James v. Astrue

Filing 25

ORDER that the decision of the Commissioner is AFFIRMED. The Clerk of Court is kindly directed to enter judgment accordingly and terminate this appeal. Signed by Magistrate Judge Lawrence O Anderson on 3/5/14. (LSP)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Edith Eloise James,

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Plaintiff,
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vs.
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Carolyn W. Colvin, Acting Commissioner)
of the Social Security Administration, )
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Defendant.
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No. CV-12-2663-PHX-LOA
ORDER

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Plaintiff seeks review of the Social Security Administration’s decision denying her

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application for supplemental security income. The parties, who have expressly consented in

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writing to proceed before the undersigned Magistrate Judge per 28 U.S.C. § 636(c), have

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filed briefs in accordance with the Rules of Practice (“Local Rules” or “LRCiv”) 16.1. (Docs.

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19, 22 & 23) After review of the record, briefing and applicable law, the decision of the

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Commissioner is affirmed.

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I. Procedural Background

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In October 2009, Plaintiff filed an application for Supplemental Security Income

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disability benefits under Title XVI of the Social Security Act (“Act”).1 See 42 U.S.C. §§

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“The Supplemental Security Income (“SSI”) program, provided for at 42 U.S.C. §
1381 et seq., provides cash payments to aged, blind, and disabled Americans for the purpose
of ensuring that they have ‘at least a subsistence level income.’” Newman v. Apfel, 223 F.3d

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1381-1383c. (AR2 130-135) Plaintiff was 42 years old when she filed the application and

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has a tenth-grade education. (AR 41-42) Plaintiff reported in the application that she became

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disabled on November 1, 2001. (AR 130, 143) Plaintiff initially identified HIV, high blood

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pressure, asthma, headaches, hepatitis C, and a herniated disc as the conditions that limit her

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ability to work. (AR 148) At the administrative hearing, however, Plaintiff and her counsel

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made it clear that the impairments related to her back are the primary bases for her disability

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claim. (AR. 44-48) Thus, the Administrative Law Judge (“ALJ”) focused his questions at

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the hearing on Plaintiff’s back-related impairments. (AR 48)

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Plaintiff’s application was denied by the Social Security Administration (“SSA”) on

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January 26, 2010. (AR 81-84) Her request for reconsideration was denied on May 12, 2010.

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(AR 88-91) At Plaintiff’s request, a hearing was held on May 19, 2011, before ALJ Alan

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Markiewicz. (AR 34-67, 92) In a written decision, dated June 14, 2011, the ALJ ruled

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Plaintiff is not entitled to disability benefits because she “has not been under a disability

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within the meaning of the Social Security Act since October 8, 2009, the date the application

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was filed.” (AR 20, 20-28)

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Plaintiff filed a Request for Review of Hearing Decision/Order on July 5, 2011. (AR

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14-15) On October 19, 2012, the Appeals Council denied Plaintiff’s request for review of

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the ALJ’s decision. (AR 1-3) As a result of the denial, the ALJ’s decision became the final

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decision of the SSA on that date. (AR 1)

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On December 14, 2012, and having exhausted the administrative review process,

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Plaintiff sought judicial review of the Commissioner’s decision by filing a Complaint in this

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District Court pursuant to 42 U.S.C. § 405(g). (Doc. 1) On May 2, 2013, Plaintiff filed an

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937, 938 (9th Cir. 2000) (citations omitted). “The benefits are meant to ‘supplement an
individual’s other sources of income.’” Id.
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Citations to “AR” are to the administrative record.
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opening Brief pursuant to LRCiv 16.1, in which she seeks a remand for an award of disability

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benefits or, alternatively, a remand for further administrative proceedings. (Doc. 19) On July

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1, 2013, Defendant filed an Opposition to Plaintiff’s Opening Brief. (Doc. 22) Plaintiff filed

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a Reply Brief on July 18, 2013. (Doc. 23)

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II. Applicable Legal Standards

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A. Standard of Review

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A district court must affirm the ALJ’s findings if they are supported by substantial

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evidence and are free from reversible error. Reddick v. Chater, 157 F.3d 715, 720 (9th Cir.

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1998); Marcia v. Sullivan, 900 F.2d 172, 174 (9th Cir. 1990). Substantial evidence is more

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than a scintilla, but less than a preponderance; it is “such relevant evidence as a reasonable

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mind might accept as adequate to support a conclusion.” Richardson v. Perales, 402 U.S.

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389, 401 (1971); see also Reddick, 157 F.3d at 720. In determining whether substantial

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evidence supports the ALJ’s decision, a district court considers the record as a whole,

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weighing both the evidence that supports and that which detracts from the ALJ’s conclusions.

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Reddick, 157 F.3d at 720; Tylitzki v. Shalala, 999 F.2d 1411, 1413 (9th Cir. 1993). The ALJ

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is responsible for resolving conflicts, ambiguity, and determining credibility. Andrews v.

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Shalala, 53 F.3d 1035, 1039 (9th Cir. 1995); Magallanes v. Bowen, 881 F.2d 747, 750 (9th

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Cir. 1989). “If the evidence can reasonably support either affirming or reversing the

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Secretary’s conclusion, the court may not substitute its judgment for that of the Secretary.”

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Reddick, 157 F.3d at 720-21.

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B. Sequential Evaluation Process

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To be eligible for Social Security disability benefits, a claimant must show an

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“inability to engage in any substantial gainful activity by reason of any medically

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determinable physical or mental impairment which can be expected to result in death or

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which has lasted or can be expected to last for a continuous period of not less than 12

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months.” 42 U.S.C. § 423(d)(1)(a); see also Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir.

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1999). The claimant bears the initial burden of proving disability. 42 U.S.C. § 423(d)(5);
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Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005). A five step procedure is used to

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evaluate a disability claim:

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In step one, the Secretary determines whether a claimant is currently engaged
in substantial gainful activity. If so, the claimant is not disabled. 20 C.F.R. §
404.1520(b). In step two, the Secretary determines whether the claimant has
a “medically severe impairment or combination of impairments,” as defined
in 20 C.F.R. § 404.1520(c). If the answer is no, the claimant is not disabled.
If the answer is yes, the Secretary proceeds to step three and determines
whether the impairment meets or equals a “listed” impairment that the
Secretary has acknowledged to be so severe as to preclude substantial gainful
activity. 20 C.F.R. § 404.1520(d). If this requirement is met, the claimant is
conclusively presumed disabled; if not, the Secretary proceeds to step four. At
step four, the Secretary determines whether the claimant can perform "past
relevant work.” 20 C.F.R. § 404.1520(e). If the claimant can perform such
work, she is not disabled. If the claimant meets the burden of establishing an
inability to perform prior work, the Secretary must show, at step five, that the
claimant can perform other substantial gainful work that exists in the national
economy. 20 C.F.R. § 404.1520(f).

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Reddick, 157 F.3d at 721.
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III. ALJ Decision
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Applying the five-step procedure in this case, the ALJ determined Plaintiff has not
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engaged in substantial gainful activity since October 8, 2009, the application date. (AR 22)
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The ALJ found Plaintiff has the following “severe” impairments within the meaning of the
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regulations: disc disease of the lumbar spine/spina bifida, HIV, hepatitis C, and asthma. (Id.)
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The ALJ determined, however, that Plaintiff does not have an impairment or combination of
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impairments that meets or medically equals a listed impairment in 20 C.F.R. Part 404,
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Subpart P, Appendix 1. (Id.) As a result, the ALJ assessed Plaintiff’s residual functional
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capacity3 (“RFC”). (AR 22-27) The ALJ determined Plaintiff has the RFC to perform light

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work as defined in 20 C.F.R. § 416.967(b), but with limitations. (AR 23) Specifically, he
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found Plaintiff is able to lift and/or carry twenty pounds occasionally and ten pounds
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frequently; stand and walk for six hours in an eight-hour workday; and sit for six hours in an
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The term “residual functional capacity” means the most an individual can do after
considering the effects of physical and/or mental limitations that affect the ability to perform
work-related tasks. See 20 C.F.R § 404.1545(a)(1-2).
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eight-hour workday. (Id.) The ALJ further found Plaintiff “is capable of occasionally

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climbing ramps and stairs and can occasionally balance, stoop, kneel, crouch and crawl; but

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is precluded from climbing ladders, ropes and/or scaffolds. She should avoid concentrated

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exposure to fumes, odors, dusts, gases, and poor ventilation.” (Id.)

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In addition, the ALJ determined Plaintiff has no past relevant work but found,

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“considering [Plaintiff’s] age, education, work experience, and residual functional capacity,

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there are jobs that exist in significant numbers in the national economy that [Plaintiff] can

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perform. (AR 27) Based on these findings, the ALJ concluded Plaintiff has not been under

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a “disability,” as defined in the Act, since the date of the application. (AR 28) Consequently,

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the ALJ ruled Plaintiff is not entitled to supplemental security income. (Id.)

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IV. Analysis

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Plaintiff contends in her opening brief that the Commissioner’s decision should be

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reversed and the case remanded for an award of benefits. Plaintiff argues the ALJ erred by

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rejecting the assessments of Plaintiff’s treating physician and treating nurse practitioner, and

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relying on the opinions of a one-time examining physician and a non-examining State agency

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physician. Plaintiff also argues the ALJ erred by rejecting Plaintiff’s symptom testimony in

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the absence of clear and convincing reasons for doing so. In the responsive brief, Defendant

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disputes each of Plaintiff’s arguments and contends the administrative decision is supported

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by substantial evidence and free of harmful legal error.

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A. Alleged Error in Rejecting the Opinions of Treating Sources and Relying on
Non-Treating Sources

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Plaintiff contends the ALJ erred by rejecting the assessments of the treating physician,
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Douglas Cunningham, M.D., and treating nurse practitioner, Judith Bergman, N.P., without
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providing sufficient reasons. Plaintiff argues “the ALJ’s stock language used to reject both
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Dr. Cunningham and NP Bergman’s assessments fails to pass muster under any standard.”
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(Doc. 19 at 19)
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Plaintiff further argues the opinions of a one-time examining physician, Neil McPhee,
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M.D., and a non-examining State agency physician, Roy Brown, M.D., to which the ALJ

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assigned “significant weight” and “great weight,” respectively, do not constitute substantial

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evidence on which to base a non-disability finding. Plaintiff contends the ALJ fails to

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identify specific evidence in the record that he relied on to support acceptance of these

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opinions, and the reasons provided by the ALJ for relying on the opinions are vague.

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The medical opinions of three types of medical sources are recognized in Social

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Security cases: “(1) those who treat the claimant (treating physicians); (2) those who examine

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but do not treat the claimant (examining physicians); and (3) those who neither examine nor

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treat the claimant (non-examining physicians).” Lester v. Chater, 81 F.3d 821, 830 (9th Cir.

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1996). The opinion of a treating physician is generally entitled to more weight than the

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opinion of a non-treating physician, “since these sources are likely to be the medical

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professionals most able to provide a detailed, longitudinal picture” of a claimant’s medical

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impairments. 20 C.F.R. § 404.1527(c)(2). “Because treating physicians are employed to cure

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and thus have a greater opportunity to know and observe the patient as an individual, their

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opinions are given greater weight than the opinions of other physicians.” Smolen v. Chater,

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80 F.3d 1273, 1285 (9th Cir. 1996).

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A treating physician’s opinion, however, is not necessarily conclusive and an ALJ

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may disregard the opinion whether or not the opinion is contradicted. Magallanes v. Bowen,

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881 F.2d 747, 751 (9th Cir. 1989). Where a treating physician’s opinion is uncontradicted,

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an ALJ may reject it only by presenting clear and convincing reasons for doing so. Id. If a

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treating doctor’s opinion is contradicted by another doctor, the ALJ can reject it only by

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providing “‘specific and legitimate reasons’ supported by substantial evidence in the record.”

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Reddick, 157 F.3d at 725 (citing Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1995)). The ALJ

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can “meet this burden by setting out a detailed and thorough summary of the facts and

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conflicting clinical evidence, stating his interpretation thereof, and making findings.”

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Magallanes, 881 F.2d at 751. Moreover, an ALJ is not required to accept a brief and

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conclusory opinion from a treating physician that is unsupported with clinical findings or by
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the record as a whole. Id.; Batson v. Commissioner of Social Security Admin., 359 F.3d 1190,

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1195 (9th Cir. 2004). When there are conflicting medical opinions, the ALJ must determine

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credibility and resolve the conflict. Thomas v. Barnhart, 278 F.3d 947, 956-57 (9th Cir.

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2002).

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Additionally, examining physicians’ opinions carry more weight than those of non-

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examining physicians. Holohan v. Massanari, 246 F.3d 1195, 1202 (9th Cir. 2001); 20

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C.F.R. § 404.1527(c)(1). An examining physician’s uncontradicted opinion may be rejected

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only for clear and convincing reasons supported by substantial evidence in the record.

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Lester, 81 F.3d at 830-31. Even if the examining physician’s opinion is contradicted, an ALJ

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may not reject the examining physician’s opinion without setting forth “specific and

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legitimate reasons” supported by substantial evidence in the record. Id. “The opinion of a

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non-examining physician cannot by itself constitute substantial evidence that justifies the

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rejection of the opinion of either an examining or a treating physician.” Id. at 831 (emphasis

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in original).

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1. Dr. Cunningham

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The ALJ identified Dr. Cunningham as a treating physician. (AR 26) Plaintiff

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acknowledges in her opening brief, however, that there is no evidence in the record that Dr.

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Cunningham himself provided “hands-on” treatment to the Plaintiff. (Doc. 19 at 17, n.19)

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Plaintiff contends that Dr. Cunningham “obviously” supervised NP Bergman, though she

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cites to no records indicating there was such supervision. (Id.) Plaintiff accurately notes that

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Christopher W. Huston, M.D., at The Orthopedic Clinic Association, P.C., reported his

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findings to Dr. Cunningham, following an orthopedic examination of Plaintiff on July 21,

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2009. (Id.) (citing AR 229). Plaintiff argues Dr. Cunningham was entitled to rely on

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information from NP Bergman and Dr. Huston in forming his opinion, despite the absence

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of any records showing he provided treatment to Plaintiff. Plaintiff contends, therefore, Dr.

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Cunningham’s opinion is still entitled to deference. Because the ALJ identified Dr.

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Cunningham as a treating physician, the Court will apply the standard applicable to treating
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physicians in determining whether the ALJ properly rejected Dr. Cunningham’s opinion. As

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the following analysis shows, the Court finds the ALJ satisfied the standard by providing

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

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On March 25, 2010, Dr. Cunningham and NP Bergman jointly completed a Medical

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Assessment Of Ability To Do Work Related Physical Activities. (AR 379-381) With regard

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to exertional limitations, Cunningham and Bergman checked boxes indicating Plaintiff could

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occasionally lift and/or carry less than ten pounds, frequently lift and/or carry less than ten

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pounds, stand and/or walk for a total of less than two hours in an eight hour workday, and

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sit for a total of less than six hours in an eight hour workday. (AR 379) They did not answer

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how many hours Plaintiff could sit. (Id.) They indicated a medically required hand-held

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assistive device was necessary for ambulation and said Plaintiff must alternate sitting and

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standing due to her symptoms. (Id.) They did not respond, however, to how often Plaintiff

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must alternate sitting and standing. (AR 380)

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With regard to postural limitations, Cunningham and Bergman checked the boxes

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indicating Plaintiff could never do any of the six actions listed, including climbing,

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balancing, stooping, kneeling, crouching and crawling. (Id.) Regarding Plaintiff’s use of her

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hands, they indicated Plaintiff could never reach with her right or left hand, and could only

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occasionally do handling, fine manipulation, and feeling with each hand. They further

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indicated that all six listed environmental limitations restricted Plaintiff, including heights,

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moving machinery, temperature extremes, chemicals, dust and noise. (AR 381) Finally, they

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did not describe any findings to support the assigned limitations. (Id.)

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The ALJ gave Dr. Cunningham’s assessment of Plaintiff’s ability to do work-related

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physical activities “little weight.” (AR 26) The ALJ found the assessment “heavily favors

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the [Plaintiff’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. Cunningham’s own records.”4

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Prior to reaching his conclusion that Dr. Cunningham’s opinion was entitled to little weight,

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the ALJ discussed each of the grounds he relied upon to reach his conclusion.

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The ALJ discussed at length Plaintiff’s subjective complaints, including her

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contention that she is in constant pain from her back, left side and left leg. (AR 22) As a

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result, Plaintiff contends she can only stand or sit for fifteen minutes at a time and she is

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“always up and down.” (Id.) Plaintiff claims she can only lift ten pounds, can sit for only one

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hour total in an eight-hour workday, and can stand for only forty-five minutes total in an

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eight-hour workday. (Id.)

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The ALJ found Dr. Cunningham’s assessment too closely relied upon Plaintiff’s

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subjective complaints and was not consistent with the objective evidence. He discussed the

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objective evidence in his decision. Specifically, the ALJ addressed the results of a lumbar

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spine MRI in July 2009 that showed “moderate” stenosis, “mild” effacement, and “mild”

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levoscoliosis. (AR 25) He also referenced a September 2008 radiologic lumbosacral spine

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examination that revealed only “mild” levoscoliosis, and a right hip radiological examination

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at the same time that showed “unremarkable” results. (Id.) The ALJ further discussed lumbar

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spine radiologic images from December 2009 that showed a left transverse process and spina

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bifida occulta, but the images also revealed normal vertebral height, alignment and

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interspacing, and “no evidence” of spondylosis or spondylolisthesis. (Id.)

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addressed other imaging examinations that also showed “normal” or “unremarkable” results.

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(Id.)

The ALJ

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In further support of his decision to assign little weight to Dr. Cunningham’s

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assessment, the ALJ noted the assessment was inconsistent with other opinion evidence.

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Clearly, he was referring to the opinions of the consultative examining physician, Neil

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Because there are no records showing Dr. Cunningham examined and treated
Plaintiff, the Court assumes the ALJ is referring to the treatment records of NP Bergman,
who was, according to Plaintiff, being supervised by Dr. Cunningham.
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Edward McKee, M.D., and the State agency non-examining medical consultant, Roy Brown,

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M.D., both of whom provided assessments of Plaintiff’s work-related abilities that

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contradicted Dr. Cunningham’s. (AR 25-26) As discussed below, the ALJ did not err in

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considering, and assigning greater weight to, the opinions of Drs. McKee and Brown.

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Lastly, the ALJ rejected Dr. Cunningham’s opinion because it was inconsistent with

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Dr. Cunningham’s own records. The Court has reviewed the treatment records from Pueblo

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Family Physicians, Dr. Cunningham and NP Bergman’s practice group, which are referenced

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in the ALJ’s decision. (AR 262-271, 294-305, 354-359, and 418-432) As noted above, the

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treatment records reflect that all of Plaintiff’s visits were with NP Bergman. The records

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show Plaintiff first saw Bergman on January 23, 2009. (AR 305) Plaintiff continued to see

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Bergman frequently and consistently for more than two years, with the last visit occurring

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on April 28, 2011. (AR 418) By the Court’s count, Plaintiff saw Bergman on thirty-five

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separate occasions over that period. (AR 262-271, 294-305, 354-359, and 418-432)

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On nearly every one of those occasions, Bergman observed Plaintiff was “fully

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independent and ambulatory with a steady gait.” (Id.) Bergman’s observations were

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sometimes qualified by Plaintiff’s use of a cane. (Id.) Many of the records also indicated

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Plaintiff’s gait or posture was within normal limits. (Id.) In addition, the records reflect

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Plaintiff sometimes complained of chronic low back and hip pain. (Id.) Other times,

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however, there was no reference to any back problems or pain. (Id.) In some of the records

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that addressed Plaintiff’s back issues, Plaintiff said her back pain was under good control.

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(Id.)

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Based on its review of Plaintiff’s treatment records from Pueblo Family Physicians,

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the Court finds that substantial evidence in the record supports the ALJ’s determination that

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the very strict limitations set forth in Dr. Cunningham assessment of Plaintiff’s work-related

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activities are inconsistent with the treatment records from his own practice group. The

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records simply do not depict Plaintiff as an individual with the extreme limitations identified

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by Dr. Cunningham in his assessment.
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For these reasons, the Court finds the ALJ satisfied the legal standard and provided

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

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rejecting the contradicted opinion of a treating physician. The Court finds no error in the

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ALJ’s decision to assign little weight to Dr. Cunningham’s opinion.

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2. NP Bergman

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In addition to the assessment of ability to do work-related activities prepared jointly

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with Dr. Cunningham, NP Bergman also prepared a Fatigue Residual Functional Capacity

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Questionnaire. (AR 413-414) Bergman opined in the questionnaire that Plaintiff suffers from

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“moderate” fatigue, which means it “affects, but does not preclude ability to function.” (Id.)

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Bergman checked “often” when asked how frequent is Plaintiff’s experience of fatigue

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sufficiently severe to interfere with Plaintiff’s attention and concentration. (Id.) Bergman

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also checked “often” when asked to what degree does Plaintiff experience deficiencies of

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concentration, persistence or pace resulting in failure to complete tasks in a timely manner.

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(Id.) Bergman further stated Plaintiff needs to take naps during the day and would not be able

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to sustain work on a regular and continuing basis. (Id.)

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In addition, Bergman prepared a second Medical Assessment Of Ability To Do Work

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Related Physical Activities on April 28, 2011. (AR 415-417) With regard to exertional

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limitations, Bergman checked boxes indicating Plaintiff could occasionally lift and/or carry

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ten pounds, frequently lift and/or carry ten pounds, stand and/or walk for a total of at least

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two hours in an eight hour workday, and sit for a total of less than six hours in an eight hour

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workday. (AR 415) Bergman did not answer how many hours Plaintiff could sit. (Id.)

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Bergman indicated a cane was necessary for ambulation and wrote Plaintiff must alternate

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sitting and standing due to symptoms. (Id.)

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With regard to postural limitations, Bergman checked the boxes indicating Plaintiff

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could never do three of the six actions listed, climbing, balancing, and crawling, but could

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occasionally do the other three, stooping, kneeling, and crouching. (Id.) Regarding Plaintiff’s

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use of her hands, Bergman indicated Plaintiff could frequently do handling, fine
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manipulation, feeling, and reaching with each hand. Bergman further indicated that all six

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listed environmental limitations restricted Plaintiff, including heights, moving machinery,

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temperature extremes, chemicals, dust and noise. (AR 416) Finally, when asked to describe

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the findings that support the assigned limitations, Bergman wrote Plaintiff has chronic lower

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back pain, weakness and low stamina. (AR 417)

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The ALJ gave NP Bergman’s opinion “little weight” for the same reasons he gave

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little weight to Dr. Cunningham’s opinion, “because it heavily favors the [Plaintiff’s]

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subjective complaints and is inconsistent with the objective findings, other opinion evidence,

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and the record as a whole, including Nurse Bergman’s own records.” The ALJ further noted,

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“a nurse practitioner is not an acceptable medical source for purposes of evaluating Social

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Security disability (Social Security Ruling (“SSR”) 06-03).”

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Although Plaintiff acknowledges NP Bergman is not an “acceptable medical source,”

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she contends Bergman qualifies as an other “medical source” for whom the same treating

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source standard should apply before her opinion can be rejected. (Doc. 19 at 14 n.8 and 21)

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The Court need not resolve this issue because even if the Court applies the same treating

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source standard that was applied to Dr. Cunningham, the Court finds the ALJ provided

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

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rejecting Bergman’s opinion. Because the ALJ rejected Bergman’s opinion for the same

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reasons he rejected Dr. Cunningham’s, the Court’s analysis of those reasons applies with

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equal force to the ALJ’s rejection of Bergman’s opinion and need not be repeated.

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Accordingly, the Court finds no error in the ALJ’s decision to assign little weight to NP

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Bergman’s opinion.

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3. Drs. McPhee and Brown

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Neil McPhee, M.D., a consultative examining physician, saw Plaintiff on December

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29, 2009. (AR 335-337) Dr. McPhee performed a physical examination and explained his

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findings. (AR 336) He said Plaintiff “walks with somewhat unusual antalgic gait which does

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not appear to be physiologic.”5 (Id.) Plaintiff had a cane with her and was able to take a few

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steps in the examining room without it. (Id.) She was able to squat and rise, and bend forward

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such that her fingers reached the level of her knees. (Id.) Plaintiff “got up from the chair,

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donned and doffed her clothing and shoes and got onto the examination table.” (Id.) “Her

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shoulders, elbows, wrists, hips, knees, and ankles moved through a full range of motion.”

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(Id.) “She was tender over the left PSIS,”6 but “[s]he was not tender over either hip.” (Id.)

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Dr. McPhee did not have the Lumbar Spine MRI, presumably the one performed on

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July 13, 2009 (AR 254), in the records he reviewed. (AR 336) Plaintiff told him the MRI

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showed two herniated discs, but his examination revealed nothing to indicate radiculopathy.

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(Id.)

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Based on his examination and record review, Dr. McPhee opined Plaintiff is limited

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to lifting fifty pounds occasionally and twenty-five pounds frequently. (AR 337) He said she

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could stand or walk for about six hours in an eight hour workday and sitting would not be

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limited. (Id.) He found nothing on examination to indicate a cane is a medical necessity. (Id.)

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He identified other minor limitations, but nothing that would preclude her from all work. (Id.)

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The ALJ gave Dr. McPhee’s opinion “significant weight because it considers the [Plaintiff’s]

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subjective complaints and is consistent with the objective findings, opinion evidence, and the

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record as a whole.” (AR 26)

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On January 25, 2010, Roy Brown, M.D., a non-examining State agency physician,

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completed a Physical Residual Functional Capacity Assessment. (AR 339-346) After

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reviewing the records, Dr. Brown determined Plaintiff could occasionally lift and/or carry

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twenty pounds, frequently lift and/or carry ten pounds, stand and/or walk about six hours in

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“Antalgic gait is a form of gait abnormality where the stance phase of gait is
abnormally shortened relative to the swing phase. It can be a good indication of pain with
weight-bearing.” See www.wikipedia.org (last viewed on March 4, 2014).
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“Posterior superior iliac spine” or PSIS is “part of the human hip bone.” See
www.wikipedia.org (last viewed on March 4, 2014).
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an eight hour workday, and sit for about six hours in an eight hour workday. (AR 340) He

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did not explain what evidence supported those determinations. (Id.) He further determined

3

Plaintiff could occasionally balance, stoop, kneel, crouch, crawl and climb a ramp or stairs,

4

but never climb a ladder, rope or scaffold. (Id.) He explained Plaintiff’s back pain could

5

result in loss of balance and increase the chance of injury. (Id.) Dr. Brown found no other

6

limitations on Plaintiff’s ability to work. (AR 342-343) At the end of his report, Dr. Brown

7

explained that the medical evidence of record documents Plaintiff’s impairments, including

8

HIV, back pain, headaches and asthma, but her Hepatitis C is not well documented. (AR 346)

9

He concluded that based on the medical evidence of record, Plaintiff is capable of the RFC

10

set forth in his report. (Id.) The ALJ gave Dr. Brown’s opinion “great weight because it

11

considers the [Plaintiff’s] subjective complaints and is consistent with the objective findings,

12

opinion evidence, and the record as a whole.” (AR 26)

13

Plaintiff argues Dr. McPhee’s and Dr. Brown’s assessments are not substantial

14

evidence because Dr. McPhee did not base his opinion on independent findings, specifically

15

the MRI, and because Dr. Brown provided little explanation for his conclusions. Plaintiff

16

further argues the reasons provided by the ALJ for assigning greater weight to the McPhee

17

and Brown opinions are vague and fail to identify the evidence that supports those reasons.

18

The Court disagrees.

19

First, Dr. McPhee acknowledged he did not review the MRI, but explained that his

20

examination did not produce findings to indicate a radiculopathy, suggesting he would have

21

expected such findings if the MRI showed two herniated discs as Plaintiff indicated.

22

Moreover, perhaps because Dr. McPhee did not have access to the MRI, the ALJ did not

23

adopt the less restrictive limitations identified by Dr. McPhee. Rather, in determining

24

Plaintiff’s RFC, the ALJ adopted the more restrictive limitations identified by Dr. Brown.

25

The Court finds, therefore, the ALJ adequately considered Dr. McPhee’s inability to review

26

the MRI in assigning weight to Dr. McPhee’s opinion.

27

Second, Dr. Brown’s report makes it clear he reviewed the medical evidence of record
14

1

in arriving at his conclusions. Plaintiff provides no case authority to show a specific level of

2

explanation is required before an ALJ can rely on a non-examining physician’s opinion. As

3

explained above, “[t]he opinion of a non-examining physician cannot by itself constitute

4

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

5

treating physician.” Lester, 81 F.3d at 831 (emphasis in original). Here, however, the ALJ

6

is not relying on Dr. Brown’s opinion, by itself, as substantial evidence. Plaintiff’s argument

7

that Dr. Brown’s opinion does not constitute substantial evidence because it fails to

8

sufficiently explain his conclusions is rejected as without merit.

9

Finally, the Court disagrees with Plaintiff’s contention that the ALJ failed to identify

10

any evidence in the record to support his decision to assign greater weight to Dr. McPhee’s

11

and Dr. Brown’s opinions. As noted above, the ALJ summarized the “objective evidence,”

12

specifically identifying MRI’s of the lumbosacral spine and the left hip, multiple x-rays of

13

the lumbosacral spine and the right hip, and bone density examinations. (AR 25) The ALJ

14

also cited Plaintiff’s treatment records, primarily from Pueblo Family Physicians, and

15

summarized the findings from Plaintiff’s physical examinations. (AR 24) In assigning greater

16

weight to Dr. McPhee’s and Dr. Brown’s opinions, the ALJ wrote that, among other reasons,

17

their opinions were consistent with the objective findings and the record as a whole, both of

18

which he specifically discussed earlier in the decision. Thus, the Court disagrees with

19

Plaintiff’s contention that the ALJ did not specify what evidence he believed supported the

20

assessments of Dr. McPhee and Dr. Brown. The Court finds no error in the ALJ’s assignment

21

of “significant weight” and “great weight” to Dr. McPhee’s and Dr. Brown’s opinions,

22

respectively.

23

B. Discounting of Plaintiff’s Symptom Testimony

24

Plaintiff next argues the ALJ erred by rejecting Plaintiff’s symptom testimony without

25

providing clear and convincing reasons supported by substantial evidence in the record.

26

(Doc. 19 at 21-28) Plaintiff contends that because the ALJ made no finding of malingering,

27

he may not reject such testimony without satisfying this high standard. Defendant argues in
15

1

response that the ALJ provided legally sufficient reasons for finding Plaintiff’s symptom

2

testimony not credible. (Doc. 22 at 17-21)

3

An ALJ must perform a two-step analysis when determining whether a claimant’s

4

testimony regarding subjective pain or symptoms is credible. Lingenfelter v. Astrue, 504 F.3d

5

1028, 1035-1036 (9th Cir. 2007). “First, the ALJ must determine whether the claimant has

6

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

7

be expected to produce the pain or other symptoms alleged.’” Id. at 1036 (quoting Bunnell

8

v. Sullivan, 947 F.2d 341, 344 (9th Cir. 1991) (en banc). A claimant need only show that her

9

medically determinable impairment could reasonably be expected to produce some degree

10

of the symptom alleged, not “that her impairment could reasonably be expected to cause the

11

severity of the symptom she has alleged.” Smolen v. Chater, 80 F.3d 1273, 1282 (9th Cir.

12

1996). Second, if a claimant satisfies this test, and absent any evidence of malingering, “the

13

ALJ can reject the claimant’s testimony about the severity of her symptoms only by offering

14

specific, clear and convincing reasons for doing so.” Id. at 1281.

15

Further, to determine whether a claimant’s testimony regarding the severity of her

16

symptoms is credible, an ALJ may consider the following: “(1) ordinary techniques of

17

credibility evaluation, such as the claimant’s reputation for lying, prior inconsistent

18

statements concerning the symptoms, and other testimony by the claimant that appears less

19

than candid; (2) unexplained or inadequately explained failure to seek treatment or to follow

20

a prescribed course of treatment; and (3) the claimant’s daily activities.” Smolen, 80 F.3d at

21

1284. An ALJ may also consider the claimant’s work record, and the observations of treating

22

and examining physicians and other third parties regarding “the nature, onset, duration and

23

frequency of claimant’s symptoms, and precipitating and aggravating factors, functional

24

restrictions caused by the symptoms, and the claimant’s daily activities.” Id.

25

Plaintiff testified at the administrative hearing that she is in constant pain from her

26

back, left side and left leg. (AR 44) As a result, Plaintiff stated she can only stand or sit for

27

fifteen minutes at a time. (AR 48) Plaintiff further claimed she can only lift ten pounds, can
16

1

sit for only one hour total in an eight-hour workday, and can stand for only forty-five minutes

2

total in an eight-hour workday. (AR 48-49) Plaintiff testified she uses a cane whenever she

3

leaves the house and, with the cane, she could walk a block but it would be difficult because

4

she would need to stop and rest. (AR 49-50 ) Plaintiff claimed that “most” of the medications

5

she takes for her conditions make her drowsy or dizzy. (AR 53)

6

On a typical day, Plaintiff said she takes her medication when she gets up, washes the

7

dishes, and then takes a break and sits down for a while. (AR 54) After the break, she gets

8

up and sweeps, and then sits down for another break. (Id.) After that, she makes her bed and

9

then sits down. (Id.) She also watches television while lying in bed. (Id.) She said she makes

10

numerous microwave meals because she cannot stand for long. (AR 54-55) Plaintiff testified

11

she only goes grocery shopping once a month; her daughter drives her to and from the store.

12

(AR 55) Plaintiff said she does not leave the house for any reason other than grocery

13

shopping and doctor visits. (AR 56)

14

In assessing Plaintiff’s credibility, the ALJ found that Plaintiff’s “[m]edically

15

determinable impairments could reasonably be expected to cause the alleged symptoms;

16

however, [Plaintiff’s] statements concerning the intensity, persistence, and limiting effects

17

of these symptoms are not credible to the extent they are inconsistent with the above residual

18

functional capacity assessment.” (AR 24) He concluded, “the evidence indicates the

19

[Plaintiff’s] impairments are not as severe or as limiting as alleged.” (Id.) Although the ALJ

20

provides several reasons for questioning Plaintiff’s symptom testimony, the Court will focus

21

on the first reason, the lack of supporting medical evidence, as it is more than sufficient to

22

reject Plaintiff’s extreme claims regarding her symptoms and limitations. (AR 24-25)

23

The ALJ cites treatment records, mostly from Pueblo Family Physicians, the provider

24

Plaintiff sought treatment for the longest period of time, to demonstrate that Plaintiff’s

25

treatment records do not support the extreme limitations Plaintiff alleges. (AR 24) The ALJ

26

cites numerous examples where Plaintiff’s physical examinations showed normal findings

27

with respect to her back condition. (Id.)
17

1

Similarly, as explained above in the context of addressing Dr. Cunningham’s opinion,

2

the Court reviewed all of the treatment records cited by the ALJ. The treatment records

3

showed Plaintiff was examined by NP Bergman on thirty-five separate occasions over a more

4

than two-year period. (AR 262-271, 294-305, 354-359, and 418-432) On virtually every one

5

of those occasions, Bergman observed Plaintiff was “fully independent and ambulatory with

6

a steady gait.” (Id.) Many of the records also indicated Plaintiff’s gait or posture was within

7

normal limits. Although the treatment records show Plaintiff sometimes complained of

8

chronic low back and hip pain, there is little to nothing in the records to suggest Plaintiff is

9

as limited as she claimed at the hearing. If Plaintiff could truly only stand or sit for fifteen

10

minutes at a time, sit for only one hour total in an eight-hour workday, and stand for only

11

forty-five minutes total in an eight-hour workday, the Court believes the records would show

12

a picture much worse than what Plaintiff’s treatment records show.

13

The Court finds the ALJ’s primary reason for rejecting Plaintiff’s symptom testimony

14

is clear and convincing and is supported by substantial evidence in the record. As a result,

15

the Court need not address the other reasons provided. The ALJ properly cited specific

16

treatment records showing Plaintiff is stronger, more mobile and less restricted than her

17

hearing testimony indicated. The Court, therefore, finds no error in the ALJ’s discounting of

18

Plaintiff’s symptom testimony.

19

V. Conclusion

20
21

Based on the foregoing analysis, the Court finds the Commissioner’s decision is
supported by substantial evidence and free from harmful legal error.

22

Accordingly,

23

IT IS ORDERED that the decision of the Commissioner is AFFIRMED. The Clerk

24
25

of Court is kindly directed to enter judgment accordingly and terminate this appeal.
Dated this 5th day of March, 2014.

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