Nelsen v. Astrue

Filing 20

ORDER AFFIRMING the Commissioner's decision to deny benefits. Signed by Senior Judge Frederick J Martone on 11/12/13. (TLJ)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Ronald S. Nelsen,
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Plaintiff,
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vs.
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Carolyn W. Colvin, Commissioner of
Social Security,

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Defendant.
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No. CV-12-2194-PHX-FJM
ORDER

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Before the court is plaintiff’s opening brief (doc. 13), defendant’s answering brief
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(doc. 14), and plaintiff’s reply brief (doc. 15). We also have before us the administrative
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record and the decision of the Administrative Law Judge (ALJ) concluding that plaintiff is
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not disabled as that term is defined in the Social Security Act, and is therefore not eligible
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for supplemental security income.
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Plaintiff argues on appeal that the ALJ erred by 1) by rejecting his subjective
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complaints of disabling symptoms; and 2) by discounting the opinion of his treating
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physician.
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I.
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Plaintiff first contends that the ALJ erred in discounting his subjective complaints of
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disabling symptoms. When there is no evidence of malingering, an ALJ can reject the
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claimant’s testimony about the severity of his symptoms by giving “specific, clear and
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convincing reasons for the rejection.” Chaudhry v. Astrue, 688 F.3d 661, 670-71 (9th Cir.
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2012). Here, the ALJ concluded that plaintiff’s subjective complaints were not fully credible

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given his daily activities, his poor work history, the lack of objective medical evidence, and

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inconsistencies in the plaintiff’s own statements.

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Although plaintiff alleged that he is only comfortable in the supine position, the ALJ

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noted that plaintiff walks 1/2 mile a day, handles his own self-care, performs household

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chores, cooks, grocery shops, plays with his dog, and gardens on his patio. Tr. 28, 55, 401,

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555. The ALJ also noted that the plaintiff’s poor work history does not demonstrate a strong

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motivation to work and therefore also detracts from his credibility. Tr. 28; Thomas v.

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Barnhart, 278 F.3d 948, 959 (9th Cir. 2002) (holding that claimant’s poor work history

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reflects poorly on his credibility).

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Finally, the ALJ noted that inconsistencies in plaintiff’s own statements detract from

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his credibility. Although plaintiff told Dr. Datta that he had injured his back in a March 2008

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car accident, he did not mention back problems to Dr. Davis in May 2008, and he did not

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seek treatment for his back until June 27, 2008. Moreover, plaintiff regularly reported that

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his pain level was a 5 on a 1 to 10 scale, which is inconsistent with reports of disabling pain.

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We conclude that these reasons are sufficiently clear and convincing to support the ALJ’s

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decision to discount plaintiff’s subjective complaints.

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II.

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Plaintiff also argues that the ALJ erred in discounting the opinion of his treating

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physician, Dr. Datta. An ALJ must provide “clear and convincing” reasons for rejecting the

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uncontradicted opinion of a treating physician. Lester v. Chater, 81 F.3d 821, 830 (9th Cir.

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1995) (citation omitted). If the opinion is contradicted, the ALJ may reject that opinion for

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“specific and legitimate reasons that are supported by substantial evidence in the record.”

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Carmickle v. Comm’r, Soc. Sec. Admin., 533 F.3d 1155, 1164 (9th Cir. 2008) (citation

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omitted). Here, Dr. Datta’s opinion was contradicted by the opinion of reviewing physician

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Dr. Green, who opined that plaintiff is only partially credible and his functional limitations

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do not preclude full-time work. Tr. 495-502.

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Plaintiff contends that we cannot consider Dr. Green’s contradicting opinion in
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determining the appropriate standard of review because the ALJ did not specifically refer to

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Dr. Green’s opinion. We disagree. The relevant standard of review is based on whether the

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treating physician’s opinion is contradicted or not. A contradicted opinion deserves a lesser

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degree of deference. Dr. Datta’s opinion was in fact contradicted, regardless of whether the

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ALJ referred to the conflicting opinion, and therefore it is entitled to less deference.

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Accordingly, we will affirm the ALJ’s treatment of Dr. Datta’s opinion if it is supported by

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specific and legitimate reasons supported by substantial evidence in the record.

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The ALJ found that Dr. Datta’s opinion that plaintiff was unable to work is

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inconsistent with the objective medical evidence, in that there are no objective findings or

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studies in the record that contradict the residual functional capacity set by the ALJ. The ALJ

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also discounted Dr. Datta’s opinion because it is based largely on plaintiff’s subjective

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complaints, which the ALJ properly discounted. Finally, the ALJ rejected Dr. Datta’s

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opinion because it conflicted with his own treatment notes, which did not document the kind

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of abnormal findings that would reasonably support a conclusion that plaintiff is unable to

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work. Instead, Dr. Datta’s notes indicate that plaintiff was walking 1/2 mile a day, that his

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lower extremity strength was 5/5, and that plaintiff frequently reported that his pain level was

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5 out of 10. Tr. 602, 605, 655, 531, 652.

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Based on these specific and legitimate reasons, we conclude that the ALJ properly
discounted the opinion of plaintiff’s treating physician.
III.

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For the foregoing reasons, we conclude that the ALJ’s decision that plaintiff is not

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disabled is supported by substantial evidence in the record. Therefore, IT IS ORDERED

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AFFIRMING the Commissioner’s decision to deny benefits.

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DATED this 12th day of November, 2013.

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