Case 2:17-cv-02167-JZB Document 26 Filed 09/27/18 Page 1 of 25
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF ARIZONA
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`Patrick Dingman,
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`Plaintiff,
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`v.
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`Commissioner
`Administration,
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`Defendant.
`
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`of
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`Social
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`No. CV-17-02167-PHX-JZB
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`ORDER
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`Security
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`Plaintiff Patrick Keith Dingman seeks review under 42 U.S.C. § 405(g) of the final
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`decision of the Commissioner of Social Security (“the Commissioner”), which denied him
`disability insurance benefits under sections 216(i), 223(d), and 1614(a)(3)(A) of the Social
`Security Act. Because the decision of the Administrative Law Judge (“ALJ”) is supported
`by substantial evidence and is not based on legal error, the Commissioner’s decision will
`be affirmed.
`I.
`Background.
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`On February 11, 2011, Plaintiff applied for disability insurance benefits and
`supplemental security income, alleging disability beginning June 1, 2006. On October 3,
`2012, he appeared with his attorney and testified at a hearing before the ALJ. A vocational
`expert also testified. At the hearing, Plaintiff’s counsel requested an amended onset date of
`December 1, 2009. On October 23, 2012, the ALJ issued a decision that Plaintiff was not
`disabled within the meaning of the Social Security Act. The Appeals Council denied
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`Case 2:17-cv-02167-JZB Document 26 Filed 09/27/18 Page 2 of 25
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`Plaintiff’s request for review of the hearing decision, making the ALJ’s decision the
`Commissioner’s final decision.
`II.
`Legal Standard.
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`The district court reviews only those issues raised by the party challenging the ALJ’s
`decision. See Lewis v. Apfel, 236 F.3d 503, 517 n.13 (9th Cir. 2001). The court may set
`aside the Commissioner’s disability determination only if the determination is not
`supported by substantial evidence or is based on legal error. Orn v. Astrue, 495 F.3d 625,
`630 (9th Cir. 2007). Substantial evidence is more than a scintilla, less than a preponderance,
`and relevant evidence that a reasonable person might accept as adequate to support a
`conclusion considering the record as a whole. Id. In determining whether substantial
`evidence supports a decision, the court must consider the record as a whole and may not
`affirm simply by isolating a “specific quantum of supporting evidence.” Id. As a general
`rule, “[w]here the evidence is susceptible to more than one rational interpretation, one of
`which supports the ALJ’s decision, the ALJ’s conclusion must be upheld.” Thomas v.
`Barnhart, 278 F.3d 947, 954 (9th Cir. 2002) (citations omitted).
`Harmless error principles apply in the Social Security Act context. Molina v. Astrue,
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`674 F.3d 1104, 1115 (9th Cir. 2012). An error is harmless if there remains substantial
`evidence supporting the ALJ’s decision and the error does not affect the ultimate non-
`disability determination. Id. The claimant usually bears the burden of showing that an error
`is harmful. Id. at 1111.
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`The ALJ is responsible for resolving conflicts in medical testimony, determining
`credibility, and resolving ambiguities. Andrews v. Shalala, 53 F.3d 1035, 1039 (9th Cir.
`1995). In reviewing the ALJ’s reasoning, the court is “not deprived of [its] faculties for
`drawing specific and legitimate inferences from the ALJ’s opinion.” Magallanes v. Bowen,
`881 F.2d 747, 755 (9th Cir. 1989).
`III. The ALJ’s Five-Step Evaluation Process.
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`To determine whether a claimant is disabled for purposes of the Social Security Act,
`the ALJ follows a five-step process. 20 C.F.R. § 404.1520(a). The claimant bears the
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`Case 2:17-cv-02167-JZB Document 26 Filed 09/27/18 Page 3 of 25
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`burden of proof on the first four steps, but at step five, the burden shifts to the
`Commissioner. Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999).
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`At the first step, the ALJ determines whether the claimant is engaging in substantial
`gainful activity. 20 C.F.R. § 404.1520(a)(4)(i). If so, the claimant is not disabled and the
`inquiry ends. Id. At step two, the ALJ determines whether the claimant has a “severe”
`medically determinable physical or mental impairment. § 404.1520(a)(4)(ii). If not, the
`claimant is not disabled and the inquiry ends. Id. At step three, the ALJ considers whether
`the claimant’s impairment or combination of impairments meets or medically equals an
`impairment listed in Appendix 1 to Subpart P of 20 C.F.R. Pt. 404. § 404.1520(a)(4)(iii).
`If so, the claimant is automatically found to be disabled. Id. If not, the ALJ proceeds to step
`four. At step four, the ALJ assesses the claimant’s residual functional capacity (“RFC”)
`and determines whether the claimant is still capable of performing past relevant work. §
`404.1520(a)(4)(iv). If so, the claimant is not disabled and the inquiry ends. Id. If not, the
`ALJ proceeds to the fifth and final step, where he determines whether the claimant can
`perform any other work based on the claimant’s RFC, age, education, and work experience.
`§ 404.1520(a)(4)(v). If so, the claimant is not disabled. Id. If not, the claimant is disabled.
`Id.
`At step one, the ALJ found that Plaintiff meets the insured status requirements of
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`the Social Security Act through December 31, 2011, and that he has not engaged in
`substantial gainful activity since June 1, 2006. At step two, the ALJ found that Plaintiff has
`the following severe impairments: “narcolepsy, sleep apnea, and obesity (20 CFR
`404.1420(c)).” (AR 407.)
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`At step three, the ALJ determined that, through the date of last insured, Plaintiff did
`not have an impairment or combination of impairments that meets or medically equals an
`impairment listed in Appendix 1 to Subpart P of 20 C.F.R. Pt. 404. At step four, the ALJ
`found that Plaintiff has the RFC to perform:
`at least light work and some medium exertion jobs as defined in 20 CFR
`404.1567(c) except the claimant could never climb ladders, ropes or
`scaffolds. He must avoid hazards such as moving machinery or unprotected
`heights.
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`Case 2:17-cv-02167-JZB Document 26 Filed 09/27/18 Page 4 of 25
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`(AR 408.)
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`The ALJ further found that Plaintiff, through the date of last insured, was unable to
`perform any of his past relevant work. At step five, the ALJ concluded that, considering
`Plaintiff’s age, education, work experience, and residual functional capacity, through the
`date last insured, “there were jobs that existed in significant numbers in the national
`economy that Plaintiff could have performed.” (AR 414.)
`IV. Analysis.
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`Plaintiff argues the ALJ’s decision is defective for four reasons: (1) “[t]he ALJ erred
`by omitting/rejecting the medical opinions of Dr. Anderson, treating neurologist/sleep
`specialist” (doc. 14 at 9-20); (2) the ALJ erred by crediting two non-examining physician
`opinions with significant weight (id. at 20); (3) “[t]he ALJ erred by rejecting [Plaintiff’s]
`symptom testimony” (id. at 22-27); and (4) the ALJ erred “by not finding cataplexy and
`hypersomnia were ‘severe’” medical impairments at step two (id. at 9 n.5). The Court will
`address each argument below;
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`b. Weighing of Medical Source Evidence.
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`Plaintiff first argues that the ALJ improperly weighed the medical opinions of his
`treating physician, Dr. Troy Anderson, and examining physicians Drs. Larry Nichols, and
`Brian Briggs.
`Legal Standard.
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`1.
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`The Ninth Circuit distinguishes between the opinions of treating physicians,
`examining physicians, and non-examining physicians. See Lester v. Chater, 81 F.3d 821,
`830 (9th Cir. 1995). Generally, an ALJ should give greatest weight to a treating physician’s
`opinion and more weight to the opinion of an examining physician than to one of a non-
`examining physician. See Andrews v. Shalala, 53 F.3d 1035, 1040-41 (9th Cir. 1995); see
`also 20 C.F.R. § 404.1527(c)(2)-(6) (listing factors to be considered when evaluating
`opinion evidence, including length of examining or treating relationship, frequency of
`examination, consistency with the record, and support from objective evidence). If it is not
`contradicted by another doctor’s opinion, the opinion of a treating or examining physician
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`Case 2:17-cv-02167-JZB Document 26 Filed 09/27/18 Page 5 of 25
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`can be rejected only for “clear and convincing” reasons. Lester, 81 F.3d at 830 (citing
`Embrey v. Bowen, 849 F.2d 418, 422 (9th Cir. 1988)). A contradicted opinion of a treating
`or examining physician “can only be rejected for specific and legitimate reasons that are
`supported by substantial evidence in the record.” Lester, 81 F.3d at 830-31 (citing Andrews,
`53 F.3d at 1043).
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`An ALJ can meet the “specific and legitimate reasons” standard “by setting out a
`detailed and thorough summary of the facts and conflicting clinical evidence, stating his
`interpretation thereof, and making findings.” Cotton v. Bowen, 799 F.2d 1403, 1408 (9th
`Cir. 1986). But “[t]he ALJ must do more than offer [her] conclusions. [She] must set forth
`[her] own interpretations and explain why they, rather than the doctors’, are correct.”
`Embrey, 849 F.2d at 421-22. The Commissioner is responsible for determining whether a
`claimant meets the statutory definition of disability and does not give significance to a
`statement by a medical source that the claimant is “disabled” or “unable to work.” 20
`C.F.R. § 416.927(d).
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`2.
`Dr. Troy Anderson, M.D.
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`A.
`Treatment History and Medical Opinions.
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`Dr. Anderson is a neurologist and sleep specialist who treated Plaintiff from 2011
`through 2016. (AR 238-66, 273-96, 385-93, 301-02, 691-713.) Dr. Anderson rendered
`eight medical opinions on Plaintiff’s functional limitations during that time frame:
` In July 2011, Dr. Anderson opined that Plaintiff could not be gainfully employed
`because of his daytime sleepiness. Dr. Anderson also notes that, at that time,
`Plaintiff had failed multiple medications for narcolepsy and his daytime sleepiness
`persisted. (AR 301-02.)
` In April 2012, Dr. Anderson assessed work limitations from narcolepsy and sleep
`apnea with four narcoleptic episodes daily, symptoms lasting more than three hours,
`severe daytime sleepiness, and a total restriction from unprotected heights/moving
`machinery/driving automotive equipment. Dr. Anderson again noted that
`medications had failed. (AR 305-06.)
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`Case 2:17-cv-02167-JZB Document 26 Filed 09/27/18 Page 6 of 25
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` In July 2012, Dr. Anderson again assessed that Plaintiff’s impairments would limit
`his ability to perform work related activities. He notes that Plaintiff was still
`suffering from narcolepsy and daytime sleepiness, having one episode daily with
`symptoms lasting more than three hours, and advising total restriction from
`unprotected heights/moving machinery/driving automotive equipment. (AR 307-
`08.)
` In September 2012, Dr. Anderson assessed that Plaintiff continued to have
`difficulties with daytime sleepiness and cataplexy, and noted that Plaintiff could
`not afford his medication. Nor could Plaintiff afford the “MR angiogram” that
`Dr. Anderson ordered six months prior. Dr. Anderson concludes that Plaintiff
`“cannot perform work given his difficulties with severe daytime sleepiness” and
`state that “[h]e is to continue to refrain from driving and work with dangerous
`equipment as well as work at heights.” (AR 385-86.)
` In August 2014, Dr. Anderson assessed that Plaintiff “has improved in terms of
`enjoying his life but has not improved to [sic] he can’t go to work.” (AR 702.)
`Dr. Anderson noted that Plaintiff experienced no side effects with Provigil, and that
`he increased the prescribed dosage of the drug to twice per day “to see if we can
`get up to this point.” (Id.) “In the meantime, we continue to support disability.” (Id.)
` In August 2016, Dr. Anderson completed a Medical Assessment of Ability to do
`Work-Related Physical Activities. (AR 740-41.) Therein, he found that Plaintiff’s
`severe sleepiness precluded an 8-hour work day. (AR 740.) Additionally, he found
`that Plaintiff, in an 8-hour work day, had the following limitations: Plaintiff can sit
`for six hours, stand/walk for six hours, lift 50 pounds or more, carry 50 pounds or
`more, and Plaintiff’s moderately severe symptoms would cause him to miss 4-5
`days of work per month. (AR 740-41.) Dr. Anderson also notes that Plaintiff’s
`medication causes side effects including “chest pain” and “palpation[.]” (AR 741.)
` In September 2016, Dr. Anderson completed another Medical Assessment of
`Ability to do Work-Related Physical Activities. (AR 742-43.) Therein, he found
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`Case 2:17-cv-02167-JZB Document 26 Filed 09/27/18 Page 7 of 25
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`that Plaintiff’s Hypersomnia, which causes severe daytime sleepiness, precluded
`Plaintiff from completing an 8-hour work day. (AR 742.) Dr. Anderson added that
`Plaintiff’s symptoms severely impacted Plaintiff’s concentration and ability to stay
`on task, and that he would miss 5+ days of work per month due to his medical
`condition. (AR 742-43.) Dr. Anderson also circled “None” in response to the
`question “Is the patient additionally limited by Pain or fatigue? If yes, set forth the
`degree of limitation.” (AR 743.)
` In October 2016, Dr. Anderson completed a third Medical Assessment of Ability
`to do Work Related Physical Activities. (AR 744-45.) In this assessment, Dr.
`Anderson again opined that Plaintiff’s conditions – in this instance listed as
`“narcolepsy” and “uncontrolled sleepiness” – preclude an 8-hour work day.
`(AR 744.) Dr. Anderson notes that Plaintiff experiences seen episodes on
`“sleepiness” a day, and that the average episode is 2+ hours in duration. (Id.) Dr.
`Anderson represents that Plaintiff’s fatigue is a moderately severe limitation,
`Plaintiff will miss work 5+ days per month, Plaintiff’s medication does not cause
`him side-effectsm and the medical limitations were in existence as of June 1, 2006.
`(AR 745.)
`ALJ Assessment.
`B.
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`Dr. Anderson’s opinions are controverted by the opinion of consultative examiner,
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`Dr. Brian Briggs. (AR 413.) Dr. Briggs examined Plaintiff on May 3, 2016, and opined
`that Plaintiff had fewer limitations than those assessed by Dr. Anderson. (AR 653.) In his
`report, Dr. Briggs concluded that Plaintiff’s conditions would not impose limitations for
`12 continuous months. (AR 657.) Additionally, Dr. Briggs found that Plaintiff had no
`physical limitations, with the exception that Plaintiff can tolerate only occasional exposure
`to unprotected heights, or frequent exposure to moving mechanical parts, and can only
`frequently climb ladders or scaffolds. (AR 660-61.) Dr. Briggs also found that Plaintiff’s
`narcolepsy had improved to the point that it “is no longer an issue.” (AR 657.) Because
`Dr. Anderson’s opinions were contradicted by Dr. Briggs’s opinion, the ALJ may discount
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`Case 2:17-cv-02167-JZB Document 26 Filed 09/27/18 Page 8 of 25
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`Dr. Anderson’s opinions for specific and legitimate reasons supported by substantial
`evidence. Lester, 81 F.3d at 830-31.
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`In his decision, the ALJ affords Dr. Anderson’s opinions, as a whole, “little weight.”
`(AR 412.) Because Dr. Anderson provided multiple opinions spanning roughly five years,
`the ALJ attempts to address each of Dr. Anderson’s opinions by grouping them into three
`“batches”: (1) the opinion from prior to Plaintiff’s date of last insured, December 31, 2011,
`(2) the opinions made in April and July of 2012, and (3) the opinions made in August and
`September of 2016. (AR 412-413.) The ALJ does not address Dr. Anderson’s medical
`opinions from August 2014, or from October 2016. (See id.) The Court will address the
`ALJ’s reasoning for each batch below.
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`C.
`July 2011 Opinion.
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`The ALJ first addresses Dr. Anderson’s July 2011 opinion. (AR 412-13.) In that
`opinion, Dr. Anderson records Plaintiff’s subjective report that “because of his daytime
`sleepiness he still cannot be gainfully employed,” then proceeds to provide a physical
`assessment of Plaintiff, diagnose him with Narcolepsy with Cataplexy, and state in the
`discussion portion of the report that “[w]e support this patient’s disability claim.”
`(AR 301-02.)
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`The ALJ provided the following reasons for discounting Dr. Anderson’s July 2011
`opinion: (1) Dr. Anderson “did not provide an assessment of the claimant’s functional
`limitations at that time” (id.); (2) Dr. Anderson’s “opinion is inconsistent with the
`treatment record noting improvement with medication and a normal physical and
`neurological examination[,]” (id.); and (3) that Dr. Anderson’s opinion is “inconsistent
`with the claimant’s significant activities of daily living during the period” (AR 412-13).
`The Court finds that the ALJ’s decision to discount Dr. Anderson’s opinions was [not]
`based on specific and legitimate reasons.
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`The ALJ’s first reason for discounting Dr. Anderson’s July 2011 medical opinion is
`that Dr. Anderson failed to provide a functional assessment supporting his conclusion.
`(AR 412.) This reason is not legitimate for rejecting a treating physician’s opinion, because
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`Case 2:17-cv-02167-JZB Document 26 Filed 09/27/18 Page 9 of 25
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`in July 2012, Dr. Anderson provided Plaintiff with a functional assessment specifically
`noting that the restrictions therein were in existence prior to December 31, 2011. (AR 307-
`08.)
`The ALJ’s second reason for discounting Dr. Anderson’s July 2011 medical opinion
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`is that the “opinion is inconsistent with treatment record noting improvement with
`medication and a normal physical and neurological examination.” (AR 412.) An ALJ may
`rely on notes indicating a condition responded well to treatment, and impairments that can
`be controlled with treatment are not disabling. See Crane v. Shalala, 76 F.3d 251, 254 (9th
`Cir. 1996) (upholding credibility finding where notes from treating therapist suggested
`depression responded well to treatment); Warre ex rel. E.T. IV v. Barnhart, 439 F.3d 1001,
`1006 (9th Cir. 2006) (“Impairments that can be controlled effectively with medication are
`not disabling for the purpose of determining eligibility for SSI benefits.”).
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`In its response, the Commissioner cites to the record showing Plaintiff’s
`impairments were controllable with
`treatment. Specifically,
`the record shows
`improvement of Plaintiff’s cataplexy with Xyrem (AR 301, 411), and improvement in
`Plaintiff’s narcolepsy on Nuvigil, after the date of last insured (AR 411, 691). Further, Dr.
`Briggs examination notes that narcolepsy “was no longer an issue” due to Nuvigil
`(AR 411, 653, 655). (Doc. 15 at 14.)
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`Plaintiff argues that the Commissioner’s citations are misleading and incomplete
`because Plaintiff’s improvement with Xyrem is noted as being limited to his cataplexy.
`(AR 301), and although Plaintiff was afforded some relief from his narcolepsy with
`Nuvigil, it was “not enough to increase his daytime sleepiness for employment” (AR 691).
`(Doc. 25 at 8-9.) But, in that same treatment record, Dr. Anderson notes that he increased
`Plaintiff’s dosage of Nuvigil to 250mg, and found that with the increased dosage,
`“[Plaintiff] has potential of gaining employment” and “is trying to find work.” (AR 691.)
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`And although Plaintiff “had difficulty getting [Nuvigil] approved” by insurance
`(AR 691), the record shows that he was still taking the medication as of July 4, 2016 (AR
`732). The record does not show that Plaintiff was denied coverage for Nuvigil, or that he
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`was unable to continue procuring it for himself, as he apparently did for several months
`between at least February 2016 and July 2016. (See AR 691, 732.) Additionally, when Dr.
`Briggs examined Plaintiff in May 2016, during the time frame that he was on Nuvigil,
`Dr. Briggs observed that Plaintiff’s narcolepsy was “no longer an issue” due to the
`Nuvigil. (AR 653, 655.) Accordingly, the Court finds that the ALJ’s second reason for
`discounting Dr. Anderson’s July 2011 opinion is supported by specific and legitimate
`reasons, and was not error.
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`D.
`April and July 2012 Opinions.
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`In April and July 2012, Dr. Anderson completed functional assessments of
`Plaintiff’s capacity to engage in work related activities. (AR 305-06, 307-08.) Therein, Dr.
`Anderson indicates that Plaintiff has between one and four narcoleptic episodes per day,
`with each episode lasting more than three hours. (AR 305, 307.) Dr. Anderson opined
`Plaintiff should have no exposure to unprotected heights, moving machinery, or driving.
`(AR 306, 308.) He further opined Plaintiff’s “degree of restriction” was “moderately
`severe,” defined as seriously affecting ability to function, and “severe,” defines as extreme
`impairment in ability to function. (Id.) Dr. Anderson opined that Plaintiff’s restrictions
`existed at that level on or before the date of last insured. (AR 308.)
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`In his decision, the ALJ discounts these opinions for three reasons: (1) the “opinions
`are inconsistent with the medical evidence of record discussed above, including noted
`improvement with Xyrem” (AR 413); (2) the “opinion that claimant experienced
`symptoms four times a day and symptoms lasted for three hours or more is inconsistent
`with the evidence that the claimant was the primary care provider for his young son while
`his wife was at work” (id.); and (3) “these opinions were written after the date last insured”
`(id.). The Commissioner concedes that the ALJ’s third reason is error (doc. 15 at 17 n.5),
`but argues that the ALJ’s first and second reasons are sufficient for the Court to affirm the
`ALJ’s decision. (Id. at 17.) The Court agrees.
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`The ALJ’s first reason, that the opinions are inconsistent with the medical evidence
`of record discussed above, is supported by the fact that Plaintiff showed marked
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`improvement with medication in treating both his cataplexy and his narcolepsy. (See
`AR 301, 691, 732.) As discussed above, impairments that can be controlled with treatment
`are not disabling. See Warre, 439 F.3d at 1006.
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`The ALJ’s second reason, that the statement Plaintiff has symptoms lasting at least
`three or more hours at a time is inconsistent with Plaintiff’s childcare activities, is also
`specific and legitimate. This finding is reasonable. As stated by The Honorable Judge G.
`Murray Snow, in previous review of this case, “If Dingman’s testimony is true, his four-
`year-old child lacks supervision during much of the day. Thus, Dingman’s testimony is
`not credible unless one believes that he and his wife neglect the care of their small child
`during these significant lapses.” (AR 495.) Dr. Anderson’s opinions on this daily
`frequency was necessarily based on Plaintiff’s personal reporting of symptoms. The Court
`agrees with Judge Snow, and finds that the ALJ’s second reason is supported by specific
`and legitimate reasons.
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`Plaintiff argues that “the District Court decision overstated symptoms,” that
`“Dingman is easily arousable” and that “even if this level of sleep would be neglect, this
`is not proof that Dingman’s sleep requirements lack credibility” because “Children can be
`neglected.” (Doc. 25 at 3-4.) Plaintiff’s points are not persuasive. Even assuming,
`arguendo, the ALJ’s second reason was not legitimate, and that Plaintiff’s testimony – and
`thus Dr. Anderson’s report – of the frequency of his narcoleptic episodes is true, the ALJ’s
`decision to discount Dr. Anderson’s 2012 medical opinions is still supported by specific
`and legitimate evidence, as noted above in the Court’s analysis of the ALJ’s first reason
`for discounting the opinions. Accordingly, the Court finds that the ALJ provided specific
`and legitimate reasons for discounting Dr. Anderson’s 2012 medical opinions.
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`E.
`August and September 2016 Opinions.
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`Almost five years after Plaintiff’s date of last insured, Dr. Anderson completed three
`functional assessments of Plaintiff. (See AR 740-41 (August 2016); AR 742-43
`(September 2016); AR 744-45 (October 2016).) In his decision, the ALJ only expressly
`addresses the functional assessments from August and September 2016. (See AR 413.) In
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`Case 2:17-cv-02167-JZB Document 26 Filed 09/27/18 Page 12 of 25
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`August 2016, Dr. Anderson opined Plaintiff had “moderately severe” fatigue that would
`cause him to be off-task 16-20% of a day and that he would miss 4-5 days of work per
`month. (AR 741.) In September 2016, Dr. Anderson opined Plaintiff had “no” limitation
`from his fatigue but would miss over 5 days of work per month. (AR 743.)
`
`The ALJ provides the following three reasons for discounting Dr. Anderson’s
`August and September 2016 opinions: (1) Dr. Anderson’s opinions are inconsistent with
`the medical evidence in the record, including Dr. Briggs’ observation that the claimant’s
`narcolepsy was well controlled with medication and was no longer a problem; (2) the
`opinions are inconsistent with records indicating the claimant was cleared to return to work
`with no restrictions in January 2015 (AR 413, 704, 705); and (3) Dr. Anderson’s statement
`identifying chest pain as a side effect from Plaintiff’s medication (AR 741) is inconsistent
`with his treatment records which indicate that the only side effects from Nuvigil were
`tolerable headaches (AR 691). The Court need only address the first reason, which is both
`specific and legitimate for discounting the opinions of Dr. Anderson.
`
`As discussed above, there is sufficient evidence in the record that Plaintiff’s
`impairments are under control with medication. (See, e.g., AR 655, 691.) The ALJ did not
`err by relying on Dr. Briggs’s concurrent evaluation that Plaintiff’s narcolepsy was well
`controlled with medication and no longer a problem. See Batson v. Comm’r of Soc. Sec.,
`359 F.3d 1190, 1195 (9th Cir. 2004) (holding that the ALJ did not err in giving minimal
`weight to the views of treating physicians whose opinions were conclusory, in the form of
`a check list, lacked substantive medical findings, and conflicted with the “results of a
`consultative medical evaluation”); Warre, 439 F.3d at 1006 (“Impairments that can be
`controlled effectively with medication are not disabling for the purpose of determining
`eligibility for SSI benefits.”).
`Plaintiff argues that the ALJ “did not explain why the conflict [that Dr. Briggs
`
`observed Plaintiff’s narcolepsy was well controlled with medication and was no longer a
`problem] was substantial evidence for disregarding Dr. Anderson’s opinions” and also that
`“Dr. Briggs’s opinion did not constitute substantial evidence.” (Doc. 14 at 18.) Plaintiff’s
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`arguments fail.
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`As explained above, the fact that Plaintiff improved on Nuvigil to the point that he
`was capable of seeking employment is a matter of Dr. Anderson’s records. (See AR 691.)
`Dr. Briggs evaluated Plaintiff while he was on that medication, prescribed by
`Dr. Anderson, and found Plaintiff’s narcolepsy to be controlled. (AR 653-64.) Plaintiff’s
`contention that Dr. Briggs’s opinion is not substantial evidence because his evaluation was
`conducted four years after the date of last insured, and he did not review any of Plaintiff’s
`prior medical records, is without merit. See Orn, 495 F.3d at 632 (when an examining
`physician provides “independent clinical findings that differ from the findings of the
`treating physician,” such findings are “substantial evidence.”).
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`Accordingly, the Court finds that the ALJ’s decision to discount Dr. Anderson’s
`opinions as inconsistent with the medical evidence in the record was both specific and
`legitimate, and is supported by substantial evidence.
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`F.
`Opinions from August 2014 and October 2016.
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`Plaintiff asserts that the ALJ committed harmful error by failing to address
`Dr. Anderson’s opinions from August 2014 and October 2016. (Doc. 14 at 9.) The
`Commissioner concedes that the ALJ did not specifically address these opinions, but
`argues that the error is harmless because these opinions are nearly identical to other
`opinions of Dr. Anderson that the ALJ did address. (Doc. 15 at 16 n.4, 18 n.6.) The Court
`agrees. See Marsh v. Colvin, 792 F.3d 1170, 1173 (9th Cir. 2015) (“We reject the idea that
`not mentioning a treating source’s medical opinion precludes use of harmless error
`doctrine,” but “an ALJ must discuss the relevant views of a treating source.”).
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`Here, Dr. Anderson’s August 2014 and October 2016 opinions are nearly identical
`to other opinion evidence that the ALJ did expressly evaluate. (Compare AR 702 with
`AR 386; compare AR 744-45 with AR 742-43.) The ALJ’s failure to mention these
`opinions is error, but that error is harmless because the relevant views of the treating source
`were discussed and the error does not affect the ultimate nondisability determination of
`the ALJ. See Marsh, 792 F.3d at 1173; Molina, 674 F.3d at 1111.
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`Case 2:17-cv-02167-JZB Document 26 Filed 09/27/18 Page 14 of 25
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`Dr. Larry Nichols, M.D.
`3.
`
`
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`In May 2011, prior to the date of last insured, Dr. Nichols examined Plaintiff after
`conducting a review of his neurological treatment notes. (AR 267.) Dr. Nichols opined
`Plaintiff could sit for six to eight hours per day, stand/walk for three hours per day, and had
`a medium lifting capacity. (AR 270.) Dr. Nichols further opined Plaintiff had occasional
`postural restrictions, and some environmental limitations. (AR 271.)
`
`The ALJ afforded Dr. Nichols’s opinion “partial weight.” (AR 411.) In his decision,
`the ALJ provided the following analysis:
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`Dr. Nichols indicated that the claimant could lift 50 pounds
`occasionally and 25 pounds frequently and that he could sit for six to eight
`hours in an eight-hour workday. This opinion is consistent with the medical
`evidence of record discussed above and the claimant’s activities of daily
`living during the relevant period. However, Dr. Nichols also indicated that
`the claimant could stand or walk for three hours in an eight-hour workday
`and that the claimant would have limitations in climbing, stooping, kneeling,
`crouching, crawling, and reaching as well as working
`
`[Dr. Nichols’s] opinions appear to be based on the claimant’s
`subjective complaints of exhaustion rather than objective medical signs or
`laboratory findings. As discussed in more detail above, the claimant’s
`physical examination during the consultative examination was normal.
`Moreover, the opinions regarding the claimant’s standing/walking, postural,
`and environmental limitations are inconsistent with the claimant’s significant
`activities of daily living during the relevant period. Therefore, the
`undersigned has determined that the claimant was not limited to the extent
`found by Dr. Nichols.
`
`(Id.) In sum, the only material portion of Dr. Nichols opinion rejected by the ALJ, was
`Dr. Nichols’s conclusion that P