McKinney v. Commissioner of Social Security

1 EASTERN DISTRICT OF WASHINGTON

Sep 27, 2019

2 SEAN F. MCAVOY, CLERK

3

4

5

6 UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF WASHINGTON

7

DENNY LEE M.,

8

Plaintiff, No. 1:18-CV-03123-RHW

9

v. ORDER GRANTING

10 DEFENDANT’S MOTION FOR

COMMISSIONER OF SOCIAL SUMMARY JUDGMENT

11 SECURITY,

12 Defendant.

13

Before the Court are the parties’ cross-motions for summary judgment, ECF

14

Nos. 12 & 13. Plaintiff brings this action seeking judicial review, pursuant to 42

15

U.S.C. § 405(g), of the Commissioner’s final decision, which denied his

16

application for Supplemental Security Income under Title XVI of the Social

17

Security Act, 42 U.S.C §§ 1381-1383F, and his application for Disability Insurance

18

Benefits under Title II of the Act, 42 U.S.C. § 401-434. See Administrative Record

19

(“AR”) at 1, 15-30. After reviewing the administrative record and briefs filed by

20

the parties, the Court is now fully informed. For the reasons set forth below, the

1 Court GRANTS Defendant’s Motion for Summary Judgment and DENIES

2 Plaintiff’s Motion for Summary Judgment.

3 I. JURISDICTION

4 Plaintiff filed his applications for Disability Insurance Benefits and

5 Supplemental Security Income on February 26, 2013. AR 15, 107, 118. In both

6 applications, his alleged onset date of disability is August 1, 2008. Id. Plaintiff’s

7 applications were initially denied on April 9, 2013, AR 127, and on reconsideration

8 on June 10, 2013, AR 151-52. A hearing with Administrative Law Judge (“ALJ”)

9 Tom L. Morris occurred on January 27, 2015. AR 37-72, 156. On March 9, 2015,

10 the ALJ issued a decision concluding that Plaintiff was not disabled within the

11 meaning of the Act and was therefore ineligible for Disability Insurance Benefits

12 or Social Security Income. AR 166. On August 26, 2016, the Appeals Council

13 issued an order remanding Plaintiff’s case back to the ALJ for further proceedings.

14 AR 172-75.

15 Thus, a second hearing with ALJ Morris occurred on January 30, 2017. AR

16 15, 73-104. On April 13, 2017, the ALJ issued a decision finding once again that

17 Plaintiff was ineligible for disability benefits. AR 15-30. The Appeals Council

18 denied Plaintiff’s request for review on May 11, 2018, AR 1-3, making the ALJ’s

19 ruling the “final decision” of the Commissioner. See 20 C.F.R. § 404.981.

20

1 Plaintiff timely filed the present action challenging the denial of benefits, on

2 July 10, 2018. ECF No. 1 and 3. Accordingly, Plaintiff’s claims are properly

3 before this Court pursuant to 42 U.S.C. § 405(g).

4 II. SEQUENTIAL EVALUATION PROCESS

5 The Social Security Act defines disability as the “inability to engage in any

6 substantial gainful activity by reason of any medically determinable physical or

7 mental impairment which can be expected to result in death or which has lasted or

8 can be expected to last for a continuous period of not less than twelve months.” 42

9 U.S.C. §§ 423(d)(1)(A), 1382c(a)(3)(A). A claimant shall be determined to be

10 under a disability only if the claimant’s impairments are of such severity that the

11 claimant is not only unable to do his previous work, but cannot, considering

12 claimant's age, education, and work experience, engage in any other substantial

13 gainful work that exists in the national economy. 42 U.S.C. § 1382c(a)(3)(B).

14 The Commissioner has established a five-step sequential evaluation process

15 for determining whether a claimant is disabled within the meaning of the Social

16 Security Act. 20 C.F.R. §§ 404.1520(a)(4) & 416.920(a)(4); Lounsburry v.

17 Barnhart, 468 F.3d 1111, 1114 (9th Cir. 2006).

18 Step one inquires whether the claimant is presently engaged in “substantial

19 gainful activity.” 20 C.F.R. §§ 404.1520(b) & 416.920(b). Substantial gainful

20 activity is defined as significant physical or mental activities done or usually done

1 for profit. 20 C.F.R. §§ 404.1572 & 416.972. If the claimant is engaged in

2 substantial activity, he or she is not entitled to disability benefits. 20 C.F.R. §§

3 404.1571 & 416.920(b). If not, the ALJ proceeds to step two.

4 Step two asks whether the claimant has a severe impairment, or combination

5 of impairments, that significantly limits the claimant’s physical or mental ability to

6 do basic work activities. 20 C.F.R. §§ 404.1520(c) & 416.920(c). A severe

7 impairment is one that has lasted or is expected to last for at least twelve months,

8 and must be proven by objective medical evidence. 20 C.F.R. §§ 404.1508-09 &

9 416.908-09. If the claimant does not have a severe impairment, or combination of

10 impairments, the disability claim is denied, and no further evaluative steps are

11 required. Otherwise, the evaluation proceeds to the third step.

12 Step three involves a determination of whether any of the claimant’s severe

13 impairments “meets or equals” one of the listed impairments acknowledged by the

14 Commissioner to be sufficiently severe as to preclude substantial gainful activity.

15 20 C.F.R. §§ 404.1520(d), 404.1525, 404.1526 & 416.920(d), 416.925, 416.926;

16 20 C.F.R. § 404 Subpt. P. App. 1 (“the Listings”). If the impairment meets or

17 equals one of the listed impairments, the claimant is per se disabled and qualifies

18 for benefits. Id. If the claimant is not per se disabled, the evaluation proceeds to the

19 fourth step.

20

1 Step four examines whether the claimant’s residual functional capacity

2 enables the claimant to perform past relevant work. 20 C.F.R. §§ 404.1520(e)-(f) &

3 416.920(e)-(f). If the claimant can still perform past relevant work, the claimant is

4 not entitled to disability benefits and the inquiry ends. Id.

5 Step five shifts the burden to the Commissioner to prove that the claimant is

6 able to perform other work in the national economy, taking into account the

7 claimant’s age, education, and work experience. See 20 C.F.R. §§ 404.1512(f),

8 404.1520(g), 404.1560(c) & 416.912(f), 416.920(g), 416.960(c). To meet this

9 burden, the Commissioner must establish that (1) the claimant is capable of

10 performing other work; and (2) such work exists in “significant Gallo in the

11 national economy.” 20 C.F.R. §§ 404.1560(c)(2); 416.960(c)(2); Beltran v. Astrue,

12 676 F.3d 1203, 1206 (9th Cir. 2012).

13 III. STANDARD OF REVIEW

14 A district court's review of a final decision of the Commissioner is governed

15 by 42 U.S.C. § 405(g). The scope of review under § 405(g) is limited, and the

16 Commissioner's decision will be disturbed “only if it is not supported by

17 substantial evidence or is based on legal error.” Hill v. Astrue, 698 F.3d 1144,

18 1158-59 (9th Cir. 2012) (citing § 405(g)). Substantial evidence means “more than a

19 mere scintilla but less than a preponderance; it is such relevant evidence as a

20 reasonable mind might accept as adequate to support a conclusion.” Sandgathe v.

1 Chater, 108 F.3d 978, 980 (9th Cir.1997) (quoting Andrews v. Shalala, 53 F.3d

2 1035, 1039 (9th Cir. 1995)) (internal quotation marks omitted). In determining

3 whether the Commissioner’s findings are supported by substantial evidence, “a

4 reviewing court must consider the entire record as a whole and may not affirm

5 simply by isolating a specific quantum of supporting evidence.” Robbins v. Soc.

6 Sec. Admin., 466 F.3d 880, 882 (9th Cir. 2006) (quoting Hammock v. Bowen, 879

7 F.2d 498, 501 (9th Cir. 1989)).

8 In reviewing a denial of benefits, a district court may not substitute its

9 judgment for that of the ALJ. Matney v. Sullivan, 981 F.2d 1016, 1019 (9th Cir.

10 1992). If the evidence in the record “is susceptible to more than one rational

11 interpretation, [the court] must uphold the ALJ’s findings if they are supported by

12 inferences reasonably drawn from the record.” Molina v. Astrue, 674 F.3d 1104,

13 1111 (9th Cir. 2012); see also Thomas v. Barnhart, 278 F.3d 947, 954 (9th Cir.

14 2002) (if the “evidence is susceptible to more than one rational interpretation, one

15 of which supports the ALJ’s decision, the conclusion must be upheld”). Moreover,

16 a district court “may not reverse an ALJ’s decision on account of an error that is

17 harmless.” Molina, 674 F.3d at 1111. An error is harmless “where it is

18 inconsequential to the [ALJ’s] ultimate nondisability determination.” Id. at 1115.

19 The burden of showing that an error is harmful generally falls upon the party

20 appealing the ALJ’s decision. Shinseki v. Sanders, 556 U.S. 396, 409–10 (2009).

1 IV. STATEMENT OF FACTS

2 The facts of the case are set forth in detail in the transcript of proceedings

3 and only briefly summarized here. Plaintiff was 41 years old on the alleged

4 disability onset date. AR 15, 107. He has a limited education. AR 28. Plaintiff is

5 able to communicate in English. Id. Plaintiff has past relevant work as a janitor,

6 manager – food services, short order cook, kitchen helper, and cannery worker. AR

7 27, 115.

8 V. THE ALJ’S FINDINGS

9 The ALJ determined that Plaintiff has not been under a disability within the

10 meaning of the Act at any time from August 1, 2008, the alleged onset date,

11 through April 13, 2017, the date the ALJ issued his decision. AR 15-30.

12 At step one, the ALJ found that Plaintiff has not engaged in substantial

13 gainful activity since August 1, 2008, the alleged onset date. (citing 20 C.F.R. §§

14 404.1571 et seq. and 416.971 et seq.). AR 17.

15 At step two, the ALJ found that Plaintiff has the following severe

16 impairments: spine disorder; osteoarthritis and allied disorder; and diabetes

17 mellitus (citing 20 C.F.R. §§ 404.1520(c) and 416.920(c)). AR 18.

18 At step three, the ALJ found that Plaintiff does not have an impairment or

19 combination of impairments that met or medically equaled the severity of the listed

20 impairments in 20 C.F.R. § 404, Subpt. P, App. 1. Id.

1 At step four, the ALJ found that Plaintiff has the residual functional

2 capacity (“RFC”) to perform light work, as defined in 20 C.F.R. §§ 404.1567(b)

3 and 416. 967(b), with the following exceptions: he can lift/carry 20 pounds

4 occasionally and 10 pounds frequently; stand/walk with normal breaks for a total

5 of about four hours in an eight-hour workday; sit with normal breaks for a total of

6 about six hours in an eight-hour workday; frequently balance and crouch;

7 occasionally climb ramps, stairs, ladders, ropes, and scaffolds; frequently stoop,

8 kneel and crawl; he should avoid concentrated exposure to extreme cold, wetness,

9 vibration ad hazards such as machinery, unprotected heights, etcetera; he must

10 periodically alternate standing with sitting about once an hour for at least two to

11 three minutes, which can be accomplished by any work task requiring such shifts

12 or which can be done in either position temporarily or longer; he can frequently

13 engage in handling, fingering, and reaching – including bilateral overhead reaching

14 and feeling; and he may be off-task for about 10 percent of the time over the

15 course of an eight-hour workday. AR 19.

16 The ALJ determined that Plaintiff is unable to perform past relevant work as

17 a janitor, manager – food services, short order cook, kitchen helper, and cannery

18 worker (citing 20 C.F.R. §§ 404.1565 and 416.965). AR 27.

19 At step five, the ALJ found that in light of Plaintiff’s age, education, work

20 experience, and residual functional capacity, there are jobs that exist in significant

1 numbers in the national economy that she can perform. AR 28. These include

2 cashier II; storage facility rental clerk; and furniture rental consultant. AR 29.

3 VI. ISSUES FOR REVIEW

4 Plaintiff argues that the Commissioner’s decision is not free of legal error

5 and not supported by substantial evidence. Specifically, he argues the ALJ

6 reversibly erred by: (1) improperly weighing Plaintiff’s allegations; and (2)

7 improperly weighing the medical opinion evidence. ECF No. 12 at 1.

8 VII. DISCUSSION

9 A. The ALJ Properly Discredited Plaintiff’s Subjective Complaints.

10 Plaintiff argues that the ALJ erred by rejecting Plaintiff’s symptom

11 testimony without providing clear and convincing reasons for doing so. ECF No.

12 12 at 3. An ALJ engages in a two-step analysis to determine whether a claimant’s

13 testimony regarding subjective symptoms is credible. Tommasetti v. Astrue, 533

14 F.3d 1035, 1039 (9th Cir. 2008). First, the claimant must produce objective

15 medical evidence of an underlying impairment or impairments that could

16 reasonably be expected to produce some degree of the symptoms alleged. Id.

17 Second, if the claimant meets this threshold, and there is no affirmative evidence

18 suggesting malingering, “the ALJ can reject the claimant’s testimony about the

19 severity of [her] symptoms only by offering specific, clear, and convincing reasons

20 for doing so.” Id.

1 In weighing a claimant’s credibility, the ALJ may consider many factors,

2 including, “(1) ordinary techniques of credibility evaluation, such as the claimant’s

3 reputation for lying, prior inconsistent statements concerning the symptoms, and

4 other testimony by the claimant that appears less than candid; (2) unexplained or

5 inadequately explained failure to seek treatment or to follow a prescribed course of

6 treatment; and (3) the claimant’s daily activities.” Smolen v. Chater, 80 F.3d 1273,

7 1284.

8 When evidence reasonably supports either confirming or reversing the ALJ's

9 decision, the Court may not substitute its judgment for that of the ALJ. Tackett v.

10 Apfel, 180 F.3d 1094, 1098 (9th Cir.1999). Here, the ALJ found that the medically

11 determinable impairments could reasonably be expected to produce the symptoms

12 Plaintiff alleges; however, the ALJ determined that Plaintiff’s statements of

13 intensity, persistence, and limiting effects of the symptoms were not entirely

14 credible. AR 20. The ALJ provided multiple clear and convincing reasons for

15 discrediting Plaintiff’s subjective complaint testimony. AR 19-25.

16 1. The ALJ properly discredited Plaintiff due to inconsistent

statements.

17

As an initial matter, the ALJ pointed to Plaintiff’s multiple inconsistent

18

statements regarding his alleged level of limitation. AR 20-25. Prior inconsistent

19

statements may be considered and relied upon by an ALJ when evaluating the

20

1 reliability of a claimant’s testimony. Smolen, 80 F.3d at 1284; Tommasetti, 533

2 F.3d at 1039.

3 For example, the ALJ noted that although Plaintiff reported that he was

4 essentially housebound and had to spend all day sitting or lying flat, AR 468, he

5 also reported that he was generally able to take care of his daily personal needs

6 with the exception of sometimes needing help putting on his shoes and socks, Id.;

7 he was able to play Wii and arm wrestle with his 14-year-old son, AR 529-30; and

8 that he tried to be mildly active because being inactive seemed to aggravate his

9 symptoms, AR 20-25, 591.

10 Further, at the remand hearing, Plaintiff testified that he has not found pain

11 medication that alleviated his symptoms, however, the record indicates that he

12 made contradictory reports to his providers during the relevant time period. In

13 February 2014, Plaintiff reported that his pain was relieved by medication, AR

14 557; in December 2014, he reported that hydrocodone had been helpful in treating

15 his pain, AR 591; and in May 2015, he reported that he was not interested in seeing

16 further specialists because his pain medications were working reasonably well. AR

17 605-06.

18 There is substantial evidence in the record to support the ALJ’s finding that

19 Plaintiff provided multiple inconsistent statements regarding his level of disability.

20

1 Thus, the ALJ clearly and convincingly discredited Plaintiff due to his inconsistent

2 statements.

3 2. The ALJ properly discredited Plaintiff’s subjective complaints due to

inconsistencies with objective medical evidence.

4

In addition to Plaintiff’s inconsistent statements, the ALJ provided three

5

more clear and convincing reasons for discrediting Plaintiff’s allegations of

6

limitations. AR 20-25. First, the ALJ noted multiple inconsistencies between

7

Plaintiff’s subjective complaints and the medical evidence. Id. An ALJ may

8

discount a claimant’s subjective symptom testimony that is contradicted by

9

medical evidence. Carmickle v. Commissioner of Social Sec. Admin., 533 F.3d

10

1155, 1161 (9th Cir. 2008). Inconsistency between a claimant’s allegations and

11

relevant medical evidence is a legally sufficient reason to reject a claimant’s

12

subjective testimony. Tonapetyan v. Halter, 242 F.3d 1144, 1148 (9th Cir. 2001).

13

To support this finding, the ALJ noted that several of Plaintiff’s physical

14

examinations produced normal and largely unremarkable findings such as normal

15

posture, muscle tone, range of motion and straight leg raising and no spasm

16

tenderness or swelling. AR 20-25, 469-70, 518, 531, 543, 550, 557-58, 563, 574,

17

579, 582, 587, 589, 591, 637, 638. Further, the degenerative changes to Plaintiff’s

18

spine were noted to be mild and minimal in nature. AR 463-66.

19

20

1 Based on the above, the ALJ determined that the objective medical evidence

2 in the record did not support a finding that he is functionally limited to the point of

3 being unable to engage in a limited range of light work. AR 20. See Regennitter v.

4 Commissioner of Social Sec. Admin., 166 F.3d 1294, 1297 9th Cir. 1999) (an

5 ALJ’s determination that a claimant’s complaints are inconsistent with clinical

6 evaluations can satisfy the requirement of stating a clear and convincing reason for

7 discrediting the claimant’s testimony).

8 These benign and minimal findings throughout examinations and

9 evaluations suggest Plaintiff’s impairments are not as debilitating as alleged. Thus,

10 the ALJ did not err in discrediting Plaintiff’s subjective complaints due to

11 inconsistencies between Plaintiff’s alleged level of impairment and the objective

12 medical evidence.

13 3. The ALJ properly discredited Plaintiff’s subjective complaints due to

his activities of daily living.

14

Second, the ALJ found that Plaintiff’s allegations of completely disabling

15

limitations were belied by his actual level of activity. AR 20-25. A claimant’s daily

16

activities may support an adverse credibility finding in two instances: (1) the

17

claimant’s activities contradict other testimony; or (2) the claimant is able to spend

18

a significant part of his day engaged in physical functions that are transferable to a

19

work setting. Orn v. Astrue, 495 F.3d 625, 639 (9th Cir. 2007). See Molina, 674

20

F.3d at 1113 (“Even where those activities suggest some difficulty functioning,

1 they may be grounds for discrediting the claimant's testimony to the extent that

2 they contradict claims of a totally debilitating impairment.”); Osenbrock v. Apfel,

3 240 F.3d 1157, 1166–67 (9th Cir.2001) (noting that ALJ properly found claimant's

4 self-imposed limits on daily activities did not support alleged claims of disability).

5 Activities inconsistent with the alleged symptoms are proper grounds for

6 questioning the credibility of an individual’s subjective allegations. Molina, 674

7 F.3d at 1113 (“[e]ven where those activities suggest some difficulty functioning,

8 they may be grounds for discrediting the claimant’s testimony to the extent that

9 they contradict claims of a totally debilitating impairment”); see also Rollins v.

10 Massanari, 261 F.3d 853, 857 (9th Cir. 2001).

11 The ALJ pointed to multiple examples of Plaintiff’s activities of daily living

12 that did not correlate with the level of impairment he asserts. AR 20-25. For

13 instance, despite Plaintiff’s allegations that he is essentially housebound and

14 spends his days sitting and lying flat, he has also indicated that he is able to drive a

15 car, take care of his personal needs, play Wii, arm wrestle with a teenager, walk up

16 to two blocks, and be mildly active. AR 20-25, 468, 529, 591, 603.

17 The above activities contradict Plaintiff’s claims that he is mostly

18 housebound and has to lie flat or sit all day long. As such, the ALJ properly

19 determined that Plaintiff’s activities did not support the level of disability he

20 alleged and provided multiple clear and convincing reasons for such determination.

1 4. The ALJ properly discredited Plaintiff’s subjective complaints due to

inconsistency with treatment.

2

Lastly, the ALJ found that Plaintiff’s allegations of disabling limitations are

3

inconsistent with the level of treatment he sought during the relevant time period.

4

AR 20-25. The Ninth Circuit has indicated that a claimant’s statements may be less

5

credible when treatment is inconsistent with the level of complaints, or a claimant

6

is not following treatment prescribed without good reason. Molina, 674 F.3d at

7

1114.

8

The ALJ pointed to multiple inconsistencies between Plaintiff’s allegations

9

and his actual level of treatment such as reports of successful responses to

10

treatment. For instance, despite Plaintiff’s claims of debilitating back pain that

11

could not be remedied with medication, he indicated to providers that is pain was

12

relieved by medication, AR 557; that he was not interested in seeing any further

13

specialist or going through any other testing at that time because his pain

14

medications were working reasonably well, AR 605; that medication had been

15

helpful in the past and he was content to remain on his medication regime at that

16

time. AR 603. As such, Plaintiff’s allegations of disabling mental impairments are

17

belied by his effective responses to treatment. See Burch v. Barnhart, 400 F.3d

18

676, 681 (9th Cir. 2005) (an ALJ may find a claimant’s subjective symptom

19

testimony not credible based on evidence of effective responses to treatment); see

20

also 20 C.F.R. §§ 404.1529(c)(3)(v), 416.929(c)(3).

1 Further, the ALJ also noted the record shows Plaintiff’s voluntary lack of

2 treatment for his diabetes. AR 24-25. He declined medication for his diabetes as

3 well as a referral to a diabetes mellitus educator and chose to treat his diabetes with

4 diet and exercise instead. AR 546, 566. See Fair v. Bowen, 885 F.2d 597, 603 (9th

5 Cir. 1989) (“Unexplained, or inadequately explained, failure to seek treatment …

6 can cast doubt on the sincerity of [a] claimant’s pain testimony.”); see also Parra

7 v. Astrue, 481 F.3d 742, 751 (9th Cir. 2007) (evidence of conservative treatment is

8 sufficient to discount a claimant’s testimony regarding severity of an impairment).

9 Thus, the ALJ properly determined that Plaintiff’s level of treatment did not

10 support level of impairment claimed by Plaintiff and the record supports the

11 determination that Plaintiff’s conditions were not as limiting as he alleged.

12 Taking into account all of the above credibility determinations, the ALJ

13 provided multiple reasons that are substantially supported by the record to explain

14 the adverse finding of Plaintiff’s credibility. The ALJ is the trier of fact, and “[t]he

15 trier of fact and not the reviewing court must resolve conflicts in the evidence, and

16 if the evidence can support either outcome, the court may not substitute its

17 judgment for that of the ALJ.” Matney, 981 F.2d at 1019. When the ALJ presents a

18 reasonable interpretation that is supported by the evidence, it is not the role of the

19 courts to second-guess it. Rollins, 261 F.3d at 857. The Court “must uphold the

20 ALJ's findings if they are supported by inferences reasonably drawn from the

1 record.” Molina, 674 F.3d at 1111; see also Thomas, 278 F.3d at 954 (if the

2 “evidence is susceptible to more than one rational interpretation, one of which

3 supports the ALJ’s decision, the conclusion must be upheld”). Thus, the Court does

4 not find that the ALJ erred when discounting Plaintiff’s credibility.

5 B. The ALJ Properly Weighed the Medical Opinion Evidence.

6 Plaintiff also asserts that the ALJ erred in weighing the medical opinion

7 evidence from three providers: (1) nonexamining physician, Robert Hander, M.D.;

8 (2) examining physician, William Drenguis, M.D.; (3) treating physician, K. Scott

9 Reinmuth, M.D. ECF No. 12 at 15-19.

10 1. Legal standard.

11 Title II’s regulations, and accordingly, the Ninth Circuit, distinguish among

12 the opinions of three types of physicians: (1) those who treat the claimant (treating

13 physicians); (2) those who examine but do not treat the claimant (examining

14 physicians); and (3) those who neither examine nor treat the claimant but who

15 review the claimant’s file (nonexamining physicians). Holohan v. Massanari, 246

16 F.3d 1195, 1201-02 (9th Cir. 2001); see 20 C.F.R. § 404.1527(c)(1)-(2). Generally,

17 a treating physician’s opinion carries more weight than an examining physician’s,

18 and an examining physician’s opinion carries more weight than a nonexamining

19 physician’s. Holohan, 246 F.3d at 1202. In addition, the regulations give more

20 weight to opinions that are explained than to those that are not, and to the opinions

1 of specialists concerning matters relating to their specialty over those of non-

2 specialists. Id.

3 In the absence of a contrary opinion, a treating or examining provider’s

4 opinion may not be rejected unless “clear and convincing” reasons are provided.

5 Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1996) (as amended). If a treating or

6 examining provider’s opinion is contradicted, it may only be discounted for

7 “specific and legitimate reasons that are supported by substantial evidence in the

8 record.” Id. at 830-31. If a treating or examining doctor’s opinion is contradicted

9 by another doctor’s opinion, an ALJ may only reject it by providing “specific and

10 legitimate reasons that are supported by substantial evidence.” Id.

11 The ALJ satisfies the specific and legitimate standard by “setting out a

12 detailed and thorough summary of the facts and conflicting clinical evidence,

13 stating his [or her] interpretation thereof, and making findings.” Garrison v.

14 Colvin, 759 F.3d 995, 1012 (9th Cir. 2014) (internal quotation marks omitted). In

15 contrast, an ALJ fails to satisfy the standard when he or she “rejects a medical

16 opinion or assigns it little weight while doing nothing more than ignoring it,

17 asserting without explanation that another medical opinion is more persuasive, or

18 criticizing it with boilerplate language that fails to offer a substantive basis for his

19 [or her] conclusion.” Id. at 1012-13. When rejecting a treating provider’s opinion

20 on a psychological impairment, the ALJ must offer more than his or his own

1 conclusions and explain why he or she, as opposed to the provider, is correct.

2 Embrey v. Bowen, 849 F.2d 418, 421-22 (9th Cir. 1988).

3 Importantly, the “specific and legitimate” standard analyzed above only

4 applies to evidence from “acceptable medical sources.” Molina, 674 F.3d at 1111.

5 These include licensed physicians, licensed psychologists, and various other

6 specialists. See former 20 C.F.R. §§ 404.1513(a) (2014).

7 “Other sources” for opinions—such as nurse practitioners, physician’s

8 assistants, therapists, teachers, social workers, chiropractors, and other nonmedical

9 sources—are not entitled to the same deference as acceptable medical sources.1

10 Molina, 674 F.3d at 1111; Dale v. Colvin, 823 F.3d 941, 943 (9th Cir. 2016); see

11 20 C.F.R. § 404.1527(f). ALJs must consider nonmedical sources’ lay observations

12 about a claimant’s symptoms or how an impairment affects ability to work. Nguyen

13 v. Chater, 100 F.3d 1462, 1467 (9th Cir. 1996). An ALJ may discount a

14 nonmedical source’s opinion by providing reasons “germane” to each witness for

15 doing so. Popa v. Berryhill, 872 F.3d 901, 906 (9th Cir. 2017); Dodrill v. Shalala,

16 12 F.3d 915, 919 (9th Cir. 1993).

17 //

18 //

19

1 For claims filed on or after March 27, 2017, licensed nurse practitioners and physician

assistants can qualify as acceptable medical sources in certain situations. See 20 C.F.R. §

20

404.1502(a)(7)-(8). As Plaintiff filed his claim in 2013, this does not apply here.

1 2. Nonexamining, Robert Hander, M.D.

2 First, Plaintiff argues that the ALJ improperly accorded significant weight to

3 Dr. Hander’s opinion which contained “virtually no analysis or explanation.” ECF

4 No. 12 at 16. In June 2013, Dr. Hander opined that Plaintiff’s reports of limitations

5 were not consistent with the objective medical evidence, nor with the level of

6 treatment sought. AR 134. However, Dr. Hander acknowledged that Plaintiff did

7 have some limitations which the ALJ accounted for in his RFC assessment. AR 26-

8 27, 136-38.

9 The ALJ assigned significant weight to Dr. Hander’s opinion because it

10 accounted for Plaintiff’s subjective complaints and the limitations he opined were

11 largely consistent with the objective medical evidence, including the findings of

12 examining physician Dr. Drenguis. AR 27. The opinion of a nonexamining

13 physician may serve as substantial evidence if it is supported by other evidence in

14 the record and is consistent with it. Andrews, 53 F.3d at 1041.

15 Because the ALJ presented multiple clear and convincing reasons to

16 substantiate his reasonable interpretation of Dr. Hander’s opinion along with other

17 evidence in the record, the Court will not second-guess it. See Reddick v. Chater,

18 157 F.3d 715, 725 (9th Cir. 1998); Rollins, 261 F.3d at 857; Molina, 674 F.3d at

19 1111; Thomas, 278 F.3d at 954; supra at p. 23. Thus, the Court finds the ALJ did

20 not err in his consideration of Dr. Hander’s opinion.

1 3. Examining physician, William Drenguis, M.D.

2 Second, Plaintiff argues that the ALJ improperly rejected portions of Dr.

3 Drenguis’ opinion. ECF No. 12 at 17. In March 2013, Dr. Drenguis opined that

4 Plaintiff was limited by his failed back surgery syndrome and as such his

5 maximum standing and walking capacity in an eight-hour workday would be about

6 four hours; his maximum lifting and carrying capacity would be 20 pounds

7 occasionally and 10 pounds frequently; and only occasionally stoop, kneel, crouch

8 or crawl. AR 471.

9 The ALJ afforded significant weight to Dr. Dremguis’ opinion because his

10 assessment was supported by his examination findings and largely consistent with

11 other objective evidence in the record. AR 26. However, the ALJ rejected Dr.

12 Drenguis’ conclusion that Plaintiff was limited to sitting for four hours out of an

13 eight-hour workday because it was inconsistent with the doctor’s own findings as

14 well as other findings in the record. AR 26. A discrepancy between a provider's

15 notes and observations and the provider's functional assessment is a clear and

16 convincing reason for not relying on the doctor's opinion. Bayliss, 427 F.3d at

17 1216. Additionally, an ALJ may reject a doctor’s opinion when it is inconsistent

18 with other evidence in the record. See Morgan, 169 F.3d at 600. Even so, the ALJ

19 accounted for Dr. Drenguis’ opinion by limiting Plaintiff’s postural activities and

20

1 finding that he would be off-task for up to 10 percent of an eight-hour workday.

2 AR 26.

3 Because the ALJ presented a reasonable interpretation of Dr. Drenguis’

4 opinion along with other evidence in the record, the Court will not second-guess it.

5 See Reddick, 157 F.3d at 725; Rollins, 261 F.3d at 857; Molina, 674 F.3d at 1111;

6 Thomas, 278 F.3d at 954; supra at p. 23. Thus, the Court finds the ALJ did not err

7 in his consideration of Dr. Drenguis’ opinion.

8 4. Treating physician, K. Scott Reinmuth, M.D.

9 Lastly, Plaintiff asserts that the ALJ erred by not providing specific and

10 legitimate reasons for selectively rejecting portions of Dr. Reinmuth’s treating

11 opinion. ECF No. 12 at 19. In January 2015, Dr. Reinmuth opined that Plaintiff’s

12 spine disorder would likely worsen at a faster rate if he worked in manual labor;

13 that the prognosis of his condition was poor; and that he would likely miss four or

14 more days of work per month due to his medical impairments.AR 597-98. Dr.

15 Reinmuth later submitted a nearly identical opinion form in October 2016. AR

16 599-600.

17 The ALJ accorded great weight to Dr. Reinmuth’s opinion that Plaintiff’s

18 spine condition would worsen with manual labor. AR 27. However, the ALJ

19 accorded little weight to the remainder of the doctor’s opinions because they were

20 largely inconsistent with Plaintiff’s treatment records and results. Id. It is not

1 necessary for an ALJ to agree with everything an expert witness says in order to

2 conclude the testimony constitutes substantial evidence. Russell v. Bowen, 856

3 F.2d 81, 83 (9th Cir. 1988). It is the ALJ's task to sort through “conflicting clinical

4 evidence, stat[e] his interpretation thereof, and mak[e] findings,” which the ALJ

5 did here. See Reddick, 157 F.3d at 725. Regardless, the ALJ factored Dr.

6 Reinmuth’s opinion into Plaintiff’s RFC by finding that Plaintiff could be off-task

7 about 10 percent of the time during an eight-hour workday Id.

8 Accordingly, because the ALJ presented a reasonable interpretation of Dr.

9 Reinmuth’s opinion along with other evidence in the record, the Court will not

10 second-guess it. See Reddick, 157 F.3d at 725; Rollins, 261 F.3d at 857; Molina,

11 674 F.3d at 1111; Thomas, 278 F.3d at 954; supra at p. 23. Thus, the Court finds

12 the ALJ did not err in his consideration of Dr. Reinmuth’s opinion.

13 VIII. CONCLUSION

14 Having reviewed the record and the ALJ’s findings, the Court finds the

15 ALJ’s decision is supported by substantial evidence and is free from legal error.

16 Accordingly, IT IS ORDERED:

17 1. Plaintiff’s Motion for Summary Judgment, ECF No. 12, is DENIED.

18 2. Defendant’s Motion for Summary Judgment, ECF No. 13, is

19 GRANTED.

20

1 3. Judgment shall be entered in favor of Defendant and the file shall be

2 CLOSED.

3 IT IS SO ORDERED. The District Court Executive is directed to enter this Order,

4 forward copies to counsel and close the file.

5 DATED this 27th day of September, 2019.

6 s/Robert H. Whaley

ROBERT H. WHALEY

Senior United States District Judge

7

8

9

10

11

12

13

14

15

16

17

18

19

20