Muhammad Chaudhry v. Michael Astrue

Filing

FILED OPINION (DIARMUID F. O'SCANNLAIN, JOHNNIE B. RAWLINSON and DONALD W. MOLLOY) AFFIRMED. Judge: JBR Authoring, FILED AND ENTERED JUDGMENT. [8282386]

Case: 11-35072

08/10/2012

ID: 8282386

DktEntry: 30-1

Page: 1 of 20

FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
MUHAMMAD CHAUDHRY,
Plaintiff-Appellant,
v.
MICHAEL J. ASTRUE, Commissioner,
Social Security Administration,
Defendant-Appellee.





No. 11-35072
D.C. No.
2:09-cv-03089-JPH
OPINION

Appeal from the United States District Court
for the Eastern District of Washington
James P. Hutton, Magistrate Judge, Presiding
Argued and Submitted
January 12, 2012—Seattle, Washington
Filed August 10, 2012
Before: Diarmuid F. O’Scannlain and Johnnie B. Rawlinson,
Circuit Judges, and Donald W. Molloy, District Judge.*
Opinion by Judge Rawlinson

*The Honorable Donald W. Molloy, United States District Judge for the
District of Montana, sitting by designation.

9095

Case: 11-35072

9098

08/10/2012

ID: 8282386

DktEntry: 30-1

Page: 2 of 20

CHAUDHRY v. ASTRUE

COUNSEL
Appellant Muhammad Chaudhry is represented by Jeffrey H.
Baird, Dellert Baird Law Office, Port Orchard, Washington.
Appellee Michael J. Astrue, Commissioner of the Social
Security Administration, is represented by Gerald J. Hill,
Assistant Regional Counsel, Social Security Administration,
Seattle, Washington.

OPINION
RAWLINSON, Circuit Judge:
Appellant Muhammad Chaudhry (Chaudhry) appeals the
district court’s grant of summary judgment in favor of Appellee Michael J. Astrue, Commissioner of the Social Security
Administration (Commissioner). Chaudhry argues that the
Administrative Law Judge (ALJ) erred in finding that Chaudhry is not disabled as defined in the Social Security Act (Act).
We have jurisdiction under 28 U.S.C. § 1291 and we affirm.
I.

BACKGROUND

Chaudhry was thirty-two years old when he allegedly
became disabled in 2005. Chaudhry had earned a general college degree in his native Pakistan, and performed past relevant work as a fast-food worker, sales clerk, cashier, waiter,
and housekeeper/cleaner. He served in the United States
Army from January 22, 2002, to August 20, 2002, and from
November 15, 2003, to February 25, 2005. Chaudhry injured
his back while serving in the army in 2004. He also suffers
from migraine headaches, narcolepsy, and depression.

Case: 11-35072

08/10/2012

ID: 8282386

CHAUDHRY v. ASTRUE

A.

DktEntry: 30-1

Page: 3 of 20

9099

VA Evaluations

Following Chaudhry’s back injury, several medical providers assessed him in June, 2004. According to Dr. John D.
Werschkul, Chaudhry’s 2004 MRI showed mild protrusion
and no need for surgery. Dr. Werschkul also indicated that
Chaudhry’s neurological exam was negative. Provider1 Beverly Scott assessed Chaudhry with frequent migraine headaches without aura, and noted that Chaudhry’s brain MRI was
within normal limits. Provider Bernard Roth indicated that
there was a very high likelihood that Chaudhry had narcolepsy. Dr. Juliana Ellis-Billingsley observed intermittent
depression. According to Dr. Ellis-Billingsley, the intermittent depression did not diminish Chaudhry’s job performance,
nor did it limit his ability to do well in civilian life, because
he was exceptionally bright and had a good entrepreneurial
spirit. Provider Brian Woebkenberg noted an absence of
objective findings that would support Chaudhry’s complaint
of radicular2 symptoms. Provider Helen Holt assessed Chaudhry with chronic back pain with bilateral radiculopathy3, and
noted that his gait was steady.
In July, 2004, Provider James Chambers assessed Chaudhry with degenerative disc disease, but opined that Chaudhry
was not a candidate for surgery. Provider Roger Barstaad
noted in October, 2004, that a radiograph of Chaudhry’s cervical spine showed vertebral body heights and disk spaces
1
Because the record is unclear as to the exact status of the various medical care providers, we refer to them as providers unless otherwise indicated.
2
Radicular is defined as relating to a radicle, which in turn is defined
as “[a] rootlet or structure resembling one, as the r. of a vein, a minute
veinlet joining with others to form a vein, or the r. of a nerve, a nerve fiber
that joins others to form a nerve.” Stedman’s Medical Dictionary 1502
(27th ed. 2000) (emphasis omitted).
3
Radiculopathy is a “[d]isorder of the spinal nerve roots.” Id. at 1503.
Bilateral means “[r]elating to, or having, two sides.” Id. at 202.

Case: 11-35072

9100

08/10/2012

ID: 8282386

DktEntry: 30-1

Page: 4 of 20

CHAUDHRY v. ASTRUE

within normal limits and unremarkable atlanto-axial joints.4
Provider Barstaad noted that the chiropractic clinic would
cancel the rest of Chaudhry’s visits, and “[t]he patient’s reaction to his first visit and his extraordinary high pain complaints coupled with his extraordinarily low ranges of motion
make this a highly ‘interesting’ case. . . .” Provider Barstaad
suspected “phycogenic overlay.”5 Provider Vancil McNulty
observed in November, 2004, that Chaudhry exhibited
chronic pain with fear avoidance, oversensitivity to pain, and
L5-S1 disc protrusion.
Clinic notes indicate that Chaudhry was walking with a
cane in November, 2004. However, Provider Holt noted that
Chaudhry’s gait was steady that month. In addition, Provider
McNulty told Chaudhry that a cane is not indicated for individuals with low back pain. Provider McNulty suspected that
“long term use of the cane will further encourage pain and
disabled behaviors. . . .” A physical therapist also advised
Chaudhry to discontinue use of the cane. Records indicate that
Chaudhry did not follow through with a plan of care after
being seen by neurology providers.
A December, 2004, note indicated that although no issues
besides sinus surgery prevented Chaudhry from deploying to
Iraq, Chaudhry stated that he was unable to function at any
job. At the same time, Chaudhry denied depression. Dr. Marcus Ponce De Leon noted that Chaudhry’s narcolepsy prevented him from driving or performing any duties that require
a high degree of vigilance or prolonged wakefulness.
4

Atlanto-axial is defined as “[p]ertaining to the atlas and the axis; denoting the joint between the first two cervical vertebrae.” Id. at 163.
5
It appears that the record contains a typographical error, and that Provider Barstaad suspected a psychogenic overlay, which is defined as “[t]he
aggravation of the symptoms and complaints in a case of a physical ailment beyond the usual or what one would expect, due to the emotional
involvement of the patient.” J.E. Schmidt, M.D., Attorneys’ Dictionary of
Medicine and Word Finder Vol. 5, 517 (1999).

Case: 11-35072

08/10/2012

ID: 8282386

CHAUDHRY v. ASTRUE

DktEntry: 30-1

Page: 5 of 20

9101

The following year, in October, 2005, Chaudhry deferred
examination by Provider Madelyn McKennan, but requested
a prescription for a cane, which McKennan wrote for him.
The next month, Chaudhry appeared in a wheelchair for an
appointment.
Dr. Raymond Rosenfeld reviewed x-rays of Chaudhry’s
lumbar spine in December, 2005, and found vertebral body
heights and disk spaces within normal limits. Dr. Dianne
Flynn assessed chronic pain syndrome in January, 2007. In
November, 2007, Dr. Flynn examined Chaudhry and noted
that she had a long discussion with him about establishing
goals.
The Department of Veterans Affairs (DVA) reviewed and
evaluated Chaudhry’s disabling impairments in January,
2007, following Chaudhry’s filing of a Notice of Disagreement with his disability rating.6 Chaudhry’s sequence of
impairments and corresponding disability ratings was:
migraine headaches 30% disabling; intervertebral disc syndrome of the cervical spine 30% disabling; depression 50%
disabling; intervertebral disc syndrome of the thoracolumbosacral spine 20% disabling; and narcolepsy 20% disabling.
Depression was listed as 30% in the section heading, but the
explanation noted that it had been increased to 50% in 2006.
Chaudhry’s Global Assessment of Functioning (GAF) was 55,
“indicative of moderately severe social and occupational
functioning.”
B.

Examining Consultants

Dr. Marie Ho reviewed Chaudhry’s medical records and
6

A Notice of Disagreement is “[a] written communication from a claimant or his or her representative expressing dissatisfaction or disagreement
with an adjudicative determination by the agency of original jurisdiction
and a desire to contest the result . . .” 38 C.F.R. § 20.201. A Notice of Disagreement is required to appeal a DVA decision. See 38 C.F.R. § 20.200.

Case: 11-35072

9102

08/10/2012

ID: 8282386

DktEntry: 30-1

Page: 6 of 20

CHAUDHRY v. ASTRUE

conducted a physical examination on May 10, 2008. Dr. Ho
observed that Chaudhry was in a wheelchair, had severe low
back pain, appeared anxious, and could not perform certain
tests, not necessarily due to lack of effort, but perhaps due to
pain and inhibition. Chaudhry responded slowly to instructions and moved slowly, but was generally cooperative with
testing. Dr. Ho’s testing was limited by Chaudhry’s inability
to stand or walk. Dr. Ho also noted “some inconsistencies
. . .”
Dr. Ho determined that Chaudhry could stand and walk
fewer than 2 hours cumulatively per day and sit longer than
6 hours; lift less than 10 pounds occasionally and frequently,
due to lumbar spine problems; and should not engage in any
crouching, squatting, or kneeling. Dr. Ho also indicated that
Chaudhry’s depression might further limit his ability to function in the workplace.
Jenifer Schultz, Ph.D., conducted a psychological examination and took Chaudhry’s history. Dr. Schultz’s diagnostic
impressions included somatization disorder;7 depressive disorder not otherwise specified; and dependent personality traits.
According to Dr. Schultz, “[a]lthough [Chaudhry] has many
medical conditions, his physical complaints are in excess of
what would be expected from the history; such as being in a
wheelchair for pain. He fulfills criteria for Somatization Disorder. . . .” Dr. Schultz noted that Chaudhry had no insight
into his condition and felt helpless. Dr. Schultz was of the
view that Chaudhry’s prognosis was poor because Chaudhry
did not believe that he could improve.
7

Somatization disorder is “a mental disorder characterized by presentation of a complicated medical history and of physical symptoms referring
to a variety of organ systems, but without a detectable or known organic
basis.” See Stedman’s Medical Dictionary at 528.

Case: 11-35072

08/10/2012

ID: 8282386

CHAUDHRY v. ASTRUE

C.

DktEntry: 30-1

Page: 7 of 20

9103

Non-Examining Consultants

Dr. Patricia Kraft, a reviewing physician, reviewed Chaudhry’s medical records from January 26, 2006, through May
21, 2008. Dr. Kraft noted non-specific depression and dependent personality traits. Dr. Kraft observed many contradictions in the medical record, such as Chaudhry’s use of a cane
for low back pain. Dr. Kraft rated Chaudhry’s Functional
Limitations as follows: mild restriction of activities of daily
living; mild difficulties in maintaining social functioning;
mild difficulties in maintaining concentration, persistence, or
pace; and no episodes of decompensation. Dr. Kraft acknowledged diagnoses of depression and somatoform disorder, but
considered the diagnoses to be theoretically incompatible,
because somatoform represses depression. Dr. Kraft recognized a 90% disability rating based on Dr. Flynn’s report in
July, 2006. Dr. Kraft rated Chaudhry’s psychological impairments as “nonsevere.” Dr. Kraft wrote that Chaudhry did not
comply with recommended treatment or attend the pain clinic;
repeated mental status examinations yielded normal results;
muscle atrophy in legs was not noted despite Chaudhry’s
claim of having been wheelchair bound for three years; and
there was a lack of medical support for the extent of Chaudhry’s alleged dependency on his wife.
Dr. Norman Staley reviewed Chaudhry’s medical records
from January 26, 2008, through June 5, 2008. Dr. Staley
found some abnormal disc findings, but was of the view that
Chaudhry had chronic pain syndrome8 and was abusing both
the Veterans Affairs and Social Security systems. According
to Dr. Staley, Chaudhry’s medical record did not support
Chaudhry’s use of a wheelchair or his inability to cooperate
with Dr. Ho’s consultative examination.
8

Chronic pain is “pain that persists after an injury heals . . .” 4 Gale
Encyclopedia of Medicine 2142 (1999).

Case: 11-35072

9104

08/10/2012

ID: 8282386

DktEntry: 30-1

Page: 8 of 20

CHAUDHRY v. ASTRUE

Chaudhry’s treating physician, Dr. Flynn, examined
Chaudhry in 2008 for complaints of wrist pain. Dr. Flynn
noted “[n]o wrist pain, swelling or stiffness, no wrist joint
pain, no swelling of the wrist joint, and no stiffness of the
wrist joint.” Under the Action Plan section, Dr. Flynn wrote
“Carpal Tunnel Syndrome: Trial of night splints. [Return to
clinic] if unimproved 3-4 weeks. Education.”
D.

Social Security Application and ALJ Hearing

Chaudhry alleged that he became unable to work because
of his disability on February 26, 2005. Chaudhry’s claim was
denied on January 24, 2008, and denied on reconsideration on
June 5, 2008. At Chaudhry’s request, the ALJ held a hearing.
At the hearing, Chaudhry testified that he had to spend
much of the day lying down, due to back pain and headaches.
Chaudhry testified that his narcolepsy caused him to fall
asleep approximately twice a day and that his pain medication
made him drowsy. Chaudhry also testified that he used a
wheelchair and a cane to move around, and that he last
walked without a cane in 2003. Chaudhry testified that he was
prescribed the wheelchair in 2004. According to Chaudhry, he
was receiving a veterans’ pension based on the DVA’s determination that he was 100% disabled.
In response to the ALJ’s hypothetical question and Residual Function Capacity (RFC) assessment, Vocational Expert
Sharon Welter (VE) testified that Chaudhry could perform all
of his past work as well as alternative light exertion jobs
existing in the hundreds of thousands.
E.

ALJ’s Decision

The ALJ applied the five-step sequential evaluation process
for determining whether an individual is disabled under the
Social Security Act. At step one, the ALJ found that Chaudhry had not engaged in substantial gainful activity since Feb-

Case: 11-35072

08/10/2012

ID: 8282386

CHAUDHRY v. ASTRUE

DktEntry: 30-1

Page: 9 of 20

9105

ruary 26, 2005, his alleged onset date of disability. At step
two, the ALJ found that Chaudhry had the severe impairments
of chronic pain syndrome, degenerative disc disease, headaches, and narcolepsy.
The ALJ found that Chaudhry’s “medically determinable
mental impairment of depressive disorder does not cause
more than minimal limitation in the claimant’s ability to perform basic mental work activities and is therefore nonsevere.” The ALJ reached this conclusion upon consideration
of “the four broad functional areas set out in the disability
regulations . . .”
In the first functional area, activities of daily living, the
ALJ found mild limitation. Based upon the opinion of Dr.
Kraft and the evaluation of Dr. Schultz, the ALJ found
Chaudhry’s allegations to not be fully credible and concluded
that Chaudhry’s “attitude contributes to his limitations far
more than his actual physical abilities. . . .”
In the second functional area, social functioning, the ALJ
also found mild limitation. The ALJ noted that Chaudhry had
repeatedly declined Dr. Flynn’s recommendation of counseling. According to the ALJ, “it appears that the claimant’s outlook affects his determination as much or more than any
physical or mental impairment.”
In the third functional area, concentration, persistence, or
pace, the ALJ similarly found mild limitation. The ALJ noted
Dr. Schultz’s finding that Chaudhry’s “concentration and
attention were fair, and that his persistence is affected by the
fact that he generally does not attempt activities. . . .” The
ALJ also noted Dr. Flynn’s unheeded encouragement to
establish goals and see a psychologist, and Dr. Kraft’s finding
of mild limitation based on her review of the record.
In the fourth functional area, episodes of decompensation,
the ALJ found no indication of limitation. Thus, the ALJ
found the mental impairment to be non-severe.

Case: 11-35072

9106

08/10/2012

ID: 8282386

DktEntry: 30-1

Page: 10 of 20

CHAUDHRY v. ASTRUE

At step three, the ALJ found that Chaudhry did not have an
impairment or combination of impairments that met or
equaled the criteria of one of the per se disabling impairments
listed in 20 C.F.R. pt. 404, subpt. P, app. 1. The ALJ then
found that Chaudhry had the residual functional capacity to
perform light work, except that Chaudhry was unable to climb
ramps, stairs, ladders, ropes, or scaffolds; he could not stoop,
kneel, crouch, or crawl more than occasionally, but could balance frequently; and he could not tolerate exposure to hazardous machines and unprotected heights.
The ALJ explained that Chaudhry’s “medically determinable impairments could reasonably be expected to cause the
alleged symptoms; however, the claimant’s statements concerning the intensity, persistence and limiting effects of these
symptoms are not credible to the extent they are inconsistent
with the [ALJ’s] residual functional capacity assessment.”
With respect to Chaudhry’s claim of depression, the ALJ
noted Dr. Ellis-Billingsley’s diagnosis of depression and her
opinion that it did not impair Chaudhry. The ALJ also noted
that Chaudhry declined to see a psychologist after Dr.
Schultz’s diagnosis of depressive disorder. The ALJ therefore
concluded that Chaudhry’s “failure to seek treatment for
depression places the severity of the symptoms into question.
In addition, no examining source has opined that the claimant
is unable to work or [is] otherwise limited because of his
depression. . . .” According to the ALJ, Chaudhry’s “allegations of limitation lack credibility to the extent they are inconsistent with the assessed RFC.”
In addressing Chaudhry’s back pain, the ALJ concluded
that “the objective medical evidence does not support the
level of limitation alleged.” The ALJ noted that Chaudhry
used a cane and a wheelchair, even though no medical source
recommended such use. The ALJ noted Dr. Ho’s opinion that
“Chaudhry appeared not to exert adequate effort at times,
although [Dr. Ho] acknowledged that it might be due to pain

Case: 11-35072

08/10/2012

ID: 8282386

DktEntry: 30-1

CHAUDHRY v. ASTRUE

Page: 11 of 20

9107

or inhibition. . . .” The ALJ noted that Dr. Ho’s lower RFC
was “based in part on the claimant’s statements that he could
not walk or stand; no objective evidence supports those statements” and that “Dr. Ho also believed that the claimant’s
wheelchair and single-point cane were prescribed. . . .”
According to the ALJ, “it appears that [Chaudhry] has not
made any attempt to increase his functionality, instead relying
solely on medication for pain. None of his treating sources
have stated that he requires his wheelchair or that his condition is disabling. . . .” The ALJ also noted that “Dr. Flynn
repeatedly encouraged him to develop goals for better functionality, but stated in September 2008 that he had made no
significant progress in that area. . . .”
The ALJ gave greater weight to Dr. Staley’s opinion of
Chaudhry’s capabilities than to Dr. Ho’s, because Dr. Ho’s
“opinion regarding [Chaudhry’s] limitation in standing and
walking was based primarily on his self-report of limitations;
he stated he was unable to stand and walk due to back pain
and migraines. Because no objective medical evidence supports his allegation, Dr. Ho’s resulting assessment is likewise
given less credibility. . . .” In general, the ALJ found that
Chaudhry’s “allegations of limitation lack credibility to the
extent they are inconsistent with the RFC . . .”
The ALJ did not consider Chaudhry’s alleged carpal tunnel
syndrome because the ALJ found that there was no official
diagnosis of carpal tunnel syndrome and the condition had not
lasted more than 12 months.
The ALJ noted that during the hearing Chaudhry’s representative stated that the DVA assessment was 100%. The ALJ
responded that:
[t]he DVA assessed the claimant’s migraine headaches as 30% disabling, intervertebral disc syndrome
of the cervical spine as 30% disabling, depression as

Case: 11-35072

08/10/2012

9108

ID: 8282386

DktEntry: 30-1

Page: 12 of 20

CHAUDHRY v. ASTRUE

30% disabling, intervertebral disc syndrome of the
lumboscacral spine as 20% disabling, and narcolepsy
as 20% disabling. The DVA determined that the
claimant is not 100% disabled in any of these areas.
Further, the DVA did not consider the cumulative
effect of these impairments as 100% disabling. The
claimant filed a Notice of Disagreement with the
DVA’s action. If the DVA had assessed the claimant
as 100% disabled, as stated by the client’s representative, it is unlikely that the claimant would have
appealed such a decision.
In sum, the ALJ determined that Chaudhry’s impairments
notwithstanding, Chaudhry had the capacity to perform light
work, with specified limitations.
At step four, the ALJ determined that Chaudhry’s residual
functional capacity did not preclude him from performing his
past relevant work as a fast food worker, sales clerk, cashier,
waiter, and housekeeper/cleaner.
At step five, the ALJ relied on the testimony of the VE to
alternatively find that other jobs existed in significant numbers in the national economy that Chaudhry could perform,
considering his age, education, work experience, and residual
functional capacity, and the additional requirement that he be
able to choose whether to sit or stand. Therefore, the ALJ
found that Chaudhry was not disabled as defined in the Social
Security Act.
The Appeals Council declined Chaudhry’s request for
administrative review.
F.

District Court’s Decision

The assigned magistrate judge granted the Commissioner’s
motion for summary judgment and denied Chaudhry’s motion
for summary judgment.

Case: 11-35072

08/10/2012

ID: 8282386

DktEntry: 30-1

CHAUDHRY v. ASTRUE

Page: 13 of 20

9109

The magistrate judge found that the ALJ did not err in evaluating the severity of Chaudhry’s psychiatric impairments,
based on the ALJ’s analysis of Dr. Schultz’s and Dr. Kraft’s
opinions, and considering Chaudhry’s lack of credibility. The
magistrate judge also found that the ALJ did not err in giving
less weight to Dr. Ho’s and Dr. Schultz’s opinions when
determining Chaudhry’s RFC. Likewise, the magistrate judge
found no error in the ALJ’s credibility determination in light
of Chaudhry’s inconsistent statements, failure to comply with
medical treatment, and other objective evidence in the record.
The magistrate judge further found that the ALJ did not err in
considering the DVA disability rating, and that the ALJ properly placed greater weight on evidence that contradicted the
rating.
The district court subsequently entered judgment in favor
of the Commissioner.
II.

STANDARD OF REVIEW

We “review de novo a district court’s judgment upholding
the denial of social security benefits. . . .” Berry v. Astrue, 622
F.3d 1228, 1231 (9th Cir. 2010) (citation omitted). We “will
set aside a denial of benefits only if it is not supported by substantial evidence or is based on legal error.” Id. (citation and
internal quotation marks omitted). “[E]ven if the ALJ erred,
we will uphold the decision so long as the error was harmless.” Lockwood v. Comm’r Soc. Sec. Admin., 616 F.3d 1068,
1071 (9th Cir. 2010) (citation omitted).
III.
A.

DISCUSSION
DVA Disability Rating

Chaudhry argues that, under our holding in McLeod v.
Astrue, 640 F.3d 881 (9th Cir. 2011), as amended, the ALJ
committed reversible error by not obtaining Chaudhry’s disability determination from the DVA.

Case: 11-35072

9110

08/10/2012

ID: 8282386

DktEntry: 30-1

Page: 14 of 20

CHAUDHRY v. ASTRUE

[1] In McLeod, we held that “although a VA rating of disability does not necessarily compel the SSA to reach an identical result, the ALJ must consider the VA’s finding in
reaching his decision and the ALJ must ordinarily give great
weight to a VA determination of disability. . . .” Id. at 886
(footnote reference omitted). “[W]hen the record suggests a
likelihood that there is a VA disability rating, and does not
show what it is, the ALJ has a duty to inquire. . . .” Id.
[2] One crucial distinction between this case and McLeod
is that the claimant in McLeod was represented by a lay representative. See id. at 885 (“The ALJ must be especially diligent
when the claimant is unrepresented or has only a lay representative, as McLeod did . . . .”) (footnote reference and internal
quotation marks omitted). McLeod’s holding that “[t]he ALJ
must be especially diligent when the claimant is unrepresented . . .” id., does not apply here because Chaudhry was
represented by counsel before the ALJ. As we noted in
McLeod, because the record was “inadequate to allow for
proper evaluation of the evidence . . . the ALJ’s duty to conduct an appropriate inquiry” was triggered. Id. (footnote reference omitted). Here, because the evidence of the VA
disability rating was part of the record, the record was adequate to allow the ALJ to properly evaluate Chaudhry’s claim.
The ALJ’s duty to inquire further did not arise, and unlike in
McLeod, the ALJ’s duty to be especially diligent in the case
of an unrepresented claimant did not apply. Under these circumstances, the ALJ conducted the “full and fair hearing”
required. Id.
Another distinction is that in McLeod, “[n]o evidence of
[the claimant’s] disability rating was submitted to the Social
Security Administration at any stage of the proceedings, or to
the district court . . . .” Id. at 884. In contrast, Chaudhry submitted the DVA report specifying his disability determination.
Unlike McLeod, where the claimant “ha[d] no idea” whether
he had a DVA disability rating, id., Chaudhry testified before
the ALJ as to his alleged 100% DVA disability rating. How-

Case: 11-35072

08/10/2012

ID: 8282386

DktEntry: 30-1

CHAUDHRY v. ASTRUE

Page: 15 of 20

9111

ever, the record did not support Chaudhry’s contention. As
the ALJ noted, logic dictates that Chaudhry would not have
challenged the DVA determination, as he did, had the DVA
awarded a 100% disability rating and granted a pension.
Importantly, as we noted in McLeod, “a partial disability rating might cut against rather than in favor of an SSA determination that the individual could not perform remunerative
work of any kind.” Id. at 886.
Unlike in McLeod, the record in this case was adequate for
the ALJ to consider the DVA’s determination, and the ALJ
properly considered the record evidence of that determination.
In McLeod, the record was unclear as to the existence of a
DVA rating, whereas here the only question was the extent of
the DVA rating. In his opinion, the ALJ directly addressed the
DVA report in the record, Chaudhry’s testimony, and the
medical records describing a DVA disability rating. The ALJ
properly considered the full scope of the record evidence as
to the DVA rating and properly considered the extent of disability suggested by that rating. Cf. id. (explaining that the
VA disability rating must be considered and noting that the
ALJ “did not mention it in her decision”).
[3] Review of the facts in this case leads us to conclude
that McLeod does not control the outcome and that the ALJ
adequately considered the VA disability rating.
B.

Severity Determination

Chaudhry argues that the ALJ failed to properly evaluate
the severity of Chaudhry’s impairments. Chaudhry specifically challenges the ALJ’s evaluation of Dr. Schultz’s finding
of somatization disorder and non-specific depression.
[4] When evaluating psychiatric impairments such as
somatization disorder and depression, the ALJ must follow a
“special psychiatric review technique” and document his findings and conclusions in his decision. Keyser v. Comm’r Soc.

Case: 11-35072

9112

08/10/2012

ID: 8282386

DktEntry: 30-1

Page: 16 of 20

CHAUDHRY v. ASTRUE

Sec. Admin., 648 F.3d 721, 725 (9th Cir. 2011) (citation omitted) (“Specifically, the written decision must incorporate the
pertinent findings and conclusions based on the technique and
must include a specific finding as to the degree of limitation
in each of the functional areas . . .”) (citations, emphasis, and
internal quotation marks omitted).
[5] As required by our holding in Keyser, the ALJ documented his application of the psychiatric review technique
and his specific finding as to the degree of limitation in each
functional area. The ALJ explicitly discussed Dr. Schultz’s
statement that Chaudhry’s “physical complaints are in excess
of what would be expected from the history, such as being in
a wheelchair for pain” which formed the basis for Dr.
Schultz’s diagnosis of somatization disorder. The ALJ also
addressed Dr. Schultz’s conclusions regarding Chaudhry’s
dependence on his wife. The ALJ noted his agreement with
Dr. Kraft, who contradicted Dr. Schultz’s diagnosis of somatoform disorder, because, according to Dr. Kraft, that diagnosis is incompatible with a finding of depression. Unlike in
Keyser, the ALJ did not fail to document his analysis of
Chaudhry’s alleged psychiatric impairments. The ALJ’s analysis is supported by the record evidence.
C.

Rejection of Medical Examiners’ Opinions

Chaudhry argues that, in the process of making the RFC
determination, the ALJ provided inadequate reasons for
rejecting the opinions of Dr. Ho and Dr. Schultz. Chaudhry
asserts that Dr. Ho’s opinion was based on her observation of
Chaudhry and her review of Chaudhry’s x-rays and MRI
results. In Chaudhry’s view, Dr. Ho’s opinion carried more
weight than Dr. Staley’s because Dr. Ho saw Chaudhry in
person. Likewise, Chaudhry contends that Dr. Schultz’s opinion carries more weight than Dr. Kraft’s because Dr. Schultz
saw Chaudhry in person and Dr. Kraft did not.
[6] Because the RFC determination must take into account
the claimant’s testimony regarding his capability, the ALJ

Case: 11-35072

08/10/2012

ID: 8282386

DktEntry: 30-1

CHAUDHRY v. ASTRUE

Page: 17 of 20

9113

must assess that testimony in conjunction with the medical
evidence. “In evaluating the credibility of a claimant’s testimony regarding subjective pain, an ALJ must engage in a
two-step analysis. First, the ALJ must determine whether the
claimant has presented objective medical evidence of an
underlying impairment which could reasonably be expected to
produce the pain or other symptoms alleged. . . .” Vasquez v.
Astrue, 572 F.3d 586, 591 (9th Cir. 2009), as amended (citations and internal quotation marks omitted). Second, “[i]f the
claimant meets the first test and there is no evidence of malingering, the ALJ can only reject the claimant’s testimony about
the severity of the symptoms if [the ALJ] gives specific, clear
and convincing reasons for the rejection.” Id. (citation and
internal quotation marks omitted).
[7] “Where, as here, the record contains conflicting medical evidence, the ALJ is charged with determining credibility
and resolving the conflict. . . .” Benton v. Barnhart, 331 F.3d
1030, 1040 (9th Cir. 2003) (citation omitted). “If a treating or
examining doctor’s opinion is contradicted by another doctor’s opinion, an ALJ may only reject it by providing specific
and legitimate reasons that are supported by substantial evidence. . . .” Bayliss v. Barnhart, 427 F.3d 1211, 1216 (9th Cir.
2005) (citation omitted). “The ALJ need not accept the opinion of any physician, including a treating physician, if that
opinion is brief, conclusory, and inadequately supported by
clinical findings.” Bray v. Comm’r of Soc. Sec. Admin., 554
F.3d 1219, 1228 (9th Cir. 2009) (citation and alteration omitted).
[8] When weighing the medical evidence as part of assessing the claimant’s testimony regarding the severity of his
impairments, the ALJ gave Dr. Ho’s opinion less weight than
Dr. Staley’s opinion because the ALJ concluded that Dr. Ho’s
opinion “was based primarily on [Chaudhry’s] self-report of
limitations.” As the ALJ noted, Dr. Ho’s opinion was predicated in part on her erroneous belief that Chaudhry’s wheelchair and cane were prescribed. Chaudhry’s non-prescribed

Case: 11-35072

9114

08/10/2012

ID: 8282386

DktEntry: 30-1

Page: 18 of 20

CHAUDHRY v. ASTRUE

use of a wheelchair and a cane also factored into the ALJ’s
determination that Chaudhry’s subjective expression of his
limitations lacked credibility. The ALJ’s conclusion was supported by the observations of many of the providers who evaluated Chaudhry, including Dr. Ho’s own observation that
Chaudhry appeared not to exert adequate effort during testing.
Dr. Staley’s finding of chronic pain syndrome was echoed by
many of Chaudhry’s other providers or reviewers, including
his treating physician, Dr. Flynn. We therefore conclude that
the ALJ properly relied on medical evidence that undermined
Chaudhry’s subjective assessment of his limitations.
Because Dr. Ho and Dr. Staley both based their opinions on
Chaudhry’s x-rays and MRI, Chaudhry’s use of a wheelchair
appears to have been the primary difference between their
conflicting opinions. Because the ALJ’s conclusions are supported by the record, and because the ALJ provided specific
and legitimate reasons supported by substantial evidence to
give less weight to Dr. Ho’s opinion, we conclude that the
ALJ did not err in basing the RFC on Dr. Staley’s findings
rather than Dr. Ho’s.
[9] The ALJ gave Dr. Schultz’s opinion less weight than
Dr. Kraft’s because of Dr. Kraft’s conclusion that Dr.
Schultz’s diagnosis of somatoform disorder was incompatible
with depression. As the ALJ noted, the record reflects that
other providers or reviewers agreed that Chaudhry’s alleged
depression did not constitute an impairment and that Chaudhry repeatedly failed to seek treatment for his depression. We
conclude that the ALJ did not err in basing the RFC on Dr.
Kraft’s opinion rather than Dr. Schultz’s.
Chaudhry disagrees with the ALJ’s determination that he
lacked credibility. Chaudhry argues that any lack of credibility is explained by the dependency and somatization found by
Dr. Schultz. Likewise, Chaudhry contends that the reviewing
physicians’ finding of malingering is outweighed by the
examining physicians’ opinions.

Case: 11-35072

08/10/2012

ID: 8282386

DktEntry: 30-1

CHAUDHRY v. ASTRUE

Page: 19 of 20

9115

The ALJ must support his credibility finding “with specific,
clear and convincing reasons.” Taylor v. Comm’r of Soc. Sec.
Admin., 659 F.3d 1228, 1234 (9th Cir. 2011) (citation omitted).9
“The ALJ may consider many factors in weighing a claimant’s credibility, 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. If the ALJ’s finding is supported by substantial evidence, the court may not engage in
second-guessing.” Tommasetti v. Astrue, 533 F.3d 1035, 1039
(9th Cir. 2008) (citations and internal quotation marks omitted). “[I]f a claimant complains about disabling pain but fails
to seek treatment, or fails to follow prescribed treatment, for
the pain, an ALJ may use such failure as a basis for finding
the complaint unjustified or exaggerated. . . .” Orn v. Astrue,
495 F.3d 625, 638 (9th Cir. 2007) (citation omitted).
[10] Chaudhry’s effort to explain away his lack of credibility is unavailing. As discussed, Dr. Schultz’s diagnosis of
somatization disorder was based on Chaudhry’s use of a
wheelchair, which itself demonstrates his failure to follow the
advice of providers who told him he did not need a wheelchair or a cane. It stands to reason that the ALJ’s finding that
Chaudhry was not credible is not undermined by the diagnoses that themselves stemmed from Chaudhry’s lack of credibility. Rather, the ALJ’s credibility finding is clearly,
specifically, and convincingly supported by the record.
9

The Commissioner urges us to conclude that the record demonstrates
malingering and therefore that the ALJ need not provide clear and convincing reasons for rejecting Chaudhry’s testimony. But, the ALJ did not
rely on evidence of malingering to support his credibility determination,
so the “clear and convincing” standard applies to our review of the ALJ’s
determination. See Taylor, 659 F.3d at 1234.

Case: 11-35072

08/10/2012

9116

ID: 8282386

DktEntry: 30-1

Page: 20 of 20

CHAUDHRY v. ASTRUE

The record also reflects the observations of several providers that Chaudhry’s complaints of depression lacked objective
support and that Chaudhry repeatedly failed to seek treatment
for depression or follow prescribed courses of treatment. See
Tommasetti, 533 F.3d at 1039. This record evidence bolsters
the ALJ’s finding.
D.

Carpal Tunnel Syndrome

[11] Chaudhry argues that the ALJ erroneously stated that
there was no formal diagnosis of carpal tunnel syndrome
because Dr. Flynn examined Chaudhry for wrist pain and
made a finding of carpal tunnel syndrome. However, the
ALJ’s finding that there was no official diagnosis of carpal
tunnel syndrome is confirmed by Dr. Flynn’s notes. Furthermore, even if there were an official diagnosis in the record,
there is no evidence, as the ALJ noted, that the condition
would last more than 12 months, as required by 42 U.S.C.
§ 423(d)(1)(A). In sum, the record does not reflect objective
medical evidence of carpal tunnel syndrome, and the ALJ
therefore properly determined Chaudhry’s RFC.
IV.

SUMMARY

We affirm the ALJ’s decision. The ALJ conducted a full
and fair hearing in light of the fact that the record contained
evidence of the VA disability rating and the ALJ discussed
the extent of the disability suggested by that rating in his decision. The ALJ also properly documented his analysis of
Chaudhry’s alleged psychiatric impairments and his analysis
was supported by the record. Likewise, the ALJ’s interpretation of the medical evidence was supported by the record, as
was his credibility determination.
AFFIRMED.