IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF OREGON 

KAREN L. GIBSON 

Plaintiff, 

v. 

COMMISSIONER OF SOCIAL 

SECURITY ADMINISTRATION 

Defendant. 

GEORGE J. WALL 

Law Offices of George J. Wall 

1336 E. Burnside, Suite 130 

Portland, OR 97214 

Attorney for Plaintiff 

JANICE E. HEBERT 

Assistant United States Attorney 

1000 S.W. Third Ave., Suite 600 

Portland, OR 97204 

MARTHA A. BODEN 

Social Security Administration 

Off ice of the General Counsel 

701 Fifth Ave., Suite 2900, M/S 221A 

Seattle, WA 98104-7075 

Attorneys for Defendant 

1 - OPINION AND ORDER 

Case No. 3:14-cv-01217-MA 

OPINION AND ORDER 

Case 3:14-cv-01217-MA Document 26 Filed 08/18/15 Page 1 of 19
MARSH, Judge 

Plaintiff Karen L. Gibson seeks judicial review of the final 

decision of the Commissioner of Social Security denying her 

application for Disability Insurance Benefits (DIB} under Title II 

of the Social Security Act, 42 U.S.C. §§ 401-403. This Court has 

jurisdiction pursuant to 42 U.S.C. §§ 405(g}. For the reasons that 

follow, I affirm the final decision of the Commissioner. 

FACTUAL AND PROCEDURAL BACKGROUND 

Plaintiff protectively filed an application for DIB on August 

10, 2011, alleging disability beginning January 1, 2010, due to 

neck pain; back pain; depression; post-traumatic stress disorder 

(PTSD}; attention-deficit hyperactivity disorder (ADHD}; colitis; 

anxiety; and arthritis. Plaintiff meets the insured status 

requirements for a DIB application through May 31, 2012. 

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 hearing on June 11, 

2013, 1 at which plaintiff appeared with her attorney and testified. 

A vocational expert, Fred Cutler, also appeared at the hearing and 

testified. On June 20, 2013, the ALJ issued an unfavorable 

1 The Commissioner provided a supplemental transcript of the 

oral hearing on June 11, 2013. However, the record contains a 

November 6, 2012 hearing transcript involving another claimant. 

See Transcript of Record (ECF No. 9) ("Tr•) at 42-74. All 

citations to plaintiff's June 11, 2013 hearing will be to the 

supplemental record. See Tr. 832-863 (ECF No. 10). 

2 - OPINION AND ORDER 

Case 3:14-cv-01217-MA Document 26 Filed 08/18/15 Page 2 of 19
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. 

Born in 1954, plaintiff was 58 years old on the date of the 

ALJ's unfavorable decision. Plaintiff completed several years of 

college. Plaintiff has past relevant work as a childcare monitor 

and nursery school attendant. 

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. § 416.920. Each step 

is potentially dispositive. The claimant bears the burden of proof 

at steps one through four. 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). 

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

substantial gainful activity since January 1, 2010. At step two, 

the ALJ found that plaintiff had the following severe impairments: 

polysubstance abuse (including present and past use of heroin, 

opiates, inhalants, cocaine, sedatives, anxiolytics, and 

hypnotics); ADHD; PTSD; anxiety disorder; borderline personality 

3 - OPINION AND ORDER 

Case 3:14-cv-01217-MA Document 26 Filed 08/18/15 Page 3 of 19
disorder; back strain and pain; and obesity. At step three, the ALJ 

found that plaintiff's impairment or combination of impairments, 

did not meet or medically equal a listed impairment. 

Based on all of the impairments, including plaintiff's 

substance use disorders., the ALJ found that plaintiff is capable of 

a residual functional capacity of medium work as defined as 20 

C.F.R. § 404.1567(c) but with the following additional limitations. 

Plaintiff may frequently stoop, kneel crouch, and crawl, but may 

never climb ladders, ropes, and scaffolds. She is fully capable of 

learning, remembering, and performing simple, routine, and 

repetitive one and two-step work tasks, involving simple work 

instructions, which are performed in a low stress work environment, 

defined as one in which there is a regular production pace, few 

workplace changes, and no "over the shoulder" supervision. 

Plaintiff may have occasional and superficial contact with 

supervisors and coworkers, but should have minimal to no contact 

with the public. Due to a combination of severe physical and mental 

impairments, and the impact of polysubstance abuse, she is unable 

to perform routine tasks on a regular and continuing basis, eight 

hours a day, five days a week, for a 40-hour workweek or equivalent 

schedule. 

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

perform her past relevant work. At step five and considering all of 

her impairments including substance abuse, the ALJ concluded that 

4 - OPINION AND ORDER 

Case 3:14-cv-01217-MA Document 26 Filed 08/18/15 Page 4 of 19
considering plaintiff's age, education, work experience, and 

residual functional capacity, there are no jobs that exist in 

significant numbers in the national economy that plaintiff can 

perform. 

An otherwise disabled claimant may not receive benefits if 

drug addition or alcoholism is a contributing factor material to 

the determination that she is disabled. 42 U.S.C. § 

11328 (a) (3) (J). The ALJ properly repeated the disability 

determination analysis to determine whether he would still find 

plaintiff disabled if she stopped using drugs. 20 C.F.R. § 

404.1535; The ALJ found that if plaintiff abstained from substance 

abuse, she would have the residual functional capacity to perform 

medium work as defined in 20 C.F.R. § 404.1567(c) except she may 

frequently stoop, kneel, crouch, and crawl, but may never climb 

ladders, ropes, and scaffolds. Plaintiff is capable of learning, 

remembering, and performing simple, routine, and repetitive one and 

two-step work tasks, involving simple work instructions, which are 

performed in a low stress work environment. Plaintiff may have 

occasional and superficial contact with supervisors and coworkers, 

but should have minimal to no contact with the public. Tr. 27. 

At step four without consideration of drug use, the ALJ found 

that plaintiff is unable to perform her past relevant work. At step 

five and excluding plaintiff's substance abuse, the ALJ concluded 

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

5 - OPINION AND ORDER 

Case 3:14-cv-01217-MA Document 26 Filed 08/18/15 Page 5 of 19
residual functional capacity, there are jobs that exist in 

significant numbers in the national economy that plaintiff can 

perform such as hand packager; agricultural produce sorter; and day 

worker. Tr. 33. 

The ALJ concluded that plaintiff's drug use is a contributing 

factor material to the determination of disability because 

plaintiff would not be disabled if she ceased using drugs. 

Accordingly, because substance use disorder is a contributing 

factor material to the determination of disability, plaintiff has 

not been under a disability under the Social Security Act from 

January 1, 2010, through the date of the decision. 

ISSUES ON REVIEW 

On appeal to this court, plaintiff contends the following 

errors were committed: ( 1} the ALJ erred in evaluating treating 

physician's opinion and (2) the ALJ's decision is not supported by 

substantial evidence when considering the new opinion evidence 

submitted to the Appeals Council. 

STANDARD OF REVIEW 

The district court must affirm the Commissioner's decision if 

the Commissioner applied the 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 

6 - OPINION AND ORDER 

Case 3:14-cv-01217-MA Document 26 Filed 08/18/15 Page 6 of 19
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. 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." Edlund v. Massanari, 253 F.3d 1152, 1156 (9th Cir. 

2001) . 

DISCUSSION 

I. The ALJ Did Not Err in Assessing Treating Source Opinion 

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 v. Colvin, 763 F.3d 1154, 1160 

(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 substantial evidence in [the) case 

record, [it will be given) controlling weight." Orn, 495 F.3d at 

631 (internal quotations omitted) (alterations in original); 20 

7 - OPINION AND ORDER 

Case 3:14-cv-01217-MA Document 26 Filed 08/18/15 Page 7 of 19
C.F.R. § 404.1527(c). To reject the uncontroverted opinion of a 

treating or examining physician, the ALJ must present clear and 

convincing reasons. Bayliss v. Barnhart, 427 F.3d 1211, 1216 (9th 

Cir. 2005). 

If a treating or examining physician's opinion is contradicted 

by another physician's opinion, it may be rejected by specific and 

legitimate reasons. Tonapetyan v. Halter, 242 F.3d 1144, 1148 (9th 

Cir. 2001). When evaluating conflicting opinions, an ALJ is not 

required to accept an opinion that is not supported by clinical 

findings, or is brief or conclusory. Id. at 1149. 

Plaintiff argues the ALJ failed to provide specific and 

legitimate reasons for discounting the opinions of treating 

physician Charles Elder, M.D. Plaintiff contends that Dr. Elder's 

opinions regarding her functioning should be credited as true 

because Dr. Elder was able to review her extensive medical records, 

and the objective medical evidence supports his opinions. Dr. Elder 

began treating plaintiff in February 2011; plaintiff reported low 

back pain in April 2011. Tr. 458, 457. I disagree. 

Dr. Elder provided two opinions regarding plaintiff's 

functioning throughout the relevant period. First, in a March 28, 

2013 letter, Dr. Elder opined that plaintiff has chronic back pain 

that would prevent her from sitting for more than 45 minutes 

without a ten minute break to stand. Tr. 785. Dr. Elder also noted 

that due to her back, hip, and right foot pain, plaintiff is unable 

8 - OPINION AND ORDER 

Case 3:14-cv-01217-MA Document 26 Filed 08/18/15 Page 8 of 19
to stand for more than three hours in an eight hour workday. Id. 

Dr. Elder further opined that as a result of her back pain, 

plaintiff would be unable to lift more than twenty pounds 

occasionally. Finally, Dr. Elder generally opined that "the 

combination of plaintiff's physical and mental conditions would 

create a significant barrier to her sustaining competitive 

employment at eight hours a day, five days a week." Id. 

Second, in a May 19, 2013 physical assessment, Dr. Elder 

opined that plaintiff can sit for approximately four hours and 

stand and walk two hours in an eight hour workday. Tr. 786. Dr. 

Elder also opined that plaintiff would require alternating 

positions, would need a two hour unscheduled break, and is capable 

of a low stress job. Tr. 787-88. Dr. Elder further assessed that 

plaintiff could occasionally perform certain postural activities 

such as squatting, bending at the waist, crawling, climbing, 

balancing, and stooping. Tr. 788. Finally, Dr. Elder opined that 

plaintiff would likely be absent from work two days a month due to 

her symptoms. Tr. 789. 

Because Dr. Elder's opinions were contradicted, 2 the ALJ was 

required to provide specific and legitimate reasons, backed by 

substantial evidence, to reject his opinion. Bayliss, 427 F.3d at 

2 In a December 12, 2011 physical RFC assessment, Alnoor 

Virji, M.D., a nonexamining physician opined that plaintiff can 

lift and carry 25 pounds frequently and 50 pounds occasionally, 

and sit, walk, and stand for six hours each in an eight-hour 

workday. Tr. 131-32. 

9 - OPINION AND ORDER 

Case 3:14-cv-01217-MA Document 26 Filed 08/18/15 Page 9 of 19
1216. In the decision, the ALJ gave Dr. Elder's opinions "limited 

weight" because the opinions are: unsupported by the objective 

medical and treatment record; inconsistent with other medical 

opinions in the record; and lack an objective explanation. Having 

carefully reviewed the record, I conclude that the ALJ's reasoning 

is supported by substantial evidence. 

In the decision, the ALJ indicated that the objective medical 

record does not support Dr. Elder' s opinions. For example, an 

August 2010 x-ray of the thoracic spine revealed mild arthritic 

lipping with no other notable abnormalities. Tr. 481. A September 

2011 x-ray of the spine revealed mild to moderate degenerative 

changes. Tr. 482. An April 2011 x-ray of the left foot documented 

mild hypertrophic changes of the distal first and fifth metatarsal 

and mild degenerative changes of the first MTP joint. Tr. 569. 

Similarly, objective findings in the medical record are not 

consistent with Dr. Elder's opinions. A February 2010 examination 

was entirely normal with a smooth and coordinated gait. Tr. 467. In 

a June 2010 examination, plaintiff's treating doctor noted good 

range of motion in the cervical and thoracic spine, some diffuse 

tender points, intact upper and lower extremity strength, normal 

gait, and mild tenderness of the right foot. Tr. 463. Another 

examination in September 2011 also revealed normal findings. Tr. 

509. In fact, plaintiff's treatment notes revealed generally normal 

10 - OPINION AND ORDER 

Case 3:14-cv-01217-MA Document 26 Filed 08/18/15 Page 10 of 19
objective findings. See generally Tr. 462, 475, 531, 569, 592, 609, 

682. 

Moreover, Dr. Elder's own treatment notes do not support his 

opinions. For example, in February 2011, Dr. Elder noted a normal 

examination. Tr. 458. In April 2011, Dr. Elder noted a nontender 

. back and a chronic deformity of the left small toe. Tr. 457. After 

the April 2011 examination, plaintiff did not see Dr. Elder until 

January 2013 for a rash. Tr. 647. Plaintiff had one more 

examination with Dr. Elder, in May 2013. At the time, Dr. Elder 

documented tenderness in the back area mostly on the right side and 

a positive patrick maneuver in the hip examination. Tr. 822. His 

limited examination findings do not support his opinions. 3 

Contrary to plaintiff's argument, the ALJ provided a 

comprehensive discussion of the medical evidence. See Vincent on 

Behalf of Vincent v. Heckler, 739 F.2d 1393, 1394-95 (9th Cir. 

1984) (the ALJ need not discuss all evidence presented but rather 

must explain why "significant probative evidence has been 

rejected"). While plaintiff provides an alternative interpretation 

of the medical evidence" I conclude that the ALJ made logical 

3 Plaintiff argues that Dr. Elder's four year treatment 

relationship with plaintiff supports giving his opinion "great 

weight." While length of treatment relationship is one reason to 

accord a physician's opinion "great weight," frequency of 

examinations is also an important factor to consider in weighing 

treating physician opinions. 20 C.F.R. 404.1527{c)(2)(i). 

Notably, Dr. Elder only examined plaintiff on three occasions for 

back pain in a three year span. 

11 - OPINION AND ORDER 

Case 3:14-cv-01217-MA Document 26 Filed 08/18/15 Page 11 of 19
inferences from the record to support his conclusions. Because the 

ALJ's interpretation is rational and is supported by substantial 

evidence in the record as a whole, it will not be disturbed. See 

e.g., Molina v. Astrue, 674 F.3d 1104, 1111 (9th Cir. 2012) (ALJ's 

findings must be upheld if they are supported by reasonable 

inferences drawn from the record) . 

Next, the ALJ discredited Dr. Elder's opinions on the basis 

that they are inconsistent with other supported medical opinions in 

the record. Specifically, the ALJ gave "significant weight" to the 

medical opinion of examining physician Peter Pfeiffer, M.D. because 

his examination findings support his opinion. Tr. 31. In a 

September 2011 consultative examination, Dr. Pfeiffer observed 

normal grip strength, coordination, and a negative straight leg 

raise test. Tr. 484-85. Dr. Pfeiffer also noted full active range 

of motion in all joints of the body, including the back and right 

foot and very mild lumbar paraspinous muscle tenderness 

bilaterally. Dr. Pfeiffer diagnosed a mild lumbar strain and 

"extremely mild early osteoarthritis" in the right foot and opined 

that both cause little to no limitation. Tr. 485. Dr. Pfeiffer 

specifically assessed that plaintiff can lift or carry 25 pounds 

continuously; sit without limitation; stand or walk for eight hours 

in an eight-hour workday; and frequently climb, bend, stoop, 

crouch, crawl or kneel. Id. 

12 - OPINION AND ORDER 

Case 3:14-cv-01217-MA Document 26 Filed 08/18/15 Page 12 of 19
Plaintiff argues that the ALJ's reliance on Dr. Pfeiffer's 

opinion to discount Dr. Elder's opinions is misplaced. 

Specifically, plaintiff argues that Dr. Pfeiffer opined that 

plaintiff could only lift up to 25 pounds. Plaintiff further 

asserts that the ALJ assessed in the RFC finding that plaintiff 

could lift up to 50 pounds, which is inconsistent with Dr. 

Pfeiffer's assessment. Plaintiff's argument fails. 

Plaintiff misstates Dr. Pfeiffer's opinion of her ability to 

lift weight. The ALJ's RFC finding is consistent with Dr. 

Pfeiffer' s assessment. Dr. Pfeiffer opined that plaintiff "can lift 

or carry 25 pounds continuously." Tr. 485 (emphasis added}. 

Similarly, the ALJ found that plaintiff can lift and carry 25 

pounds frequently and 50 pounds occasionally. Tr. 27. The 

Dictionary of Occupational Titles (DOT} defines continuously or 

constantly as an activity performed two-thirds or more in an eighthour workday and frequently as an activity performed one-third to 

two-thirds in an eight-hour workday. Selected Characteristics of 

Occupations Defined in the Revised Dictionary of Occupational 

Titles, Appendix C, (1993). Here, Dr. Pfeiffer' s lift and carry 

assessment exceeds the RFC finding of frequently lifting and 

carrying 25 pounds. Indeed, Dr. Pfeiffer did not opine that 25 

pounds is the maximum weight plaintiff is able to lift and carry. 

Because Dr. Pfeiffer's well-supported opinion is consistent with 

13 - OPINION AND ORDER 

Case 3:14-cv-01217-MA Document 26 Filed 08/18/15 Page 13 of 19
the ALJ's RFC finding, the ALJ properly relied on it to discount 

Dr. Eider's opinions. 

Moreover, the ALJ appropriately relied on the opinion of 

nonexamining physician, Alnoor Virji, M.D. In a December 12, 2011 

physical RFC assessment, Dr. Virji opined that plaintiff is capable 

of performing medium work as defined in 20 C.F.R. § 404.1567(c). 

Tr. 131-32. Dr. Virj i's opinion is consistent with the medical 

record, including the objective findings and Dr. Pfeiffer's opinion 

and examination. See generally Tr. 458, 481-82, 484-85, 531, 569, 

592, 647. Despite plaintiff's assertion, the ALJ appropriately 

relied in part on Dr. Virji's opinion because it is supported by 

substantial evidence such as objective medical findings. See 

Andrews v. Shalala, 53 F. 3d 1035, 1041 (9th Cir. 1995) (the opinion 

of a nonexamining physician "may serve as substantial evidence when 

[it is) supported by other evidence in the record" and consistent 

with it). 

Finally, the ALJ discredited Dr. Eider's opinions because he 

did not provide an objective basis for his opinions. When 

evaluating conflicting opinions, an ALJ is not required to accept 

an opinion that is not supported by clinical findings, or is brief 

or conclusory. Tonapetyan, 242 F.3d at 1149. As discussed above, 

Dr. Eider's opinions are not supported by his objective examination 

findings nor by any other medical findings in the record. In fact, 

Dr. Elder does not cite to any medical findings to support his 

·14 - OPINION AND ORDER 

Case 3:14-cv-01217-MA Document 26 Filed 08/18/15 Page 14 of 19
opinions. Tr. 785-86. While plaintiff's pain symptoms may support 

Dr. Elder's opinions, the ALJ found plaintiff not credible. To be 

sure, plaintiff does not now challenge the ALJ's adverse 

credibility determination. The ALJ cited to plaintiff's continued 

work activity, a prior conviction for theft,' and a mild treatment 

regime as reasons to discount her severe pain allegations. I have 

carefully reviewed the record in its entirety, and conclude that 

the ALJ's determination is readily supported by substantial 

evidence in the record. Accordingly, the ALJ properly discounted 

Dr. Elder's opinions on this ground. 

In summary, I conclude that the ALJ did not err in evaluating 

Dr. Elder' s opinions and has provided specific and legitimate 

reasons backed by substantial evidence in the record as a whole, 

for according his opinions limited weight. 

II. New Evidence Does Not Undermine the ALJ's Decision 

This court has a duty to consider the entire record before it, 

including new evidence submitted to the Appeals Council and made 

part of the overall administrative record. "When the Appeals 

Council considers new evidence in deciding whether to review a 

decision of the ALJ, that evidence becomes part of the 

4 See Tonapetyan, 242 F.3d at 1148 ("ALJ may use ordinary 

techniques of credibility evaluation, such as considering the 

claimant's reputation for truthfulness"); Richey v. Colvin, No. C 

12-4988 LB, 2013 WL 5228185, at *20 (N.D. Cal. Sept. 17, 

2013) ("in finding a claimant's testimony not credible, an ALJ may 

rely on convictions for crimes of moral turpitude, including 

robbery"). 

15 - OPINION AND ORDER 

Case 3:14-cv-01217-MA Document 26 Filed 08/18/15 Page 15 of 19
administrative record, which the district court must consider when 

reviewing the Commissioner's final decision for substantial 

evidence." Brewes v. Commissioner of Social Sec. Admin., 682 F.3d 

1157, 1163 (9th Cir. 2012); see Tackett, 180 F. 3d at 1097-98 

(holding that a court reviewing the Commissioner's decision must 

consider the record as a whole). 

After the ALJ issued his decision, plaintiff submitted 

additional evidence to the Appeals Council. Specifically, the new 

evidence consisted of an August 5, 2013 Physical Evaluation Report 

from examining physician, Harold G. Lee, M.D. Tr. 825-831. The 

Appeals Council considered the new evidence, made it a part of the 

medical record, but denied review of the ALJ's decision. Tr. 1-5. 

In his examination report, Dr. Lee diagnosed history of 

fibromyalgia, history of degenerative joint disease, history of 

chronic back pain, and right foot pain. Tr. 829. Dr. Lee endorsed 

Dr. Elder's March 28, 2013 opinion, which indicated that plaintiff 

could only sit for 45 minutes before needing a ten minute break to 

stand. Tr. 830. Dr. Lee also opined that plaintiff can stand for 

three hours in an eight-hour workday and can lift up to 20 pounds 

occasionally. Id. Plaintiff argues that the Appeals Council erred 

in declining to review the ALJ' s decision and for holding that 

substantial evidence supports the ALJ's decision. Plaintiff also 

contends that Dr. Lee's examination report undermines the 

substantial evidence supporting the ALJ's decision. I disagree. 

16 - OPINION AND ORDER 

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In adopting Dr. Elder's March 2013 opinion, Dr. Lee's opinion 

is inconsistent with two other medical opinions and examination 

findings in the medical record. As previously discussed, Drs. 

Pfeiffer and Virji' s opinions are well-supported by objective 

findings and treatment notes in the medical record, and the ALJ 

properly relied on these opinions to discount both of Dr. Elder's 

opinions. See generally Tr. 458, 481-82, 484-85, 531, 569, 592, 

647. 

Contrary to plaintiff's assertion, Dr. Lee's opinion is not 

consistent with Dr. Pfeiffer. Dr. Pfeiffer did not opine that 

plaintiff cannot lift more than 25 pounds nor did he opine that 

plaintiff is limited to light work. Dr. Pfeiffer specifically found 

that plaintiff can lift and carry 25 pounds continuously, which 

indicates how often during an eight-hour workday plaintiff can lift 

25 pounds. As I noted above, the ability to lift 25 pounds 

continuously means plaintiff can lift 25 pounds two-thirds or more 

of the eight-hour workday. This limitation exceeds Dr. Lee's 

opinion that plaintiff can only lift 20 pounds. In addition, Dr. 

Pfeiffer found that plaintiff can sit without limitation and stand 

or walk for eight hours in an eight-hour workday; these limitations 

greatly exceed Dr. Lee's assessment, namely that plaintiff can only 

sit for 45 minutes and stand and walk for only three hours. Thus, 

Dr. Pfeiffer's opinion is wholly inconsistent with Dr. Lee's 

opinion and supports the ALJ's RFC finding. 

17 - OPINION AND ORDER 

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Moreover, Dr. Lee's opinion is unsupported by his examination 

findings. Specifically, Dr. Lee noted that plaintiff does not have 

"any definite clinical evidence of abnormal neurological findings" 

or "any presence of discogenic pain or radiculopathy." Tr. 830. In 

fact, Dr. Lee noted re la ti vely normal examination findings. For 

example, Dr. Lee observed intact reflexes, good range of motion, 

intact motor strength and sensation, and limping due to right foot 

pain. Tr. 829. Dr. Lee noted significant tenderness along the upper 

trapezius, splenius capitus, supraspinatus, rhomboid, suboccipital 

area, posterior-superior iliac crest, and other areas of the body. 

Id. 

To the extent that plaintiff attempts to allege the existence 

of fibromyalgia as a severe impairment, Dr. Lee's examination is 

not sufficient. In order to diagnose fibromyalgia, the American 

College of Rheumatology (ACR) lists the diagnostic criteria as 

"patient reports of pain when at least 11 of 18 points cause pain 

when palpated by the examiner's thumb." Jordan v. Northrop Grumman 

Corp. Welfare Benefit Plan, 370 F.3d 869, 872 (9th cir. 2004), 

overruled on other grounds; Rollins v. Massanari, 261 F.3d 853, 855 

(9th Cir. 2001). As noted above, Dr. Lee only noted "significant 

tenderness. " 5 While a June 15, 2010 examination by physician's 

assistant, Laura Tull Kok documented some diffuse tender points on 

5 I also note that there is no indication in Dr. Lee's 

medical report that he is a rheumatologist, a specialist in the 

treatment of fibromyalgia. 

18 - OPINION AND ORDER 

Case 3:14-cv-01217-MA Document 26 Filed 08/18/15 Page 18 of 19
the scapular borders bilaterally, Ms. Kok assessed a thoracic 

strain. To be sure, the ALJ considered Ms. Kok' s examination 

findings in assessing plaintiff's RFC. Tr. 30. 

In sum, after reviewing the entire record, including Dr. Lee's 

report and opinion, I find that the ALJ' s decision is still 

supported by substantial evidence in the record. Accordingly, the 

new evidence does not necessitate reversal under Brewes. 

CONCLUSION 

For the reasons stated above, the Commissioner's final 

decision is AFFIRMED. This action is DISMISSED. 

IT IS SO ORDERED. 

DATED this ~ day of August, 2015. 

Malcolm F. Marsh 

United States District Judge 

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