Sowers v. Kijakazi

1 EASTERN DISTRICT OF WASHINGTON Oct 18, 2021 [2] SEAN F. MCAVOY, CLERK [4] 5 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF WASHINGTON [6] 7 SHAWN PATRICK S., 1 NO: 2:20-CV-0296-LRS 8 Plaintiff, 9 v. ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY 10 KILOLO KIJAKAZI,2 JUDGMENT AND GRANTING COMMISSIONER OF SOCIAL DEFENDANT’S MOTION FOR 11 SECURITY, SUMMARY JUDGMENT 12 Defendant. [13] 14 BEFORE THE COURT are the parties’ cross-motions for summary judgment. 15 ECF Nos. 16, 17. This matter was submitted for consideration without oral 16 argument. Plaintiff is represented by attorney Cory J. Brandt. Defendant is 17 represented by Special Assistant United States Attorney Jeffrey E. Staples. The [18] 1 Plaintiff’s last initial is used to protect his privacy. [19] 2 Kilolo Kijakazi became the Acting Commissioner of Social Security on July 9, [20] 2021. The Court therefore substitutes Kilolo Kijakazi as the Defendant and directs [21] the Clerk to update the docket sheet. 1 Court, having reviewed the administrative record and the parties’ briefing, is fully 2 informed. For the reasons discussed below, Plaintiff’s Motion, ECF No. 16, is 3 denied and Defendant’s Motion, ECF No. 17, is granted. 4 JURISDICTION 5 Plaintiff Shawn S. (Plaintiff), filed for supplemental security income (SSI) on 6 November 2, 2017, and alleged an onset date of October 30, 2017. Tr. 93, 285-89. 7 Benefits were denied initially, Tr. 193-96, and upon reconsideration, Tr. 199-201. 8 Plaintiff appeared at a hearing before an administrative law judge (ALJ) on February 9 11, 2019. Tr. 86-133. On April 18, 2019, the ALJ issued an unfavorable decision, 10 Tr. 24-42, and on June 24, 2020, the Appeals Council denied review. Tr. 1-7. The 11 matter is now before this Court pursuant to 42 U.S.C. § 1383 (c)(3). 12 BACKGROUND 13 The facts of the case are set forth in the administrative hearing and transcripts, 14 the ALJ’s decision, and the briefs of Plaintiff and the Commissioner, and are 15 therefore only summarized here. 16 Plaintiff was born in 1967 and was 51 years old at the time of the hearing. Tr. 17 285. He graduated from high school and has two A.A. degrees in automotive 18 technician and robotics technician. Tr. 432, 441. Plaintiff has work experience as 19 loan consultant, electrical control systems designer, and fast food worker. Tr. 12120 27. He testified he is limited by asthma, digestive issues, environmental and food 21 allergies, MRSA, and excruciating pain in his back, Tr. 103-13. He has three to four 1 STANDARD OF REVIEW 2 A district court’s review of a final decision of the Commissioner of Social 3 Security is governed by 42 U.S.C. § 405 (g). The scope of review under § 405(g) is 4 limited; the Commissioner’s decision will be disturbed “only if it is not supported by 5 substantial evidence or is based on legal error.” Hill v. Astrue, 698 F.3d 1153 , 1158 6 (9th Cir. 2012). “Substantial evidence” means “relevant evidence that a reasonable 7 mind might accept as adequate to support a conclusion.” Id. at 1159 (quotation and 8 citation omitted). Stated differently, substantial evidence equates to “more than a 9 mere scintilla[,] but less than a preponderance.” Id. (quotation and citation omitted). 10 In determining whether the standard has been satisfied, a reviewing court must 11 consider the entire record as a whole rather than searching for supporting evidence in 12 isolation. Id. 13 In reviewing a denial of benefits, a district court may not substitute its 14 judgment for that of the Commissioner. Edlund v. Massanari, 253 F.3d 1152 , 1156 15 (9th Cir. 2001). If the evidence in the record “is susceptible to more than one 16 rational interpretation, [the court] must uphold the ALJ’s findings if they are 17 supported by inferences reasonably drawn from the record.” Molina v. Astrue, 674 18 F.3d 1104, 1111 (9th Cir. 2012). Further, a district court “may not reverse an ALJ’s 19 decision on account of an error that is harmless.” Id. An error is harmless “where it 20 is inconsequential to the [ALJ’s] ultimate nondisability determination.” Id. at 1115 21 (quotation and citation omitted). The party appealing the ALJ’s decision generally 1 bears the burden of establishing that it was harmed. Shinseki v. Sanders, 556 U.S. 2 396, 409-10 (2009). 3 FIVE-STEP EVALUATION PROCESS 4 A claimant must satisfy two conditions to be considered “disabled” within 5 the meaning of the Social Security Act. First, the claimant must be “unable to 6 engage in any substantial gainful activity by reason of any medically determinable 7 physical or mental impairment which can be expected to result in death or which 8 has lasted or can be expected to last for a continuous period of not less than twelve 9 months.” 42 U.S.C. § 1382c(a)(3)(A). Second, the claimant’s impairment must be 10 “of such severity that he is not only unable to do his previous work[,] but cannot, 11 considering his age, education, and work experience, engage in any other kind of 12 substantial gainful work which exists in the national economy.” 42 U.S.C. § 13 1382c(a)(3)(B). 14 The Commissioner has established a five-step sequential analysis to 15 determine whether a claimant satisfies the above criteria. See 20 C.F.R. § 16 416.920(a)(4)(i)-(v). At step one, the Commissioner considers the claimant’s work 17 activity. 20 C.F.R. § 416.920 (a)(4)(i). If the claimant is engaged in “substantial 18 gainful activity,” the Commissioner must find that the claimant is not disabled. 20 19 C.F.R. § 416.920 (b). 20 If the claimant is not engaged in substantial gainful activity, the analysis 21 proceeds to step two. At this step, the Commissioner considers the severity of the 1 “any impairment or combination of impairments which significantly limits [his or 2 her] physical or mental ability to do basic work activities,” the analysis proceeds to 3 step three. 20 C.F.R. § 416.920 (c). If the claimant’s impairment does not satisfy 4 this severity threshold, however, the Commissioner must find that the claimant is 5 not disabled. 20 C.F.R. § 416.920 (c). 6 At step three, the Commissioner compares the claimant’s impairment to 7 severe impairments recognized by the Commissioner to be so severe as to preclude 8 a person from engaging in substantial gainful activity. 20 C.F.R. § 9 416.920(a)(4)(iii). If the impairment is as severe or more severe than one of the 10 enumerated impairments, the Commissioner must find the claimant disabled and 11 award benefits. 20 C.F.R. § 416.920 (d). 12 If the severity of the claimant’s impairment does not meet or exceed the 13 severity of the enumerated impairments, the Commissioner must pause to assess 14 the claimant’s “residual functional capacity.” Residual functional capacity (RFC), 15 defined generally as the claimant’s ability to perform physical and mental work 16 activities on a sustained basis despite his or her limitations, 20 C.F.R. § 17 416.945(a)(1), is relevant to both the fourth and fifth steps of the analysis. 18 At step four, the Commissioner considers whether, in view of the claimant’s 19 RFC, the claimant is capable of performing work that he or she has performed in 20 the past (past relevant work). 20 C.F.R. § 416.920 (a)(4)(iv). If the claimant is 21 capable of performing past relevant work, the Commissioner must find that the 1 claimant is not disabled. 20 C.F.R. § 416.920 (f). If the claimant is incapable of 2 performing such work, the analysis proceeds to step five. 3 At step five, the Commissioner should conclude whether, in view of the 4 claimant’s RFC, the claimant is capable of performing other work in the national 5 economy. 20 C.F.R. § 416.920 (a)(4)(v). In making this determination, the 6 Commissioner must also consider vocational factors such as the claimant’s age, 7 education and past work experience. 20 C.F.R. § 416.920 (a)(4)(v). If the claimant 8 is capable of adjusting to other work, the Commissioner must find that the claimant 9 is not disabled. 20 C.F.R. § 416.920 (g)(1). If the claimant is not capable of 10 adjusting to other work, analysis concludes with a finding that the claimant is 11 disabled and is therefore entitled to benefits. 20 C.F.R. § 416.920 (g)(1). 12 The claimant bears the burden of proof at steps one through four above. 13 Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999). If the analysis proceeds to 14 step five, the burden shifts to the Commissioner to establish that (1) the claimant is 15 capable of performing other work; and (2) such work “exists in significant 16 numbers in the national economy.” 20 C.F.R. § 416.960 (c)(2); Beltran v. Astrue, [17] 700 F.3d 386, 389 (9th Cir. 2012). 18 ALJ’S FINDINGS 19 At step one, the ALJ found Plaintiff did not engage in substantial gainful 20 activity since October 30, 2017, the application date. Tr. 29. At step two, the ALJ 21 found that Plaintiff has the following medically determinable impairments: asthma, 1 and irritable bowel syndrome. Tr. 29. At step three, the ALJ found that Plaintiff 2 does not have an impairment or combination of impairments that meets or medically 3 equals the severity of a listed impairment. Tr. 32. 4 The ALJ then found that Plaintiff has the residual functional capacity to 5 perform light work except: 6 the claimant can sit up to eight hours, and stand or walk at least six hours, of an eight-hour workday with normal breaks. The claimant 7 must avoid climbing ladders, ropes, or scaffolds, and can occasionally climb ramps or stairs. The claimant can occasionally stoop, kneel, 8 crouch, crawl, and balance. The claimant must avoid unprotected heights and hazardous machinery, concentrated exposure to wetness 9 and humidity, and avoid all exposure to respiratory irritants such as industrial fumes, odors, dusts, gasses, and poorly ventilated areas. [10] Tr. 32. [11] At step four, the ALJ found that Plaintiff is capable of performing past [12] relevant work as a CAD/CAM drafter. Tr. 35. Alternatively, at step five, after [13] considering the testimony of a vocational expert and Plaintiff’s age, education, work [14] experience, and residual functional capacity, the ALJ found there are other jobs [15] existing in significant numbers in the national economy that Plaintiff can perform [16] such as routing clerk, mail clerk, and photocopy machine operator. Tr. 36-37. Thus, [17] the ALJ concluded that Plaintiff has not been under a disability, as defined in the [18] Social Security Act, since October 30, 2017, the date the application was filed. Tr. [19] 37. [20] ISSUES [21] 1 Plaintiff seeks judicial review of the Commissioner’s final decision denying 2 supplemental security income under Title XVI of the Social Security Act. ECF No. 3 16. Plaintiff raises the following issues for review: 4 1. Whether the ALJ properly considered the medical opinion evidence; 5 2. Whether the ALJ properly considered Plaintiff’s subjective testimony; 6 and 7 3. Whether the ALJ properly conducted the step four analysis. 8 ECF No. 16 at 7. 9 DISCUSSION 10 A. Opinion Evidence 11 Plaintiff contends the ALJ improperly rejected the opinions of Lynne Jahnke, 12 M.D., Kim Chupurdia, Ph.D., and Gary Gleason, D.O. ECF No. 16 at 9-13. 13 Plaintiff also contends the opinion of David Colvin, ARNP, is relevant evidence. 14 ECF No. 16 at 13. 15 For claims filed on or after March 27, 2017, new regulations changed the 16 framework for evaluation of medical opinion evidence. Revisions to Rules 17 Regarding the Evaluation of Medical Evidence, 2017 WL 168819 , 82 Fed. Reg. 18 5844-01 (Jan. 18, 2017); 20 C.F.R. § 416 .920c. The regulations provide that the 19 ALJ will no longer “give any specific evidentiary weight…to any medical 20 opinion(s)…” Revisions to Rules, 2017 WL 168819 , 82 Fed. Reg. 5844 , at 5867-68; 21 see 20 C.F.R. § 416 .920c(a). Instead, an ALJ must consider and evaluate the 1 medical sources. 20 C.F.R. § 416 .920c(a) and (b). The factors for evaluating the 2 persuasiveness of medical opinions and prior administrative medical findings 3 include supportability, consistency, relationship with the claimant (including length 4 of the treatment, frequency of examinations, purpose of the treatment, extent of the 5 treatment, and the existence of an examination), specialization, and “other factors 6 that tend to support or contradict a medical opinion or prior administrative medical 7 finding” (including, but not limited to, “evidence showing a medical source has 8 familiarity with the other evidence in the claim or an understanding of our disability 9 program’s policies and evidentiary requirements”). 20 C.F.R. § 416 .920c(c)(1)-(5). 10 Supportability and consistency are the most important factors, and therefore 11 the ALJ is required to explain how both factors were considered. 20 C.F.R. § 12 416.920c(b)(2). With regard to supportability, “[t]he more relevant the objective 13 medical evidence and supporting explanations presented by a medical source are to 14 support his or her medical opinion(s) or prior administrative medical finding(s), the 15 more persuasive the medical opinions or prior administrative medical finding(s) will 16 be.” 20 C.F.R. § 416 .920c(c)(1)-(2). With regard to consistency, “[t]he more 17 consistent a medical opinion(s) or prior administrative medical finding(s) is with the 18 evidence from other medical sources and nonmedical sources in the claim, the more 19 persuasive the medical opinion(s) or prior administrative medical finding(s) will be.” [20] 20 C.F.R. § 416 .920c(c)(1)-(2). 21 The ALJ may, but is not required, to explain how other factors were 1 opinions or prior administrative findings “about the same issue are both equally 2 well-supported . . . and consistent with the record . . . but are not exactly the same,” 3 the ALJ is required to explain how “the other most persuasive factors in paragraphs 4 (c)(3) through (c)(5)” were considered. 20 C.F.R. § 416 .920c(b)(3). 5 1. Gary Gleason, D.O. 6 Dr. Gleason began treating Plaintiff in November 2017 and completed a 7 Physical Residual Functional Capacity Questionnaire form in March 2018. Tr. 8 392, 446-49. Dr. Gleason diagnosed asthma and allergies and opined that 9 Plaintiff’s symptoms would cause frequent interference with attention and 10 concentration in performing simple work tasks. Tr. 447. Dr. Gleason opined that 11 Plaintiff could lift up to ten pounds, stand and walk for about four hours, and sit for 12 about six hours in a workday. Tr. 447. He also assessed environmental and 13 postural limitations and indicated that Plaintiff would miss four or more days of 14 work per month. Tr. 448-49. 15 The ALJ found that Dr. Gleason’s opinion is partially persuasive and that 16 some level of limitation is clearly indicated, but that Dr. Gleason overstated 17 Plaintiff’s functional limitations. Tr. 35. First, the ALJ found Dr. Gleason’s 18 opinion is not supported by analysis or citation to treatment notes supporting the 19 assessed limitations. Tr. 34. As noted supra, a medical opinion is more persuasive 20 when the source provides relevant objective medical evidence and supporting 21 explanations. 20 C.F.R. § 416 .920c(c)(1)-(2). Indeed, Dr. Gleason’s opinion 1 the limitations assessed. Without citing any authority or the record, Plaintiff 2 argues Dr. Gleason’s treatment notes provide support for the opinion. However, 3 the ALJ addressed Dr. Gleason’s treatment notes and found they contain limited 4 exam findings which are more consistent with light exertion work than the 5 limitations he assessed. Tr. 34; see Tr. 450-56, 463-82. This finding is supported 6 by substantial evidence. 7 Second, the ALJ found Dr. Gleason’s opinion is inconsistent with his own 8 findings and other evidence in the record. Tr. 34-35. A medical opinion is more 9 persuasive when it is consistent with evidence from other medical and nonmedical 10 sources. 20 C.F.R. § 416 .920c(c)(1)-(2). As mentioned, supra, the ALJ observed 11 that Dr. Gleason’s exam findings were limited and are more consistent with light 12 exertion work than with the limitations he assessed. Tr. 34; see Tr. 450-56, 46313 82. Additionally, the ALJ noted that Dr. Gleason indicated that Plaintiff’s 14 symptoms “date back to early childhood,” Tr. 449, which means that Plaintiff 15 worked at substantial gainful activity with those symptoms for many years. Tr. 3416 35; see Tr. 299-300. On reply, without citing the record, Plaintiff argues that even 17 though he was able to work for many years, “his symptoms were exacerbated by an 18 increase in allergies.” ECF No. 18 at 10. However, the ALJ found that there is no 19 indication of a significant increase in symptomology. Tr. 33. Further, the ALJ 20 found that the opinions of Dr. Weir, whose opinion was “significantly persuasive,” 21 and Dr. Jahnke, whose opinion was “highly persuasive,” are better supported and 1 more consistent with the entire record. Tr. 35. The ALJ’s reasoning is supported 2 by substantial evidence. 3 2. Lynne Jahnke, M.D. 4 Dr. Jahnke, the medical expert, testified that Plaintiff has severe impairments 5 of asthma and chronic sinusitis. Tr. 93-94. She opined Plaintiff could lift up to 10 6 pounds frequently and 20 pounds occasionally; has no limitations on standing or 7 walking; could occasionally climb stairs and ramps but never climb ladders or 8 scaffolds; should avoid unprotected heights; and should avoid exposure to dust, 9 odors, fumes, humidity, and pulmonary irritants. Tr. 95-96. 10 As noted supra, the ALJ found Dr. Jahnke’s testimony to be highly 11 persuasive. Tr. 34. The ALJ found that notwithstanding Dr. Jahnke’s opinion that 12 Plaintiff’s lumbar spondylitis and digestive problems are not severe impairments, 13 Tr. 94-95, when viewing the evidence in the light most favorable to Plaintiff, there 14 are sufficient limitations from those conditions to be found severe. Tr. 34. The 15 ALJ noted that Dr. Jahnke’s testimony that Plaintiff could perform a range of light 16 work formed the basis for and is generally consistent with the RFC finding. Tr. 34, 17 95-96. 18 Plaintiff contends that despite giving significant weight to Dr. Jahnke’s 19 opinion, the ALJ “improperly rejected” it by omitting some of the limitations 20 assessed from the RFC. ECF No. 16 at 9. During cross-examination, Dr. Jahnke 21 was asked about Dr. Gleason’s opinion that Plaintiff’s attention and concentration 1 day. Dr. Jahnke testified that, “With allergies, sinusitis, and asthma, he just feels 2 miserable. The [treating] doctor is more sensitive to that than I can be objectively” 3 Tr. 99. Counsel then stated, “So if he is miserable, he is likely to not feel well and 4 be off task and not able to concentrate,” and Dr. Jahnke responded by saying, 5 “[y]es, good point.” Tr. 99. Dr. Jahnke was also asked about Dr. Gleason’s 6 opinion that Plaintiff would miss four or more days of work per month. Tr. 99. 7 Dr. Jahnke testified, “I do not have a sense of that on the record. . .. So I think he 8 may miss several days a month but I would trust his primary doctor’s assessment 9 of that.”3 Tr. 99-100. 10 Plaintiff contends this testimony indicates additional limitations not addressed 11 by the ALJ in evaluating Dr. Jahnke’s opinion. ECF No. 16 at 9-10. However, this 12 argument fails for several reasons. First, Dr. Jahnke’s statements do not constitute 13 an assessment of functional limitations. The ALJ is not required to incorporate 14 limitations phrased equivocally into the RFC. Id.; Glosenger v. Comm’r of Soc. Sec. 15 Admin., 2014 WL 1513995 at *6 (D. Or. April 16, 2014) (affirming the ALJ's 16 rejection of limitations prefaced with language such as “might,” “may,” or “would 17 also likely require”). Statements including such language may be excluded by an 18 ALJ because they are not diagnoses or descriptions of a plaintiff's functional [20] 3 On reply, Plaintiff takes Dr. Janke’s testimony out of context which makes it [21] appear less equivocal than it is. ECF No. 18 at 10. 1 capacity. See Valentine, 574 F.3d at 691-92. Dr. Jahnke’s statements regarding 2 attention and concentration and missing work were responses to questions about Dr. 3 Gleason’s opinion and suggest that she did not see support for those limitations in 4 the record, so she would defer to the treating physician. This does constitute 5 additional limitations assessed by Dr. Jahnke and the ALJ properly excluded them. 6 Further, as discussed supra, Dr. Gleason’s opinion was properly found to be 7 less persuasive because it overstates the limitations supported by the record. 8 Lastly, with regard to concentration and attention, the ALJ made a properly 9 supported finding which is not challenged by Plaintiff that Plaintiff has no 10 limitation in concentration, persistence, and pace. Tr. 31. For these reasons, the 11 ALJ’s consideration of Dr. Jahnke’s opinion is supported by substantial evidence. 12 3. Kim Chupurdia, Ph.D. 13 Dr. Chupurdia examined Plaintiff and prepared a mental evaluation report in 14 February 2018. Tr. 431-44. She diagnosed dysthymia and anxiety disorder, not 15 otherwise specified. Tr. 434. Dr. Chupurdia opined that Plaintiff has the ability to 16 reason and understand, has some adaptation skills, can concentrate and persist, and 17 has intact memory. Tr. 434. She noted that Plaintiff reports difficulty following 18 through on tasks at home and difficulty in a work environment. Tr. 434. Dr. 19 Chupurdia found moderate impairment in Plaintiff’s ability to interact with 20 coworkers and the public based on anxiety over possible physical symptoms; in the 21 ability to maintain regular attendance due to Plaintiff’s mood symptoms and 1 workday and workweek without interruption from mood symptoms; and in the 2 ability to deal with stress in the workplace if it involves leaving his home and 3 being around other people. Tr. 434. 4 First, the ALJ found Dr. Chupurdia’s opinion is not persuasive because it is 5 not consistent with her own evaluation. Tr. 34. A medical opinion is more 6 persuasive when the source provides relevant objective medical evidence and 7 supporting explanations. 20 C.F.R. § 416 .920c(c)(1)-(2). The ALJ observed that 8 Dr. Chupurdia found Plaintiff had no ongoing mental health treatment, had normal 9 thought content, stream of thought, orientation, memory, fund of knowledge, 10 concentration, abstract thinking, insight, and judgment. Tr. 34, 433-34. The ALJ 11 found that Dr. Chupurdia appeared to rely on Plaintiff’s subjective allegations 12 rather than objective or observational findings and that a portion of the functional 13 assessment involves Plaintiff’s description of symptoms rather than her findings. 14 Tr. 34, 434. 15 Plaintiff contends the ALJ did not explain the basis for this finding. ECF 16 No. 16 at 10. However, the ALJ’s explanation that Dr. Chupurdia’s functional 17 assessment includes some of Plaintiff’s description of symptoms rather than her 18 opinion is supported by the record. Dr. Chupurdia’s functional assessment 19 includes phrases such as, “[t]he claimant describes a great deal of difficulty” and 20 “[h]e describes” which indicates that the resultant limitations assessed arise from 21 Plaintiff’s own statements. Tr. 434. Furthermore, the ALJ also cited the benign 1 concluding that the opinion is unsupported and is therefore less persuasive. Tr. 34, 2 433. 3 Second, the ALJ found Dr. Chupurdia’s opinion is not persuasive because it 4 directly conflicts with Plaintiff’s testimony that he is not significantly limited by 5 mental health problems. Tr. 34. A medical opinion is more persuasive when it is 6 consistent with evidence from other medical and nonmedical sources. 20 C.F.R. § 7 416.920c(c)(1)-(2). Plaintiff testified that he was not seeking mental health 8 treatment or taking any medication for anxiety or depression and that “stress is a 9 factor for my issues . . . [b]ut I would not call mental impairment being a factor.” 10 Tr. 114. Plaintiff contends this statement “is a factor consistent with an attempt to 11 avoid a mental health stigma,” ECF No. 16 at 11, but Plaintiff does not cite any 12 support for this assumption in the record and the court finds none. 13 Additionally, the ALJ found Dr. Chupurdia’s opinion is unsupported by the 14 overall record. Tr. 34. The ALJ discussed the mental health evidence, or lack 15 thereof, in detail in finding that Plaintiff does not have a severe mental health 16 impairment, a finding that is not challenged by Plaintiff. Tr. 30-31. The ALJ’s 17 reasonably found Dr. Chupurdia’s opinion conflicts with other evidence in the 18 record, and this is a legitimate reason for finding the opinion less persuasive. 19 4. David Colvin, ARNP 20 Plaintiff contends a May 4, 2020, opinion from David Colvin, ARNP is 21 relevant evidence. ECF No. 16 at 13. This opinion was first submitted to the 1 Pursuant to 20 C.F.R. § 416.1470 (a)(5), the Appeals Council will review a case at 2 a party’s request or on its own motion when it “receives additional evidence that is 3 new, material, and relates to the period on or before the date of the hearing 4 decision, and there is a reasonable probability that the additional evidence would 5 change the outcome of the decision.” The Appeals Council declined review of the 6 ALJ’s decision and found that Mr. Colvin’s opinion does not relate to the relevant 7 period because it is dated after April 23, 2019, the date of the ALJ’s decision. Tr. 8 2. 9 When the Appeals Council declines review, the ALJ’s decision becomes the 10 final decision of the Commissioner, and the district court reviews that decision for 11 substantial evidence, based on the record as a whole. Brewes v. Comm’r of Soc. 12 Sec. Admin., 682 F.3d 1157, 1161-62 (9th Cir. 2012) (citation omitted). When the 13 Appeals Council considers new evidence in deciding whether to review a decision 14 of the ALJ, that evidence becomes part of the administrative record, which the 15 district court must consider when reviewing the Commissioner's final decision for 16 substantial evidence. Id. at 1163 . Here, the Appeals Council did not consider the 17 evidence except to determine that it does not relate to the period at issue and did 18 not add it as an exhibit in the administrative record. Tr. 5-6; see Bales v. Berryhill, 19 688 F. App’x. 495, 496 (9th Cir. 2017) (unpublished) (determining that when the 20 Appeals Council found that the new medical records did not “relate to the period 21 on or before the date of the administrative law judge hearing decision,” and did 1 administrative record); Ruth v. Berryhill, No. 1:16–CV–0872–PK, 2017 WL 2 4855400 (D. Or. Oct. 26, 2017) (citing other district court decisions in the Ninth 3 Circuit holding that that new evidence that the Appeals Council looked at and then 4 rejected did not become part of the administrative record subject to the Court’s 5 substantial evidence review). 6 To the extent Petitioner disagrees with the reason the Appeals Council 7 provided for refusing to consider and exhibit the newly submitted evidence, 8 Plaintiff should have requested a remand for the ALJ to consider the new 9 evidence. See Taylor v. Comm’r of Soc. Sec. Admin., 659 F.3d 1228, 1233 (9th 10 Cir. 2011) (“Where the Appeals Council was required to consider additional 11 evidence, but failed to do so, remand to the ALJ is appropriate so that the ALJ can 12 reconsider its decision in light of the additional evidence.”); see also 42 U.S.C. § 13 405(g) (permitting a court to remand a case “upon a showing that there is new 14 evidence which is material and that there is good cause for the failure to 15 incorporate such evidence into the record in a prior proceeding”). However, 16 Plaintiff has not cited any authority, made any such argument, or requested such 17 relief. ECF No. 16 at 13, 19. 18 Plaintiff simply argues the opinion is relevant because Mr. Colvin indicated 19 the symptoms and limitations described had existed since 2012. ECF No. 16 at 13. 20 However, the records submitted with Mr. Colvin’s opinion are dated December 13, 21 2019, and January 24, 2020. They indicate no findings, objective or observational, 1 reviewed any records supporting the conclusion that such limitations existed since 2 2012. Tr. 13-15, 18. Furthermore, Plaintiff offers no reason to believe the ALJ, 3 having already found his symptoms were not as severe as alleged, would have 4 adopted a retroactive opinion based essentially on Plaintiff’s self-report that the 5 symptoms and limitations assessed by Mr. Colvin existed since 2012. Thus, ALJ’s 6 RFC determination based on the hearing testimony, the medical record, and the 7 medical opinions is supported by substantial evidence without regard to Mr. 8 Colvin’s opinion. 9 B. Symptom Testimony 10 Plaintiff contends the ALJ erred by rejecting his symptom testimony. ECF 11 No. 16 at 13-16. An ALJ engages in a two-step analysis to determine whether a 12 claimant’s testimony regarding subjective pain or symptoms is credible. “First, the 13 ALJ must determine whether there is objective medical evidence of an underlying 14 impairment which could reasonably be expected to produce the pain or other 15 symptoms alleged.” Molina, 674 F.3d at 1112 (internal quotation marks omitted). 16 “The claimant is not required to show that her impairment could reasonably be 17 expected to cause the severity of the symptom she has alleged; she need only show 18 that it could reasonably have caused some degree of the symptom.” Vasquez v. 19 Astrue, 572 F.3d 586, 591 (9th Cir. 2009) (internal quotation marks omitted). 20 Second, “[i]f the claimant meets the first test and there is no evidence of 21 malingering, the ALJ can only reject the claimant’s testimony about the severity of 1 rejection.” Ghanim v. Colvin, 763 F.3d 1154, 1163 (9th Cir. 2014) (internal 2 citations and quotations omitted). “General findings are insufficient; rather, the 3 ALJ must identify what testimony is not credible and what evidence undermines 4 the claimant’s complaints.” Id. (quoting Lester v. Chater, 81 F.3d 821, 834 (9th 5 Cir. 1995)); see also Thomas v. Barnhart, 278 F.3d 947, 958 (9th Cir. 2002) 6 (“[T]he ALJ must make a credibility determination with findings sufficiently 7 specific to permit the court to conclude that the ALJ did not arbitrarily discredit 8 claimant’s testimony.”). “The clear and convincing [evidence] standard is the most 9 demanding required in Social Security cases.” Garrison, 759 F.3d 995, 1015 (9th 10 Cir. 2014) (quoting Moore v. Comm’r of Soc. Sec. Admin., 278 F.3d 920, 924 (9th 11 Cir. 2002)). In assessing a claimant’s symptom complaints, the ALJ may consider, 12 inter alia, (1) the claimant’s reputation for truthfulness; (2) inconsistencies in the 13 claimant’s testimony or between her testimony and her conduct; (3) the claimant’s 14 daily living activities; (4) the claimant’s work record; and (5) testimony from 15 physicians or third parties concerning the nature, severity, and effect of the 16 claimant’s condition. Thomas, 278 F.3d at 958-59 . 17 First, the ALJ found the objective record lacks findings consistent with the 18 level of limitations alleged. Tr. 33. An ALJ may not discredit a claimant’s pain 19 testimony and deny benefits solely because the degree of pain alleged is not 20 supported by objective medical evidence. Rollins v. Massanari, 261 F.3d 853 , 857 21 (9th Cir. 2001); Bunnell v. Sullivan, 947 F.2d 341, 346-47 (9th Cir. 1991); Fair v. 1 relevant factor in determining the severity of a claimant’s pain and its disabling 2 effects. Rollins, 261 F.3d at 857 . Minimal objective evidence is a factor which 3 may be relied upon in discrediting a claimant’s testimony, although it may not be 4 the only factor. See Burch v. Barnhart, 400 F.3d 676, 680 (9th Cir. 2005). The 5 ALJ observed that despite the allegation of disabling asthma and allergies, 6 Plaintiff’s respiration was normal at multiple visits in the limited record. Tr. 33 7 (citing 383, 389, 408, 412, 415, 425, 443, 453, 464, 467, 469, 475). The ALJ 8 noted some abnormal findings, Tr. 33 (citing Tr. 391, 417), but found they do not 9 demonstrate persistence and consistency of symptoms across the record. Tr. 33. 10 The ALJ also noted spirometry testing suggested only possible early obstructive 11 pulmonary impairment and mild dysfunction. Tr. 33 (citing Tr. 373, 430). 12 With respect to Plaintiff’s back impairment, the ALJ noted Plaintiff 13 demonstrated normal gait, station, range of motion of the lumbar spine, and had 14 negative straight leg raise testing on examinations. Tr. 33 (citing Tr. 383, 408, 15 425, 443-44). The ALJ found that although Plaintiff was noted to use a cane on 16 occasion, there is no evidence Plaintiff’s use of a cane is medically necessary. Tr. 17 33, 431, 448; see Chaudry v. Astrue, 688 F.3d 661, 671 (9th Cir. 2012) (holding 18 ALJ need not provide for use of an assistive device in the RFC if there is no 19 evidence it is medically necessary).4 Regarding Plaintiff’s digestive symptoms, the [20] 4 Plaintiff cites a December 30, 2019, record from David Colvin ARNP, to support [21] 1 ALJ found that Plaintiff received treatment and reported “minor episodes” about 2 once every three months since he changed his diet. Tr. 33 (citing Tr. 375). The 3 records cited by the ALJ support the conclusion that the observational and 4 objective record lacks findings consistent with the level of limitation alleged. 5 Plaintiff asserts that the “often-benign findings in the record were consistent with 6 the claimant’s inability to see the doctor on bad or even moderate days, when his 7 symptoms prevented him from leaving his house or his bathroom.” ECF No. 16 at 8 15. This assertion is not supported by the record and there is no objective evidence 9 supporting symptoms of that degree. 10 Second, the ALJ found there is very little treatment documented for 11 Plaintiff’s physical complaints and virtually no treatment for his mental health 12 complaints. Tr. 33. Medical treatment received to relieve pain or other symptoms 13 is a relevant factor in evaluating pain testimony. 20 C.F.R. § 416.929 (c)(3)(iv)-(v). 14 The ALJ is permitted to consider the claimant’s lack of treatment in evaluating 15 symptom claims. Burch, 400 F.3d at 681 . The ALJ found the lack of treatment 16 was unexpected given the severity of the symptoms alleged. Tr. 33. Plaintiff 17 contends Dr. Jahnke, the medical expert, indicated that the limited treatment record [19] discussed supra, the Court concludes the record from Mr. Coleman does not [20] impact the ALJ’s finding. [21] 1 is “because when he feels bad, he does not feel up to a visit with a doctor.” ECF 2 No. 16 at 15 (citing Tr. 100). However, Dr. Jahnke actually testified, “this 3 claimant does not go to the doctor a whole lot. . . . so I think when he feels bad [he 4 is] not going to see a doctor’s visit necessarily.” Tr. 100. Dr. Jahnke did not 5 suggest that Plaintiff is at times too ill to see a doctor, a proposition which has no 6 foundation in the medical record, and this does not reasonably explain the paucity 7 of medical treatment. 8 Plaintiff notes that where the evidence suggests lack of mental health 9 treatment is part of a claimant’s mental health condition, it may be inappropriate to 10 consider a claimant’s lack of mental health treatment as evidence of a lack of 11 credibility. ECF No. 16 at 15 (citing Regennitter v. Comm’r of Soc. Sec. Admin., [12] 166 F.3d 1294, 1299-1300 (9th Cir. 1999)); see also Nguyen v. Chater, 100 F.3d 13 1462, 1465 (9th Cir. 1996). Notwithstanding, when there is no evidence 14 suggesting a failure to seek treatment is attributable to a mental impairment rather 15 than personal preference, it is reasonable for the ALJ to conclude that the level or 16 frequency of treatment is inconsistent with the level of complaints. Molina, 674 17 F.3d at 1113-14. Here, as the ALJ observed, there is no mental health treatment in 18 the record. Tr. 33. There is no evidence that any failure to seek treatment is 19 attributable to a mental impairment. Furthermore, Plaintiff did not challenge the 20 ALJ’s finding that Plaintiff’s medically determinable mental impairments are 21 nonsevere. Tr. 30-31. The ALJ’s finding is reasonable and this is a clear and 1 Third, the ALJ found Plaintiff worked in the past with his most limiting 2 condition. Tr. 33. The claimant’s work record is an appropriate consideration in 3 weighing the claimant’s symptom complaints. Thomas, 278 F.3d at 958-59 . The 4 ALJ noted that Plaintiff’s most limiting condition is purportedly asthma but 5 observed that Plaintiff has had asthma his entire life and was able to work 6 consistently through 2009. Tr. 33 (citing Tr. 299-300). Without citing the record, 7 Plaintiff claims his asthma has been exacerbated by allergies in recent years and 8 that the combination of his asthma and his more recently developed gastrointestinal 9 condition prevent him from working. ECF No. 16 at 16. As the ALJ pointed out, 10 however, that there is no indication of a significant increase in symptomology, 11 which makes the alleged inability to work due to asthma less persuasive. Tr. 33. 12 This is a clear and convincing reason supported by substantial evidence. 13 C. Step Four 14 Plaintiff also contends the ALJ erred at step four by failing to identify the 15 specific demands of Plaintiff’s past relevant work and by failing to properly compare 16 the specific demands of Plaintiff’s past work and her functional limitations. ECF 17 No. 16 at 16-19. The regulations provide, “[a]t the fourth step, we consider our 18 assessment of your residual functional capacity and your past relevant work. If you 19 can still do your past relevant work, we will find that you are not disabled.” 20 20 C.F.R. § 416.920 (a) (4)(iv). The burden of proof lies with the Plaintiff at step four, 21 but the ALJ still has a duty to make the requisite factual findings to support his 1 conclusions. Pinto v. Massanari, 249 F.3d 840, 844 (9th Cir. 2001); see also SSR 2 82-62 (1982) at *4, available at 1982 WL 31386 . 3 The ALJ must make the following specific findings of fact: (1) a finding of 4 fact as to the individual’s RFC; (2) a finding of fact as to the physical and mental 5 demands of the past job/occupation; and (3) a finding of fact that the individual’s 6 RFC would permit a return to his or her past job or occupation. SSR 82-62 at *4. 7 Here, the ALJ first found Plaintiff has the RFC to perform light work, except 8 that he can sit up to eight hours and stand or walk at least six hours of an eight-hour 9 workday with normal breaks, must avoid climbing ladders, ropes, or scaffolds, can 10 occasionally climb ramps or stairs, can occasionally stoop, kneel, crouch, crawl, and 11 balance, must avoid unprotected heights and hazardous machinery, concentrated 12 exposure to wetness and humidity, and must avoid all exposure to respiratory 13 irritants such as industrial fumes, odors, dusts, gasses, and poorly ventilated areas. 14 Tr. 32. Second, based on the testimony of the vocational expert, the ALJ found that 15 Plaintiff’s past relevant work as a CAD/CAM drafter was classified as SVP 5, 16 exertionally light, skilled, as generally performed under the relevant regulations.5 17 Tr. 35-36; see 20 C.F.R. § 416.967 (b)-(c). Third, based on the vocational expert’s 18 testimony, the ALJ found that Plaintiff’s RFC allowed him to perform his past 19 relevant work as a CAD/CAM draft as generally performed in the national economy. [20] 5 Social Security regulations classify work by physical exertion requirements and [21] 1 Tr. 36. The ALJ’s findings were therefore consistent with the requirements of 2 S.S.R. 82-62.6 3 The ALJ’s findings at step four are supported by substantial evidence and are 4 legally sufficient. Moreover, even assuming, arguendo, that the ALJ erred at step 5 four; any error would be harmless because at step five the ALJ properly found that, 6 alternatively, there are other jobs that existed in significant numbers in the national 7 economy that Plaintiff could perform, including: routing clerk, mail clerk, and [8] 9 6 Plaintiff cites Pinto and asserts the ALJ “allowed the remainder of the RFC 10 assessment to take place solely in the vocational expert’s head.” ECF No. 16 at 11 17-18, citing 249 F.3d 840 . However, the ALJ in Pinto made findings which 12 deviated from the Dictionary of Occupational Titles without explanation and failed 13 to make specific findings of fact about the claimant’s abilities. 249 F.3d at 847 . In 14 this case, the vocational expert testified that she would identify any testimony 15 which deviated from the DOT, but no such deviation was indicated. Tr. 120, 12916 30. The ALJ also found the vocational expert’s testimony was not inconsistent 17 with the DOT. Tr. 36. As a result, the vocational expert made no assessment “in 18 her head” which is not verifiable by consulting the DOT. Plaintiff does not 19 identify any testimony or finding that is in fact inconsistent with the DOT. The 20 ALJ made the requisite findings of fact with sufficient specificity for the Court to 21 review. 1 photocopy machine operator. Tr. 36-37; see Tommasetti v. Astrue, 533 F.3d 1035 , 2 1042 (9th Cir. 2008). 3 Plaintiff also argues the ALJ erred because the vocational expert’s opinion 4 was based on an incomplete hypothetical. ECF No. 16 at 18. The ALJ’s 5 hypothetical must be based on medical assumptions supported by substantial 6 evidence in the record which reflect all of a claimant’s limitations. Osenbrook v. 7 Apfel, 240 F.3d 1157, 1165 (9th Cir. 2001). The hypothetical should be “accurate, 8 detailed, and supported by the medical record.” Tackett, 180 F.3d at 1101 . The 9 ALJ is not bound to accept as trued the restrictions presented in a hypothetical 10 question propounded by a claimant’s counsel. Osenbrook, 240 F.3d at 1164 ; 11 Magallanes v. Bowen, 881 F.2d 747, 756-57 (9th Cir. 1989); Martinez v. Heckler, [12] 807 F.2d 771, 773 (9th Cir. 1986). The ALJ is free to accept or reject these 13 restrictions as long as they are supported by substantial evidence, even when there 14 is conflicting medical evidence. Magallanes, 881 F.2d at id. 15 Plaintiff’s argument assumes that the ALJ erred in considering the medical 16 opinion evidence. ECF No. 16 at 18-19. The ALJ’s consideration of the medical 17 opinion evidence was legally sufficient and supported by substantial evidence, 18 discussed supra. The ALJ therefore properly excluded limitations assessed by those 19 providers whose opinions were less persuasive from the RFC and hypothetical to the 20 vocational expert. The hypothetical contained the limitations the ALJ found credible 21 and supported by substantial evidence in the record. The ALJ’s reliance on testimony the VE gave in response to the hypothetical was therefore proper. See id.; 2|| Bayliss v. Barnhart, 427 F. 3d 1211, 1217-18 (9th Cir. 2005). 3 CONCLUSION 4 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. 6 Accordingly, 7 1. Plaintiffs Motion for Summary Judgment, ECF No. 16, is DENIED. 8 2. Defendant’s Motion for Summary Judgment, ECF No. 17, is GRANTED. 9 IT IS SOORDERED. The District Court Clerk is directed to enter this Order and provide copies to counsel. Judgment shall be entered for Defendant and the file shall be CLOSED. 12 DATED October 18, 2021. “1 14 ~ LONNYR.SUKO Senior United States District Judge