George Durose v. Andrew Saul ( 2021 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS FEB 12 2021
MOLLY C. DWYER, CLERK
FOR THE NINTH CIRCUIT U.S. COURT OF APPEALS
GEORGE ROBERT DUROSE, No. 18-35973
Plaintiff-Appellant, D.C. No. 1:17-cv-00111-TJC
v.
MEMORANDUM*
ANDREW M. SAUL, Commissioner of
Social Security,
Defendant-Appellee.
Appeal from the United States District Court
for the District of Montana
Timothy J. Cavan, Magistrate Judge, Presiding
Argued and Submitted June 5, 2020
Portland, Oregon
Before: TASHIMA, BERZON, and COLLINS, Circuit Judges.
Memorandum joined by Judge TASHIMA and Judge COLLINS;
Dissent by Judge BERZON
George Durose appeals from the district court’s order affirming the decision
of the Commissioner of Social Security denying his claim for disability insurance
benefits under the Social Security Act. We affirm.
1. The ALJ provided sufficiently “specific, clear and convincing reasons”
*
This disposition is not appropriate for publication and is not precedent except as
provided by Ninth Circuit Rule 36-3.
for rejecting Durose’s testimony concerning the severity of his symptoms.
Vasquez v. Astrue, 572 F.3d 586, 591 (9th Cir. 2009) (simplified). The ALJ
concluded that the objective medical evidence did not support Durose’s claimed
limitations and that the course of his response to treatment indicated that his
symptoms were less severe than he claimed. We have recognized that such
considerations may supply clear and convincing reasons for rejecting a claimant’s
testimony, see Burch v. Barnhart, 400 F.3d 676, 680–81 (9th Cir. 2005); Rollins v.
Massanari, 261 F.3d 853, 857 (9th Cir. 2001), and substantial evidence supports
the ALJ’s conclusions.
In particular, the ALJ noted that Durose’s neck pain responded well to his
October 2012 surgery; that his lumbar pain was helped by physical therapy; and
that his claims of disabling shoulder pain after October 2013 were not supported by
the medical record. As to the latter issue, the ALJ pointed out that, although
Durose rated his pain level as a “9.0” out of “10” during his November 2013
examination by Dr. Arguelles, the doctor’s treatment notes reflected that Durose
was “[i]n no acute distress.”1 The ALJ also noted that, although Durose
complained of ankle and shoulder pain to a treating physician, Dr. Mehia, in May
1
The dissent notes that the very high pain rating that Durose gave during his
examination reflected an average pain level over the entire prior week. See
Dissent at 1. But we are not entitled to reweigh the evidence, and we cannot say
that the ALJ erred in concluding that Durose’s claim of such a high pain level was
inconsistent with his not being in distress during the examination.
2
2014, Durose did not see Dr. Mehia again until December 2014, at which time he
only complained of “malaise, sore throat, and cough.” The ALJ also relied on the
observations and impressions of Dr. Healow, a non-treating examining physician.
The ALJ credited, as consistent with the overall medical evidence, Dr. Healow’s
conclusion that Durose’s shoulder pain would limit overhead work but that
Durose’s “imaging scans and exam showed no objective rationale to limit standing,
walking, or sitting.” Regardless of whether we would have weighed the evidence
the same way, we conclude that the ALJ’s conclusion was reasonable and
adequately considered these doctors’ records. Thomas v. Barnhart, 278 F.3d 947,
954 (9th Cir. 2002) (“Where 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.”).
Durose points to Dr. Arguelles’s multiple suggested possible diagnoses, but
the ALJ permissibly gave them little weight inasmuch as Dr. Arguelles noted that
additional tests were needed to draw any firm conclusions, and those tests were
never conducted. Durose contends that the ALJ failed to take into account that
Durose could not afford these additional tests, but we find no error. The ALJ
simply noted the incompleteness of Dr. Arguelles’s possible diagnoses, and we are
aware of no authority that requires an ALJ to overlook an affirmative gap in the
evidence simply because the claimant assertedly lacks the financial resources to
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obtain additional medical evidence that might fill that gap. The case on which
Durose relies addresses the very different situation in which a claimant was unable
to obtain “medical treatment that would ameliorate his condition,” thereby
resulting in a situation that affirmatively rendered him disabled. See Gamble v.
Chater, 68 F.3d 319, 321 (9th Cir. 1995).
Durose correctly notes that the ALJ did not discuss the treatment notes from
an examination performed by Dr. Klepps in June 2015, but this provides no basis
for setting aside the ALJ’s determination. Given that this examination occurred
nearly a year after the last date that Durose met the insured status requirements of
the Social Security Act, it would be relevant only to the extent that it bore upon the
“evaluation of [his] preexpiration condition.” Lester v. Chater, 81 F.3d 821, 832
(9th Cir. 1995) (simplified). The report does note that Durose told Dr. Klepps that
he had had pain in the shoulder for the last several years, but this information was
already captured in the reports that the ALJ did consider. Beyond that, the report
reflects that Dr. Klepps recommended an MRI and surgery to address what he
suspected was the likely progression of a rotator cuff tear and that Durose
responded by saying that he “would rather live with this” and “would not be
interested in surgery anyway.” Given that the ALJ considered the medical
evidence concerning Durose’s shoulder during the pre-expiration period and
specifically took into account the resulting effect on his ability to perform
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“overhead work,” and given that this post-expiration report at most revealed a
subsequent progression that, even then, Durose “would rather live with” than have
surgery, we perceive no grounds for disturbing the ALJ’s determination. Howard
ex rel. Wolff v. Barnhart, 341 F.3d 1006, 1012 (9th Cir. 2003) (“[B]ecause the ALJ
is not required to discuss evidence that is neither significant nor probative, we
conclude that the ALJ’s failure to discuss this report was not error.” (citation
omitted)).
2. We reject Durose’s arguments that the ALJ erred in determining that
work that he can perform exists in the national economy in significant numbers.
Durose argues that the ALJ should have found him to be limited to “sedentary”
work and should have applied a Grid rule reflecting that limitation, but this
contention ultimately rests on Durose’s disagreement with the ALJ’s weighing of
the record evidence. As we have explained, the ALJ permissibly weighed the
evidence differently.
Based on his evaluation of the evidence, the ALJ properly concluded that
Durose’s situation was not captured by a Grid rule, and he therefore consulted a
vocational expert. See Thomas, 278 F.3d at 960 (“[W]hen a claimant’s exertional
limitation falls between two grid rules, the ALJ fulfills his obligation to determine
the claimant’s occupational base by consulting a vocational expert . . . .”).
Durose’s contention that the ALJ improperly posed a hypothetical question to the
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vocational expert is based on his view that he had additional limitations that the
ALJ should also have included. But this argument is simply another repackaging
of Durose’s contention that the ALJ should have weighed the evidence differently.
Given that the “hypothetical that the ALJ posed to the [vocational expert]
contained all of the limitations that the ALJ found credible and supported by
substantial evidence in the record,” the “ALJ’s reliance on testimony the
[vocational expert] gave in response to the hypothetical therefore was proper.”
Bayliss v. Barnhart, 427 F.3d 1211, 1217 (9th Cir. 2005).
AFFIRMED.
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Durose v. Saul, No. 18-35973 FILED
BERZON, Circuit Judge, dissenting: FEB 12 2021
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
I respectfully dissent.
1. The administrative law judge (“ALJ”) did not provide clear and
convincing reasons to support his finding that Durose was “not entirely credible”
as to the “intensity, persistence and limiting effects” of his symptoms. See
Diedrich v. Berryhill, 874 F.3d 634, 643 (9th Cir. 2017).
As the majority notes, the ALJ relied on treatment records showing that
Durose was experiencing no neck pain in April 2013, six months after he had
undergone neck surgery. But by October 2013, Durose reported to his treating
physician, Dr. Mehia, that his neck pain had returned and had been “getting worse
for the past couple months.” Dr. Mehia made arrangements for Durose to see Dr.
Arguelles, a rheumatologist, “as soon as possible.”
Dr. Arguelles examined Durose in November 2013. The ALJ apparently
interpreted Durose’s report to Dr. Arguelles that “his pain level was 9 out of a
maximum of 10” as evidence that Durose was not credible, since Dr. Arguelles
found he was in “no acute distress.” But this interpretation is not supported by the
record. Dr. Arguelles’s report says Durose’s average pain level during the last
week was 9 out of 10, not that it was 9 during the examination. Dr. Arguelles noted
“[c]ervical region tenderness on palpation,” as well as pain in many other areas.
1
The ALJ relied heavily on a consultative examination performed by Dr.
Healow for the state agency. As the ALJ recounted, Dr. Healow found “no
physical or xray evidence justifying restriction in standing, walking or sitting.” But
the ALJ did not mention Dr. Healow’s further finding of “no indication in
[Durose’s] exam that he is misreporting his pain,” or his recommendation of a
“rheumatology workup” that may “produce more information referent to alleged
poly arthritis.”
Finally, the ALJ interpreted the treatment notes from Durose’s December
2014 visit to Dr. Mehia as an indication that he “was receiving routine and
conservative care.” At that time, according to the ALJ, Durose visited his doctor
“merely complaining of malaise, sore throat and cough,” and Dr. Mehia prescribed
fluids and rest. But the fact that Durose “did not mention any musculoskeletal pain
or limitations” when he went to see his doctor for a sore throat does not mean that
he was not suffering from any such pain. Ordinarily one does not on a visit to one’s
doctor for a minor illness discuss everything that is wrong with one.
The ALJ’s reasons for finding Durose “not entirely credible” are not clear
and convincing. I would hold that the ALJ erred in his credibility finding relating
to Durose. See Diedrich, 874 F.3d at 643.
2. The ALJ also erred by ignoring entirely a report by Dr. Klepps, an
orthopedist Durose saw in June 2015 for an evaluation of his right shoulder. See
2
Lingenfelter v. Astrue, 504 F.3d 1028, 1038 n.10 (9th Cir. 2007). Although the
examination took place after Durose’s last insured date, it was “relevant to an
evaluation of the preexpiration condition.” Lester v. Chater, 81 F.3d 821, 832 (9th
Cir. 1995) (quoting Smith v. Bowen, 849 F.2d 1222, 1225 (9th Cir. 1988)).
Dr. Klepps reviewed an MRI from 2011, saw a possible “full-thickness”
rotator cuff tear, and opined that the tear had “likely progressed.” Dr. Klepps was
sufficiently “concerned” that he “recommended surgery.” The majority discounts
Dr. Klepps’s report as insignificant because Durose declined surgery and said he
would “rather live with this.” But Durose had multiple reasons to decline surgery
unrelated to the seriousness of his condition. Dr. Klepps noted both that “surgery
would not alleviate all of his pain” and that Durose was unenthusiastic about
surgery “given his lack of response to his recent neck surgery.” Additionally,
Durose was uninsured. Regardless of Durose’s decision not to pursue surgery, Dr.
Klepps considered Durose’s condition serious enough that “he would likely benefit
from surgery.” That finding was sufficiently significant and probative that the ALJ
should have considered it.
I dissent.
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