United States District Court, W.D. Washington
MICHAEL A.H. OWEN, Plaintiff,
NANCY A. BERRYHILL, Acting Commissioner of Social Security Defendant.
ORDER AFFIRMING DEFENDANT'S DECISION TO DENY
Theresa L. Fricke United States Magistrate Judge
has brought this matter for judicial review of
defendant's denial of his applications for disability
insurance and supplemental security income (SSI) benefits.
The parties have consented to have this matter heard by the
undersigned Magistrate Judge. 28 U.S.C. § 636(c),
Federal Rule of Civil Procedure 73; Local Rule MJR 13. For
the reasons set forth below, the Court finds defendant's
decision to deny benefits should be affirmed.
AND PROCEDURAL HISTORY
January 17, 2014, plaintiff filed an application for
disability insurance benefits and another one for SSI
benefits, alleging in both applications that he became
disabled beginning December 1, 2012. Dkt. 11, Administrative
Record (AR) 12. Both applications were denied on initial
administrative review and on reconsideration. Id. A
hearing was held before an administrative law judge (ALJ), at
which plaintiff appeared and testified as did a vocational
expert. AR 29-71.
decision dated October 15, 2015, the ALJ utilized the five
step criteria, and decided the first four steps in
plaintiff's favor. The ALJ determined at step five that
the plaintiff is not disabled. According to the ALJ's
decision, the plaintiff has the following severe impairments:
left knee tendinopathy and chondromalacia patella; also high
frequency hearing loss, lumbago, attention deficit
hyperactivity disorder (ADHD), major depressive disorder, and
panic disorder. AR 14.
five, the ALJ found that plaintiff could perform other jobs
existing in significant numbers in the national economy and
therefore that he was not disabled. AR 12-24. Plaintiff's
request for review was denied by the Appeals Council on
January 10, 2017, making the ALJ's decision the final
decision of the Commissioner, which plaintiff then appealed
in a complaint filed with this Court on March 23, 2017. AR 1;
Dkt. 3; 20 C.F.R. § 404.981, § 416.1481.
seeks reversal of the ALJ's decision and remand for
further administrative proceedings, arguing the ALJ erred: in
evaluating the medical evidence in the record; in discounting
plaintiff's testimony; in rejecting the lay witness
evidence; in assessing plaintiff's residual functional
capacity (“RFC”); and in finding plaintiff could
perform other jobs existing in significant numbers in the
national economy. For the reasons set forth below, the Court
affirms the ALJ's decision.
AND SCOPE OF REVIEW
Court will uphold an ALJ's decision unless: (1) the
decision is based on legal error; or (2) the decision is not
supported by substantial evidence. Revels v.
Berryhill, 874 F.3d 648, 654 (9th Cir. 2017).
Substantial evidence is “‘such relevant evidence
as a reasonable mind might accept as adequate to support a
conclusion.'” Trevizo v. Berryhill, 871
F.3d 664, 674 (9th Cir. 2017) (quoting Desrosiers v.
Sec'y of Health & Human Servs., 846 F.2d 573,
576 (9th Cir. 1988)). This requires “‘more than a
mere scintilla, '” though “‘less than a
preponderance'” of the evidence. Id.
(quoting Desrosiers, 846 F.2d at 576). If more than
one rational interpretation can be drawn from the evidence,
then the Court must uphold the ALJ's interpretation.
Orn v. Astrue, 495 F.3d 625, 630 (9th Cir. 2007).
That is, “[w]here there is conflicting evidence
sufficient to support either outcome, ” the Court
“must affirm the decision actually made.”
Allen v. Heckler, 749 F.2d 577, 579 (9th Cir. 1984)
(quoting Rhinehart v. Finch, 438 F.2d 920, 921 (9th
Cir. 1971)). The Court may not affirm by locating a quantum
of supporting evidence and ignoring the non-supporting
evidence. Orn v. Astrue, at 630.
Court must consider the administrative record as a whole.
Garrison v. Colvin, 759 F.3d 995, 1009 (9th Cir.
2014). The Court is required to weigh both the evidence that
supports, and evidence that does not support, the ALJ's
conclusion. Id. The Court may not affirm the
decision of the ALJ for a reason upon which the ALJ did not
rely. Id. Only the reasons identified by the ALJ are
considered in the scope of the Court's review.
The ALJ's Evaluation of the Medical Evidence For
Determination of RFC at Step Five
plaintiff alleges that the ALJ erred in several respects
concerning the assessment of Mr. Owen's residual
functional capacity, and the ALJ's resulting decision (at
step five) that plaintiff is not disabled. At step five of
the sequential disability evaluation process, the ALJ must
show there are a significant number of jobs in the national
economy the claimant is able to perform. Tackett v.
Apfel, 180 F.3d 1094, 1099 (9th Cir. 1999); 20 C.F.R.
§ 404.1520(e). The ALJ can do this through testimony of
a vocational expert. Osenbrock v. Apfel, 240 F.3d
1157, 1162-63 (9th Cir. 2000).
ALJ's step five determination will be upheld if the
weight of the medical evidence supports the hypothetical
posed to the vocational expert. Martinez v. Heckler,
807 F.2d 771, 774 (9th Cir. 1987). The vocational
expert's testimony therefore must be reliable in light of
the medical evidence to qualify as substantial evidence.
Embrey v. Bowen, 849 F.2d 418, 422-23 (9th Cir.
1988). Accordingly, the ALJ's description of the
claimant's functional limitations, which forms the
residual functional capacity (RFC) determination,
“‘must be accurate, detailed, and supported by
the medical record.'” Id. (quoting
Desrosiers, 846 F.2d at 578 (Pregerson, J.,
is responsible for determining credibility and resolving
ambiguities and conflicts in the medical evidence.
Reddick v. Chater, 157 F.3d 715, 722 (9th Cir.
1998). Where the evidence is inconclusive, “questions
of credibility and resolution of conflicts are functions
solely of the [ALJ].” Sample v. Schweiker, 694
F.2d 639, 642 (9th Cir. 1982). In such situations, “the
ALJ's conclusion must be upheld.” Morgan v.
Comm'r of the Soc. Sec. Admin., 169 F.3d 595, 601
(9th Cir. 1999). Determining whether inconsistencies in the
evidence “are material (or are in fact inconsistencies
at all) and whether certain factors are relevant to
discount” medical opinions “falls within this
responsibility.” Id. at 603.
resolving questions of credibility and conflicts in the
evidence, an ALJ's findings “must be supported by
specific, cogent reasons.” Reddick, 157 F.3d
at 725. The ALJ can do this “by setting out a detailed
and thorough summary of the facts and conflicting clinical
evidence, stating his interpretation thereof, and making
findings.” Id. The ALJ also may draw
inferences “logically flowing from the evidence.”
Sample, 694 F.2d at 642. Further, the Court itself
may draw “specific and legitimate inferences from the
ALJ's opinion.” Magallanes v. Bowen, 881
F.2d 747, 755, (9th Cir. 1989).
are several categories of medical professionals that
typically provide information that is reviewed during the
Social Security application and appeal process. Lester v.
Chater, 81 F.3d 821, 830 (9th Cir. 1996); Gomez v.
Chater, 74 F.3d 967, 970-71 (9th Cir. 1996). Some of the
most common are: First, medical doctors in the role of
treating physicians, who actually treated the claimant;
second, medical doctors in the role of examining physicians,
who examined but did not treat the claimant; third, medical
doctors who are non-examining physicians and neither treated
nor examined the claimant but reviewed medical records and
other information; and fourth, acceptable medical sources who
are medical professionals but do not fall into the category
of any type of medical doctor; and fifth, other sources.
Molina v. Astrue, 674 F.3d 1104, 1111-12 (9th Cir.
2012); Lester, 81 F.3d at 830; see, Leon v.
Berryhill, 874 F.3d 1130, 1133-34 (nurse practitioner is
an acceptable medical treating source for claims filed after
March 27, 2017, under updated regulation 20 C.F.R. §
404.1527 and § 416.920c); Popa v. Berryhill,
872 F.3d 901, 906 (9th Cir. 2017) (treatment provider with a
PhD in nursing was an “other source” under the
pre-March 27, 2017 regulation even though she was the primary
treating medical provider for plaintiff); Gomez, 74
F.3d at 971 (“acceptable medical sources”
included in regulations are, among others, licensed
physicians and licensed or certified psychologists); 20
C.F.R. § 404.1513(a)-(d), § 404.1529(a), (c),
must provide “clear and convincing” reasons for
rejecting the uncontradicted opinion of either a treating or
examining physician. Trevizo v. Berryhill, 871 F.3d
664, 675 (9th Cir. 2017) (quoting Ryan v. Comm'r of
Soc. Sec., 528 F.3d 1194, 1198 (9th Cir. 2008)). Even
when a treating or examining physician's opinion is
contradicted, an ALJ may only reject that opinion “by
providing specific and legitimate reasons that are supported
by substantial evidence.” Id. However, the ALJ
“need not discuss all evidence
presented” to him or her. Vincent on Behalf of
Vincent v. Heckler, 739 F.2d 1393, 1394-95 (9th Cir.
1984) (citation omitted) (emphasis in original). The ALJ must
only explain why “significant probative evidence has
been rejected.” Id.; see also Cotter v.
Harris, 642 F.2d 700, 706-07 (3rd Cir. 1981);
Garfield v. Schweiker, 732 F.2d 605, 610 (7th Cir.
general, more weight is given to a treating physician's
opinion than to the opinions of those who do not treat the
claimant. See Lester v. Chater, 81 F.3d 821, 830
(9th Cir. 1996). On the other hand, an ALJ need not accept
the opinion of a treating physician, “if that opinion
is brief, conclusory, and inadequately supported by clinical
findings” or “by the record as a whole.”
Batson v. Comm'r of Soc. Sec. Admin., 359 F.3d
1190, 1195 (9th Cir. 2004); see also Thomas v.
Barnhart, 278 F.3d 947, 957 (9th Cir. 2002);
Tonapetyan v. Halter, 242 F.3d 1144, 1149 (9th Cir.
2001). An examining physician's opinion is
“entitled to greater weight than the opinion of a
nonexamining physician.” Lester, 81 F.3d at
830-31. A non-examining physician's opinion may
constitute substantial evidence if “it is consistent
with other independent evidence in the record.”
Id. at 830-31; Tonapetyan, 242 F.3d at
Dr. Phillips, treating physician
December 2013, plaintiff's treating physician, Vincent
Phillips, M.D., completed a physical functional assessment
form, in which he opined that plaintiff was limited to
sedentary work. AR 287. The ALJ gave that opinion
“little weight” because Dr. Phillips'
evaluations of plaintiff “did not have the type of
significant clinical abnormalities to substantiate” it,
and because it was inconsistent with the clinical findings of
Patrick J. Halpin, M.D., who examined plaintiff in December
2012 (AR 256), as well as with the “unremarkable
diagnostic imaging” of plaintiff's left knee (AR
257). AR 21.
September 2015, Dr. Phillips filled out a Medical Source
Statement concerning Mr. Owen's health status. AR
373-375. In that document, Dr. Phillips provided an opinion
that Mr. Owen had a number of psychological and social
limitations that were rated “moderate” in
severity, seriously limiting his ability to perform the
designated activity on a regular and sustained basis. AR
374-375. Dr. Phillips stated that these limitations would be
continuous for 12 months or more, and that Mr. Owen had
suffered from these limitations since age 5. Id. In
addition, Dr. Phillips made a hand-written note identifying
another condition: that Mr. Owen had a “severe injury.
. . knee also.” AR 375. In a History and Physical
Report #1 document prepared by Dr. Phillips dated 9-24-2015,
Dr. Phillips opined that his assessment and plan regarding
Mr. Owen's knee was: “Note: limited ROM Knee. . .
.Pain in join, lower leg. . .acute on chronic for him.
Continue the use of knee brace, ice, elevation of the knee.
Get an xray of the knee. Tylenol and NSAIDS. Give muscle
relaxant and tramadol for him to use for pain control as
well. Order for a cane to use ambulating. Refer back to
orthopedic for further care. . . .” AR 377.
argues the ALJ's reasons for discounting Dr.
Phillips' opinion lack substantial evidentiary support,
because Dr. Phillips completed a chart on November 1, 2013,
indicating limited left hip and knee range of motion (AR
288), and because he found limited left knee range of motion
in September 2015 (AR 377). These two instances of limited
range of motion - some three years apart - do not outweigh
the other fairly benign clinical findings the ALJ noted.
See AR 21 (citing AR 306-41, 352-72). To the extent
conflicts or ambiguities in the ...