Wolfchief v. Astrue

Filing 18

ORDER that Plaintiff's appeal of the Commissioner's decision is denied. Signed by Judge David G Campbell on 11/27/12. (DMT)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Veronica O. Wolfchief,
Plaintiff,

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ORDER

v.

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No. CV-12-0455-PHX-DGC

Michael J. Astrue,
Commissioner of Social Security,

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Defendant.

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Pursuant to 42 U.S.C. § 405(g), Plaintiff Veronica O. Wolfchief (“Plaintiff” or

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“the claimant”) seeks judicial review of the Commissioner’s decision finding her not

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disabled within the meaning of the Social Security Act. For the reasons that follow the

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Court will deny Plaintiff’s appeal.

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I.

Background.

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Plaintiff applied for disability insurance benefits and supplemental security

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income in April 2010. Doc. 14 at 2. She alleged that she was disabled as a result of

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multiple conditions beginning on February 1, 2009. Doc. 17 at 2. Her applications were

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twice denied and upon further review an Administrative Law Judge (“ALJ”) issued an

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opinion that she was not disabled. Id. That decision was ratified and became the

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Commissioner’s final decision. Doc. 14 at 3.

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II.

Legal Standard.

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Defendant=s decision to deny benefits will be vacated “only if it is not supported

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by substantial evidence or is based on legal error.” Robbins v. Soc. Sec. Admin., 466 F.3d

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880, 882 (9th Cir. 2006). “‘Substantial evidence= means more than a mere scintilla, but

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less than a preponderance, i.e., such relevant evidence as a reasonable mind might accept

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as adequate to support a conclusion.”

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supported by substantial evidence, the Court must consider the record as a whole,

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weighing both the evidence that supports the decision and the evidence that detracts from

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it. Reddick v. Charter, 157 F.3d 715, 720 (9th Cir. 1998). If there is sufficient evidence

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to support the Commissioner’s determination, the Court cannot substitute its own

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determination. See Young v. Sullivan, 911 F.2d 180, 184 (9th Cir. 1990).

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III.

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Id.

In determining whether the decision is

Analysis.
For purposes of Social Security benefits determinations, a disability is
the inability to do any substantial gainful activity by reason of
any medically determinable physical or mental impairment
which can be expected to result in death or which has lasted
or can be expected to last for a continuous period of not less
than 12 months.

20 C.F.R. § 404.1505.
Determining whether a claimant is disabled involves a sequential five-step

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evaluation process.

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substantial gainful employment, (2) he has a severe physical or mental impairment, and

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(3) the impairment meets or equals a listed impairment or (4) his residual functional

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capacity (“RFC”) precludes him from performing his past work. If at any step the

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Commissioner determines that a claimant is or is not disabled, the analysis ends;

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otherwise it proceeds to step five. If the claimant establishes his burden through step

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four, the Commissioner bears the burden at step five of showing that the claimant has the

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RFC to perform other work that exists in substantial numbers in the national economy.

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See 20 C.F.R. § 404.1520(a)(4)(i)-(v).

The claimant must show (1) he is not currently engaged in

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The ALJ found that Plaintiff had not engaged in substantial gainful activity from

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her alleged disability onset date through the date of his decision. Tr. at 20. At step two,

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the ALJ found that Plaintiff suffered from lupus, hypertension, hepatitis C, carpal tunnel

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syndrome, and lumbar degenerative disc disease which in combination were severe
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within the meaning of the regulations. Tr. at 20. At step three, the ALJ found that the

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combination of impairments did not meet or equal one of the listed impairments. Tr. at

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22; see C.F.R. pt. 404, subpt. P, app. 1. The ALJ discounted medical opinions of two

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treating physicians and determined that Plaintiff had the residual functional capacity to

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perform “light work” as defined in 20 C.F.R. §§ 404.1567(b) and 416.967(b) with some

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additional limitations. With those limitations, the ALJ found that Plaintiff had sufficient

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residual capacity to perform her past relevant work as a cashier. Tr. at 22-26. Because

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he found that Plaintiff could perform her past relevant work, the ALJ concluded that

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Plaintiff was not disabled within the meaning of the Social Security Act. Tr. at 22-26.

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Plaintiff challenges the conclusions of the ALJ on two grounds. First, she contends

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that the ALJ improperly discounted the opinion of two doctors that testified she was

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substantially more limited than the ALJ concluded. Second, Plaintiff argues that the ALJ

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improperly discounted her subjective testimony. The Court will consider each argument

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in turn.

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A.

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Dr. Olu Onisile is one of Plaintiff’s treating physicians. While the “ALJ must

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consider all medical opinion evidence,” Tommasetti v. Astrue, 533 F.3d 1035, 1041 (9th

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Cir. 2008), “[t]he medical opinion of a claimant’s treating physician is entitled to ‘special

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weight,’” Rodriquez v. Bowen, 876 F.2d 759, 762 (9th Cir. 1989) (quoting Embrey v.

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Bowen, 849 F.2d 418, 421 (9th Cir. 1988)). The ALJ may reject the opinion of a treating

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or examining physician by making “‘findings setting forth specific legitimate reasons for

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doing so that are based on substantial evidence in the record.’” Thomas v. Barnhart, 278

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F.3d 947, 957 (9th Cir. 2002) (citation omitted). “The ALJ can meet this burden by

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

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

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omitted). Furthermore, where the treating physician’s opinion is not contradicted by

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another physician, the ALJ’s reasons for rejecting the opinion must be “clear and

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convincing.” Rodriguez v. Bowen, 876 F.2d 759, 762 (9th Cir. 1989); see Lewis v. Apfel,

Medical Opinion of Dr. Onisile.

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236 F.3d 503, 517 (9th Cir. 2001) (“[A]n ALJ may reject a treating doctor’s medical

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opinion, if no other doctor has contradicted it, only for ‘clear and convincing’ reasons

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supported by substantial evidence.”) (citing Reddick, 157 F.3d at 725).

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Dr. Onisile has met with Plaintiff once a month since June 24, 2009. Tr. at 518.

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The ALJ considered Dr. Onisile’s treatment notes (Tr. at 402-39, 462-73, 534-63), a note

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Dr. Onisile wrote on February 15, 2010 (Tr. at 513), and the Multiple Impairment

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Questionnaire form that Dr. Onisile submitted on September 17, 2010 (Tr. at 518-25).

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The ALJ noted Dr. Onisile’s opinion that Plaintiff’s multiple conditions cause her

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considerable pain and physical limitations. Tr. at 24. Dr. Onisile concluded his note with

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his opinion that Plaintiff could not work for at least the next year. Tr. at 513. In the

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questionnaire, Dr. Onisile reported that Plaintiff suffered from chronic pain that was

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constant and limited her to sitting for one to two hours and standing or walking for less

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than one hour during an eight hour workday. Tr. at 520. It also stated that Plaintiff was

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markedly limited in her ability to use her hands and was “incapable of even low stress

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jobs.” Tr. at 522-23.

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The ALJ gave “little weight” to Dr. Onisile’s opinion because “it heavily favors

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the claimant’s subjective complaints and is inconsistent with the objective findings, other

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opinion evidence and the record as a whole, including Dr. Onisile’s own treatment

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notes.” Tr. at 25. The ALJ engaged in a fairly detailed analysis of the treatment notes

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and the reports from the objective tests. Tr. 23-25. The ALJ cited extensively from the

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record and found that the treatment notes “repeatedly and consistently report the claimant

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is ‘stable’ and ‘ambulatory,’ with ‘no change’ in her condition and with ‘within normal

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limits’ physical examinations.” Tr. at 23. The ALJ noted that claimant reported a “0” on

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a “1-10” pain scale in September 2009 (Tr. at 265) and that the record contains an April

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2009 note of a reported decrease in back pain (Tr. at 386).

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The ALJ also found evidence that the course of treatment was particularly

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conservative – mostly routine visits to refill prescriptions with a primary care physician –

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and opined that such a course of treatment does not seem consistent with the levels of
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disability that Plaintiff claims and Dr. Onisile reported. Tr. at 24. Specifically, the ALJ

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identified a notation by Dr. Onisile that Plaintiff was “still not in to see hand surgeon or

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neurosurgeon,” (Tr. at 537), which the ALJ understood to imply that the condition was

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“not so severe as to warrant immediate surgical intervention, or the claimant’s attempt at

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pursuing additional methods of treatment.” Tr. at 24. The ALJ also found that the

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treatment notes confirm an unchanging regimen of medication and treatment which

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suggests that the regimen is effective. Tr. at 24.

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The ALJ’s review of the reports of physical examinations and objective medical

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tests also buttressed his conclusion that Dr. Onisile’s ultimate conclusion was

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unsubstantiated. The ALJ cited objective tests that showed Plaintiff had only mild and

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moderate degenerative disc disease, mild distal sensory neuropathy, unremarkable results

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on hip X-rays, and no evidence of acute intracranial abnormality. Tr. at 360-64, 444,

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514-17, 544. Physical examinations revealed Plaintiff was “normal,” “within normal

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limits,” and “unremarkable.” Tr. at 478-500, 534-63, 567-82. Tests of muscles, gait,

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range of motion, sensory results, and deep tendon reflexes also produced normal or

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unremarkable results. Tr. at 478-500, 534-63, 567-82.

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Plaintiff argues that the ALJ “cherry pick[ed] evidence in support of [his] own

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conclusions.” Doc. 14 at 10 (citing Holohan v. Massanari, 246 F.3d 1195, 1207 (9th Cir.

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2001)). Plaintiff also contends that the ALJ should not have relied on the evidence of the

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“0” on the pain scale because the report was from an eye exam and not relevant to the

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alleged impairment. Doc. 14 at 16; Tr. at 265. Additionally, Plaintiff contends that Dr.

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Onisile’s testimony does not conflict with the objective tests or medical records. Doc. 14

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at 10-11.

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The ALJ may discount the opinion of a treating physician by “setting out a

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detailed and thorough summary of the facts and conflicting clinical evidence, stating his

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interpretation thereof, and making findings.” Thomas, 278 F.3d at 957. This is precisely

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what the ALJ has done. While the ALJ failed to notice that one particular piece of

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evidence – the “0” on the pain scale – was reported at an eye exam, the majority of the
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cited evidence remains unrefuted. Accordingly, the Court finds that the ALJ’s decision is

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supported by substantial evidence and comports with the Ninth Circuit’s requirements for

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discounting treating physician evidence.

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B.

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Dr.

Medical Opinion of Dr. Wang.
George Wang, M.D., was also a treating physician and the same legal

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standards apply to his opinion.

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Impairment Questionnaire. Tr. 526-33. Dr. Wang opined that Plaintiff could sit for two

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hours and stand or walk for two hours during an eight hour workday. Tr. at 528. He also

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concluded that Plaintiff would benefit from a sit/stand option. Tr. at 528. Dr. Wang

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believed Plaintiff could occasionally lift up to twenty pounds and carry up to twenty

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pounds frequently, (Tr. at 529) and he ultimately concluded that Plaintiff was capable of

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low stress jobs. Tr. at 531.

In January 2011, Dr. Wang submitted a Multiple

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The ALJ gave Dr. Wang’s opinion some weight. Tr. at 25. He accepted Dr.

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Wang’s conclusion that Plaintiff could only occasionally lift up to twenty pounds and

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would benefit from a sit/stand option. Tr. at 25. Those limitations were included in the

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residual functional capacity calculation. Tr. at 25. The ALJ found, however, that any

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additional limitations were not supported by the objective medical evidence. Tr. at 25.

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The ALJ found that Dr. Wang’s “conservative” and “routine” course of treatment was

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inconsistent with severe limitations. Tr. at 25.

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The Court finds that the ALJ properly discounted portions of Dr. Wang’s

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testimony. As noted above, the ALJ thoroughly reviewed the objective medical evidence

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and the treatment notes. Tr. at 23-24. That review revealed substantial medical and

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clinical evidence that conflicted with some of Dr. Wang’s conclusions. “‘When there is

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conflicting medical evidence, the [ALJ] must determine credibility and resolve the

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conflict.’” Thomas, 278 F.3d at 957 (quoting Matney, 981 F.2d at 1019).

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C.

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The ALJ must engage in a two-step analysis to evaluate the credibility of a

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claimant’s subjective testimony. “First, the ALJ must determine whether the claimant

Plaintiff’s Subjective Complaints.

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has presented objective medical evidence of an underlying impairment ‘which could

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reasonably be expected to produce the pain or other symptoms alleged.’” Lingenfelter v.

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Astrue, 504 F.3d 1028, 1036 (9th Cir. 2007) (quoting Bunnell v. Sullivan, 947 F.2d 341,

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344 (9th Cir. 1991) (en banc)). If the claimant meets this first test, and there is no

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evidence of malingering, then the ALJ “can reject the claimant’s testimony about the

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severity of her symptoms only by offering specific, clear and convincing reasons for

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doing so.” Smolen v. Chater, 80 F.3d 1273, 1282 (9th Cir. 1996). The ALJ may consider

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at least the following factors when weighing the claimant=s credibility: the claimant=s

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reputation for truthfulness, inconsistencies either in the claimant=s testimony or between

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her testimony and her conduct, the claimant=s daily activities, her work record, and

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testimony from physicians and third parties concerning the nature, severity, and effect of

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the symptoms of which claimant complains. Thomas, 278 F.3d at 958-59 (citing Light v.

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Soc. Sec. Admin., 119 F.3d 789,792 (9th Cir. 1997)).

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At step one, the ALJ determined that Plaintiff did suffer from lupus, hypertension,

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hepatitis C, carpal tunnel syndrome, and lumbar degenerative disc disease. The ALJ

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concluded, however, that the “evidence indicates claimant’s impairments are not as

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severe or as limiting as alleged.” Tr. at 23. While “[p]ain of sufficient severity caused by

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a medically diagnosed ‘anatomical, physiological, or psychological abnormality’ may

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provide the basis for determining that a claimant is disabled,” Light v. Soc. Sec. Admin.,

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119 F.3d 789, 792 (9th Cir. 1997)(citing 42 U.S.C. § 423(d)(5)(A); Bunnell, 947 F.2d at

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344-45), the ALJ concluded that the “record as constituted contains minimal, if any . . .

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supporting objective medical evidence.” Tr. at 23.

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The ALJ then proceeded to the review of the treatment notes, test results, and

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physical exam records that the Court referenced above with regard to the rejection of Dr.

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Onisile’s medical opinion. The general tenor of those materials suggested that the

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Plaintiff’s impairment was mild to moderate. Tr. at 23-24. The conservative course of

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treatment and Plaintiff’s failure to see a surgeon suggested that Plaintiff’s condition was

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not as severe as she reported. Tr. at 24.
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Plaintiff contends that the ALJ mischaracterized the record when he gave little

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weight to Plaintiff’s subjective complaints. Doc. 14 at 16. As noted above, however, the

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ALJ engaged in a thorough review of the record and determined that Plaintiff’s subjective

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complaints were not credible.

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conclusion. The treatment notes show Plaintiff receiving a steady course of conservative

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treatment over a period of years, and show her to be stable and ambulatory with largely

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normal physical exams. Tests performed showed either normal conditions or mild to

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moderate problems, and Plaintiff appears to have taken no steps to receive greater or

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different treatment as would be expected if she truly were suffering from debilitating

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symptoms as she now contends. The Court accordingly finds the ALJ’s conclusions to be

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supported by substantial evidence and that he did not error in discounting Plaintiff’s

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subjective testimony.

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The ALJ gave clear and convincing reasons for his

IT IS ORDERED that Plaintiff’s appeal of the Commissioner’s decision is
denied.
Dated this 27th day of November, 2012.

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