Carlson v. Colvin
Filing
25
ORDER affirming the decision of the Commissioner of Social Security. The Clerk of Court shall enter judgment accordingly. Signed by Magistrate Judge Eileen S Willett on 7/14/17. (EJA)
1
WO
2
3
4
5
6
IN THE UNITED STATES DISTRICT COURT
7
FOR THE DISTRICT OF ARIZONA
8
9
Craig Allen Carlson,
10
No. CV-16-02430-PHX-ESW
Plaintiff,
11
v.
12
Acting Commissioner of the Social Security
Administration,
13
ORDER
Defendant.
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
Pending before the Court is Craig Allen Carlson’s (“Plaintiff”) appeal of the
Social Security Administration’s (“Social Security”) denial of his application for
disability insurance benefits. The Court has jurisdiction to decide Plaintiff’s appeal
pursuant to 42 U.S.C. § 405(g). Under 42 U.S.C. § 405(g), the Court has the power to
enter, based upon the pleadings and transcript of the record, a judgment affirming,
modifying, or reversing the decision of the Commissioner of Social Security, with or
without remanding the case for a rehearing. Both parties have consented to the exercise
of U.S. Magistrate Judge jurisdiction. (Doc. 17).
After reviewing the Administrative Record (“A.R.”) and the parties’ briefing
(Docs. 20, 24), the Court finds that the Administrative Law Judge’s (“ALJ”) decision is
supported by substantial evidence and is free of harmful legal error. The decision is
therefore affirmed.
1
2
3
4
5
6
7
8
9
10
11
12
I. LEGAL STANDARDS
A. Disability Analysis: Five-Step Evaluation
The Social Security Act provides for disability insurance benefits to those who
have contributed to the Social Security program and who suffer from a physical or mental
disability. 42 U.S.C. § 423(a)(1). To be eligible for benefits, the claimant must show
that he or she suffers from a medically determinable physical or mental impairment that
prohibits him or her from engaging in any substantial gainful activity. The claimant must
also show that the impairment is expected to cause death or last for a continuous period
of at least 12 months. 42 U.S.C. § 423(d)(1)(A).
To decide if a claimant is entitled to Social Security benefits, an ALJ conducts an
analysis consisting of five questions, which are considered in sequential steps. 20 C.F.R.
§ 404.1520(a). The claimant has the burden of proof regarding the first four steps: 1
13
Step One: Is the claimant engaged in “substantial gainful
activity”? If so, the analysis ends and disability benefits are
denied. Otherwise, the ALJ proceeds to Step Two.
14
15
Step Two: Does the claimant have a medically severe
impairment or combination of impairments? A severe
impairment is one which significantly limits the claimant’s
physical or mental ability to do basic work activities. 20
C.F.R. § 404.1520(c). If the claimant does not have a severe
impairment or combination of impairments, disability benefits
are denied at this step. Otherwise, the ALJ proceeds to Step
Three.
16
17
18
19
20
21
Step Three: Is the impairment equivalent to one of a number
of listed impairments that the Commissioner acknowledges
are so severe as to preclude substantial gainful activity? 20
C.F.R. § 404.1520(d). If the impairment meets or equals one
of the listed impairments, the claimant is conclusively
presumed to be disabled. If the impairment is not one that is
presumed to be disabling, the ALJ proceeds to the fourth step
of the analysis.
22
23
24
25
26
27
28
1
Parra v. Astrue, 481 F.3d 742,746 (9th Cir. 2007).
-2-
1
Step Four: Does the impairment prevent the claimant from
performing work which the claimant performed in the past?
If not, the claimant is “not disabled” and disability benefits
are denied without continuing the analysis. 20 C.F.R. §
404.1520(f). Otherwise, the ALJ proceeds to the last step.
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
If the analysis proceeds to the final question, the burden of proof shifts to the
Commissioner: 2
Step Five: Can the claimant perform other work in the
national economy in light of his or her age, education, and
work experience? The claimant is entitled to disability
benefits only if he or she is unable to perform other work. 20
C.F.R. § 404.1520(g). Social Security is responsible for
providing evidence that demonstrates that other work exists in
significant numbers in the national economy that the claimant
can do, given the claimant’s residual functional capacity, age,
education, and work experience. Id.
B. Standard of Review Applicable to ALJ’s Determination
The Court must affirm an ALJ’s decision if it is supported by substantial evidence
and is based on correct legal standards. Molina v. Astrue, 674 F.3d 1104, 1110 (9th Cir.
2012); Marcia v. Sullivan, 900 F.2d 172, 174 (9th Cir. 1990). Although “substantial
evidence” is less than a preponderance, it is more than a “mere scintilla.” Richardson v.
Perales, 402 U.S. 389, 401 (1971) (quoting Consolidated Edison v. NLRB, 305 U.S. 197,
229 (1938)). It means such relevant evidence as a reasonable mind might accept as
adequate to support a conclusion. Id.
In determining whether substantial evidence supports the ALJ’s decision, the
Court considers the record as a whole, weighing both the evidence that supports and
detracts from the ALJ’s conclusions. Reddick v. Chater, 157 F.3d 715, 720 (9th Cir.
1998); Tylitzki v. Shalala, 999 F.2d 1411, 1413 (9th Cir. 1993). If there is sufficient
evidence to support the ALJ’s determination, the Court cannot substitute its own
determination. See Morgan v. Comm’r of the Social Sec. Admin., 169 F.3d 595, 599 (9th
Cir. 1999) (“Where the evidence is susceptible to more than one rational interpretation, it
27
28
2
Parra, 481 F.3d at 746.
-3-
1
2
3
4
5
6
7
8
9
10
11
is the ALJ’s conclusion that must be upheld.”); Magallanes v. Bowen, 881 F.2d 747, 750
(9th Cir. 1989). This is because the ALJ, not the Court, is responsible for resolving
conflicts, ambiguity, and determining credibility. Magallanes, 881 F.2d at 750; see also
Andrews v. Shalala, 53 F.3d 1035, 1039 (9th Cir. 1995).
The Court also considers the harmless error doctrine when reviewing an ALJ’s
decision.
This doctrine provides that an ALJ’s decision need not be remanded or
reversed if it is clear from the record that the error is “inconsequential to the ultimate
nondisability determination.” Tommasetti v. Astrue, 533 F.3d 1035, 1038 (9th Cir. 2008)
(citations omitted); Molina, 674 F.3d at 1115 (an error is harmless so long as there
remains substantial evidence supporting the ALJ’s decision and the error “does not
negate the validity of the ALJ’s ultimate conclusion”) (citations omitted).
12
II. PLAINTIFF’S APPEAL
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
A. Procedural Background
Plaintiff, who was born in 1966, has been employed as a storage facility rental
clerk, motorcycle salesman, warehouse manager, piano mover, and telemarketer. (A.R.
94, 95, 100). In 2012, Plaintiff filed an application for disability insurance benefits.
(A.R. 216-17). Plaintiff’s application alleged that on October 1, 2007, he became unable
to work due to the following conditions: sciatica, gastric sleeve surgery, Type II diabetes
with neuropathy, “pain in legs,” “too much tissue pressing on spine/hereditary,” high
blood pressure, depression, tinnitus, “limited mobility,” deafness in the left ear, and “poor
hearing in right ear.” (A.R. 100-01). Social Security denied the applications in February
2013. (A.R. 143-45). In November 2013, upon Plaintiff’s request for reconsideration,
Social Security affirmed the denial of benefits. (A.R. 146-49). Plaintiff sought further
review by an ALJ, who conducted a hearing in September 2014. (A.R. 44-98, 150-51).
On the date of the hearing, Plaintiff amended his alleged disability onset date to October
29, 2010. (A.R. 230).
28
-4-
1
2
3
4
5
6
7
8
9
10
11
12
In his February 25, 2015 decision, the ALJ found that Plaintiff has not been under
a disability from October 29, 2010 through December 31, 2012, the date last insured.
(A.R. 25-37). The Appeals Council denied Plaintiff’s request for review, making the
ALJ’s decision the final decision of the Social Security Commissioner. (A.R. 4-9). On
July 20, 2016, Plaintiff filed a Complaint (Doc. 1) pursuant to 42 U.S.C. § 405(g)
requesting judicial review and reversal of the ALJ’s decision.
B. The ALJ’s Application of the Five-Step Disability Analysis
1. Step One: Engagement in “Substantial Gainful Activity”
The ALJ determined that Plaintiff has not engaged in substantial gainful activity
from October 29, 2010, the amended alleged disability onset date, through the date last
insured of December 31, 2012. (A.R. 27). Neither party disputes this determination.
13
2. Step Two: Presence of Medically Severe Impairment/Combination
of Impairments
14
The ALJ found that Plaintiff has the following severe impairments: (i)
15
degenerative disc disease of the lumbar spine, thoracic spine, and cervical spine; (ii)
16
obstructive sleep apnea; (iii) degenerative joint disease; (iv) bilateral hand/wrist
17
tenosynovitis; (v) trigger finger; (vi) Type II diabetes mellitus; (vii) chronic pain
18
syndrome; and (ix) obesity. (A.R. 27). This determination is unchallenged.
19
3. Step Three: Presence of Listed Impairment(s)
20
The ALJ found that Plaintiff does not have an impairment or combination of
21
impairments that meets or medically equals the severity of one of the listed impairments
22
in 20 C.F.R. Part 404, Subpart P, Appendix 1 of the Social Security regulations. (A.R.
23
29-30). Neither party disputes the ALJ’s determination at this step.
24
25
26
27
28
4. Step Four: Capacity to Perform Past Relevant Work
The ALJ found that Plaintiff has retained the residual functional capacity (“RFC”)
to perform light work as defined in 20 C.F.R. § 404.1567(b), except that Plaintiff
could frequently push and pull with the upper and lower
extremities; he could occasionally climb ramps, stairs, and
ladders; he could occasionally balance, stoop, kneel, and
crouch; he was precluded from climbing ropes or scaffolds;
-5-
1
he was precluded from crawling; he could frequently reach,
handle, finger, and feel; he had to avoid moderate exposure to
loud noise intensity environments; and he had to avoid
hazardous environments including unprotected heights and
moving machinery.
2
3
4
5
(A.R. 30).
Based on the testimony of a vocational expert (“VE”) and Plaintiff’s RFC, the ALJ
6
7
8
9
10
11
12
13
14
15
16
17
determined at Step Four that Plaintiff can perform his past relevant work as a storage
facility rental clerk, motorcycle salesman, warehouse manager, and telemarketer. (A.R.
36).
Plaintiff challenges the ALJ’s RFC and Step Four determinations. Plaintiff asserts
that the ALJ erroneously identified the motorcycle salesperson and telemarketer positions
as past relevant work. (Doc. 20 at 11-12). In addition, Plaintiff argues that the ALJ
committed harmful error in assessing Plaintiff’s RFC by improperly rejecting (i)
Plaintiff’s testimony regarding his symptoms; (ii) the opinions of Plaintiff’s mother
regarding Plaintiff’s symptoms; and (iii) the opinions of Plaintiff’s treating physicians.
(Id. at 12-20). Finally, Plaintiff contends that the ALJ posited a deficient hypothetical to
the VE at the administrative hearing. (Id. at 21).
5. Step Five: Capacity to Perform Other Work
18
19
20
21
22
23
24
25
The ALJ’s analysis did not proceed to the fifth step as the ALJ found at Step Four
that Plaintiff is not disabled.
C. Plaintiff’s Challenge to the ALJ’s Step Four Determination
1. Plaintiff’s Argument that the ALJ Erroneously Identified
“Motorcycle Salesperson” and “Telemarketer” as Past Relevant
Work
An ALJ may find at Step Four that a claimant is not disabled if the ALJ
determines that the claimant can perform his or her past relevant work 3 as it (i) was
actually performed or (ii) is generally performed in the national economy.
Social
26
27
28
3
“Past relevant work” is work (i) performed within the past fifteen years, (ii)
constituting substantial gainful activity, and (iii) lasting long enough for the individual to
have learned how to perform the work. 20 C.F.R. §§ 404.1560(b)(1), 404.1565(a).
-6-
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
Security Ruling (“SSR”) 82–61, 1982 WL 31387, at *1-2 (1982). The law does not
require an ALJ to make “explicit findings at step four regarding a claimant’s past relevant
work both as generally performed and as actually performed.” Pinto v. Massanari, 249
F.3d 840, 845 (9th Cir. 2001) (emphasis in original). An ALJ, however, must make
specific findings as to (i) the claimant’s RFC; (ii) the physical and mental demands of the
past relevant work; and (iii) the relation of the RFC to the past work. Id. at 845 (citing
SSR 82-62). A claimant has the burden of establishing that he or she is incapable of
performing his or her past relevant work.
20 C.F.R. § 404.1512; Barnhart v.
Thomas, 540 U.S. 20, 25 (2003).
As discussed, the ALJ found that Plaintiff’s past relevant work included the
positions of piano mover, storage facility rental clerk, motorcycle salesman, warehouse
manager, and telemarketer. (A.R. 36). The ALJ found that Plaintiff could perform all of
those positions except for the piano mover position. (Id.).
Plaintiff argues that the ALJ erred by including the motorcycle salesperson and
telemarketer positions in the list of past relevant work. (Doc. 20 at 11-12). Plaintiff
argues that he did not perform those jobs at the substantial gainful activity level. (Id. at
12). However, where a disability claimant argues that an ALJ has erred, the claimant
must also show that the asserted error resulted in actual harm. See Ludwig v. Astrue, 681
F.3d 1047, 1054 (9th Cir. 2012) (“The burden is on the party claiming error to
demonstrate not only the error, but also that it affected his “substantial rights,” which is
to say, not merely his procedural rights.”) (citing Shinseki v. Sanders, 556 U.S. 396, 407–
09 (2009)). Plaintiff does not assert, and the Court does not find, that the ALJ erred by
finding that Plaintiff’s past relevant work also includes the storage facility rental clerk
and warehouse manager positions. For the reasons discussed herein, the Court does not
find that the ALJ erroneously determined Plaintiff is capable of working as a storage
facility rental clerk or warehouse manager. Therefore, any error in finding that the
motorcycle salesperson and telemarketer positions constitute past relevant work is
harmless. See Lind v. Astrue, 370 F. App’x 814, 817 (9th Cir. 2010) (“Any error by the
-7-
1
2
3
4
5
6
ALJ in considering jobs that did not qualify as past relevant work was harmless because
the ALJ found that Lind could perform her past relevant work as a customer service
representative, and the ability to perform one of her past jobs is sufficient to meet the
standard.”).
Plaintiff’s first challenge to the ALJ’s decision fails to show error
warranting reversal or remand.
7
2. Plaintiff’s Argument that the ALJ Improperly Weighed Medical
Source Opinions
8
In weighing medical source opinions in Social Security cases, there are three
9
categories of physicians: (i) treating physicians, who actually treat the claimant; (ii)
10
examining physicians, who examine but do not treat the claimant; and (iii) non-
11
examining physicians, who neither treat nor examine the claimant. Lester v. Chater, 81
12
F.3d 821, 830 (9th Cir. 1995). An ALJ must provide clear and convincing reasons that
13
are supported by substantial evidence for rejecting the uncontradicted opinion of a
14
treating or examining doctor. Id. at 830-31; Bayliss v. Barnhart, 427 F.3d 1211, 1216
15
(9th Cir. 2005). An ALJ cannot reject a treating or examining physician’s opinion in
16
favor of another physician’s opinion without first providing specific and legitimate
17
reasons that are supported by substantial evidence, such as finding that the physician’s
18
opinion is inconsistent with and not supported by the record as a whole. Bayliss, 427
19
F.3d at 1216; 20 C.F.R. § 404.1527(c)(4) (an ALJ must consider whether an opinion is
20
consistent with the record as a whole); see also Batson v. Comm’r of Soc. Sec. Admin.,
21
359 F.3d 1190, 1195 (9th Cir. 2004); Thomas v. Barnhart, 278 F.3d 947, 957 (9th Cir.
22
2002); Tommasetti, 533 F.3d at 1041 (finding it not improper for an ALJ to reject a
23
treating physician’s opinion that is inconsistent with the record).
24
i. Plaintiff’s Treating Physician Eric Feldman, M.D.
25
On July 16, 2012, Plaintiff’s treating physician, Eric Feldman, M.D., completed a
26
Residual Functional Capacity Questionnaire. (A.R. 423-24). Dr. Feldman opined that
27
Plaintiff’s symptoms associated with his impairments are severe enough to frequently
28
interfere with Plaintiff’s attention and concentration. (A.R. 423). Dr. Feldman also
-8-
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
opined that Plaintiff would need to recline or lie down in excess of normal breaks during
an eight-hour workday and can only sit and stand/walk for fifteen minutes at a time.
(Id.). In response to the question inquiring as to “the total number of hours your patient
can sit and stand/walk in an 8-hour workday,” Dr. Feldman indicated “0.” (Id.). In
addition, Dr. Feldman opined that Plaintiff cannot lift or carry anything. (A.R. 424). The
ALJ gave Dr. Feldman’s assessment little weight. (A.R. 35). As Dr. Feldman’s opinions
are contradicted by another acceptable medical source, 4 the Court must determine
whether the ALJ offered specific and legitimate reasons for discounting Dr. Feldman’s
assessment.
The ALJ found that Dr. Feldman’s assessment “is conclusory and unsupported by
the record.” (A.R. 35). The ALJ stated that “Dr. Feldman’s notes do no[t] support the
extreme limitations he assessed (see Ex. 16F). His notes consistently showed normal
muscle strength in the lower extremities, and normal gait and station (id.).” (A.R. 35).
Finding that a physician’s opinion is conclusory or inconsistent with his or her treatment
notes are valid reasons for discounting the opinion. See Thomas, 278 F.3d at 957 (“The
ALJ need not accept the opinion of any physician, including a treating physician, if that
opinion is brief, conclusory, and inadequately supported by clinical findings.”); Valentine
v. Comm'r, Soc. Sec. Admin., 574 F.3d 685, 692–93 (9th Cir. 2009); Rollins v.
Massanari, 261 F.3d 853, 856 (9th Cir. 2001) (ALJ permissibly rejected treating
physician’s opinion when opinion was contradicted by or inconsistent with treatment
reports); Ghanim v. Colvin, 763 F.3d 1154, 1161 (9th Cir. 2014) (a conflict between
treatment notes and a treating provider’s opinions may constitute an adequate reason to
23
24
25
26
27
28
4
Dr. Feldman’s opinions are contradicted by the opinions of the non-examining
State agency physicians. (A.R. 108-12, 130-35); see Moore v. Comm'r of Soc. Sec., 278
F.3d 920, 924 (9th Cir. 2002) (“The ALJ could reject the opinions of Moore’s examining
physicians, contradicted by a nonexamining physician, only for “specific and legitimate
reasons that are supported by substantial evidence in the record.”); Mendoza v. Astrue,
371 F. App’x 829, 831 (9th Cir. 2010) (“An ALJ may reject an opinion of an examining
physician, if contradicted by a non-examining physician, as long as the ALJ gives
‘specific and legitimate reasons that are supported by substantial evidence in the
record.’”).
-9-
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
discredit the opinions of a treating physician); Connett v. Barnhart, 340 F.3d 871, 875
(9th Cir. 2003) (treating doctor’s opinion properly rejected when treatment notes
“provide no basis for the functional restrictions he opined should be imposed on
[claimant]”).
Moreover, the Court finds that the ALJ’s conclusion that Dr. Feldman’s
assessment is unsupported by treatment notes is a reasonable interpretation of the record.
For instance, in an October 5, 2011 treatment record, Dr. Feldman stated that Plaintiff
“did have an EMG/nerve conduction study which was reportedly normal.” (A.R. 698).
In addition, Dr. Feldman observed in a number of treatment notes that Plaintiff had “[f]ull
range of motion in the hips knees and ankles” and had “[n]o focal strength deficits in the
lower extremities.” (A.R. 698, 716, 721). On April 25, 2012, Dr. Feldman assessed that
Plaintiff had no weakness. (A.R. 722). Dr. Feldman also stated that Plaintiff could sit for
thirty minutes, which contradicts the statement in Dr. Feldman’s Residual Functional
Capacity Questionnaire that Plaintiff could sit for only fifteen minutes at a time. (A.R.
423, 723).
Based on the foregoing, the Court finds that the ALJ provided specific and
legitimate reasons supported by substantial evidence for giving Dr. Feldman’s assessment
little weight.
ii. Plaintiff’s Treating Physician Atul Syal, M.D.
Another one of Plaintiff’s treating physicians, Atul Syal, M.D., also completed a
Residual Functional Capacity Questionnaire. (A.R. 960-61). The Residual Functional
Capacity Questionnaire is dated June 16, 2014, which is after Plaintiff’s last insured date
of December 31, 2012. (A.R. 961). Dr. Syal opined that Plaintiff can sit and stand/walk
for ten minutes at a time, can sit for one hour out of an eight-hour workday, but cannot
stand/walk for any period of time in a workday. (A.R. 960). Dr. Syal assessed that
Plaintiff can frequently lift/carry less than ten pounds, can occasionally lift/carry ten
pounds, but can never lift/carry twenty or fifty pounds. (A.R. 961).
28
- 10 -
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
In explaining why he gave Dr. Syal’s opinions little weight, the ALJ observed that
Dr. Syal began treating Plaintiff seven months after the date last insured. (A.R. 35). “In
order to obtain disability benefits, [a claimant] must demonstrate he was disabled prior to
his last insured date.” Morgan v. Sullivan, 945 F.2d 1079, 1080 (9th Cir. 1991) (citing 42
U.S.C. § 423(c); 20 C.F.R. § 404.1520). However, “medical evaluations made after the
expiration of a claimant’s insured status are relevant to an evaluation of the preexpiration
condition.”
Sampson
v.
Chater, 103
F.3d
918,
922
(9th
Cir.
1996) (quoting Smith v. Bowen, 849 F.2d 1222, 1225 (9th Cir. 1988)). It is error to reject
a physician’s opinion solely because the physician rendered an opinion after the
claimant’s date last insured. See Wakefield v. Astrue, 267 F. App’x 682, 683 (9th Cir.
2008) (finding that the fact that a physician began treating the claimant after the
claimant’s date last insured was not a specific and legitimate reason for rejecting the
physician’s opinion). Accordingly, Dr. Syal’s opinion may not be discounted for the sole
reason that Dr. Syal evaluated Plaintiff after Plaintiff’s date last insured.
However, the ALJ also discounted Dr. Syal’s opinion on the ground that “the
evidence of record does not support the limitations he assessed.” (A.R. 35). This finding
is a reasonable interpretation of the record. For instance, on May 30, 2014, Dr. Syal
noted that a “[n]eedle exam of the muscles of the bilateral lower extremities and the
Lumbosacral paraspinal muscles did not reveal any abnormalities.” (A.R. 928). Dr. Syal
found that the results of an electromyogram (EMG) are “consistent with the diagnosis of
a mild sensory type of polyneuropathy. There is no evidence of radiculopathy based on
this exam.” (Id.). At a July 31, 2013 exam, Dr. Syal found “strength of 5 out of 5
bilaterally and symmetrical except for weakness of the left hip flexion and left knee
extension at about 4+ out of 5.” (A.R. 931). The Court finds that the ALJ provided a
specific and legitimate reason supported by substantial evidence for giving Dr. Syal’s
assessment little weight.
27
28
- 11 -
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
iii. Non-Examining State Agency Physicians
The ALJ gave great weight to the opinions of the non-examining state agency
physicians who reviewed Plaintiff’s medical records. (A.R. 36, 100-39). Plaintiff argues
that the ALJ erred by “basing his entire RFC finding” on those opinions. (Doc. 20 at 15).
The opinion of a non-examining source cannot alone constitute substantial
evidence that justifies rejecting the opinion of either an examining or a treating
source.
Tonapetyan
v.
Halter,
242
F.3d
1144,
1149
(9th
Cir.
2001)
(citing Magallanes, 881 F.2d at 752). However, the opinion of a non-examining source
may constitute substantial evidence when it is consistent with other independent evidence
in the record. Id. (citing Magallanes, 881 F.2d at 752). Since the opinions of the state
agency physicians are consistent with other evidence in the record, the ALJ did not err in
giving the opinions substantial weight. Thomas, 278 F.3d at 957 (“The opinions of nontreating or non-examining physicians may also serve as substantial evidence when the
opinions are consistent with independent clinical findings or other evidence in the
record.”); Magallanes, 881 F.2d at 753 (upholding an ALJ’s reliance on the opinion of a
non-examining physician where the opinion was supported by objective medical
evidence).
3. Plaintiff’s Challenge to the ALJ’s Credibility Determination of
Plaintiff’s Symptom Testimony
When evaluating the credibility of a plaintiff’s testimony regarding subjective pain
or symptoms, the ALJ must engage in a two-step analysis. Vasquez v. Astrue, 572 F.3d
586, 591 (9th Cir. 2009). In the first step, the ALJ must determine whether the claimant
has presented objective medical evidence of an underlying impairment “which could
reasonably be expected to produce the pain or other symptoms alleged.” Lingenfelter v.
Astrue, 504 F.3d 1028, 1036 (9th Cir. 2007). The plaintiff does not have to show that the
impairment could reasonably be expected to cause the severity of the symptoms. Rather,
a plaintiff must only show that it could have caused some degree of the symptoms.
Smolen v. Chater, 80 F.3d 1273, 1282 (9th Cir. 1996).
- 12 -
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
If a plaintiff meets the first step, and there is no evidence of malingering, the ALJ
can only reject a plaintiff’s testimony about the severity of his or her symptoms by
offering specific, clear, and convincing reasons. Lingenfelter, 504 F.3d at 1036. The
ALJ cannot rely on general findings. The ALJ must identify specifically what testimony
is not credible and what evidence undermines the plaintiff’s complaints. Berry v. Astrue,
622 F.3d 1228, 1234 (9th Cir. 2010). In weighing a plaintiff’s credibility, the ALJ can
consider many factors including: a plaintiff’s reputation for truthfulness, prior
inconsistent statements concerning the symptoms, unexplained or inadequately explained
failure to seek treatment, and the plaintiff’s daily activities. Smolen, 80 F.3d at 1284; see
also 20 C.F.R. §
404.1529(c)(4) (Social Security must consider whether there are
conflicts between a claimant’s statements and the rest of the evidence). In addition,
although the lack of medical evidence cannot form the sole basis for discounting pain
testimony, it is a factor that the ALJ can consider in his or her credibility analysis. See 20
C.F.R. § 404.1529(c)(2); Rollins v. Massanari, 261 F.3d 853, 857 (9th Cir. 2001); Burch
v. Barnhart, 400 F.3d 676 (9th Cir. 2005).
In March 2016, the Social Security Administration issued Social Security Ruling
16-3p, 2016 WL 1119029 (March 16, 2016) (“SSR 16-3p”), which provides new
guidance for ALJs to follow when evaluating a disability claimant’s statements regarding
the intensity, persistence, and limiting effects of symptoms. SSR 16-3p replaces Social
Security Ruling 96-7p, 1996 WL 374186 (July 2, 1996) (“SSR 96-7p”). SSR 16-3p
eliminates the term “credibility” used in SSR 96-7p in order to “clarify that subjective
symptom evaluation is not an examination of the individual’s character.” SSR 16-3p,
2016 WL 1119029, at *1. That is, “[t]he change in wording is meant to clarify that
administrative law judges aren’t in the business of impeaching claimants’ character,” but
“obviously administrative law judges will continue to assess the credibility of pain
assertions by applicants, especially as such assertions often cannot be either credited or
rejected on the basis of medical evidence.” Cole v. Colvin, 831 F.3d 411, 412 (7th Cir.
2016) (emphasis in original).
- 13 -
1
2
3
4
5
6
7
8
9
10
11
Although SSR 16-3p was issued after the ALJ’s February 2015 decision, it is
consistent with Social Security’s prior policies and with prior Ninth Circuit case law.
Compare SSR 16-3p with SSR 96-7p (both policies set forth a two-step process to be
followed in evaluating a claimant’s testimony and contain the same factors to be
considered in determining the intensity and persistence of a claimant’s symptoms).
Because 16-3p clarifies rather than changes existing law, 5 the Court will consider the
ALJ’s evaluation of Plaintiff’s subjective complaints in light of SSR 16-3p.
Plaintiff argues that the ALJ erred in discrediting Plaintiff’s testimony regarding
his subjective symptoms. As detailed below, the Court finds that the ALJ has provided
clear and convincing reasons supported by substantial evidence for discounting Plaintiff’s
testimony.
12
13
14
15
16
17
18
19
i. Lack of Objective Evidence
In explaining why he found Plaintiff’s testimony concerning his symptoms less
than fully credible, the ALJ stated that “[d]espite the claimant’s allegations of severe and
debilitating back pain and leg pain, the treatment notes documented minimal objective
findings . . . .” (A.R. 31). This conclusion is supported by substantial evidence in the
record. The ALJ correctly noted that electrodiagnostic testing performed on Plaintiff in
June 2013 did not reveal any evidence of peripheral polyneuropathy or lumbosacral
radiculopathy. 6
(A.R. 674).
Further, the ALJ did not rely solely on the lack of
20
21
22
23
24
25
26
27
28
5
Administrative rules will not have retroactive effect unless (i) Congress expressly
authorized the administrative agency to enact retroactive rules and (ii) the new agency
rule states that it is retroactive. Bowen v. Georgetown Univ. Hosp., 488 U.S. 204, 208
(1988). A clarification of a regulation, however, does not raise issues about retroactivity.
See Clay v. Johnson, 264 F.3d 744, 749 (7th Cir. 2001) (stating that a clarifying rule “can
be applied to the case at hand just as a judicial determination construing a statute can be
applied to the case at hand,” and does not raise issues of retroactivity); see also Smolen,
80 F.3d at 1281 n.1 (“We need not decide the issue of retroactivity [as to revised
regulations] because the new regulations are consistent with the Commissioner’s prior
policies and with prior Ninth Circuit case law . . . .”).
6
Evidence that post-dates a claimant's date last insured may be probative of
whether a claimant had any impairments prior to his or her date last insured. See,
e.g., Turner v. Comm'r of Social Security, 613 F.3d 1217, 1228-29 (9th Cir. 2010)
(“While the ALJ must consider only impairments (and limitations and restrictions
therefrom) that [the claimant] had prior to the DLI, evidence post-dating the DLI is
- 14 -
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
supporting medical evidence in making his credibility determination.
As discussed
below, the ALJ gave other clear and convincing reasons to discount Plaintiff’s credibility
concerning the severity and limiting effects of his pain.
Thus, the ALJ properly
considered the lack of objective medical evidence supporting Plaintiff’s claimed
limitations as one of the factors in weighing Plaintiff’s credibility. Rollins, 261 F.3d at
857 (“While subjective pain testimony cannot be rejected on the sole ground that it is not
fully corroborated by objective medical evidence, the evidence is still a relevant factor in
determining the severity of the claimant’s pain and its disabling effects.”) (citing 20
C.F.R. § 404.1529(c)(2)).
ii. Conservative Treatment
In discounting Plaintiff’s testimony, the ALJ observed that Plaintiff has received
routine, conservative treatment.
(A.R. 31, 32).
Generally, “[e]vidence of
‘conservative treatment’ is sufficient to discount a claimant’s testimony regarding
severity of an impairment.” Parra, 481 F.3d at 751; see also Orn v. Astrue, 495 F.3d
625, 638 (9th Cir. 2007) (“Our case law is clear that if a claimant complains about
disabling pain but fails to seek treatment, or fails to follow prescribed treatment, for the
pain, an ALJ may use such failure as a basis for finding the complaint unjustified or
exaggerated.); Meanel v. Apfel, 172 F.3d 1111, 1114 (9th Cir. 1999) (the ALJ properly
considered the physician’s failure to prescribe, and the claimant’s failure to request,
medical treatment commensurate with the “supposedly excruciating pain” alleged).
However, “[d]isability benefits may not be denied because of the claimant’s failure to
obtain treatment he cannot obtain for lack of funds.”
Orn, 495 F.3d at
638 (quoting Gamble v. Chater, 68 F.3d 319, 321 (9th Cir. 1995)) (alteration in original).
Plaintiff implicitly concedes that his treatment has been conservative, asserting
that the ALJ “improperly relied on the history of conservative treatment for his
impairments in assessing credibility.” (Doc. 20 at 18). Plaintiff asserts that the record
shows that his insurance declined to cover certain medications and procedures that his
28
probative of [the claimant’s] pre-DLI disability.”).
- 15 -
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
physicians have recommended.
(Id.).
To support this assertion, Plaintiff cites the
following three pages from the administrative record: A.R. 85, 654, and 819. (Id.).
None of these pages show that Plaintiff’s conservative treatment was a result of lack of
insurance coverage during the relevant period (October 29, 2010 through December 31,
2012).
A.R. 85 is an excerpt from Plaintiff’s testimony at the hearing. Plaintiff’s attorney
asked Plaintiff “what is [Dr. Syal] telling you about the future of your condition?” (A.R.
85). Plaintiff stated “Nothing he can do. I was told once that I could try the pain
stimulator, but I have to have failed back surgery before the insurance covers it.” (Id.).
Plaintiff asserts that his “doctors decided surgery was possible for the thoracic spine
condition, but was likely too risky as far as potentially resulting in complications, so they
declined to perform surgery. (Tr. 641.)” (Doc. 20 at 18). This assertion is not supported
by the record. The record cited by Plaintiff above (A.R. 641) is an October 25, 2013
treatment note by a physician at the Core Institute. The physician stated that there is not
a “neurologically [sic] imperative to surgical intervention” and there “[i]s no evidence of
any ongoing cord compression or neural lesion that would be improved with surgical
intervention.” (Id.). The physician also stated that “[t]he patient has an extremely
complex pain portfolio with components of anger and frustration lability of symptoms
that would not predictably be improved by any surgical intervention familiar to the
examining surgeon.” (Id.).
A.R. 654 and 819 are treatment notes that post-date Plaintiff’s last insured date of
December 31, 2012.
A.R. 654 is an April 4, 2013 treatment note that states that
Plaintiff’s “insurance company denied his MRI and he is here for a re-evaluation.” A.R.
819 is a September 18, 2013 treatment record that indicates that Plaintiff’s insurance
company did not approve Cymbalta for his low back pain, but that the doctor provided
Plaintiff with a sample.
The Court finds that the record does not reflect that Plaintiff's impairments
required more than conservative treatment during the relevant time period. Plaintiff is
- 16 -
1
2
3
4
5
6
7
8
ultimately responsible for providing the evidence to be used in making the RFC
finding. Andrews, 53 F.3d at 1040 (a claimant bears the burden of proving entitlement to
disability benefits); Meanel, 172 F.3d at 1113 (claimant carries burden to present
“complete and detailed objective medical reports” of his or her condition from licensed
medical professionals). Because an ALJ may infer that pain is not disabling if a claimant
seeks only minimal, conservative treatment, the ALJ did not err in concluding that the
conservative treatment Plaintiff has received is inconsistent with Plaintiff's allegations
regarding the severity of his symptoms.
9
10
11
12
13
14
15
iii. Daily Activities
As another reason for discounting Plaintiff’s symptom testimony, the ALJ stated
that Plaintiff
described every day activities that included going to the
movies, taking his dog to the park, using a computer, going
target shooting, riding a motorcycle, driving a utility terrain
vehicle for off-roading, repairing his motorcycles, doing some
light household chores, preparing meals, and taking care of
his finances.
16
(A.R. 31-32). The ALJ found that “[t]he physical and mental capabilities requisite to
17
performing many of the tasks described above as well as the social interactions replicate
18
those necessary for obtaining and maintaining employment.” (A.R. 32). This a clear and
19
convincing reason supported by substantial evidence for discounting Plaintiff’s symptom
20
testimony. See Curry v. Sullivan, 925 F.2d 1127, 1130 (9th Cir. 1990) (upholding denial
21
of disability benefits where claimant could “take care of her personal needs, prepare easy
22
meals, do light housework, and shop for some groceries”); see also Molina, 674 F.3d at
23
1113 (“Even where [daily] activities suggest some difficulty functioning, they may be
24
grounds for discrediting the claimant's testimony to the extent that they contradict claims
25
of a totally debilitating impairment.”).
26
The ALJ’s credibility finding in this case is unlike the brief and conclusory
27
credibility findings that the Ninth Circuit has deemed insufficient in other cases. For
28
example, in Treichler v. Commissioner of Social Sec. Admin., 775 F.3d 1090, 1102-03
- 17 -
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
(9th Cir. 2014), an ALJ stated in a single sentence that “the claimant’s statements
concerning the intensity, persistence and limiting effects of these symptoms are not
credible to the extent they are inconsistent with the above residual functional capacity
assessment.” The Court of Appeals held that stopping after this introductory remark
“falls short of meeting the ALJ’s responsibility to provide a discussion of the evidence
and the reason or reasons upon which his adverse determination is based.” Id. at 1103
(internal quotation marks omitted).
The Court further stated that an ALJ’s “vague
allegation that a claimant’s testimony is not consistent with the objective medical
evidence, without any specific findings in support of that conclusion is insufficient for
our review.” Id. (quoting Vasquez v. Astrue, 572 F.3d 586, 592 (9th Cir. 2009).
In Robbins v. Astrue, 466 F.3d 880, 883-84 (9th Cir. 2006), the Ninth Circuit
found the ALJ’s “fleeting credibility finding” insufficient. In Robbins, the ALJ simply
stated that (i) the claimant’s testimony was “not consistent with or supported by the
overall medical evidence of record” and (ii) “[claimant’s] testimony regarding his alcohol
dependence and abuse problem remains equivocal.” Id. In discussing why the ALJ’s
finding was insufficient, the Court explained that the ALJ did not provide a “narrative
discussion” containing “specific reasons for the finding . . .supported by the evidence in
the record.” Id. at 884-85.
Similarly, in Lester v. Chater, 81 F.3d 821, 833 (9th Cir. 1995), an ALJ simply
concluded that the claimant’s complaints were “not credible” and “exaggerated.” The
Court held that the finding was insufficient as the ALJ did not provide any specific
reasons for disbelieving the claimant other than a lack of objective evidence. Id. at 834.
Here, unlike in Treichler, Robbins, and Lester, the ALJ’s decision goes beyond
making a “fleeting” and conclusory remark that Plaintiff’s testimony is not credible. The
decision discusses the evidence and explains the inconsistencies in the record that the
ALJ found discredited Plaintiff’s testimony.
substantial evidence in the record.
28
- 18 -
The ALJ’s conclusion is supported by
1
2
3
4
5
6
7
8
9
It is possible that a different ALJ would find Plaintiff’s symptom testimony
credible. But it is not the Court’s role to second guess an ALJ’s decision to disbelieve a
Plaintiff’s allegations if the ALJ has articulated specific, clear, and convincing reasons
that are supported by substantial evidence in the record. Fair, 885 F.2d at 603 (“An ALJ
cannot be required to believe every allegation of disabling pain, or else disability benefits
would be available for the asking. . . .”). The Court finds that the reasons provided by the
ALJ for discrediting Plaintiff’s testimony are specific, clear, convincing, and are
supported by substantial evidence in the record. The Court therefore finds that the ALJ
did not err in discrediting Plaintiff’s subjective testimony.
10
11
4. The ALJ Did Not Improperly Discount the Statements of Plaintiff’s
Mother Regarding Plaintiff’s Symptoms
12
A source that is not an acceptable medical source is considered to be an “other
13
source.” 20 C.F.R. 404.1513(d). “Other sources” include physician’s assistants, nurse
14
practitioners, and lay witnesses. 20 C.F.R. § 404.1513. Information from these “other
15
sources” must still be considered even though the information cannot establish the
16
existence of a medically determinable impairment. Id. An other source’s opinion can be
17
rejected as long as the ALJ provides “germane” reasons, such as finding that the opinion
18
is inconsistent with medical evidence. Bayliss v. Barnhart, 427 F.3d 1211, 1218 (9th Cir.
19
2005).
20
Plaintiff’s mother completed two third party function reports on Plaintiff’s behalf.
21
(A.R. 249-58, 297-306). After reviewing the reports, the Court concludes that the ALJ
22
correctly found that “[t]he statements in these reports are of the same general nature as
23
the subjective complaints from the claimant’s testimony.” (A.R. 32). In explaining why
24
he found Plaintiff’s mother’s statement unpersuasive, the ALJ noted that Plaintiff’s
25
mother is not a medical professional. (Id.). This is an invalid reason for rejecting the
26
statements. See SSR 06–3P, 2006 WL 2329939, at *3 (Aug. 9, 2006) (stating that
27
opinions from other sources “are important and should be evaluated on key issues such as
28
impairment severity and functional effects, along with the other relevant evidence in the
- 19 -
1
2
3
4
5
6
file”); Sprague v. Bowen, 812 F.2d 1226, 1232 (9th Cir. 1987) (holding that friends and
family members are in a position to observe a claimant's symptoms and daily activities
and are competent to testify as to the claimant's condition); Tobeler v. Colvin, 749 F.3d
830, 834 (9th Cir. 2014) (“lay witness testimony as to a claimant's symptoms or how an
impairment affects ability to work is competent evidence that cannot be disregarded
without comment”) (emphasis in original).
7
8
9
10
11
12
13
14
15
However, the ALJ also found that “the clinical and diagnostic medical evidence”
discussed in the decision does not support the statements of Plaintiff’s mother. (A.R. 32).
This is a germane reason supported by substantial evidence in the record for discounting
the statements. Therefore, although the ALJ’s first reason for discounting the opinion of
Plaintiff’s mother is invalid, the error is harmless. See Molina, 674 F.3d at 1115 (where
some reasons supporting an ALJ’s credibility analysis are found invalid, the error is
harmless if the remaining valid reasons provide substantial evidence to support the ALJ’s
credibility determination and “the error does not negate the validity of the ALJ’s ultimate
conclusion.”).
16
17
18
19
20
21
22
23
24
25
26
27
28
In addition, any error in failing to provide proper reasons for discounting the third
party function reports is harmless as the statements of Plaintiff's mother duplicate
Plaintiff's testimony, which the ALJ properly discredited. See Valentine v. Comm'r of
Soc. Sec., 574 F.3d 685, 694 (9th Cir. 2009) (holding that because “the ALJ provided
clear and convincing reasons for rejecting [the claimant's] own subjective complaints,
and because [the lay witness’] testimony was similar to such complaints, it follows that
the
ALJ
also
gave
germane
reasons
for
rejecting
[the lay witness’]
testimony”); Molina, 674 F.3d at 1117 (“Where lay witness testimony does not describe
any limitations not already described by the claimant, and the ALJ's well-supported
reasons
for
rejecting
the
claimant's
testimony
apply
equally
well
to
the lay witness testimony, it would be inconsistent with our prior harmless error
precedent to deem the ALJ's failure to discuss the lay witness testimony to be prejudicial
per se.”).
- 20 -
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
5. Plaintiff’s Challenge to the ALJ’s Hypothetical to the VE
In establishing that a claimant can perform other work, an ALJ may rely on a VE’s
testimony. A hypothetical presented to a VE, however, must reflect all of the claimant’s
limitations. DeLorme v. Sullivan, 924 F.2d 841, 850 (9th Cir. 1991) (holding that if a
VE’s hypothetical does not reflect all the claimant’s limitations, then the VE’s testimony
does not support a finding that the claimant can perform jobs in the national economy);
Osenbrock v. Apfel, 240 F.3d 1157 (an ALJ must propose a hypothetical to VE that is
based on medical assumptions supported by substantial evidence in the record that
reflects each of the claimant’s limitations).
Plaintiff argues that “in posing his hypothetical questions to the vocational expert,
the ALJ omitted Plaintiff’s credible allegations, those of the lay witness, and the
limitations assessed by treating doctors . . . .” (Doc. 20 at 21). The Court, however, has
determined that the ALJ did not improperly discount Plaintiff’s symptom testimony, the
opinions of Plaintiff’s mother, and the opinions of Plaintiff’s treating physicians. The
hypothetical that the ALJ posited to the VE included all limitations that the ALJ found
credible. Accordingly, Plaintiff’s final challenge to the ALJ’s decision fails to show
harmful error. See Roy v. Colvin, 656 F. App’x 816, 819 (9th Cir. 2016) (“The ALJ’s
question to the vocational expert was not incomplete because the ALJ properly
discounted or construed the limitations Roy claims should have been included in the
ALJ’s question.”).
III. CONCLUSION
Based on the foregoing, the Court finds that the ALJ’s decision is supported by
substantial evidence and is free from reversible error. Accordingly, the decision of the
Commissioner of Social Security is affirmed.
IT IS THEREFORE ORDERED affirming the decision of the Commissioner of
Social Security. The Clerk of Court shall enter judgment accordingly.
Dated this 14th day of July, 2017.
28
- 21 -
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?