Garbe v. Commissioner of Social Security

1 EASTERUN. SD.I SDTIRSITCRTI COTF CWOAUSRHTI NGTON

2 Mar 30, 2020

3 SEAN F. MCAVOY, CLERK

4

5 UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF WASHINGTON

6

7 DENNIS G.,

NO: 1:19-CV-03016-FVS

8 Plaintiff,

ORDER GRANTING DEFENDANT’S

9 v. MOTION FOR SUMMARY

JUDGMENT AND DENYING

10 COMMISSIONER OF SOCIAL PLAINTIFF’S MOTION FOR

SECURITY, SUMMARY JUDGMENT

11

Defendant.

12

13 BEFORE THE COURT are the parties’ cross motions for summary

14 judgment. ECF Nos. 10, 11. This matter was submitted for consideration without

15 oral argument. The Plaintiff is represented by Attorney D. James Tree. The

16 Defendant is represented by Special Assistant United States Attorney Sarah L.

17 Martin. The Court has reviewed the administrative record and the parties’

18 completed briefing and is fully informed. For the reasons discussed below, the

19 court GRANTS Defendant’s Motion for Summary Judgment, ECF No. 11, and

20 DENIES Plaintiff’s Motion for Summary Judgment, ECF No. 10.

21 JURISDICTION

1 Plaintiff Dennis G. protectively filed for supplemental security income on

2 October 23, 2014, alleging an onset date of October 15, 2008. Tr. 346-51. At the

3 hearing, the alleged onset date was amended to October 23, 2014. Tr. 119. Benefits

4 were denied initially, Tr. 229-32, and upon reconsideration, Tr. 236-46. Plaintiff

5 appeared for a hearing before an administrative law judge (“ALJ”) on July 18, 2017.

6 Tr. 116-49. Plaintiff was represented by counsel and testified at the hearing. Id.

7 The ALJ denied benefits, Tr. 12-35, and the Appeals Council denied review. Tr. 1.

8 The matter is now before this court pursuant to 42 U.S.C. § 1383(c)(3).

9 BACKGROUND

10 The facts of the case are set forth in the administrative hearing and

11 transcripts, the ALJ’s decision, and the briefs of Plaintiff and the Commissioner.

12 Only the most pertinent facts are summarized here.

13 Plaintiff was 42 years old at the time of the hearing. See Tr. 121. He did not

14 graduate from high school, and testified that he got his GED. Tr. 122. Plaintiff

15 lives alone. Tr. 121. He has work history as a bartender, waiter, and salesperson.

16 Tr. 144. Plaintiff testified that he cannot work because he cannot climb ladders, he

17 has to elevate his leg all the time because of swelling, and because of depression.

18 Tr. 127-30.

19

1 In the interest of protecting Plaintiff’s privacy, the Court will use Plaintiff’s first

20

name and last initial, and, subsequently, Plaintiff’s first name only, throughout this

21

1 Plaintiff testified that he has to elevate his leg above his heart for at least 20

2 minutes out of every hour. Tr. 129. He reported that he has depression depending

3 “on what’s going on in [his] life,” and he has night terrors. Tr. 130-31. Plaintiff

4 also testified that he has side effects from his HIV medication, including dry

5 mouth, diarrhea, and cramping; and he has to lie down and go to sleep three to four

6 times a month due to groin pain. Tr. 133-37. Plaintiff testified that he can sit for

7 no more than an hour or so before he has to stand up and stretch out, he can stand

8 and walk for about an hour before he has to sit down, and he can lift no more than

9 20-25 pounds. Tr. 140-41.

10 STANDARD OF REVIEW

11 A district court’s review of a final decision of the Commissioner of Social

12 Security is governed by 42 U.S.C. § 405(g). The scope of review under § 405(g) is

13 limited; the Commissioner’s decision will be disturbed “only if it is not supported

14 by substantial evidence or is based on legal error.” Hill v. Astrue, 698 F.3d 1153,

15 1158 (9th Cir. 2012). “Substantial evidence” means “relevant evidence that a

16 reasonable mind might accept as adequate to support a conclusion.” Id. at 1159

17 (quotation and citation omitted). Stated differently, substantial evidence equates to

18 “more than a mere scintilla[,] but less than a preponderance.” Id. (quotation and

19 citation omitted). In determining whether the standard has been satisfied, a

20 reviewing court must consider the entire record as a whole rather than searching

21 for supporting evidence in isolation. Id.

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

2 judgment for that of the Commissioner. If the evidence in the record “is

3 susceptible to more than one rational interpretation, [the court] must uphold the

4 ALJ’s findings if they are supported by inferences reasonably drawn from the

5 record.” Molina v. Astrue, 674 F.3d 1104, 1111 (9th Cir. 2012). Further, a district

6 court “may not reverse an ALJ’s decision on account of an error that is harmless.”

7 Id. An error is harmless “where it is inconsequential to the [ALJ’s] ultimate

8 nondisability determination.” Id. at 1115 (quotation and citation omitted). The

9 party appealing the ALJ’s decision generally bears the burden of establishing that

10 it was harmed. Shinseki v. Sanders, 556 U.S. 396, 409-10 (2009).

11 FIVE–STEP SEQUENTIAL EVALUATION PROCESS

12 A claimant must satisfy two conditions to be considered “disabled” within

13 the meaning of the Social Security Act. First, the claimant must be “unable to

14 engage in any substantial gainful activity by reason of any medically determinable

15 physical or mental impairment which can be expected to result in death or which

16 has lasted or can be expected to last for a continuous period of not less than twelve

17 months.” 42 U.S.C. § 1382c(a)(3)(A). Second, the claimant’s impairment must be

18 “of such severity that he is not only unable to do his previous work[,] but cannot,

19 considering his age, education, and work experience, engage in any other kind of

20 substantial gainful work which exists in the national economy.” 42 U.S.C. §

21 1382c(a)(3)(B).

1 The Commissioner has established a five-step sequential analysis to

2 determine whether a claimant satisfies the above criteria. See 20 C.F.R. §

3 416.920(a)(4)(i)-(v). At step one, the Commissioner considers the claimant’s work

4 activity. 20 C.F.R. § 416.920(a)(4)(i). If the claimant is engaged in “substantial

5 gainful activity,” the Commissioner must find that the claimant is not disabled. 20

6 C.F.R. § 416.920(b).

7 If the claimant is not engaged in substantial gainful activity, the analysis

8 proceeds to step two. At this step, the Commissioner considers the severity of the

9 claimant’s impairment. 20 C.F.R. § 416.920(a)(4)(ii). If the claimant suffers from

10 “any impairment or combination of impairments which significantly limits [his or

11 her] physical or mental ability to do basic work activities,” the analysis proceeds to

12 step three. 20 C.F.R. § 416.920(c). If the claimant’s impairment does not satisfy

13 this severity threshold, however, the Commissioner must find that the claimant is

14 not disabled. 20 C.F.R. § 416.920(c).

15 At step three, the Commissioner compares the claimant’s impairment to

16 severe impairments recognized by the Commissioner to be so severe as to preclude

17 a person from engaging in substantial gainful activity. 20 C.F.R. §

18 416.920(a)(4)(iii). If the impairment is as severe or more severe than one of the

19 enumerated impairments, the Commissioner must find the claimant disabled and

20 award benefits. 20 C.F.R. § 416.920(d).

21 If the severity of the claimant’s impairment does not meet or exceed the

1 the claimant’s “residual functional capacity.” Residual functional capacity (RFC),

2 defined generally as the claimant’s ability to perform physical and mental work

3 activities on a sustained basis despite his or her limitations, 20 C.F.R. §

4 416.945(a)(1), is relevant to both the fourth and fifth steps of the analysis.

5 At step four, the Commissioner considers whether, in view of the claimant’s

6 RFC, the claimant is capable of performing work that he or she has performed in

7 the past (past relevant work). 20 C.F.R. § 416.920(a)(4)(iv). If the claimant is

8 capable of performing past relevant work, the Commissioner must find that the

9 claimant is not disabled. 20 C.F.R. § 416.920(f). If the claimant is incapable of

10 performing such work, the analysis proceeds to step five.

11 At step five, the Commissioner considers whether, in view of the claimant’s

12 RFC, the claimant is capable of performing other work in the national economy.

13 20 C.F.R. § 416.920(a)(4)(v). In making this determination, the Commissioner

14 must also consider vocational factors such as the claimant’s age, education and

15 past work experience. 20 C.F.R. § 416.920(a)(4)(v). If the claimant is capable of

16 adjusting to other work, the Commissioner must find that the claimant is not

17 disabled. 20 C.F.R. § 416.920(g)(1). If the claimant is not capable of adjusting to

18 other work, analysis concludes with a finding that the claimant is disabled and is

19 therefore entitled to benefits. 20 C.F.R. § 416.920(g)(1).

20 The claimant bears the burden of proof at steps one through four above.

21 Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999). If the analysis proceeds to

1 capable of performing other work; and (2) such work “exists in significant

2 numbers in the national economy.” 20 C.F.R. § 416.960(c)(2); Beltran v. Astrue,

3 700 F.3d 386, 389 (9th Cir. 2012).

4 ALJ’S FINDINGS

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

6 gainful activity since October 23, 2014, the amended alleged onset date. Tr. 17.

7 At step two, the ALJ found that Plaintiff has the following severe impairments:

8 lumbar degenerative disc disease and joint disease, recurrent hernias with status

9 post repair, major depressive disorder, and posttraumatic stress disorder. Tr. 17.

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

11 combination of impairments that meets or medically equals the severity of a listed

12 impairment. Tr. 19. The ALJ then found that Plaintiff has the RFC

13 to perform light work as defined in 20 CFR 416.967(b) except he can lift

and/or carry 20 pounds occasionally and 10 pounds frequently; he can sit

14 about 6 hours as well as stand and/or walk about 2 hours in an 8-hour

workday with regular breaks; he has an unlimited ability to push/pull within

15 these exertional limitations; he can occasionally climb ramps and stairs, but

never climb ladders, ropes, and scaffolds; he can occasionally stoop, kneel,

16 crouch, crawl, and balance; and he must avoid even moderate exposure to

wetness and hazards. He can understand, remember, and carry out simple as

17 well as routine tasks. He should work away from the general public. He can

have occasional superficial contact with coworkers and adjust to occasional

18 and expected changes in the workplace.

19 Tr. 20-21. At step four, the ALJ found that Plaintiff is unable to perform any past

20 relevant work. Tr. 27. At step five, the ALJ found that considering Plaintiff’s age,

21 education, work experience, and RFC, there are jobs that exist in significant

1 escort vehicle driver, and toy assembler/stuffer. Tr. 27-28. On that basis, the ALJ

2 concluded that Plaintiff has not been under a disability, as defined in the Social

3 Security Act, since October 23, 2014, the amended alleged onset date of disability.

4 Tr. 28.

5 ISSUES

6 Plaintiff seeks judicial review of the Commissioner’s final decision denying

7 her supplemental security income benefits under Title XVI of the Social Security

8 Act. ECF No. 10. Plaintiff raises the following issues for this Court’s review:

9 1. Whether the ALJ erred at step two;

10 2. Whether the ALJ properly considered Plaintiff’s symptom claims; and

11 3. Whether the ALJ properly weighed the medical opinion evidence.

12 DISCUSSION

13 A. Step Two

14 At step two, a claimant must first establish that he or she suffers from a

15 medically determinable impairment. See Ukolov v. Barnhart, 420 F.3d 1002,

16 1004-1005 (9th Cir. 2005). The claimant must prove the existence physical or

17 mental impairment by providing medical evidence consisting of signs, symptoms,

18 and laboratory findings; the claimant's own statement of symptoms alone will not

19 suffice. 20 C.F.R. §§ 404.1508, 416.908 (1991). “Under no circumstances may the

20 existence of an impairment be established on the basis of symptoms alone.” S.S.R.

21 96-4p. Further, “regardless of how many symptoms an individual alleges, or how

1 determinable physical or mental impairment cannot be established in the absence

2 of objective medical abnormalities, i.e., medical signs and laboratory findings.” Id.

3 Thus, objective evidence must be present to establish a medically determinable

4 impairment.

5 To be considered ‘severe’ at step two of the sequential analysis, an

6 impairment must significantly limit an individual’s ability to perform basic work

7 activities. 20 C.F.R. §§ 404.1520(c), 416.920(c); also Smolen v. Chater, 80 F.3d

8 1273, 1290 (9th Cir.1996). An impairment that is ‘not severe’ must be a slight

9 abnormality (or a combination of slight abnormalities) that has no more than a

10 minimal effect on the ability to do basic work activities. SSR 96-3p, 1996 WL

11 374181 at *1 (July 2, 1996). Plaintiff bears the burden to establish the existence of

12 a severe impairment or combination of impairments, which prevent him from

13 performing substantial gainful activity, and that the impairment or combination of

14 impairments lasted for at least twelve continuous months. 20 C.F.R. §§ 404.1505,

15 404.1512(a); Edlund v. Massanari, 253 F.3d 1152, 1159-60 (9th Cir. 2011).

16 However, step two is “a de minimus screening device [used] to dispose of

17 groundless claims.” Smolen, 80 F.3d at 1290. “Thus, applying our normal

18 standard of review to the requirements of step two, we must determine whether the

19 ALJ had substantial evidence to find that the medical evidence clearly established

20 that [Plaintiff] did not have a medically severe impairment or combination of

21 impairments.” Webb v. Barnhart, 433 F.3d 683, 687 (9th Cir. 2005).

1 Here, the ALJ resolved step two in Plaintiff’s favor, finding Plaintiff has the

2 following severe impairments: lumbar degenerative disc disease and joint disease,

3 recurrent hernias with status post repair, major depressive disorder, and

4 posttraumatic stress disorder. Tr. 17. Despite this finding, Plaintiff argues the ALJ

5 erred by failing to consider Plaintiff’s HIV and lymphedema severe, and finding

6 Plaintiff’s carpal tunnel syndrome not medically determinable. ECF No. 10 at 3-8.

7 1. Carpal Tunnel Syndrome

8 Here, the ALJ found that while the record “mentions carpal tunnel

9 syndrome,” it does not qualify as a medically determinable impairment because

10 there was no treatment for the condition, the diagnosis was only listed once and

11 “was not repeated again subsequently, “ and the record contains no objective

12 evidence to establish the existence of such condition. Tr. 17. Plaintiff argues the

13 ALJ erred because “a positive Tinel’s and Phalen’s test were found[, and an] EMG

14 also showed mild left carpal tunnel.” ECF No. 10 at 8 (citing Tr. 449, 1143). As

15 an initial matter, the Court notes that the EMG test cited by Plaintiff was from

16 November 2002, two years prior to the amended alleged onset date of October 23,

17 2014, and the test revealed “very mild carpal tunnel syndrome.” Tr. 449. The

18 Court may disregard statements of disability made outside the relevant time period.

19 See Turner v. Comm'r of Soc. Sec., 613 F.3d 1217, 1224 (9th Cir. 2010).

20 Moreover, Plaintiff does not cite any evidence “consisting of signs, symptoms, and

21 laboratory findings” to support a finding that carpal tunnel syndrome was a

1 from a single treatment note finding positive Tinel and Phalen tests on the left

2 upper extremity, with no accompanying diagnosis or mention of carpal tunnel

3 syndrome. Tr. 1143.

4 Finally, Plaintiff fails to cite any specific limitation resulting from carpal

5 tunnel, at any point in the longitudinal record, that was not included in the assessed

6 RFC. See Valentine v. Comm’r Soc. Sec. Admin., 574 F.3d 685, 692, n.2 (9th Cir.

7 2009); Molina, 674 F.3d at 1111 (an error is harmless “where it is inconsequential

8 to the [ALJ's] ultimate nondisability determination”); Kay v. Heckler, 754 F.2d

9 1545, 1549 (9th Cir. 1985) (the “mere diagnosis of an impairment … is not

10 sufficient to sustain a finding of disability.”). For all of these reasons, the Court

11 finds the ALJ did not err in failing to find carpal tunnel syndrome was a medically

12 determinable impairment.

13 2. Human Immunodeficiency Virus (HIV)

14 Plaintiff was diagnosed with HIV in late 2016, and began antiretroviral

15 treatment in March 2017. Tr. 17. Plaintiff testified that he experienced

16 “significant side effects” from the HIV medication, including, diarrhea, cramping,

17 weakness, erratic and restless sleep, and dry mouth. Tr. 133-34. However, as

18 noted by the ALJ, Plaintiff “did not report such side effects to his providers, and in

19 fact, he has not seen his specialty HIV provider, who prescribed his medication,

20 again. Nothing in the record indicates that he has problems related to HIV that

21 would impact his work capacity.” Tr. 17-18. Plaintiff contends that he did report

1 argument, including (1) treatment notes indicating that HIV is “associated with

2 abdominal pain, chills, and fatigue”; (2) Plaintiff “went to New Hope for treatment

3 in the fall of 2016 and in March 2017,” therefore the “pattern of treatment visits []

4 indicates he was being seen there every 3-4 months”; and (3) Plaintiff’s self-report,

5 at three treatment visits, that he had some combination of chills, dizziness,

6 weakness, headaches, abdominal pain, constipation, and nausea. ECF No. 10 at 4

7 (citing Tr. 1296).

8 However, after reviewing the records cited by Plaintiff, the Court finds his

9 argument is unavailing. First, while Plaintiff’s treating provider did note that “HIV

10 itself” was associated with certain symptoms, the same visit indicates that Plaintiff

11 did not display any of those symptoms and his viral load was low. Tr. 1295-96.

12 Second, Plaintiff cites no evidence in the record to contradict the ALJ’s finding

13 that he did not see his specialty HIV provider after March 2017; and the Court

14 declines to infer a “pattern of treatment” that somehow indicates he was there

15 “every 3-4 months.” As noted by Defendant, Plaintiff “asserts that not all

16 treatment notes from this clinic are in the record, but it was his burden to prove

17 disability, and the lack of evidence in the record cannot establish this as a severe

18 impairment.” ECF No. 11 at 3 (citing 20 C.F.R. § 416.912(a) (claimant has the

19 burden to produce medical evidence sufficient to show disability)). Third, and

20 finally, while Plaintiff cites his reports of chills, dizziness, weakness, headaches,

21 abdominal pain, constipation, and nausea in 2017, none of these records indicate

1 HIV. See Tr. 1255, 1267, 1292. Based on the foregoing, the Court finds the ALJ

2 properly found that “[n]othing in the record indicates that he has problems related

3 to HIV that would impact his work capacity,” and thus, HIV is a medically

4 determinable non-severe impairment. Tr. 18.

5 3. Lymphadenopathy, Cellulitis, and Edema

6 Here, the ALJ gives a detailed account of Plaintiff’s treatment for

7 lymphadenopathy, cellulitis, and edema across the relevant adjudicatory period.

8 Tr. 18-19. Then, the ALJ summarizes the evidence and concludes as follows:

9 [i]n sum, [Plaintiff] had mild right leg swelling in 2014, which was related to

temporary right knee effusion. He then develop left leg swelling in 2015,

10 which related to his lymph node biopsy in April 2015. This resolved within

a few months following treatment. Then, there were no complaints of

11 swelling, pain from swelling, or difficulties with functioning due to swelling

for a long period (or supporting physical examination findings) until he had

12 a second occurrence of cellulitis in his right leg about 3 months before the

hearing, at which point he was still being treated for cellulitis. Nothing in

13 the record indicated that this new occurrence of cellulitis would last longer

than 12 months, and given the prior instance of cellulitis, it is reasonable to

14 expect that this condition (and his need to elevate his leg) would not

continue for at least 12 continuous months with treatment. Overlooking

15 cellulitis, to the extent that he has swelling from another cause, the workup

for lymphadenopathy was negative after several biopsies. He has never

16 sought treatment at the lymphedema clinic as directed by his providers on 3

separate occasions. Such lack of follow through is contrary to his

17 complaints of constant swelling, pain, and need to elevate his leg while

sitting. He has had no ongoing treatment for either edema or

18 lymphadenopathy.

19 Tr. 19.

20 As an initial matter, the Court notes that Plaintiff failed to challenge several

21 of the ALJ’s reasons for finding these impairments were not severe at step two,

1 being directed to do so on three separate occasions, and had no ongoing treatment

2 for either edema or lymphadenopathy, and (2) Plaintiff’s “allegations of

3 progressive worsening, significant edema and pain, and functional problems are

4 inconsistent with the medical record.” Tr. 19. See Carmickle v. Comm’r of Soc.

5 Sec. Admin., 533 F.3d 1155, 1161 n.2 (9th Cir. 2008) (court may decline to address

6 issues not identified with specificity in Plaintiff’s opening brief). Moreover,

7 Plaintiff’s opening brief documents almost exactly the same history of

8 lymphadenopathy, cellulitis, and edema as the ALJ’s decision (Tr. 523, 531, 537,

9 620, 640, 703, 1129, 1179, 1227, 1218-19, 1226, 1235, 1238-40, 1341); and

10 Plaintiff additionally cites treatment notes and imaging relating to enlarged lymph

11 nodes, without any accompanying reference to pain or swelling of his lower

12 extremities (Tr. 635, 646, 658, 1018, 1181, 1238-39, 1268, 1364). Based on largely

13 the same evidence of the claimed impairments already considered by the ALJ,

14 Plaintiff contends that the ALJ “harmfully erred by failing to consider the recurrent

15 nature of the disorder and whether this chronic swelling would have ‘more than

16 minimal effect’ on any basic work activity . . . sufficient to meet the de minimus

17 standard.” ECF No. 10 at 5-6. However, the ALJ extensively considered evidence

18 of Plaintiff’s claimed limitations from the relevant adjudicatory period, and thus

19 the Court finds it was reasonable for the ALJ to conclude that “[b]ecause there is

20 no 12-month period during which he has had continuous swelling in either his right

21 or left leg (overlooking that his edema had more than one cause depending on the

1 a severe impairment. They do not meet the durational requirement.” Tr. 19; 20

2 C.F.R. §§ 416.905 (the impairment or combination of impairments has lasted or

3 can be expected to last for at least twelve continuous months). “[W]here evidence

4 is susceptible to more than one rational interpretation, it is the [Commissioner’s]

5 conclusion that must be upheld.” See Burch v. Barnhart, 400 F.3d 676, 679 (9th

6 Cir. 2005). Thus, the Court finds the ALJ did not err in finding Plaintiff’s

7 lymphadenopathy, cellulitis, and edema were not severe at step two.

8 Finally, and most notably, the ALJ specifically noted that because the

9 medical opinions to which he gave great weight “incorporate the effects of edema

10 on his work capacity, acceptance of his edema as a severe impairment due to any

11 cause (i.e. cellulitis, lymphadenopathy, etc.) would not change his physical residual

12 functional capacity.” Tr. 25 n.1. Therefore, even were the Court to find that the

13 ALJ improperly considered these claimed impairments at step two, any error

14 would be harmless because the ALJ specifically found any that any limitations

15 resulting from these claimed impairments were properly accounted for in the

16 assessed RFC. See Lewis v. Astrue, 498 F.3d 909, 911 (9th Cir. 2007) (holding

17 that ALJ’s failure to list plaintiff’s bursitis as a severe impairment at step two was

18 harmless where ALJ considered limitations caused by the condition at step four);

19 see also Molina, 674 F.3d at 1115 (error is harmless “where it is inconsequential to

20 the [ALJ’s] ultimate nondisability determination).

21 B. Plaintiff’s Symptom Claims

1 An ALJ engages in a two-step analysis when evaluating a claimant’s

2 testimony regarding subjective pain or symptoms. “First, the ALJ must determine

3 whether there is objective medical evidence of an underlying impairment which

4 could reasonably be expected to produce the pain or other symptoms alleged.”

5 Molina, 674 F.3d at 1112 (internal quotation marks omitted). “The claimant is not

6 required to show that her impairment could reasonably be expected to cause the

7 severity of the symptom he has alleged; he need only show that it could reasonably

8 have caused some degree of the symptom.” Vasquez v. Astrue, 572 F.3d 586, 591

9 (9th Cir. 2009) (internal quotation marks omitted).

10 Second, “[i]f the claimant meets the first test and there is no evidence of

11 malingering, the ALJ can only reject the claimant’s testimony about the severity of

12 the symptoms if [the ALJ] gives ‘specific, clear and convincing reasons’ for the

13 rejection.” Ghanim v. Colvin, 763 F.3d 1154, 1163 (9th Cir. 2014) (internal

14 citations and quotations omitted). “General findings are insufficient; rather, the

15 ALJ must identify what testimony is not credible and what evidence undermines

16 the claimant’s complaints.” Id. (quoting Lester, 81 F.3d at 834); Thomas v.

17 Barnhart, 278 F.3d 947, 958 (9th Cir. 2002) (“[T]he ALJ must make a credibility

18 determination with findings sufficiently specific to permit the court to conclude

19 that the ALJ did not arbitrarily discredit claimant’s testimony.”). “The clear and

20 convincing [evidence] standard is the most demanding required in Social Security

21 cases.” Garrison v. Colvin, 759 F.3d 995, 1015 (9th Cir. 2014) (quoting Moore v.

1 Here, the ALJ found Plaintiff’s medically determinable impairments could

2 reasonably be expected to cause some of the alleged symptoms; however,

3 Plaintiff’s “statements concerning the intensity, persistence and limiting effects of

4 these symptoms are not entirely consistent with the medical evidence and other

5 evidence in the record” for several reasons. Tr. 21.

6 1. Lack of Objective Medical Evidence

7 First, the ALJ found that Plaintiff’s claimed back pain and edema, as well as

8 his claimed mental health limitations, were not consistent with the medical

9 evidence. Tr. 22-23. An ALJ may not discredit a claimant’s pain testimony and

10 deny benefits solely because the degree of pain alleged is not supported by

11 objective medical evidence. Rollins v. Massanari, 261 F.3d 853, 857 (9th Cir.

12 2001); Bunnell v. Sullivan, 947 F.2d 341, 346-47 (9th Cir. 1991); Fair v. Bowen,

13 885 F.2d 597, 601 (9th Cir. 1989). However, the medical evidence is a relevant

14 factor in determining the severity of a claimant’s pain and its disabling effects.

15 Rollins, 261 F.3d at 857; 20 C.F.R. § 404.1529(c)(2).

16 Here, the ALJ set out the medical evidence contradicting Plaintiff’s claims

17 of disabling limitations. As to his claimed physical impairments, the ALJ found

18 (1) that Plaintiff’s complaints about edema were determined not to be severe, in

19 large part because they were not consistent with the medical record, and (2)

20 Plaintiff’s allegations of back pain are not consistent with the record. Tr. 18-19,

21 22. First, Plaintiff argues the ALJ improperly found his edema was not severe;

1 claimed impairments related to edema were not severe at step two. Second, as to

2 his claims of back pain and herniated discs, Plaintiff contends “several providers

3 assessed disabling spinal limitations,” and the ALJ “made no mention of objective

4 findings showing moderately severe DDD by 2016.” ECF No. 10 at 18. However,

5 the ALJ noted that x-ray findings in May 2015 showed degenerative changes at

6 L5-S1 with only mild anteriolisthesis and no herniated disc seen, no nerve testing

7 was conducted to establish radiculopathy, the “record [has] not focused much on

8 his back pain generally given the focus on his intermittent instances of edema and

9 urological issues.” Tr. 22, 616, 1119-1419; see Burch, 400 F.3d at 680 (minimal

10 objective evidence is a factor which may be relied upon in discrediting a claimant’s

11 testimony, although it may not be the only factor).

12 As to his claimed mental health limitations, the ALJ found Plaintiff’s

13 “allegations of disabling depression and anxiety are inconsistent with the record.”

14 Tr. 23. Plaintiff does not identify or challenge this reason in his opening brief;

15 thus, the Court may decline to address the issue. See Carmickle, 533 F.3d at 1161

16 n.2. Regardless, in support of this finding, the ALJ noted that Plaintiff reported in

17 February 2015 that his depression did not cause significant distress or impairment

18 in functioning; treatment notes indicated Plaintiff’s depression and PTSD were

19 well managed with medication; his main complaint during “brief” mental health

20 treatment in 2015 was nightmares, interpersonal conflict, and new housing as

21 opposed to the “depression or anxiety in crowds to which he testified”; and mental

1 health examinations and observation findings were largely normal. Tr. 22-23

2 (citing Tr. 627-29, 866, 869-71, 1006-10).

3 Based on the foregoing, and regardless of evidence that could be considered

4 more favorable to Plaintiff, it was reasonable for the ALJ to find the severity of

5 Plaintiff’s symptom claims was inconsistent with medical evidence. See Burch,

6 400 F.3d at 679 (ALJ’s conclusion must be upheld where evidence is susceptible to

7 more than one rational interpretation). This lack of corroboration of Plaintiff’s

8 claimed limitations by the medical evidence was a clear and convincing reason,

9 supported by substantial evidence, for the ALJ to discount Plaintiff’s symptom

10 claims.

11 2. Failure to Seek and Comply with Treatment

12 Second, the ALJ found the record “contains very little mental health

13 treatment during the relevant period, as most of it occurred [prior to the relevant

14 time period] in 2012 and earlier,” and Plaintiff “has not follow[ed] through with

15 treatment twice, once in 2014 and another in 2015. . . . A lack of treatment follow

16 through, especially in his case where he does not just stay home daily and prefers

17 to leave his home, is indicative of a lack of severe mental challenges.” Tr. 22-23.

18 Unexplained, or inadequately explained, failure to seek treatment or follow a

19 prescribed course of treatment may be the basis for an adverse credibility finding

20 unless there is a showing of a good reason for the failure. Orn v. Astrue, 495 F.3d

21 625, 638 (9th Cir. 2007). In support of this finding, the ALJ cites evidence that

1 discharged from mental health treatment due to excessive no-shows and

2 cancellations; and then in 2015 Plaintiff reported his depression “did not cause

3 significant distress or impairment in functioning,” he did not struggle significantly

4 when getting upset, and his past trauma did not affect his quality of life. Tr. 22,

5 564, 872, 1006-10. The ALJ also noted that while Plaintiff “underwent brief

6 mental health treatment” in 2015, his “main complaints” were nightmares, physical

7 complaints, and interpersonal complaints, and Plaintiff “again stopped going to

8 treatment and was discharged shortly thereafter.” Tr. 22-23, 859, 866, 869-71.

9 Plaintiff argues the ALJ failed to consider that (1) Plaintiff discussed an

10 agreed upon break in treatment with this therapist, (2) “there is evidence [that

11 Plaintiff] lost his insurance benefits to get medication,” and (3) “on several

12 occasions [Plaintiff] indicated functioning was ‘very’ to ‘extremely’ difficult.”

13 ECF No. 10 at 18 (citing Tr. 869, 971, 992, 1308, 1342). An ALJ “will not find an

14 individual’s symptoms inconsistent with the evidence in the record on this basis

15 without considering possible reasons he or she may not comply with treatment or

16 seek treatment consistent with the degree of his or her complaints.” Social

17 Security Ruling (“SSR”) 16-3p at *8-*9 (March 16, 2016), available at 2016 WL

18 1119029. However, the Court’s review of the records cited by Plaintiff indicate

19 that while Plaintiff discussed the possibility of a “break in treatment for CPT” at an

20 appointment in May 2015, at the next appointment Plaintiff decided to postpone

21 CPT treatment and instead “begin treatment focus for his depression.” Tr. 868-69.

1 from treatment in September 2015 “due to Failed to Return.” Tr. 859. Moreover,

2 the same treatment note cited by Plaintiff indicating that he “lost his benefits for”

3 medication, also states he “can now get them back.” Tr. 971. And finally,

4 regardless of evidence in the record that could be considered favorable to Plaintiff,

5 it was reasonable for the ALJ to conclude that Plaintiff’s failure to seek and

6 comply with treatment was inconsistent with the alleged severity of his complaints.

7 See Burch, 400 F.3d at 679 (where evidence is susceptible to more than one

8 interpretation, the ALJ’s conclusion must be upheld). This was a clear and

9 convincing reason for the ALJ to discredit Plaintiff’s symptom claims.

10 3. Daily Activities

11 Third, the ALJ noted that Plaintiff “was able to do a wide range of activities

12 in spite of his impairments, including the ability to care for himself, be in public

13 environments, leave his home, move residences, schedule appointments,” and live

14 independently. Tr. 23, 618. As noted by Plaintiff, a claimant need not be utterly

15 incapacitated in order to be eligible for benefits. ECF No. 10 at 19 (citing Fair,

16 885 F.2d at 603); see also Orn, 495 F.3d at 639 (“the mere fact that a plaintiff has

17 carried on certain activities . . . does not in any way detract from her credibility as

18 to her overall disability.”). Regardless, even where daily activities “suggest some

19 difficulty functioning, they may be grounds for discrediting the [Plaintiff’s]

20 testimony to the extent that they contradict claims of a totally debilitating

21 impairment.” Molina, 674 F.3d at 1113.

1 In further support of this finding, the ALJ cites Plaintiff’s self-report that he

2 walked as his primary mode of transportation, was not physically limited in doing

3 laundry, tried his “darndest” to get out of the house daily, worked on computers as

4 a hobby, completed daily hygiene tasks, prepared his own meals, scheduled his

5 own appointments, went shopping, and did all chores independently. Tr. 22, 624-

6 25, 1006-08. Plaintiff briefly argues that his ability to perform “some basic self-

7 care, [that he] sometimes had a hobby, and [that he] had to work hard just to leave

8 the house is not inconsistent with testimony of mental health limitations.” ECF

9 No. 10 at 19. However, regardless of evidence that could be viewed more

10 favorably to Plaintiff, it was reasonable for the ALJ to conclude that Plaintiff’s

11 documented daily activities, including caring for all of his personal and household

12 needs entirely independently, was inconsistent with his allegations of

13 incapacitating limitations. Tr. 28; Molina, 674 F.3d at 1113 (Plaintiff’s activities

14 may be grounds for discrediting Plaintiff’s testimony to the extent that they

15 contradict claims of a totally debilitating impairment); See Burch, 400 F.3d at 679

16 (where evidence is susceptible to more than one interpretation, the ALJ’s

17 conclusion must be upheld). This was a clear and convincing reason to discredit

18 Plaintiff’s symptom claims

19 4. Inconsistencies and Reasons for Stopping Work

20 Finally, the ALJ cited “inconsistencies [that] add to [the] finding regarding

21 the lack of veracity of [Plaintiff’s] allegations about the severity of his

1 may consider inconsistencies in Plaintiff’s statements, and between her testimony

2 and her conduct. See Thomas, 278 F.3d at 958-59; Tommasetti, 533 F.3d at 1039

3 (prior inconsistent statements may be considered). First, the ALJ found it “notable

4 that [Plaintiff’s] description of his activities differ substantially between his

5 functional reports and reports to examiners, such as statements about his past time

6 activities, self-care, and household chores.” Tr. 23. Plaintiff argues “[w]hat

7 differences the ALJ had in mind are unstated and thus known.” ECF No. 10 at 19.

8 However, the ALJ specifically cites to Plaintiff’s function reports indicating that he

9 cannot cook, walk more than a block or two, keep a schedule, or manage money,

10 which are are inconsistent with his reports to examiners that he likes to walk,

11 works on computers as a hobby, completes daily tasks, prepares his own meals,

12 schedules his own appointments, goes shopping, and does all chores

13 independently. Tr. 22-23, 413-18, 624-25, 1006-08. Second, the ALJ cites

14 evidence that Plaintiff “did not stop working in his last job for missing work;

15 rather, he evidently was working part-time for a month but stopped because he

16 only received 10 hours per week during the worst shift.” Tr. 23, 626. An ALJ may

17 consider that a claimant stopped working for reasons unrelated to the allegedly

18 disabling condition when weighing the Plaintiff's symptom reports. Bruton v.

19 Massanari, 268 F.3d 824, 828 (9th Cir. 2001). It was reasonable for the ALJ to

20 discount Plaintiff’s symptom claims based on these inconsistencies.

21 Finally, the ALJ found that “[o]ne evaluator noted possible exaggeration,

1 evidence or report of hospitalization) and exaggeration of his diagnosis/history as a

2 way to present himself in the worst possible scenario.” Tr. 23 (citing Tr. 626-27).

3 The tendency to exaggerate is a permissible reason for discounting Plaintiff's

4 symptom claims. See Tonapetyan v. Halter, 242 F.3d 1144, 1148 (9th Cir. 2001).

5 However, Plaintiff correctly noted that the full context of the examining provider’s

6 statement also included findings that Plaintiff was candid and cooperative, and “he

7 does not seem to exaggerate his symptoms and it appears reasonably clear that his

8 description of his PTSD and his depression are both significant.” ECF No. 10 at

9 20 (citing Tr. 627). Thus, to the extent the ALJ relied on exaggeration of

10 symptoms in order to discount Plaintiff’s symptom claims, the Court finds this was

11 not a clear and convincing reason. However, this error is harmless because, as

12 discussed above, the ALJ’s ultimate rejection of Plaintiff’s symptom claims was

13 supported by substantial evidence. See Carmickle, 533 F.3d at 1162-63.

14 The Court concludes that the ALJ provided clear and convincing reasons,

15 supported by substantial evidence, for rejecting Plaintiff’s symptom claims.

16 C. Medical Opinions

17 There are three types of physicians: “(1) those who treat the claimant

18 (treating physicians); (2) those who examine but do not treat the claimant

19 (examining physicians); and (3) those who neither examine nor treat the claimant

20 [but who review the claimant's file] (nonexamining [or reviewing] physicians).”

21 Holohan v. Massanari, 246 F.3d 1195, 1201–02 (9th Cir. 2001) (citations omitted).

1 physician's, and an examining physician's opinion carries more weight than a

2 reviewing physician's. Id. If a treating or examining physician's opinion is

3 uncontradicted, the ALJ may reject it only by offering “clear and convincing

4 reasons that are supported by substantial evidence.” Bayliss v. Barnhart, 427 F.3d

5 1211, 1216 (9th Cir.2005). Conversely, “[i]f a treating or examining doctor's

6 opinion is contradicted by another doctor's opinion, an ALJ may only reject it by

7 providing specific and legitimate reasons that are supported by substantial

8 evidence.” Id. (citing Lester v. Chater, 81 F.3d 821, 830-31 (9th Cir. 1995)).

9 “However, the ALJ need not accept the opinion of any physician, including a

10 treating physician, if that opinion is brief, conclusory and inadequately supported

11 by clinical findings.” Bray v. Comm'r of Soc. Sec. Admin., 554 F.3d 1219, 1228

12 (9th Cir. 2009) (quotation and citation omitted).

13 The opinion of an acceptable medical source such as a physician or

14 psychologist is generally given more weight than that of an “other source.” See

15 SSR 06-03p (Aug. 9, 2006), available at 2006 WL 2329939 at *2; 20 C.F.R. §

16 416.927(a). “Other sources” include nurse practitioners, physician assistants,

17 therapists, teachers, social workers, and other non-medical sources. 20 C.F.R. §§

18 404.1513(d), 416.913(d). The ALJ need only provide “germane reasons” for

19 disregarding an “other source” opinion. Molina, 674 F.3d at 1111. However, the

20 ALJ is required to “consider observations by nonmedical sources as to how an

21 impairment affects a claimant's ability to work.” Sprague v. Bowen, 812 F.2d

1 Plaintiff argues the ALJ erroneously considered the opinions of treating

2 physician, Jeremiah Crank, M.D.2, examining physician William Drenguis, M.D.,

3 examining psychologist Rebekah A. Cline, Psy.D., examining physician Gregory

4 Sawyer, M.D., Ph.D., and treating provider Maryalice Hardison, ARNP. ECF No.

5 10 at 7-11.

6 1. William Drenguis, M.D.

7 In May 2015, Dr. Drenguis examined Plaintiff and found he could stand and

8 walk for at least two hours in an eight hour workday with normal breaks, sit less

9 than six hours in an eight hour work day with normal breaks, lift and carry twenty

10 pounds occasionally and ten pounds frequently, frequently reach overhead and

11 forward, and frequently handle, finger and feel. Tr. 617-622. The ALJ gave Dr.

12 Drenguis’ opinion partial weight, and “[did] not accept” the assessed limitation

13

2 In February 2014, Dr. Crank opined that Plaintiff would have marked limitations

14

in sitting, standing, walking, lifting, carrying, handling, pushing, pulling, reaching,

15

stooping, and crouching. Tr. 455. Plaintiff contends the ALJ erred by failing to

16

address Dr. Crank’s opinion. ECF No. 10 at 9. However, as noted by Defendant,

17

“[m]edical opinions that predate the alleged onset date of disability are of limited

18

relevance.” ECF No. 11 at 8 (citing Carmickle, 533 F.3d at 1165). Thus, the

19

Court finds no error in the ALJ’s lack of consideration of Dr. Crank’s February

20

2014 opinion, because it predated Plaintiff’s alleged onset date of October 23,

21

1 that Plaintiff could only sit for less than six hours, and the assessed manipulative

2 limitations, for several reasons. Tr. 25.

3 First, the ALJ noted Dr. Drenguis’ own “findings and observations are not

4 indicative of someone who could sit for less than 6 hours or has any manipulative

5 limitations.” Tr. 25. The ALJ may properly reject a medical opinion if it is

6 inconsistent with the provider's own treatment notes. Tommasetti, 533 F.3d at

7 1041. In support of this finding, the ALJ noted that Dr. Drenguis “personally

8 observed” Plaintiff walk from the parking lot, rise from a chair, and get on and off

9 the examination table without difficulty, have good range of motion, was able to

10 use his hands to manipulate things, perform a full squat while keeping his back

11 straight, and perform heel/toe and tandem walking. Tr. 25, 619-20. Moreover, as

12 noted by the ALJ, strength and sensory examination findings were normal,

13 including: negative straight leg raising bilaterally, 5/5 muscle strength bilaterally

14 symmetrical in all muscle groups of the upper and lower extremities, 5/5 grip

15 strength and bilaterally symmetrical, normal muscle bulk and tone, intact light

16 touch and pinprick, negative Tinel’s and Phalen’s tests, deep tendon reflexes are

17 2+ in all extremities, and cranial nerves are grossly intact. Tr. 25, 621.

18 Plaintiff argues the ALJ “left out” Dr. Drenguis’ finding that Plaintiff had

19 somewhat limited range of motion in his back only, pitting edema in his left leg

20 “consistent with left groin lymphocele after lymph node surgery resulting in left

21 leg lymphedema,” his gait favored his left leg, and his back was tender and had

1 that Dr. Drenguis specified that Plaintiff’s left leg swelling is “only four weeks

2 old” and “[i]t is not clear what the long term prognosis will be”; and while Dr.

3 Drenguis included Plaintiff’s “self-diagnosis” of carpal tunnel as part of his

4 evaluation, he specifically found no evidence of carpal tunnel on examination Tr.

5 617-18, 621. Thus, regardless of evidence that might be considered more

6 favorable to Plaintiff, it was reasonable for the ALJ to find that the overall

7 objective examinations and clinical findings in Dr. Drengius’ own treatment notes

8 were inconsistent with the severity of the sitting and manipulative limitations he

9 assessed. See Burch, 400 F.3d at 679 (where evidence is susceptible to more than

10 one interpretation, the ALJ’s conclusion must be upheld).

11 Second, the ALJ found that Plaintiff has never undergone any significant

12 treatment for his back, and there is no evidence of any upper extremity impairment

13 that would correlate with any manipulative limitations.3 Tr. 25. The consistency

14

3 The ALJ also noted that Plaintiff did not testify as to any problems in his back

15

“other than his avoidance of lifting more than 20-25 pounds” based on an

16

unidentified provider’s recommendation. Tr. 25. However, as noted by Plaintiff,

17

he also testified that he could only sit for “half and hour to an hour” before he

18

needs to stand up. ECF No. 10 at 11 (citing Tr. 140-41). However, any error in

19

considering this evidence is harmless because, as discussed herein, the ALJ’s

20

ultimate rejection of Plaintiff’s symptom claims was supported by substantial

21

1 of a medical opinion with the record as a whole is a relevant factor in evaluating

2 that medical opinion. Orn, 495 F.3d at 631. Plaintiff argues the ALJ failed to find

3 Plaintiff’s carpal tunnel syndrome was a medically determinable impairment, and

4 failed to consider evidence of “why treatment was not pursued” for his back pain.

5 ECF No. 10 at 11-12. However, in support of this argument, Plaintiff cites a single

6 self-report of back pain and a physical therapy treatment record, both from outside

7 the relevant adjudicatory period; and he cites evidence of surgeries unrelated to

8 Plaintiff’s alleged back pain. ECF No. 10 at 12. Moreover, as discussed in detail

9 above, the record does not indicate ongoing treatment for back pain, and x-ray

10 findings in May 2015 showed degenerative changes at L5-S1 with only mild

11 anteriolisthesis and no herniated disc. Tr. 22, 25, 616. Finally, as discussed above,

12 the ALJ properly found Plaintiff’s claimed carpal tunnel syndrome was not a

13 medically determinable impairment at step two. See Social Security Ruling (SSR)

14 96-8p, 1996 WL 374184, at *2 (an ALJ is only required to include in the RFC

15 limitations and restrictions that are “attributable to medically determinable

16 impairments”). Thus, it was reasonable for the ALJ to discount Dr. Drenguis’

17 opinion as to Plaintiff’s manipulative and sitting limitations because they are

18 inconsistent with the longitudinal medical evidence.

19 For all of these reasons, the Court finds the ALJ did not err in considering

20 Dr. Drenguis’ opinion regarding Plaintiff’s sitting and manipulative limitations.

21 2. Rebekah A. Cline, Psy.D.

1 In October 2015, Dr. Cline examined Plaintiff and opined that he had

2 marked limitations in his ability to communicate and perform effectively in a work

3 setting, maintain appropriate behavior in a work setting, and complete a normal

4 work day and work week without interruptions from psychologically based

5 symptoms. Tr. 1025-29. The ALJ gave little weight to Dr. Cline’s opinion

6 because “[h]er ratings are not consistent with the overall medical record.” Tr. 26.

7 The consistency of a medical opinion with the record as a whole is a relevant factor

8 in evaluating that medical opinion. Orn, 495 F.3d at 631; see also Batson v.

9 Comm’r of Soc. Sec. Admin., 359 F.3d 1190, 1195 (9th Cir. 2004) (an ALJ may

10 discount an opinion that is conclusory, brief, and unsupported by the record as a

11 whole, or by objective medical findings). In support of this finding, the ALJ noted

12 that (1) Plaintiff has not sought much medical treatment during the relevant period

13 at issue, (2) treatment notes, “particularly in 2015, contained little evidence of any

14 ongoing mental problems beyond external factors like interpersonal disputes with

15 others, housing issues, etc.,” and (3) Plaintiff “himself indicated that he was not

16 mentally incapacitated due to depression or nightmares.” Tr. 26.

17 First, as above, Plaintiff argues the ALJ “harmfully failed to consider”

18 reasons why Plaintiff did not pursue mental health treatment, and cites a single

19 treatment note indicating that Plaintiff discussed a possible break in treatment “for

20 CPT” until he was “sure about his medical and he is being care for appropriately.”

21 Tr. 869. However, as noted by Defendant, this mischaracterizes the overall record,

1 at which Plaintiff and his treating provider “agreed to postpone CPT treatment, but

2 ‘decided to begin treatment focus[ed] on his depression.’” ECF No. 11 at 868.

3 Subsequently, Plaintiff attended a few more treatment visits, and was discharged

4 from treatment in September 2015 “due to Failed to Return.” Tr. 859. “This does

5 not support an inference that [Plaintiff’s] medical problems prevented him from

6 attending therapy.” ECF No. 11 at 10.

7 Second, Plaintiff cites treatment notes indicating that he was found to be

8 anxious and depressed, had impaired short and remote memory, his attention was

9 poor, his concentration was disjointed, and his insight and judgement were

10 impaired. ECF No. 10 at 13-14 (citing Tr. 972, 976, 992, 1001, 1342, 1351).

11 However, the evidence cited by Plaintiff is at least partially comprised of her own

12 subjective complaints, which were properly discounted by the ALJ; whereas the

13 overall record includes minimal treatment records for mental health, and largely

14 normal mental status examinations. Tr. 22-23, 627-29, 866, 869-71, 1006-10; see

15 20 C.F.R. § 416.929(a) (claimant’s subjective statements about symptoms will not

16 alone establish Plaintiff is disabled). Moreover, regardless of evidence that could

17 be considered favorable to Plaintiff, it was reasonable for the ALJ to note that

18 Plaintiff’s own reports to examining providers that he was not mentally

19 incapacitated, and the lack of evidence of ongoing mental health problems, were

20 inconsistent with the severity of the limitations assessed by Dr. Cline. The lack of

21 consistency between Dr. Cline’s opinion and the overall record was a specific and

1 legitimate reason, supported by substantial evidence, for the ALJ to reject Dr.

2 Cline’s opinion.

3 3. Gregory Sawyer, M.D., Ph.D.

4 In June 2015, Dr. Sawyer examined Plaintiff and found he “will have

5 difficulty” attempting to maintain effective social interactions on a consistent and

6 independent basis with supervisors, coworkers and the public; attempting to sustain

7 concentration and persist in work-related activity at a reasonable pace; attempting

8 to maintain regular attendance in the workplace; attempting to complete a normal

9 workday or workweek without interruptions; and attempting to deal with the usual

10 stresses encountered in the workplace. Tr. 623-31. The ALJ gave partial weight to

11 Dr. Sawyer’s opinion because “[w]hile Dr. Sawyer listed areas in which [Plaintiff]

12 would have difficulty, Dr. Sawyer did not describe or otherwise identify the degree

13 of difficulty. Simply stating that one has difficulty is insufficient, especially when

14 considering a work environment that involves significantly less mental and social

15 demands.” Tr. 25.

16 Plaintiff generally contends, without citation to binding legal authority, that

17 the ALJ should “strictly construe” workplace demands such as the ability to

18 maintain attendance and complete a normal workday and work week; and in the

19 alternative, Plaintiff argues that “if the ALJ found Dr. Sawyer’s opinion ambiguous

20 such that it was not interpretable, the ALJ had a ‘special duty to fully an fairly

21 develop the record.’” ECF No. 10 at 16. As an initial matter, “[a]n ALJ’s duty to

1 record is inadequate to allow for proper evaluation of the evidence.” Mayes v.

2 Massanari, 276 F.3d 453, 459-60 (9th Cir. 2001). Moreover, while the ALJ may

3 have a duty to develop the record in certain cases, it is Plaintiff’s burden to

4 produce evidence to establish disability. 20 C.F.R. § 404.1512(a). Here, the Court

5 is unable to discern any inadequacy or ambiguity that did not allow for proper

6 evaluation of the record as a whole. See Bayliss, 427 F.3d at 1217.

7 Moreover, the ALJ is not required to incorporate limitations phrased

8 equivocally into the assessed RFC. Valentine v. Comm’r Soc. Sec. Admin., 574

9 F.3d 685, 691-92 (9th Cir. 2009); see also Turner v. Comm'r of Soc. Sec. Admin.,

10 613 F.3d 1217, 1223 (9th Cir. 2010) (where a physician's report did not assign any

11 specific limitations or opinions in relation to an ability to work, “the ALJ did not

12 need to provide 'clear and convincing reasons' for rejecting [the] report because the

13 ALJ did not reject any of [the report's] conclusions.”). Thus, it was reasonable for

14 the ALJ to reject Dr. Sawyer’s vague assessments that Plaintiff would have

15 “difficulty” in certain work activities, because he did not “describe or otherwise

16 identify the degree of difficulty.” Tr. 25. For all of these reasons, the Court finds

17 no error in the ALJ’s consideration of Dr. Sawyer’s opinion.

18 4. Maryalice Hardison, ARNP

19 In June 2017, Plaintiff’s treating provider Ms. Hardison opined that Plaintiff

20 would have to lie down for at least 15 minutes during the day “but generally 1-2

21 hours due to back pain and swelling of extremities,” and he would miss on average

1 schedule. Tr. 1106-07. The ALJ gave her opinion little weight for several reasons.

2 Tr. 26. First, the ALJ noted that Ms. Hardison “failed to provide a detailed

3 explanation for her assessment.” Tr. 26. Second, the ALJ noted there was “no

4 objective evidence of radiculopathy or even a substantially limiting back

5 impairment,” Plaintiff did not report significant side effects from medication to his

6 providers, Plaintiff reported no fatigue and improved mood in 2016, Plaintiff had

7 improvement in his symptoms with medication, and Plaintiff recovered from

8 surgeries within twelve months. Tr. 26 (citing Tr. 1006, 1294, 1318, 1329-30).

9 Based on this evidence, the ALJ found the “record does not support the notion that

10 [Plaintiff] needs to lie down during the day, has actual side effects from

11 medication, or is expected to miss work 4 or more days of work each month.” Tr.

12 26.

13 An ALJ may discount an opinion that is conclusory, brief, and unsupported

14 by the record as a whole, or by objective medical findings. Batson v. Comm’r of

15 Soc. Sec. Admin., 359 F.3d 1190, 1195 (9th Cir. 2004). Plaintiff generally argues

16 this finding is inconsistent with Dr. Crank and Dr. Drenguis’ opinions. ECF No.

17 10 at 16. However, as discussed in detail above, the ALJ’s rejection of these

18 opinions was free of legal error and supported by substantial evidence. In addition,

19 Plaintiff cites evidence from the relevant period, including x-rays in 2016 that

20 found moderately severe degenerative disc disease, positive straight leg tests, and

21 Plaintiff’s self-reports that his medications were not helping his back pain. ECF

1 regardless of some evidence that could be favorable to Plaintiff, it was reasonable

2 for the ALJ to find the overall record, including objective findings, did not support

3 the severe limitations opined by Ms. Hardison. See Burch, 400 F.3d at 679. These

4 were germane reasons for the ALJ to discount Ms. Hardison’s opinion.

5 CONCLUSION

6 A reviewing court should not substitute its assessment of the evidence for

7 the ALJ’s. Tackett, 180 F.3d at 1098. To the contrary, a reviewing court must

8 defer to an ALJ’s assessment as long as it is supported by substantial evidence. 42

9 U.S.C. § 405(g). As discussed in detail above, the ALJ did not err at step two,

10 provided clear and convincing reasons to discount Plaintiff’s symptom claims, and

11 properly weighed the medical opinion evidence. After review the Court finds the

12 ALJ’s decision is supported by substantial evidence and free of harmful legal error.

13 ACCORDINGLY, IT IS HEREBY ORDERED:

14 1. Plaintiff’s Motion for Summary Judgment, ECF No. 10, is DENIED.

15 2. Defendant’s Motion for Summary Judgment, ECF No. 11, is

16 GRANTED.

17 The District Court Clerk is directed to enter this Order and provide copies to

18 counsel. Judgement shall be entered for Defendant and the file shall be CLOSED.

19 DATED March 30, 2020.

20

s/Fred Van Sickle

21 Fred Van Sickle