REPORT AND RECOMMENDATION

BRIAN A. TSUCHIDA, Chief Magistrate Judge.

Plaintiff appeals the ALJ's decision finding her not disabled. The ALJ found fibromyalgia vs. pain syndrome, autonomic nerve disorder, degenerative changes of the cervical and lumbar spine, hypertension, obesity, affective disorder, anxiety-related disorder and posttraumatic stress disorder (PTSD) are severe impairments; plaintiff retains the residual functional capacity (RFC) to lift/carry 20 pounds occasionally and 10 pound frequently, can stand/walk 6 hours in an eight hour day, and has other postural, environmental, and non-exertional limitations; and plaintiff cannot perform past relevant work but is not disabled because she can perform other jobs in the national economy. Tr. 32-47.

Plaintiff contends the ALJ misevaluated (1) a December 2016 MRI, (2) her testimony about fibromyalgia, (3) opinions of State Agency Psychologists Dan Donahue, Ph.D., and John Robinson, Ph.D., and (5) plaintiff's need for accommodation under the Americans with Disabilities Act (ADA) at step five. Dkt. 15 at 1-2.

For the reasons below, the Court recommends the case be REVERSED and REMANDED for further administrative proceedings under sentence four of 42 U.S.C. § 405(g).

DISCUSSION

A. The ALJ's Evaluation of the 2016 MRI

In evaluating plaintiff's testimony about chronic back pain, the ALJ found:

Tr. 38. Plaintiff contends, inter alia, the ALJ misread the MRI results, Dkt. 15 at 6, made an impermissible medical finding, id., and that evidence presented to the Appeals Council undermines the ALJ's determination. Id. at 7.

Focusing on the last argument, after the ALJ issued the decision, plaintiff submitted to the Appeals Council the declaration of treating doctor Peter Struck, M.D. Tr. 57-64. The declaration is part of the record this Court reviews. See Ramirez v. Shalala, 8 F.3d 1449, 1451-52 (9th Cir. 1993) (Court may consider evidence submitted to the Appeals Council to determine if the ALJ's decision is supported by substantial evidence).

The declaration clearly undermines the ALJ's assessment of the 2016 MRI. The ALJ found that other than stenosis, the MRI established "only mild or normal findings." Tr. 38. The ALJ clearly discounted the MRI findings. Dr. Struck, on the other hand, opined the "MRI demonstrated objective findings that would have caused the radiculopathy she described in 2016. [Plaintiff] did not suddenly develop the significant facet arthritis, spinal stenosis and nerve root compression seen on the MRI." Tr. 59 (emphasis added). Dr. Struck's opinions undermines the ALJ's assessment of the MRI.

The Commissioner argues Dr. Struck's opinion does not "divest the ALJ's decision of substantial evidence." Dkt. 16 at 3. The Commissioner does not argue Dr. Struck's opinion, if accepted, undermines the ALJ's finding. Rather the Commissioner argues the court should reject Dr. Struck's because he challenged or disagreed with the ALJ's assessment, and is therefore plaintiff's advocate. Id. The argument fails. First, the record cuts against it. There is no evidence Dr. Struck was hired to advocate for plaintiff, and was merely spouting off an unsubstantiated opinion. Rather Dr. Struck is plaintiff's treating doctor, and rendered his opinion based upon the care he provided plaintiff, and his medical expertise.

Second, Dr. Struck should not be faulted for giving a medical opinion about what the MRI showed (significant facet arthritis, spinal stenosis and nerve root compression). He is after all a treating physician and should be called upon to set forth what the imaging test results establish. The fact Dr. Struck has an opinion that differs from the ALJ's assessment does not nullify his opinion. Otherwise, the ALJ would never have to adopt a medical opinion the ALJ disagrees with.

In short, Dr. Struck's post hearing declaration undermines the ALJ's assessment of the 2016 MRI; the assessment is thus no longer supported by substantial evidence. The Court notes although plaintiff presents Dr. Struck's declaration in support of the claim the ALJ erred in assessing the 2016 MRI, plaintiff also argues the declaration sweeps far wider. This is because the doctor also opined plaintiff has functional limitations not accounted for by the RFC determination such as inability to sit, stand or walk for six hours. Dkt. 15 at 8, 9. Because Dr. Struck's entire declaration is new evidence that was not before the ALJ, the ALJ on remand shall be directed to consider the declaration, in its entirety.

B. Plaintiff's Testimony

Plaintiff's claimed errors two and three go to the ALJ's assessment of her testimony. Plaintiff contends the ALJ misevaluated her testimony in two respects. First, the ALJ misevaluated the severity of her fibromyalgia/pain syndrome symptom testimony. Dkt. 15 at 11. The ALJ rejected plaintiff's testimony for several reasons including her "allegations are inconsistent with her work history. Her allegedly long standing debilitating fatigue did not prevent her being able to engage in substantial gainful activity prior to the onset date." Tr. 37. This is a valid reason as the ALJ properly may discount a doctor's opinion that is inconsistent with a claimant's work history. See Rollins v. Massanari, 261 F.3d 853, 856 (9th Cir. 2001).

Plaintiff does not argue otherwise. Instead she claims her prior work is an invalid basis to reject her testimony because the ALJ found she could not return to prior work and "tacitly accepted that [plaintiff's] medical condition had worsened since she worked as a nurse." Dkt. 15 at 12. Plaintiff's claim is an unsupported assumption. Plaintiff alleges she has many different limitations caused by many conditions other than fibromyalgia/pain syndrome. Hence, there is no basis to assume that plaintiff can no longer perform past relevant solely because her fibromyalgia symptoms worsened. Plaintiff has the burden of showing harm and fails to do so here. See Molina v. Astrue, 674 F.3d at 1111 (court may not reverse unless error is harmful, and claimant has burden of showing harm).

Second, plaintiff argues the ALJ erred in discounting her pain testimony as inconsistent with her activities of daily living. Dkt. 15 at 12-13. The ALJ found plaintiff's allegations of extreme fatigue is inconsistent with how plaintiff reported in March 2014 (though she claims disability as of October 1, 2013) she exercised 4 days a week, walking 2 to 3 miles; how she had no problems caring for her hygiene and grooming and caring for dogs, chickens and a horse; how she could usually prepare healthy meals for the family; how she could go out daily and socialize with friends. Tr. 37-38. The ALJ may discount a claimant's testimony based upon contradictions between a claimant's reported activities and her limitations. Morgan v. Comm'r of Soc. Sec. Admin., 169 F.3d 595, 600 (9th Cir. 1999). This is what the ALJ reasonably did here. The ALJ's determination to discount plaintiff's testimony should accordingly be affirmed.

The ALJ gave other reasons to discount plaintiff's testimony which need not be discussed. Even if the other reasons are erroneous, the error would be harmless. See Carmickle v. Comm'r, Soc. Sec. Admin., 533 F.3d 1155, 1162 (9th Cir. 2008) (including an erroneous reason among other reasons to discount a claimant's credibility does not negate the validity of the overall credibility determination and is at most harmless error where an ALJ provides other reasons that are supported by substantial evidence). The Court accordingly recommends affirming the ALJ assessment of plaintiff's testimony be affirmed.

C. Drs. Robinson and Donahue

Plaintiff contends the ALJ failed to account for mental limitations assessed by reviewing doctors Dan Donahue, Ph.D., and John Robinson, Ph.D. Dkt. 15 at 14. The ALJ gave little weight to the opinions of these doctors. Tr. 44. Plaintiff claims the ALJ erroneously rejected the doctors' opinions as inconsistent with her husband's testimony, her presentation at her doctors' visits, and medical findings she lacked cognitive deficits. Id. at 16-17. The first two arguments are alternative interpretations of the evidence. Plaintiff's interpretation is not wholly unreasonable but neither is the ALJ's interpretation. In such a circumstance, the Court is required to affirm the ALJ's interpretation. See Tommasetti v. Astrue, 533 F.3d 1035, 1038 (9th Cir. 2008) (When the evidence is susceptible to more than one rational interpretation, the court must uphold the ALJ's findings if they are supported by inferences reasonably drawn from the record).

As to the last argument, plaintiff contends the ALJ's finding impermissibly cites to treatment notes of plaintiff's physical, not mental condition. Dkt. 15 at 17. Even if this is so, the Court can discern the ALJ's basis for rejecting Drs. Donahue's and Robinson's opinions about cognitive limitations because the ALJ specifically gave "significant weight" to Anselm Parlatore's M.D., assessment of plaintiff's cognitive functioning (citing to Tr. 761.). Tr. 43. In his medical source statement, Dr. Parlatore opined plaintiff has the ability to reason and understand, and her memory, concentration, pace and persistence, are intact. Tr. 761. The ALJ's adoption of Dr. Parlatores' opinion sufficiently informs the Court of the grounds upon which the ALJ relied in rejecting the reviewing doctors' opinions. See Treichler v. Comm'r of Social Sec. Admin., 775 F.3d 1090 1102 (9th Cir. 2014) (Court may not affirm ALJ's decision where "`the agency's path' cannot `reasonably be discerned.") (citation omitted). The Court accordingly affirms the ALJ's assessment of the opinions of Drs. Donahue and Robinson.

D. The ALJ's Failure to Issue Subpoenas and Consider Plaintiff's Need for Special Chair Under the ADA

Plaintiff requested the ALJ subpoena Drs. Parlatore, Donahue, Robinson, Staley, and Ulleland, and alternatively to send interrogatories. Tr. 29. The ALJ agreed and scheduled a supplemental hearing to take their testimony. Id. Despite the ALJ's desire to further develop the record, the Social Security Administration intervened, refused to cooperate, and forced the ALJ to render a decision with further development. Id. Plaintiff faults the ALJ. This is a claim that need not be resolved at this junction because the case will be remanded with direction that the ALJ develop the record as the ALJ deems necessary.

Plaintiff also contends the ALJ erred in rejecting the pre-hearing opinion of John Berg, M.Ed., dated January 2015, who gave an opinion about a different person, and how the person needed an accommodation to address obesity to perform sedentary work. Dkt. 15 at 17. The ALJ rejected Mr. Berg's opinion because it "pertains to another individual," i.e. a person five feet nine inches tall, 470 pounds, 36 inches wide at the hips and 27 inches wide at the buttocks. Tr. 30 (referring to Tr. 386). Plaintiff is five feet five inches tall, 219 pounds, and 25 inches from thigh to thigh. Tr. 285. Mr. Berg's opinion is also directed to accommodation requirements for sedentary jobs, i.e. jobs performed seated in a chair. Tr. 387. The ALJ, however, found plaintiff could perform light work as a housekeeper, which Mr. Berg's 2015 report does not address. The Court cannot say the ALJ unreasonably discounted Mr. Berg's 2015 report as pertaining to a person that is not the plaintiff.

After the ALJ issued his decision, plaintiff submitted to the Appeals Council a new declaration from Mr. Berg. Tr. 8. Plaintiff contends the ALJ erred in rejecting the 2015 report because it did not mention [plaintiff] by name, and that the new declaration cures this "objection." Dkt. 15 at 18 (citing Tr. 12-13.). The Court rejects the contention. The pages plaintiff relies upon in the declaration submitted to the Appeals Council indicates the standard size office chair in the labor market is between 18 and 21 inches wide and that if an employer needs to provide a person with a wider chair, that need constitutes an accommodation. But opinion merely recites the obvious: if an accommodation is needed, then an accommodation is needed.

Mr. Berg, however, does not specifically say whether plaintiff can or cannot fit into a standard size office chair, or whether standard size office chairs are even used to perform light duty work as a cleaner housekeeper, a job the ALJ found plaintiff could perform.

In sum, the ALJ did not err in discounting Mr. Berg's 2015 opinion. The opinion sets forth limitations regarding a much bigger person and does not specify whether plaintiff needs a special sized office chair. The declaration submitted to the Appeals Council does not move the needle. It again fails to specify whether plaintiff needs a special sized office chair or even whether such a chair is used to perform light cleaner housekeeper jobs. The Court notes the declaration submitted to the Appeals Council contains other opinions of Mr. Berg, but plaintiff has not asserted these other opinions are a bases for remand. The Court accordingly should affirm the ALJ's evaluation of Mr. Berg's 2015 opinions and find the new declaration does not undermine the ALJ's written decision.

CONCLUSION

For the reasons above, the Court recommends REVERSING the Commissioner's final decision and REMANDING the case for further administrative proceedings under sentence four of 42 U.S.C. § 405(g). On remand, the ALJ shall reassess the 2016 MRI imagining results and also address Dr. Struck's opinions; the ALJ shall develop the record, reevaluate plaintiff's RFC, and proceed to step five as appropriate.

A proposed order accompanies this Report and Recommendation. Any objection to this Report and Recommendation must be filed and served no later than December 21, 2018. If no objections are filed, the Clerk shall note the matter for December 21, 2018, as ready for the Court's consideration. If objections are filed, any response is due within 14 days after being served with the objections. A party filing an objection must note the matter for the Court's consideration 14 days from the date the objection is filed and served. Objections and responses shall not exceed ten pages. The failure to timely object may affect the right to appeal.

ORDER REVERSING AND REMANDING CASE FOR FURTHER ADMINISTRATIVE PROCEEDINGS

The Court, after careful consideration of the plaintiff's complaint, the parties' briefs, the Report and Recommendation of the Honorable Brian A. Tsuchida, United States Magistrate Judge, and the balance of the record, does hereby find and ORDER:

JUDGMENT IN A CIVIL CASE

____ Jury Verdict. This action came before the Court for a trial by jury. The issues have been tried and the jury has rendered its verdict.

X Decision by Court. This action came to consideration before the Court. The issues have been considered and a decision has been rendered.

THE COURT HAS ORDERED THAT:

The Report and Recommendation is adopted and approved. The Commissioner's final decision is REVERSED and the case is REMANDED for further administrative proceedings under sentence four of 42 U.S.C. § 405(g).