IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF OREGON 

HENRY CORREA, 

Plaintiff, 

v. 

COMMISSIONER SOCIAL SECURITY 

ADMINISTRATION, 

Defendant. 

JOHN E. HAAPALA, Jr. 

401 E. 10th Avenue, Suite 240 

Eugene, OR 97401 

Attorney for Plaintiff 

JANICE E. HEBERT 

Assistant United States Attorney 

District of Oregon 

1000 S.W. Third Ave., Suite 600 

Portland, OR 97204-2902 

FRANCO L. BECIA 

Assistant Regional Counsel 

Social Security Administration 

701 Fifth Ave., Suite 2900 M/S 900 

Seattle, WA 98104-7075 

Attorneys for Defendant 

1 - OPINION AND ORDER 

Case No. 1:14-cv-01436-MA 

OPINION AND ORDER 

Case 1:14-cv-01436-MA Document 18 Filed 09/01/15 Page 1 of 23
MARSH, Judge 

Plaintiff Henry Correa seeks judicial review of the final 

decision of the Commissioner of Social Security denying his 

application for disability insurance benefits (DIB) under Title II 

of the Social Security Act, 42 U.S.C. §§ 401-403, and application 

for Supplemental Security Income (SSI) disability benefits under 

Title XVI of the Social Security Act, 42 U.S. C. §§ 1381-1383£. 

This Court has jurisdiction pursuant to 42 U.S.C. §§ 405(g) and 

1383(c) (3). For the reasons that follow, I affirm the 

Commissioner's decision. 

PROCEDURAL AND FACTUAL BACKGROUND 

Plaintiff protectively filed an application for DIB on April 

8, 2011, and protectively filed an application for SSI on April 30, 

2011, alleging disability beginning October 31, 2009, due to high 

blood pressure, back pain, and poor blood circulation. Plaintiff's 

claims were denied initially and upon reconsideration. Plaintiff 

filed a request for a hearing before an administrative law judge 

(ALJ). An ALJ held a video hearing on November 20, 2012, at which 

plaintiff appeared with her attorney and testified. A voca.tional 

expert, Steven R. Cardinal, 

On February 6, 

also appeared at the hearing and 

testified. 2013, the ALJ issued an unfavorable 

decision. The Appeals Council denied plaintiff's request for 

review, and therefore, the ALJ's decision became the final decision 

of the Commissioner for purposes of review. 

2 - OPINION AND ORDER 

Case 1:14-cv-01436-MA Document 18 Filed 09/01/15 Page 2 of 23
Plaintiff was born on July 20, 1960 and was 49 years old on 

the alleged onset of disability date. Plaintiff completed high 

school, and has past relevant work as a gas station attendant, 

construction maintenance worker, irrigator, ranch hand, and paving 

worker. 

THE ALJ'S DISABILITY ANALYSIS 

The Commissioner has established a five-step sequential 

process for determining whether a person is disabled. Bowen v. 

Yuckert, 482 U.S. 137, 140 (1987); 20 C.F.R. §§ 404.1520; 416.920. 

Each step is potentially dispositi ve. The claimant bears the 

burden of proof at steps one through four. See Valentine v. 

Commissioner Soc. Sec. Admin., 574 F.3d 685, 689 (9th Cir. 2009); 

Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999). At step 

five, the burden shifts to the Commissioner to show that the 

claimant can do other work which exists in the national economy. 

Hill v. Astrue, 698 F.3d 1153, 1161 (9th Cir. 2012). 

The ALJ concluded that plaintiff met the insured status 

requirements of the Social Security Act through December 31, 2014. 

A claimant seeking DIB benefits under Title II must establish 

disability on or prior to the last date insured. 42 u.s.c. § 

416(I) (3); Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005). 

At step one, the ALJ found that plaintiff has not engaged in 

substantial gainful activity since his alleged onset of disability. 

At step two, the ALJ found that plaintiff had the following severe 

3 - OPINION AND ORDER 

Case 1:14-cv-01436-MA Document 18 Filed 09/01/15 Page 3 of 23
impairments: status post caged fusion L5-Sl; lumbar degenerative 

joint disease with facet arthrosis L4-5 and L5-Sl without neural 

impingement; bulging disc Ll-2 without neural impingement; 

hypertension; and bradycardia with associated fatigue. At step 

three, the ALJ found that plaintiff's impairments, or combination 

of impairments, did not meet or medically equal a listed 

impairment. 

The ALJ assessed plaintiff with a residual functional capacity 

(RFC) to perform light work, however, plaintiff can lift and carry 

20 pounds occasionally and 10 pounds frequently; he can sit, stand, 

and walk six hours in each in an eight-hour day, with the option to 

sit or stand at will while performing essential functions; he can 

never climb ladders, ropes or scaffolds due to dizziness; he can 

occasionally climb ramps or stairs, crouch, stoop, kneel, and 

crawl; he can frequently balance; due to narcotic medication use 

and alieged dizziness from hypertension, he is to have no exposure 

to hazards such as unprotected heights or large moving machinery 

and he is limited to understanding and carrying out simple 

instructions. 

At step four, the ALJ found that plaintiff is unable to 

perform any past relevant work. At step five, the ALJ found that 

considering plaintiff's age, education, work experience, and 

residual functional capacity, jobs exist in significant numbers in 

the national economy that plaintiff can perform, such as 

4 - OPINION AND ORDER 

Case 1:14-cv-01436-MA Document 18 Filed 09/01/15 Page 4 of 23
assembler, order filler, and electronics worker. Accordingly, the 

ALJ concluded that plaintiff has not been under a disability under 

the Social Security Act from October 31, 2009 through the date of 

the decision. 

ISSUES ON REVIEW 

On appeal to this court, plaintiff contends the following 

errors were committed: (1) the ALJ improperly evaluated his 

testimony; ( 2) the ALJ improperly evaluated the opinion of his 

treating physician Richard P. Musselman, D.O.; and (3) the ALJ 

erred at step five. 

STANDARD OF REVIEW 

The district court must affirm the Commissioner's decision if 

the Commissioner applied proper legal standards and the findings 

are supported by substantial evidence in the record. 42 U.S.C. § 

405(g); Berry v. Astrue, 622 F.3d 1228, 1231 (9th Cir. 2010). 

"Substantial evidence is more than a mere scintilla but less than 

a preponderance; it is such relevant evidence as a reasonable mind 

might accept as adequate to support a conclusion." Hill, 698 F.3d 

at 1159 (internal quotations omitted); Valentine, 574 F.3d at 690. 

The court must weigh all the evidence, whether it supports or 

detracts from the Commissioner's decision. Martinez v. Heckler, 

807 F. 2d 771, 772 (9th Cir. 1986). The Commissioner's decision 

must be upheld, even if the evidence is susceptible to more than 

one rational interpretation. Batson v. Commissioner Soc. Sec. 

5 - OPINION AND ORDER 

Case 1:14-cv-01436-MA Document 18 Filed 09/01/15 Page 5 of 23
Admin., 359 F. 3d 1190, 1193 (9th Cir. 2004). If the evidence 

supports the Commissioner's conclusion, the Commissioner must be 

affirmed; "the court may not substitute its judgment for that of 

the Commissioner.n Edlund v. Massanari, 253 F.3d 1152, 1156 (9th 

Cir. 2001). 

I. Plaintiff's Credibility 

A. Standards 

To determine whether a claimant's testimony regarding 

subjective pain or symptoms is credible, an ALJ must perform two 

stages of analysis. 20 C.F.R. §§ 404.1529, 416.929. The first 

stage is a threshold test in which the claimant must produce 

objective medical evidence of an underlying impairment that could 

reasonably be expected to produce the symptoms alleged. Molina v. 

Astrue, 674 F.3d 1104, 1112 (9th Cir. 2012); Tommasetti v. Astrue, 

533 F.3d 1035, 1039 (9th Cir. 2008). At the second stage of the 

credibility analysis, absent affirmative evidence of malingering, 

the ALJ must provide clear and convincing reasons for discrediting 

the claimant's testimony regarding the severity of the symptoms. 

Carmickle v. Commissioner Soc. Sec. Admin., 533 F.3d 1155, 1166 

(9th Cir. 2008); Lingenfelter v. Astrue, 504 F.3d 1028, 1036 (9th 

Cir. 2007). 

The ALJ must make findings that are sufficiently specific to 

permit the reviewing court to conclude that the ALJ did not 

arbitrarily discredit the claimant's testimony. Ghanim v. Colvin, 

6 - OPINION AND ORDER 

Case 1:14-cv-01436-MA Document 18 Filed 09/01/15 Page 6 of 23
763 F.3d 1154, 1163 (9th Cir. 2014); Tommasetti, 533 F.3d at 1039. 

Factors the ALJ may consider when making such credibility 

determinations include the objective medical evidence, the 

claimant's treatment history, the claimant's daily activities, 

inconsistencies in testimony, effectiveness or adverse side effects 

of any pain medication, and relevant character evidence. Ghanim, 

763 F.3d at 1163; Tommasetti, 533 F.3d at 1039. 

At the hearing, plaintiff testified that he completed twelfth 

grade and last worked in October 2009 for a paving company fixing 

tires and was laid off because the job was seasonal. Plaintiff 

testified that he worked for the paving company for five or six 

months, and at the time he was laid off, he was experiencing 

difficulty. Plaintiff further testified that in December of 2009, 

he tried to cut down a Christmas tree for a friend, but had 

difficulty working the handsaw and experienced fatigue, back pain, 

and blurred vision. Tr. 65. 

Plaintiff testified that he takes medication for his back 

pain, high blood pressure, and migraine headaches, that he no 

longer has any side effects from the medications, and that they are 

helpful. Plaintiff testified that he has migraines approximately 

three times a week. 

Plaintiff stated that he can sit for 10 to 15 minutes before 

needing to get up because of tension in his back. Plaintiff 

estimated he can lift 20 pounds, can stand for 10 to 15 minutes 

7 - OPINION AND ORDER 

Case 1:14-cv-01436-MA Document 18 Filed 09/01/15 Page 7 of 23
before needing sit down, and can walk for 15 to 20 minutes before 

needing to rest. Plaintiff estimated that he lies down for 15 

minutes approximately five or six times per day. Plaintiff stated 

that his wife helps him with his shoes, and that he cannot carry 

groceries. 

Plaintiff testified that when he was drinking, he consumed a 

12 pack of beer on the weekend, but that he no longer drinks. 

Plaintiff stated that the tingling in his feet has improved since 

he stopped drinking. Plaintiff stated that he only drives for 

emergencies, such as when scheduling difficulties require him to 

take his wife to work. Tr. 58. Plaintiff testified that on an 

average day, his pain is a six or seven on a 10-point scale, and 

that after he takes Percodan, his pain is reduced to a two or 

three. 

Plaintiff testified that he went to the emergency room on New 

Year's Eve in 2011 because his blood pressure was out of control 

and plaintiff believes he suffered a heart attack that night, 

although one was not diagnosed. Tr. 62. Plaintiff also testified 

that a physician in Redding advised him he would need a pacemaker. 

Tr. 63. Plaintiff stated that he continues to experience tingling 

in his knees, and that he believes the tingling is caused by his 

back. Tr. 64. 

In a May 17, 2011 Exertion Questionnaire, plaintiff indicated 

that he is in constant pain that prevents him from doing any 

8 - OPINION AND ORDER 

Case 1:14-cv-01436-MA Document 18 Filed 09/01/15 Page 8 of 23
activity. Plaintiff reported that he cannot climb stairs, lift, 

carry, grocery shop, clean the house, or drive a car. Tr. 223-24. 

Plaintiff reported that he sleeps for only 45 minutes at a time due 

to pain, that he uses a brace, and that his wife helps him get 

dressed and put on his shoes. Tr. 225. 

In the decision, the ALJ concluded that plaintiff's testimony 

concerning the intensity, persistence and limiting effects of his 

limitations is not entirely credible. The ALJ cited numerous 

reasons, when taken together, constitute clear and convincing 

reasons to reject plaintiff's testimony. 

First, the ALJ identified several inconsistent statements. An 

ALJ may consider inconsistencies in a claimant's testimony or 

between the testimony and a claimant's activities when assessing 

credibility. Molina, 674 F.3d at 1112. And, an ALJ may discredit 

a claimant's testimony when a claimant reports participating in 

everyday activities which are transferrable to a work setting. Id. 

The ALJ discussed that at the hearing, plaintiff testified 

that he last worked in October 2009. The ALJ also noted 

plaintiff's testimony that he wanted to continue working despite 

being laid off, and plaintiff's explanation that he could no longer 

work because of fatigue and pain that he experienced when cutting 

down a Christmas tree for a friend in 2009. Tr. 29, 65. The ALJ 

found these statements inconsistent with plaintiff's January 2011 

report to Edward P. Richert, M. D., plaintiff's then treating 

9 - OPINION AND ORDER 

Case 1:14-cv-01436-MA Document 18 Filed 09/01/15 Page 9 of 23
physician, in which plaintiff described that working manual labor 

in the Auction Yard in December 2010 had "stirred up" his back pain 

and that he had become sweaty and short of breath when cutting down 

a Christmas tree the previous month. Tr. 29, 289. Dr. Richert 

observed that it had been three and a half years since he had seen 

plaintiff, despite advising plaintiff to return for a blood 

pressure re-check. Tr. 289. Thus, as the ALJ correctly noted, 

plaintiff's testimony that he stopped working in October 2009 was 

inconsistent with his report to Dr. Richert that he worked in the 

auction yard in December 2010, over a year after his alleged onset 

of disability date. The ALJ's findings are supported by 

substantial evidence, and the ALJ reasonably discounted plaintiff's 

testimony on this basis. 

The ALJ also noted that at the hearing and in a May 2011 

Exertion Questionnaire, plaintiff indicated that he no longer 

performs any household chores and needs assistance from his wife to 

get dressed and put on his shoes. Tr. 29-30, 54-56, 223-25. The 

ALJ found these statements contradicted by his April 17, 2011 

report to Shahid Ali, M.D., that he is capable of cooking, 

cleaning, vacuuming, and doing the dishes, and his February 2012 

report to Dr. Musselman that he is independent with grooming, selfcare, cooking, shopping, housework, driving, and using the stairs. 

Tr. 257, 384. Similarly, the ALJ found plaintiff's assertion that 

he needs assistance putting on his shoes contradicted by Dr. Ali's 

10 - OPINION AND ORDER 

Case 1:14-cv-01436-MA Document 18 Filed 09/01/15 Page 10 of 23
observations that plaintiff was able to walk without assistance, 

sit comfortably, and take his shoes off and put them on "without 

difficulty." Tr. 258. The ALJ's findings are wholly supported by 

substantial evidence. 

Having carefully reviewed the record, the ALJ appropriately 

discounted plaintiff's inconsistent statements about his ability to 

work, perform household chores, and his ability put on his shoes as 

they undermine his allegation of total disability. Id. at 1112-13; 

Turner v. Commissioner of Soc. Sec. Admin., 613 F. 3d 1217, 1225 

(9th Cir. 2010). Thus, I conclude that the numerous inconsistencies 

identified by the ALJ provide a clear and convincing reason for 

discounting plaintiff's credibility. 

Second, the ALJ discounted plaintiff's subjective complaints 

because they are inconsistent with the objective medical evidence. 

A lack of objective medical record support is an appropriate basis 

for rejecting a claimant's testimony. Chaudhry v. Astrue, 688 F.3d 

661, 671 (9th Cir. 2012). As the ALJ correctly indicated, there is 

a lengthy absence of treatment between plaintiff's alleged onset of 

disability in 2009 and treatment records in January 2011. Based on 

this gap, the ALJ reasonably inferred that plaintiff's impairments 

were not as disabling as alleged, and permissibly discounted 

plaintiff's credibility on this basis. See Id. at 670-71 (ALJ may 

properly rely upon a claimant's failure to seek or follow treatment 

when making an adverse credibility determination); Tommasetti, 533 

11 - OPINION AND ORDER 

Case 1:14-cv-01436-MA Document 18 Filed 09/01/15 Page 11 of 23
F.3d at 1039 (ALJ may rely on unexplained or inadequately explained 

failure to seek treatment to discredit claimant). 

Also, the ALJ noted that plaintiff's medical records regarding 

his blurry vision, dizziness, fatigue, and shortness of breath were 

generally limited. The ALJ discussed that plaintiff sought 

treatment from Dr. Richert for blurry vision, dizziness and 

shortness of breath in January 2011. Dr. Richert diagnosed 

hypertension and started plaintiff on blood pressure medication. 

Tr. 289. As the ALJ indicated, plaintiff reported some shortness 

of breath and dizziness a week later, but those symptoms resolved 

by January 31, 2011. Tr. 290-92. Dr. Richert's treatment notes 

indicate that plaintiff complained of occasional fatigue in 

February 2011 and a stress test was recommended to assess potential 

heart disease issues. Tr. 294. As the ALJ correctly indicated, 

the cardiac workup showed a mild valve regurgitation, but was 

otherwise objectively negative. Tr. 27, 295. 

As the ALJ discussed, plaintiff was diagnosed with bradycardia 

(low heart rate) with associated fatigue in August 2011 by Mohammed 

Khan, M.D., who noted that if plaintiff's symptoms worsened, he may 

require a pacemaker in the future. Tr. 29, 272. 

that plaintiff's Cardiolite stress test 

Dr. Khan reported 

was negative and 

echocardiogram results were normal. Tr. 273, 328, 330. Thus, as 

the ALJ reasonably inferred, the objective medical record does not 

12 - OPINION AND ORDER 

Case 1:14-cv-01436-MA Document 18 Filed 09/01/15 Page 12 of 23
support plaintiff's allegations of severe fatigue, angina, or 

shortness of breath. Tr. 27, 273, 295, 302, 332. 

Additionally, the ALJ noted that the objective medical 

evidence was inconsistent with plaintiff's allegations of disabling 

back pain radiating into his lower extremities. As the ALJ 

correctly indicated, on July 7, 2011, plaintiff established care 

with Dr. Musselman's clinic, meeting with Viginia Hassler, FNP. 

Ms. Hassler's notes indicate that plaintiff complained of low back 

pain radiating bilaterally down his legs, and that plaintiff had 

positive straight leg raises, with diminished reflexes. Ms. 

Hassler observed that plaintiff was so uncomfortable, he could not 

sit still on the examination table, shifting his weight from side 

to side. Tr. 319. In a follow-up visit with Dr. Musselman on July 

21, 2011, plaintiff was advised to stop drinking, and Dr. Musselman 

found plaintiff's heel-to-toe walk normal, with a normal gait. Tr. 

315. Dr. Musselman ordered nerve conduction tests to assess 

plaintiff's complaints of bilateral neuropathy. As the ALJ 

correctly indicated, there was no evidence of radiculopathy or 

peripheral neuropathy. Tr. 27, 315, 333. The ALJ also noted that 

Dr. Ali noted positive straight leg testing with spasms, but did 

not assess any functional limitations on standing, walking, 

sitting, and cited a heavy range of work for lifting and carrying. 

Tr. 30, 257-60. These findings are supported by substantial 

13 - OPINION AND ORDER 

Case 1:14-cv-01436-MA Document 18 Filed 09/01/15 Page 13 of 23
evidence, and the ALJ reasonably discounted the severity of 

plaintiffs subjective complaints. 

Additionally, the ALJ found plaintiff's allegations of "heart 

problems" inconsistent with the objective medical record. To be 

sure, at the hearing, plaintiff insisted he experienced a heart 

attack on December 31, 2011. Tr. 56. As noted above, the ALJ 

thoroughly discussed the negative cardiac testing performed in 

March 2011 and August 2011, and correctly stated the record was 

silent with respect to a cardiac condition occurring on New Year's 

Eve. Tr. 60-62. Based on the absence of objective evidence, the 

ALJ legitimately discounted plaintiff's credibility on this basis. 

As plaintiff highlights, the ALJ erred in discounting 

plaintiff's credibility based on a 2010 pre-employment drug 

screening test. The drug screening test does not pertain to 

plaintiff, yet was erroneously included in plaintiff's medical 

records before the ALJ. 1 Additionally, the ALJ found plaintiff's 

allegations of disabling back pain since 2009 inconsistent with a 

July 2011 report to Dr. Richert in which plaintiff stated that 

ibuprofen in the morning and hydrocodone in the evening "allows him 

to be active working during the day." Tr. 285. In this regard, 

the ALJ incorrectly attributed plaintiff's report to Dr. Richert as 

occurring in July 2011. A review of the record shows that 

1

The erroneous record has since been removed from the 

transcript. Tr. 251. 

14 - OPINION AND ORDER 

Case 1:14-cv-01436-MA Document 18 Filed 09/01/15 Page 14 of 23
plaintiff made this report to Dr. Richert on April 26, 2007. Tr. 

285. Thus, this particular finding is not supported by substantial 

evidence, and the ALJ erred in relying on this statement to 

discount plaintiff's credibility. 

These errors, however, do not detract from the ALJ's citation 

to the numerous other inconsistencies in plaintiff's testimony, the 

unexplained absence of treatment, and a lack of objective support 

in the overall medical record, findings that are wholly supported 

by substantial evidence. See Carmickle, 533 F.3d at 1163 (ALJ's 

error does not negate the validity of the ALJ's adverse credibility 

determination) . I conclude that when the remaining reasons are 

taken together, they readily provide clear and convincing reasons 

to discredit plaintiff, Therefore, any errors in the ALJ' s 

credibility determination are harmless. 

II. Medical Evidence 

A. Standards 

In general, the opinion of a treating physician is given more 

weight than the opinion of an examining physician, and the opinion 

of an examining physician is afforded more weight than the opinion 

of a nonexamining physician. Ghanim, 763 F.3d at 1160; Garrison v. 

Colvin, 759 F.3d 995, 1012 (9th Cir. 2014); Orn v. Astrue, 495 F.3d 

625, 632 (9th Cir. 2007). "If a treating physician's opinion is 

well-supported by medically acceptable clinical and laboratory 

diagnostic techniques and is not inconsistent with the other 

15 - OPINION AND ORDER 

Case 1:14-cv-01436-MA Document 18 Filed 09/01/15 Page 15 of 23
substantial evidence in [the] case record, [it will be given] 

controlling weight." Orn, 4 95 F. 3d at 631 (internal quotations 

omitted) (alterations in original); 20 C. F. R. § 416. 927 (c). To 

reject the uncontradicted opinion of a treating physician, the ALJ 

must provide "clear and convincing reasons that are supported by 

substantial evidence." Bayliss v. Barnhart, 427 F.3d 1211, 1216 

(9th Cir. 2005). 

If the treating physician's opinion is contradicted, the ALJ 

must consider how much weight it is entitled to considering the 

factors in 20 C.F.R. § 416.927(c) (2-6). The factors include the 

length of the treatment relationship, the frequency of examination, 

the nature and supportability of the opinion, and its consistency 

with other evidence in the record as a whole. 20 C.F.R. § 

416.927(d) (2-6); Ghanim, 763 F.3d at 1161. If a treating or 

examining doctor' s opinion is contradicted by another doctor's 

opinion, it may be rejected by specific and legitimate reasons. 

Taylor v. Commissioner Soc. Sec. Admin., 659 F.3d 1228, 1232 (9th 

Cir, 2011). However, "[t]he ALJ need not accept the opinion of any 

physician, including a treating physician, if that opinion is 

brief, conclusory, and inadequately supported by clinical 

findings." Thomas v. Barnhart, 278 F. 3d 94 7, 957 (9th Cir. 2002) . 

B. Analysis - Dr. Musselman 

Dr. Musselman treated plaintiff from July 2011 through October 

2012. On October 15, 2011, Dr. Musselman authored a medical source 

16 - OPINION AND ORDER 

Case 1:14-cv-01436-MA Document 18 Filed 09/01/15 Page 16 of 23
statement in which he described that plaintiff has an antalgic 

gait, dizziness and fatigue due to high blood pressure and 

bradycardia, and that plaintiff can sit for zero to two hours a 

day, stand or walk for two hours a day, and must alternate between 

sitting and standing every 60 minutes. Tr. 356. Dr. Musselman 

assessed that plaintiff can frequently lift and carry less than 10 

pounds, occasionally lift and carry 20 pounds, and occasionally 

perform pushing/pulling activities with his upper and lower 

extremities. Tr. 356. Dr. Musselman provided that plaintiff can 

never climb ramps, scaffolds, ladders, or ropes, and is limited to 

occasional reaching in all directions. Tr 356-57. Dr. Musselman 

also opined that plaintiff requires unscheduled breaks, walking 

breaks and reclining breaks for one to two hours each day. Tr. 

357. 

On October 25, 2012, Dr. Musselman authored a letter in which 

he indicated that plaintiff suffers from significant migraine 

cephalgia and osteoarthritis, labile hypertension, and that 

plaintiff's "general anxiety disorder is quite high when his 

pressure rises and he's in pain." Tr. 392. Continuing, Dr. 

Musselman provided that he has prescribed opioids for plaintiff's 

pain, and that he has "quasi control" of plaintiff's migraines. 

Tr. 392. Dr. Musselman opined that plaintiff is not employable and 

described the following functional limitations: plaintiff can 

stand, walk, or sit for zero to two hours a day, cannot climb 

17 - OPINION AND ORDER 

Case 1:14-cv-01436-MA Document 18 Filed 09/01/15 Page 17 of 23
stairs, ladders, or scaffolds, his attention span is "quite short 

and his memory is limited." Tr. 392. 

Dr. Musselman' s opinion was contradicted by treating physician 

Dr. Richert, examining physician Dr. Ali, and agency non-examining 

physicians A. Pan, M.D., and S. Clancey, M.D. Tr. 82, 104, 257-60, 

304. Therefore, the ALJ needed only to provide specific and 

legitimate reasons backed by substantial evidence, for discounting 

Dr. Musselman's opinion. 

meets this standard. 

I conclude the ALJ's decision readily 

The ALJ discounted Dr. Musselman's opinion that plaintiff is 

unable to perform full-time sedentary work for two reasons: (1) it 

is inconsistent with Dr. Musselman's own treatment notes; and (2) 

it is inconsistent with objective medical findings and imaging. As 

the ALJ correctly detailed, Dr. Musselman' s 2011 opinion that 

plaintiff walks with an antalgic gait is contradicted by his own 

treatment notes. The ALJ' s finding is wholly supported by 

substantial evidence in the record. To be sure, the on July 21, 

2011, Dr. Musselman observed normal heel-toe walking and "no 

antalgic gait" and on July 27, 2012, again observed "[t)he gait is 

normal." Tr. 315, 395. 

Additionally, the ALJ found Dr. Musselman's 2012 opinion that 

plaintiff has limitations due to anxiety and memory issues are 

completely unsupported by Dr. Musselman's treatment notes. As the 

ALJ correctly highlighted, Dr. Musselman's treatment notes are 

18 - OPINION AND ORDER 

Case 1:14-cv-01436-MA Document 18 Filed 09/01/15 Page 18 of 23
silent with regard to any mental health issues. I reject 

plaintiff's contention that Dr. Musselman diagnosed plaintiff with 

an anxiety disorder. See Plaintiff's Opening Brief (#13), p. 8-9. 

As plaintiff indicates, in a one-time visit with FNP Hassler on 

July 7, 2011, the nurse described plaintiff's mood as anxious. Tr. 

318-19. However, at no point do Dr. Musselman's treatment notes 

reflect a diagnosis of an anxiety disorder. As the ALJ correctly 

indicated, no treatment records indicate an anxiety disorder 

diagnosis and Dr. Musselman's treatment notes undercut plaintiff's 

current assertion. Tr. 31. On the contrary, Dr. Musselman's July 

27, 2012 treatment note shows plaintiff's "mood/affect is 

appropriate" and an August 27, 2012, treatment note indicates 

plaintiff was "negative for anxiety, depression and sadness." Tr. 

394 (emphasis added), Tr. 395. Additionally, at the hearing, 

plaintiff's attorney affirmatively indicated that plaintiff was not 

alleging disability based on any psychological impairment. Tr. 45. 

Furthermore, at Step Two, the ALJ found any alleged impairment 

based on plaintiff's alleged anxiety or depression non-medically 

determinable - a finding unchallenged by plaintiff. 

In short, the ALJ's finding that Dr. Musselman's opinions are 

uncut by his own treatment notes is supported by substantial 

evidence in the record, and the ALJ reasonably discounted Dr. 

Musselman's opinions. I conclude that on the record before me, 

19 - OPINION AND ORDER 

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this reason alone amounts to a specific and legitimate basis for 

discounting Dr. Musselman's opinions. Thomas, 278 F.3d at 957. 

The ALJ' s second reason for discounting Dr. Musselman' s 

opinion also is supported by substantial evidence in the record. 

As the ALJ noted, objective examination findings, testing and 

imaging are inconsistent with the severity of limitations opined by 

Dr. Musselman. As the ALJ detailed, Dr. Musselman's October 2011 

opinion that plaintiff is limited to occasional pushing, pulling, 

and reaching is unsupported. On the contrary, Dr. Musselman' s 

treatment notes demonstrate that in July· 2012, plaintiff has 

"grossly normal tone and muscle strength" and "full range of motion 

of all major muscle groups and joints." Tr. 392. On August 18, 

2011, plaintiff's musculoskeletal exam shows flattening lumbar 

spine with "para vertebral tenderness." Tr. 396. However, in 

August 2012, Dr. Musselman's musculoskeletal examination of 

plaintiff is negative for arthalgias and myalgias. Tr. 394. Thus, 

the ALJ reasonably concluded that Dr. Musselman's push/pull 

limitation was unsupported by objective examination findings and 

treatment notes. 

Contrary to plaintiff's assertions, Dr. Musselman' s opinion is 

not consistent with the overall diagnostic record. And, as the ALJ 

discussed, plaintiff's imaging and objective testing in the record 

as a whole is inconsistent with the severity of limitations 

described by Dr. Musselman. Tr. 27, 31. Imaging of plaintiff's 

20 - OPINION AND ORDER 

Case 1:14-cv-01436-MA Document 18 Filed 09/01/15 Page 20 of 23
back has shown mild arthrosis without impingement, nerve conduction 

tests have been normal, and cardiac stress testing was negative. 

Tr. 280, 295, 330, 334. As discussed in detail above, given the 

lack objective findings and imaging supporting the severity Dr. 

Musselman's restrictions, the ALJ reasonably discounted his 

opinions on the basis of these significant discrepancies. 

I disagree with plaintiff's argument that the ALJ discounted 

Dr. Musselman's opinion based on a lack of contact with plaintiff. 

Although the ALJ did state that Dr. Musselman's year and half long 

treatment of plaintiff was "without regular contact," the ALJ also 

indicated that the "most significant issue [s]" with Dr. Musselman' s 

opinions were the "lack of objective findings per his own treatment 

notes on examinations and imaging." Tr. 31. The ALJ then detailed 

the numerous, significant inconsistencies between Dr. Musselman's 

own examination treatment notes and his opinions, and the lack of 

objective findings to support the severity of restrictions he 

endorsed. Even assuming arguendo that the ALJ erroneously erred in 

relying on a lack of contact as a basis for discounting Dr. 

Musselman's opinion, the error would be harmless. The 

inconsistencies between Dr. Musselman's treatment notes and his 

opinions alone are a specific and legitimate reason on the record 

before me to justify giving those opinions less weight. 2 

2

In the decision, the ALJ erroneously attributed a May 20, 

2011 opinion to Dr. Musselman, when it actually was authored Dr. 

Richert. Tr. 30. The ALJ gave the May 2011 opinion little 

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Therefore, I conclude the ALJ provided specific and legitimate 

reasons for discounting Dr. Musselman's opinions, backed by 

substantial evidence in the record as a whole, and the ALJ' s 

evaluation of the medical evidence will not be disturbed. 

III. Step Five 

An ALJ' s RFC need only incorporate credible limitations 

supported by substantial evidence in the record and must be 

consistent with the restrictions identified in the medical 

testimony. Stubbs-Danielson v. Astrue, 539 F.3d 1169, 1175-76 (9th 

Cir. 2008); see Bayliss, 427 F.3d at 1217 (the ALJ is only required 

to identify specific, credible limitations in the RFC; "[p] reparing 

a function-by-function analysis for medical conditions or 

impairments that th.e ALJ found neither credible nor supported by 

the record is unnecessaryn}. 

I have not identified any harmful error by the ALJ in 

assessing plaintiff's credibility or evaluating the medical 

testimony, and therefore conclude that the RFC included all 

credible limitations. Because this determination is reasonable in 

light of the entire record and is supported by substantial 

weight because the ALJ concluded that plaintiff was more limited 

than assessed in the May 20, 2011 opinion. Accordingly, I 

conclude any error in attributing that opinion to Dr. Musselman 

instead of Dr. Richert was harmless. See Treichler v: 

Commissioner of Social Security Admin., 775 F.3d 1090, 1099 (9th 

Cir. 2014) (noting an error may be harmless if it is 

"inconsequential to the ultimate nondisability determinationn or 

if "the agency's path may be reasonably discerned, even if the 

agency explains its decision with less than ideal clarityn). 

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evidence, the ALJ's RFC and Step Five finding are affirmed. See 

Osenbrock v. Apfel, 240 F.3d 1157, 1163-65 (9th Cir. 2001); see 

also Burch, 400 F.3d at 679 (ALJ's decision must be upheld where 

evidence is susceptible to more than one rational interpretation) . 

CONCLUSION 

For the reasons set forth above, the Commissioner's final 

decision denying benefits to plaintiff is AFFIRMED. This action is 

DISMISSED. 

IT IS SO ORDERED. 

DATED this _i____ day of SEPTEMBER, 2015. 

Malcolm F. Marsh 

United States District Judge 

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