Childers v. Colvin

Filing 25

ORDER - IT IS ORDERED that the final decision of the Commissioner of Social Security is affirmed. The Clerk shall enter judgment accordingly and shall terminate this case. (See document for further details). Signed by Judge David G Campbell on 4/23/14. (LAD)

1

WO

2
3
4
5
6

IN THE UNITED STATES DISTRICT COURT

7

FOR THE DISTRICT OF ARIZONA

8

Deborha D. Childers,
Plaintiff,

9
10

ORDER

v.

11

No. CV-13-00676-PHX-DGC

Carolyn W. Colvin,

12

Defendant.

13

Plaintiff Deborha Childers seeks review under 42 U.S.C. § 405(g) of the final

14

decision of the Commissioner of Social Security (“the Commissioner”), which denied her

15

disability insurance benefits and supplemental security income under sections 216(i),

16

223(d), and 1614(a)(3)(A) of the Social Security Act. Because the decision of the

17

Administrative Law Judge (“ALJ”) is supported by substantial evidence and is not based

18

on legal error, the Commissioner’s decision will be affirmed.

19

I.

BACKGROUND.

20

A.

21

Plaintiff was born in September 1950. She testified at her hearing that she has a

22

B.A. in Business Administration and worked in the past as a controller for a car

23

dealership. The ALJ found that Plaintiff suffered from several severe impairments. A.R.

24

15. The ALJ also found that the impairments were severe and will continue to cause

25

more than minimal work-related functional limitations. A.R. 15.

Factual Background.

26

B.

27

On August 6, 2009, Plaintiff applied for disability insurance benefits, alleging

28

disability beginning July 1, 2007. The claim was denied initially on September 29, 2009,

Procedural History.

1

and upon reconsideration on March 25, 2010. Thereafter, the claimant filed a written

2

request for a hearing on May 13, 2010. 20 C.F.R. 404.929 et seq. On November 2, 2011,

3

she appeared with her attorney and testified at a hearing before the ALJ. A vocational

4

expert also testified.

5

On November 30, 2011, the ALJ issued a decision that Plaintiff was not disabled

6

within the meaning of the Social Security Act. The Appeals Council denied Plaintiff’s

7

request for review, making the ALJ’s decision the Commissioner’s final decision.

8

II.

STANDARD OF REVIEW.

9

The district court reviews only those issues raised by the party challenging the

10

ALJ’s decision. See Lewis v. Apfel, 236 F.3d 503, 517 n.13 (9th Cir. 2001). The court

11

may set aside the Commissioner’s disability determination only if the determination is

12

not supported by substantial evidence or is based on legal error. Orn v. Astrue, 495 F.3d

13

625, 630 (9th Cir. 2007). Substantial evidence is more than a scintilla, less than a

14

preponderance, and relevant evidence that a reasonable person might accept as adequate

15

to support a conclusion considering the record as a whole. Id. In determining whether

16

substantial evidence supports a decision, the court must consider the record as a whole

17

and may not affirm simply by isolating a “specific quantum of supporting evidence.” Id.

18

“Where the evidence is susceptible to more than one rational interpretation, one of which

19

supports the ALJ’s decision, the ALJ’s conclusion must be upheld.” Thomas v. Barnhart,

20

278 F.3d 947, 954 (9th Cir. 2002) (citations omitted).

21

III.

FIVE-STEP SEQUENTIAL EVALUATION.

22

To determine whether a claimant is disabled for purposes of the Social Security

23

Act, the ALJ follows a five-step process. 20 C.F.R. § 404.1520(a). The claimant bears

24

the burden of proof on the first four steps, but at step five, the burden shifts to the

25

Commissioner. Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999).

26

At the first step, the ALJ determines whether the claimant is engaging in

27

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

28

disabled and the inquiry ends. Id. At step two, the ALJ determines whether the claimant

-2-

1

has

a

“severe”

medically

determinable

physical

or

mental

impairment.

2

§ 404.1520(a)(4)(ii). If not, the claimant is not disabled and the inquiry ends. Id. At step

3

three, the ALJ considers whether the claimant’s impairment or combination of

4

impairments meets or medically equals an impairment listed in Appendix 1 to Subpart P

5

of 20 C.F.R. Pt. 404. § 404.1520(a)(4)(iii). If so, the claimant is automatically found to

6

be disabled. Id. If not, the ALJ proceeds to step four. At step four, the ALJ assesses the

7

claimant’s residual functional capacity (“RFC”) and determines whether the claimant is

8

still capable of performing past relevant work. § 404.1520(a)(4)(iv). If so, the claimant

9

is not disabled and the inquiry ends. Id. If not, the ALJ proceeds to the fifth and final

10

step, where he determines whether the claimant can perform any other work based on the

11

claimant’s RFC, age, education, and work experience. § 404.1520(a)(4)(v). If so, the

12

claimant is not disabled. Id. If not, the claimant is disabled. Id.

13

At step one, the ALJ found that Plaintiff meets the insured status requirements of

14

the Social Security Act through December 31, 2012, and that she has not engaged in

15

substantial gainful activity since July 1, 2007. At step two, the ALJ found that Plaintiff

16

has the following severe impairments: fibromyalgia and restless leg syndrome;

17

osteoporosis; osteoarthritis; migraine headaches; balance problems; neck pain radiating to

18

left shoulder; irritable bowel syndrome; status post cataract surgery (2008); and status

19

post cervical cryosurgery (2010). At step three, the ALJ determined that Plaintiff does

20

not have an impairment or combination of impairments that meets or medically equals an

21

impairment listed in Appendix 1 to Subpart P of 20 C.F.R. Pt. 404.

22
23
24
25
26
27

At step four, the ALJ found that Plaintiff:
Ha[d] the RFC to perform sedentary work as defined in 20
CFR 404.1567(a) except for the following limitations: the
claimant is capable of occasionally climbing ramps and stairs,
balancing, stooping, crouching, crawling, and kneeling; but is
precluded from climbing ladders, ropes, and/or scaffolds.
The claimant is to avoid concentrated exposure to the use of
moving machinery and to unprotected heights.

28

-3-

1

A.R. 17-18. The ALJ further found that Plaintiff is able to perform her past relevant

2

work as a controller because it does not require the performance of work-related activities

3

precluded by her RFC. A.R. 23. As such, the ALJ did not proceed to step five.

4

IV.

ANALYSIS.

5

Plaintiff argues that the ALJ’s decision is defective for four reasons: (1) the ALJ

6

failed to set forth a function-by-function assessment of residual capacity; (2) the ALJ

7

erroneously weighed medical source evidence; (3) the ALJ improperly evaluated

8

Plaintiff’s credibility and discounted her subjective testimony; and (4) the ALJ failed to

9

properly consider the third party report of Plaintiff’s husband, Donald Childers. The

10

Court will address each argument below.

11

A.

Failure to Set Forth a Function-by-Function Assessment of RFC.

12

Plaintiff asserts that the ALJ committed legal error by failing to set forth a more

13

detailed function-by-function assessment of her RFC. Doc. 17 at 8; SSR 96-8p, 1996

14

WL 374184 (Jul. 2, 1996). She argues that the ALJ’s RFC is deficient for a number of

15

reasons: the ALJ did not make specific findings as to the length of time that Plaintiff can

16

sit, stand, or walk; the ALJ did not make specific findings as to the weight Plaintiff can

17

lift or carry; the RFC does not discuss the frequency or severity of Plaintiff’s migraine

18

headaches; the RFC does not discuss whether rest breaks or absences from work are

19

required due to Plaintiff’s pain symptoms; and the RFC does not discuss Plaintiff’s

20

difficulty in maintaining focus, reliability, attention, and concentration. Doc. 17 at 8.

21

Plaintiff appears to assert that SSR 96-8p requires the ALJ to make findings and craft an

22

RFC with respect to each limitation supported by evidence in the record. Id. The Court

23

disagrees.

24

Plaintiff argues that it was improper for the ALJ to express Plaintiff’s RFC in

25

terms of a category of work – “sedentary work” – even though the ALJ went on to

26

articulate additional limitations to the category. Id. at 9. The Ninth Circuit, however, has

27

interpreted SSR 96-8p as permitting the use of categories such as “sedentary” in defining

28

a claimant’s RFC. See Buckner-Larkin v. Astrue, 450 F. App’x 626, 627 (9th Cir. 2011)

-4-

1

(finding that ALJ expression of RFC as “sedentary” accords with SSR 96-8p because the

2

definition of “sedentary” includes well-defined function-by-function parameters).

3
4
5
6

In this case, the ALJ found that Plaintiff had the RFC “to perform sedentary work
as defined in 20 CFR 404.1567(a).”

A.R. 17.

According to the Code of Federal

Regulations:

10

Sedentary work involves lifting no more than 10 pounds at a
time and occasionally lifting or carrying articles like docket
files, ledgers, and small tools. Although a sedentary job is
defined as one which involves sitting, a certain amount of
walking and standing is often necessary to carry out job
duties. Jobs are sedentary if walking and standing are
required occasionally and other sedentary criteria are met.

11

20 CFR 404.1567(a). The ALJ’s expression of the RFC as “sedentary work,” when

12

understood in terms of its predetermined function-by-function parameters, provides many

13

of the limitations that Plaintiff claims are lacking. In addition, after introducing the RFC,

14

the ALJ set forth a detailed discussion of the medical evidence in which he addressed

15

each of the other limitations that Plaintiff claims should have been reflected in the RFC.

16

Because the ALJ provided a thorough discussion of the evidence explaining how he

17

resolved material inconsistencies and ambiguities in the record, the Court concludes that

18

the ALJ did not commit legal error. See Mason v. Comm’r of Soc. Sec., 379 F. App’x

19

638, 639 (9th Cir. 2010) (“The ALJ is not required, as [Plaintiff] contends, to engage in a

20

function-by-function analysis under SSR 96-8p. SSR 96-8p requires only that the ALJ

21

discuss how evidence supports the [RFC] assessment and explain how the ALJ resolved

22

material inconsistencies or ambiguities in evidence[.]”).

7
8
9

23

B.

24

Plaintiff argues that the ALJ failed to articulate sufficient reasons for discounting

25

the opinions of four treating physicians and for crediting the opinions of non-examining

26

physicians. Doc. 17 at 9. Many of Plaintiff’s objections are simply invitations to

27

reconsider the balance of evidence in the record, which is not the Court’s role at this

28

stage of the proceedings. The ALJ’s decision will be set aside only if it is not supported

Weighing Medical Source Evidence.

-5-

1

by substantial evidence or is based on legal error. Lewis, 236 F.3d at 517 n.13. The

2

Court concludes that the ALJ did not commit legal error.

3

The Ninth Circuit distinguishes between the opinions of treating physicians,

4

examining physicians, and non-examining physicians. See Lester v. Chater, 81 F.3d 821,

5

830 (9th Cir. 1995).

6

physician’s opinion and more weight to the opinion of an examining physician than to

7

one of a non-examining physician. See Andrews v. Shalala, 53 F.3d 1035, 1040-41 (9th

8

Cir. 1995); see also 20 C.F.R. § 404.1527(c)(2)-(6) (listing factors to be considered when

9

evaluating opinion evidence, including length of examining or treating relationship,

10

frequency of examination, consistency with the record, and support from objective

11

evidence). The opinion of a treating or examining physician can be rejected only for

12

“clear and convincing” reasons if it is not contradicted by another doctor’s opinion.

13

Lester, 81 F.3d at 830 (citing Embrey v. Bowen, 849 F.2d 418, 422 (9th Cir. 1988)). A

14

contradicted opinion “can only be rejected for specific and legitimate reasons that are

15

supported by substantial evidence in the record.” Lester, 81 F.3d at 830-31 (citing

16

Andrews, 53 F.3d at 1043).

Generally, an ALJ should give greatest weight to a treating

17

An ALJ can meet the “specific and legitimate reasons” standard “by setting out a

18

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

19

interpretation thereof, and making findings.” Cotton v. Bowen, 799 F.2d 1403, 1408 (9th

20

Cir. 1986). But “[t]he ALJ must do more than offer [her] conclusions. [She] must set

21

forth [her] own interpretations and explain why they, rather than the doctors’, are

22

correct.” Embrey, 849 F.2d at 421-22.

23
24

1.

Thomas Perry, M.D.

Plaintiff argues that the ALJ committed legal error by improperly discounting the

25

opinion of her treating cardiologist, Dr. Thomas Perry, M.D.

26

January 3, 2011, Dr. Perry completed a check-the-box form opining that, due to fatigue,

27

diarrhea, and dizziness, Plaintiff was unable to perform eight hours of work per day for

28

five days a week. A.R. 761-64. Dr. Perry opined that Plaintiff experiences headaches

-6-

Doc. 17 at 11.

On

1

once per day; irritable bowel syndrome twice per week; and “other” impairments 1-15

2

times per day without specifying what the “other” impairments were. A.R. 761. He

3

indicated that Plaintiff experienced shortness of breath, vertigo/dizziness, nausea, fatigue,

4

and pain that were exacerbated by stress and physical activity. Dr. Perry also opined that

5

Plaintiff could sit less than two hours, lift less than ten pounds, stand or walk less than

6

two hours, and carry less than ten pounds during an eight hour work day. A.R. 763. A

7

vocational expert testified at Plaintiff’s administrative hearing that an individual with

8

such limitations would be unable to sustain full time competitive work. A.R. 67. The

9

ALJ accorded Dr. Perry’s opinion little weight. A.R. 22.

10

Dr. Perry’s medical opinion was contradicted by the opinions of Drs. Green,

11

Marella, and Disney, each of whom is a non-examining physician who opined that

12

Plaintiff had abilities greater than those in Dr. Perry’s opinion. A.R. 21. Because Dr.

13

Perry’s opinion was contradicted by these doctors, the ALJ could discount it for specific

14

and legitimate reasons supported by substantial evidence in the record. Lester, 81 F.3d at

15

830-31.

16

In giving Dr. Perry’s opinion little weight, the ALJ stated that the severity of Dr.

17

Perry’s “opined work related physical restrictions is not supported by the medical

18

evidence of record.” A.R. 22. The ALJ explained that Plaintiff’s diagnostic findings are

19

mild and unremarkable (A.R. 264, 327, 381, 493, 653, 658, 734, 826, 828, 829, 831,

20

965); physical examinations were consistently normal, with few trigger points (A.R. 323,

21

326, 331, 334, 340, 342, 344, 353, 369, 370, 372, 378, 410, 414, 421, 426, 439, 449, 451,

22

544, 547, 551, 554, 558, 560, 563, 566, 569, 575, 578, 581, 585, 589, 592, 596, 599, 664,

23

693, 743, 745, 746, 750, 752, 767, 797, 822, 895, 909, 920, 953); Plaintiff has repeatedly

24

indicated that her medications are effective and denied any side effects (A.R. 323, 338,

25

345, 770, 875, 956); Plaintiff testified to activities of daily living far beyond the

26

restrictions in Dr. Perry’s opinion, including swimming, caring for her elderly mother,

27

and managing her household (A.R. 488, 923); the treatment record indicates that her

28

impairments are improving or stabilized (A.R. 323, 326, 327, 331, 340, 341, 343, 344,

-7-

1

467, 469, 744, 746, 747, 895, 907); and Dr. Perry is Plaintiff’s cardiologist and has

2

indicated that Plaintiff has no cardio limitations (A.R. 329-30, 646-47).

3

The ALJ’s statements regarding the weight he accorded Dr. Perry’s opinion are

4

found on page 10 of his decision (A.R. 22), and his detailed discussion of the medical

5

evidence is found primarily on pages 6-8 of his decision (A.R. 18-20). Although this

6

organization is not ideal, the decision makes clear that the ALJ relied on record evidence

7

to support all of the reasons listed in his discussion of Dr. Perry’s opinion.

8

discussion of medical records on pages 6-8 addresses the ALJ’s findings in detail, with

9

numerous citations to the record.

10

The

The Court finds the ALJ’s explanation to be

sufficiently clear to understand the basis for his decision.

11

The ALJ’s detailed treatment of the medical evidence confirms that the specific

12

and legitimate reasons that he identified are supported by substantial evidence. Plaintiff

13

vigorously argues that the ALJ committed legal error by relying on the medical opinions

14

of non-treating physicians to discount Dr. Perry’s opinion. Doc. 17 at 17. Although

15

Plaintiff is correct that ALJs must generally accord greatest weight to the medical opinion

16

of a treating physician and must accord reduced weight to non-treating and non-

17

examining physicians, the contradicted opinions of treating physicians can be discounted

18

for specific and legitimate reasons supported by substantial evidence. Plaintiff also

19

argues that a lack of objective data is not a proper basis for rejecting treating physician

20

opinions as to the effect of chronic widespread pain associated with fibromyalgia.

21

Doc. 17 at 12; see Benecke v. Barnhart, 379 F.3d 587, 595 (9th Cir. 2004) (finding it

22

legal error to “effectively require[e] ‘objective’ evidence for a disease that eludes such

23

measurement.”). But the ALJ relied on more than a lack of objective data. He also relied

24

on reports from physicians and Plaintiff herself that her condition was improving. The

25

ALJ also relied on evidence indicating that Plaintiff’s medication was effective at

26

managing pain. Each of these is a specific, legitimate, and permissible reason to discount

27

Dr. Perry’s opinion as to Plaintiff’s fibromyalgia. The Court concludes for the reasons

28

-8-

1

outlined above that the ALJ’s decision to discount Dr. Perry’s medical opinion was not

2

legal error.

3

2.

Jason Swigert, M.D.

4

Plaintiff argues that the ALJ failed to articulate sufficient reasons for giving

5

limited weight to the opinion of her treating physician, Dr. Jason Swigert, M.D. Doc. 17

6

at 11. On October 24, 2011, Dr. Swigert completed a check-the-box form opining that,

7

due to chronic pain in her back, neck, and full body, fibromyalgia, chronic fatigue

8

syndrome, severe depression, and restless leg syndrome, Plaintiff was unable to perform

9

eight hours of work per day for five days a week. A.R. 961-62. Dr. Swigert opined that

10

Plaintiff could sit less than two hours, lift more than 15 pounds but less than 20 pounds,

11

stand or walk less than two hours, and carry more than 10 pounds but less than 15

12

pounds. A.R. 961. A vocational expert testified at Plaintiff’s administrative hearing that

13

an individual with such limitations would be unable to sustain full time competitive work.

14

A.R. 67-68. The ALJ accorded Dr. Swigert’s opinion little weight. A.R. 23.

15

Dr. Swigert’s medical opinion was contradicted by the opinions of Drs. Green,

16

Marella, and Disney, each of whom opined that Plaintiff had abilities that were greater

17

than those in Dr. Swigert’s opinion. A.R. 21. The ALJ therefore could discount Dr.

18

Swigert’s opinion for specific and legitimate reasons supported by substantial evidence in

19

the record. Lester, 81 F.3d at 830-31.

20

In giving Dr. Swigert’s opinion little weight, the ALJ stated that the severity of Dr.

21

Swigert’s “opined work related physical restrictions is not supported by the medical

22

evidence of record, including Dr. Swigert’s treatment records.” A.R. 22-23. The ALJ

23

indicated that the same evidence in the record that undermines Dr. Perry’s opinion also

24

undermines Dr. Swigert’s opinion. Plaintiff offers no reasons why the ALJ’s proffered

25

reasons are not specific or legitimate as to Dr. Swigert’s opinion. The Court concludes

26

for the same reasons outlined above that the ALJ’s decision to discount Dr. Swigert’s

27

medical opinion was not legal error.

28

-9-

1
2

3.

Nirmala Aryal, M.D.

Plaintiff argues that the ALJ committed legal error by improperly discounting the

3

opinion of her treating neurologist, Dr. Nirmala Aryal, M.D.

4

September 28, 2011, Dr. Aryal completed a check-the-box form opining that, due to

5

headaches that last 3 hours or more, Plaintiff had impairments that limited her ability to

6

perform work related activities. A.R. 949-50. Dr. Aryal opined that these headaches

7

occurred twice per week and could not be relieved with rest or medication. A.R. 949. A

8

vocational expert testified at Plaintiff’s administrative hearing that an individual who

9

“experiences headaches two times a week that lasted three hours or more, where they

10

needed to go home and lay down,” would be unable to sustain full time competitive

11

work. A.R. 67. Nowhere in Dr. Aryal’s opinion, however, does she state that Plaintiff’s

12

headaches are so severe that she must go home and lay down. Nowhere does Dr. Aryal

13

state that Plaintiff’s headaches occur during the workday.

14

conclusion as to disability was therefore driven by facts introduced by Plaintiff’s counsel

15

during the hearing. The ALJ accorded Dr. Aryal’s opinion no weight. A.R. 22.

Doc. 17 at 15.

On

The vocational expert’s

16

Dr. Aryal’s medical opinion was contradicted by the opinions of Drs. Green,

17

Marella, and Disney, each of whom opined that Plaintiff had abilities that were greater

18

than those in Dr. Aryal’s opinion. A.R. 21. The ALJ therefore could discount Dr.

19

Aryal’s opinion for specific and legitimate reasons supported by substantial evidence.

20

Lester, 81 F.3d at 830-31.

21

In giving Dr. Aryal’s opinion no weight, the ALJ stated that the “opinion does not

22

provide any specific work related physical limitations.” A.R. 22. In effect, the ALJ

23

discounted Dr. Aryal’s opinion because it was conclusory and brief. See Bayliss v.

24

Barnhart, 427 F.3d 1211, 1216 (9th Cir. 2005) (“[W]hen evaluating conflicting medical

25

opinions, an ALJ need not accept the opinion of a doctor if that opinion is brief,

26

conclusory, and inadequately supported by clinical findings.”) (citation omitted). Dr.

27

Aryal’s opinion does not state that Plaintiff is unable to perform work eight hours per day

28

for five days a week; instead, it merely states that Plaintiff’s headaches limit her ability to

- 10 -

1

perform work-related activities. A.R. 949. The opinion is ambiguous as to the degree

2

and debilitating effects of Plaintiff’s headaches and silent as to their timing. Dr. Aryal’s

3

opinion provides nothing but a conclusory assertion that Plaintiff is limited in her ability

4

to perform work-related activities. The Court concludes that the ALJ was warranted in

5

disregarding Dr. Aryal’s opinion. See Young v. Heckler, 803 F.2d 963, 968 (9th Cir.

6

1986) (finding that an ALJ need not accept a treating physician’s opinion which is “brief

7

and conclusory in form with little in the way of clinical findings to support [its]

8

conclusion.”). In addition, the ALJ noted that Dr. Aryal’s opinion failed to indicate that

9

the “limitation [can] reasonably be expected to result from objective clinical or diagnostic

10

findings.” A.R. 22. The ALJ could have disregarded Dr. Aryal’s opinion on that basis

11

alone. See Bayliss, 427 F.3d at 1216; Orn, 495 F.3d at 631 (listing factors relevant to

12

evaluating a medical opinion, including the amount of relevant evidence that supports the

13

opinion, the quality of the explanation provided in the opinion, and the consistency of the

14

medical opinion with the record as a whole). The Court finds that the ALJ’s decision to

15

disregard Dr. Aryal’s opinion was not legal error.

16

4.

Ravi Bhalla, M.D.

17

Plaintiff argues that the ALJ failed to articulate sufficient reasons for giving

18

limited weight to the opinion of her treating rheumatologist, Dr. Ravi Bhalla, M.D.

19

Doc. 17 at 16. On September 26, 2011, Dr. Bhalla submitted a medical opinion in which

20

he opined that Plaintiff’s “chronic musculoskeletal pain, weakness, and fatigue” is her

21

“primary disabling symptoms,” and her “disability” is “based on joint pains and stiffness,

22

fatigue, and muscle pain and weakness.” A.R. 951. He indicated he “cannot determine

23

the impact of symptoms in relation to [Plaintiff’s] activities,” but “do[es] not question

24

[Plaintiff’s] assertion that [she] is disabled for all competitive work requirements.”

25

A.R. 951. The ALJ accorded Dr. Bhalla’s opinion little weight. A.R. 22.

26

Dr. Bhalla’s medical opinion was contradicted by the opinions of Drs. Green,

27

Marella, and Disney, each of whom opined that Plaintiff had abilities greater than those

28

in Dr. Bhalla’s opinion. A.R. 21. The ALJ therefore could discount Dr. Bhalla’s opinion

- 11 -

1

for specific and legitimate reasons supported by substantial evidence. Lester, 81 F.3d at

2

830-31.

3

In giving Dr. Bhalla’s opinion little weight, the ALJ stated that Dr. Bhalla’s final

4

statement in the opinion is a “vague, overgeneral conclusion [that] is not supported by the

5

evidence of record.” A.R. 22. The ALJ noted that Dr. Bhalla admits that the opinion is

6

based on the claimant’s subjective complaints. In addition, Dr. Bhalla failed to provide

7

specific physical limitations, and admitted he “cannot determine the impact” of her

8

symptoms “in relation to her activities.” A.R. 22. For the reasons outlined above, the

9

Court concludes that the ALJ did not commit legal error by discounting the brief,

10

conclusory, unsupported medical opinion submitted by Dr. Bhalla, which was also

11

inconsistent with the medical record.

12

Plaintiff does not argue that the ALJ should have accorded Dr. Bhalla’s opinion

13

controlling weight. Instead, she argues that Dr. Bhalla’s opinion “is verification of

14

symptoms that are consistent with the opinions of Drs. Perry, Swigert, and Aryal, as well

15

[sic] the testimony of [Plaintiff] and her husband.” Doc. 17 at 16-17. Plaintiff, in effect,

16

argues that the Court should conclude from Dr. Bhalla’s opinion that the ALJ’s decision

17

to discount the opinions of the other treating physicians and his ultimate decision in this

18

case is inconsistent with the balance of the evidence. As explained above, however, the

19

ALJ’s decision will be set aside only if it is not supported by substantial evidence or is

20

based on legal error. Lewis, 236 F.3d at 517 n.13. The Court concludes that the ALJ’s

21

decision is supported by substantial evidence and is not based on legal error.

22

5.

State Agency Physicians.

23

Plaintiff argues that the ALJ committed legal error by according “some weight” to

24

the opinions of the State Agency’s reviewing physicians. Doc. 17 at 17. She asserts that

25

the ALJ committed legal error by failing to provide “specific and legitimate reasons for

26

crediting non-examining State Agency assessments over treating physician opinion.” Id.

27

Plaintiff is incorrect.

28

legitimate reasons, drawn from the medical record, to justify the ALJ’s decision to credit

As outlined above, the ALJ provided numerous specific and

- 12 -

1

the opinions of Drs. Green, Marella, and Disney over the opinions of Plaintiff’s treating

2

physicians. Because the opinions of Drs. Green, Marella, and Disney were supported by

3

independent clinical findings, they constituted substantial evidence. Thomas, 278 F.3d at

4

957 (“The opinions of non-treating or non-examining physicians may also serve as

5

substantial evidence when the opinions are consistent with independent clinical findings

6

or other evidence in the record.”) (citation omitted). The Court concludes that the ALJ’s

7

decision to credit the opinions of Drs. Green, Marella, and Disney was not legal error.

8

C.

The ALJ Did Not Err in Evaluating Plaintiff’s Credibility.

9

In evaluating the credibility of a claimant’s testimony regarding subjective pain or

10

other symptoms, the ALJ is required to engage in a two-step analysis: (1) determine

11

whether the claimant presented objective medical evidence of an impairment that could

12

reasonably be expected to produce some degree of the pain or other symptoms alleged;

13

and, if there is no evidence of malingering, (2) reject the claimant’s testimony about the

14

severity of the symptoms only by giving specific, clear, and convincing reasons for the

15

rejection. Vasquez v. Astrue, 572 F.3d 586, 591 (9th Cir. 2009).

16

The ALJ found that Plaintiff’s medically determinable impairments could

17

reasonably be expected to cause the alleged symptoms. A.R. 18. The ALJ then found

18

Plaintiff’s statements regarding the intensity, persistence, and limiting effects of the

19

symptoms not credible to the extent they are inconsistent with the RFC assessment.

20

A.R. 18. In other words, the ALJ found Plaintiff’s statements not credible to the extent

21

she claims she is unable to perform past relevant work.

22

At the hearing Plaintiff testified that she quit her last job because she was unable

23

to concentrate or remain alert and she was in pain, which caused her to make poor

24

decisions. A.R. 43. Plaintiff also testified that she is unable to take most of the major

25

drugs on the market to treat her fibromyalgia because she experiences strange side

26

effects. A.R. 47. She stated that her lower back pain is very sharp and her pain is

27

aggravated by repeated movements, such as housecleaning. A.R. 47. Plaintiff also

28

testified that she gets headaches three or four times per week that require her to take

- 13 -

1

medication and go to sleep. A.R. 48. She also stated that she has numbness and tingling

2

in her hands and feet, which prevent her from typing for longer than 20 minutes at a time

3

or opening containers. A.R. 48-50. Plaintiff also testified that she needs to rest every 15

4

minutes if she is “doing something,” that she can sit for an hour at most, that she can

5

stand for five minutes at most, that she can walk for 15-20 minutes at most, and that she

6

can lift 15 pounds at most. A.R. 52-53. She also stated that she can dust for 10-15

7

minutes or vacuum for five minutes at a time, but that regular household chores hurt her

8

back. A.R. 54. Plaintiff also stated that she is unable to concentrate and comprehend

9

things she reads, which explains her recent difficulty in completing a PhD program.

10

A.R. 55.

11

The ALJ gave the following reasons for finding Plaintiff’s testimony not fully

12

credible: (1) Plaintiff’s treatment regimen has been quite effective at managing her

13

symptoms; (2) medication has been effective at managing her symptoms with no adverse

14

side effects; (3) Plaintiff’s restless leg syndrome and migraine headaches are “stable” and

15

she has been “doing very well” with her fibromyalgia; (4) physical examinations and

16

diagnostic studies generally reported “unremarkable” and “normal” results; (5) Plaintiff

17

engaged in many activities that are inconsistent with her allegations of disability; and

18

(6) inconsistencies exist in the record. A.R. 19-20. The ALJ supported each of these

19

reasons with many citations to the record.

20

Plaintiff contends that the following assertions made by the ALJ are not supported

21

by the record: the treatment regimen has been effective at managing her symptoms;

22

medication has been effective at managing her symptoms with no adverse side effects;

23

Plaintiff’s restless leg syndrome and migraine headaches are stable.

24

Plaintiff argues that the ALJ reached these conclusions by failing to view the record as a

25

whole and isolating only a portion of the medical record to support a desired conclusion.

26

Doc. 17 at 21; see Reddick v. Chater, 157 F.3d 715, 720 (9th Cir. 1998) (“In determining

27

whether the Commissioner’s findings are supported by substantial evidence, we must

28

review the administrative record as a whole, weighing both the evidence that supports the

- 14 -

Doc. 21-22.

1

evidence and that detracts from the Commissioner’s conclusion.”). The Court disagrees.

2

The ALJ cited many diagnostic reports, physical examinations, medical notes, and

3

statements made by Plaintiff to medical service providers to substantiate each reason

4

given for the credibility determination. A.R. 18-20. “If the evidence can reasonably

5

support either affirming or reversing the Secretary’s conclusion, the court may not

6

substitute its judgment for that of the Secretary.” Id. at 720-21 (citation omitted). After a

7

careful review of the record, the Court concludes that the evidence reasonably supports

8

the ALJ’s credibility determination.

9

Plaintiff also argues that her daily activities are not inconsistent with her alleged

10

limitations and that the ALJ erred by relying on them to impugn her credibility. Doc. 17

11

at 24. As outlined above, Plaintiff testified that she could not perform household chores

12

without breaks every few minutes. She also testified that she must lie down for hours

13

after grocery shopping in order to recover her strength. A.R. 57. She also testified that

14

she needs to rest every 15 minutes if she is “doing something” and that she can sit for an

15

hour at most, stand for five minutes at most, walk for 15-20 minutes at most, and lift 15

16

pounds at most. A.R. 52-53. The ALJ noted, however, that Plaintiff is the primary

17

caretaker for her elderly mother who recently suffered a stroke. In addition, Plaintiff

18

exercises three times a week for an hour by swimming laps. A.R. 488, 923. These

19

activities seem inconsistent with the limitations Plaintiff alleged in her testimony. The

20

Court cannot agree that the ALJ committed legal error by relying on these daily activities

21

to undermine her credibility.

22

Plaintiff disputes the validity of the “inconsistencies observed in the record” upon

23

which the ALJ relied. Doc. 17 at 26. For example, the ALJ observed that a treating

24

physician had recorded in his notes “[Plaintiff’s] gait is abnormal in so much as she

25

shuffles and is unable to fully lift her leg and I am uncertain whether this is due to effort

26

or pathology.” A.R. 964. Plaintiff asserts that there was no finding of questionable

27

effort, but the physician clearly raised that possibility in the note. Because there are more

28

than a sufficient number of specific, clear, and convincing reasons to justify the ALJ’s

- 15 -

1

credibility determination, the Court will not address Plaintiff’s remaining arguments

2

regarding her credibility.

3

D.

4

Plaintiff’s husband, Donald Childers, submitted two third-party function reports.

5

A.R. 176-83, 196-203. The ALJ gave his reports great weight because they detailed

6

extensive activities of daily living and physical capacities as demonstrated by her regular

7

activities. A.R. 21. Plaintiff claims that the ALJ erred in the use of her husband’s

8

reports.

9

unpredictable periods of joint and muscle pain and that she needed time to recuperate

10

from the performance of normal daily activities, Plaintiff argues that it was error to

11

accord the reports great weight and claim that the reports support the ALJ’s conclusion of

12

no disability. Id. The Court disagrees. Mr. Childers’ reports provide many examples of

13

social and physical activities in which Plaintiff engages notwithstanding her limitations,

14

including swimming, cleaning the house, preparing meals, shopping, walking, driving,

15

attending church, hosting bible study sessions, going out alone, attending sporting events,

16

reading, and watching television. Although Mr. Childers reported that his wife had

17

decreased abilities to perform such activities, these limitations are reflected in the limited

18

RFC – the RFC states that Plaintiff cannot engage in the full range of sedentary work.

19

A.R. 17-18.

20

concludes that the ALJ did not commit legal error in relying on it.

21
22
23

The ALJ Did Not Err in His Use of Third Party Report.

Doc. 17 at 27.

Because Mr. Childers reported that his wife experienced

Because Mr. Childers’ report is consistent with the RFC, the Court

IT IS ORDERED that the final decision of the Commissioner of Social Security
is affirmed. The Clerk shall enter judgment accordingly and shall terminate this case.
Dated this 23rd day of April, 2014.

24
25
26
27
28

- 16 -