ELAYNA J. YOUCHAH, Magistrate Judge.
Plaintiff Sheri A. Poynter ("Plaintiff") seeks judicial review of the final decision of the Commissioner of the Social Security Administration ("Commissioner" or the "Agency") denying her application for disability insurance ("DIB") under Title II of the Social Security Act. For the reasons below, the Commissioner's decision is affirmed.
On December 16, 2013, Plaintiff filed an application for DIB alleging a July 1, 2013 onset of disability. Administrative Record ("AR") 187-90. The Commissioner denied Plaintiff's claims by initial determination on July 9, 2014, and on reconsideration on February 26, 2015. AR 123-27, 130-32. On March 6, 2015, Plaintiff requested a hearing before an Administrative Law Judge ("ALJ"). AR 133-34. After conducting a hearing on July 25, 2016 (AR 44-83), ALJ Gary Vanderhoof issued his determination on August 29, 2016, finding Plaintiff was not disabled (AR 17-43). On October 21, 2016, Plaintiff requested that the Appeals Council review the decision by the ALJ. AR 183-86. When the Appeals Council denied Plaintiff's request for review on July 28, 2017, the ALJ's decision became the final order of the Commissioner. AR 1-6. This civil action followed.
The reviewing court shall affirm the Commissioner's decision if the decision is based on correct legal standards and the legal findings are supported by substantial evidence in the record. 42 U.S.C. § 405(g); Batson v. Comm'r Soc. Sec. Admin., 359 F.3d 1190, 1193 (9th Cir. 2004). Substantial evidence is "more than a mere scintilla. It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Richardson v. Perales, 402 U.S. 389, 401 (1971) (internal citation and quotation marks omitted). In reviewing the Commissioner's alleged errors, the Court must weigh "both the evidence that supports and detracts from the [Commissioner's] conclusion." Martinez v. Heckler, 807 F.2d 771, 772 (9th Cir. 1986) (internal citations omitted).
"When the evidence before the ALJ is subject to more than one rational interpretation, we must defer to the ALJ's conclusion." Batson, 359 F.3d at 1198, citing Andrews v. Shalala, 53 F.3d 1035, 1041 (9th Cir. 1995). A reviewing court, however, "cannot affirm the decision of an agency on a ground that the agency did not invoke in making its decision." Stout v. Comm'r Soc. Sec. Admin., 454 F.3d 1050, 1054 (9th Cir. 2006) (internal citation omitted). Finally, the court may not reverse an ALJ's decision on account of an error that is harmless. Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005) (internal citation omitted). "[T]he burden of showing that an error is harmful normally falls upon the party attacking the agency's determination." Shinseki v. Sanders, 556 U.S. 396, 409 (2009).
To establish whether a claimant is disabled under the Act, there must be substantial evidence that:
Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999), citing 42 U.S.C. § 423(d)(2)(A). "If a claimant meets both requirements, he or she is disabled." Id.
The ALJ employs a five-step sequential evaluation process to determine whether a claimant is disabled within the meaning of the Act. Bowen v. Yuckert, 482 U.S. 137, 140 (1987); 20 C.F.R. § 404.1520(a). Each step is potentially dispositive and "if a claimant is found to be `disabled' or `not-disabled' at any step in the sequence, there is no need to consider subsequent steps." Tackett, 180 F.3d at 1098 (internal citation omitted); 20 C.F.R. § 404.1520. The claimant carries the burden of proof at steps one through four, and the Commissioner carries the burden of proof at step five. Tackett, 180 F.3d at 1098.
The five steps are:
Id. at 1098-99 (internal alterations omitted).
At step one, the ALJ determined that Plaintiff did not engage in substantial gainful activity since July 1, 2013, the alleged disability onset date. AR 26. At step two, the ALJ found that Plaintiff suffered from medically determinable severe impairments consisting of "restless leg syndrome, degenerative disc disease of the thoracic and lumbar spine, adhesive capsulitis of the right shoulder, depressive disorder, and anxiety disorder." Id. At step three, the ALJ found that Plaintiff's impairment or combination of impairments did not meet or equal any listed impairment in 20 C.F.R., Part 404, Subpart ("Subpt.") P, Appendix ("App.") 1. Id.
In preparation for step four, the ALJ found that Plaintiff had the residual functional capacity ("RFC")
AR 28.
At step four, the ALJ determined that "[t]he claimant is unable to perform any past relevant work (20 CFR 404.1565)." AR 34. In preparation for step five, the ALJ noted that:
AR 35.
At step five, the ALJ found that "[c]onsidering the claimant's age, education, work experience, and residual functional capacity, there are jobs that exist in significant numbers in the national economy that the claimant can perform (20 CFR 404.1569 and 404.1569(a))." Id. Relying on the vocational expert's testimony at the administrative hearing, the ALJ determined that Plaintiff could perform the following "light exertion level . . . [,] unskilled, with a SVP of 2" occupations: "[m]arker, DOT code 209.587-034;" "[o]rder [c]aller, DOT code 209.667-014;" and, "[m]ail [c]lerk, DOT code 209-687-026."
The ALJ concluded that "[t]he claimant has not been under a disability, as defined in the Social Security Act, from July 1, 2013, through the date of this decision (20 CFR 404.1520(g))." Id.
On August 1, 2013, Plaintiff visited Dr. John B. Siegler, a physical medicine and rehabilitation doctor. AR 694-95. Dr. Siegler's interval review of systems was "[n]egative for any changes. [Plaintiff's] chart contains a self-reported review of systems completed by the examinee[.]" AR 694. A musculoskeletal examination revealed an "improved range of motion of [Plaintiff's] shoulder" in her upper extremities, and a spine examination showed "thoracic pain in the periscapular region. Gait is steady without the use of assistive devices." Id. A neurological examination rated Plaintiff's "[u]pper extremity hand grasps" as five out of five, and her sensation and tone as "intact." AR 695. Notwithstanding these clinical findings, Dr. Siegler assessed Plaintiff with "[s]tatus post rotator cuff repair," "[r]estless leg syndrome," and "[c]hronic thoracic pain." Id.
At three separate clinical visits, Plaintiff's treating physician and family medicine specialist, Dr. Yvonne Saunders, found generally normal results on examination, including "[n]ormal symmetry, tone, strength and [range of motion]. No effusions, instability or tenderness to palpation" was noted. AR 662 (November 8, 2013); AR 666 (August 12, 2013); see also AR 945 (July 23, 2014).
On March 21, 2014, Dr. Susan Hood-Jackson, a psychologist, performed Plaintiff's Psychosocial Evaluation. AR 811-17. Plaintiff appeared with "[d]epressed mood," "frequent crying," "low self-esteem," "high anxiety," "insomnia," and "excessive worry[ing] about finances." AR 811. Dr. Hood-Jackson noted Plaintiff had a nervous breakdown brought on by work stress two years ago and experienced a second nervous breakdown in June 2013. Id. Dr. Hood-Jackson stated Plaintiff was suffering from a "severe" case of restless leg syndrome, although she did not elaborate on how she came to this assessment. AR 813. Dr. Hood-Jackson also performed Plaintiff's mental status examination in which she described Plaintiff's self-care and appearance as "average height," "thin," "average weight," "neat/clean," "appropriate[ly dressed]," "well-groomed," "normal" posture/gait, although she was "restless," "agitated," and had "tremor[s]." AR 815. Dr. Hood-Jackson described Plaintiff's motor activity as "restless," "agitated, and affected by "tremor[s]" (id.); facial expression as "anxious" and "sad" (id.); thought content as "hopeless," "worthless," and "somatic" (id.); thought processes as "tangential" (id.); affect as "sad" and "worrisome" (AR 816); mood as "depressed" and "anxious" (id.); and, her coping ability as "overwhelmed," "deficient[ly] support[ed]," and "deficient in coping skills" (id.). Dr. Hood-Jackson noted that Plaintiff had suicidal thoughts lasting longer than six months. Id. On the other hand, Dr. Hood-Jackson stated Plaintiff was "neat[ly]/clean[ly]" and "appropriate[ly]" dressed, "well-groomed," and had "normal" posture/gait. AR 815. Plaintiff was "cooperative," "alert," displayed "normal" eye contact, was not hallucinating, and was fully oriented. Id. Plaintiff's speech and attention/concentration were both "normal." Id. Plaintiff's insight was "present," judgment was "intact," and her memory was within normal limits. AR 816.
On July 24, 2014, Plaintiff visited the Las Vegas Spine & Pain Center complaining of "mid back pain." AR 922. Plaintiff described her pain as occurring in her "lower back with radiation to bilateral lower extremities, upper back pain[,] and right shoulder." Id. Plaintiff also complained of "intermittent neck pain" which was described as moderate to severe and "as burning, crampy, sharp, stabbing, throbbing, aching[,] and dull." Id. The onset of the pain was "gradual" and "occurring in a persistent pattern for 14 years," but also "gradually worsening." Id. At best, the pain intensity was described as a 2/10 and at worst 9/10. Id. The average was described as 7/10, with her current pain level at 6/10. Id. A review of systems was generally normal, although "[n]eck [p]ain," "[b]ack [p]ain," "[j]oint [p]ain," "[d]epression, [a]nxiety[,] and [p]anic [a]ttacks" were present. AR 922-23. A physical examination performed on Plaintiff's mental status, cranial nerves, and sensory systems all returned "[n]ormal" results. AR 923. Plaintiff's assessment of muscle strength and tone were rated five out of five in all areas except her right quadriceps, right hamstrings, anterior, and right gastroc-soleus, which were rated four out of five. Id. Plaintiff's general assessment of reflexes were all graded as "2+," which is normal. Id. A musculoskeletal examination of Plaintiff's cervical spine revealed "[c]ervical paravertebral muscle spasm" and "[p]ain with ce[r]vical flexion." AR 924. "Midline tenderness" was present "upon palpation of the thoracic spine, [t]horacic paravertebral muscle spasm [was] noted, [as well as p]ain with thoracic extension/facet loading and [t]enderness over thoracic facets." Id. "Lumbar paravertebral muscle spasm [was] noted." Id. However, Plaintiff's straight leg raise ("SLR") test was negative for both legs. Id.
On August 21, 2014, Plaintiff visited Dr. Nianjun Tang, a physical medicine and rehabilitation specialist employed by Centennial Medical Group, for "reevaluation" and complaints "of pain of the middle back, lower back[,] and legs." AR 835. Plaintiff rated her pain level as eight out of ten and reported "persistent middle back pain, lower back pain[,] and leg pain." Id. Dr. Tang opined after an examination that Plaintiff's "[r]ange of motion of the thoracic and lumbar spine is restricted" and assessed Plaintiff with "[t]horacic disc degeneration," "[t]horacic disc displacement," "[l]umbrosacral spondylosis," and "[l]umbar facet syndrome." AR 836.
On July 29, 2014, Plaintiff consulted Dr. Mark Cirella, an anesthesiologist from Centennial Medical Group, about her restless leg syndrome. AR 838-44. Plaintiff stated that her "pain and nerve sensations have progressively worsened since" she first had symptoms about seven years before. AR 838. Plaintiff described her "pain at its worst during the past month as 9/10," at "its best during the last month as 2/10," and at the time of her clinical visit as "3/10." AR 839. Both of Plaintiff's thoracic and soft tissue examinations revealed "normal" gait and "upright and normal" stance. AR 841-42. Dr. Cirella's report does not make clear whether Plaintiff's soft tissue examination showed "tender" or "nontender" supraspinous and interspinous ligaments, but "tenderness" was "present" in Plaintiff's paraspinal muscle. Id. Plaintiff's range of motion was evenly distributed on both sides, except her extension was greater on her left side than on her right. AR 842. A neurological examination of Plaintiff's L4-L5 spinal segment and S1 vertebrae was normal. Id. A foot clonus test, Babinski test, SLR supine test, a FABRE test, Gaenslen's test, and Waddell's test all returned unremarkable results. Id. Dr. Cirella assessed Plaintiff with "[t]horacic disc displacement;" "[t]horacic radiculitis/radiculopathy;" "[r]estless legs syndrome;" and, "[l]umbar radiculitis/radiculopathy." AR 843.
On November 10, 2014, Dr. Tang documented "[t]horacic tenderness to palpation over the bilateral facet columns," and diagnosed Plaintiff with "[l]umbosacral spondylosis," "[r]estless legs syndrome," and "[t]horacic spondylosis." AR 912. On December 8, 2014, Dr. Tang again observed "[t]horacic tenderness to palpation over the bilateral facet columns," and diagnosed Plaintiff with "[t]horacic spondylosis," "[l]umbosacral spondylosis," and "[c]ervical spondylosis." AR 909. On January 5, 2015, Dr. Tang made the same observations and assessments as she did on December 8, 2014. AR 906.
On February 16, 2016, a physician from the Las Vegas Spine & Pain Center noted that an MRI of Plaintiff's thoracic spine:
AR 919. The physician also noted that an MRI of Plaintiff's lumbar spine:
AR 919-20. A review of systems returned negative results for the most part, but "[b]ack [p]ain," "[j]oint [p]ain," "[m]uscle [p]ain," "[d]epression," and "[a]nxiety" were noted. AR 920. A physical examination was generally normal, including Plaintiff's cervical spine, which had "[n]ormal range of motion without pain." Id. However, "[m]idline tenderness upon palpation of the thoracic [and lumbar] spine[s]," "[t]horacic [and lumbar] paravertebral muscle spasm," "[p]ain with lumbar extension/facet loading [on both the left and right sides]," and "[t]enderness with palpation over anterior [and posterior] aspect[s] of [Plaintiff's] shoulder" were noted. AR 920-21.
On March 15, 2016, a physician from the Las Vegas Spine & Pain Center noted "[l]umbar paravertebral muscle spasm . . ., [p]ain with lumbar extension/facet loading [on both the left and right sides] . . ., [p]ositive [results on] straight leg raise [testing on both legs] . . . [, d]ecreased range of motion [in Plaintiff's shoulder, and t]enderness with palpation over [the] anterior [and posterior] aspect[s] of [Plaintiff's] shoulder." AR 918.
On July 21, 2016, Plaintiff appeared before Dr. Saunders complaining of "restless leg syndrome," "anxiety," "minor right shoulder pain," and "mild restless legs." AR 930. Dr. Saunders opined normal clinical results, however, other than to add that Plaintiff's "right shoulder extension . . . elicit[s] minor tenderness." AR 932.
On July 21, 2016, Dr. Saunders submitted a Treating Source Statement noting that she had been treating Plaintiff since June 5, 2007. AR 926. Dr. Saunders treated Plaintiff for her "[a]llergic [r]hinitis;" "edema;" "cramp of [l]imb;" "[h]yperlipiedemia;" "[d]epression;" "[i]nsomnia;" "[a]nxiety;" and, "[r]estless [l]eg [s]yndrome." Id. Dr. Saunders further opined that the symptoms and limitations related to Plaintiff's restless leg syndrome first appeared on June 5, 2007, and the symptoms and limitations related to her anxiety began appearing in May 2009. Id.
Dr. Saunders checked boxes
Dr. Saunders stated that Plaintiff's "[r]estless [l]eg [s]yndrome" supported her assessment of limitations. AR 927-29. Although Dr. Saunders was further prompted to explain "why the findings support the assessment," she did not do so. Id. Plaintiff reported being able to stand or walk for up to "30 minutes" in an 8-hour workday. AR 927. Dr. Saunders handwrote that Plaintiff "says . . . sometimes [she] use[s] a stick to get out of bed," and that she can ambulate "15 feet" without the device. AR 927-28.
On examination by the ALJ at her July 25, 2016 administrative hearing, Plaintiff testified that the last time she worked was "at Sedgwick and [she] worked there for ten months. . . from October of 2012. . . until June of 2013." AR 50. Thereafter, from an unspecified point in time through January 2014, Plaintiff began receiving unemployment benefits. AR 51. During this time, Plaintiff "was looking for work [other than a position as] a senior claims examiner because being a senior claims examiner requires an extremely large amount of work hours." AR 52. Plaintiff sought work as a "medical. . . adjuster," a clerk, and at a women's clothing store, to no avail. AR 52-53.
Plaintiff lives with her husband and two sons. AR 54. In the day time when she is home alone, Plaintiff "shower[s]," "cook[s]," "wash[es] dishes [although she has] to use [her] left hand to scrub dishes or wipe counters . . . because it hurts [her] right shoulder to do those things," "do[es her] own laundry," "sweep[s] the floor" although she cannot "clean [her] entire house the way [she] used to," "make[s her side of the] bed," "walk[s] for about 15 minutes" at a time, "do[es] some light yoga and stretching exercises," "watch[es] TV," occasionally "get[s] on the computer," and "take[s] care of [the family's finances]." AR 55-57, 64. Plaintiff explained that:
AR 64-65. Plaintiff cannot clean her bathtub or shower without assistance, but has a driver's license and goes grocery shopping with her sons every two weeks when her husband visits. AR 56-58. Plaintiff sometimes leans "on the cart or will tell [her] boys [to] go get. . . things [on the grocery list] and then [she will] go outside and. . . sit down on a bench. . . for a few minutes, and then [she goes] back in the store[.]" AR 59. Plaintiff is able to place few items into a shopping cart. AR 60.
Plaintiff sees a pain management doctor every month. Id. Plaintiff testified that she and her husband were "trying to save. . . money for [her] to have a rhizotomy. . . for [her] upper back." Id. Plaintiff asked her doctors to cut back her medication. Id. For example, Plaintiff was "up [to] 16 milligrams of Klonopin [but now she is] now down to 1-1/2 milligrams a day." AR 62.
On examination by her attorney, Plaintiff testified that she "do[es] not a see a [mental health] counselor." AR 66. However, Plaintiff speaks to her psychiatrist:
AR 67. Plaintiff cries "[p]retty regularly," about "two, three times a week." Id. Plaintiff's depression makes her not "feel like doing anything," and makes it "hard for [her] to get motivated." AR 68. Although she does not know whether her side effects are caused by "medication" or "aging or depression," Plaintiff is "unable to concentrate," which caused problems at her previous jobs. Id.
VE Lawrence K. Haney testified at Plaintiff's administrative hearing that Plaintiff had past relevant work as a "claims examiner. . . DOT number 168.267-014, SVP 7, sedentary."
AR 72-73. The ALJ clarified that Plaintiff would have no restrictions "fingering, handling, and feeling," and could "occasional[ly]. . . stoop[ and] bend[]." AR 74. Opining that this hypothetical indicates a "light-duty capacity. . . with. . . limited. . . exposure to people," the VE determined that the hypothetical individual could perform the "SVP 2 light-duty[, unskilled] positions" of "marker," DOT number 209.587-034; "order caller," DOT number 209.667-014, and "mail clerk," DOT number 209-687-026. AR 75-76. The VE also listed the number of available positions for each occupation in the national economy. AR 76.
The ALJ offered a second hypothetical identical in all respects to the first hypothetical, except that the individual could only stand and walk for "a maximum [of] four hours . . ., and sit six" hours out of an eight-hour workday. AR 76. The VE responded that no jobs are available for this person because the positions he had discussed before are all "light-duty positions [requiring a worker to] either stand[] or walk[]." AR 76-77. The VE stated that the second hypothetical individual would be relegated to "sedentary" work. AR 77.
The ALJ then asked the VE: "[r]egardless of the first or second . . . hypothetical, if [an employee] fail[s] to show up for work . . . [he or she is] not going to be retained. So . . . how much [] work can [an employee miss] before [his or her employer will] subject [him or her] to termination? . . . [I]f [an employee] can't perform [work at a SVP level 1 or 2]. . . . how much missed work [would subject him or her to termination]?" Id. The VE responded that:
AR 77.
The ALJ then asked the VE to build on his first hypothetical by assuming the individual: "appear[s] for work. . . . [H]ow much off task can [the individual] be throughout the workday before [his or her employer] find[s] that [he or she is] unemployable[?]" AR 77-78. The VE replied:
AR 79. The VE told the ALJ that "light [work] can be defined as [the amount of weight] you pick up. . . or light [work] can be defined [by] how much standing and walking you do. . ., so you have a weight force and a positional category for strength." AR 80. The VE confirmed that if an employee "sit[s] half the time [at his or her work], [this job is] still going to be. . . a light-duty job." Id.
On examination by Plaintiff's counsel, the VE stated that it is "hard" to determine whether the light-duty positions he provided fall within the "category of light work that would allow for standing or walking four to five hours [out of an eight-hour workday]." AR 81. The VE explained that determining whether these occupations fall within this category of light work is:
Id. (internal alteration omitted). The VE confirmed that he only considered the limitations contained in the ALJ's hypothetical. Id. The VE noted that he pulled the number of available jobs in the national economy for each of the light-duty positions from the "Bureau of Labor Statistics, Department of Labor 2015." Id. The VE further stated that the job numbers he relied on "are part of an . . . Standard Occupational Code [or, "SOC"]. For example, [the SOC code will] just have cashier but there may be 18 different [types of] cashiers within the SOC code. . . . [T]he Department of Labor does not break down 12,000 separate occupations by number." AR 81-82 (internal alteration omitted). The VE confirmed that "the numbers for the SOC code. . . [are] reduced based on the limitations within the hypothetical." AR 82 (internal alteration omitted). The VE explained:
Id. The VE opined that "if a person were to be absent from work [without excuses] four times per month, this would "exceed all the statistics [he's] ever seen" respecting an ability to perform full-time work. Id. The VE confirmed that a "limitation to only simple non-detailed work. . . would obviously preclude any jobs requiring detailed written or oral instructions[.]" AR 82-83.
Plaintiff contends the ALJ erred "in relying on vocational expert testimony to fulfill his step 5 burden without adequately addressing Plaintiff's post-hearing objections to that testimony, particularly [the ALJ's] failure to properly discuss outcome determinative rebuttal evidence[,]" and "by failing to analyze the opinion evidence in accordance with the regulations, Agency policy, and Ninth Circuit precedent." ECF No. 17 at 4:14-18.
The Social Security Administration's Hearings, Appeals, and Litigation Law Manual ("HALLEX") I-2-6-74 provides agency policy concerning testimony of a vocational expert.
Following the July 25, 2016 administrative hearing, Plaintiff's non-attorney representative filed a "Post-Hearing Memorandum of Law & Objections to the Vocational Witness' Testimony." AR 315-51. At issue presently is Objection V in which Plaintiff claimed that the "current labor market research and reliable sources of job information dictate that [the] positions [to which VE Haney referred] require more than occasional interaction with coworkers and supervisors." AR 319. Plaintiff's Memorandum contained a "Vocational Opinion Regarding the Limitation of Occasional Interaction with Coworkers and Supervisors" from Paula Santagati, a vocational rehabilitation counselor. AR 349-51. Santagati expressed her opinion that the "limitation of occasional interaction with coworkers and supervisors[, a limitation which the ALJ included in the hypotheticals posed to VE Haney,] precludes all work as the training and probationary period for any job would require more than occasional interaction with co-workers and supervisors." AR 349.
In his findings, the ALJ considered and denied each of the objections Plaintiff put forth in her Memorandum (AR 20-23) and, specific to Plaintiff's Objection V, the ALJ stated that:
AR 23 (internal citation omitted). Plaintiff nevertheless argues it was error for the ALJ to rely on the ALJ's "lay opinion to resolve this conflict, without ever presenting [the] evidence [provided by Ms. Santagati] to the testifying vocational witness." ECF No. 17 at 8:3-4 (internal citation omitted). Plaintiff emphasizes that she is not "assert[ing] that the vocational expert at the hearing was not qualified on vocational issues in general" but, rather, that the ALJ impermissibly resolved the conflicting evidence from two VEs by relying on his lay opinion. Id. at 10:14-15 (internal alteration omitted). In other words, "the testimony of the vocational expert at the hearing did not resolve the alleged conflicts or inconsistencies presented by the subsequent vocational analysis because [VE Haney] was never presented with the inconsistencies in the first place." Id. at 10:1-4 (internal alterations omitted).
The Court finds the Plaintiff's argument unpersuasive. First, Plaintiff claims that she has an inviolable right "to present rebuttal evidence and confront evidence contrary to [her] claim." ECF No. 21 at 3:17-18 (internal citation omitted). The Commissioner does not contest this, and that is exactly what occurred here. Immediately after the hearing, Plaintiff was entitled to—and did— object to VE Haney's testimony. Thereafter, the ALJ considered and denied all these objections in his findings. Plaintiff, dissatisfied with the ALJ's findings, then raised her objections concerning VE Haney's testimony before this Court. Thus, no one has denied or is denying Plaintiff's opportunity to present rebuttal evidence and confront evidence against her.
Second, the Court agrees with the Commissioner, to the extent he states that:
ECF No. 20 at 7:11-16 (internal citation omitted). Put simply, Ms. Santagati's evidence is "neither significant nor probative," and the ALJ was therefore not required to discuss this evidence. Vincent on Behalf of Vincent v. Heckler, 739 F.2d 1393, 1394-95 (9th Cir. 1984). Indeed, VE Haney is the only vocational expert who heard the social limitation in question at the administrative hearing and subjected himself to examination by Plaintiff's counsel. "[P]er his expertise, [VE Haney then] identified three unskilled jobs someone with that limitation could perform. . . . [Further,] Mr. Haney's testimony was grounded in the DOT and was, therefore, reliable notwithstanding Plaintiff's objection[.]" ECF No. 20 at 7:4, 6-7 (internal citation omitted). As a matter of fact, one of the very cases Plaintiff cites to in her Brief (ECF No. 17 at 5:16-17 (internal citation omitted)) provides that:
Bayliss v. Barnhart, 427 F.3d 1211, 1218 (9th Cir. 2005) (emphasis added and footnote omitted). Here, the ALJ properly relied on VE Haney's expert testimony in order to meet his step five burden under the sequential evaluation process.
Third, Plaintiff takes issue with the fact that VE Haney did not have an opportunity to reconcile his testimony with the subsequent vocational analysis provided by Ms. Santagati but, as Defendant points out, this makes no sense. Plaintiff apparently suggests that "an ALJ's step five finding. . . cannot stand if another attorney submits anything from another VE, no matter how illogical or unconnected to the case it is[] after the fact and the ALJ does not get the first VE to refute it." ECF No. 17 at 8-11. Indeed, taking Plaintiff's argument at face value, an ALJ would be required to ensure that a vocational expert, who testified at an administrative hearing, would testify a second time after the close of the initial hearing whenever a claimant retained vocational expert submitted a contrary post-hearing evidence. This makes no sense. Moreover, despite Plaintiff's contention that VE Haney failed to discuss the evidence Ms. Santagati provided, a review of Ms. Santagati's statement reveals that she is the one who did not specifically address the three jobs VE Haney opined Plaintiff could perform.
Accordingly, the ALJ properly considered and denied Plaintiff's post-hearing objections to VE Haney's testimony.
In accordance with Social Security regulations, courts have "developed standards that guide our analysis of an ALJ's weighing of medical evidence." Ryan v. Comm'r of Soc. Sec., 528 F.3d 1194, 1998 (9th Cir. 2008) (internal citation omitted). Courts "distinguish among the opinions of three types of physicians: (1) those who treat the claimant (treating physicians); (2) those who examine but do not treat the claimant (examining physicians); and (3) those who neither examine nor treat the claimant (nonexamining physicians)." Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1995). For claims filed before March 27, 2017, as is the case here, "the opinion of a treating physician is [given] greater weight than that of an examining physician, [and] the opinion of an examining physician is entitled to greater weight than that of a nonexamining physician." Garrison v. Colvin, 759 F.3d 995, 1012 (9th Cir. 2014) (internal citation omitted).
"If a treating or examining doctor's opinion is contradicted by another doctor's opinion, an ALJ may only reject it by providing specific and legitimate reasons that are supported by substantial evidence."
Here, the ALJ gave little weight to the opinion of Plaintiff's treating physician, Dr. Saunders because (a) Dr. Saunders failed to substantiate her opinion; (b) Dr. Saunders' "opined limitations are not consistent with the longitudinal record, which largely shows intact strength, reflexes, and range of motion, with normal gait and sensation"; (c) Dr. Saunders "apparently relied quite heavily on the subjective report of symptoms and limitations provided by the claimant;" and, (d) Dr. Saunders' own reports do not support her clinical findings. AR 33.
A medical opinion may be rejected by the ALJ if it is conclusory or inadequately supported. Bray v. Comm'r of Soc. Sec. Admin., 554 F.3d 1219, 1228 (9th Cir. 2009); Thomas v. Barnhart, 278 F.3d 947, 957 (9th Cir. 2002). That is because the Social Security regulations "give more weight to opinions that are explained than to those that are not." Holohan v. Massanari, 246 F.3d 1195, 1202 (9th Cir. 2001). An ALJ may permissibly reject opinions if they do not contain any explanation of the bases for their conclusions and are not supported by treating notes. Trevizo v. Berryhill, 871 F.3d 664, 667 n.4 (9th Cir. 2017); Garrison, 759 F.3d at 1014 n.17; Crane v. Shalala, 76 F.3d 251, 253 (9th Cir. 1996).
Here, Plaintiff failed to challenge the ALJ's characterization of Dr. Saunders' opinion as unsubstantiated and, therefore, her argument on this basis is waived. Wilcox v. Commissioner, 848 F.2d 1007, 1008 n.2 (9th Cir. 1998) ("[a]rguments not addressed in a brief are deemed abandoned"). Because Plaintiff failed to provide adequate briefing, the Court declines to consider this issue. But, even if the contrary were true, any error resulting from the ALJ's failure would be harmless as the ALJ provided two legally sufficient reasons to discount Plaintiff's treating physician's opinion; that is, Dr. Saunders' opinion appears to rely heavily on Plaintiff's subjective complaints and is unsupported by her own treatment records. Tommasetti v. Astrue, 533 F.3d 1035, 1038 (9th Cir. 2008) (an error is harmless when "it is clear from the record that the. . . error was inconsequential to the ultimate nondisability determination").
Relevant factors when evaluating any medical opinion include the amount of relevant evidence that supports the opinion, the quality of the explanation provided in the opinion, and the consistency of the medical opinion with the record. Lingenfelter v. Astrue, 504 F.3d 1028, 1042 (9th Cir. 2007); Orn, 495 F.3d at 631. Here, the ALJ found "Dr. Saunders[`] opined limitations are not consistent with the longitudinal record, which largely shows intact strength, reflexes, and range of motion, with normal gait and sensation." AR 33, citing AR 662, 666, 694, 811-19, 820-27, 835-45, 906-13, 918-25, 932, 945.
Plaintiff claims the ALJ erred because he failed to consider that Dr. Saunders, a treating source, examined Plaintiff and consulted the medical evidence in its entirety unlike the other physicians in the record. ECF No. 17 at 18:9-11. While it is true that the extent to which a medical source is "familiar with the other information in [the claimant's case record]" is relevant when assessing the weight of that source's medical opinion, this factor is far from dispositive. 20 C.F.R. §§ 404.1527(c)(6), 416.927(c)(6). Rather, a treating source's familiarity with a claimant's case record is just one factor that the ALJ is required to consider when determining the weight to give a treating source's medical opinion. Indeed, the very sentence that comes before the discussion of a claimant's case record in the Regulations states that the Commissioner "will also consider any factors. . . which tend to support or contradict the medical opinion." Id.
In any event, Plaintiff does not challenge the ALJ's finding of inconsistency between Dr. Saunders' Treating Source Statement and the longitudinal record and, therefore, waived any argument she may have had on this basis. Wilcox, 848 F.2d at 1008 n.2. Plaintiff only challenges the ALJ's alleged failure to consider Dr. Saunders' familiarity with the information available in Plaintiff's case record and, does not discuss the ALJ's findings with respect to the inconsistent clinical findings concerning her "strength, reflexes, and range of motion[.]"
A physician's opinion may be rejected if it is based on a claimant's subjective complaints which were properly discounted. Tonapetyan v. Halter, 242 F.3d 1144, 1149 (9th Cir. 2001); Morgan v. Comm'r of Soc. Sec. Admin., 169 F.3d 595, 602 (9th Cir. 1999); Fair v. Bowen, 885 F.2d 597, 604 (9th Cir. 1989). However, when an opinion is not more heavily based on a patient's self-reports than on clinical observations, there is no evidentiary basis for rejecting the opinion. Ghanim v. Colvin, 763 F.3d 1154, 1162 (9th Cir. 2014); Ryan, 528 F.3d at 1199-1200. Here, the ALJ concluded that Dr. Saunders "apparently relied quite heavily on the subjective report of symptoms and limitations provided by the claimant (e.g., she notes that the walking and standing limitation was per the claimant), and seemed to uncritically accept as true most, if not all, of what the claimant reported regarding her pain and limitations." AR 33.
Plaintiff asserts that "[o]f course" Dr. Saunders relied on Plaintiff's subjective complaints in her medical source opinion because "[c]onsideration of subjective complaints is always part of the picture and is always (very appropriately) considered by a medical provider. . . . However, there is no basis in this record to assume that Dr. Saunders was not able to sort through the subjective and objective evidence before arriving at her conclusions[.]" ECF No. 17 at 15:26-16:3 (internal alteration and footnote omitted). Plaintiff's argument paints half a picture.
First, there is no basis in this record upon which the Court may rely to assume, let alone conclude, that Dr. Saunders was able to sort through the subjective and objective evidence or that she did, in fact, sort through such evidence before arriving at her conclusions. Second, as previously discussed, Dr. Saunders did not cite to any clinical findings in her Treating Source Statement. See, e.g., AR 926-29. What the Treating Source Statement does reveal is that Dr. Saunders relied on Plaintiff's subjective symptoms complaints in formulating at least two of her responses. When confronted with a medical opinion that only cited Plaintiff's self-reports twice and to nothing else, the ALJ appropriately found that the Treating Source Statement was premised primarily—if not entirely—on Plaintiff's subjective complaints. AR 33. Where the ALJ's interpretation of the record is reasonable, as it is here, it should not be second-guessed. Rollins v. Massanari, 261 F.3d 853, 857 (9th Cir. 2001). Accordingly, the Court finds the ALJ did not err in discounting Dr. Saunders' opinion because it appears to have relied extensively on Plaintiff's subjective complaints.
A medical opinion may be rejected if it is unsupported by medical findings. Bray, 554 F.3d at 1228; Thomas, 278 F.3d at 957; Tonapetyan, 242 F.3d at 1149 (9th Cir. 2001). An ALJ may also discredit physicians' opinions that are unsupported by the record as a whole. Batson, 359 F.3d at 1195. Moreover, an ALJ is not obliged to credit medical opinions that are unsupported by the medical source's own data and/or contradicted by the opinions of other examining medical sources. Tommasetti, 533 F.3d 1035 at 1041.
Here, the ALJ found that Dr. Saunders' "report failed to reveal the type of significant clinical and laboratory abnormalities one would expect if the claimant were in fact limited to the degree opined by [the] doctor[,] and Dr. Saunders did not address this weakness. Specifically, Dr. Saunders[`] own report shows normal symmetry, tone, strength, and range of motion in the claimant's musculoskeletal system." AR 33. The ALJ refers to the treatment notes Dr. Saunders completed on the same day she submitted her Treating Source Statement. That is, on July 21, 2016, Dr. Saunders' examination findings revealed, inter alia, no associated signs and symptoms of present illness (AR 930); "negative" results on every review of Plaintiff's symptoms (id.); and, "normal" results except "right shoulder extension. . . elicit[ing] minor tenderness" (AR 932). These routine findings are clearly inconsistent with Dr. Saunders' Treating Source Statement, which found essentially debilitating limitations. In addition, as stated by the ALJ, "many [of Dr. Saunders' other] reports fail to note any edema[, effusion, deformity, clubbing, cyanosis, instability, or tenderness to palpation]." AR 33, citing AR 662, 666, 932, 945.
Plaintiff maintains that Dr. Saunders' treatment notes are not inconsistent with her Treating Source Statement, but her arguments are unpersuasive at best. Plaintiff first alleges that Dr. Saunders previously "described [her] symptoms of restless leg syndrome to be `severe' in October 2011. . . . In [December 2011, Dr. Saunders] described Plaintiff's condition as `the worst case for restless leg syndrome I have ever seen.'" ECF No. 17 at 16:18-21, citing AR 383, 415. Plaintiff also points out that Dr. Saunders "noted [she] had been compliant with every treatment and referral and advised Plaintiff to try medical marijuana" at the December visit. Id. at 17:6-7, citing AR 415. Notwithstanding Plaintiff's contentions, these citations actually support the ALJ's finding of inconsistency between Dr. Saunders' treatment notes and her Treating Source Statement. Dr. Saunders' review of symptoms at both of these visits generally returned negative results. The sole exception comes from a review of Plaintiff's neurological systems at the December visit, where Dr. Saunders quotes Plaintiff's self-report: "yesterday `I had horrible (leg) pain.'" AR 413. However, a mere two pages later, Dr. Saunders made the following contrary clinical findings concerning Plaintiff's neurological system: "CN 2-12 normal. Sensation to pain, touch, and proprioception normal. DTRs normal in upper and lower extremities. No pathologic reflexes." AR 415. In addition, at both of the October and December visits, Dr. Saunders found Plaintiff exhibited "[n]ormal gait and station. No misalignment, asymmetry, crepitation, defects, tenderness, masses, effusions, decreased range of motion, instability, atrophy or abnormal strength or tone in the head, neck, spine, ribs, pelvis or extremities." AR 382, 415.
Plaintiff nonetheless argues that Dr. Saunders' notes support her Treating Source Statement because Dr. Saunders "had to remove [Plaintiff] from antidepressants to try to control her severe symptoms" (id. at 16:22-23, citing AR 393) and "took Plaintiff off work" (id. at 16:24, citing AR 450).
In sum, "the ALJ need not accept the opinion of any physician, including a treating physician, if that opinion is. . . inadequately supported by clinical findings." Bray, 554 at 1228. Accordingly, the Court finds the ALJ did not err in finding Dr. Saunders' treatment notes failed to support her Treating Source Statement.
The ALJ properly overruled Plaintiff's post-hearing objections to VE Haney's expert testimony. Plaintiff failed to provide adequate briefing on whether the ALJ properly assigned little weight to Dr. Saunders' opinion based on its lack of support and inconsistency with the longitudinal record and, therefore, the Court declines to consider these issues. In any event, the ALJ appropriately found, using the specific and legitimate standard, that Plaintiff's treating physician's contradicted opinion should be afforded little weight because the opinion appears to rely heavily on Plaintiff's subjective complaints and is unsupported by Dr. Saunders' own treatment records.
Accordingly,
IT IS HEREBY ORDERED that Plaintiff's Brief in Support of Motion for Reversal and/or Remand (ECF No. 17) is DENIED, and Defendant's Cross Motion to Affirm the Commissioner's Decision and Response to Plaintiff's Motion for Reversal (ECF No. 20) is GRANTED.
