Summary
applying the new regulations in evaluating claims for disability insurance benefits and SSI (citing 20 C.F.R. § 416.920c and Woods, 32 F.4th at 791-92)
Summary of this case from SY S v. Comm'r Soc. Sec. Admin.Opinion
21-35672
09-07-2022
ZACHERY RICHARD REYNOLDS, Plaintiff-Appellant, v. KILOLO KIJAKAZI, Acting Commissioner of Social Security, Defendant-Appellee.
NOT FOR PUBLICATION
Argued and Submitted August 11, 2022 Seattle, Washington
Appeal from the United States District Court for the Western District of Washington Mary Alice Theiler, Magistrate Judge, Presiding D.C. No. 2:20-cv-01172-MAT
Before: CHRISTEN, LEE, and FORREST, Circuit Judges.
MEMORANDUM [*]
Claimant Zachery Reynolds appeals from the district court's order affirming the Commissioner's denial of his applications for disability insurance benefits under Title II and supplemental security income under Title XVI of the Social Security Act. We have jurisdiction under 42 U.S.C. § 405(g) and 28 U.S.C. § 1291, and we affirm.
We review the district court's order de novo and reverse only if the Administrative Law Judge's (ALJ) decision was not supported by substantial evidence or relied on legal error. Ford v. Saul, 950 F.3d 1141, 1154 (9th Cir. 2020).
1. Reynolds's Testimony.
The ALJ provided "specific, clear, and convincing reasons" supported by substantial evidence for discounting Reynolds's testimony regarding the intensity, persistence, and limiting effects of his symptoms. Ahearn v. Saul, 988 F.3d 1111, 1116 (9th Cir. 2021) (internal quotation marks and citation omitted). For example, the ALJ's finding that the record evidence did not corroborate Reynolds's testimony that he consistently took medication to control his multiple sclerosis (MS) is supported by Reynolds's treating physician's note that Reynolds had "not been using any medication to treat his MS." See Carmickle v. Comm 'r, Soc. Sec. Admin., 533 F.3d 1155, 1161 (9th Cir. 2008) ("Contradiction with the medical record is a sufficient basis for rejecting the claimant's subjective testimony.").
The ALJ also rationally found that the objective medical evidence did not corroborate and, in some instances, contradicted Reynolds's severe limitations testimony. See Ahearn, 988 F.3d at 1116. For example, consultative examiner Dan Phan, M.D.'s findings of normal gait and station, full range of motion in all joints, fair muscle bulk, and normal ability to grasp, grip, and pick up coins contradict Reynolds's testimony of severe MS-related symptoms of gait instability and hand and body tremors. Additionally, Reynolds's treating physician's failure to note any signs of incontinence or to report that Reynolds complained of incontinence during the period that Reynolds testified he was unable to work due to this condition contradicts his claim that incontinence was one of the main reasons that he stopped working and was unable to find future work. See Burch v. Barnhart, 400 F.3d 676, 681 (9th Cir. 2005) (holding that a lack of corroborating medical evidence may support an ALJ's basis for discounting a claimant's subjective testimony); see also Tommasetti v. Astrue, 533 F.3d 1035, 1039-41 (9th Cir. 2008) (ALJ may discount a claimant's subjective complaints based on an "unexplained or inadequately explained failure to seek treatment or follow a prescribed course of treatment" or evidence of relief with conservative treatment (quoting Smolen v. Chater, 80 F.3d 1273, 1284 (9th Cir. 1996))).
2. Dr. Rodney Johnson's Opinion.
For claims filed after March 27, 2017, as here, an ALJ reviews every medical opinion for "supportability" and "consistency." See 20 C.F.R. § 416.920c; Woods v. Kijakazi, 32 F.4th 785, 791-92 (9th Cir. 2022). Substantial evidence supports the ALJ's determination that Dr. Johnson's early March 2018 opinions and subsequent support letters, including the Certificate of Health Care Provider that Dr. Johnson submitted in support of Reynolds's application for disability coverage through his employer, were partially inconsistent with his own treatment notes and the record evidence. Dr. Johnson offered his early March opinions before he examined Reynolds on March 23 and based them only on Reynolds's subjective reports; Dr. Johnson had not evaluated Reynolds in person since 2016. See Tommasetti, 533 F.3d at 1041 (holding that "incongruity" between a doctor's opinion and his own medical records is a specific and legitimate reason for rejecting that opinion). Moreover, the early March opinions conflicted with the objective medical evidence in the record at that time, including the findings of other medical providers. See Ford, 950 F.3d at 1156.
Substantial evidence also supports the ALJ's decision to only partially credit the limitations set forth in Dr. Johnson's April and July 2018 opinions. The ALJ addressed the supportability and consistency of these opinions, concluding that parts were "vague," included "subjective complaints from the claimant not included in the March 2018 examination notes or supported by findings," and lacked support from other objective record evidence. See Burrell v. Colvin, 775 F.3d 1133, 1140-41 (9th Cir. 2014) (stating that an ALJ may reject a medical opinion "if it is based to a large extent on a claimant's self-reports that have been properly discounted as incredible" (citation omitted)). Reynolds's argument that there is a better interpretation of the evidence fails because when "evidence exists to support more than one rational interpretation, we must defer to the Commissioner's decision." Batson v. Comm r of Soc. Sec. Admin., 359 F.3d 1190, 1193 (9th Cir. 2004).
3. Residual Functional Capacity (RFC) Assessment.
"[RFC] is the most [a claimant] can still do despite [his] limitations." 20 C.F.R. §§ 404.1545(a), 416.945(a). The ALJ must assess a claimant's RFC "based on all the relevant evidence," including the objective medical evidence and the claimant's credible subjective complaints. Laborin v. Berryhill, 867 F.3d 1151, 1153 (9th Cir. 2017) (citation omitted). Reynolds argues that the ALJ erred in assessing his RFC by: (1) failing to incorporate issues related to his depth perception, and (2) including an absentee limitation that was not supported by the record.
The ALJ declined to find a specific depth perception limitation in the RFC formulation because the examiners who observed this defect, noted that it could be fixed by corrective lenses. Nonetheless, the ALJ considered issues with uncorrected vision and accounted for several limitations related to peripheral vision, balance, and sensory problems. But even if a depth-perception limitation should have been included, this error was harmless because two of the available jobs that the ALJ identified did not require depth perception. See Stubbs-Danielson v. Astrue, 539 F.3d 1169, 1174 (9th Cir. 2008) (explaining that where an ALJ fails to include a credited limitation, the error is harmless if that limitation would not preclude performance of the jobs identified in step four or five).
However, the ALJ's absentee limitation was improper based on the existing record. "An ALJ may rely on a vocational expert's testimony that is based on a hypothetical that contain[s] all of the limitations that the ALJ found credible and supported by substantial evidence in the record." Ghanim v. Colvin, 763 F.3d 1154, 1166 (9th Cir. 2014) (internal quotation marks and citation omitted). Important here, the hypothetical posed to the vocational expert must include only "those limitations supported by substantial evidence." Robbins v. Soc. Sec. Admin., 466 F.3d 880, 886 (9th Cir. 2006).
There is no dispute that Reynolds has active MS, and the ALJ accounted for the impact that this condition has on Reynolds's functional capacity. The ALJ partially discounted the evidence of record related to Reynolds's work absences- Dr. Johnson's early March 2018 report and Reynolds's subjective testimony-but nonetheless concluded that an absenteeism limitation was warranted, and the ALJ included in his hypothetical to the vocational expert that there would be ten work absences per year, with absences "roughly distributed evenly throughout the year." In response to an earlier question, the vocational expert had testified that the extent to which absences can prevent a person from sustaining employment "partially depend[s] on how those absences are distributed," with absences that are "more concentrated . . . presenting] an issue."
Substantial evidence does not support the specifics of the absentee limitation incorporated into the hypothetical the ALJ posed to the vocational expert. There is no objective record evidence, nor is there any medical evidence, to support the ALJ's specification of the timing of Reynolds's likely work absences due to flare-ups of his MS. Because the limitation has no evidentiary basis, it cannot stand on the current record. Cf. Bayliss v. Barnhart, 427 F.3d 1211, 1217-18 (9th Cir. 2005). Therefore, we reverse on this issue and remand for the ALJ to develop the record to determine whether substantial evidence supports an absentee limitation with evenly spaced absences.
AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.
The parties shall bear their own costs.
Reynolds initially challenged whether the delegation of authority to the Commissioner was constitutional. He has since moved to withdraw that argument in light of our decision in Kaufmann v. Kijakazi, 32 F.4th 843 (9th Cir. 2022). Reynolds's motion is granted.
[*] This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3.