IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF OREGON

PENDLETON DIVISION

RAINA WEST,

Plaintiff,

v.

CAROLYN W. COLVIN, Commissioner,

Social Security Administration,

Defendant.

Case No. 3:14-CV-01764-SU

OPINION AND ORDER

SULLIVAN, United States Magistrate Judge:

Plaintiff Raina West brings this action pursuant to the Social Security Act (“Act”) to obtain

judicial review from a final decision of the Commissioner of Social Security (“Commissioner”). 

The Commissioner denied plaintiff's application for Title II disability insurance benefits (“DIB”) and

Title XVIsupplemental security income (“SSI”) under the Act. The Court has jurisdiction pursuant

to 42 U.S.C. §§ 405(g) & 1383(c)(3), and the parties have consented to adjudication by a Magistrate

Judge. Forthe reasons set forth below, the Court affirms the Commissioner's decision and dismisses

the case.

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PROCEDURAL BACKGROUND

On March 18, 2011, plaintiff protectively filed applications for both DIB and SSI benefits. 

Tr., at 18. The Social Security Administration denied her applications initially and upon

reconsideration. Tr., at 18, 106-07. On January 28, 2013, an administrative law judge (“ALJ”)

conducted a hearing, at which plaintiff testified and was represented by counsel. Tr., at 18, 37. A

vocational expert also testified at the hearing. Tr., at 18, 37. On April 11, 2013, the ALJ issued a

decision finding the plaintiff not disabled within the meaning of the Act and denying her benefits. 

Tr., at 18-29. After the Appeals Council denied plaintiff request for review, the ALJ’s decision

became the final decision of the Commissioner. Pl.’s Br., at 2. Plaintiff seeks judicial review from

this Court, requesting the Court reverse the ALJ’s decision and remand the case for the payment of

benefits. Pl.’s Br., at 1, 10. 

STATEMENT OF FACTS

Plaintiff was born in 1974 and was 38 years old at time of hearing. Tr., at 41, 52. She alleges

her disability began August 5, 2008, when she was 33 years old. Tr., at 18, 176, 182. Plaintiff states

that she cannot work due to pain and physical limitations resulting primarily from osteoarthritis in

her right hip. Pl.’s Br., at 2; Tr., at 42, 210. Plaintiff also suffers limitations associated with

degenerative joint disease in her knees, degenerative disc disease, carpal tunnel syndrome in her right

hand, hypertension, and morbid obesity. Pl.’s Br., at 2; Tr., at 20. Plaintiff has a GED and career

training as a medical assistant. Tr., at 203, 253. The alleged onset date of her disability coincides

with plaintiff’s final day of work as a quality supervisor at a plasma center. Tr., at 202-03. Plaintiff

testified at her hearing that she left the job by “mutual agreement” when her physical limitations

made it too difficult for her to perform the work. Tr., at 42-43. However, in her written application

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for benefits, plaintiff stated she was “let go” due to a “conflict with another employee.” Tr., at 202. 

The record shows plaintiff has seen multiple doctors for her hip, knee, and back pain, and has been

repeatedly prescribed vicodin and percocet, narcotic pain medications. Tr., at 308, 281-82, 297-99,

320-23, 333-35, 350-53, 370-71, 421-22, 432-33, 518-19, 566-67, 645-46. On at least four

occasions, doctors have discontinued or declined to prescribe plaintiff those medications due to

misuse and noncompliance with doctor’s orders. Tr., at 623-29 (Dr. Heybach); 264-65 (Drs. Menda

and Pham); 322, 327, 617 (Dr. Pham); 373-74 (Dr. Adler). Plaintiff has switched doctors multiple

times seeking the narcotic pain medications.1Id. In support of her claim for benefits, plaintiff

submitted medical opinions to the ALJ which were done in close proximity to the time of the hearing

from a physician and from a consultative examining doctor. Tr., at 256, 258-59, 698-705. 

At the hearing, plaintiff testified that she could perform daily activities such as driving,

1

 Specifically, the records indicate that plaintiff’s physician, Dr. Adam Adler, ceased

prescribing plaintiff vicodin in June 2009, because plaintiff used up 2-3 months worth of vicodin

in one month and would not comply with his requests she see a physical therapist. Tr., at 370-74,

367. Two months later, plaintiff left Dr. Adler’s care and began seeing a new doctor, Dr. Thanh

Long Pham, who eventually prescribed plaintiff percocet for her pain. Tr., at 354-57. In

December 2010, Dr. Pham discontinued prescribing plaintiff narcotics after she tested positive

for marijuana and negative for the percocet he had prescribed for her. Tr., at 617, 264, 623. 

About one week later, plaintiff saw Dr. Debbie Heybach, requested narcotic pain medication, and

became “upset” when Dr. Heybach offered only non-narcotic options. Tr., at 627-28. The doctor

reported the patient was “upset and wants to know what to do to get narcotics.” Tr., at 628. 

Several days later, plaintiff saw Dr. Shivali Menda and told her she left Dr. Pham’s care, because

she wanted a female doctor. Tr., at 264. She told Dr. Menda that on a scale of 1 to 10, she was

experiencing level 10 pain and only narcotics would help. Tr., at 264. When Dr. Menda

declined to prescribe narcotics but offered to find other solutions, plaintiff requested “to find

another clinic which would be able to prescribe narcotics and left.” Tr., at 265. In March 2011,

Dr. Heybach again declined plaintiff’s request for narcotic pain medication, citing plaintiff’s

history of escalating use, her violation of her pain contract with Dr. Pham, and plaintiff’s failure

to disclose marijuana and methadone use. Tr., at 623. The following month, plaintiff entered the

care of Dr. Christina Oliver, who began prescribing plaintiff percocet and whose clinic was still

prescribing the medication at the time of the hearing. Tr., at 608-11, 653, 675, 52-53. 

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grocery shopping, and household chores but needed frequent rest breaks. Tr. 51-53. Plaintiff

testified that her hip would “give[] out” and she would fall down 9-10 times a week while attempting

to walk. Tr., at 52. For years, doctors have urged and referred plaintiff to see physical therapists but

plaintiff has only followed up on a single assessment. Tr., at 559-65 (PT appt.); 374, 381, 385, 419-

20 (Dr. Adler); 349 (Dr. Ensminger); 308, 346 (Dr. Pham); 623 (Dr. Heybach). Plaintiff’s doctors

have also prescribed a cane and wrist splints, but she has not used them consistently. Tr., at 52, 47,

271, 349, 388, 398-99. Since her alleged onset date, plaintiff has collected unemployment benefits

and has searched for employment. Tr. 47, 355, 572. At the hearing, plaintiff reported that she lived

with her boyfriend and attended community college classes three days a week as part of the college’s

funeral director training program. Tr., at 46-47, 609, 704. 

STANDARD OF REVIEW

In order to obtain social security disability benefits, a claimant must demonstrate that she is

disabled under the law. Howard v. Heckler, 782 F.2d 1484, 1486 (9th Cir. 1986). The Social

Security Act defines disability as an “inability to engage in any substantial gainful activity by reason

of any medically determinable physical or mental impairment which can be expected . . . to last for

a continuous period of not less than 12 months.” 42 U.S.C. §§ 423(d)(1)(A), 1382c(a)(3)(A). 

An ALJ determines whether a claimant is disabled based on a five-step sequential analysis. 

Bowen v. Yuckert, 482 U.S. 137, 140 (1987); 20 C.F.R. §§ 416.920(a), 404.1520(a)(4). If at any

point in the evaluation, the ALJ finds the claimant is not disabled, the ALJ denies benefits and need

not proceed to the next step. First, the ALJ evaluates whether the claimant is engaged in

“substantial gainful activity.” Yuckert, 482 U.S. at 140; 20 C.F.R. §§ 416.920(a), 404.1520(a)(4). 

If so, the claimant is not disabled. Otherwise, the analysis proceeds to the second step. At the

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second step, the ALJ determines whether the claimant has a “medically severe impairment or

combination of impairments.” Yuckert, 482 U.S. at 140-41; 20 C.F.R. §§ 416.920(a),

404.1520(a)(4). If the claimant lacks a severe impairment, the ALJ will find she is not disabled. At

step three, the ALJ resolves whether the claimant's impairments, either singly or in combination,

meet or equal “one of a number of listed impairments that the [Commissioner] acknowledges are so

severe as to preclude substantial gainful activity.” Yuckert, 482 U.S. at 141; 20 C.F.R. §§

416.920(a), 404.1520(a)(4). If so, the claimant is presumptively disabled. Yuckert, 482 U.S. at 141. 

If not, the ALJ determines claimant’s residual functional capacity (“RFC”), which assesses

claimant’s abilities, given her limitations, to meet various demands in a work setting. 20 C.F.R. §§

416.945(a)(1), 404.1545(a)(1). At step four, based on claimant’s RFC, the ALJ determines whether

the claimant can still perform “past relevant work.” 20 C.F.R. §§ 416.920(a), 404.1520(a)(4). If the

claimant can work, she is not disabled. If she cannot perform past relevant work, the burden of proof

shifts from the claimant to the ALJ. Howard, 782 F.2d at 1486. At step five, the ALJ must establish

that the claimant can perform other work that exists in significant numbers in the national and local

economy. Id.; Yuckert, 482 U.S. at 141-42; 20 C.F.R. §§ 416.920(a), 404.1520(a)(4). If the ALJ

meets this burden, the ALJ may find the claimant not disabled and deny her benefits. 20 C.F.R. §§

416.966, 404.1566. 

Once a decision is final, a claimant may seek judicial review, as plaintiff has done here. The

Social Security Act empowers the district court to affirm, modify, or remand a decision for payment

of benefits or for further proceedings. 42 U.S.C. §§ 405(g), 1383(c)(3). The ALJ, not the district

court, is responsible for assessing credibility, resolving conflicts in medical testimony, and for

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construing ambiguities in the record. Garrison v. Colvin, 759 F.3d 995, 1010 (9th Cir. 2014);

Andrews v. Shalala, 53 F.3d 1035, 1039 (9th Cir. 1995). Accordingly, the “court may not substitute

[its] judgment for that of the ALJ.” Garrison, 759 F.3d at 1010. If the ALJ bases his decision on

proper legal standards and it is supported by substantial evidence in the record, the court must affirm

the decision. Id., at 1009; Hammock v. Bowen, 879 F.2d 498, 501 (9th Cir. 1989). “‘Substantial

evidence’ means more than a mere scintilla, but less than a preponderance” of the evidence. 

Lingenfelter v. Astrue, 504 F.3d 1028, 1035 (9th Cir. 2007); see Richardson v. Perales, 402 U.S.

389, 401 (1971). It “is such relevant evidence as a reasonable person might accept as adequate to

support a conclusion.” Lingenfelter, 504 F.3d at 1035. “[W]hen evidence is susceptible to more

than one rational interpretation, the ALJ's conclusion must be upheld.” Morgan v. Comm'r of Soc.

Sec. Admin., 169 F.3d 595, 601 (9th Cir. 1999).

THE ALJ'S FINDINGS

In this case, the ALJ followed the five-step evaluation process outlined above, and found

plaintiff was not disabled. At the first step, the ALJ found that plaintiff had not engaged in

substantial gainful activity since the alleged onset date. Tr., at 20. At step two, the ALJ determined

that plaintiff had the following severe impairments: morbid obesity, degenerative joint disease of the

right hip and knees, degenerative disc disease, right carpal tunnel syndrome, and hypertension. Tr.,

at 20. At step three, the ALJ determined that plaintiff's impairments, either singly orin combination,

did not meet or equal the requirements of a listed impairment. Tr., at 22-23. Finding that plaintiff

did not establish presumptive disability at step three, the ALJ continued the sequential evaluation

process to determine how plaintiff's impairments affected her ability to work. Tr., at 23. The ALJ

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determined that plaintiff had the RFC to perform “less than the full range of sedentary work as

defined in 20 CFR 404.1567(a) and 416.967(a).” Tr., at 23. Specifically, the ALJ found plaintiff

could occasionally crouch, kneel, and climb ramps and stairs, but she could never climb ladders,

ropes, and scaffolds or operate foot controls with her right leg. Tr., at 23. The ALJ also determined

that plaintiff would need to use a cane to walk longer distances or along uneven terrain. Tr., at 23. 

Plaintiff could no more than frequently finger and handle objects with her right hand and must avoid

exposure to noxious fumes and smells. Tr., at 23. 

At step four, based on this RFC and the testimony of a vocational expert, the ALJ found the

plaintiff unable to perform any of her past relevant work. Tr., at 28. At step five, the ALJ

determined that plaintiff, despite her impairments, could perform other jobs that existed in

significant numbers in the national and local economy. Tr., at 28. The ALJ gave the examples of

telephone sales representative, document sorter, and charge account clerk. Tr., at 28-29. The ALJ

concluded that plaintiff was not disabled under the Act. Tr., at 29. 

DISCUSSION

Plaintiff seeks reversal of the ALJ’s decision, arguing the ALJ erred in determining plaintiff’s

RFC. Pl.’s Br., at 6, 9-10. Plaintiff argues the ALJ improperly rejected two doctors’ medical

opinions, which, if properly considered, would have required the ALJ to find the plaintiff disabled. 

Pl.’s Br., at 4, 6, 9-10. First, plaintiff asserts that the ALJ improperly rejected the opinion of

consultative examining physician, Dr. John Ellison. Plaintiff argues that if the ALJ had properly

credited Dr. Ellison’s opinion, the ALJ would have been required to find plaintiff disabled as this

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opinion shows plaintiff cannot sit, stand, or walk for a full eight-hour work day. Pl.’s Br., at 6. 

Plaintiff also asserts that the ALJ erred by rejecting two opinions from treating physician, Dr. Anne

Weinsoft, who opined that plaintiff would miss two full days of work in an average month and could

not use her right hand at all for work. Pl.’s Br., at 7, 9-10. The Commissioner argues the ALJ

properly weighed the medical opinions and provided valid reasons for according them little weight. 

Def.’s Br., at 4.

Social SecurityRegulations define medical opinions as statements from physicians and other

acceptable medical sources “that reflect judgments about the nature and severity” of a claimant’s

impairments, including symptoms, diagnoses, and claimant’s physical or mental restrictions. 20

C.F.R. §§ 416.927(a)(2), 404.1527(a)(2). An ALJ must consider medical opinions submitted by a

claimant, but the ALJ determines what weight to give them. 20 C.F.R. §§ 416.927(c); 404.1527(c). 

The ALJ must consider the following factors in weighing a medical opinion: (1) the physician’s

examining relationship with the claimant; (2) the treatment relationship with the claimant; (3) the

physician’s explanation and evidentiary support for his opinion; and (4) how consistent the opinion

is with the record as a whole.220 C.F.R. §§ 416.927(c); 404.1527(c). Regarding the treatment and

examination factors, ALJs generally accord greater deference to the opinions of treating physicians

compared with those of non-treating physicians. Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1995),

2

 Where relevant, the ALJ must also consider whether a specialist is opining about an

area of her specialty and any additional factors specifically raised by a claimant or of which the

ALJ is aware that tend to support or contradict the opinion. 20 C.F.R. §§ 416.927(c);

404.1527(c). Neither side raises these factors nor are they relevant in assessing the opinions at

issue.

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as amended (Apr. 9, 1996); Garrison, 759 F.3d at 1012. Similarly, the opinion of a physician who

has examined the claimant generally carries greater weight than that of a physician who has not done

so. Id. However, in considering all the factors, an ALJ may discount the opinions of treating or

examining physicians. Where no other medical provider has contradicted the opinion of a physician

who has treated or examined the claimant, an ALJ must furnish “clear and convincing” reasons for

rejecting the opinion. Lester, 81 F.3d at 830. Even if the opinion of a treating or examining

physician is contradicted by another doctor, the ALJ may not reject the opinion without providing

“specific and legitimate reasons that are supported bysubstantial evidence in the record.” Id., at 830-

31. The Ninth Circuit has held specific, legitimate reasons for rejecting a medical opinion to include:

reliance on the claimant’s discredited subjective complaints, inconsistency with medical records,

inconsistency with a claimant’s testimony, and inconsistency with a claimant's daily activities. 

Tommasetti v. Astrue, 533 F.3d 1035, 1041 (9th Cir. 2008); Valentine v. Comm'r Soc. Sec. Admin.,

574 F.3d 685, 693 (9th Cir. 2009); Morgan, 169 F.3d 595 at 600; Tompkins v. Colvin, 2015 WL

2412105, at *3 (D. Or. May 20, 2015). “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.” Garrison,

759 F.3d at 1012.

A. Dr. Ellison’s Opinion

The Court first considers the appropriate standard for assessing the ALJ’s reasoning

regarding Dr. Ellison’s opinion. Here, it is undisputed that Dr. Ellison was an examining physician

but not a treating physician. Def.’s Br., at 4-5; Pl.’s Br., at 4. Where the opinion of an examining

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physician is contradicted by another doctor, the ALJ may reject the opinion only after providing

“specific and legitimate reasons that are supported by substantial evidence in the record.” Lester,

81 F.3d at 830-31; see Pl.’s Br., at 5. Otherwise, the standard is stricter, and the ALJ must provide

“clear and convincing reasons.” Id. Here, Dr. Ellison’s opinion conflicted with the opinions of two

non-examining state agency consulting physicians, Drs. Robert Hughes and Martin Kehrli. Tr., at

27, 74-76, 99-101. In his opinion, Dr. Ellison stated that plaintiff could not sit for longer than 30

minutes at a time and for no longer than four hours in an eight-hour period. Tr., at 707. He also

opined that plaintiff could only stand for two hours in an eight-hour period and for only 15 minutes

at a time. Tr., at 707. Dr. Ellison also indicated that plaintiff could only walk for one hour in an

eight-hour period and for no more than 10 minutes before taking a break. Tr., at 707. The remainder

of the time, plaintiff would need to recline. Tr., at 707. On the other hand, Drs. Hughes and Kehrli

assessed that plaintiff could sit for a total of six hours, stand for two hours, and walk for two hours

in an eight-hour day, taking normal breaks. Tr., at 27, 74, 99. Because the two state doctor opinions

contradict Dr. Ellison’s opinion, the ALJ needed only provide “specific and legitimate” reasons for

discounting Dr. Ellison’s opinion. However, even if the Court were to apply the stricter “clear and

convincing” standard, the Court finds the ALJ’s reasons for discounting the opinion would be

sufficient.

The ALJ analyzed the factors required by regulations, and his reasons for discounting the

Ellison opinion stem from this analysis. First, regarding the relationship factor, the ALJ properly

acknowledged that Dr. Ellison had examined the plaintiff. Tr., at 26-27. The ALJ also considered

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the “supportability” factor, how well Dr. Ellison “present[ed] relevant evidence to support an

opinion, particularly medical signs and laboratory findings.” 20 C.F.R. §§ 416.927(c)(3);

404.1527(c)(3). “The better an explanation a source provides for an opinion,” the more weight an

ALJ should give that opinion. Id. When “evaluating conflicting medical opinions, an ALJ need not

accept the opinion of a doctor if that opinion is brief, conclusory, and inadequately supported by

clinical findings.” Bayliss v. Barnhart, 427 F.3d 1211, 1216 (9th Cir. 2005); see Tonapetyan v.

Halter, 242 F.3d 1144, 1149 (9th Cir. 2001); Miller v. Colvin, 2014 WL 183824, at *13 (D. Or. Jan.

14, 2014). Here, Dr. Ellison included minimal commentary or explanation within the opinion itself; 

however, his examination notes accompanied it. Tr., at 703-11. The ALJ noted that the clinical

findings in the examination notes did not support Dr. Ellison’s terse opinion about plaintiff’s

limitations. Tr., at 26-27. For example, Dr. Ellison opined that plaintiff would not be able to sit for

longer than 30 minutes at a time, but his examination notes stated that plaintiff appeared “healthy”

and “not uncomfortable” through the appointment. Tr., at 26-27, 704, 707. The examination found

plaintiff had a normal gait and no arthritic stigmata or pain on manipulation of her hip. Tr., at 26-

27, 704. Plaintiff was able to walk in tandem and on her heels and toes. Tr., at 26-27, 704. 

Nonetheless, Dr. Ellison wrote in his opinion that plaintiff would not be able to stand for more than

15 minutes at a time or walk for more than 10 minutes. Tr., at 707. Dr. Ellison’s notes state that

plaintiff had less grip strength in her right hand but could otherwise reach, grip, release, and

manipulate objects with her right arm and complete other tests. Tr., at 704. Yet, his opinion stated

that plaintiff would be unable to reach her right hand and manipulate objects more than occasionally

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while working.

3 Tr., at 708. Courts have found similar discrepancies between a doctor’s

examination notes and his resulting opinion constituted both a specific, legitimate reason and a “clear

and convincing reason for not relying on the doctor’s opinion.” see, e.g., Bayliss, 427 F.3d 1211 at

1216 (doctor’s notes from the examination contradicted doctor’s opinion on claimant’s ability to

walk and stand); Weetman v. Sullivan, 877 F.2d 20, 23 (9th Cir. 1989)(inconsistencies between

doctor’s medical notes and his opinion were a “clear and convincing” reason for rejecting the

opinion); Miller, 2014 WL 183824, at *11 (“An ALJ may properly discount a physician opinion

based upon discrepancies between the opinion and the physician's treatment notes”).

The ALJ noted the inconsistencies and found Dr. Ellison’s opinion was based largely on the

plaintiff’s statements to him, rather than any objective findings. Tr., at 27. Plaintiff argues this

determination was improper because the ALJ substituted his subjective opinion for that of medical

expert. Pl.’s Br., at 5-6. However, courts have repeatedly held that an ALJ may discount a medical

opinion when it is largely based on a claimant’s allegations of her symptoms and limitations and

those allegations are not credible. Bayliss, 427 F.3d at 1217; Fair v. Bowen, 885 F.2d 597, 605 (9th

Cir. 1989); Tonapetyan, 242 F.3d at 1149; Wood v. Colvin, 2015 WL 4426212, at *3 (D. Or. July

20, 2015); Miller, 2014 WL 183824, at *11. Earlier in his decision, the ALJ had determined that

plaintiff’s statements about her capabilities were not credible. Tr., at 24-26. The credibility

determination was based on substantial evidence, and plaintiff does not contest that determination. 

3

 “Occasionally” is defined here as “very little to one-third of the time.” Tr., at 706.

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Rather, plaintiff argues the ALJ failed to take into account that Dr. Ellison may have based his

opinion on plaintiff’s “objective” medical records. Pl.’s Br., at 5-6. However, plaintiff notably

failed to provide Dr. Ellison with more than a small sample of her medical records, even though the

examination followed the hearing and plaintiff presumably had access to all of them. Tr., at 703;

Pl.’s Br., at 5. It is unclear why only records from plaintiff’s chiropractor and her more recent

treatments with one particular doctor were made available. Tr., at 703; Pl.’s Br., at 5. Plaintiff

claims this limited selection of records constituted an “objective” and “longitudinal picture of

Plaintiff’s conditions upon which [Dr. Ellison] could base an opinion.” Pl.’s Br., at 5-6. The Court

disagrees. Furthermore, although Dr. Ellison notes that he reviewed the records, he does not indicate

anywhere in his examination notes or opinion that he relied on them to form his opinion of plaintiff’s

symptoms or limitations. Tr., at 703-11. 

The ALJ found that not only did Dr. Ellison’s own examination notes not support his

opinion, the opinion itself appeared hastily written. “His straight line marking all the way down the

blocks for recommended limitations to the right hand suggests he gave no serious thought to the

claimant’s actual limitations.” Tr., at 27. Although plaintiff might disagree with this assessment,

it is not unreasonable and an ALJ “is entitled to draw inferences logically flowing from the

evidence.” Sample v. Schweiker, 694 F.2d 639, 642 (9th Cir. 1982); see Tommasetti, 533 F.3d at

1040 (“The ALJ may rely on ordinary techniques of credibility evaluation”). Where the evidence

is susceptible to multiple rational interpretations, the Court defers to the ALJ’s conclusions. 

Morgan, 169 F.3d at 601. The Court finds the ALJ properly considered the adequacy of Dr.

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Ellison’s explanation and support for his opinion and based on this analysis, gave specific,

legitimate, clear, and convincing reasons for rejecting the opinion.

The ALJ also considered the opinion’s consistency with the record, noting that plaintiff’s

activities of dailyliving supported the state doctors’ opinions, which directly contradict Dr. Ellison’s

opinion. Tr., at 27. The ALJ noted that plaintiff was able to attend two-hour classes, drive, shop,

and tend to her own personal care needs independently, according to medical records and her own

testimony. Tr., at 24, 27, 46, 51-53, 609, 645, 692. The ALJ also cited examples from the record

of plaintiff engaging in more strenuous activities including roller-skating, participating in a bar fight,

parenting a former fiancee’s infant child, going out to eat, and traveling for weeks at a time. Tr., at

24; 518 (roller-skating); 320 (bar fight); 212, 359 (eating out); 366, 370 (parenting fiancee’s infant

child); 341 (holiday travel). “Inconsistency between a physician’s opinion and the claimant's daily

activities suffices as a specific and legitimate reason for discounting the physician's opinion if

supported by substantial evidence from the record as a whole.” Lindquist v. Colvin, 588 F. App'x

544, 546 (9th Cir. 2014)(citing Morgan, 169 F.3d at 600-02). 

In rejecting Dr. Ellison’s opinion, the ALJ analyzed relevant factors and found neither the

record nor the doctor’s own findings supported his opinion. Substantial evidence in the record

supported the ALJ’s reasons, and they were both “specific and legitimate” and “clear and

convincing.” 

B. Dr. Weinsoft’s Opinion

As for Dr. Weinsoft’s opinions, the Court first considers the proper standard for evaluating

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the weight the ALJ accorded them. Because Dr. Weinsoft’s opinion about plaintiff’s abilities with

her hands conflicted with other medical opinions, the ALJ only needed to provide “specific and

legitimate reasons” for rejecting them. Like Dr. Ellison’s opinion, Dr. Weinsoft’s opinions were

contradicted by the opinions of the state consulting doctors. Dr. Weinsoft’s opinions also conflicted

with Dr. Ellison’s examination findings and his opinion. For instance, Dr. Weinsoft opined that

plaintiff was “never” capable of using her right hand to handle, finger, or feel objects or to reach

overhead or forward as part of any employment. Tr., at 701-02. She also stated that plaintiff could

never reach overhead with her left hand and could only reach forward or handle, finger, or feel

objects with her left hand occasionally. Tr., at 702. Drs. Hughes and Kehrli found no such

limitations. Tr., at 27, 74-76, 99-101. Dr. Ellison’s examination found plaintiff could reach, grip,

and manipulate objects with both hands although she had reduced gripping strength in her right hand. 

Tr., at 26, 704. Contrary to Dr. Weinsoft’s opinion, Dr. Ellison opined that plaintiff could

occasionally reach, handle, finger, feel, push and pull with her right hand and could frequently

perform those tasks with her left hand. Tr., at 708. 

Dr. Weinsoft also opined that plaintiff would miss two full workdays a month at a “simple

and routine sedentary job,” because of episodes of severe pain and plaintiff’s propensity to fall ill

due to obesity and lung issues. Tr., at 700. However, no other medical provider opined on this

subject although arguably the state doctors’ opinions do not support this statement. Nevertheless,

the Court treats this portion of Dr. Weinsoft’s opinion as uncontradicted and thus the ALJ was

required to provide “clear and convincing” reasons for discounting it. That said, the precise standard

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has little impact here as the Court finds the ALJ’s reasons for rejecting Dr. Weinsoft’s opinions meet

both the “specific and legitimate” standard and the stricter “clear and convincing” standard. 

When weighing the opinion of a treating physician, social securityregulations require an ALJ

to evaluate whether it is “well-supported by medically acceptable clinical and laboratory diagnostic

techniques” and consistent with other substantial evidence in the record. 20 C.F.R. §§ 

416.927(c)(2); 404.1527(c)(2). If so, the treating physician’s opinion is accorded controllingweight. 

Id. If not, the ALJ must consider the “length of the treatment relationship and the frequency of

examination” as well as the “nature and extent of the treatment relationship.” Id. The longer a

doctor has seen a patient, the more likely she will “have obtained a longitudinal picture” and full

understanding of the impairments. Id. In addition, the ALJ must still consider the other relevant

factors such as “the amount of relevant evidence that supports the opinion and the quality of the

explanation provided” and “the consistency of the medical opinion with the record as a whole.” Orn

v. Astrue, 495 F.3d 625, 631 (9th Cir. 2007); see 20 C.F.R. §§ 416.927(c); 404.1527(c). An ALJ

may reject a treating physician’s opinion when it conflicts with independent clinical findings or is

inconsistent with the claimant’s reported activities. Dunn v. Colvin, 2015 WL 505265, at *5 (D. Or.

Feb. 3, 2015) (citing Orn, 495 F.3d 625, 631-32 (9th Cir. 2007) and Rollins v. Massanari, 261 F.3d

853, 856 (9th Cir. 2001)). 

The ALJ evaluated Dr. Weinsoft’s opinion and found it was not well-supported bymedically

acceptable clinical and laboratory diagnostic techniques. The ALJ noted that the doctor’s first

opinion, dated January 2013, declined to assess plaintiff’s RFC, including plaintiff’s ability to reach

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and manipulate objects with her hands. Tr., at 26, 698-99. Dr. Weinsoft wrote on the opinion form

that she was “[n]ot able to assess.” Tr., at 26, 698. However, a few weeks later and after the ALJ

hearing, plaintiff sought and Dr. Weinsoft provided an opinion of plaintiff’s ability to reach and

manipulate objects with her hands. Tr., at 26, 701-02. The record does not show that Dr. Weinsoft

examined plaintiff again prior to this second opinion, and thus it is unclear why the doctor was then

able to opine on the subject. The ALJ also noted that Dr. Weinsoft’s opinion was not supported by

Dr. Ellison’s clinical examination, which “revealed largely normal findings” regarding plaintiff’s

abilities to use her hands. Tr., at 26. The ALJ also found Dr. Weinsoft’s opinions were not

consistent with substantial evidence in the record. Rather, he found that plaintiff’s activities of daily

living and other self-reported activities such as roller-skating and holiday travel supported the state

doctors’ opinions, opinions that flatly contradicted Dr. Weinsoft’s opinions. Tr., at 24, 27. Because

clinical findings and the record did not support Dr. Weinsoft’s opinions, the regulations did not

require ALJ to assign them controlling weight.

As required by the regulations, the ALJ proceeded to consider the length, frequency, nature

and extent of Dr. Weinsoft’s treatment and examination of plaintiff. See 20 C.F.R. §§

404.1527(c)(2), 416.927(c)(2). The ALJ noted that Dr. Weinsoft identified herself in the opinion

as the plaintiff’s “primary care physician” for about one year. Tr., at 26, 698. However, the ALJ

noted contradictory evidence in the record showing that another doctor in Dr. Weinsoft’s clinic was

plaintiff’s primary care physician, and Dr. Weinsoft only treated and examined plaintiff on a couple

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of occasions.

4 Tr., at 26, 607, 648. The ALJ also considered other evidence about the nature of

plaintiff’s treatment relationship with Dr. Weinsoft. The ALJ made note that “Dr. Weinsoft’s clinic

apparently not only prescribed the claimant narcotics against the advice of several other treatment

providers, they apparently continue to prescribe despite several notations that they do not believe it

is a good treatment strategy.” Tr., at 26. The record supports this finding by the ALJ. Tr., at 25,

607, 610-11, 651, 653, 48, 53. Plaintiff argues that the ALJ was not permitted to consider Dr.

Weinsoft’s choice of treatments in weighing her medical opinion. Pl.’s Br., at 9. However, the

Ninth Circuit has repeatedly held that ALJs may consider a variety of evidence that bears on a

doctor’s credibility, although it may not always be dispositive. See, e.g., Saelee v. Chater, 94 F.3d

520, 522-23 (9th Cir. 1996), as amended (Aug. 12, 1996) (physician’s opinion discredited and

deemed “untrustworthy” because it was obtained for the hearing, conflicted with his treatment notes,

and was worded ambiguously to aid appellant); Reddick v. Chater, 157 F.3d 715, 726 (9th Cir. 1998)

(“Evidence of the circumstances under which [a medical opinion] was obtained and its consistency

with other records, reports, or findings could . . . form a legitimate basis for evaluating the reliability

of the report”); Nguyen v. Chater, 100 F.3d 1462, 1464 (9th Cir. 1996) (“We have held the source

of a referral to be relevant where there is no objective medical basis for the opinion, and where there

4

 The record includes notes from only two appointments with Dr. Weinsoft, one in April

2011 and the other in June of that year. Tr., at 607, 648. Moreover, those examination notes list

plaintiff’s “primary care provider” as Dr. Christina Oliver, and not Dr. Weinsoft. Tr., at 607,

648. In addition, the record contains evidence of numerous appointments with Dr. Oliver during

the one year in which Dr. Weinsoft purports to have been plaintiff’s primary care physician. See,

e.g., Tr., at 644, 649, 651, 652. Those notes also list Dr. Oliver as the primary care physician. 

Dr. Oliver has not submitted a medical opinion.

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Case 3:14-cv-01764-SU Document 18 Filed 08/18/15 Page 18 of 20
is evidence of actual improprieties on the part of the doctor whose report the ALJ chooses to reject”). 

Regardless, the Court need not determine the permissibility of this reason, because the ALJ cites

several other valid reasons for rejecting Dr. Weinsoft’s opinion.5 Not only did the ALJ account for

Dr. Weinsoft’s limited treatment relationship with plaintiff, he found plaintiff’s activities of daily

living did not support her assessment of plaintiff’s abilities but instead supported the contrary

opinions of the state doctors. Tr., at 24, 27. As for the supportability of Dr. Weinsoft’s opinions,

the ALJ found that the doctor’s two opinions were internally inconsistent as noted above and not

supported by clinical findings. Tr., at 26. Accordingly, the Court finds the ALJ properly analyzed

relevant factors and provided clear and convincing reasons for discounting Dr. Weinsoft’s opinion. 

The Court finds the ALJ did not err in according little weight to the opinions of Drs. Weinsoft and

Ellison. Moreover, he supported his conclusions with substantial evidence from the record. 

//

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//

//

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5

 Even if the Court were to find the ALJ erred by considering Dr. Weinsoft’s treatment

decisions, the error would be harmless. The Ninth Circuit applies harmless error principles apply

in the Social Security Act context. Molina v. Astrue, 674 F.3d 1104, 1115 (9th Cir. 2012) (citing

Stout v. Commissioner, 454 F.3d 1050, 1054-55 (9th Cir. 2006)). An ALJ’s “error is harmless so

long as there remains substantial evidence supporting the ALJ's decision and the error does not

negate the validity of the ALJ's ultimate conclusion.” Molina, 674 F.3d at 1115.

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CONCLUSION

For the reasons stated above, the Commissioner’s final decision is AFFIRMED and this

action is DISMISSED. 

IT IS SO ORDERED.

DATED this the 18th day of August, 2015.

_____________________________

Patricia Sullivan

United States Magistrate Judge

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 /s/ Patricia Sullivan

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