and work experience were further
limited to walking and standing for a total of two hours, there were several representative
sedentary, SVP 2 occupations he could perform, such as final assembler, table worker, and faxer,
with a total of 43,100 jobs nationally. Tr. 71. Any error in discounting this portion of Mr. Tash’s
opinion was therefore harmless. Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005).

15 — OPINION & ORDER

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10396292. Public record. Not legal advice.