Meyer v. Astrue

Filing 26

ORDER Affirming the decision of the Administrative Law Judge. IT IS FURTHER ORDERED that the Clerk of the Court shall enter judgment accordingly. The judgment will serve as the mandate of this Court. Signed by Senior Judge James A Teilborg on 3/25/2014. (ALS)

1

WO

2
3
4
5
6

IN THE UNITED STATES DISTRICT COURT

7

FOR THE DISTRICT OF ARIZONA

8
9

Edward Meyer,

No. CV-12-01445-PHX-JAT
Plaintiff,

10
11

v.

12

ORDER

Carolyn W. Colvin, Acting Commissioner
of Social Security,1

13

Defendant.

14
15

Plaintiff Edward Meyer appeals the Commissioner of Social Security’s (the

16

“Commissioner”) denial of disability benefits. The Court now rules on his appeal. (Doc.

17

22).

18

I.

BACKGROUND

19

A.

20

On October 30, 2008, Plaintiff, Edward Meyer, filed an application for disability

21

insurance benefits under Title II of the Social Security Act, alleging a disability onset

22

date of May 1, 2008. (Tr. at 142). The Commissioner denied benefits on March 26, 2009,

23

(Tr. at 76), and Plaintiff requested reconsideration, (Tr. at 80). Plaintiff was again denied

24

on June 12, 2009, (Tr. at 22, 81), and he appealed.

25

Procedural Background

On February 10, 2011, Administrative Law Judge (“ALJ”) Edward D. Steinman

26
27
28

1

Carolyn W. Colvin became the Acting Commissioner of Social Security on
February 14, 2013 and is substituted for Michael J. Astrue as Defendant. Fed.R.Civ.P.
25(d). For convenience, the Court will refer to the Acting Commissioner as the
Commissioner.

1

held a hearing on Plaintiff’s claim. (Tr. at 34-73). At the hearing, Plaintiff amended his

2

disability onset date to November 9, 2008. (Tr. at 36). Following the ALJ’s unfavorable

3

decision, (Tr. at 19-29), Plaintiff appealed to the Appeals Council. After the Appeals

4

Council denied Plaintiff’s request for review, (Tr. at 1), Plaintiff filed an appeal with this

5

Court. (Doc. 1, 22). Plaintiff argues that the ALJ wrongly (1) favored the opinions of

6

non-treating and non-examining physicians over his treating physician, (2) found

7

Plaintiff’s subjective symptoms to be not credible, (3) assessed Plaintiff’s residual

8

functional capacity, (4) cherrypicked the medical evidence to reach a conclusion of non-

9

disability, and (5) improperly rejected the opinions of Plaintiff’s chiropractor as non-

10

medical sources. (Doc. 22 at 7-20).

11

B.

Medical Background

12

The Court will briefly summarize Plaintiff’s medical history, which is thoroughly

13

recounted in the administrative record. Plaintiff’s medical records, beginning in October

14

2005, reflect extensive treatment for low back pain. In 2005, an MRI of Plaintiff’s back

15

showed evidence of multilevel hypertrophic disc desiccation and Schmorl’s nodes as well

16

as multilevel posterior disc bulging with bilateral neural foraminal narrowing. (Tr. at 219-

17

20). Plaintiff underwent regular treatments with his physician, Dr. Royal Anspach, who

18

diagnosed Plaintiff in 2007 as having mild to moderate degenerative disc disease L5-S1

19

without protrusion or associated neural encroachment. (Tr. at 225). Plaintiff also treated

20

with Dr. Scott Hoffer, a chiropractor, who reported in January 2008 that Plaintiff “has

21

had an exacerbation of his chronic low back pain which has limited his ability to do

22

normal daily activities . . .” and that MRIs showed “multi level disc bulging with

23

flattening of the anterior aspect of the spinal cord from L2 through L5 causing foraminal

24

encroachment.” (Tr. at 393). In June 2008, another of Plaintiff’s doctors, Dr. Warren

25

Rizzo, diagnosed Plaintiff as having osteoarthritis of the hips and lumbosacral spine

26

degenerative arthritis. (Tr. at 267).

27

Despite undergoing treatments including oral medications, epidurals, medial

28

branch blocks, and lumbar facet injections, Plaintiff continually reported severe back pain

-2-

1

from 2005 to 2008. (Tr. at 267, 277-78). Records from after Plaintiff’s alleged onset date

2

of disability show that Plaintiff continues to suffer back pain. See, e.g., (Tr. at 514). X-

3

rays from 2009 show Plaintiff suffered multilevel lumbar and lower thoracic degenerative

4

disc changes, early lower cervical degenerative disc changes, and minimal asymmetric

5

left hip degenerative joint disease. (Tr. at 296-300). Plaintiff has continued treating with

6

Dr. Anspach through at least 2011. (Tr. at 522). Dr. Anspach has diagnosed Plaintiff with

7

chronic lumbar pain, degenerative disc disease, and chronic hip pain with degenerative

8

arthritis of the hip. (Tr. at 489).

9

II.

DISABILITY

10

A.

11

To qualify for disability benefits under the Social Security Act, a claimant must

12

show, among other things, that he is “under a disability.” 42 U.S.C. § 423(a)(1)(E). The

13

Act defines “disability” as the “inability to engage in any substantial gainful activity by

14

reason of any medically determinable physical or mental impairment which can be

15

expected to result in death or which has lasted or can be expected to last for a continuous

16

period of not less than 12 months.” 42 U.S.C. § 423(d)(1)(A). A person is:

17

under a disability only if his physical or mental impairment or
impairments are of such severity that he is not only unable to
do his previous work but cannot, considering his age,
education, and work experience, engage in any other kind of
substantial gainful work which exists in the national
economy.

18
19
20
21

Definition of Disability

42 U.S.C. § 423(d)(2)(A).

22

B.

Five-Step Evaluation Process

23

The Social Security regulations set forth a five-step sequential process for

24

evaluating disability claims. 20 C.F.R. § 404.1520(a)(4); see also Reddick v. Chater, 157

25

F.3d 715, 721 (9th Cir. 1998). A finding of “not disabled” at any step in the sequential

26

process will end the inquiry. 20 C.F.R. § 404.1520(a)(4). The claimant bears the burden

27

of proof at the first four steps, but the burden shifts to the Commissioner at the final step.

28

Reddick, 157 F.3d at 721. The five steps are as follows:

-3-

1
2
3

1.

First, the ALJ determines whether the claimant is “doing substantial gainful

activity.” 20 C.F.R. § 404.1520(a)(4)(i). If so, the claimant is not disabled.
2.

If the claimant is not gainfully employed, the ALJ next determines whether

4

the claimant has a “severe medically determinable physical or mental impairment.” 20

5

C.F.R. § 404.1520(a)(4)(ii). To be considered severe, the impairment must “significantly

6

limit[] [the claimant's] physical or mental ability to do basic work activities.” 20 C.F.R. §

7

404.1520(c). Basic work activities are the “abilities and aptitudes to do most jobs,” such

8

as lifting, carrying, reaching, understanding, carrying out and remembering simple

9

instructions, responding appropriately to co-workers, and dealing with changes in routine.

10

20 C.F.R. § 404.1521(b). Further, the impairment must either have lasted for “a

11

continuous period of at least twelve months,” be expected to last for such a period, or be

12

expected “to result in death.” 20 C.F.R. § 404.1509 (incorporated by reference in 20

13

C.F.R. § 404.1520(a)(4)(ii)). The “step-two inquiry is a de minimis screening device to

14

dispose of groundless claims.” Smolen v. Chater, 80 F.3d 1273, 1290 (9th Cir. 1996). If

15

the claimant does not have a severe impairment, then the claimant is not disabled.

16

3.

Having found a severe impairment, the ALJ next determines whether the

17

impairment “meets or equals” one of the impairments listed in the regulations. 20 C.F.R.

18

§ 404.1520(a)(4)(iii). If so, the claimant is found disabled without further inquiry. If not,

19

before proceeding to the next step, the ALJ will make a finding regarding the claimant's

20

“residual functional capacity based on all the relevant medical and other evidence in [the]

21

case record.” 20 C.F.R. § 404.1520(e). A claimant's “residual functional capacity” is the

22

most he can still do despite all his impairments, including those that are not severe, and

23

any related symptoms. 20 C.F.R. § 404.1545(a)(1).

24

4.

At step four, the ALJ determines whether, despite the impairments, the

25

claimant can still perform “past relevant work.” 20 C.F.R. § 404.1520(a)(4)(iv). To make

26

this determination, the ALJ compares its “residual functional capacity assessment . . .

27

with the physical and mental demands of [the claimant's] past relevant work.” 20 C.F.R.

28

§ 404.1520(f). If the claimant can still perform the kind of work he previously did, the

-4-

1
2

claimant is not disabled. Otherwise, the ALJ proceeds to the final step.
5.

At the final step, the ALJ determines whether the claimant “can make an

3

adjustment to other work” that exists in the national economy. 20 C.F.R. §

4

404.1520(a)(4)(v). In making this determination, the ALJ considers the claimant's

5

“residual functional capacity” and his “age, education, and work experience.” 20 C.F.R. §

6

404.1520(g)(1). If the claimant can perform other work, he is not disabled. If the claimant

7

cannot perform other work, he will be found disabled. As previously noted, the

8

Commissioner has the burden of proving that the claimant can perform other work.

9

Reddick, 157 F.3d at 721.

10

In evaluating the claimant’s disability under this five-step process, the ALJ must

11

consider all evidence in the case record. 20 C.F.R. § 404.1520(a)(3); 20 C.F.R. §

12

404.1520b. This includes medical opinions, records, self-reported symptoms, and third-

13

party reporting. 20 C.F.R. § 404.1527; 20 C.F.R. § 404.1529; SSR 06-3p.

14

C.

The ALJ’s Evaluation Under the Five-Step Process

15

The ALJ applied the five-step sequential evaluation process using Plaintiff’s

16

amended alleged onset date of November 9, 2008 and last insured date of December 31,

17

2013. (Tr. at 24). The ALJ found in step one of the sequential evaluation process that

18

Plaintiff has not engaged in substantial gainful activity since his amended alleged onset

19

date of November 9, 2008. (Id.) The ALJ then found Plaintiff to have the following

20

severe impairments: “arthritis of the hips; lumbar spine degenerative disc disease with

21

spondylosis.” (Id.) Under step three, the ALJ noted that none of these impairments met or

22

medically equaled one of the listed impairments that would result in a finding of

23

disability. (Tr. at 25). The ALJ then determined that Plaintiff’s residual functional

24

capacity (“RFC”) was the ability to “lift or carry 10 pounds frequently and 20 pounds

25

occasionally; sit, stand or walk for 6 hours total out of an 8-hour workday with the need

26

to alternately sit or stand or relieve discomfort; avoid climbing ropes, scaffolds or

27

ladders; avoid concentrated exposure to hazards; mentally limited to simple and repetitive

28

tasks with no public contact and limited co-worker and supervisor contact due to side

-5-

1

effects from the prescribed medications.” (Id.) Under step four, the ALJ determined that

2

Plaintiff was unable to perform any of his past relevant work. (Tr. at 28). Under step five,

3

the ALJ then considered the Plaintiff’s age, education, work experience, and residual

4

functional capacity to determine that Plaintiff could perform a number of jobs in the

5

national economy. (Id.) The ALJ concluded that Plaintiff was not disabled.

6

D.

7

A district court:

8

may set aside a denial of disability benefits only if it is not
supported by substantial evidence or if it is based on legal
error. Substantial evidence means more than a mere scintilla
but less than a preponderance. Substantial evidence is
relevant evidence, which considering the record as a whole, a
reasonable person might accept as adequate to support a
conclusion. Where the evidence is susceptible to more than
one rational interpretation, one of which supports the ALJ’s
decision, the ALJ’s decision must be upheld.

9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

Standard of Review

Thomas v. Barnhart, 278 F.3d 947, 954 (9th Cir. 2002) (internal citation and quotation
marks omitted). This is because “[t]he trier of fact and not the reviewing court must
resolve conflicts in the evidence, and if the evidence can support either outcome, the
court may not substitute its judgment for that of the ALJ.” Matney v. Sullivan, 981 F.2d
1016, 1019 (9th Cir. 1992). Under this standard, the Court will uphold the ALJ’s findings
if supported by inferences reasonably drawn from the record. Batson v. Comm’r of the
Soc. Sec. Admin., 359 F.3d 1190, 1193 (9th Cir. 2004). However, the Court must consider
the entire record as a whole and cannot affirm simply by isolating a “specific quantum of
supporting evidence.” Orn v. Astrue, 495 F.3d 625, 630 (9th Cir. 2007) (internal
quotation omitted).
III.

THE OPINIONS OF PLAINTIFF’S TREATING PHYSICIANS
A.

Legal Standard

“The ALJ is responsible for resolving conflicts in the medical record.” Carmickle
v. Comm’r, Soc. Sec. Admin., 533 F.3d 1155, 1164 (9th Cir. 2008). Such conflicts may
arise between a treating physician's medical opinion and other evidence in the claimant's
record. A treating physician’s opinion is entitled to controlling weight when it is “well-6-

1

supported by medically accepted clinical and laboratory diagnostic techniques and is not

2

inconsistent with the other substantial evidence in [the claimant’s] case record.” 20

3

C.F.R. § 404.1527(d)(2); see also Orn, 495 F.3d at 631. On the other hand, if a treating

4

physician’s opinion “is not well-supported” or “is inconsistent with other substantial

5

evidence in the record,” then it should not be given controlling weight. Orn, 495 F.3d at

6

631.

7

1.

Substantial Evidence

8

Substantial evidence that contradicts a treating physician’s opinion may be either

9

(1) an examining physician’s opinion or (2) a nonexamining physician’s opinion

10

combined with other evidence. Lester v. Chater, 81 F.3d 821, 830-31 (9th Cir. 1995).

11

In the case of an examining physician, “[w]hen an examining physician relies on

12

the same clinical findings as a treating physician, but differs only in his or her

13

conclusions, the conclusions of the examining physician are not substantial evidence.”

14

Orn, 495 F.3d at 632 (citing Murray v. Heckler, 722 F.2d 499, 501-02 (9th Cir. 1984)).

15

To constitute substantial evidence, the examining physician must provide “independent

16

clinical findings that differ from the findings of the treating physician.” Id. (citing Miller

17

v. Heckler, 770 F.2d 845, 849 (9th Cir. 1985)). Independent clinical findings can be either

18

“diagnoses that differ from those offered by another physician and that are supported by

19

substantial evidence, . . . or findings based on objective medical tests that the treating

20

physician has not herself considered.” Id. (citing Allen v. Heckler, 749 F.2d 577, 579 (9th

21

Cir. 1984); Andrews v. Shalala, 53 F.3d 1035, 1041 (9th Cir. 1995)).

22

“The opinion of a nonexamining physician cannot by itself constitute substantial

23

evidence that justifies the rejection of the opinion of either an examining physician or a

24

treating physician.” Lester, 81 F.3d at 831. Such an opinion is only substantial evidence if

25

supported by “substantial record evidence.” Id.

26

2.

Discounting of a Treating Physician’s Opinion

27

If the ALJ determines that a treating physician’s opinion is inconsistent with

28

substantial evidence and is not to be given controlling weight, the opinion remains

-7-

1

entitled to deference and should be weighed according to the factors provided in 20

2

C.F.R. § 404.1527(c). Orn, 495 F.3d at 631; SSR 96-2p at 4. These factors include (1) the

3

length of the treatment relationship and the frequency of examination; (2) the nature and

4

extent of the treatment relationship; (3) the extent to which the opinion is supported by

5

relevant medical evidence; (4) the opinion’s consistency with the record as a whole; and

6

(5) whether the physician is a specialist giving an opinion within his specialty. 20 C.F.R.

7

§ 404.1527(c).

8

If a treating physician’s opinion is not contradicted by the opinion of another

9

physician, then the ALJ may discount the treating physician’s opinion only for “clear and

10

convincing” reasons. Carmickle, 533 F.3d at 1164 (quoting Lester, 81 F.3d at 830). If a

11

treating physician’s opinion is contradicted by another physician’s opinion, then the ALJ

12

may reject the treating physician’s opinion if there are “specific and legitimate reasons

13

that are supported by substantial evidence in the record.” Id. (quoting Lester, 81 F.3d at

14

830).
3.

15

Opinions on Disability

16

Finally, “[a]lthough a treating physician’s opinion is generally afforded the

17

greatest weight in disability cases, it is not binding on an ALJ with respect to the

18

existence of an impairment or the ultimate determination of disability.” Tonapetyan v.

19

Halter, 242 F.3d 1144, 1148 (9th Cir. 2001). This is because the determination as to

20

whether a claimant is disabled is an issue reserved to the Commissioner. 20 C.F.R. §

21

404.1527(d)(1). Thus, even if a treating physician’s opinion is controlling, it does not

22

necessarily lead to a finding of disability. See Magallanes v. Bowen, 881 F.2d 747, 753

23

(9th Cir. 1989) (rejecting a treating physician’s opinion of disability).

24

B.

Discussion

25

Plaintiff argues the ALJ committed legal error in rejecting the medical opinions of

26

Dr. Anspach and Dr. Hoffer, Plaintiff’s treating physicians, in favor of the opinions of

27

non-treating consultative physicians. (Doc. 22 at 7).

28

-8-

1

1.

Dr. Anspach

2

Dr. Anspach has treated Plaintiff for his back pain since March 2007. (Tr. at 489).

3

At Plaintiff’s initial visit, Dr. Anspach noted Plaintiff’s history of back pain on his left

4

side for which he had been undergoing physical therapy with pain management,

5

including a nerve block and epidural. (Tr. at 315). Dr. Anspach diagnosed chronic pain in

6

the lower spine and left hip. (Tr. at 316), In July 2009, Dr. Anspach opined that Plaintiff

7

suffered chronic low back pain, chronic hip pain, and sciatica and was, in his opinion,

8

disabled. (Tr. at 313).

9

In November 2009, Dr. Anspach opined in a residual functional capacity

10

questionnaire that Plaintiff’s impairments existed since he began treating Plaintiff in

11

2007. (Tr. at 430). He diagnosed Plaintiff as having chronic lumbar pain, degenerative

12

disc disease, and chronic hip pain, based upon two MRIs showing disc degeneration and

13

a negative x-ray of the hip. (Id.) He also noted that Plaintiff had tested negative for

14

autoimmune diseases. (Id.) He described Plaintiff’s symptoms as chronic lumbar pain

15

with spasm and chronic hip pain with spasm causing fatigue. (Id.) He listed objective

16

signs of pain as reduced range of motion of the lower spine, reflex changes, and

17

tenderness, and stated that Plaintiff’s pain would constantly interfere with the attention

18

and concentration needed to perform work tasks. (Tr. at 431).

19

Dr. Anspach further opined that Plaintiff could sit for 30 minutes at a time and for

20

less than two hours in an eight-hour workday; could stand for 30 minutes at a time and

21

for less than two hours in an eight-hour workday; would need every thirty minutes to

22

walk for ten minutes; could lift or carry less than ten pounds only rarely; could never

23

stoop, crouch, or climb ladders and could climb stairs only rarely; had significant

24

limitations reaching; and could use his hands to grasp and turn for only 75% of a

25

workday. He also opined that Plaintiff would miss more than four days per month of

26

work due to his impairments. (Tr. at 432-33). Dr. Anspach completed a second residual

27

functional capacity questionnaire in September 2010 in which he expressed the same

28

opinion as to Plaintiff’s diagnoses, symptoms, and limitations. (Tr. at 489-93).

-9-

1

The ALJ explicitly discounted Dr. Anspach’s opinion for four reasons: (1) the

2

opinion that Plaintiff was “disabled” was not entitled to any special significance; (2) the

3

opinion was unsupported by the clinical findings and test results upon which it relied; (3)

4

the opinion was unsupported by the opinions of Dr. Maxwell and Dr. Cunningham; and

5

(4) the opinion was inconsistent with Plaintiff’s reported activities of daily living. (Tr. at

6

27).

7

Plaintiff argues that the ALJ erred in concluding “that the treating doctor’s opinion

8

did not merit any special consideration.” (Doc. 22 at 8). Plaintiff misreads the ALJ’s

9

decision. The ALJ stated only that “[b]y regulation, opinions that the claimant is

10

‘disabled’ or ‘unable to work’ are not entitled to any special significance, even when

11

offered by a treating physician.” (Tr. at 27). In this regard, the ALJ correctly disregarded

12

Dr. Anspach’s opinion as to disability because the ultimate issue of disability is an

13

administrative decision reserved to the Commissioner. See Tonapetyan, 242 F.3d at 1148.

14

Nothing in the ALJ’s decision suggests, as Plaintiff contends, that the ALJ automatically

15

discounted Dr. Anspach’s medical opinion. Accordingly, the Court rejects this argument.

16

Instead, the ALJ properly found that Dr. Anspach’s medical opinion was

17

inconsistent with substantial record evidence, namely the opinion of Dr. Keith

18

Cunningham, a board-certified internist, who examined Plaintiff in February 2009. (Tr. at

19

27, 290). Dr. Cunningham diagnosed Plaintiff with chronic hip and back pain, androgen

20

deficiency, and deconditioning. (Tr. at 291). Dr. Cunningham opined that these

21

conditions would not impose functional limitations on Plaintiff. (Tr. at 292). Dr.

22

Cunningham examined Plaintiff in his office where he noted Plaintiff’s medical history,

23

current medications, and self-reported symptoms. (Tr. at 290). Dr. Cunningham tested

24

Plaintiff’s gait, coordination, range of motion, joints, motor skills, reflexes, and sensory

25

response. (Tr. at 290). Dr. Cunningham provided independent clinical findings that

26

differed from the findings of Dr. Anspach. See Orn, 495 F.3d at 632.

27

In addition to Dr. Cunningham, the ALJ also noted the opinion of Dr. Maxwell,

28

who examined Plaintiff in September 2009. (Tr. at 27). Dr. Maxwell noted Plaintiff

- 10 -

1

suffered pain in his hips, back, and diagnosed arthritis of the hips and lumbar

2

spondylosis. (Tr. at 428). Significantly, aside from narrowing of Plaintiff’s L5-S1

3

vertebra, Dr. Cunningham made no other objective findings. Because the opinions of Drs.

4

Cunningham and Maxwell constituted substantial record evidence contradicting Dr.

5

Anspach’s opinion, the ALJ did not err in concluding that Dr. Anspach’s opinion was not

6

entitled to controlling weight.

7

The ALJ, however, not only concluded that Dr. Anspach’s opinion was not

8

entitled to controlling weight but also that it was entitled to only minimal weight. The

9

next issue is whether this was error. As a treating physician, Dr. Anspach’s opinion is

10

entitled to deference even if not given controlling weight. Orn, 495 F.3d at 631.

11

However, although the ALJ did not explicitly discuss each of the factors enumerated in

12

20 C.F.R. § 404.1527(c) for determining the weight to accord a medical opinion, it is

13

clear from the whole of the ALJ’s opinion that the ALJ adequately weighed these factors.

14

The ALJ correctly found that Dr. Anspach’s opinion was not well-supported by

15

the medical evidence. (Tr. at 27). Although Dr. Anspach opined that Plaintiff was

16

disabled, his own progress notes show that for most office visits Plaintiff consistently had

17

a normal gait, station, motor functioning, sensation, coordination, and reflexes, (Tr. at

18

232-37, 318, 322, 324, 333, 335, 337, 339, 341, 445, 447, 459, 462, 467, 477, 479, 517,

19

519, 521), although Plaintiff sometimes had a muscle spasm and/or limping. See (Tr. at

20

239, 316, 329, 441, 443, 453, 455, 469, 473, 475, 523).

21

Plaintiff argues that the ALJ erred in rejecting Dr. Anspach’s opinion as

22

inconsistent with Dr. Anspach’s own functional assessment and as inconsistent with the

23

ALJ’s functional assessment. (Doc. 22 at 8). First, the ALJ did not reject Dr. Anspach’s

24

opinion because it was inconsistent with the ALJ’s assessment of Plaintiff’s RFC. Rather,

25

the ALJ’s decision specifically discounts Dr. Anspach’s opinion because it was

26

inconsistent with the clinical findings and test results, the opinion of Dr. Cunningham, the

27

examination by Dr. Maxwell, and Plaintiff’s own self-reported activities. (Tr. at 27).

28

Second, the ALJ was correct that Dr. Anspach’s RFC assessment of Plaintiff was

- 11 -

1

inconsistent with his treatment records, and therefore had a specific and legitimate reason

2

for giving Dr. Anspach’s opinion less weight. An incongruity between a treating

3

physician’s RFC assessment and that physician’s medical records “provides [a] specific

4

and legitimate reason for rejecting” that physician’s opinion. Tommasetti v. Astrue, 533

5

F.3d 1035, 1041 (9th Cir. 2008). The clinical findings that Dr. Anspach cited in his RFC

6

contradicted his conclusion that Plaintiff had severe functional limitations. Although Dr.

7

Ansbach stated that the first MRI, taken in 2005, showed that Plaintiff had disc bulging,

8

that MRI also showed “no obvious impression” upon the nerve roots of the spine. (Tr. at

9

430, 219-20). Similarly, the second MRI, taken in 2007, showed no evidence of disc

10

protrusion and “[m]ild to moderate degenerative disc disease L5-S1 without protrusion or

11

associated neural encroachment.” (Tr. at 225). It is unclear, however, upon which hip x-

12

ray Dr. Ansbach’s opinion was based as Plaintiff had x-rays taken in both 2007 and 2009.

13

(Tr. at 223, 298). The 2007 x-ray was entirely unremarkable and showed no acute

14

disease. (Tr. at 223). The 2009 x-ray showed “[m]inimal asymmetric left hip

15

[degenerative joint disease] compared to the right.” (Tr. at 298). Regardless, neither x-ray

16

showed objective findings of the type that would cause Plaintiff’s alleged functional

17

limitations.2 Moreover, Dr. Anspach’s treatment records reflect that Plaintiff generally

18

had normal range of motion, reflexes, and gait. See (Tr. at 232-37, 318, 322, 324, 333,

19

335, 337, 339, 341, 445, 447, 459, 462, 467, 477, 479, 517, 519, 521). Because Dr.

20

Anspach’s medical records do not support his RFC assessment, the ALJ had a specific

21

and legitimate reason for giving his opinion less weight.

22

Plaintiff argues that the ALJ erred in relying upon medical records predating the

23

alleged onset date of disability to discount Dr. Anspach’s opinion. (Doc. 22 at 8).

24

Although “[m]edical opinions that predate the alleged onset of disability are of limited

25

relevance,” Carmickle, 533 F.3d at 1165, the same cannot be said for medical records.

26
27
28

2

Plaintiff argues the ALJ misinterpreted these records as “normal.” (Doc. 22 at 9).
But the ALJ never stated that Plaintiff’s x-ray results were normal; instead, he concluded
that they did not support the severe limitations that Dr. Anspach alleged in his RFC
assessment. (Tr. at 27).
- 12 -

1

Moreover, Dr. Anspach’s opinions themselves expressly relied upon records predating

2

Plaintiff’s alleged onset of disability date. (Tr. at 430, 489). Fundamental fairness dictates

3

that the ALJ can consider medical records underlying a medical opinion that Plaintiff

4

offered in support of his disability claim. Additionally, other substantial evidence from

5

after Plaintiff’s alleged onset date supported the ALJ’s weighing of Dr. Anspach’s

6

opinion, including Dr. Anspach’s 2010 and 2009 RFC assessments, Dr. Anspach’s

7

treatment notes dating from 2008 through 2010, the 2009 x-ray, and Dr. Cunningham’s

8

evaluation. The ALJ properly considered Plaintiff’s medical records predating his alleged

9

onset of disability date in determining that Dr. Anspach’s opinion was entitled to minimal

10

weight.

11

Plaintiff also argues that the ALJ cherrypicked Dr. Anspach’s records to support

12

its conclusion and ignored the evidence favorable to Plaintiff. (Doc. 22 at 9). Specifically,

13

Plaintiff takes issue with the ALJ’s reference to Dr. Anspach’s records showing Plaintiff

14

has having a “normal gait.” (Tr. at 25). Plaintiff asserts that the remaining portions of that

15

medical record show Plaintiff has intense pain, tenderness, weakness, and restriction in

16

range of motion. (Doc. 22 at 9). Although some of Dr. Anspach’s records show Plaintiff

17

reporting pain in his hip and spine, see, e.g., (Tr. at 462), the most recent records reveal

18

that Plaintiff “walks for exercise” and “ambulates on own” despite reporting some hip

19

tenderness. (Tr. at 516-17). The ALJ’s decision need only be supported by substantial

20

evidence, which the Ninth Circuit Court of Appeals has said is less than a preponderance

21

and only more than “a mere scintilla.” Thomas, 278 F.3d at 954. Accordingly, substantial

22

evidence supports the ALJ’s finding that Dr. Anspach’s opinion was entitled to minimal

23

weight because it was inconsistent with the other record evidence.

24

2.

Dr. Hoffer

25

Dr. Hoffer is a chiropractor who has been treating Plaintiff since May 2007. (Tr. at

26

241). Dr. Hoffer’s treatment notes reflect a consistent history of Plaintiff having back and

27

hip pain. See, e.g., (Tr. at 243-61). In November 2009, Dr. Hoffer completed a RFC

28

assessment of Plaintiff in which he described Plaintifff as suffering from hip and low

- 13 -

1

back pain, dizziness from medication, and occasional spasms with sitting. (Tr. at 435). He

2

noted tenderness, swelling, muscle spasm, muscle weakness, and impaired sleep, and

3

concluded Plaintiff could sit for only 30 minutes at a time, stand for 30 minutes at a time,

4

stand and sit for less than two hours total in an eight-hour day, could rarely lift less than

5

10 pounds and never any heavier weight, could rarely twist and climb stairs but never

6

stoop, squat, or climb ladders, and had significant limitations “with reaching, handling or

7

fingering.” (Tr. at 436-37). He also stated that Plaintiff was likely to have good and bad

8

days and would be likely to miss more than four days of work per month as a result of his

9

condition. (Tr. at 438). He stated that these limitations began in November 2008.

10

Dr. Hoffer completed another RFC assessment in October 2010 in which he

11

diagnosed chronic lumbalgia, degenerative joint disease, and chronic hip pain with

12

degeneration. (Tr. at 494). He listed as objective findings MRIs, positive orthopedic tests,

13

pulpatory findings, spasms, and moderate to severe tenderness. (Id.). He did not state that

14

Plaintiff was likely to have good days or bad days, and stated that the description of

15

limitations and symptoms applied back to November 2008. (Tr. at 497).

16

The ALJ considered Dr. Hoffer’s opinion but ultimately assigned it little weight.

17

(Tr. at 26). Plaintiff argues this was error because Dr. Hoffer’s findings were consistent

18

with those of Dr. Anspach. (Doc. 22 at 20). But chiropractors are not acceptable medical

19

sources to establish the claimant’s impairment. 20 C.F.R. § 404.1513(d)(1). As an “other

20

source,” the ALJ could discount Dr. Hoffer’s testimony if he gave reasons germane to

21

doing so. Molina v. Astrue, 674 F.3d 1104, 1111 (9th Cir. 2012). In evaluating Dr.

22

Hoffer’s opinions, the ALJ could consider a number of factors, including “[h]ow long the

23

source has known and how frequently the source has seen the individual; [h]ow

24

consistent the opinion is with other evidence; [t]he degree to which the source presents

25

relevant evidence to support an opinion; [h]ow well the source explains the opinion;

26

[w]hether the source has a specialty or area of expertise related to the individual’s

27

impairment(s); and [a]ny other factors that end to support or refute the opinion.” SSR 06-

28

03p.

- 14 -

1

Here, the ALJ had a germane reason for discounting Dr. Hoffer’s opinion: its

2

inconsistency with the opinions of Drs. Cunningham and Maxwell as well as the

3

objective medical evidence in the record. Consequently, the ALJ did not err in assigning

4

little weight to Dr. Hoffer’s opinion.

5

IV.

6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

PLAINTIFF’S REPORTED SYMPTOMS
A.

Legal Standard
An ALJ must engage in a two-step analysis to determine
whether a claimant’s testimony regarding subjective pain or
symptoms is credible. Lingenfelter, 504 F.3d at 1035–36.
First, as a threshold matter, “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.’” Id. at 1036
(quoting Bunnell, 947 F.2d at 344). The claimant is not
required to show objective medical evidence of the pain itself
or of a causal relationship between the impairment and the
symptom. Smolen, 80 F.3d 1273, 1282 (9th Cir. 1996).
Instead, the claimant must only show that an objectively
verifiable impairment “could reasonably be expected” to
produce the claimed pain. Lingenfelter, 504 F.3d at 1036
(quoting Smolen, 80 F.3d at 1282); see also SSR 96–7p at 2;
Carmickle, 533 F.3d at 1160–61 (“reasonable inference, not a
medically proven phenomenon”). If the claimant fails this
threshold test, then the ALJ may reject the claimant’s
subjective complaints. See Smolen, 80 F.3d at 1281 (citing
Cotton v. Bowen, 799 F.2d 1403 (9th Cir. 1986) (reaffirmed
in Bunnell, 947 F.2d 341))
Second, if the claimant meets the first test, then “the
ALJ ‘may not discredit a claimant’s testimony of pain and
deny disability benefits solely because the degree of pain
alleged by the claimant is not supported by objective medical
evidence.’” Orteza v. Shalala, 50 F.3d 748, 749–750 (9th Cir.
1995) (quoting Bunnell, 947 F.2d at 346–47). Rather, “unless
an ALJ makes a finding of malingering based on affirmative
evidence thereof,” the ALJ may only find the claimant not
credible by making specific findings supported by the record
that provide clear and convincing reasons to explain his
credibility evaluation. Robbins, 466 F.3d at 883 (citing
Smolen, 80 F.3d at 1283–84 (“Once a claimant meets [step
one] and there is no affirmative evidence suggesting she is
malingering, the ALJ may reject the claimant’s testimony
regarding the severity of her symptoms only if he makes
specific findings stating clear and convincing reasons for
doing so.”)); see also, e.g., Lingenfelter, 504 F.3d at 1036 (if
the ALJ has found no evidence of malingering, then the ALJ
may reject the claimant’s testimony “only by offering
specific, clear and convincing reasons for doing so”).

- 15 -

1

Trembulak v. Colvin, No. CV-12-02420-PHX-JAT, 2014 WL 523007, at *8–9 (D. Ariz.

2

Feb. 10, 2014).

3

B.

4

Plaintiff contends that the ALJ failed to point to specific findings showing clear

5

and convincing reasons to discredit Plaintiff’s subjective complaints. (Doc. 22 at 9-10).

6

Specifically, Plaintiff alleges that the ALJ cited a functionality assessment completed by

7

Plaintiff to support the ALJ’s conclusion while ignoring those portions of the same

8

assessment in which Plaintiff described his significant limitations. (Id. at 10).

Discussion

9

The ALJ concluded that although Plaintiff’s impairments could reasonably be

10

expected to produce the Plaintiff’s alleged symptoms, Plaintiff’s statements “concerning

11

the intensity, persistence and limiting effects of these symptoms are not credible.” (Tr. at

12

25). Plaintiff noted in his description of his daily activities that he does his own grocery

13

shopping and laundry once per week, cleans the living area of his house, can drive for

14

approximately 10 miles or 20-30 minutes, and visits his friends once or twice a week. (Tr.

15

at 180). The ALJ noted that Plaintiff cooks his own meals and does yardwork. (Id.)

16

Plaintiff is correct that the ALJ erred in stating that Plaintiff did his own yard

17

work. The record shows that Plaintiff reported hiring a gardener to do his yard work and

18

never stated that he did yard work. (Tr. at 193). But error that “does not negate the

19

validity of the ALJ’s ultimate [credibility] conclusion” is harmless error “and does not

20

warrant reversal.” Carmickle, 533 F.3d at 1162. Here, the error is harmless because even

21

if Plaintiff did not perform his own yardwork, the balance of his activities were

22

sufficiently demanding (although not strenuous) that they supported the ALJ’s credibility

23

conclusion. Performing grocery shopping and laundry each week, driving for a half hour,

24

and cleaning the living area were inconsistent with the total disability that Plaintiff

25

alleged in his functionality assessment.

26

Plaintiff next argues that the ALJ erred in assessing the Plaintiff’s daily activities

27

to conclude that he has the capability to perform full-time work. (Doc. 22 at 11). An ALJ

28

may consider daily living activities in his credibility analysis. See 20 C.F.R. §

- 16 -

1

404.1529(c)(3)(i). See, e.g., Morgan v. Comm’r of Soc. Sec. Admin., 169 F.3d 595, 600

2

(9th Cir. 1999) (claimant’s ability to “fix meals, do laundry, work in the yard, and

3

occasionally care for his friend’s child” serves as evidence of ability to work).

4

Plaintiff’s sole argument on this point is that the ALJ erred because Plaintiff’s

5

“activities of daily limiting were significantly more limited in scope and duration” than

6

the ALJ acknowledged. (Doc. 22 at 10, 13). Although Plaintiff is correct that the ALJ did

7

not recount every detail of Plaintiff’s self-reported daily activities, Plaintiff fails to show

8

that the ALJ’s conclusion was inconsistent with these activities. For example, Plaintiff

9

reported that he can do his own grocery shopping but for no more than a half hour. (Tr. at

10

193). Yet Plaintiff testified at the hearing before the ALJ that he spent 75 percent of the

11

day lying in bed to relieve his pain. The ALJ correctly found that Plaintiff’s reported

12

daily activities, including cleaning, driving, and going shopping, were inconsistent with

13

Plaintiff’s claim that he spent most of the day lying in bed.

14

There were specific findings supported by the record that provided clear and

15

convincing reasons to explain the ALJ’s credibility determination. The ALJ did not err in

16

finding Plaintiff not to be credible in the severity of his symptoms based upon Plaintiff’s

17

own objective description of his daily activities. The ALJ’s failure to note every detail of

18

Plaintiff’s limitations, such as the precise length of time Plaintiff stated he could perform

19

each activity, does not imply the ALJ’s failure to consider those details. The ALJ is not

20

required to recount every detail of every piece of evidence in the record.

21

V.

PLAINTIFF’S RFC

22

Plaintiff argues that the ALJ erred in assessing Plaintiff’s RFC. (Doc. 22 at 13).

23

The ALJ determined that Plaintiff was able to perform a range of light work with the

24

need to stand or sit at will due to hip and back impairments, mentally limited to “simple

25

and repetitive tasks with no public contact and limited co-worker and supervisor contact.”

26

(Tr. at 25-27). The ALJ also took into account “the documented adverse side effects from

27

the prescribed narcotic medications” that Plaintiff takes for his pain. (Tr. at 27).3

28
3

Plaintiff testified at his ALJ hearing that among other medications, he
- 17 -

1

Substantial evidence supported the ALJ’s assessment of Plaintiff’s RFC. The

2

objective imaging studies, including Plaintiff’s multiple x-rays and MRIs, did not support

3

a finding of disability for the reasons the Court has discussed in its analysis of the ALJ’s

4

discounting of Dr. Anspach’s opinion. Dr. Cunningham examined Plaintiff and opined

5

that Plaintiff’s conditions did not impose functional limitations. (Tr. at 292).

6

Furthermore, Dr. Griffith, a state agency physician, evaluated Plaintiff and determined

7

Plaintiff could occasionally lift 20 pounds, frequently lift 10 pounds, stand and/or walk

8

for six hours in an eight hour workday, and push and pull for an unlimited time. (Tr. at

9

302). Dr. Griffith noted Plaintiff’s “[p]oor conditioning,” however. (Id.) Similarly, Dr.

10

Fina evaluated Plaintiff and determined that a RFC permitting only light work was

11

appropriate. (Tr. at 350). This is substantial evidence supporting the ALJ’s decision.4

12

Plaintiff nevertheless argues that the ALJ erred because at Plaintiff’s hearing, the

13

vocational expert testified that if Plaintiff suffered from Plaintiff’s alleged limitations, he

14

would be precluded from all work, yet the ALJ relied upon the expert’s testimony that

15

Plaintiff could perform light work. (Doc. 22 at 15). Plaintiff’s argument is fundamentally

16

flawed because although the expert agreed that Plaintiff could not work under the

17

limitations proposed in Plaintiff’s hypothetical question, there is no substantial evidence

18

in the record supporting those limitations. For the reasons already discussed, Plaintiff’s

19

allegations that he is unable to perform any work are not credible. The ALJ is not

20

required to rely upon the vocational expert’s testimony under a hypothetical scenario

21

when substantial record evidence does not support that scenario. See Robbins v. Soc. Sec.

22

Admin., 466 F.3d 880, 886 (9th Cir. 2006) (“[I]n hypotheticals posed to a vocational

23

expert, the ALJ must only include those limitations supported by substantial evidence.”).

24
25

continually takes “codeine plus Tylenol” every six hours, day and night. (Tr. at 44-45).
4

26
27
28

Plaintiff also argues that substantial evidence did not support the ALJ’s opinion
because the ALJ ignored x-rays dating after Plaintiff’s alleged onset date and remarked
that Plaintiff has had a “conservative approach” to treatment. (Doc. 22 at 17). But even if
this were true, substantial evidence supported the ALJ’s decision. The ALJ’s decision
need not be the only determination that a record supports. See also Parra v. Astrue, 481
F.3d 742, 751 (9th Cir. 2007) (evidence of conservative treatment is “sufficient to
discount a claimant’s testimony regarding severity of an impairment”).
- 18 -

1

VI.

NEW EVIDENCE

2

Plaintiff asks the Court to consider new post-hearing evidence consisting of

3

additional treatment records from Dr. Anspach. (Doc. 22 at 21). The Court may order

4

“additional evidence to be taken before the Commissioner of Social Security, but only

5

upon a showing that there is new evidence which is material and that there is good cause

6

for the failure to incorporate such evidence into the record in a prior proceeding.” 42

7

U.S.C. § 405(g). Such new evidence “must bear directly and substantially on the matter

8

in dispute,” and the claimant “must additionally demonstrate that there is a reasonable

9

possibility that the new evidence would have changed the outcome of the administrative

10

hearing.” Mayes v. Massanari, 276 F.3d 453, 462 (9th Cir. 2001) (citation and internal

11

quotation marks omitted). Because all of the additional treatment records document

12

treatment occurring after the date of the ALJ’s decision, Plaintiff cannot demonstrate

13

there is a reasonable possibility that the evidence would have changed the ALJ’s

14

decision. Furthermore, Plaintiff cannot demonstrate that that the evidence is material

15

because records that did not exist at the time of the ALJ’s decision cannot bear “directly

16

and substantially” on the dispute before the ALJ. The Court will not consider Plaintiff’s

17

new evidence.

18

VII.

The ALJ’s decision in this case is supported by substantial record evidence, and

19
20

CONCLUSION

the ALJ’s single error in misstating that Plaintiff did his own gardening is harmless.
For the foregoing reasons,

21
22

///

23

///

24

///

25

///

26

///

27

///

28

///

- 19 -

1

IT IS ORDERED that the decision of the Administrative Law Judge is affirmed.

2

IT IS FURTHER ORDERED that the Clerk of the Court shall enter judgment

3
4

accordingly. The judgment will serve as the mandate of this Court.
Dated this 25th day of March, 2014.

5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

- 20 -