Opinion
Case No. 6:16-cv-00271-SB
03-23-2017
SHARON ROSE HOWELL, Plaintiff, v. NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.
FINDINGS AND RECOMMENDATION
BECKERMAN, Magistrate Judge.
Sharon Rose Howell ("Howell") seeks judicial review of the final decision by the Social Security Commissioner ("Commissioner") denying her application for Disability Insurance Benefits ("DIB") under Title II of the Social Security Act ("SSA"). This Court has jurisdiction to review the Commissioner's decision pursuant to 42 U.S.C. § 405(g). For the reasons that follow, the Court recommends that the district judge affirm the Commissioner's decision because it is free of legal error and supported by substantial evidence.
BACKGROUND
Howell was born in March 1958, making her fifty-five years old at the time of the administrative hearing. (Tr. 58.) Howell completed the twelfth grade and has past work experience as a caregiver, activity director, and office manager. (Tr. 290.) She last worked as a caregiver for her mother. (Tr. 289.) Howell protectively filed applications for Supplemental Security Income ("SSI") and DIB on February 14, 2012, alleging disability as of March 26, 2006, due to a combination of impairments including bipolar disorder with anxiety, lumbar degenerative disc disease, and obesity. (Tr. 288.)
Howell was treated for lower back pain and burning in her legs on February 23, 2004. (Tr. 530.) An MRI of her lumbar spine on June 25, 2004, revealed a small disc herniation at L4-5 and other mild degenerative changes. (Tr. 451.)
On June 28, 2004, Howell was treated by Rajesh Ravuri, M.D., for worsening mood swings. (Tr. 529.) On July 27, 2004, she stopped taking medication for bipolar disorder due to unpleasant side effects, and was advised to try Lithium. (Tr. 528.) In September 2004, Dr. Ravuri noted that Howell's depression and anxiety were not responding to Lithium, and recommended Lexapro. (Tr. 528.)
Howell was again treated for lower back pain on March 8, 2005, by Michael Pylman, M.D. (Tr. 443.) She had multiple positive trigger points and was referred for physical therapy. (Tr. 447.) Dr. Pylman noted in April 2005 that epidural steroid injections had helped Howell's pain, which continued to improve over the next several months. (Tr. 435, 441.)
In October 2005, Dr. Ravuri noted that Howell continued to suffer from depression, anxiety, and mood swings, although her symptoms were slightly better controlled with Lithium. (Tr. 526.) He also opined that Howell had severe anxiety symptoms and recommended Wellbutrin. (Tr. 525.)
In December 2005, Dr. Pylman noted that Howell continued to suffer from thoracic spine pain. (Tr. 432.) In January 2006, he noted Howell had been in a car accident and that her back pain increased after lifting her grandchild. (Tr. 426, 428.) Dr. Pylman reported that physical therapy was helping with Howell's back pain, and Lexapro and Lithium were helping with her mental health symptoms. (Tr. 424.)
On July 17, 2006, Dr. Pylman noted that Howell was unable to afford injections or physical therapy for her lower back pain. (Tr. 421-22.) She continued to have mid and lower back pain in 2007, and Dr. Pylman noted in May 2007 that her lower back pain was very significant, and noted that in July that the pain was radiating into Howell's left leg. (Tr. 411-12, 414.)
In January 2008, Dr. Pylman noted increased pain in Howell's left leg, but she could not afford lumbar injections. (Tr. 409-10.) She was treated twice in 2008 for swelling in her left leg, and was in another car accident by September 2008, suffering neck pain, headache, and bilateral trapezius spasms. (Tr. 513-14.) She continued to have neck and lower back pain in October 2008 and January 2009, as well as pain radiating down her legs. (Tr. 406-07, 506, 511-12.) Dr. Pylman noted a somewhat antalgic gait. (Tr. 404-05.)
On February 25, 2009, Dr. Pylman noted that facet injections helped Howell's back pain, and performed rhizotomies of the median nerve branches in Howell's spine. (Tr. 400-03.) By November of 2009, Howell's lower back pain was worse on her right side, and she had a positive straight leg test on the right side. (Tr. 493-94.)
In March 2010, Howell reported ongoing back pain to Dr. Ravuri but declined further back injections. (Tr. 487.) In June 2012, Kamara Dodd, FNP, noted that Howell continued to suffer from lower back pain, that her bipolar symptoms were increasing, and that she was having mood fluctuations. (Tr. 466-67.)
On June 25, 2012, Gail Wahl, Ph.D., performed a comprehensive psychodiagnostic assessment of Howell. (Tr. 456-58.) She noted that Howell had lost her previous job at a nursing home after suffering a mental breakdown. Dr. Wahl also noted that Howell displayed an intense affect and was extremely depressed during the assessment. She opined that Howell had memory and concentration problems, and that Howell's mental symptoms would interfere with persistence. Id. Dr. Wahl further noted that Howell had fair social interaction skills, poor adaptive skills, and limited capacity to reach out to others. (Tr. 458.) She diagnosed bipolar disorder, panic disorder with agoraphobia, and cognitive disorder, with a GAF score of 40. Id.
On July 14, 2012, Raymond Nolan, M.D., Ph.D., examined Howell and noted that she suffered from lower back pain. (Tr. 459.) Dr. Nolan opined that Howell should avoid repetitive bending, twisting, and turning; should limit lifting and carrying to ten pounds frequently and twenty pounds occasionally; can sit for thirty to sixty minutes at a time, up to six hours in an eight-hour workday if she can change position; and can stand or walk between one and two hours in an eight-hour day. (Tr. 460.)
FNP Dodd again examined Howell on July 26, 2012. (Tr. 463-65.) She noted back pain and increased bipolar symptoms. On February 20, 2014, Dr. Wahl completed a questionnaire describing Howell's mental limitations, endorsing severe limitations including inability to meet competitive standards in the areas of understanding, remembering, carrying out detailed instructions, and dealing with the stress of semiskilled or skilled work. (Tr. 557-58.) She also opined that Howell would be absent from work more than four days per month due to her impairments. (Tr. 558.)
On March 10, 2014, Dr. Bert completed a questionnaire describing Howell's limitations. (Tr. 619.) He endorsed severe limitations including drowsiness due to medications, and opined that Howell could sit for four hours and stand or walk for two hours in an eight-hour day, and would need to shift positions at will. (Tr. 620.) Dr. Bert found that Howell's symptoms were likely to interfere with her attention and concentration, and cause her to be off-task for about five percent of each work day, and that she would be absent from work about two days per month. (Tr. 622.)
Howell's husband, Douglas Howell, also completed a questionnaire describing Howell's limitations. Mr. Howell noted that Howell is unable to sit, stand, or walk for long periods. (Tr. 305.) He reported that Howell has chronic pain, sleeps poorly, and sometimes falls behind on paying bills due to being distracted by chronic pain. (Tr. 308). Mr. Howell indicated that Howell was limited in her memory, and in her ability to lift, squat, bend, stand, reach, walk, sit, kneel, climb stairs, complete tasks, and concentrate. (Tr. 310.) He noted that Howell has particular difficulty remembering instructions. (Tr. 311.)
An administrative law judge ("ALJ") convened a hearing on March 21, 2014, at which Howell testified about the limitations resulting from her impairments. (Tr. 58-70.) Howell testified that her last job involved caring for her mother. Howell's symptoms had been getting worse while she was working, and sitting for long periods of time became too painful to sustain work. (Tr. 59.) Howell testified that her chronic pain keeps her from sitting or standing for long periods, and that her mental health issues prevented her from running an online business. (Tr. 60.) Medication did not eliminate her chronic pain, and causes her hands to shake as a side effect. Howell stated that she was able to do laundry, clean her bathroom, and go to church two or three times per week. (Tr. 62-64.) She has difficulty remembering what she reads and at the time of the hearing had not been able to go grocery shopping recently. (Tr. 64.)
Howell was fired from her job as an office manager because her chronic pain disrupted her concentration and she made a mistake. (Tr. 66-67.) She had lost her previous job because she had a mental health crisis while at work and had to leave during the middle of a work day. (Tr. 67.) Her mental health issues make it difficult to concentrate, and on bad days she is unable to do much of anything. (Tr. 71.) Howell testified that she could not walk a whole block, bend, or kneel, and could stand for about thirty minutes and sit for thirty to forty-five minutes at a time. (Tr. 73-75.) She experiences pain while sitting, and has trouble remembering information and instructions. (Tr. 76.)
The ALJ posed a series of questions to a vocational expert ("VE"), who also testified at Howell's hearing. Responding to the ALJ's hypothetical, the VE identified occupations of mail clerk, information router, and electronics worker as jobs a person with Howell's residual functional capacity ("RFC") would perform. (Tr. 82.)
In a written decision issued on April 10, 2014, the ALJ applied the five-step sequential evaluation process set forth at 20 C.F.R. § 416.920(a)(4), and found that Howell was disabled as of March 26, 2013, making her eligible for SSI benefits but not DIB, as her date last insured was March 31, 2011. (Tr. 26-44.) The Appeals Council denied Howell's petition for review, making the ALJ's decision the Commissioner's final decision. Howell timely appealed to federal court.
THE FIVE-STEP SEQUENTIAL ANALYSIS
I. LEGAL STANDARD
A claimant is considered disabled if he or she is unable to "engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which . . . has lasted or can be expected to last for a continuous period of not less than 12 months[.]" 42 U.S.C. § 423(d)(1)(A). "Social Security Regulations set out a five-step sequential process for determining whether an applicant is disabled within the meaning of the Social Security Act." Keyser v. Comm'r Soc. Sec. Admin., 648 F.3d 721, 724 (9th Cir. 2011). Those five steps are as follows:
(1) Is the claimant presently working in a substantially gainful activity? (2) Is the claimant's impairment severe? (3) Does the impairment meet or equal [one of the listed impairments]? (4) Is the claimant able to perform any work that he or she has done in the past? and (5) Are there significant numbers of jobs in the national economy that the claimant can perform?Id. at 724-25. The claimant bears the burden of proof for the first four steps in the process. Bustamante v. Massanari, 262 F.3d 949, 953-54 (9th Cir. 2001). If the claimant fails to meet the burden at any of the first four steps, the claimant is not disabled. Id.; Bowen v. Yuckert, 482 U.S. 137, 140-41 (1987).
The Commissioner bears the burden of proof at step five of the process, where the Commissioner must show the claimant can perform other work that exists in significant numbers in the national economy, "taking into consideration the claimant's residual functional capacity, age, education, and work experience." Tackett v. Apfel, 180 F.3d 1094, 1100 (9th Cir. 1999). If the Commissioner fails to meet this burden, the claimant is disabled. Bustamante, 262 F.3d at 954 (citations omitted).
II. THE ALJ'S DECISION
At the first step of the sequential process, the ALJ found that Howell had not engaged in substantial gainful activity since March 26, 2006, her amended alleged onset date. (Tr. 32.) At the second step, the ALJ found that Howell had the severe medically determinable impairments of lumbar degenerative disc/joint disease, obesity, and a history of bipolar disorder with anxiety and depression. Id.
At the third step, the ALJ found that Howell's combination of impairments was not the equivalent of any of those on the Listing of Impairments. (Tr. 33.) The ALJ then assessed Howell's RFC and found that she could perform light work subject to the following limitations: she can stand and/or walk for up to two hours in an eight-hour workday; she requires the freedom to change positions every thirty minutes for comfort; she can bend, stoop, crouch, twist, and turn no more than occasionally; she can climb, balance, kneel, and crawl no more than frequently; and she can understand, remember, and carry out only simple, routine, repetitive tasks. (Tr. 34.)
At the fourth step, the ALJ concluded that Howell could not perform any of her past relevant work. (Tr. 42.) At the fifth step, the ALJ found that prior to March 26, 2013, Howell could perform jobs that existed in significant numbers in the national economy, including mail clerk, information router, and electronics worker. (Tr. 43.) The ALJ determined that beginning March 26, 2013, when Howell turned fifty-five years old, she became disabled. (Tr. 44.) He concluded that Howell was therefore not disabled at any time through March 31, 2011, her date last insured. Id.
STANDARD OF REVIEW
The district court may set aside a denial of benefits only if the Commissioner's findings are "'not supported by substantial evidence or [are] based on legal error.'" Bray v. Comm'r Soc. Sec. Admin., 554 F.3d 1219, 1222 (9th Cir. 2009) (quoting Robbins v. Soc. Sec. Admin., 466 F.3d 880, 882 (9th Cir. 2006)). Substantial evidence is defined as "'more than a mere scintilla [of evidence] but less than a preponderance; it is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.'" Id. (quoting Andrews v. Shalala, 53 F.3d 1035, 1039 (9th Cir. 1995)).
The district court "cannot affirm the Commissioner's decision 'simply by isolating a specific quantum of supporting evidence.'" Holohan v. Massanari, 246 F.3d 1195, 1201 (9th Cir. 2001) (quoting Tackett, 180 F.3d at 1097). Instead, the district court must consider the entire record, weighing the evidence that both supports and detracts from the Commissioner's conclusions. Id. If the evidence as a whole can support more than one rational interpretation, the ALJ's decision must be upheld; the district court may not substitute its judgment for the judgment of the ALJ. Bray, 554 F.3d at 1222 (citing Massachi v. Astrue, 486 F.3d 1149, 1152 (9th Cir. 2007)).
DISCUSSION
Howell alleges the ALJ erred by improperly assessing: (A) her subjective symptom testimony; (B) the medical evidence; (C) the lay witness statements; and (D) steps four and five. As explained below, the Court recommends that the district judge affirm the Commissioner's decision.
I. SUBJECTIVE SYMPTOM TESTIMONY
A. Applicable Law
In the Ninth Circuit, absent an express finding of malingering, an ALJ must provide specific, clear, and convincing reasons for rejecting a claimant's testimony:
Without affirmative evidence showing that the claimant is malingering, the [ALJ]'s reasons for rejecting the claimant's testimony must be clear and convincing. If an ALJ finds that a claimant's testimony relating to the intensity of his pain and other limitations is unreliable, the ALJ must make a credibility determination citing the reasons why the testimony is unpersuasive. The ALJ must specifically identify what testimony is credible and what testimony undermines the claimant's [subjective] complaints.Morgan v. Comm'r of Soc. Sec. Admin., 169 F.3d 595, 597 (9th Cir. 1999) (citations omitted). Clear and convincing reasons for rejecting a claimant's subjective symptom testimony "include conflicting medical evidence, effective medical treatment, medical noncompliance, inconsistencies in the claimant's testimony or between her testimony and her conduct, daily activities inconsistent with the alleged symptoms, and testimony from physicians and third parties about the nature, severity and effect of the symptoms complained of." Bowers v. Astrue, No. 6:11-cv-583-SI, 2012 WL 2401642, at *9 (D. Or. June 25, 2012); see also Molina v. Astrue, 674 F.3d 1104, 1112 (9th Cir. 2012) ("[T]he ALJ is not 'required to believe every allegation of disabling pain, or else disability benefits would be available for the asking, a result plainly contrary to 42 U.S.C. § 423(d)(5)(A).'" (quoting Fair v. Bowen, 885 F.2d 597, 603 (9th Cir. 1989))).
In assessing a claimant's credibility, an ALJ may also consider (1) "ordinary techniques of credibility evaluation, such as the claimant's reputation for lying, prior inconsistent statements concerning the symptoms, and other testimony by the claimant that appears less than candid," and (2) "unexplained or inadequately explained failure to seek treatment or to follow a prescribed course of treatment[.]" Smolen v. Chater, 80 F.3d 1273, 1284 (9th Cir. 1996). If the ALJ's credibility finding is supported by substantial evidence in the record, district courts may not engage in second-guessing. Thomas v. Barnhart, 278 F.3d 947, 959 (9th Cir. 2002) (citing Morgan, 169 F.3d at 600).
The Court notes that, pursuant to SSR 16-3p, the ALJ is no longer tasked with making an overarching credibility determination, and instead must assess whether the claimant's subjective symptom statements are consistent with the record as a whole. See SSR 16-3p, available at 2016 WL 1119029 (superseding SSR 96-7p). However, the ALJ's June 2015 decision was issued nearly one year before SSR 16-3p became effective, and there is no binding precedent establishing that this new ruling applies retroactively. See Ashlock v. Colvin, No. 3:15-cv-05767 DWC, 2016 WL 3438490, at *5 n.1 (W.D. Wash. June 22, 2016) (declining to apply SSR 16-3p to an ALJ decision issued prior to the effective date); see also Garner v. Colvin, 626 Fed. Appx. 699, 701 (9th Cir. 2015) ("[W]e cannot assign error to the ALJ for failing to comply with a regulation that did not exist at the time[.]").
B. Application of Law to Fact
There is no affirmative evidence that Howell is malingering and, therefore, the ALJ was required to provide specific, clear, and convincing reasons for discrediting Howell's testimony. As explained below, the Court concludes that the ALJ satisfied the standard.
The ALJ rejected Howell's testimony for several reasons. (Tr. 41-42.) First, the ALJ noted that Howell stopped working at her last job as a caregiver for her mother because Howell's mother passed away; not because of her impairments. (Tr. 40, 55-57, 59-60, 289.) An ALJ may discount a claimant's testimony if she stopped working for reasons other than her impairments. Bruton v. Massanari, 268 F.3d 824, 828 (9th Cir. 2001). The fact that Howell stopped working for reasons other than her alleged impairments constitutes a legally sufficient reason for rejecting her testimony. Id.
Second, the ALJ found that Howell's subjective symptom testimony conflicted with the medical evidence of record. Inconsistency between a plaintiff's subjective symptom testimony and the medical evidence is a clear and convincing reason to discount that testimony, so long as it is not the only reason. See Lingenfelter v. Astrue, 504 F.3d 1028, 1040 (9th Cir. 2007) (valid factors for doubting credibility include "whether the alleged symptoms are consistent with the medical evidence"). Here, the ALJ examined the medical record and reasonably determined that Howell's alleged onset date in March 2006 did not correspond to any deterioration in her medical condition. Rather, treatment notes from that period show Howell's pain levels were improving with physical therapy, and that her mental health medications were "greatly helping with her mood." (Tr. 424.) On April 17, 2006, Dr. Pylman noted that Howell was "very pleased with her current level of pain control and her current level of function." Id. The ALJ reasonably inferred from this evidence that Howell was not as limited as alleged on her onset date. Lingenfelter, 504 F.3d at 1040. While Howell offers a different interpretation of the medical evidence, the ALJ's interpretation is rational. Batson v. Comm'r of Soc. Sec. Admin., 359 F.3d 1190, 1193 (9th Cir. 2004) ("[I]f evidence exists to support more than one rational interpretation, we must defer to the Commissioner's decision[.]").
Third, the ALJ found that Howell's activities of daily living were inconsistent with her alleged level of functioning. This is a clear and convincing reason to discredit a plaintiff's symptom testimony. Molina, 674 F.3d at 1112-13. Here, while Howell testified that she dreads going out and avoids people, the ALJ noted that Howell attends church two to three times per week, attends meetings, and belongs to a "worship team" that involves prolonged standing. (Tr. 64, 73.) Further, while Howell alleged an inability to concentrate, the ALJ noted that she was able to read and frequently drove two hours from Coos Bay to Eugene to visit her grandchildren. (Tr. 41, 64, 75, 301.) It was reasonable for the ALJ to infer from this record that Howell was not as limited as she alleged in her testimony. See Tommasetti v. Astrue, 533 F.3d 1035, 1040 (9th Cir. 2008) (an ALJ is entitled to draw inferences logically flowing from the evidence). The ALJ provided specific, clear, and convincing reasons for discrediting Howell's subjective symptom testimony, and therefore the ALJ's credibility determination should be affirmed.
II. MEDICAL EVIDENCE
A. Applicable Law
"There are three types of medical opinions in social security cases: those from treating physicians, examining physicians, and non-examining physicians." Valentine v. Comm'r Soc. Sec. Admin., 574 F.3d 685, 692 (9th Cir. 2009) (citing Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1995)). In the event "a treating or examining physician's opinion is contradicted by another doctor, the ALJ must determine credibility and resolve the conflict." Id. (quoting Thomas, 278 F.3d at 956-57). "An ALJ may only reject a treating physician's contradicted opinions by providing specific and legitimate reasons that are supported by substantial evidence." Ghanim v. Colvin, 763 F.3d 1154, 1161 (9th Cir. 2014) (quoting Ryan v. Comm'r of Soc. Sec., 528 F.3d 1194, 1198 (9th Cir. 2008)).
"An ALJ can satisfy the 'substantial evidence' requirement by setting out a detailed and thorough summary of the facts and conflicting clinical evidence, stating his interpretation thereof, and making findings." Garrison v. Colvin, 759 F.3d 995, 1012 (9th Cir. 2014) (quoting Reddick v. Chater, 157 F.3d 715, 725 (9th Cir. 1998)). Merely stating conclusions, however, is insufficient: "The ALJ must do more than state conclusions. He must set forth his own interpretations and explain why they, rather than the doctors', are correct." Id. "[A]n ALJ errs when he rejects a medical opinion or assigns it little weight while doing nothing more than ignoring it, asserting without explanation that another medical opinion is more persuasive, or criticizing it with boilerplate language that fails to offer a substantive basis for his conclusion." Id. at 1012-13 (citing Nguyen v. Chater, 100 F.3d 1462, 1464 (9th Cir. 1996)).
B. Application of Law to Fact
Howell argues that the ALJ failed to offer legally sufficient reasons for rejecting the opinions of treating physician Dr. Bert and examining physician Dr. Wahl.
1. Dr. Bert
The ALJ gave little weight to Dr. Bert's opinion, adopting only his sit/stand limitation and walking restrictions into the RFC, but rejecting his other findings. (Tr. 40-41.) Specifically, the ALJ rejected Dr. Bert's restriction on lifting, the need for unscheduled breaks, and his opinion that Howell would be absent from work about two days each month. (Tr. 620-22.) These limitations are in conflict with the opinions of the non-examining state agency medical consultants (Tr. 89-120), and therefore the ALJ was required to provide specific and legitimate reasons for assigning limited weight to Dr. Bert's opinion. Batson, 359 F.3d at 1195.
After considering the medical evidence, the ALJ credited the opinion of Dr. Nolan, who assessed more mild limitations than did Dr. Bert. The ALJ is entitled to reject the opinion of a treating physician in favor of that of an examining physician whose opinion is based on their own examination. Tonapetyan v. Halter, 242 F.3d 1144, 1149 (9th Cir. 2001). Dr. Nolan's conflicting opinion thus constitutes substantial evidence underlying the ALJ's rejection of Dr. Bert's opinion. The ALJ provided a legally sufficient reason supported by substantial evidence for rejecting Dr. Bert's opinion, and therefore his evaluation of Dr. Bert's opinion should be affirmed.
The ALJ also noted that Dr. Bert examined Howell 12 times over the course of the treatment relationship and that approximately 4 years went by without any contact between Howell and Dr. Bert. (Tr. 41, 595.) The length of the treatment relationship and frequency of examinations are relevant considerations when weighing the medical evidence. 20 C.F.R. §§ 404.1527(c)(2)(i-ii), 416.927(c)(2)(i-ii). While Howell correctly notes that at times she lacked medical insurance and the means to pay for medical care, this is consistent with the ALJ's observation that Dr. Bert lacked a full longitudinal history of Howell's medical condition over the four years when he did not examine Howell. The ALJ reasonably weighed the evidence and assigned greater weight to Dr. Nolan's opinion, rejecting portions of Dr. Bert's controverted opinion.
2. Dr. Wahl
The ALJ gave "little weight" to Dr. Wahl's opinion. (Tr. 42.) Dr. Wahl's opinion conflicts with the opinions of the non-examining state agency medical consultants (Tr. 99), and therefore the ALJ was required to provide specific and legitimate reasons for assigning limited weight to her opinion. Batson, 359 F.3d at 1195.
First, the ALJ found that Dr. Wahl's opinion was based on Howell's subjective reports, which the ALJ found to be not credible. (Tr. 42.) The ALJ may discount the opinion of a medical source whose opinion is based upon the subjective complaints of a claimant properly found not credible. See Matney v. Sullivan, 981 F.2d 1016, 1020 (9th Cir. 1992). Here, it is clear from Dr. Wahl's report that she interviewed Howell at length and based much of her opinion on Howell's responses to interview questions. (Tr. 456-57.) Dr. Wahl does not reference medical records in her report. Id. The fact that Dr. Wahl based her opinion largely on Howell's subjective complaints constitutes a specific, legitimate reason for rejecting her opinion. Matney, 981 F.2d at 1020.
Second, the ALJ found that Dr. Wahl's opinion conflicted with objective medical evidence. (Tr. 42.) Inconsistency between a physician's opinion and the medical record is a specific and legitimate reason for giving little weight to that opinion. See Tommasetti, 533 F.3d at 1041. Here, the ALJ cited medical evidence from the record that conflicted with Dr. Wahl's opinion. (Tr. 42.) For example, Dr. Pylman noted after the alleged onset date that Howell's conditions greatly improved through physical therapy and medication. (Tr. 424.) The ALJ cited medical evidence in the record that was at odds with Dr. Wahl's overall assessment, thus providing a second specific, legitimate reason for rejecting Dr. Wahl's opinion. Tommasetti, 533 F.3d at 1041.
Third, the ALJ found that Dr. Wahl's opinion conflicted with Howell's activities of daily living. Inconsistency between a physician's opinion and a plaintiff's activities of daily living is a specific and legitimate reason to discount the opinion. Morgan, 169 F.3d at 600-02. Here, the ALJ gave numerous examples of Howell's social activities that contradict Dr. Wahl's opinion, including attending church two or three times per week, attending meetings, and participating as a member of the worship team. (Tr. 64, 73.) In sum, the Court finds that the ALJ's cited reasons for assigning little weight to Dr. Wahl's opinion were specific and legitimate, and supported by substantial evidence. The ALJ's evaluation of the medical evidence should be affirmed.
III. LAY WITNESS TESTIMONY
A. Applicable Law
An ALJ must consider lay witness testimony concerning a claimant's ability to work. Bruce v. Astrue, 557 F.3d 1113, 1115 (9th Cir. 2009). Such testimony cannot be disregarded without providing specific reasons that are germane to each witness. Stout v. Comm'r of Soc. Sec. Admin., 454 F.3d 1050, 1054 (9th Cir. 2006). "Inconsistency with medical evidence is one such reason." Bayliss v. Barnhart, 427 F.3d 1211, 1218 (9th Cir. 2005). "Germane reasons for rejecting a lay witness' testimony [also] include inconsistencies between that testimony and the claimant's presentation to treating physicians or the claimant's activities, and the claimant's failure to participate in prescribed treatment." Barber v. Astrue, No. 10-1432, 2012 WL 458076, at *21 (E.D. Cal. Feb. 10, 2012).
B. Application of Law to Fact
Howell's husband, Douglas Howell, completed an adult function report, the contents of which are outlined above. In rejecting Mr. Howell's testimony, the ALJ found that it was unsupported by the medical records. Specifically, Dr. Nolan's opinion that Howell could lift and carry twenty pounds occasionally and ten pounds frequently expressly conflicts with Mr. Howell's testimony that Howell could lift no more than ten or fifteen pounds. (Tr. 38, 310, 460.) The ALJ is responsible for resolving ambiguities in the record, Reddick, 157 F.3d at 722, and did so by rejecting Mr. Howell's lay testimony in light of the medical opinion of Dr. Nolan. The Court finds that the ALJ provided a germane reason for rejecting Mr. Howell's lay testimony, and his reasoning should be affirmed.
IV. EVALUATION OF STEPS FOUR AND FIVE
A. Applicable Law
"The hypothetical an ALJ poses to a vocational expert, which derives from the RFC, 'must set out all the limitations and restrictions of the particular claimant." Valentine, 574 F.3d at 690 (quoting Embrey v. Bowen, 849 F.2d 418, 422 (9th Cir. 1988)). Therefore, "an RFC that fails to take into account a claimant's limitations is defective." Id.
B. Application of Law to Fact
Howell argues that the ALJ posed an insufficient RFC to the VE because it did not include all of her limitations. As discussed above, however, the ALJ properly weighed the evidence and rejected the limitations set forth by Howell, her husband, and Drs. Bert and Dr. Wahl. The ALJ therefore formulated an RFC based on the credible evidence of record, and was entitled to rely on the VE testimony at steps four and five in the sequential disability analysis. The VE testified that an individual with Howell's RFC can perform light jobs including mail clerk, information router, and electronics worker. (Tr. 82.) The ALJ accepted this testimony, but also found that Howell became disabled on March 26, 2013, when she turned fifty-five years old. (Tr. 43-44.) The ALJ did not err at steps four and five.
CONCLUSION
Based on the foregoing, the district judge should affirm the Commissioner's decision.
SCHEDULING ORDER
The Findings and Recommendation will be referred to a district judge. Objections, if any, are due fourteen (14) days from service of the Findings and Recommendation. If no objections are filed, the Findings and Recommendation will go under advisement on that date. If objections are filed, a response is due fourteen (14) days after being served with a copy of the objections. When the response is due or filed, whichever date is earlier, the Findings and Recommendation will go under advisement.
DATED this 23rd day of March, 2017.
/s/_________
STACIE F. BECKERMAN
United States Magistrate Judge