MARY K. DIMKE, Magistrate Judge.
BEFORE THE COURT are the parties' cross-motions for summary judgment. ECF Nos. 14, 15. This matter has been referred to the undersigned magistrate judge for issuance of a report and recommendation. ECF No. 17. The Court, having reviewed the administrative record and the parties' briefing, is fully informed. For the reasons discussed below, the Court denies Plaintiff's motion (ECF No. 14) and grants Defendant's motion (ECF No. 15).
The Court has jurisdiction over this case pursuant to 42 U.S.C. § 405(g).
A district court's review of a final decision of the Commissioner of Social Security is governed by 42 U.S.C. § 405(g). The scope of review under § 405(g) is limited; the Commissioner's decision will be disturbed "only if it is not supported by substantial evidence or is based on legal error." Hill v. Astrue, 698 F.3d 1153, 1158 (9th Cir. 2012). "Substantial evidence" means "relevant evidence that a reasonable mind might accept as adequate to support a conclusion." Id. at 1159 (quotation and citation omitted). Stated differently, substantial evidence equates to "more than a mere scintilla[,] but less than a preponderance." Id. (quotation and citation omitted). In determining whether the standard has been satisfied, a reviewing court must consider the entire record as a whole rather than searching for supporting evidence in isolation. Id.
In reviewing a denial of benefits, a district court may not substitute its judgment for that of the Commissioner. Edlund v. Massanari, 253 F.3d 1152, 1156 (9th Cir. 2001). If the evidence in the record "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." Molina v. Astrue, 674 F.3d 1104, 1111 (9th Cir. 2012). Further, a district court "may not reverse an ALJ's decision on account of an error that is harmless." Id. An error is harmless "where it is inconsequential to the [ALJ's] ultimate nondisability determination." Id. at 1115 (quotation and citation omitted). The party appealing the ALJ's decision generally bears the burden of establishing that it was harmed. Shinseki v. Sanders, 556 U.S. 396, 409-10 (2009).
A claimant must satisfy two conditions to be considered "disabled" within the meaning of the Social Security Act. First, the claimant must be "unable to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than twelve months." 42 U.S.C. § 423(d)(1)(A). Second, the claimant's impairment must be "of such severity that he is not only unable to do his previous work[,] but cannot, considering his age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national economy." 42 U.S.C. § 423(d)(2)(A).
The Commissioner has established a five-step sequential analysis to determine whether a claimant satisfies the above criteria. See 20 C.F.R. § 404.1520(a)(4)(i)-(v). At step one, the Commissioner considers the claimant's work activity. 20 C.F.R. § 404.1520(a)(4)(i). If the claimant is engaged in "substantial gainful activity," the Commissioner must find that the claimant is not disabled. 20 C.F.R. § 404.1520(b).
If the claimant is not engaged in substantial gainful activity, the analysis proceeds to step two. At this step, the Commissioner considers the severity of the claimant's impairment. 20 C.F.R. § 404.1520(a)(4)(ii). If the claimant suffers from "any impairment or combination of impairments which significantly limits [his] physical or mental ability to do basic work activities," the analysis proceeds to step three. 20 C.F.R. § 404.1520(c). If the claimant's impairment does not satisfy this severity threshold, however, the Commissioner must find that the claimant is not disabled. 20 C.F.R. § 404.1520(c).
At step three, the Commissioner compares the claimant's impairment to severe impairments recognized by the Commissioner to be so severe as to preclude a person from engaging in substantial gainful activity. 20 C.F.R. § 404.1520(a)(4)(iii). If the impairment is as severe or more severe than one of the enumerated impairments, the Commissioner must find the claimant disabled and award benefits. 20 C.F.R. § 404.1520(d).
If the severity of the claimant's impairment does not meet or exceed the severity of the enumerated impairments, the Commissioner must pause to assess the claimant's "residual functional capacity." Residual functional capacity (RFC), defined generally as the claimant's ability to perform physical and mental work activities on a sustained basis despite his limitations, 20 C.F.R. § 404.1545(a)(1), is relevant to both the fourth and fifth steps of the analysis.
At step four, the Commissioner considers whether, in view of the claimant's RFC, the claimant is capable of performing work that he has performed in the past (past relevant work). 20 C.F.R. § 404.1520(a)(4)(iv). If the claimant is capable of performing past relevant work, the Commissioner must find that the claimant is not disabled. 20 C.F.R. § 404.1520(f). If the claimant is incapable of performing such work, the analysis proceeds to step five.
At step five, the Commissioner considers whether, in view of the claimant's RFC, the claimant is capable of performing other work in the national economy. 20 C.F.R. § 404.1520(a)(4)(v). In making this determination, the Commissioner must also consider vocational factors such as the claimant's age, education and past work experience. 20 C.F.R. § 404.1520(a)(4)(v). If the claimant is capable of adjusting to other work, the Commissioner must find that the claimant is not disabled. 20 C.F.R. § 404.1520(g)(1). If the claimant is not capable of adjusting to other work, analysis concludes with a finding that the claimant is disabled and is therefore entitled to benefits. 20 C.F.R. § 404.1520(g)(1).
The claimant bears the burden of proof at steps one through four above. Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999). If the analysis proceeds to step five, the burden shifts to the Commissioner to establish that (1) the claimant is capable of performing other work; and (2) such work "exists in significant numbers in the national economy." 20 C.F.R. § 404.1560(c)(2); Beltran v. Astrue, 700 F.3d 386, 389 (9th Cir. 2012).
Plaintiff applied for disability insurance benefits on August 28, 2012, alleging an onset date of June 30, 2007. Tr. 194-201. Benefits were denied initially, Tr. 140-42, and upon reconsideration. Tr. 147-48. Plaintiff appeared for a hearing before an administrative law judge (ALJ) on April 28, 2015. Tr. 42-97. On May 15, 2015, the ALJ denied Plaintiff's claim. Tr. 17-37.
At step one, the ALJ found Plaintiff did not engage in substantial gainful activity during the period from his alleged onset date of June 30, 2007 through his date last insured of June 30, 2013. Tr. 27. At step two, the ALJ found that through the date last insured, Plaintiff had the following severe impairments: disorders of the back — discogenic and degenerative, osteoarthritis right shoulder, posttraumatic stress disorder, anxiety, and depression. Tr. 27. At step three, the ALJ found that through the date last insured, Plaintiff did not have an impairment or combination of impairments that met or medically equaled the severity of a listed impairment. Tr. 28. The ALJ then concluded that through the date last insured, Plaintiff had the RFC
Tr. 30. At step four, the ALJ found that through the date last insured, Plaintiff was unable to perform any past relevant work. Tr. 32. At step five, the ALJ found that through the date last insured, considering Plaintiff's age, education, work experience, and RFC, there were other jobs that exist in significant numbers in the national economy that the Plaintiff could have performed, including: housekeeper/cleaner, marker pricer, and agricultural produce sorter. Tr. 33. The ALJ concluded Plaintiff was not under a disability, as defined in the Social Security Act, at any time from June 30, 2007, the alleged onset date, through June 30, 2013, the date last insured. Tr. 33.
On September 14, 2016, the Appeals Council denied review, Tr. 1-6, making the ALJ's decision the Commissioner's final decision for purposes of judicial review. See 42 U.S.C. § 1383(c)(3); 20 C.F.R. §§ 416.1481, 422.210.
Plaintiff seeks judicial review of the Commissioner's final decision denying him disability insurance benefits under Title II of the Social Security Act. ECF No. 14. Plaintiff raises the following issues for this Court's review:
1. Whether the ALJ properly weighed Plaintiff's symptom claims;
2. Whether the ALJ properly weighed the medical opinion evidence; and
3. Whether the ALJ properly considered the lay witness testimony. ECF No. 14 at 9-19.
Plaintiff faults the ALJ for improperly discrediting his symptom claims. ECF No. 14 at 9-14.
An ALJ engages in a two-step analysis to determine whether a claimant's testimony regarding subjective pain or symptoms is credible. "First, the ALJ must determine whether there is objective medical evidence of an underlying impairment which could reasonably be expected to produce the pain or other symptoms alleged." Molina, 674 F.3d at 1112 (internal quotation marks omitted). "The claimant is not required to show that [his] impairment could reasonably be expected to cause the severity of the symptom [he] has alleged; [he] need only show that it could reasonably have caused some degree of the symptom." Vasquez v. Astrue, 572 F.3d 586, 591 (9th Cir. 2009) (internal quotation marks omitted).
Second, "[i]f the claimant meets the first test and there is no evidence of malingering, the ALJ can only reject the claimant's testimony about the severity of the symptoms if [the ALJ] gives `specific, clear and convincing reasons' for the rejection." Ghanim v. Colvin, 763 F.3d 1154, 1163 (9th Cir. 2014) (internal citations and quotations omitted). "General findings are insufficient; rather, the ALJ must identify what testimony is not credible and what evidence undermines the claimant's complaints." Id. (quoting Lester v. Chater, 81 F.3d 821, 834 (9th Cir. 1995)); Thomas v. Barnhart, 278 F.3d 947, 958 (9th Cir. 2002) ("[T]he ALJ must make a credibility determination with findings sufficiently specific to permit the court to conclude that the ALJ did not arbitrarily discredit claimant's testimony."). "The clear and convincing [evidence] standard is the most demanding required in Social Security cases." Garrison v. Colvin, 759 F.3d 995, 1015 (9th Cir. 2014) (quoting Moore v. Comm'r Soc. Sec. Admin., 278 F.3d 920, 924 (9th Cir. 2002)).
In making an adverse credibility determination, the ALJ may consider, inter alia, (1) the claimant's reputation for truthfulness; (2) inconsistencies in the claimant's testimony or between his testimony and his conduct; (3) the claimant's daily living activities; (4) the claimant's work record; and (5) testimony from physicians or third parties concerning the nature, severity, and effect of the claimant's condition. Thomas, 278 F.3d at 958-59.
This Court finds the ALJ provided specific, clear, and convincing reasons for finding that Plaintiff's allegations of disability "only partially credible." Tr. 27.
First, the ALJ noted that Plaintiff continued working "up to 2012, earning as much as $3,000 in 2008;" and found that "[a]lthough his earnings were recorded as less than the amount the Social Security Administration presumes is substantial gainful activity, these earnings suggest a greater ability to perform work-related activities than the claimant alleged." Tr. 22 (citing Tr. 206). Generally, the ability to work can be considered in assessing credibility. Bray v. Comm'r Soc. Sec. Admin., 554 F.3d 1219, 1227 (9th Cir. 2009); see also 20 C.F.R. § 404.1571 (employment "during any period" of claimed disability may be probative of a claimant's ability to work at the substantial gainful activity level). However, as noted by Plaintiff, "occasional symptom-free periods — and even the sporadic ability to work — are not inconsistent with disability." ECF No. 14 at 12 (citing Lester, 81 F.3d at 833); see also Lingenfelter v. Astrue, 504 F.3d 1028, 1038 (9th Cir. 2007) ("It does not follow from the fact that a claimant tried to work for a short period of time and, because of his impairments, failed, that he did not then experience pain and limitations severe enough to preclude him from maintaining substantial gainful employment."). Plaintiff testified that he "had a [stringed instrument] repair shop" from 2007 through 2012; but it "tanked" and he was not able to do it "at anything approaching full-time hours" because of his physical and psychological limitations. Tr. 71-72. This testimony is consistent with Plaintiff's earning record of $1,055 in 2007; $3000 in 2008; $1,365 in 2009; $1,005 in 2010; $1,704 in 2011; $1,173 in 2012; and no earnings in 2013. Tr. 206.
These minimal earnings do not support a finding that Plaintiff could successfully sustain work activity on a regular and continuing basis. See Social Security Regulation ("SSR") 96-8p (July 2, 1996), available at 1996 WL 374184 at *1 (a "regular and continuing basis" means "8 hours a day, for 5 days a week, or an equivalent work schedule"). Moreover, in making this finding, the ALJ does not sufficiently identify what testimony is not credible, and how the cited earning records undermine those specific complaints. See Holohan v. Massanari, 246 F.3d 1195, 1208 (9th Cir. 2001). For these reasons, the ALJ erred to the extent that he relied on Plaintiff's ability to work, based solely on his earnings record, as a reason to discount his subjective claims. However, this error is harmless because, as discussed below, the ALJ's ultimate credibility finding was supported by substantial evidence. See Carmickle, 533 F.3d at 1162-63.
Second, the ALJ found Plaintiff's activities of daily living "belie [his] allegations of total disability." Tr. 22-23. Evidence about daily activities is properly considered in making a credibility determination. Fair v. Bowen, 885 F.2d 597, 603 (9th Cir. 1989). However, a claimant need not be utterly incapacitated in order to be eligible for benefits. See Orn v. Astrue, 495 F.3d 625, 639 (9th Cir. 2007) ("the mere fact that a plaintiff has carried on certain activities . . . does not in any way detract from her credibility as to her overall disability."). Regardless, as in this case, "[e]ven where [Plaintiff's] activities suggest some difficulty functioning, they may be grounds for discrediting the claimant's testimony to the extent that they contradict claims of a totally debilitating impairment." Molina, 674 F.3d at 1113. Here, Plaintiff testified that he can walk for 20 minutes a day but his hips hurt after; he cannot stand for "very long;" he tries not to bend over or pick things up because it hurts; can sit for 50 minutes at a time; he can lift and carry up to twelve pounds; he has anxiety and depression; and he cannot concentrate. Tr. 79-83. As noted by the ALJ, Plaintiff also reported in April 2013 that he had chronic pain in his back, neck, hips, and head; numb hands; problems with confusion; difficulty handling stress and change; and limited ability to lift, squat, bend, stand, reach, walk, sit, kneel, talk, climb, remember, complete tasks, concentrate, understand, follow directions, use his hands, and get along with others. Tr. 249-56. However, the ALJ cited a range of activities that "belie [Plaintiff's] allegations of total disability," including: caring for his hair and shaving; getting around by walking and driving a car, shopping for groceries, paying bills and handling money, attending church, going to a weekly "men's group;" and riding his motorcycle. Tr. 22-23, 250, 252-53, 484. Moreover, the ALJ found that Plaintiff's activities of daily living "included continuing efforts to do guitar repair from home, which is skilled, medium work that is much more demanding than [the assessed RFC], albeit on a part-time basis, [which] suggest a level of functioning that is not disabling." Tr. 27, 71-72, 485, 508 (noting Plaintiff "has been able to handle the work requests without difficulty" and wants to open his own shop). The ALJ additionally noted that in early 2008 Plaintiff's treating physician indicated that his PTSD was "not interfering with life activities." Tr. 24, 505.
Plaintiff generally argues the ALJ does not identify how Plaintiff's "claimed activities of shopping for groceries (which was done with supervision), paying bills and handling family accounts (which [Plaintiff's wife] disputes), attending church and a men's group are inconsistent with his claimed limitations and disabilities." ECF No. 14 at 12. Plaintiff is correct that "[g]eneral findings are insufficient; rather, the ALJ must identify what testimony is not credible and what evidence undermines the claimant's complaints." Id. (citing Lester, 81 F.3d at 834). However, in this case, the ALJ extensively recounts Plaintiff's reports of disabling physical limitations; and then cites his activities, as detailed above, that contradict Plaintiff's allegations of incapacitating physical and psychological symptoms. Tr. 22-23, 27. Moreover, the ALJ specifically found that Plaintiff's "ability to perform social and financial activities such as shopping and attending church is inconsistent with his allegations about the severity of his psychiatric disorders." Tr. 23. And finally, the ALJ noted "in particular, [that Plaintiff's] ability to care for his hair and to shave contradicts his allegations about the severity of symptoms in his neck and upper extremity." Tr. 23. Plaintiff contends that the ALJ improperly relied on an "inconsistency in [Plaintiff's] claim that he had some trouble dressing and bathing, when he stated that he did not have trouble with hair care or shaving." ECF No. 14 at 13. However, a plain reading of the decision indicates that while the ALJ noted that Plaintiff reported "some problems dressing and bathing but not for caring for his hair and shaving," the ALJ did not cite an inconsistency between these reports as a reason to discount Plaintiff's subjective claims. Tr. 22. Rather, the ALJ specifically found that Plaintiff's ability to shave and care for his hair was inconsistent with the severity of claimed limitations in his neck and upper extremity. Tr. 23. Moreover, even if the evidence of Plaintiff's daily activities in this case may be interpreted more favorably to the Plaintiff, it is susceptible to more than one rational interpretation, and therefore the ALJ's conclusion must be upheld. Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005); see also Andrews v. Shalala, 53 F.3d 1035, 1039 (9th Cir. 1995) ("[t]he ALJ is responsible for determining credibility"). Thus, Plaintiff's activities of daily living were reasonably considered by the ALJ as "suggest[ing] a level of functioning that is not disabling." Tr. 27. This was a clear and convincing reason to find Plaintiff only partially credible.
Third, the ALJ found Plaintiff's "overall treatment history and the objective medical evidence fail to fully support [Plaintiff's] allegations." Tr. 23-27. An ALJ may not discredit a claimant's pain testimony and deny benefits solely because the degree of pain alleged is not supported by objective medical evidence. Rollins v. Massanari, 261 F.3d 853, 857 (9th Cir. 2001); Bunnell v. Sullivan, 947 F.2d 341, 346-47 (9th Cir. 1991); Fair, 885 F.2d at 601. However, the medical evidence is a relevant factor in determining the severity of a claimant's pain and its disabling effects. Rollins, 261 F.3d at 857; 20 C.F.R. § 404.1529(c)(2). Minimal objective evidence is a factor which may be relied upon in discrediting a claimant's testimony, although it may not be the only factor. See Burch, 400 F.3d at 680.
As an initial matter, Plaintiff argues "[b]ecause the ALJ's other grounds upon which the credibility determination is based is flawed, this reason cannot stand alone." ECF No. 14 at 11. However, as discussed above, this reason does not "stand alone" because the Court finds an additional reason offered by the ALJ to find Plaintiff partially credible is clear, convincing and supported by substantial evidence. Moreover, the ALJ set out, in detail, the medical evidence contradicting Plaintiff's claims of disabling mental and physical limitations; and ultimately concluded that his "treatment history and the objective medical evidence fail to support his allegations."
Similarly, the ALJ found the "specific objective findings" for Plaintiff's mental impairments were "not particularly impressive and not supportive of his allegations." Tr. 27. For example, the ALJ noted that Plaintiff saw Dr. Brian Campbell on a monthly basis in 2007 and 2008, to address his alleged anxiety and PTSD after his motorcycle accident in June 2007. Tr. 23-25. In 2007, Dr. Campbell consistently noted that Plaintiff appeared anxious with a mildly restricted affect; but his speech was normal, his thoughts were goal-oriented and logical, memory was intact, attention and concentration appeared unimpaired, and his gait was normal. Tr. 23-24, 511-12, 518, 521, 526, 528-29, 532, 535, 538, 540-41. In January 2008, Dr. Campbell noted Plaintiff's mood was generally euthymic, his affect was wide ranging, his mood was within normal limits, and his PTSD did not interfere with his life activities. Tr. 24-25, 505-06, 508-09. In October 2008, as noted by the ALJ, Plaintiff "underwent a thorough neuropsychological assessment that included multiple tests. The results of the cognitive assessment revealed a generally intact neurocognitive performance with only subtle deficits in executive function, fine motor control, verbal learning, and memory." Tr. 25, 459-83. In January 2009, Plaintiff told Dr. Campbell he knew he was "gradually getting better but still had problems with focus and the heightened startle response;" and he was observed to be mildly anxious with mildly restricted affect but with normal attention, concentration, and memory. Tr. 25, 452-53. Then, as noted by the ALJ, Plaintiff did not undergo mental health treatment until April 2012, a gap in treatment of more than three years, at which point Dr. Campbell observed Plaintiff as dysphoric, mildly anxious with mildly restricted affect, and had some difficulty with memory and fluctuating concentration and attention. Tr. 26, 433, 442, 445-46, 448. The Court notes the record does not contain evidence of Plaintiff undergoing mental health treatment after the four visits with Dr. Campbell in April 2012.
These inconsistencies between Plaintiff's alleged physical and mental limitations, and the medical evidence, provided a permissible reason for discounting Plaintiff's credibility. See Thomas, 278 F.3d at 958-59 ("If the ALJ finds that the claimant's testimony as to the severity of her pain and impairments is unreliable, the ALJ must make a credibility determination . . . [t]he ALJ may consider testimony from physicians and third parties concerning the nature, severity and effect of the symptoms of which the claimant complains."); see also Rollins, 261 F.3d at 857 ("While subjective pain testimony cannot be rejected on the sole ground that it is not fully corroborated by objective medical evidence, the medical evidence is still a relevant factor in determining the severity of the claimant's pain and its disabling effects.").
Plaintiff generally argues that he "continued to seek treatment and consistently complained of pain." ECF No. 14 at 10. Plaintiff also cites a single mental status examination finding that Plaintiff was irritable, mildly anxious and had mildly restricted affect, neurovegetative signs of depression were evident; and "testing" during which Plaintiff indicated moderate depression and mild anxiety. ECF No. 14 at 10-11 (citing Tr. 433-34). However, regardless of evidence that could be interpreted more favorably to the Plaintiff, the ALJ properly relied on evidence from the overall record to support the finding that Plaintiff's claimed limitations "exceed the objective medical evidence considerably." Tr. 27. "[W]here evidence is susceptible to more than one rational interpretation, it is the [Commissioner's] conclusion that must be upheld." Burch, 400 F.3d at 679. For all of these reasons, the lack of corroboration of Plaintiff's testimony by the objective medical evidence and Plaintiff's "overall treatment history," was properly considered by the ALJ.
The Court concludes that the ALJ supported the adverse credibility finding with specific, clear and convincing reasons supported by substantial evidence.
Plaintiff faults the ALJ for failing to properly consider and weigh the "general observations" and "treatment notes" of treating psychologist Dr. Brian Campbell; and the medical opinions of the nonexamining physicians and testifying medical experts. ECF No. 14 at 14-17.
There are 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 [but who review the claimant's file] (nonexamining [or reviewing] physicians)." Holohan v. Massanari, 246 F.3d 1195, 1201-02 (9th Cir. 2001) (citations omitted). Generally, a treating physician's opinion carries more weight than an examining physician's, and an examining physician's opinion carries more weight than a reviewing physician's. Id. at 1202. If a treating or examining physician's opinion is uncontradicted, the ALJ may reject it only by offering "clear and convincing reasons that are supported by substantial evidence." Bayliss v. Barnhart, 427 F.3d 1211, 1216 (9th Cir. 2005). "However, the ALJ need not accept the opinion of any physician, including a treating physician, if that opinion is brief, conclusory and inadequately supported by clinical findings." See Bray, 554 F.3d at 1228 (internal quotation marks and brackets 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." Bayliss, 427 F.3d at 1216 (citing Lester, 81 F.3d at 830-31).
As recounted by the ALJ, the record includes extensive treatment notes from Plaintiff's treating psychologist, Dr. Campbell, Tr. 23-26, 31, who treated Plaintiff on a monthly basis from the time of his motorcycle accident in mid-2007 through January 2009. Tr. 452-544. As noted by the ALJ, Plaintiff did not return to Dr. Campbell until April 2012; and the record does not indicate that Plaintiff received further mental health treatment after April 2012. Tr. 426-49. The ALJ accorded Dr. Campbell's "general observations and statements in his treatment notes" great weight because they "are consistent with the record as a whole and supported with explanation." Tr. 31. Moreover, the ALJ found Dr. Campbell's "observations and statements show that [Plaintiff's] psychological problems were never more than moderate and improved to mild by October 2008;" which was consistent with the testimony from the medical expert. Tr. 31.
Plaintiff argues that the ALJ "generally afforded Dr. Campbell's medical opinions `great weight,' but fails to acknowledge the difficulties that Dr. Campbell found." ECF No. 14 at 15. In support of this argument Plaintiff cites a single treatment note from April 2012 "observ[ing]" that Plaintiff "had difficulty concentrating on his work and completing projects and has anxiety about his projects." Id. (citing Tr. 427, 432). However, review of the record cited by Plaintiff reveals that these were subjective complaints reported by Plaintiff to Dr. Campbell, rather than objective observations. See Tr. 427, 432. Moreover, as argued by Defendant, Plaintiff fails to establish "that the ALJ's interpretation of the evidence was irrational or that the ALJ neglected to account for any established limitations." ECF No. 15 at 13; Molina, 674 F.3d at 1111 (an error is harmless "where it is inconsequential to the [ALJ's] ultimate nondisability determination"). Finally, the ALJ did not err in considering Dr. Campbell's "general observations" and "statements," because Dr. Campbell did not assess any functional limitations. See, e.g., Turner v. Comm'r Soc. Sec. Admin., 613 F.3d 1217, 1223 (9th Cir. 2010) (where physician's report did not assign any specific limitations or opinions in relation to an ability to work, "the ALJ did not need to provide `clear and convincing reasons' for rejecting [the] report because the ALJ did not reject any of [the report's] conclusions"); see also Kay v. Heckler, 754 F.2d 1545, 1549 (9th Cir. 1985) (the "mere diagnosis of an impairment . . . is not sufficient to sustain a finding of disability."). For all of these reasons, the Court finds ALJ properly considered and weighed Dr. Campbell's treatment notes.
Plaintiff generally argues that had the opinions of state agency reviewing physicians Dr. Rita Flanagan and Dr. Robert Handler, both of whom limited Plaintiff to light work, "been properly considered, at a minimum [Plaintiff's RFC] would be assessed differently, affecting the ultimate determination regarding disability in this matter." ECF No. 14 at 16 (citing Tr. 120-21, 134-36). However, Plaintiff fails to address that the ALJ "largely adopt[ed]" these opinions, "but [gave] them only partial weight because of the inconsistencies in the record as a whole and blend[ed] them with those of the medical experts to arrive with the slightly different [RFC]." Tr. 32. First, the Court may decline to address this issue because Plaintiff's opening brief does not specifically address the weight granted to the reviewing opinions. See Carmickle, 533 F.3d at 1161 n.2. Moreover, Plaintiff cites Dr. Flanagan and Dr. Handler's findings that Plaintiff could occasionally lift up to 20 pounds and frequently lift 10 pounds; and argues that "had these opinions been properly considered," Plaintiff's RFC "would be assessed differently." ECF No. 14 at 16 (citing Tr. 120-21, 134-36). However, the ALJ found Plaintiff "could perform light work. He could lift and carry 10 pounds frequently and 20 pounds occasionally." Tr. 30. Thus, even assuming, arguendo, that the ALJ improperly considered the reviewing physicians' opinions regarding Plaintiff's lifting ability, any error is harmless because the ALJ incorporated the state agency physicians' opined limitations into the assessed RFC.
Finally, Plaintiff notes the ALJ granted "greatest weight" to the testifying medical experts. ECF No. 14 at 15. Plaintiff further contends that the "ALJ based the Unfavorable Decision upon the testimony of the doctor that testified at the hearing as a medical advisor who testified that [Plaintiff] was capable of lifting 50 pounds occasionally and 25 pounds frequently. It is obvious that due to the seriousness of [Plaintiff's] injuries and resulting impairments that he would not be able to lift 50 pounds occasionally and 20 pounds frequently." ECF No. 14 at 16 (citing Tr. 53). This argument is inapposite because the ALJ did not incorporate Dr. Jahnke's testimony regarding Plaintiff's lifting capability into the assessed RFC. Tr. 30. Rather, the ALJ specifically found that despite assigning great weight to Dr. Lynne Jahnke's expert testimony, he "assigned a slightly more restrictive physical [RFC] than the medical expert Dr. Jahnke based on the State Disability Determination Service's evaluation and [Plaintiff's] testimony." Tr. 32. Plaintiff fails to specifically identify or challenge the ALJ's actual finding in his briefing; thus, the Court declines to address the ALJ's consideration of Dr. Jahnke's medical expert testimony. See Carmickle, 533 F.3d at 1161 n.2.
For all of these reasons, the Court finds the ALJ properly considered Dr. Campbell's treatment notes, as well as the opinions of the nonexamining physicians and medical experts.
Plaintiff contends the ALJ improperly rejected the lay witness testimony of Plaintiff's wife, Connie Bagley. ECF No. 14 at 17-18.
The Ninth Circuit has summarized the law on lay witness testimony as follows:
Molina, 674 F.3d at 1114 (quotations and citations omitted). However, the ALJ is not required to discuss every witness's testimony on an individualized, witness-by-witness basis. Id. Rather, if the ALJ gives germane reasons for rejecting testimony by one witness, the ALJ need only point to those reasons when rejecting similar testimony by a different witness. Id.; see Valentine v. Comm'r Soc. Sec. Admin., 574 F.3d 685, 694 (9th Cir. 2009) (holding that because the ALJ provided clear and convincing reasons for rejecting the claimant's own subjective complaints, and because the lay witness's testimony was similar to such complaints, it follows that the ALJ also gave germane reasons for rejecting the lay witness's testimony).
As noted by the ALJ, Ms. Bagley described Plaintiff as in constant pain; had difficulty with anxiety, frustration and poor coping skills; and impaired ability to lift, bend, stand, reach, walk, sit, kneel, climb, remember, complete tasks, concentrate, follow instructions, and get along with others. Tr. 23 (citing Tr. 241-48). The ALJ found her "statements tend to support [Plaintiff's] allegations, but not sufficiently to overcome the other factors." Tr. 23. Plaintiff argues the ALJ failed to provide germane reasons for rejecting Ms. Bagley's testimony. ECF No. 14 at 18. The Court agrees. The ALJ's vague finding that Ms. Bagley's statements did not "sufficiently overcome other factors" was not a germane reason to reject her opinion. However, as noted by Defendant, Ms. Bagley's "statements describe limitations similar to those alleged by Plaintiff," including: chronic/constant pain; difficulty with anxiety and PTSD; poor coping skills; being frustrated and overwhelmed; and an impaired ability to lift, bend, stand, reach, walk, sit, kneel, climb, remember, complete tasks, concentrate, follow instructions, and get along with others. ECF No. 15 at 15; Tr. 241, 246, 249, 253-54. Moreover, Plaintiff fails to articulate any additional limitations identified by Ms. Bagley that the ALJ should have adopted. Accordingly, the Court finds any error considering Mrs. Bagley's opinion was harmless because her testimony did not describe any limitations not already described by Plaintiff; thus, the ALJ's well-supported reasons for rejecting Plaintiff's testimony apply equally as well to Mrs. Bagley's testimony. See Molina, 674 F.3d at 1117; see also Stout, 454 F.3d at 1055 (error harmless where it is non-prejudicial to claimant or irrelevant to ALJ's ultimate disability conclusion).
Having reviewed the record and the ALJ's findings, this court concludes the ALJ's decision is supported by substantial evidence and free of harmful legal error. Accordingly,
1. Plaintiff's Motion for Summary Judgment, ECF No. 14, be DENIED.
2. Defendant's Motion for Summary Judgment, ECF No. 15, be GRANTED.
Any party may object to a magistrate judge's proposed findings, recommendations or report within
A district judge will make a de novo determination of those portions to which objection is made and may accept, reject or modify the magistrate judge's determination. The judge need not conduct a new hearing or hear arguments and may consider the magistrate judge's record and make an independent determination thereon. The judge may, but is not required to, accept or consider additional evidence, or may recommit the matter to the magistrate judge with instructions. United States v. Howell, 231 F.3d 615, 621 (9th Cir. 2000); 28 U.S.C. § 636(b)(1)(B) and (C), Fed. R. Civ. P. 72; LMR 4, Local Rules for the Eastern District of Washington.
A magistrate judge's recommendation cannot be appealed to a court of appeals; only the district judge's order or judgment can be appealed.
The District Court Executive is directed to enter this Report and Recommendation, forward a copy to Plaintiff and counsel, and
