Phillips 66 Company vs. T.M. B. Enterprises Inc et al
Filing
46
MEMORANDUM OPINION AND ORDER AFFIRMING COMMISSIONER by Magistrate Judge Jean P. Rosenbluth. IT IS ORDERED that judgment be entered AFFIRMING the decision of the Commissioner, DENYING Plaintiff's request for remand, and DISMISSING this action with prejudice. IT IS FURTHER ORDERED that the Clerk serve copies of this Order and the Judgment on counsel for both parties. (See Order for details) (bem)
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UNITED STATES DISTRICT COURT
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CENTRAL DISTRICT OF CALIFORNIA
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RAY LEE BRAY,
Plaintiff,
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v.
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CAROLYN W. COLVIN, Acting
Commissioner of Social
Security,
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Defendant.
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) Case No. EDCV 14-1772-JPR
)
)
) MEMORANDUM OPINION AND ORDER
) AFFIRMING COMMISSIONER
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I.
PROCEEDINGS
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Plaintiff seeks review of the Commissioner’s final decision
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denying his application for Social Security disability insurance
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benefits (“DIB”) and supplemental security income benefits
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(“SSI”).
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undersigned U.S. Magistrate Judge under 28 U.S.C. § 636(c).
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matter is before the Court on the parties’ Joint Stipulation,
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filed July 23, 2015, which the Court has taken under submission
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without oral argument.
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Commissioner’s decision is affirmed.
The parties consented to the jurisdiction of the
For the reasons stated below, the
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1
The
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II.
2
BACKGROUND
Plaintiff was born in 1964.
(Administrative Record (“AR”)
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141.)
4
year of college and worked in construction.
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In a Disability Report he stated that he completed one
(AR 160.)1
On February 9, 2011, Plaintiff filed applications for DIB
6
and SSI (AR 141, 145), alleging that he had been unable to work
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since April 11, 2009, because of severe asthma and ankle and back
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problems (AR 159).
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and on reconsideration, he requested a hearing before an
After his applications were denied initially
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Administrative Law Judge.
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September 17, 2012, at which Plaintiff, who was represented by
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counsel, testified, as did a vocational expert.
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a written decision issued September 27, 2012, the ALJ found
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Plaintiff not disabled.
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Appeals Council denied Plaintiff’s request for review.
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This action followed.
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III. STANDARD OF REVIEW
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(AR 79.)
(AR 19-32.)
A hearing was held on
(AR 39-59.)
In
On May 13, 2014, the
(AR 4.)
Under 42 U.S.C. § 405(g), a district court may review the
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Commissioner’s decision to deny benefits.
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decision should be upheld if they are free of legal error and
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supported by substantial evidence based on the record as a whole.
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See id.; Richardson v. Perales, 402 U.S. 389, 401 (1971); Parra
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v. Astrue, 481 F.3d 742, 746 (9th Cir. 2007).
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evidence means such evidence as a reasonable person might accept
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as adequate to support a conclusion.
The ALJ’s findings and
Substantial
Richardson, 402 U.S. at
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27
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At the hearing before the ALJ, however, Plaintiff stated
that he completed seven years of college total at two different
schools but didn’t graduate from either. (AR 41.)
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1
401; Lingenfelter v. Astrue, 504 F.3d 1028, 1035 (9th Cir. 2007).
2
It is more than a scintilla but less than a preponderance.
3
Lingenfelter, 504 F.3d at 1035 (citing Robbins v. Soc. Sec.
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Admin., 466 F.3d 880, 882 (9th Cir. 2006)).
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substantial evidence supports a finding, the reviewing court
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“must review the administrative record as a whole, weighing both
7
the evidence that supports and the evidence that detracts from
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the Commissioner’s conclusion.”
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720 (9th Cir. 1996).
To determine whether
Reddick v. Chater, 157 F.3d 715,
“If the evidence can reasonably support
10
either affirming or reversing,” the reviewing court “may not
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substitute its judgment” for that of the Commissioner.
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720-21.
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IV.
Id. at
THE EVALUATION OF DISABILITY
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People are “disabled” for purposes of receiving Social
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Security benefits if they are unable to engage in any substantial
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gainful activity owing to a physical or mental impairment that is
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expected to result in death or has lasted, or is expected to
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last, for a continuous period of at least 12 months.
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§ 423(d)(1)(A); Drouin v. Sullivan, 966 F.2d 1255, 1257 (9th Cir.
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1992).
42 U.S.C.
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A.
The Five-Step Evaluation Process
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The ALJ follows a five-step sequential evaluation process to
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assess whether a claimant is disabled.
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§§ 404.1520(a)(4), 416.920(a)(4); Lester v. Chater, 81 F.3d 821,
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828 n.5 (9th Cir. 1995) (as amended Apr. 9, 1996).
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step, the Commissioner must determine whether the claimant is
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currently engaged in substantial gainful activity; if so, the
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claimant is not disabled and the claim must be denied.
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20 C.F.R.
In the first
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§§ 404.1520(a)(4)(i), 416.920(a)(4)(i).
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If the claimant is not engaged in substantial gainful
3
activity, the second step requires the Commissioner to determine
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whether the claimant has a “severe” impairment or combination of
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impairments significantly limiting his ability to do basic work
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activities; if not, the claimant is not disabled and his claim
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must be denied.
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§§ 404.1520(a)(4)(ii), 416.920(a)(4)(ii).
If the claimant has a “severe” impairment or combination of
impairments, the third step requires the Commissioner to
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determine whether the impairment or combination of impairments
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meets or equals an impairment in the Listing of Impairments
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(“Listing”) set forth at 20 C.F.R. part 404, subpart P, appendix
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1; if so, disability is conclusively presumed.
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§§ 404.1520(a)(4)(iii), 416.920(a)(4)(iii).
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If the claimant’s impairment or combination of impairments
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does not meet or equal an impairment in the Listing, the fourth
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step requires the Commissioner to determine whether the claimant
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has sufficient residual functional capacity (“RFC”)2 to perform
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his past work; if so, he is not disabled and the claim must be
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denied.
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has the burden of proving he is unable to perform past relevant
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work.
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burden, a prima facie case of disability is established.
§§ 404.1520(a)(4)(iv), 416.920(a)(4)(iv).
Drouin, 966 F.2d at 1257.
The claimant
If the claimant meets that
Id.
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If that happens or if the claimant has no past relevant
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work, the Commissioner then bears the burden of establishing that
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RFC is what a claimant can do despite existing exertional
and nonexertional limitations. §§ 404.1545, 416.945; see Cooper
v. Sullivan, 880 F.2d 1152, 1155 n.5 (9th Cir. 1989).
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the claimant is not disabled because he can perform other
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substantial gainful work available in the national economy.
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§§ 404.1520(a)(4)(v), 416.920(a)(4)(v); Drouin, 966 F.2d at 1257.
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That determination comprises the fifth and final step in the
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sequential analysis.
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Lester, 81 F.3d at 828 n.5; Drouin, 966 F.2d at 1257.
§§ 404.1520(a)(4)(v), 416.920(a)(4)(v);
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B.
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At step one, the ALJ found that Plaintiff had not engaged in
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The ALJ’s Application of the Five-Step Process
substantial gainful activity since April 11, 2009, the alleged
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onset date.
(AR 21.)
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had the severe impairment of degenerative disc disease of the
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lumbar spine with radiculopathy.3
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determined that Plaintiff’s impairments did not meet or equal a
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listing.
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RFC to perform light work with additional restrictions.
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25.)
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pounds occasionally and 10 pounds frequently.
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stand and walk for at least two hours and sit for about six hours
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of an eight-hour day.
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postural activities such as climbing, balancing, stooping,
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kneeling, crouching, and crawling but could not climb ladders,
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ropes, or scaffolds.
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exposure to irritants such as fumes, odors, dusts and gases.”
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(AR 25.)
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Plaintiff could not perform his past relevant work as a
(AR 24.)
At step two, he concluded that Plaintiff
(Id.)
At step three, the ALJ
At step four, he found that Plaintiff had the
(AR 24-
Specifically, Plaintiff could lift, carry, push, or pull 20
(Id.)
(Id.)
(AR 24.)
He could
He could occasionally perform
He was also to “avoid even moderate
Based on the VE’s testimony, the ALJ concluded that
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The ALJ found that Plaintiff’s other alleged impairments
were not severe (AR 21-24), which Plaintiff does not challenge.
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construction superintendent.
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found that Plaintiff could perform jobs existing in significant
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numbers in the national economy.
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him not disabled.
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V.
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(AR 29-30.)
(AR 30.)
At step five, the ALJ
Accordingly, he found
(AR 31.)
DISCUSSION
Plaintiff claims that the ALJ erred in assessing the
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opinions of two treating physicians and Plaintiff’s credibility.
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(J. Stip. at 4.)
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contentions in reverse order.
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A.
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The ALJ Properly Assessed Plaintiff’s Credibility
1.
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For efficiency, the Court addresses Plaintiff’s
Applicable law
An ALJ’s assessment of symptom severity and claimant
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credibility is entitled to “great weight.”
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Sullivan, 877 F.2d 20, 22 (9th Cir. 1989) (as amended); Nyman v.
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Heckler, 779 F.2d 528, 531 (9th Cir. 1985) (as amended Feb. 24,
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1986).
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of disabling pain, or else disability benefits would be available
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for the asking, a result plainly contrary to 42 U.S.C.
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§ 423(d)(5)(A).’”
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Cir. 2012) (quoting Fair v. Bowen, 885 F.2d 597, 603 (9th Cir.
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1989)).
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See Weetman v.
“[T]he ALJ is not ‘required to believe every allegation
Molina v. Astrue, 674 F.3d 1104, 1112 (9th
In evaluating a claimant’s subjective symptom testimony, the
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ALJ engages in a two-step analysis.
See Lingenfelter, 504 F.3d
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at 1035-36.
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has presented objective medical evidence of an underlying
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impairment ‘[that] could reasonably be expected to produce the
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pain or other symptoms alleged.’”
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v. Sullivan, 947 F.2d 341, 344 (9th Cir. 1991) (en banc)).
“First, the ALJ must determine whether the claimant
6
Id. at 1036 (quoting Bunnell
If
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such objective medical evidence exists, the ALJ may not reject a
2
claimant’s testimony “simply because there is no showing that the
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impairment can reasonably produce the degree of symptom alleged.”
4
Smolen v. Chater, 80 F.3d 1273, 1282 (9th Cir. 1996) (emphasis in
5
original).
6
If the claimant meets the first test, the ALJ may discredit
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the claimant’s subjective symptom testimony only if he makes
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specific findings that support the conclusion.
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Astrue, 622 F.3d 1228, 1234 (9th Cir. 2010).
See Berry v.
Absent a finding or
10
affirmative evidence of malingering, the ALJ must provide “clear
11
and convincing” reasons for rejecting the claimant’s testimony.4
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Brown-Hunter v. Colvin, __ F.3d __, No. 13-15213, 2015 WL
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6684997, at *5 (9th Cir. Nov. 3, 2015); Treichler v. Comm’r of
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Soc. Sec. Admin., 775 F.3d 1090, 1102 (9th Cir. 2014); Ghanim v.
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Colvin, 763 F.3d 1154, 1163 & n.9 (9th Cir. 2014).
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consider, among other factors, (1) ordinary techniques of
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credibility evaluation, such as the claimant’s reputation for
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lying, prior inconsistent statements, and other testimony by the
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claimant that appears less than candid; (2) unexplained or
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inadequately explained failure to seek treatment or to follow a
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prescribed course of treatment; (3) the claimant’s daily
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activities; (4) the claimant’s work record; and (5) testimony
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from physicians and third parties.
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Admin., 795 F.3d 1177, 1186 (9th Cir. 2015); Thomas v. Barnhart,
The ALJ may
Rounds v. Comm’r Soc. Sec.
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27
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Defendant objects to the clear-and-convincing standard but
acknowledges that her argument was rejected in Burrell v. Colvin,
775 F.3d 1133, 1136-37 (9th Cir. 2014). (J. Stip at 29 n.7); see
Brown-Hunter v. Colvin, __ F.3d __, No. 13-15213, 2015 WL
6684997, at *5 (9th Cir. Nov. 3, 2015) (reaffirming Burrell).
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278 F.3d 947, 958-59 (9th Cir. 2002).
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finding is supported by substantial evidence in the record, the
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reviewing court “may not engage in second-guessing.”
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F.3d at 959.
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2.
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If the ALJ’s credibility
Thomas, 278
Relevant background
At the hearing, Plaintiff testified that he had had lower-
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back pain for several years before February 2009, when he hurt
8
his back trying to lift a manhole cover off a truck at a
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construction site.
(AR 47-48.)
After the incident, he could not
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get out of bed and took Oxycontin twice a day for 30 days, which
11
seemed to help.
12
(AR 48.)
Plaintiff testified that he had lower-back pain every day,
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and it lasted all day but at different levels.
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scale of zero to 10, level three was a “good day” and he could
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“handle” level five, but he had a “hard time” when the pain was
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“severe,” at level seven.
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for a maximum of two hours and stand for an hour or two.
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44.)
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it” in pain.
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around his house.
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(AR 49.)
On a
He testified that he could sit
(Id.)
(AR
He stated that he could “lift anything” but would “pay for
(AR 45.)
The farthest he could walk was a block
(AR 44-45.)
Plaintiff also testified that he had shooting pain down his
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right leg, and if he used his feet, he had pain down his left leg
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and in his lower back.
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lower-back spasms.
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(AR 53.)
He also experienced sudden
(AR 54.)
Plaintiff testified that he was taking several pain
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medications, including oxycodone, Soma, Norvasc, fentanyl
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patches, and Meloxicam but was going to discontinue Meloxicam
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because it wasn’t helping.
(AR 49-50, 55.)
8
He wanted to change
1
his doctor because he thought his medications weren’t managing
2
his pain.
3
to concentrate to read, he did not have any side effects from his
4
pain medication.
5
discussed surgery with him, but he did not want it because they
6
told him there was a 70 percent chance it would not be
7
successful.
8
9
(AR 50.)
Other than feeling groggy and being unable
(AR 52.)
He testified that his doctors had
(AR 46-47.)
Plaintiff appeared at the hearing in a wheelchair, and he
testified that he used it when he knew he would be “up” for two
10
to three hours, which happened about five times a month.
11
42.)
12
to help with housework, cleaning, and grocery shopping.
13
43.)
He had difficulty showering and bathing but sometimes tried
14
15
(AR
3.
(AR 42-
Analysis
The ALJ found Plaintiff “partially credible because he has
16
some limitations, but not to the extent alleged.”
17
discussed below, he provided clear and convincing reasons for
18
doing so.
19
(AR 25.)
As
The ALJ discounted Plaintiff’s testimony because his alleged
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symptoms and limitations were “inconsistent with the objective
21
medical evidence, which indicates an attempt by [Plaintiff] to
22
exaggerate the severity of his symptoms.”
23
noted that the record contained no treatment notes from April
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2009, the alleged onset date, to mid-2010.
25
although treatment records from July 2010 to August 2012 showed
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that Plaintiff had tenderness and decreased range of motion in
27
his lower extremities, they also documented many instances of
28
negative or only mildly positive straight-leg raises, normal
9
(AR 25.)
(AR 26.)
He first
Further,
1
motor strength, and only mildly reduced sensation.
For example,
2
every treatment note from Plaintiff’s physician at Global Pain
3
Care from November 2011 to August 2012 indicated that Plaintiff
4
had motor strength of five of five and was negative for straight-
5
leg raise in both legs.
6
556, 559, 562, 565.)
7
the neurosurgery clinic at Arrowhead Regional Medical Center, in
8
October 2011, April 2012, and August 2012, showed motor strength
9
of five of five in upper and lower extremities (AR 484, 506,
(AR 535, 538, 541, 544, 547, 550, 553,
Additionally, Plaintiff’s three visits to
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567), “very mildly reduced” sensation in the right leg (AR 484),
11
and negative or only mildly positive results for straight-leg
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raising (AR 506 (mildly positive in right, negative in left), 567
13
(negative in right and left)).
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Plaintiff’s “extreme” description of the severity of his pain,
15
there was no evidence of muscle atrophy in the record.
16
see Meanel v. Apfel, 172 F.3d 1111, 1114 (9th Cir. 1999) (as
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amended) (affirming ALJ’s discounting of claimant’s allegations,
18
including that claimant “did not exhibit muscular atrophy”);
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Spurlock v. Colvin, No. EDCV 14-01521-JEM, 2015 WL 1735196, at *8
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(C.D. Cal. Apr. 16, 2015) (finding that lack of muscle atrophy is
21
legitimate consideration in evaluating claimant’s credibility).
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The ALJ was entitled to consider the lack of objective medical
23
evidence in assessing Plaintiff’s credibility.
24
Barnhart, 400 F.3d 676, 681 (9th Cir. 2005) (“Although lack of
25
medical evidence cannot form the sole basis for discounting pain
26
testimony, it is a factor that the ALJ can consider in his
27
credibility analysis.”); Carmickle v. Comm’r, Soc. Sec. Admin.,
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533 F.3d 1155, 1161 (9th Cir. 2008) (“Contradiction with the
The ALJ also noted that despite
10
(AR 26);
See Burch v.
1
medical record is a sufficient basis for rejecting the claimant’s
2
subjective testimony.”); Lingenfelter, 504 F.3d at 1040 (in
3
determining credibility, ALJ may consider “whether the alleged
4
symptoms are consistent with the medical evidence”).
5
The ALJ also discredited Plaintiff’s allegations because the
6
record showed that he received “routine conservative treatment
7
for complaints [of] back and leg pain.”
8
the “lack of more aggressive treatment such as surgical
9
intervention suggest[ed] [Plaintiff’s] symptoms and limitations
(AR 26.)
(Id.)
Specifically,
10
were not as severe as he alleged.”
Indeed, in June 2011,
11
a physician at the orthopedic clinic told Plaintiff that surgical
12
intervention was “not appropriate” and advised him to continue
13
his pain-management regimen with his primary-care physician.
14
525.)
15
for surgery evaluation, but examination results were generally
16
unremarkable, and the physician noted that Plaintiff needed a new
17
MRI because the most recent MRI was a year old and his symptoms
18
were “waxing and waning.”
19
another MRI until five months later, on March 14, 2012 (AR 502),
20
which he presented at his next visit to the neurosurgery clinic,
21
on April 5, 2012 (AR 484).
22
results of multilevel degenerative disc disease and posterior
23
degenerative facet-joint disease (AR 502), the neurosurgery
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specialist concluded that “no neurosurgery intervention is
25
indicated” and that Plaintiff required “strenuous physical
26
therapy” instead (AR 485).
27
therapy Plaintiff had tried “was not professional physical
28
therapy and it was only done through [Plaintiff’s] friend.”
(AR
In October 2011, Plaintiff went to the neurosurgery clinic
(AR 506.)
But Plaintiff did not get
Even after reviewing the MRI’s
He further noted that the physical
11
(AR
1
484.)
He also indicated that Plaintiff appeared “very strong”
2
and that “since [Plaintiff] is an athlete, physical therapy can
3
truly be beneficial to him.”
4
August 2012, a different physician at the same neurosurgery
5
clinic noted that Plaintiff had failed to do the physical therapy
6
that was prescribed at his last visit.5
7
the doctor did not recommend surgery and instead advised
8
Plaintiff to do physical and occupational therapy and to continue
9
treatment with pain medication.
(AR 484-85.)
Four months later, in
(AR 567.)
(AR 567-68.)
As before,
As the ALJ noted,
10
this evidence contradicted Plaintiff’s testimony that his doctors
11
had recommended surgery but he declined to pursue it because
12
there was a 70 percent chance it would not be successful.
13
46-47.)
14
(AR
Plaintiff also states that he “was not a candidate for
15
surgery because of his other multiple problems.”
(J. Stip. at
16
25.)
17
in June 2011 because of Plaintiff’s unspecified “multiple
18
problems” (AR 525), later, in April and August 2012, neurosurgery
19
specialists did not mention any such issues in concluding that
20
surgery was not appropriate (see AR 485, 567).
21
noted “no neurosurgical lesion at this time amenable with
22
surgery” (AR 567), prescribed continued conservative treatment
23
with pain medication, physical therapy, and possible injections
24
(AR 485, 567), and concluded that Plaintiff did “not need any
25
further neurosurgical followup” (AR 567).
Although an orthopedic specialist advised against surgery
Instead, they
See Riddell v. Astrue,
26
27
5
28
Plaintiff told the doctor he never received the referral
for physical therapy. (AR 567.)
12
1
No. 3:11-CV-381-BR, 2012 WL 1151585, at *8 (D. Or. Apr. 5, 2012)
2
(ALJ properly based credibility determination on conservative
3
treatment when no physician recommended surgery, including
4
neurosurgeon who found that claimant was “neurologically intact”
5
and “no instability in the cervical spine” accounted for his neck
6
pain); Martinez v. Colvin, No. CV 13-6741-SH, 2014 WL 2533784, at
7
*3 (C.D. Cal. June 5, 2014) (ALJ properly discounted claimant’s
8
testimony based on conservative treatment when no physician
9
recommended surgery and claimant was treated with “pain
10
management” and epidural injections).
The ALJ also stated that although Plaintiff testified that
11
12
he needed to use a wheelchair five times a month, there was no
13
evidence in the record that a physician ever actually prescribed
14
one.
15
wheelchair for Plaintiff.
16
doctor who ordered the wheelchair is the same doctor whose
17
assessments of Plaintiff’s condition the ALJ properly rejected,
18
as explained in the next section, and thus any error in the ALJ’s
19
statement was harmless.
20
454 F.3d 1050, 1055 (9th Cir. 2006) (error harmless when it is
21
“inconsequential to the ultimate nondisability determination”);
22
see also Molina, 674 F.3d at 1115.
23
(AR 26; see AR 42.)
In fact, a doctor apparently ordered a
(See AR 414, 423, 430, 456.)
But the
See Stout v. Comm’r, Soc. Sec. Admin.,
Finally, as the ALJ noted, although Plaintiff’s
24
prescriptions for “strong narcotic medication weigh[ed] in [his]
25
favor,” the record indicates that his medications were
26
“relatively effective in controlling [his] symptoms with
27
28
13
1
occasional adjustments,” which was contrary to his testimony.6
2
(AR 26; see, e.g., AR 537, 540, 543, 549, 552, 558, 561.)
3
Plaintiff also received epidural injections and radiofrequency
4
neurotomies, which were sometimes helpful.7
5
(Plaintiff reporting “marked improvement” after Dec. 2010
6
radiofrequency neurotomy), 271 (in Sept. 2010, Plaintiff
7
reporting that epidural injections in past several years had
8
relieved pain), 322 (June 2011 injection provided 30 percent pain
9
relief), 555 (Jan. 2012 injection provided 20 to 30 percent pain
(See AR 252
10
relief for two weeks), 558 (Dec. 2011 injection provided 20 to 30
11
percent pain relief for two weeks).)
12
That orthopedic and neurosurgery specialists recommended
13
treatment with only pain medication and physical therapy was a
14
clear and convincing basis on which to discount Plaintiff’s
15
16
17
18
19
20
21
22
23
24
25
26
27
28
6
Several physicians expressed suspicion that Plaintiff
might be abusing or diverting his narcotic pain medication. (See
AR 207-08 (on Aug. 19, 2010, emergency-room physician writing,
“need to get DOJ report” in notes and noting that Plaintiff was
“very aggressive” in requesting “refill of narcotics” given two
weeks earlier because he had allegedly lost them), 203 (on Sept.
3, 2010, physician refusing to refill pain medication and
explaining to Plaintiff that he had received several pain
medications in August), 201 (on Sept. 17, 2010, physician
reminding Plaintiff to see only one doctor for change in
medication), 272 (on Sept. 27, 2010, nurse practitioner telling
Plaintiff he would receive no early refills and advising him not
to engage in further “diversional behavior”), 522 (on July 3,
2011, emergency-room physician advising Plaintiff that “ER is not
the place for chronic pain [treatment] or refills”).)
7
Radiofrequency neurotomy is a procedure for reducing back
and neck pain using heat generated by radio waves to interfere
with nerves’ ability to transmit pain signals. See
Radiofrequency neurotomy, Mayo Clinic, http://www.mayoclinic.org/
tests-procedures/radiofrequency-neurotomy/basics/definition/
PRC-20013452?p=1 (last updated Nov. 26, 2014).
14
1
complaints of disabling pain.
2
1035, 1040 (9th Cir. 2008) (that claimant “did not seek an
3
aggressive treatment plan” and had favorable response to
4
conservative treatment with physical therapy, transcutaneous-
5
electrical-nerve-stimulation unit, lumbosacral corset, and anti-
6
inflammatory medication undermined allegations of disabling
7
impairment); Parra, 481 F.3d at 751 (evidence of conservative
8
treatment sufficient to discount claimant’s testimony regarding
9
severity of impairment); Walter v. Astrue, No. EDCV 09–1569 AGR,
10
2011 WL 1326529, at *3 (C.D. Cal. Apr. 6, 2011) (ALJ permissibly
11
discredited claimant’s allegations based on conservative
12
treatment consisting of medication, physical therapy, and
13
injection).
14
medication constituted nonconservative care, any error was
15
harmless given the ALJ’s reliance on Plaintiff’s inconsistent
16
statements about surgery and his daily activities, as explained
17
below, and the neurosurgeons’ prescribed conservative care.
18
Carmickle, 533 F.3d at 1162-63 (finding error harmless when ALJ
19
cited other reasons to support credibility determination).
20
See Tommasetti v. Astrue, 533 F.3d
Even if Plaintiff’s injections and narcotic pain
See
Additionally, the ALJ refused to credit Plaintiff’s
21
allegations that his daily activities were “fairly limited”
22
because they could not “be objectively verified with any
23
reasonable degree of certainty” and it was “difficult to
24
attribute that degree of limitation to [Plaintiff’s] medical
25
condition, as opposed to other reasons, in view of the relatively
26
weak medical evidence and other factors discussed.”
27
Plaintiff may be correct that the ALJ improperly discounted his
28
testimony concerning his daily activities because it could not be
15
(AR 26.)
1
objectively verified.
See Altamirano v. Colvin, No. ED CV 12-
2
1862-PLA, 2013 WL 3863956, at *7 (C.D. Cal. July 24, 2013)
3
(noting that “[o]bjective verifiability to a reasonable degree of
4
certainty is not a requirement imposed by law” (citation
5
omitted)); Baxla v. Colvin, 45 F. Supp. 3d 1116, 1128 (D. Ariz.
6
2014) (“that ‘“a fact cannot be verified objectively provides
7
little evidence to support the conclusion that the individual is
8
not being truthful about such fact in any particular instance”’”
9
(citation omitted)), appeal docketed, No. 14-17222 (9th Cir. Nov.
10
7, 2014).
11
activities do not appear to have been as limited as he alleged.
12
As the ALJ noted in particular, in October 2011, Plaintiff
13
reported that he was “extremely involved in sports” but had been
14
“taking it easy” in the last six weeks, and as a result, his pain
15
had improved.
16
precaution when doing excessive physical activity, including
17
fighting, jujitsu, walking, or any other physical activities that
18
he states he does for an extended period of time.”
19
Moreover, in April 2012, Plaintiff reported that he could
20
exercise for 25 minutes and that he used to run three miles but
21
now was capable only of walking six miles.
22
six months later, Plaintiff testified that he could walk no more
23
than around the block.
24
But he correctly found that Plaintiff’s daily
(AR 506.)
The doctor advised that he “take
(AR 506-07.)
(AR 484.)
Less than
(AR 44-45.)
As discussed above, the ALJ was entitled to discount
25
Plaintiff’s allegations based on a lack of objective medical
26
evidence, the inconsistent statements surrounding his surgery and
27
daily activities, and, possibly, the conservative treatment
28
regimen prescribed by Plaintiff’s physicians.
16
In sum, the ALJ
1
provided clear and convincing reasons for finding Plaintiff
2
partially credible.
3
substantial evidence, this Court may not engage in
4
second-guessing.
5
entitled to remand on this ground.
6
B.
See Thomas, 278 F.3d at 959.
Plaintiff is not
The ALJ Properly Assessed the Treating Physicians’
Opinions
7
Plaintiff contends that the ALJ erred in assessing the
8
9
Because those findings were supported by
opinions of treating physicians Andres de la Llana and Nasrin
10
Lopa.
(J. Stip. at 4-10.)
11
remand is not warranted.
12
1.
For the reasons discussed below,
Applicable law
13
Three types of physicians may offer opinions in Social
14
Security cases: (1) those who directly treated the plaintiff, (2)
15
those who examined but did not treat the plaintiff, and (3) those
16
who did neither.
17
opinion is generally entitled to more weight than an examining
18
physician’s, and an examining physician’s opinion is generally
19
entitled to more weight than a nonexamining physician’s.
20
Lester, 81 F.3d at 830.
A treating physician’s
Id.
This is true because treating physicians are employed to
21
cure and have a greater opportunity to know and observe the
22
claimant.
23
opinion is well supported by medically acceptable clinical and
24
laboratory diagnostic techniques and is not inconsistent with the
25
other substantial evidence in the record, it should be given
26
controlling weight.
27
treating physician’s opinion is not given controlling weight, its
28
weight is determined by length of the treatment relationship,
Smolen, 80 F.3d at 1285.
If a treating physician’s
§§ 404.1527(c)(2), 416.927(c)(2).
17
If a
1
frequency of examination, nature and extent of the treatment
2
relationship, amount of evidence supporting the opinion,
3
consistency with the record as a whole, the doctor’s area of
4
specialization, and other factors.
5
416.927(c)(2)-(6).
6
§§ 404.1527(c)(2)-(6),
When a treating physician’s opinion is not contradicted by
7
other evidence in the record, it may be rejected only for “clear
8
and convincing” reasons.
9
Lester, 81 F.3d at 830-31).
See Carmickle, 533 F.3d at 1164 (citing
When it is contradicted, the ALJ
10
must provide only “specific and legitimate reasons” for
11
discounting it.
12
Furthermore, “[t]he ALJ need not accept the opinion of any
13
physician, including a treating physician, if that opinion is
14
brief, conclusory, and inadequately supported by clinical
15
findings.”
16
Soc. Sec. Admin., 359 F.3d 1190, 1195 (9th Cir. 2004).
17
Thomas, 278 F.3d at 957; accord Batson v. Comm’r of
2.
18
Id. (citing Lester, 81 F.3d at 830-31).
Relevant background
Dr. de la Llana treated Plaintiff for his lower-back pain
19
from April to June 2011.
20
a year later, he completed an Authorization to Release Medical
21
Information form, apparently in connection with Plaintiff’s
22
application for state welfare benefits.
23
he checked a box indicating that Plaintiff was unable to work.
24
(Id.)
25
opined that Plaintiff could sit and stand or walk no more than
26
two hours each a day.
27
using his hands or fingers for repetitive motions but was
28
restricted in using his feet for such motions because of muscle
(AR 319-35.)
On April 18, 2012, nearly
(AR 442.)
On the form,
In an attached Physical Capacities form, Dr. de la Llana
(AR 443.)
18
Plaintiff was not restricted in
1
spasms caused by prolonged standing and operating of foot
2
controls.
3
lift or carry even 10 pounds and could not climb, stoop, kneel,
4
crouch, crawl, or reach from below knees to chest.
5
could occasionally balance and reach from chest to above
6
shoulders.
(Id.)
Dr. de la Llana opined that Plaintiff could not
(AR 444.)
He
(Id.)
The ALJ gave “less weight” to Dr. de la Llana’s opinion
7
8
because it reported “extremely severe limitations, but his
9
treatment notes fail to reveal the type of significant clinical
10
and laboratory abnormalities one would expect if [Plaintiff] were
11
in fact disabled.”
12
Llana’s opinion “contrasts sharply with the other evidence of
13
record and is without substantial support from the other evidence
14
of record.”
15
(AR 28.)
The ALJ noted that Dr. de la
(Id.)
Plaintiff saw Dr. Lopa on February 16, 2011, for a referral
16
to a pain-management specialist.
17
on February 24, 2011, for follow-up on lab work and requested
18
that she fill out a form for “social service cash aid.”
19
336.)
20
Information form identical to the one completed by Dr. de la
21
Llana.
22
that Plaintiff was unable to work and had functional limitations
23
that affected his ability to work.
24
Llana, however, Dr. Lopa did not attach a Physical Capacities
25
form specifying what those limitations were.
26
27
28
(AR 339-41.)
He saw her again
(AR
That form was an Authorization to Release Medical
(AR 447.)
3.
On the form, Dr. Lopa checked boxes indicating
(Id.)
Unlike Dr. de la
Analysis
Dr. de la Llana’s opinion was contradicted by the opinions
of the nonexamining state-agency physicians, who opined that
19
1
Plaintiff could lift or carry 20 pounds occasionally and 10
2
pounds frequently and could stand or walk for at least two hours
3
of an eight-hour workday, among other limitations.8
4
355.)
5
neurosurgery specialists who examined Plaintiff, who told
6
Plaintiff to “take precaution when doing excessive physical
7
activity” but did not limit him in any daily activity.
8
07.)
9
reasons supported by substantial evidence for rejecting Dr. de la
10
11
(AR 303,
Dr. de la Llana was also contradicted by one of the
(AR 506-
Thus, the ALJ was required to give specific and legitimate
Llana’s opinion, see Carmickle, 533 F.3d at 1164, which he did.
The ALJ properly gave “less weight” to Dr. de la Llana’s
12
opinion because it was not supported by his treatment notes,
13
which did not document “the type of significant clinical and
14
laboratory abnormalities one would expect if [Plaintiff] were in
15
fact disabled.”
16
Llana saw Plaintiff from April to June 2011, he reviewed only one
(AR 28.)
Indeed, in the five times Dr. de la
17
8
18
19
20
21
22
23
24
25
26
27
28
Plaintiff asserts that the nonexamining state-agency
physicians found him capable only of sedentary work, not light
work. (J. Stip. at 5.) Although the state-agency physician on
initial consideration did indicate a sedentary RFC in his Case
Analysis (AR 309), he also opined on a separate Physical Residual
Functional Capacity Assessment form that Plaintiff was capable of
lifting or carrying 20 pounds occasionally and 10 pounds
frequently (AR 303), which was consistent with the Social
Security Administration’s definition of light work, see
§§ 404.1567(b), 416.967(b) (“Light work involves lifting no more
than 20 pounds at a time with frequent lifting or carrying of
objects weighing up to 10 pounds.”); §§ 404.1567(a), 416.967(a)
(“Sedentary work involves lifting no more than 10 pounds at a
time . . . .”). The state-agency physician on reconsideration
affirmed the “prior physical RFC as written” but did not resolve
the discrepancy. (AR 355.) The discrepancy appears to have been
a clerical error. Indeed, the ALJ reasonably interpreted the
state-agency physicians’ findings as determining that Plaintiff
could perform light work, not sedentary work. (See AR 29.)
20
1
imaging test: a year-old MRI of his lower back, which showed a
2
herniated disc at L5-S1 with mass effect on sacral nerve roots
3
but no significant central-canal stenosis of the lumbar spine.
4
(See AR 322.)
5
significant tenderness on palpation of his lower back and had
6
intact knee reflexes, Dr. de la Llana did not record any clinical
7
findings in his treatment notes supporting the functional
8
limitations he assessed.
9
Indeed, his treatment of Plaintiff consisted mainly of refilling
Other than observations that Plaintiff had
(See AR 320, 324, 328, 331-32, 334-35.)
10
his pain medication while he continued treatment at a pain-
11
management clinic (AR 324, 329) and referring him to specialists
12
in neurosurgery and orthopedics (AR 321, 324, 332).
13
the ALJ’s finding that Dr. de la Llana’s opinion was not
14
supported by his own treatment notes was specific and legitimate
15
and supported by substantial evidence.
16
416.927(c)(3) (more weight given “[t]he more a medical source
17
presents relevant evidence” and “[t]he better an explanation” it
18
provides to support its opinion); Connett v. Barnhart, 340 F.3d
19
871, 875 (9th Cir. 2003) (treating physician’s opinion properly
20
rejected when treatment notes “provide[d] no basis for the
21
functional restrictions he opined should be imposed on
22
[claimant]”); Thomas, 278 F.3d at 957 (“The ALJ need not accept
23
the opinion of any physician, including a treating physician, if
24
that opinion is . . . inadequately supported by clinical
25
findings.”).
26
Accordingly,
See §§ 404.1527(c)(3),
The ALJ also accorded less weight to Dr. de la Llana’s
27
opinion because it “contrast[ed] sharply with” and was not
28
supported by other evidence in the record.
21
(AR 28.)
Indeed, as
1
the ALJ noted, other evidence in the record showed “relatively
2
benign findings.”
3
V.A, numerous treatment notes in the record indicated that
4
Plaintiff had straight-leg raises that were negative or only
5
mildly positive, normal motor strength, and very mildly reduced
6
sensation in his lower extremities.
7
541, 544, 547, 550, 553, 556, 559, 562, 565, 567.)
8
ALJ’s finding that Dr. de la Llana’s opinion was inconsistent
9
with the record was specific and legitimate and supported by
(Id.)
For example, as discussed in Section
(See AR 484, 506, 535, 538,
Thus, the
10
substantial evidence.
11
weight given “the more consistent an opinion is with the record
12
as a whole”); Batson, 359 F.3d at 1195 (“an ALJ may discredit
13
treating physicians’ opinions that are conclusory, brief, and
14
unsupported by the record as a whole . . . or by objective
15
medical findings”).
16
See §§ 404.1527(c)(4), 416.927(c)(4) (more
Plaintiff argues that the ALJ erred in failing to address
17
the opinion of treating physician Lopa.
18
see AR 447.)
19
was harmless.
20
Cir. 2015) (holding that ALJ errs if he “totally ignore[s]”
21
treating-physician opinion but harmless-error analysis applies).
22
Dr. Lopa’s one-page opinion consisted only of checked-off boxes
23
indicating that Plaintiff was not able to work and had functional
24
limitations, without specifying what those limitations were.
25
447); cf. Molina, 674 F.3d at 1111 (ALJ may “permissibly reject
26
check-off reports that do not contain any explanation of the
27
bases of their conclusions” (alterations and citation omitted)).
28
Further, Dr. Lopa completed the form after seeing Plaintiff only
(J. Stip. at 7-10 & n.2;
Although the ALJ erred by not doing so, the error
See Marsh v. Colvin, 792 F.3d 1170, 1172-73 (9th
22
(AR
1
two times total, over a two-week period, beginning about a week
2
after Plaintiff filed his Social Security applications.
3
41 (on Feb. 16, 2011, Plaintiff requesting “referral to pain
4
management”), 336 (on Feb. 24, 2011, Plaintiff requesting “form
5
fill out for social service cash aid”)); see Dominguez v. Colvin,
6
927 F. Supp. 2d 846, 858-59 (C.D. Cal. 2013) (ALJ properly
7
rejected treating-source opinion when physician completed
8
medical-source statement after seeing claimant only twice); cf.
9
Marsh, 792 F.3d at 1171-72 (error not harmless because ALJ failed
(AR 339-
10
to mention progress notes spanning three years).
11
Dr. de la Llana, Dr. Lopa’s treatment of Plaintiff in those two
12
sessions consisted only of referring him to a pain-management
13
specialist, refilling his medications, and prescribing
14
“conservative therapy” with massage, a warm compress, and
15
exercise as tolerated.
16
recommended that Plaintiff perform “brisk walking” for 30 minutes
17
a day at least five days a week (along with other exercise) (AR
18
341), contradicting Plaintiff’s testimony that he could walk only
19
around the block.
20
any clinical support for the functional limitations she assessed
21
on the Authorization to Release Medical Information form.
22
§§ 404.1527(c)(3), 416.927(c)(3); Connett, 340 F.3d at 875;
23
Thomas, 278 F.3d at 957.
24
address Dr. Lopa’s opinion was harmless.
25
(AR 338, 341.)
And, as with
Indeed, Dr. Lopa
Thus, her treatment notes failed to provide
See
Accordingly, the ALJ’s failure to
Plaintiff is not entitled to remand on this ground.9
26
27
28
9
Plaintiff claims that the ALJ should have ordered a
consultative examination. (J. Stip. at 9.) An ALJ has broad
(continued...)
23
1
2
VI.
CONCLUSION
Consistent with the foregoing, and under sentence four of 42
3
U.S.C. § 405(g),10 IT IS ORDERED that judgment be entered
4
AFFIRMING the decision of the Commissioner, DENYING Plaintiff’s
5
request for remand, and DISMISSING this action with prejudice.
6
IT IS FURTHER ORDERED that the Clerk serve copies of this Order
7
and the Judgment on counsel for both parties.
8
9
DATED: November 17, 2015
____________________________
JEAN ROSENBLUTH
U.S. Magistrate Judge
10
11
12
13
14
15
16
9
17
18
19
20
21
22
23
24
25
26
27
28
(...continued)
discretion in determining whether to order a consultative
examination and may do so when “ambiguity or insufficiency in the
evidence . . . must be resolved.” Reed v. Massanari, 270 F.3d
838, 842 (9th Cir. 2001) (citation omitted); §§ 404.1519a(b),
416.919a(b). Here, the ALJ found the evidence sufficient to
support a decision. (See AR 29.) He determined that Plaintiff
was capable of a limited range of light work after reviewing
medical-opinion evidence not only from Dr. de la Llana and the
nonexamining state-agency physicians but also from Jamshid
Mistry, a neurosurgery specialist, and from a physician’s
assistant to Zoheir El-Hajjanoi, M.D., who both concluded only
that Plaintiff should reduce excessive physical activity. (See
AR 226, 506-07.) Thus, the ALJ was not required to order a
consultative examination.
10
That sentence provides: “The [district] court shall have
power to enter, 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
cause for a rehearing.”
24
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