United States District Court, W.D. Washington, Tacoma
ORDER AFFIRMING THE COMMISSIONER'S FINAL DECISION
AND DISMISSING THE CASE WITH PREJUDICE
C. COUGHENOUR, UNITED STATES DISTRICT JUDGE.
Kahle seeks review of the denial of her application for
disability insurance benefits. Ms. Kahle contends the ALJ
erred in evaluating the opinions of her treating physicians
and her own testimony. Dkt. 12 at 1. The Court AFFIRMS the
Commissioner's final decision and DISMISSES the case with
Kahle is currently 51 years old, has a high school education,
and has worked as a substance abuse counselor, triage
scheduler, and companion. Tr. 44. On September 19, 2014, Ms.
Kahle applied for disability benefits, alleging disability as
of February 10, 2012. Tr. 26. Her application was denied
initially and on reconsideration. Tr. 26. After the ALJ
conducted a hearing on December 8, 2015, the ALJ issued a
decision finding Ms. Kahle not disabled. Tr. 26- 45.
the five-step disability evaluation process,  the ALJ found:
Step one: Ms. Kahle has not worked since the
alleged onset date.
Step two: She has the following severe
impairments: degenerative disc disease; right foot drop;
reflux disease, status post bariatric surgery;
polyarthralgia; bilateral knee arthritis vs. patellofemoral
syndrome; obesity; affective disorder; and anxiety disorder.
Step three: These impairments do not meet or
equal the requirements of a listed impairment.
Residual Functional Capacity: Ms. Kahle can
perform light work, can carry 20 pounds occasionally and 10
pounds frequently, can sit 6 hours and stand/walk 6 hours,
can never climb ladders, ropes or scaffolds, can frequently
balance, stoop, kneel, crouch and crawl, should avoid
concentrated exposure to hazards, can carry out complex
tasks, can have superficial contact with coworkers and the
public, and can accept supervisor instructions.
Step four: She cannot perform past relevant
Step five: As there are jobs that exist in
significant numbers in the national economy that she can
perform, Ms. Kahle is not disabled.
28-31. The Appeals Council denied Ms. Kahle's request for
review, making the ALJ's decision the Commissioner's
final decision. Tr. 1.
Kahle contends the ALJ erred in rejecting her testimony and
the opinions of two treating physicians, pain management
specialist Susan J. Shlifer, M.D., and rheumatologist Parul
Sharma, D.O., and in relying instead on the opinion of
nonexamining physician Norman Staley, M.D. Ms. Kahle contends
the errors are harmful because both treating physicians
opined that she could not sustain an 8-hour work day and
would miss at least four days per month due to her
impairments or treatment, and a vocational expert testified
that a person who missed work even two times per month could
not sustain employment.
determining whether the Commissioner's findings are
supported by substantial evidence, the Court must review the
administrative record as a whole, “weighing both the
evidence that supports and the evidence that detracts from
the Commissioner's conclusion.” Reddick v.
Chater, 157 F.3d 715, 720 (9th Cir. 1998). The Court may
not affirm simply by isolating a specific quantum of
supporting evidence. Jones v. Heckler, 760 F.2d 993,
995 (9th Cir. 1985). If, however, the evidence reasonably
supports both affirming and reversing the denial of benefits,
the Court may not substitute its judgment for that of the
Commissioner. Reddick, 157 F.3d at 720-21; see
also Thomas v. Barnhart, 278 F.3d 947, 954 (9th Cir.
2002) (if the “evidence is susceptible to more than one
rational interpretation, one of which supports the ALJ's
decision, the ALJ's conclusion must be upheld”).
Ms. Kahle's Testimony
hearing, Ms. Kahle testified that she could not walk three
blocks without stopping to rest, she did not drive longer
than ten minutes due to back pain as well as safety concerns
because of her right foot drop, sitting was uncomfortable,
and she could not stand comfortably for more than a few
minutes. Tr. 69-77.
discounted Ms. Kahle's testimony as inconsistent with
medical evidence and her work history and activities, and
because of evidence indicating drug-seeking activity. Tr. 33.
found that Ms. Kahle had established underlying impairments
that could reasonably be expected to cause her symptoms and
did not find evidence of malingering. Tr. 33. Under such
circumstances, the ALJ may reject Ms. Kahle's testimony
about the severity of her symptoms only with “specific,
clear and convincing reasons for doing so.”
Garrison v. Colvin, 759 F.3d 995, 1014-15 (9th Cir.
2014) (quoting Smolen v. Chater, 80 F.3d 1273, 1281
(9th Cir. 1996)). The ALJ's reasons must be supported by
substantial evidence. Carmickle v. Comm'r, Soc. Sec.
Admin., 533 F.3d 1155, 1161 (9th Cir. 2008) (reviewing
court's “task is to determine whether the ALJ's
adverse credibility finding of [a claimant's] testimony
is supported by substantial evidence under the
clear-and-convincing standard”). “This is not an
easy requirement to meet: ‘The clear and convincing
standard is the most demanding required in Social Security
cases.'” Garrison, 759 F.3d at 1015
(quoting Moore v. Comm'r of Soc. Sec. Admin.,
278 F.3d 920, 924 (9th Cir. 2002)).
the ALJ included erroneous reasons regarding daily activities
and work history, the Court concludes that the largely normal
clinical findings, stopping work for reasons other than her
impairments, and drug-seeking activity, when taken together
provide a clear and convincing reason, supported by
substantial evidence, to discount Ms. Kahle's testimony.
is no dispute that Ms. Kahle suffers from severe degenerative
disc disease, confirmed by imaging, gastrointestinal
disorders related to a congenital abnormality, and knee
arthritis. Tr. 28-29, 800-801. Nor does the Commissioner
dispute that she requires opioid medication to deal with the
resulting pain. Tr. 33; Dkt. 13. What is disputed is the
resulting level of functional limitations.
evidence supports the ALJ's findings that Ms. Kahle
typically reported low to moderate levels of pain and that
there was a paucity of abnormal medical findings in
measurements of functional ability. Tr. 33-36. In a series of
visits to Narinder Duggal, M.D., from February 2012 to May
2013, Ms. Kahle's typical pain levels were around three
or four out of ten with 70-80% pain relief, and her physical
exam results were largely normal. Tr. 372, 379, 387-88, 394,
414, 422, 432, 441, 450, 458, 466, 477, 489, 500, 511, 523,
535, 546, 557; but see Tr. 404 (20-30% pain relief),
460, 469, 481, 493, 503 (neck range of motion restricted).
Ms. Kahle began seeing Dr. Shifler in May 2013. Through the
latest examination, in November 2015, pain levels continued
to be typically “mild” to “moderate”
with “adequate pain control” and physical exam
results were largely normal other than the right foot drop.
See, e.g., Tr. 1658-62, 1692-95, 1697-1700,
1737-39, 1852-53, 1855, 1862-64, 1866-68, 1869-71, 1873-75,
1869-71, 1879-80, 1886; but see Tr. 1665-67 (pain
7/10), 1860 (antalgic gait, “some swelling and
stiffness of joints in fingers”), 1857 (antalgic gait).
Kahle argues that her relatively benign medical reports are
only because she was under treatment and relatively
sedentary, and do not reflect her ability to work. Dkt. 12 at
7-9. However, the ALJ used the benign treatment notes to
evaluate Ms. Kahle's testimony, not to demonstrate her
ability to work. An ALJ may consider “inconsistencies
in testimony or between testimony and conduct” as a
factor in weighing credibility. Orn v. Astrue, 495
F.3d 625, 636 (9th Cir. 2007). Ms. Kahle's assertions
that disabling pain prevents her from sitting or standing for
more than a few minutes are inconsistent with the treatment
notes that her pain was typically well-controlled. The
inconsistency provides a legitimate reason for the ALJ to
discount Ms. Kahle's testimony regarding her symptoms.
The lack of objective medical evidence corroborating the
level of pain is also “a factor that the ALJ can
consider in [her] credibility analysis.” Burch v.
Barnhart, 400 F.3d 676, 681 (9th Cir. 2005); see
also Rollins v. Massanari, 261 F.3d 853, 857 (9th Cir.
2001) (“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.”). The
ALJ reasonably considered the lack of abnormal clinical
Kahle contends that the ALJ's findings were not
consistent with the record as a whole, because the ALJ
selectively cited benign medical evidence. Dkt. 12 at 8. An
ALJ may not cherry-pick from the record. See Ghanim v.
Colvin, 763 F.3d 1154, 1164 (9th Cir. 2014). Likewise a
reviewing court “must consider the entire record as a
whole and may not affirm simply by isolating a
‘specific quantum of supporting evidence.'”
Orn, 495 F.3d at 630 (quoting Robbins v. Soc.
Sec. Admin., 466 F.3d 880, 882 (9th Cir. 2006)). But
here, the reported pain levels and medical findings the ALJ
cited are consistent with the overall record. It is the
higher pain levels that are the exception in the records.
Court concludes that substantial evidence supports the
ALJ's determination that inconsistencies with the medical