1 

2 

3 

4 

5 

6 

7 

8 

9 

10 

11 

12 

13 

14 

15 

16 

17 

18 

19 

20 

21 

22 

23 

24 

25 

26 

27 

28 

WO 

IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF ARIZONA 

Theresa K. Scholin, 

Plaintiff, 

v. 

Commissioner of the Social Security 

Administration, 

Defendant. 

No. CV-15-02334-PHX-GMS

ORDER 

 Pending before the Court is the appeal of Plaintiff Theresa K. Scholin (“Scholin”), 

which challenges the Social Security Administration’s decision to deny benefits. (Doc. 

1.) For the reasons set forth below, this Court affirms the decision of the ALJ. 

BACKGROUND 

 On September 19, 2011, Theresa Scholin filed an application for disability 

insurance benefits, alleging a disability onset date of February 1, 2005. (Tr. 22.) Her 

claim was initially denied on January 20, 2012, and it was denied again upon 

reconsideration on November 21, 2012. (Tr. 22.) Scholin then filed a written request for 

a hearing and she testified before ALJ Patricia Bucci on January 3, 2014. (Tr. 22.) On 

March 13, 2014, the ALJ issued a decision finding Scholin not disabled. (Tr. 36.) 

Case 2:15-cv-02334-GMS Document 17 Filed 03/06/17 Page 1 of 19
- 2 - 

1 

2 

3 

4 

5 

6 

7 

8 

9 

10 

11 

12 

13 

14 

15 

16 

17 

18 

19 

20 

21 

22 

23 

24 

25 

26 

27 

28 

 In evaluating whether Scholin was disabled, the ALJ undertook the five-step 

sequential evaluation for determining disability.1

 (Tr. 12.) At step one, the ALJ found 

that Scholin had not engaged in substantial gainful activity since her application date. 

(Tr. 24.) At step two, the ALJ determined that Scholin suffered from the following 

severe impairments: obesity, diabetes mellitus, chronic dermatitis, chronic obstructive 

pulmonary disease (“COPD”)/asthma, JOB syndrome, mild cervical degenerative disc 

disease, depressive disorder, and poly-substance abuse. (Tr. 24.) She also found that 

Scholin suffered from numerous nonsevere impairments, including status post right knee 

surgery, gastroesophageal reflux disease, irritable bowel syndrome, right shoulder 

disorder, restless leg syndrome, osteopenia, and hepatitis C. (Tr. 25.) At step three, the 

ALJ determined that none of these impairments, either alone or in combination, met or 

equaled any of the Social Security Administration’s listed impairments. (Id.) 

 At that point, the ALJ reached step four and made a determination of Scholin’s 

residual functional capacity (“RFC”),2

 concluding that Scholin could “perform light work 

as defined in 20 CFR 404.1567(b), except the Claimant should never climb ladders, ropes 

 1

 The five-step sequential evaluation of disability is set out in 20 C.F.R. § 404.1520 (governing disability insurance benefits) and 20 C.F.R. § 416.920 (governing supplemental security income). Under the test: 

A claimant must be found disabled if she proves: (1) that she 

is not presently engaged in a substantial gainful activity[,] (2) that her disability is severe, and (3) that her impairment meets or equals one of the specific impairments described in the regulations. If the impairment does not meet or equal one of 

the specific impairments described in the regulations, the 

claimant can still establish a prima facie case of disability by 

proving at step four that in addition to the first two 

requirements, she is not able to perform any work that she has done in the past. Once the claimant establishes a prima facie 

case, the burden of proof shifts to the agency at step five to demonstrate that the claimant can perform a significant 

number of other jobs in the national economy. This step-five determination is made on the basis of four factors: the 

claimant’s residual functional capacity, age, work experience and education. 

Hoopai v. Astrue, 499 F.3d 1071, 1074–75 (9th Cir. 2007) (internal quotation marks and citations omitted). 

2

 RFC is the most a claimant can do despite the limitations caused by his impairments. See S.S.R. 96–8p (July 2, 1996). 

Case 2:15-cv-02334-GMS Document 17 Filed 03/06/17 Page 2 of 19
- 3 - 

1 

2 

3 

4 

5 

6 

7 

8 

9 

10 

11 

12 

13 

14 

15 

16 

17 

18 

19 

20 

21 

22 

23 

24 

25 

26 

27 

28 

or scaffolds.” (Tr. 27.) In making this finding, the ALJ found that Scholin’s subjective 

testimony was “not entirely credible.” (Tr. 28.) The ALJ gave little to no weight to the 

treating physicians, Drs. Drachler, Monroe, Ebner and Brown. (Tr. 33–34.) Instead, she 

relied on the testimony of state agency’s reviewing physicians, Scholin’s work history, 

her “generally unpersuasive appearance and demeanor while testifying at the hearing,” 

and the “greater weight of the entire evidence of record” which demonstrated 

inconsistencies in Ms. Scholin’s testimony and statements to her health care providers 

(Tr. 33–34.) However, she noted that “minimal weight is afforded to the mental 

assessments of these reviewing physicians, as greater weight is afforded to the treating 

notes and clinical findings, which reflect the claimant’s mental impairment is indeed 

severe.” (Id.) 

 The Appeals Council declined to review the decision. (Tr. 1–5.) Scholin filed the 

complaint underlying this action on November 17, 2015 seeking this Court’s review of 

the ALJ’s denial of benefits. (Doc. 1.) The matter is now fully briefed before this Court. 

(Docs. 12, 16.) 

DISCUSSION 

I. Standard of Review

 A reviewing federal court will only address the issues raised by the claimant in the 

appeal from the ALJ’s decision.3

 See Lewis v. Apfel, 236 F.3d 503, 517 n.13 (9th Cir. 

2001). A federal court may set aside a denial of disability benefits only if that denial is 

either unsupported by substantial evidence or based on legal error. Thomas v. Barnhart, 

278 F.3d 947, 954 (9th Cir. 2002). Substantial evidence is “more than a scintilla but less 

than a preponderance.” Id. (quotation omitted). “Substantial evidence is relevant 

evidence which, considering the record as a whole, a reasonable person might accept as 

adequate to support a conclusion.” Id. (quotation omitted). 

 The ALJ is responsible for resolving conflicts in testimony, determining 

 

3

 The ALJ’s determinations that Scholin’s diabetes, spinal degeneration, and obesity did not contribute to any disability were not challenged by the claimant in her opening brief. (Tr. 29–30; Doc. 12.) 

Case 2:15-cv-02334-GMS Document 17 Filed 03/06/17 Page 3 of 19
- 4 - 

1 

2 

3 

4 

5 

6 

7 

8 

9 

10 

11 

12 

13 

14 

15 

16 

17 

18 

19 

20 

21 

22 

23 

24 

25 

26 

27 

28 

credibility, and resolving ambiguities. See Andrews v. Shalala, 53 F.3d 1035, 1039 (9th 

Cir. 1995). “When the evidence before the ALJ is subject to more than one rational 

interpretation, we must defer to the ALJ’s conclusion.” Batson v. Comm’r of Soc. Sec. 

Admin., 359 F.3d 1190, 1198 (9th Cir. 2004). This is so because “[t]he [ALJ] and not the 

reviewing court must resolve conflicts in evidence, and if the evidence can support either 

outcome, the court may not substitute its judgment for that of the ALJ.” Matney v. 

Sullivan, 981 F.2d 1016, 1019 (9th Cir. 1992) (citations omitted). 

II. Analysis

A. The ALJ Did Not Make a Prejudicial Error in Rejecting the 

Opinions of the Treating Physicians. 

“A treating physician’s medical opinion as to the nature and severity of an 

individual’s impairment must be given controlling weight if that opinion is wellsupported and not inconsistent with the other substantial evidence in the case record.” 

Edlund v. Massanari, 253 F.3d 1152, 1157 (9th Cir. 2001), as amended on reh’g (Aug. 9, 

2001); see Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1995), as amended (Apr. 9, 1996) 

(“As a general rule, more weight should be given to the opinion of a treating source than 

to the opinion of doctors who do not treat the claimant.”). If a treating physician’s 

opinion is “not contradicted by another doctor, it may be rejected only for clear and 

convincing reasons.” Lester, 81 F.3d at 830. An “ALJ need not accept a treating 

physician’s opinion which is ‘brief and conclusionary in form with little in the way of 

clinical findings to support [its] conclusion.’ ” Magallanes v. Bowen, 881 F.2d 747, 751 

(9th Cir. 1989) (quoting Young v. Heckler, 803 F.2d 963, 968 (9th Cir.1986)). However, 

even if a treating physician’s “assessments are of the ‘check-box’ form and contain 

almost no detail or explanation,” they should not be dismissed if the “record supports [the 

physician’s] opinions because they are consistent both with Claimant’s testimony at the 

hearing and with [the physician’s] own extensive treatment notes.” Burrell v. Colvin, 775 

F.3d 1133, 1140 (9th Cir. 2014). 

/ / / 

Case 2:15-cv-02334-GMS Document 17 Filed 03/06/17 Page 4 of 19
- 5 - 

1 

2 

3 

4 

5 

6 

7 

8 

9 

10 

11 

12 

13 

14 

15 

16 

17 

18 

19 

20 

21 

22 

23 

24 

25 

26 

27 

28 

 If the treating physician’s opinion is contradicted by another doctor, the ALJ still 

cannot reject the treating physician’s opinion unless she provides “specific and legitimate 

reasons supported by substantial evidence in the record.” Lester, 81 F.3d at 831 (internal 

quotations omitted). “Sheer disbelief is no substitute for substantial evidence,” and thus 

the ALJ must specify what evidence she is relying on to reject the treating physician’s 

opinion. Benecke v. Barnhart, 379 F.3d 587, 594 (9th Cir. 2004). “The opinion of a 

nonexamining physician cannot by itself constitute substantial evidence that justifies the 

rejection of the opinion of either an examining physician or a treating physician.” Lester, 

81 F.3d at 831. The ALJ may cite to diagnostic test results, contrary reports from 

examining physicians, and “testimony from the claimant that conflicted with her treating 

physician’s opinion” to provide specific and legitimate reasons for rejecting the opinion 

of a treating physician. Id. at 831. 

 If it is determined that an ALJ made an error while considering the weight of a 

treating physician’s opinion, the next step is to determine whether the error was 

prejudicial. See Carmickle v. Comm’r, Soc. Sec. Admin., 533 F.3d 1155, 1162 (9th Cir. 

2008) (applying the harmless error standard after determining that two of the ALJ’s 

reasons supporting his adverse credibility finding were invalid). Ninth Circuit precedents 

“do not quantify the degree of certainty needed to conclude that an ALJ’s error was 

harmless.” Marsh v. Colvin, 792 F.3d 1170, 1173 (9th Cir. 2015). The general rule is that 

an error is harmless where a court can “conclude from the record that the ALJ would 

have reached the same result absent the error.” Molina v. Astrue, 674 F.3d 1104, 1115 

(9th Cir. 2012). Furthermore, “the more serious the ALJ’s error, the more difficult it 

should be to show the error was harmless.” Id. 

 1. Dr. Drachler

 On April 29, 2013, Dr. Drachler, Ms. Scholin’s treating pulmonologist, filled out a 

checkbox questionnaire in which he concluded that Ms. Scholin was not able to sustain a 

normal work position due to the functional limitations caused by her pulmonary 

Case 2:15-cv-02334-GMS Document 17 Filed 03/06/17 Page 5 of 19
- 6 - 

1 

2 

3 

4 

5 

6 

7 

8 

9 

10 

11 

12 

13 

14 

15 

16 

17 

18 

19 

20 

21 

22 

23 

24 

25 

26 

27 

28 

conditions.4 (Tr. 1414.) Dr. Drachler found that Ms. Scholin could not sit or stand for 

more than an hour at a time during an eight hour work day. (Id.) She also could not lift 

or carry more than five pounds at a time, and her symptoms were likely to cause frequent 

interruptions throughout her work day. (Tr. 1412–13.) Ultimately, Dr. Drachler opined 

that Ms. Scholin’s conditions would require her to be absent from work more than three 

times a month. (Tr. 1413.) The ALJ rejected the opinion of Dr. Drachler because the 

ALJ found that 1) the claimant did not see Drachler regularly, 2) Drachler relied too 

heavily on the claimant’s subjective reports of symptoms, 3) Drachler’s findings were 

inconsistent with the claimant’s “admitted daily activities,” and 4) Drachler’s findings 

were contradicted by the opinions of other examining and nonexamining physicians for 

the state agency. (Tr. 33–34.) 

 Drachler’s findings were contradicted by the state agency physicians, and thus the 

ALJ needed to provide “specific and legitimate reasons supported by substantial evidence 

in the record.” Lester, 81 F.3d at 831 (internal quotations omitted). However, the fact 

that his opinion was contradicted by the state agency physicians “cannot by itself 

constitute substantial evidence that justifies the rejection of the opinion of either an 

examining physician or a treating physician.” Id.

 The ALJ supported her reasoning by other substantial evidence in the record, and 

thus she did not err in discrediting Dr. Drachler’s findings. Dr. Drachler was the 

claimant’s treating physician for her asthma and COPD for over six years. (Tr. 1534.) 

However, the ALJ noted that his records indicate that his interactions with Scholin were 

intermittent and that there were long lapses in treatment, (Tr. 29, 833.) Frequency of 

examination is a valid factor to consider in determining how much weight to give a 

medical opinion. See 20 C.F.R. 416.927(c)(2)(ii) (“Generally, the longer a treating 

source has treated you and the more times you have been seen by a treating source, the 

more weight we will give to the source’s medical opinion.”). The ALJ further notes that 

 

4

 Just a month after Dr. Drachler completed his assessment and determined that Ms. Scholin was severely limited, Ms. Scholin told mental health providers that she was the primary caretaker of her fiancé’s parents. (Tr. 1451.) 

Case 2:15-cv-02334-GMS Document 17 Filed 03/06/17 Page 6 of 19
- 7 - 

1 

2 

3 

4 

5 

6 

7 

8 

9 

10 

11 

12 

13 

14 

15 

16 

17 

18 

19 

20 

21 

22 

23 

24 

25 

26 

27 

28 

while she rarely met with Dr. Drachler, “[t]he claimant was regularly treated through her 

primary care physician for acute exacerbations of COPD and, despite these exacerbations 

she continued smoking cigarettes.” (Tr. 29.) Dr. Drachler notes in January of 2012 that 

Ms. Scholin quit smoking “about 6 weeks ago.” (Tr. 831.) Yet Ms. Scholin herself 

testified at the hearing before the ALJ that she didn’t actually quit smoking until “almost 

a month” prior to the hearing in 2014. (Tr. 49, 60.) To the extent that Dr. Drachler relied 

on Ms. Scholin’s assertion that she quit smoking in 2012 to form his opinions regarding 

her limitations in 2013, he relied on information that is contrary to the record—with Ms. 

Scholin’s own sworn testimony—and the ALJ did not err in considering this 

inconsistency. See Lester, 81 F.3d at 831 (stating that an ALJ may rely on “contrary 

reports from examining physicians, and on testimony from the claimant that conflicted 

with her treating physician's opinion” to discredit a treating physician”); Morgan v. 

Comm’r of Soc. Sec. Admin., 169 F.3d 595, 601 (9th Cir. 1999) (ALJ may consider 

whether the claimant’s activities are inconsistent with the limitations outlined in a 

treating physician’s opinion); Magallanes v. Bowen, 881 F.2d 747, 751 (9th Cir. 1989) 

(explaining that an ALJ may meet the burden of providing specific, legitimate reasons 

“by setting out a detailed and thorough summary of the facts and conflicting clinical 

evidence, stating his interpretation thereof, and making findings.” (internal quotations 

and citations omitted)). Inconsistencies between the treating physician’s opinion and 

the objective medical record are also valid factors to weigh when considering how much 

weight to assign to the treating physician’s opinion. See Lester, 81 F.3d at 831 

(contradictions between the medical evidence and the treating physician’s opinion is a 

valid consideration); 20 C.F.R. § 416.927(c)(4) (“Generally, the more consistent a 

medical opinion is with the record as a whole, the more weight we will give to that 

medical opinion.”) The ALJ cited to medical records reflecting Scholin’s pulmonary 

function testing, which demonstrated “moderately severe airway obstruction” in October 

2012 had improved in both December 2012 and October 2013 to show only “moderate 

obstruction.” (Tr. 29.) These inconsistences are valid considerations, and the ALJ 

Case 2:15-cv-02334-GMS Document 17 Filed 03/06/17 Page 7 of 19
- 8 - 

1 

2 

3 

4 

5 

6 

7 

8 

9 

10 

11 

12 

13 

14 

15 

16 

17 

18 

19 

20 

21 

22 

23 

24 

25 

26 

27 

28 

provided sufficient evidence from the record to support her assertions. 

 The ALJ also discredited Drachler’s opinion by stating that his opinion was 

“unsupported by the claimant’s admitted daily activities.” (Tr. 33.) Among those daily 

activities the ALJ found that Ms. Scholin was the primary caregiver for her fiancé’s 

disabled parents with whom she resided. (Tr. 31, 32, 902, 1451.) In making this finding, 

the ALJ cited to Ms. Scholin’s mental health care treatment notes with Terros from 

November 2011 and May 2013, in which Ms. Scholin told her counselor that she lived 

with her fiancé and was the primary caregiver for his disabled parents. (Tr. 902, 1451). 

Further, as the ALJ noted, in her function report filled out in December 2011 Ms. Scholin 

identified herself as a caregiver for Terry and John Ruth—presumably her fiancé’s 

parents—for whom she made appointments and sometimes prepared lunch and dinner. 

(Tr. at 302).5

 The ALJ noted that this activity as well as her ability to drive 

independently, utilize public transportation, prepare simple meals, do laundry, go out 

alone, shop outside the home on a weekly basis, pay bills, count change, handle a savings 

account and use a checkbook indicated that Scholin was not as limited as the limitations 

in Drachler’s opinion indicated.6

 The ALJ further noted that “[t]he physical and mental 

capabilities necessary to performing many of the[se] tasks . . . replicate those necessary 

for obtaining and maintaining employment.” (Tr. at 32). 

 Inconsistencies between a claimant’s admitted daily activities and a treating 

physician’s opinion is an appropriate factor to consider while determining how much 

weight to give a treating physician’s opinion. See Morgan, 169 F.3d at 601 (favorably 

 

5

 In her hearing testimony Ms. Scholin denied providing care for the disabled parents of her fiancé. Rather she testified that she stayed in her room and had provided no services or work since 2007. (Tr. at 57–58). Yet the ALJ was entitled to rely on the Claimant’s treatment records and her function report, both of which were admitted in 

evidence, in finding to the contrary. Given these records, the ALJ had an adequate evidentiary basis on which to reject Ms. Scholin’s testimony that she was not the primary caregiver to her fiancé’s parents. 

6

 The ALJ included other activities that Scholin participated in on a daily basis, including watching movies, grooming herself, and spending time with others. (Tr. 32.) 

However, the Court does not find these activities to be indicative of an ability to work or contradictory with Drachler’s finding of disability. See generally Garrison v. Colvin, 759 

F.3d 995, 1014–15 (9th Cir. 2014). 

Case 2:15-cv-02334-GMS Document 17 Filed 03/06/17 Page 8 of 19
- 9 - 

1 

2 

3 

4 

5 

6 

7 

8 

9 

10 

11 

12 

13 

14 

15 

16 

17 

18 

19 

20 

21 

22 

23 

24 

25 

26 

27 

28 

referring to the ALJ’s consideration of the inconsistencies between the treating 

physician’s findings of “marked limitations” and the claimant’s admitted activities). 

Here, the ALJ noted Scholin’s daily activities and their inconsistency with Scholin’s 

alleged medical impairments early in her opinion. (Tr. 32.) The ALJ found that these 

daily activities were inconsistent with the “severe physical and mental impairments” 

reflected in parts of her medical record, (Id.), and further found them as a basis for 

discounting Dr. Drachler’s opinion. (See Tr. 33 (“Moreover, this opinion remains 

unsupported by the claimant’s admitted activities of daily living.”).) Therefore, the ALJ 

did not err in considering the inconsistencies between Scholin’s daily activities and 

Drachler’s findings while determining how much weight to give his opinion. 

 Based on the present record this Court cannot conclude, however, that the ALJ 

adequately supported her assertion that Drachler relied too heavily on the claimant’s 

subjective reports. “An ALJ may reject a treating physician’s opinion if it is based to a 

large extent on a claimant’s self-reports that have been properly discounted as 

incredible,” but this generally applies where there is “little independent analysis or 

diagnosis.” Tommasetti v. Astrue, 533 F.3d 1035, 1041 (9th Cir. 2008). Unlike 

Tommasetti, the record in this case reflects that Scholin was diagnosed with asthma and 

COPD, which were verified through diagnostic tests beyond the claimant’s self-reported 

symptoms. (Tr. 429–433, 515–16, 519, 840–41, 1535–46.) Further, the reports indicate 

at the least that she suffered at least some episodes of “acute COPD exacerbation.” (Tr. 

429–433.) It was therefore improper to assert that Drachler relied too heavily on 

Scholin’s self-reports while forming his medical opinion when there are at least a few 

verified instances of “acute COPD exacerbation” supported by the record. 

 Even so, however, that error was not prejudicial. The ALJ relied on other proper 

evidence in the record to find that Drachler’s medical opinion should be given little 

weight. Specifically, she noted that Scholin did not see Dr. Drachler frequently, that Ms. 

Scholin did not keep treatment appointments with Dr. Drachler, that she ignored 

treatment advice and continued smoking, and that Scholin’s daily activities, including 

Case 2:15-cv-02334-GMS Document 17 Filed 03/06/17 Page 9 of 19
- 10 - 

1 

2 

3 

4 

5 

6 

7 

8 

9 

10 

11 

12 

13 

14 

15 

16 

17 

18 

19 

20 

21 

22 

23 

24 

25 

26 

27 

28 

being the principal caregivers for her fiancé’s parents, were inconsistent with his 

findings. (Tr. 33.) Given that the ALJ had other legitimate reasons for discrediting 

Drachler’s medical opinion, this Court can conclude from the record that the result was 

unchanged by the ALJ’s error. Molina, 674 F.3d at 1115. The ALJ’s error in asserting 

that Drachler relied too heavily on Scholin’s self-reports is therefore harmless, and does 

not merit a remand. 

 2. Dr. Monroe

 Dr. Monroe filed out a checkbox questionnaire opining that Ms. Scholin cannot sit 

or stand for more than an hour during an eight-hour work day and is essentially precluded 

from obtaining employment due to her medical conditions, specifically her chronic 

dermatitis and COPD. (Tr. 1030, 1032.) Dr. Monroe also found that Scholin cannot lift 

or carry more than five pounds at a time. (Tr. 1032.) The ALJ discredited the opinion of 

Scholin’s primary care physician, Dr. Monroe, because she found that 1) the opinion that 

Scholin was disabled due to dermatitis, COPD and asthma was unsupported by the 

medical evidence of record, including the physician’s own treating notes, 2) his opinion 

was internally inconsistent and 3) the course of treatment suggested by Dr. Monroe was 

inconsistent with his description of Scholin’s limitations. (Tr. 33.) 

 In rejecting Scholin’s claim that she was disabled by her dermatitis, the ALJ 

properly noted that the objective medical record as well as Scholin’s activities were 

inconsistent with his finding of severe limitations. See Lester, 81 F.3d at 831 (explaining 

that “conflict with testimony from the claimant himself and with medical reports 

contained in the record” is a valid reason for rejecting a treating physician’s medical 

opinion). The objective medical record indicated that Scholin’s medical conditions 

improved under treatment, to the point where her conditions did not severely limit her 

behavior or activities. For example, Scholin’s markedly elevated IgE level of above 6000 

that resulted in her diagnosis of JOB syndrome decreased to 4,500 under appropriate 

care, (Tr. at 30, 34, 890, 1018). The ALJ further noted that although Scholin denied any 

adverse side effects from her dermatitis medication, she was non-compliant with her 

Case 2:15-cv-02334-GMS Document 17 Filed 03/06/17 Page 10 of 19
- 11 - 

1 

2 

3 

4 

5 

6 

7 

8 

9 

10 

11 

12 

13 

14 

15 

16 

17 

18 

19 

20 

21 

22 

23 

24 

25 

26 

27 

28 

treatment regimen, a choice that is at odds with an individual suffering from severely 

limiting medical conditions. (Tr. at 30, 34, 882, 1020, 1023.) And that, further, Ms. 

Scholin failed to attend scheduled appointments which resulted in a gap of treatment 

from May 12 through January 2013. (Tr. 1403.); see also 20 C.F.R. § 416.927(c)(2) 

(listing “[l]ength of the treatment relationship and the frequency of examination” as valid 

factors to consider when weighing a treating physician’s testimony). In sum, both the 

objective medical record as well as Scholin’s repeated decisions not to follow her 

treatment regime are at odds with Dr. Monroe’s findings, and inconsistency within the 

record is a valid consideration for the ALJ to weigh when determining how much weight 

to assign to a treating physician’s medical opinion. See Andrews v. Shalala, 53 F.3d 

1035, 1043 (9th Cir. 1995) (inconsistencies in the record and a treating physician’s 

findings are valid reasons for discrediting a treating physician’s opinion). 

 The presence of discrepancies between a treating physician’s treatment notes and 

his medical assessment is a valid reason for discrediting his opinion. See Bayliss v. 

Barnhart, 427 F.3d 1211, 1216 (9th Cir. 2005) (permitting an ALJ to discredit a treating 

physician’s opinion based on contradictions between his findings and his treatment 

notes). To the extent that the ALJ limits her acceptance of Dr. Monroe’s opinion based 

on its inconsistency with his own treatment notes, she does note that “treating physicians 

consistently observed that she appeared well, alert, and in no acute distress. . . . As well, 

physical examinations were typically fairly unremarkable.” (Tr. 30, 736, 741, 743, 748, 

752, 754, 1203, 1212, 1215, 1223, 1225, 1477, 1480, 1488, 1490.) In making this 

observation the ALJ cited to Dr. Monroe’s treating notes from 2011 onward which in fact 

reflect no serious malady from claimant. Rather, although she now claims disability from 

2005 based on her COPD, she consults Dr. Monroe in 2011 for minor matters in which 

her functionality seems to be reaffirmed, and Dr. Monroe routinely notes that she is in no 

apparent distress (“nad”). (See, e.g. Tr. 730, 736, 748, 752, 754, 757, 1212, 1215, 1223, 

1225, 1477, 1480, 1488, 1490.) These records are inconsistent with Dr. Monroe’s 

finding of severe limitation, and the ALJ properly rejected his opinion based upon them. 

Case 2:15-cv-02334-GMS Document 17 Filed 03/06/17 Page 11 of 19
- 12 - 

1 

2 

3 

4 

5 

6 

7 

8 

9 

10 

11 

12 

13 

14 

15 

16 

17 

18 

19 

20 

21 

22 

23 

24 

25 

26 

27 

28 

 As it pertains to the COPD and asthma, the ALJ rejected Scholin’s claim that she 

was disabled by her COPD and asthma for the reasons set forth in her decision and 

reviewed in more complete detail above. (Tr. at 29, 33–34.) 

 However, based on the record currently before the Court, the ALJ did not 

adequately support her assertion that the course of treatment suggested by Dr. Monroe 

was inconsistent with his description of Scholin’s limitations. (Tr. 33.) It is unclear 

exactly what the ALJ meant by asserting that Dr. Monroe did not suggest a course of 

treatment consistent with the claimant’s alleged limitations: in the record, Dr. Monroe’s 

assessment lists several medications taken by the claimant, as well as their side effects. 

(Tr. 1034.) While the ALJ did go through the medical record in detail earlier in her 

opinion, she did not explain why the medications assigned by Dr. Monroe and listed in 

his assessment were inconsistent with Scholin’s limitations, or what treatment “one 

would expect for a totally disabled individual.” (Tr. 28.) Rather, the only support given 

to bolster this statement is a general citation to Dr. Monroe’s assessment. (Tr. 33.); See 

Thomas v. Barnhart, 278 F.3d at 954 (“Substantial evidence is relevant evidence which, 

considering the record as a whole, a reasonable person might accept as adequate to 

support a conclusion.”).7

 Dr. Monroe did prescribe a course of treatment to Scholin, and 

in the absence of further explanation, it is unclear why his course of treatment was 

inconsistent with his finding of severe limitation. Therefore, the ALJ erred by failing to 

provide adequate evidence for relying on this factor, even though it could be a valid 

consideration when adequately explained. Lester, 81 F.3d at 831 

 Yet the ALJ did provide other substantial evidence to support other specific 

and legitimate reasons for discrediting Dr. Monroe’s opinion, and thus this error was not 

prejudicial. As explained above, the ALJ relied on inconsistencies in the record, 

specifically the claimant’s activities and the objective medical evidence. The ALJ also 

properly explained that Dr. Monroe’s assessment was internally inconsistent because it 

 

7

 In any event much of Ex. 25F, to which the ALJ generally cites to support this insufficiently explained statement, is not legible and some of the pages are entirely blank. (Tr. 1024–1040.) 

Case 2:15-cv-02334-GMS Document 17 Filed 03/06/17 Page 12 of 19
- 13 - 

1 

2 

3 

4 

5 

6 

7 

8 

9 

10 

11 

12 

13 

14 

15 

16 

17 

18 

19 

20 

21 

22 

23 

24 

25 

26 

27 

28 

asserted that the claimant is “incapable of even [a] low stress” work environment and yet 

also “capable of [a] low stress” work environment.” (Tr. 33, 1036.) The presence of 

internal inconsistencies within a physician’s opinion is a legitimate reason for 

discrediting their opinion.8

 Ghanim v. Colvin, 763 F.3d 1154, 1161 (9th Cir. 2014) (“A 

conflict between treatment notes and a treating provider's opinions may constitute an 

adequate reason to discredit the opinions of a treating physician or another treating 

provider.”). Because the ALJ provided specific and legitimate reasons to discredit Dr. 

Monroe’s opinion, that were supported by substantial evidence in the record, the Court 

can determine that the errors did not alter the ALJ’s ultimate determination, and thus the 

ALJ’s other error in weighing Dr. Monroe’s testimony was not prejudicial. Molina, 674 

F.3d at 1115. 

 3. Dr. Ebner 

The ALJ dismissed the opinion of Dr. Ebner, the claimant’s treating dermatologist, 

because he claimed to treat the claimant monthly and reported “poorly controlled 

symptoms that would result in an inability to work,” but failed to mention the claimant’s 

“noncompliance or lapse in care for almost one year.” (Tr. 34.) The ALJ also discredited 

Dr. Ebner’s opinion because it was conclusory and unsupported by the record. (Tr. 34.) 

 The ALJ properly discredited Dr. Ebner’s opinion due to his failure to note that 

the claimant neglected to keep her appointments for almost a year, and that when she did 

take her medication, she improved. (Tr. 34.) Impairments that can be treated effectively 

through treatment are not grounds for disability. Warre v. Comm’r of Soc. Sec. Admin., 

439 F.3d 1001, 1006 (9th Cir. 2006). Furthermore, Ebner’s assessment, detailing poorly 

controlled symptoms that preclude work, is arguably inconsistent with his earlier reports 

of success with medication, particularly considering Ebner’s failure to mention his 

patient’s noncompliance with his treatment plan in his assessment. (Tr. 34.) Because this 

 

8

 Scholin contests this interpretation of Dr. Monroe’s medical opinion and instead provides her own, but interpretation of the medical record is within the province assigned to the ALJ, not this Court. Therefore, because the “the evidence can support either outcome,” this Court accepts the interpretation provided by the ALJ. Matney, 981 F.2d at 

1019. 

Case 2:15-cv-02334-GMS Document 17 Filed 03/06/17 Page 13 of 19
- 14 - 

1 

2 

3 

4 

5 

6 

7 

8 

9 

10 

11 

12 

13 

14 

15 

16 

17 

18 

19 

20 

21 

22 

23 

24 

25 

26 

27 

28 

is a rational interpretation of the record, “we must defer to the ALJ’s conclusion.” 

Batson, 359 F.3d at 1198. 

 The ALJ also noted that Ebner’s assessment was “quite conclusory” and provided 

“very little explanation” for his reasoning. An “ALJ need not accept a treating 

physician's opinion which is ‘brief and conclusionary in form with little in the way of 

clinical findings to support [its] conclusion.’ ” Magallanes, 881 F.2d at 751 (quoting 

Young v. Heckler, 803 F.2d 963, 968 (9th Cir.1986)). The ALJ noted the inconsistencies 

between Dr. Ebner’s “check-box” assessment and treating notes, and thus this is not a 

situation where the “record supports [the physician’s] opinions because they are 

consistent both with Claimant's testimony at the hearing and with [the physician’s] own 

extensive treatment notes.” Burrell, 775 F.3d at 1140. Therefore, the ALJ properly 

provided specific and legitimate reasons for discrediting Dr. Ebner’s opinion. 

 4. Dr. Brown 

 The ALJ discredited Dr. Brown, Scholin’s treating psychiatrist, because she 

determined that his findings were “quite conclusory” and “unsupported by this 

physician’s own [clinical] findings,” including Scholin’s mental status examinations and 

the Global Assessment of Functioning (“GAF”) scores. (Tr. 33.) The ALJ did a 

longitudinal review of Plaintiff’s mental health records and noted with citations to the 

record that “the claimant has not offered the same complaints to treating professionals as 

she has in connection with this application.” (Tr. 30.) The ALJ noted for example that 

she avoided people due to her skin condition not her anxiety, and related to other treating 

physicians that her problems are primarily environmentally related. (Id.) Treating notes 

through the period reflected that she had no evidence of anxiety or depression and that 

she maintained compliance with psychotropic medication and that she denied any side 

effects. (Tr. 30) Ms. Scholin claimed that her mental health was stable in 2012, and she 

often failed to attend follow-up appointments, “which suggests that her symptoms were 

not as severe as alleged.” (Tr. 31; 792–793.) The ALJ also noted that while “the 

claimant’s symptoms increased for brief periods, this was attributed to stress and 

Case 2:15-cv-02334-GMS Document 17 Filed 03/06/17 Page 14 of 19
- 15 - 

1 

2 

3 

4 

5 

6 

7 

8 

9 

10 

11 

12 

13 

14 

15 

16 

17 

18 

19 

20 

21 

22 

23 

24 

25 

26 

27 

28 

relationship issues.” (Tr. 31.) This finding is reflected in the ALJ’s limitation of the 

claimant to “lower stress jobs.” (Tr. 27.) 

 The ALJ properly discredited Dr. Brown’s testimony because it was contrary to 1) 

Dr. Brown’s mental status examinations and 2) the GAF scores of record. The ALJ noted 

that Dr. Brown’s mental status examinations of the claimant were “fairly unremarkable.” 

(Tr. 33, 1045–46, 1290–91.) Earlier in her opinion, she also noted that Scholin’s GAF 

scores ranged from 50 to 55 ranging from some mental impairment to moderate 

symptoms of impairment. (Tr. 31.) The ALJ noted that GAF scores are somewhat 

limited due to their global nature, but they remain a relevant factor in determining a 

claimant’s mental health. (Id.) These inconsistencies, when coupled with Brown’s 

failure to “provide any specific work limitations,” constituted specific and legitimate 

reasons for discrediting Brown’s opinion, and therefore the ALJ did not err in doing so. 

B. The ALJ Provided Specific, Clear and Convincing Reasons for 

Discrediting Scholin’s Testimony 

 Once a claimant establishes that objective medical evidence illustrates an 

impairment that could reasonably cause the symptoms alleged, “and there is no evidence 

of malingering, ‘the ALJ can reject the claimant’s testimony about the severity of her 

symptoms only by offering specific, clear and convincing reasons for doing so.’ ” 

Garrison, 759 F.3d at 1014–15 (quoting Smolen v. Chater, 80 F.3d 1273, 1282 (9th Cir. 

2006)). This is the most stringent standard required in social security cases. Id. In 

determining whether the claimant’s testimony regarding her symptoms is credible, the 

ALJ can consider a multitude of factors, including: 

(1) ordinary techniques of credibility evaluation, such as the 

claimant’s reputation for lying, prior inconsistent statements 

concerning the symptoms, and other testimony by the 

claimant that appears less than candid; (2) unexplained or 

inadequately explained failure to seek treatment or to follow a 

prescribed course of treatment; and (3) the claimant’s daily 

activities. 

Smolen v. Chater, 80 F.3d at 1284. The ALJ can also consider “the claimant’s prior work 

Case 2:15-cv-02334-GMS Document 17 Filed 03/06/17 Page 15 of 19
- 16 - 

1 

2 

3 

4 

5 

6 

7 

8 

9 

10 

11 

12 

13 

14 

15 

16 

17 

18 

19 

20 

21 

22 

23 

24 

25 

26 

27 

28 

record . . . and observations by treating and examining physicians and third parties about 

the claimant’s symptoms and their effects.” Id. at 1285. 

 The ALJ in this case fully explained her reasoning for finding the claimant’s 

testimony “not entirely credible.” (Tr. 28.) The ALJ provided a detailed summary of the 

Ms. Scholin’s medical file, including the objective laboratory findings as well as her 

treating physicians’ observations that were inconsistent with Ms. Scholin’s symptom 

testimony and demonstrated favorable response to Scholin’s compliance with the 

Doctor’s prescribed treatment, when she chose to follow it. (Tr. 28–31.) The ALJ noted 

that despite Scholin’s testimony asserting debilitating COPD/asthma and diabetes, 

Scholin told her treating physicians that she did not check her blood sugar anymore and, 

despite having told her doctor’s otherwise, she testified that she continued to smoke up 

until a few weeks before her January 2014 hearing. (Tr. 29.)9

 This sort of inconsistency 

between the claimant’s compliance with her treatment regimen and her testimony is 

acceptable for the ALJ to consider during the credibility analysis. Smolen, 80 F.3d at 

1284. Likewise, the ALJ noted that Scholin “failed to attend scheduled appointments, 

which resulted in a gap of treatment from May 2012 until January 2013” for her skin 

disorder. (Tr. 30.) The ALJ further noted large gaps in the treatment of her diabetic 

condition, (Tr. 29), her lung disorders, (Tr. 29), and her mental health, (Tr. 30–31). 

These large and unexplained gaps in treatment were inconsistent with the level of 

discomfort Scholin alleged, and they did “not work in the claimant’s favor” during the 

ALJ’s credibility analysis. (Tr. 30.) 

 

9

 In her opening brief Ms. Scholin reiterates the false assertion—apparently also made to Dr. Drachler in early 2012—that she quit smoking sometime in December 2011. (See Doc. 12 at 3 (“When next seen on January 31, 2012, Ms. Scholin had quit smoking about six weeks earlier”)); see also Dr., Drachler’s February 1, 2012 letter to Dr. Monroe 

(Tr. 831 (“She quit smoking about six weeks ago”).) Nevertheless at her hearing on January 3, 2014 Ms. Scholin testified in response to a question by the ALJ that she had not smoked since December 9, 2013, “so almost for a month” prior to the hearing. (Tr. 60.) Thus, it is not clear that Ms. Scholin ever quit smoking. Despite her earlier statement to Dr. Drachler, the ALJ certainly had the ability based on Ms. Scholin’s hearing testimony to find that Ms. Scholin had not quit smoking since December 2013. Based on that same testimony, the Court rejects the assertion in Scholin’s brief that she 

quit smoking in December 2011. 

Case 2:15-cv-02334-GMS Document 17 Filed 03/06/17 Page 16 of 19
- 17 - 

1 

2 

3 

4 

5 

6 

7 

8 

9 

10 

11 

12 

13 

14 

15 

16 

17 

18 

19 

20 

21 

22 

23 

24 

25 

26 

27 

28 

 The ALJ also relied on “observations by treating and examining physicians” in 

making her decision. Id. at 1285. For example, the ALJ cited to several entries in the 

record and noted that contrary to Scholin’s testimony, her treating physicians’ notes 

“consistently observed that she appeared well, alert, and in no acute distress” during her 

examinations. (Tr. 30.) The ALJ noted that this “observation is only one among many 

being relied upon in reaching a conclusion,” but the “healthy and comfortable appearance 

demonstrated by the claimant is in sharp contrast” to the debilitating discomfort she 

alleges. (Tr. 20.) The ALJ also cited to an examining physician, Dr. Bowen, who “did 

not believe that the claimant was being entirely honest” to him during his exam. (Tr. 32.) 

Dr. Bowen’s assessment specifically noted that Ms. Scholin “was very dramatic and 

seemed to be embellishing,” and questioned Ms. Scholin’s honesty while responding to 

his questions. (Tr. 816.) Relying on the observations of an examining physician is an 

acceptable method of determining a claimant’s credibility, and therefore the ALJ did not 

err in considering Dr. Bowen’s notes while assessing Ms. Scholin’s credibility. Smolen 

v. Chater, 80 F.3d at 1285. 

 The ALJ noted that Scholin’s reported daily activities were inconsistent with her 

testimony. “ALJs must be especially cautious in concluding that daily activities are 

inconsistent with testimony about pain, because impairments that would unquestionably 

preclude work and all the pressures of a workplace environment will often be consistent 

with doing more than merely resting in bed all day.” Garrison, 759 F.3d at 1016. 

However, in this case the ALJ found that Scholin’s reported abilities to perform the 

specific daily duties she mentioned, including acting as a care giver for her fiancé’s 

parents, “replicated those necessary for obtaining and maintaining employment.” (Tr. 

32.) Furthermore, the ALJ also noted that Scholin’s daily activities often shifted. (Tr. 

31.) For example, during the hearing she testified that she stays in her room at all times, 

but the record illustrates that is not so, as she has also reported that she serves as the 

caregiver for her fiancé’s parents. (Tr. 31.) Inconsistencies such as these are relevant 

inquiries into the claimant’s credibility, and the ALJ did not err in considering them or in 

Case 2:15-cv-02334-GMS Document 17 Filed 03/06/17 Page 17 of 19
- 18 - 

1 

2 

3 

4 

5 

6 

7 

8 

9 

10 

11 

12 

13 

14 

15 

16 

17 

18 

19 

20 

21 

22 

23 

24 

25 

26 

27 

28 

the conclusions she reached because of them. 

C. The ALJ Did Not Err in Relying on Vocational Testimony 

 “A claimant establishes a prima facie case of disability by showing that his 

impairments prevent him from doing his previous job. The burden then shifts to the 

Secretary to show that the claimant can do other substantial gainful activity considering 

his age, education, and work experience.” DeLorme v. Sullivan, 924 F.2d 841, 849–50 

(9th Cir. 1991) (internal citations omitted). If an ALJ chooses to rely on a vocational 

expert when making this determination, “the hypothetical [posed to the vocational expert] 

must consider all of the claimant’s limitations.” Light v. Soc. Sec. Admin., 119 F.3d 789, 

793 (9th Cir. 1997), as amended on reh’g (Sept. 17, 1997) (quoting Andrews v. Shalala,

53 F.3d 1035, 1044 (9th Cir.1995)). “If the hypothetical does not reflect all the 

claimant’s limitations. . . . the expert’s testimony has no evidentiary value to support a 

finding that the claimant can perform jobs in the national economy.” DeLorme, 924 F.2d 

at 850. However, the Ninth Circuit recently clarified that that “an ALJ's assessment of a 

claimant adequately captures restrictions related to concentration, persistence, or pace 

where the assessment is consistent with restrictions identified in the medical testimony.” 

Stubbs-Danielson v. Astrue, 539 F.3d 1169, 1174 (9th Cir. 2008).

 The ALJ found that “with regard to concentration, persistence, or pace, the 

claimant has moderate difficulties.” (Tr. 26.) She further found that Scholin cannot 

perform any past relevant work. (Tr. 35.) Therefore, the burden shifted “to the Secretary 

to show that the claimant can do other substantial gainful activity considering [her] age, 

education, and work experience.” DeLorme, 924 F.2d at 849–50 (internal citations 

omitted). In finding that the claimant could perform other jobs in the national economy, 

the ALJ relied on a vocational expert’s testimony. (Tr. 35.) The ALJ did not include all 

of Scholin’s limitations, namely with regards to “concentration, persistence and pace,” in 

the hypothetical she posed to the expert. (Tr. 73.) However, as in Stubbs-Danielson, 

although the ALJ did not include the “restrictions related to concentration, persistence, or 

pace,” she did include other limitations within her hypothetical that are “consistent with 

Case 2:15-cv-02334-GMS Document 17 Filed 03/06/17 Page 18 of 19
- 19 - 

1 

2 

3 

4 

5 

6 

7 

8 

9 

10 

11 

12 

13 

14 

15 

16 

17 

18 

19 

20 

21 

22 

23 

24 

25 

26 

27 

28 

restrictions in the medical testimony.” Stubbs-Danielson, 539 F.3d at 1174. The ALJ’s 

hypothetical stated that individual in question must be restricted to “lower stress” work 

that is “simple, routine and repetitive,” and that involved only “occasional decision 

making.” (Tr. 73.) This is in accord with the medical testimony in the record. For 

example, the state agency physicians that met with Scholin did not note any mental 

limitations in regards to her concentration. (Tr. 809–819, 1109–1112.) Although Dr. 

Brown noted that Scholin struggled with “maintaining concentration for extended 

periods,” (Tr. 1389), the ALJ properly discredited his medical opinion, and thus it did not 

carry controlling weight in her analysis. Therefore, as in Stubbs-Danielson, the “ALJ's 

assessment of a claimant adequately captures restrictions related to concentration, 

persistence, or pace where the assessment is consistent with restrictions identified in the 

medical testimony,” and thus the ALJ did not rely on flawed vocational expert testimony. 

Stubbs-Danielson, 539 F.3d at 1174. 

CONCLUSION 

 While the ALJ made minor errors while determining the weight she should assign 

to the treating physicians in this case, none of these were prejudicial. Therefore, the 

ALJ’s decision is affirmed. 

IT IS THEREFORE ORDERED that the ALJ’s decision is AFFIRMED. The 

Clerk of Court is directed to terminate and enter judgment accordingly. 

 Dated this 6th day of March, 2017. 

Honorable G. Murray Snow

United States District Judge

Case 2:15-cv-02334-GMS Document 17 Filed 03/06/17 Page 19 of 19