Richard Boyd Cooper v. Carolyn W. Colvin

Filing 26

MEMORANDUM OPINION by Magistrate Judge Alka Sagar. The decision of the Commissioner is AFFIRMED. (See Order for complete details) (afe)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 RICHARD BOYD COOPER, ) ) ) ) ) ) ) ) ) ) ) ) 11 Plaintiff, 12 v. 13 14 NANCY A. BERRYHILL,1 Acting Commissioner of Social Security, 15 Defendant. 16 Case No. CV 16-08925-AS MEMORANDUM OPINION 17 I. 18 PROCEEDINGS 19 20 On December 1, 2016, Plaintiff filed a Complaint seeking review 21 of the denial of his application for Disability Insurance Benefits. 22 (Docket Entry No. 1). 23 the undersigned United States Magistrate Judge. 24 11-12). The parties have consented to proceed before (Docket Entry Nos. On April 27, 2017, Defendant filed an Answer along with the 25 1 26 27 28 Nancy A. Berryhill is now the Acting Commissioner of the Social Security Administration and is substituted in for Acting Commissioner Caroyln W. Colvin in this case. See 42 U.S.C. § 205(g). 1 1 Administrative Record 2 November 27, 2017, the parties filed a Joint Stipulation (“Joint 3 Stip.”), 4 Plaintiff’s claims. setting (“AR”). forth (Docket their Entry respective Nos. 15-16). positions On regarding (Docket Entry No. 25). 5 The Court has taken this matter under submission without oral 6 7 argument. See C.D. Cal. L.R. 7-15. 8 9 II. BACKGROUND AND SUMMARY OF ADMINISTRATIVE DECISION AND PRIOR PROCEEDINGS 10 11 12 On May 17, 2011, Plaintiff, formerly employed as a therapeutic 13 counselor (see AR 38-40, 182-84), filed an application for Disability 14 Insurance Benefits, alleging a disability onset date of April 27, 15 2011. 16 initially on October 7, 2011, and on reconsideration on February 12, 17 2012. (AR 156-57). The Commissioner denied Plaintiff’s application 18 19 On April 3, 2013, Administrative Law Judge Eileen Burlison (“ALJ 20 Burlison”), heard testimony from Plaintiff, who was represented by 21 counsel, and vocational expert (“VE”) Valerie Williams. (See AR 35- 22 55). 23 Plaintiff’s application. 24 Plaintiff’s request to review ALJ Burlison’s decision on October 21, 25 2014. 26 Complaint in this Court seeking review of ALJ Burlison’s decision. 27 (Richard Boyd Cooper v. Carolyn W. Colvin, Case No. CV 14-9611-AS; 28 2 On May 2, 2013, (See AR 1-4, 8). ALJ Burlison (See AR 14-21). issued a decision denying The Appeals Council denied On December 16, 2014, Plaintiff filed a 1 Docket Entry No. 1). 2 Burlison’s decision and remanded the matter based on ALJ Burlison’s 3 failure 4 testimony was not credible. 5 77). 6 Decision and remanded the matter. to set On December 7, 2015, this Court vacated ALJ forth the reasons for finding that Plaintiff’s (Id.; Docket Entry Nos. 16-17; AR 566- On January 17, 2016, the Appeals Council vacated ALJ Burlison’s (AR 581). 7 8 9 On remand, on July 12, 2016, a different ALJ, Roger E. Winkelman (“ALJ”), heard testimony from Plaintiff, who was represented 10 counsel, and VE Alan E. Cummings. 11 2016, 12 (See AR 446-55). 13 found at step one that Plaintiff has not engaged in substantial 14 gainful activity since March 31, 2011, the alleged onset date. 15 448). 16 following 17 cervical and lumbar spine, a small tear of the medial meniscus and 18 lateral meniscus of the right knee, and hepatitis C.” 19 At step three, the ALJ determined that Plaintiff does not have an 20 impairment or combination of impairments that meet or medically equal 21 the severity of any of the listings enumerated in the regulations. 22 (AR 449). 23 Capacity (“RFC”)2 to perform light work,3 except that he was “limited the At ALJ issued step severe a decision (See AR 475-509). by On August 4, denying Plaintiff’s application. Applying the five-step sequential process, the ALJ two, the ALJ impairments: determined that degenerative Plaintiff disc had disease of (AR “the the (AR 448). The ALJ found that Plaintiff had the Residual Functional 24 2 25 A Residual Functional Capacity is what a claimant can still do despite existing exertional and nonexertional limitations. See 20 C.F.R. § 404.1545(a)(1). 26 27 28 3 “Light work involves lifting no more than 20 pounds at a time 3 1 to occasional performance of postural activities and should avoid 2 walking on uneven terrain.” 3 the VE’s hearing testimony, the ALJ determined that Plaintiff could 4 perform his past relevant work as a counselor-therapist as it was 5 actually and generally performed. 6 concluded that Plaintiff was not under a disability as defined by the 7 Social Security Act, from March 31, 2011, through June 30, 2015, the 8 date last insured. (AR 449-54). At step four, relying on (AR 454). Accordingly, the ALJ (AR 454-55). 9 10 The ALJ’s decision subsequently became the final decision of the 11 Commissioner, allowing this Court to review it. 12 See 42 U.S.C. § 405(g).4 13 III. 14 STANDARD OF REVIEW 15 16 This Court reviews the Administration’s decision to determine if 17 it is free of legal error and supported by substantial evidence. 18 Brewes v. Comm’r, 682 F.3d 1157, 1161 (9th Cir. 2012). 19 evidence” is more than a mere scintilla, but See “Substantial less than a 20 21 22 23 24 with frequent lifting or carrying of objects weighing up to 10 pounds. Even though the weight lifted may be very little, a job is in this category when it requires a good deal of walking or standing, or when it involves stitting most of the time with some pushing and pulling of arm or leg controls.” 20 C.F.R. §§ 404.1567(b), 416.967(b). 25 4 26 27 28 The Court has not been able to locate in the record Plaintiff’s request for the Appeals Council to review the ALJ’s Decision or the Appeals Council’s denial of that request. 4 1 preponderance. Garrison v. Colvin, 759 F.3d 995, 1009 (9th Cir. 2 2014). 3 “a court must consider the record as a whole, weighing both evidence 4 that supports and evidence that detracts from the [Commissioner’s] 5 conclusion.” 6 2001) (internal quotation omitted). 7 can support either affirming or reversing the ALJ’s conclusion, [a 8 court] 9 Robbins v. Soc. Sec. Admin., 466 F.3d 880, 882 (9th Cir. 2006). To determine whether substantial evidence supports a finding, may Aukland v. Massanari, 257 F.3d 1033, 1035 (9th Cir. not substitute [its] As a result, “[i]f the evidence judgment for that of the ALJ.” 10 IV. 11 PLAINTIFF’S CONTENTIONS 12 Plaintiff alleges that the ALJ failed to (1) provide specific 13 14 and legitimate reasons for rejecting the opinions of Plaintiff’s 15 treating physicians; (2) find that Plaintiff did not meet Listed 16 Impairment 1.04A; and (3) properly consider Plaintiff’s testimony. 17 (See Joint Stip. at 6-13, 23-26, 29-35). 18 V. 19 DISCUSSION 20 After consideration of the record as a whole, the Court finds 21 22 that the Commissioner’s findings are supported 23 by substantial evidence and are free from material legal error.5 24 25 26 27 28 5 The harmless error rule applies to the review of administrative decisions regarding disability. See McLeod v. Astrue, 640 F.3d 881, 886-88 (9th Cir. 2011); Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005) (an ALJ’s decision will not be reversed for errors that are harmless). 5 1 A. The ALJ Properly Rejected the Opinions of Plaintiff’s Treating Physicians, Lawrence Glass, D.O., and L.I. Goldstein, M.D. 2 3 4 Although a treating physician’s opinion is generally afforded 5 the greatest weight in disability cases, it is not binding on an ALJ 6 with 7 determination of disability. 8 359 F.3d 1190, 1195 (9th Cir. 2004); Magallanes v. Bowen, 881 F.2d 9 747, 751 (9th Cir. 1989). respect to the existence of an impairment or the ultimate Batson v. Comm’r of Soc. Sec. Admin., The weight given a treating physician’s 10 opinion depends on whether it is supported by sufficient medical data 11 and is consistent with other evidence in the record. 12 404.1527(b)-(d). 13 more 14 physician’s 15 physician’s.” 16 2001); see also Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1995). weight 20 C.F.R. § “Generally, a treating physician’s opinion carries than an opinion examining carries physician’s, more weight and than an examining a reviewing Holohan v. Massanari, 246 F.3d 1195, 1202 (9th Cir. 17 18 If a treating doctor’s opinion is not contradicted by another 19 doctor, the ALJ can reject the treating doctor’s opinion only for 20 “clear and convincing reasons.” 21 1155, 1164 (9th Cir. 2008); Lester, 81 F.3d at 830. 22 doctor’s opinion is contradicted by another doctor, the ALJ must 23 provide “specific and legitimate reasons” for rejecting the treating 24 doctor’s opinion. 25 Reddick v. Chater, 157 F.3d 715, 725 (9th Cir. 1998); Lester, 81 F.3d 26 at 830. “The ALJ can meet this burden by setting out a detailed and 27 thorough summary 28 Carmickle v. Commissioner, 533 F.3d If the treating Orn v. Astrue, 495 F.3d 625, 632 (9th Cir. 2007l); of the facts and 6 conflicting clinical evidence, 1 stating his interpretation thereof, and making findings.” Trevizo v. 2 Berryhill, 871 F.3d 664, 675 (9th Cir. 2017) (quoting Magallanes v. 3 Bowen, 881 F.2d 747, 751 (9th Cir. 1989)). 4 5 Plaintiff asserts that the ALJ failed to provide specific and 6 legitimate reasons for rejecting the opinions of Plaintiff’s treating 7 physicians, Dr. Glass and Dr. Goldstein. 8 Dr. 9 hepatologist, 10 Glass, an osteopathic treated (See Joint Stip. at 6-13). physician, Plaintiff for and multiple Dr. Goldstein, years and a provided similar opinions of Plaintiff’s limitations. 11 12 Dr. Glass, 13 December 14 medical source statement, both dated June 16, 2011. 15 35). 16 C and stated that Plaintiff’s prognosis was “poor.” 17 235). 18 walking, apparently due to a “torn ACL [and] meniscus.” 19 He opined that Plaintiff (1) can stand or walk for only “[l]ess than 20 2 hours in an 8 hour workday,” due to advancing rheumatoid arthritis 21 and hepatitis C, (AR 234); (2) can sit for only one hour due to “his 22 back [and] neck pain,” (id.); (3) must change position every ten to 23 twenty minutes due to his arthritis, (AR 235); (4) can lift only 24 “[l]ess than 10 pounds,” for no more than five minutes per two hour 25 period, due to rheumatoid arthritis and hepatitis C, (AR 234); (5) 26 can 27 stooping, kneeling, crouching or crawling, (AR 235); (6) is limited 28 7 2007, who had completed been a treating Plaintiff musculoskeletal monthly questionnaire since and a (AR 231-33, 234- He diagnosed Plaintiff with rheumatoid arthritis and hepatitis (AR 231, 233, He indicated that Plaintiff requires a cane for standing or never engage in activities involving climbing, (AR 232). balancing, 1 in his reaching, handling and fingering, (id.); and (7) has “severely 2 limited” range of motion in his knees, hips, wrists and shoulders,” 3 (id.). Dr. Glass concluded that Plaintiff “cannot work.” (Id.). 4 Dr. Goldstein, who had treated Plaintiff about every three to 5 6 six months between 1991 and 2011, completed 7 statement on August 2, 2012. 8 with hepatitis C, with primary symptoms of fatigue, weakness and 9 increased headaches, and stated that the prognosis was poor. (AR 104-08). a medical source He diagnosed Plaintiff (AR 10 104). He rated Plaintiff’s fatigue as a nine out of ten, and rated 11 Plaintiff’s neck and spine pain as a nine out of ten. 12 opined that Plaintiff (1) can sit, stand or walk for no more than two 13 hours in an eight hour day, (AR 105); (2) does not require a cane for 14 occasional standing or walking, (id.); (3) can “Never” lift and carry 15 any weight, (AR 105); (4) has significant limitations in repetitive 16 reaching, handling, fingering or lifting, (id.); and (5) must avoid 17 stooping, pushing, kneeling, pulling and bending, (AR 106). 18 Goldstein also indicated that Plaintiff’s condition interferes with 19 his ability to keep his neck in a constant position, and Plaintiff 20 cannot “do a full-time competitive job that requires that activity on 21 a sustained basis.” 22 cannot handle even low stress due to his sickliness, fatigue and poor 23 concentration. (AR 106). (Id.). He Dr. He further opined that Plaintiff (Id.). 24 25 The ALJ gave no weight to Dr. Glass’s and Dr. Goldstein’s 26 opinions that Plaintiff cannot work, as this is an issue reserved for 27 the Commissioner, but otherwise gave their opinions “little weight.” 28 8 1 (AR 451-52). 2 doctors’ opinions were “not consistent with the longitudinal record, 3 including the activities of [Plaintiff] that included kayaking or at 4 least assisting his daughter or daughters in kayaking by lifting a 5 kayak full of water.” 6 kayak full of water” appears to come from a treatment note dated 7 October 8 history, that Plaintiff “had a popped [sic] in his back in lifting a 9 kayak full of water recently.” 31, One prominent reason for this assessment is that the 2011, (AR 452). which The ALJ’s reference to “lifting a states, as part (AR 258). of Plaintiff’s medical The ALJ referenced this 10 note elsewhere in the decision, remarking that “[t]his activity is 11 inconsistent 12 [Plaintiff] at that time.” with the level of limitation being claimed by (AR 453). 13 Plaintiff contends that the ALJ “failed to develop the record 14 15 regarding the frequency and occurrence 16 kayaking.” 17 unnecessary. 18 of water around October 2011 – after his pain had allegedly become so 19 unbearable that he “just literally . . . couldn’t work anymore,” (AR 20 498) – conflicts with the opinions of Dr. Glass and Dr. Goldstein. 21 Dr. Glass opined that Plaintiff can lift only “[l]ess than 10 pounds” 22 and cannot balance, stoop, kneel or crouch. 23 indicated that Plaintiff can never lift or carry any weight and must 24 avoid stooping, pushing, kneeling, pulling and bending. 25 106). 26 would not permit even attempting to lift a kayak full of water or (Joint Stip. 11-12). activities involved in However, further information was The mere fact that Plaintiff was lifting a kayak full (AR 234). Dr. Goldstein (AR 105, Their opinions portray a person whose debilitating condition 27 28 of 9 1 being involved in the kind of situation in which such an activity 2 might arise. 3 Dr. 4 Glass’s and Dr. Goldstein’s assessments of Plaintiff’s 5 functional limitations conflict with other evidence in the record as 6 well, including Plaintiff’s own statements. 7 he “probably [cannot] lift more than about 10 or 15 pounds.” 8 487). 9 2011, Plaintiff checked a box to indicate that “[p]ain prevents [him] 10 Plaintiff testified that (AR On a form Plaintiff completed for Dr. Regan on October 27, from lifting heavy weights but [he] can manage.” (AR 410). 11 12 The ALJ also discounted Dr. Glass’s opinion because the doctor 13 “reported a torn right ACL, but there is no MRI or other proof of 14 such a condition.” 15 Plaintiff’s “torn ACL [and] meniscus” as the basis for his opinion 16 that Plaintiff requires a cane for standing or walking. 17 Plaintiff contends that the ALJ was impermissibly “cherry-picking” by 18 singling out this one reference to a “torn ACL” to discount Dr. 19 Glass’s opinion. 20 right knee MRI shows other injuries, including a torn meniscus, that 21 “substantiates and supports Dr. Glass’s opinion requiring a cane to 22 ambulate.” 23 ALJ may have been referring to a “torn ACL relating to the surgery 24 performed years ago.” 25 explanations for why Dr. Glass noted a torn ACL despite an absence of 26 supporting evidence, the ALJ reasonably found that the notation was (AR 452). As noted above, Dr. Glass cited (Joint Stip. at 8). (Id. (citing AR 227)). (Id.). Plaintiff argues that the Plaintiff also suggests that the Although there may be various possible 27 28 (AR 232). 10 1 contradicted by objective medical evidence (the MRI) and properly 2 considered this as a basis to accord less weight to the opinion. 3 Other evidence in the record also undermines Dr. Glass’s opinion 4 5 that Plaintiff required a cane. Plaintiff did not have a cane at the 6 hearing before the ALJ. 7 (AR 490). 8 have an answer.” 9 “knew it was right up the elevator and out the door.” He stated that he left his cane in the car. When asked why he did not bring it in, he said, “I don’t (AR 502). Pressed to explain, he stated that he (AR 502). 10 Plaintiff did not have a cane when Dr. Ruben Ustaris, M.D. examined 11 him on August 30, 2011. 12 Glass, Dr. Goldstein opined that Plaintiff does not require a cane 13 for occasional standing or walking. (AR 246). Moreover, in contrast to Dr. (AR 105). 14 The ALJ discounted Dr. Goldstein’s opinion partly because he 15 16 “did 17 support his opinion objective findings and subjective 18 findings.” (AR 19 contains 20 documents 21 brief, 22 laboratory blood test data. 23 supporting reasoning and evidence was a legitimate basis to discount 24 it. See Thomas v. Barnhart, 278 F.3d 947, 957 (9th Cir. 2002) (“The 25 ALJ need 26 treating 27 inadequately supported by clinical findings.”). 28 not very that Dr. minimal Dr. fragmented not 452). accept physician, largely the if complaints (AR reasoning based on consistent with the medical 104-08). apparently provided illegible treatment (AR 236-43). opinion that medical Goldstein’s notations. Goldstein and with of opinion 11 source The are statement only other a few very notes and some The opinion’s lack of any physician, is brief, including conclusory, a and 1 The ALJ also found that the severity of Dr. Goldstein’s opined 2 limitations conflicted with Plaintiff’s conservative pain treatment. 3 The ALJ remarked that if Plaintiff had actually been experiencing 4 “the level of pain and difficulty described by Dr. Goldstein, it 5 seems unlikely that he would postpone surgery for years, and cease 6 taking all pain medication.” 7 stop taking pain medications since as early as October 2011, (see AR 8 410 (questionnaire dated October 27, 2011), and to postpone surgery 9 for years reasonably suggest that his pain was not a nine out of ten 10 (AR 451). in severity, as Dr. Goldstein opined. Plaintiff’s decisions to (AR 104). 11 12 The ALJ also noted, apparently with respect to Dr. Goldstein’s 13 opinion and the limitations related to hepatitis C, that Plaintiff 14 “did have some treatment [for hepatitis C], and the condition went 15 into remission according to [Plaintiff].” 16 legitimate reason to discount Dr. Goldstein’s opinion. 17 the serious limitations that Dr. Goldstein described and apparently 18 attributed to hepatitis C, Plaintiff’s hearing testimony suggests 19 that his hepatitis C was not debilitating. 20 3, 2013 (before ALJ Burlison), Plaintiff testified that he was taking 21 medication only for diabetes, not hepatitis C, and the only effect 22 that he noted about his hepatitis is that it “seems to aggravate the 23 diabetes.” 24 indicated (through his counsel) that his hepatitis C condition was in 25 remission. (AR 41, 46). This is another Contrary to At the hearing on April At the hearing on July 12, 2016, Plaintiff (AR 481). 26 27 28 (AR 452). 12 1 While giving “little weight” to the opinions of Dr. Glass and 2 Dr. Goldstein, the ALJ gave “greater weight” to the opinions of 3 consultative examiner Dr. Ruben Ustaris, M.D., and the state agency 4 medical advisors because he found them to be “far more consistent 5 with the longitudinal record.” (AR 452). 6 7 Dr. Ustaris examined Plaintiff on August 30, 2011. (AR 244-48). 8 He noted that Plaintiff drove himself to the exam. (AR 245). 9 described Plaintiff as “alert, oriented, and not in acute distress,” 10 though appearing “weak and fatigued.” 11 “walking independently, and [did] not require the use of assistive 12 device 13 examination, 14 joint swelling or crepitus,” (AR 245); (2) “[n]o weakness, numbness, 15 syncope 16 difficulty with coordination,” (id.); (4) “no palpable tenderness” in 17 the back, (AR 246); (5) grossly normal range of motion in shoulders, 18 elbows, wrists, hips, knees and ankles, although there was “pain on 19 full extension” in his left knee, (AR 247); (6) “[n]ormal muscle bulk 20 and tone without atrophy,” with full strength “throughout without 21 focal motor deficits,” (id.); and (7) intact sensation throughout, 22 (id.). 23 force using the right hand, and 35 pounds of force using the left 24 hand,” (AR 245); (2) “lift and carry 50 pounds occasionally and 25 25 pounds 26 basis,”; (4) “walk and stand six hours out of an eight-hour workday 27 with normal breaks,” (id.); (5) “sit six hours out of an eight-hour 28 13 for or ambulation.” that (AR Plaintiff 246). had light-headedness,” (AR 246). He Dr. (1) Ustaris “[n]o (id.); Plaintiff was observed, myalgias, (3) “[n]o upon arthralgias, headaches or He found that Plaintiff could (1) “generate 40 pounds of frequently,” (AR 248); (3) “push and pull on a frequent 1 workday with normal breaks,” (id.); and (6) “climb, balance, kneel 2 and crawl occasionally,” (id.). 3 4 Both the state agency non-examining consultants, Dr. Pan and Dr. 5 Chiang, reviewed the record and concluded that Plaintiff was capable 6 of light work. 7 especially 8 adopted the more restrictive limitation in the RFC. 9 see Thomas, 278 F.3d at 957 (“The opinions of non-treating or non- 10 examining physicians may also serve as substantial evidence when the 11 opinions are consistent with independent clinical findings or other 12 evidence in the record”). (AR 60-64). consistent with The ALJ found these opinions to be the evidence, and thus appropriately (AR 449, 452); 13 The Court finds that the ALJ properly rejected Dr. Glass’s and 14 15 Dr. Goldstein’s opinions by articulating specific and legitimate 16 reasons that are supported by substantial evidence in the record. 17 18 19 B. The ALJ Did Not Err in Finding that Plaintiff’s Impairments or Combination of Impairments Did Not Meet or Equal Listing 1.04A 20 21 If a claimant suffers a severe impairment, the ALJ is required 22 to decide whether the impairment meets or equals one of the listed 23 impairments. 24 900 F.2d 172, 174 (9th Cir. 1990). Disability is presumed if a 25 claimant’s of 26 medically equivalent to one of the listed impairments. 27 20 C.F.R. § 404.1520(d); Bowen v. Yuckert, 482 U.S. 137, 141-42 28 14 See 20 C.F.R. § 404.1520(c), (d); Marcia v. Sullivan, impairment or combination impairments meets or is Id. at 175; 1 (1987); Lewis v. Apfel, 236 F.3d 503, 514 (9th Cir. 2001); Barker v. 2 Secretary of Health & Human Servs., 882 F.2d 1474, 1477 (9th Cir. 3 1989). 4 medically 5 criteria of the listing.” 6 v. Zebley, 493 U.S. 521, 531 (1990). 7 impairment cannot be met solely based on a diagnosis. 8 404.1525(d); see also Key v. Heckler, 754 F.2d 1545, 1549-50 (9th 9 Cir. 1985). An impairment meets a listed impairment if a claimant has “a determinable impairment(s) that satisfies all of the 20 C.F.R. § 404.1525(d); see also Sullivan The criteria of a listed 20 C.F.R. § An impairment is “medically equivalent to a listed 10 impairment . . . if it is at least equal in severity and duration to 11 the criteria of any listed impairment.” 12 Young 13 impairment is not described in the listed impairments, or if the 14 combination 15 impairments, the determination of medical equivalence is based on a 16 comparison 17 closely analogous listed impairments.” 18 (3). 19 about [his or her] impairment(s) and its effect on [a claimant] that 20 is 21 psychological consultants. v. Sullivan, of of 911 F.2d impairments findings 180, 181 does not (concerning a 20 C.F.R. § 404.1526(a); (9th meet Cir. one claimant) 1990). of “with the If an listed those for 20 C.F.R. § 404.1526(b)(2), The decision is based on “all evidence in [a claimant’s] record relevant to this finding” and on designated medical or 20 C.F.R. § 404.1526(c). 22 23 The ALJ stated that he “considered Listings 1.02 and 1.04” and 24 concluded that “[t]he evidence does not support a finding of the 25 criteria required to meet a listing.” 26 state agency reviewing physicians, Dr. Pan and Dr. Chiang, found that 27 Plaintiff met any of the Listings. 28 (AR 449). (AR 62, 73). 15 Neither of the Plaintiff claims that he met all the criteria for Listing 1.04A. 1 2 (Joint Stip. at 24-26). Listing 1.04 requires “[d]isorders of the 3 spine (e.g., herniated nucleus pulposus, spinal arachnoditis, spinal 4 stenosis, 5 arthristis, verterbral fracture), resulting in compromise of a nerve 6 root (including the cauda equina) or the spinal cord.” 7 404, Subpart P, Appendix 1, Listing of Impairments 1.04. 8 Listing 9 compression osteoarthritis, 1.04A degenerative specifically characterized motion by “Evidence neuro-anatomic nerve distribution 13 positive straight-leg raising test (sitting and supine).” involvement of (atrophy pain, or is loss of root 12 there motor Further, associated muscle weakness or muscle weakness) accompanied by sensory if spine, 20 C.F.R. § 11 and, the of facet limitation loss of disease, 10 reflex of requires: disc the lower with back, Id. 14 15 According to Plaintiff, the record establishes that he suffers 16 from “motor loss and weakness,” as well as “sensory or reflex loss,” 17 among the other criteria in Listing 1.04A. 18 Dr. Ustaris found upon examination on August 30, 2011 that Plaintiff 19 has full motor strength and intact sensation. 20 2014, orthopedic physician Leonel A. Hunt, M.D., examined Plaintiff 21 and observed “no gross motor or sensory deficits.” (Id. at 2-3). (AR 247). However, On April 1, (AR 660). 22 23 Plaintiff also claims he had a positive straight leg raising 24 test, as required 25 impairment. 26 discounted the positive test due to an inconsistency in the record (Joint to meet Stip. at Listing 26). 27 28 16 1.04A based However, the on ALJ lower back reasonably 1 suggesting that the positive test was not objectively valid. 2 452). (AR The ALJ stated: 3 4 The straight-leg raising test requires a subjective input 5 from [Plaintiff], and in this August 30, 2011 examination 6 [by consultative examiner Dr. Ustaris], [Plaintiff] claimed 7 pain during the test. 8 2011, [Plaintiff] did not complain of pain on straight-leg 9 raising test when examined by Dr. John Regan . . . . Two months later, on October 31, 10 11 (AR 453; see AR 246 (Dr. Ustaris examination); AR 258 (Dr. Regan’s 12 examination)). 13 Plaintiff has failed to set forth sufficient evidence showing 14 15 that his impairments met or equaled Listing 1.04. To the contrary, 16 substantial evidence in the record supports the ALJ’s finding that 17 Plaintiff did not meet this Listing. 18 19 C. The ALJ Did Not Err in Evaluating Plaintiff’s Credibility 20 21 An ALJ’s assessment of a claimant’s credibility is entitled to 22 “great weight.” 23 Cir. 1990); Nyman v. Heckler, 779 F.2d 528, 531 (9th Cir. 1985). 24 “[T]he ALJ is not required to believe every allegation of disabling 25 pain, or else disability benefits would be available for the asking, 26 a result plainly contrary to 42 U.S.C. § 423(d)(5)(A).” 27 Astrue, 674 F.3d 1104, 1112 (9th Cir. 2012). 28 See Anderson v. Sullivan, 914 F.2d 1121, 1124 (9th 17 Molina v. To determine whether a 1 claimant’s 2 testimony analysis. is credible, the ALJ engages in a two-step Garrison v. Colvin, 759 F.3d 995, 1014 (9th Cir. 2014). 3 First, the claimant “must produce objective medical evidence of 4 5 an underlying 6 produce the pain or other symptoms alleged.’” 7 947 8 § 423(d)(5)(A)(1988)). 9 impairment, “the claimant need not produce objective medical evidence F.2d impairment 341, 344 ‘which (9th In could Cir. reasonably 1991) producing be expected to Bunnell v. Sullivan, (quoting evidence of 42 the U.S.C. underlying 10 of the pain or fatigue itself, or the severity thereof.” Smolen v. 11 Chater, 80 F.3d 1273, 1282 (9th Cir. 1996). 12 “need only show that [the impairment] could reasonably have caused 13 some degree of the symptom.” Instead, the claimant Id. 14 15 Second, once the claimant has produced the requisite objective 16 medical evidence, 17 regarding 18 affirmative evidence of malingering, however, the ALJ may reject a 19 plaintiff’s 20 convincing reasons for doing so.” 21 alleged symptoms, an ALJ may consider the following: the the severity testimony “ALJ of may her only reject the symptoms.” “by Id. offering Id. claimant’s at testimony 1284. specific, Absent clear In assessing a claimant’s 22 23 (1) ordinary techniques of credibility evaluation, such as 24 claimant’s 25 statements concerning the symptoms, and other testimony by 26 the 27 unexplained 28 claimant reputation that or for appears lying, to inadequately 18 be and prior less explained than inconsistent candid; failure to (2) seek 1 treatment or to follow a prescribed course of treatment; 2 and (3) the claimant’s daily activities. 3 4 Id. An ALJ may also consider “the claimant’s work record and 5 observations of treating and examining physicians and other third 6 parties.” Id. 7 8 The ALJ’s findings supporting the credibility determination must 9 be “sufficiently specific to permit the court to conclude that the 10 ALJ did not arbitrarily discredit claimant's testimony.” 11 Barnhart, 12 Sullivan, 947 F.2d 341, 345–46 (9th Cir. 1991)). 13 credibility 14 record, we may not engage in second-guessing.” 15 Lasich v. Astrue, 252 F. App’x 823, 825 (9th Cir. 2007) (court will 16 defer to ALJ’s credibility determination when the proper process is 17 used and proper reasons for the decision are provided). 278 F.3d 947, finding is 958 (9th supported Cir. by 2002) (citing substantial Thomas v. Bunnell v. “If the ALJ's evidence in the Id. at 959; see also 18 19 Here, the ALJ examined the Administrative Record, heard 20 testimony from Plaintiff, and determined that Plaintiff had produced 21 objective 22 reasonably be expected to cause some of the alleged symptoms.” 23 454). 24 concerning the intensity, persistence and limiting effects of these 25 symptoms are not entirely consistent with the medical evidence and 26 other 27 decision.” 28 medical However, evidence evidence the in ALJ the of underlying concluded record for (Id.). 19 that the impairments Plaintiff’s reasons that “could (AR “statements explained in th[e] 1 After consideration of the record as a whole, the Court finds 2 that the ALJ provided specific, clear and convincing reasons for 3 deeming 4 symptoms 5 observation that 6 statements, suggesting 7 testified, for example, that he had “worked every day for 30 years[, 8 f]our days a week, 10 hours a day,” (AR 499), but the ALJ found that 9 this was exaggerated. Plaintiff’s less testimony than fully Plaintiff that about the credible. provided he (AR 450). was limiting This effects included contradictory less than the of ALJ’s or exaggerated candid. Plaintiff The ALJ explained: 10 Going back thirty years before he last worked in 2011, 11 12 we begin with 1981 (See Exhibit 70). 13 that year, less than $900 in 1982, and he apparently began 14 working as an employee of others in late 1982, and during 15 the following four years earned in the range of $20,000 and 16 a little less. 17 Apparently, he then started his self-employment in 1989. 18 He had low earnings in 1989 and 1990. 19 making significant earnings, as he earned over $49,000 in 20 1991 and over $34,000 in 1992. He had no earnings He then had no earnings in 1987 and 1988. He was capable of 21 He did not work at all in 1993, and earned less than 22 23 $11,000 in 1994. 24 $61,200. 25 of just over $1,000 a year; he had zero earnings in three 26 of the years, and very little in the other two years. 27 2001, 28 he In 1995, he had his best year, earning During the next five years, he earned an average had his last year 20 of his significant In earnings, 1 $49,526. He had low earnings during the next eight years, 2 2002 through 2009, and no earnings in 2010. In 2011, he 3 earned a little over $2,000 and has not worked since. 4 record supports his testimony that when he does not have to 5 work, he does not work, as his wife is a fully employed 6 attorney (Exhibit 7D). The 7 8 (AR 451). 9 10 It is therefore clear that Plaintiff blatantly exaggerated his 11 work history, claiming he had “worked every day for 30 years[, f]our 12 days a week, 10 hours a day,” (AR 499), when in fact there were years 13 when he worked very little or not at all. 14 stating at the hearing, “You know, my wife worked and so, many times 15 if I didn’t have the work, I just wouldn’t work.”)) 16 reasonable 17 Moreover, as the ALJ suggested, Plaintiff’s fluctuating work history 18 demonstrates a lack of motivation to work. 19 properly 20 Plaintiff’s claims. 21 credibility finding that rested in part on the claimant’s spotty work 22 history 23 lifetime”). ground found that this showed for “a discrediting serious (See AR 499 (Plaintiff Plaintiff’s issue” to This is a allegations. (AR 450). consider in The ALJ weighing See Thomas, 278 F.3d at 959 (affirming the ALJ’s she had “little propensity to work in her 24 25 The ALJ also found inconsistencies in Plaintiff’s statements 26 about his alleged poor concentration. The ALJ noted that at the 27 hearing Plaintiff attributed his poor concentration to pain, which 28 21 1 caused headaches. 2 noted 3 Plaintiff’s: “[O]n September 28, 2011, [Plaintiff] said the reason he 4 had difficulty concentrating was the side effects of red interferon 5 he was then taking for his hepatitis condition; he did not mention 6 headaches or neck pain.” 7 59). 8 respond appropriately throughout” the forty-minute hearing. that this (AR 450; see AR 484 (hearing)). was inconsistent with an However, the ALJ earlier statement of (AR 450 (citing Exhibit 1A, p. 4); see AR The ALJ also noted that Plaintiff “was able to stay alert and (Id.). 9 The ALJ’s summary of Plaintiff’s testimony highlights additional 10 11 contradictions. 12 This includes Plaintiff’s statements about past drug use: 13 14 Years ago, he had experience with addiction. Asked his 15 drug of choice, he said it was marijuana in the 1960s. (He 16 told Fred Poordad, M.D., he had a twenty-five year history 17 of intravenous drug use (Exhibit 8F, p. 41)). 18 19 (AR 449; see AR 522 (2013 hearing); AR 493 (2016 hearing); AR 308 20 (Dr. 21 Plaintiff’s traveling since his alleged onset date: 22 23 24 25 26 27 28 Poordad’s report).6 It also 6 includes testimony about In 2013, Plaintiff testified that he had a drug problem thirty-three years ago, “back in the sixties,” and his drug of choice was marijuana. (AR 522). In 2016, he testified that he had no history of alcohol or substance abuse. (AR 493). On August 1, 2006, Dr. Poordad completed an outpatient consultation regarding Plaintiff’s hepatitis C, noting that Plaintiff acquired hepatitis C “through IV drug abuse in the 1970’s,” but “since then, has been abstinent of both IV drug use as well as alcohol.” (AR 308). 22 1 He has done no traveling since March 31, 2011. He went to 2 his older daughter's school when she graduated. 3 friend drive his motor home to Santa Cruz. 4 2011, he took his motor home to a camping site in Ventura 5 for a weekend. He had a Since March 6 7 (AR 449; see AR 490-91, 494-95 (hearing)).7 8 testimony 9 Plaintiff’s alleged inability to operate foot controls: additionally highlights a The ALJ’s account of the contradiction regarding 10 11 He is not able to push or pull with his legs. He is not 12 able to operate foot controls. He drives an automobile. 13 14 (AR 450; see AR 489, 492 (hearing)). Such contradictions underscore 15 the questionable veracity of Plaintiff’s subjective complaints. 16 The ALJ also reasonably determined that the objective evidence 17 18 did 19 (Id.). 20 subjective 21 22 23 24 25 26 27 28 not 7 support the extent of Plaintiff’s alleged limitations. While such evidence cannot be the “sole ground” for rejecting pain testimony, it “is still a relevant factor in The ALJ specifically asked Plaintiff if he has “done any traveling to visit [his daughter] in college or go to the college at all since the alleged onset date.” (AR 490). The ALJ then asked if he has “gone anywhere within the state of California, outside the state of California, [or] outside the country, since March 31, 2011.” (AR 491). Plaintiff simply answered no to both questions. Later in the hearing, however, Plaintiff revealed that he “recent[ly]” took his motor home to Santa Cruz for his daughter’s graduation (with a friend driving) and also “to Thornbroom camping site on the beach in Ventura.” (AR 494-95). When asked about this inconsistency, Plaintiff explained that he “just had forgotten.” (AR 504). 23 1 determining the severity of the claimant’s pain and its disabling 2 effects.” 3 2001); see also Robbins v. Social Security Administration, 466 F.3d 4 880, 883 (9th Cir. 2006) (ALJ may cite the medical record in concert 5 with other factors in assessing a claimant’s credibility). 6 particular, 7 Plaintiff’s complaints. 8 example, that Plaintiff could “generate 40 pounds of force using the 9 right hand, and 35 pounds of force using the left hand.” (AR 245). 10 He in 11 distress.” 12 carry 50 pounds occasionally and 25 pounds frequently”; “push and 13 pull on a frequent basis”; “walk and stand six hours out of an eight- 14 hour workday with normal breaks”; “sit six hours out of an eight-hour 15 workday with normal breaks”; and “climb, balance, kneel and crawl 16 occasionally.” Rollins v. Massanari, 261 F.3d 853, 856, 857 (9th Cir. Dr. described Ustaris’s findings (See AR 244-48). Plaintiff (AR 246). examination as “alert, Here, in conflicted with Dr. Ustaris found, for oriented, and not acute Dr. Ustaris found Plaintiff could “lift and (AR 248). 17 Furthermore, 18 the ALJ reasonably discounted Plaintiff’s 19 credibility because the alleged severity of his pain conflicted with 20 his to stop 21 taking pain medications and postpone neck surgery for years. (AR 22 451). 23 complaints. See Tommasetti v. Astrue, 533 F.3d 1035, 1039 (9th Cir. 24 2008) may 25 “unexplained or inadequately explained failure to seek treatment or 26 to follow a prescribed course of treatment”); Social Security Ruling 27 16-3p, 2016 WL 1119029, *9 (March 16, 2016) (“[I]f the frequency or 28 24 conservative pain treatment, including his decisions This is an appropriate basis on which to discredit Plaintiff’s (ALJ discount a claimant’s credibility based on an 1 extent of the treatment sought by an individual is not comparable 2 with the degree of the individual’s subjective complaints, or if the 3 individual fails to follow prescribed treatment that might improve 4 symptoms, we may find the alleged intensity and persistence of an 5 individual’s symptoms are inconsistent with the overall evidence of 6 record.”). 7 483), which he rated as a six or seven out of ten, (AR 484), and 8 stated that the pain makes it difficult to sleep or concentrate and 9 is why he had to quit working in April 2011. Plaintiff testified that he is in “constant pain,” (AR (AR 484, 496, 498). 10 Despite the alleged debilitating pain, Plaintiff has stated that he 11 stopped taking pain medication in 2011 and takes only Aleve, an over- 12 the-counter drug, for the pain. (AR 410, 482). 13 Plaintiff 14 contends that the ALJ failed to account for the 15 reasons why Plaintiff avoided pain medication and postponed surgery. 16 (Joint Stip. at 34). 17 for these decisions. 18 indicated that he stopped taking pain medications because they gave 19 him “very little relief from pain.” 20 July 12, 2016, Plaintiff stated that the decision was because he does 21 not want to “put anything in [his] liver,” though he acknowledged 22 that 23 medication. 24 like the fact that the medications made him feel “incoherent and 25 loopy,” and he was “unable to do hardly anything” when on them.8 his doctor Plaintiff has offered different explanations In a questionnaire dated October 27, 2011, he never specifically (AR 482, 499). (AR 410). directed At the hearing on him to avoid the Plaintiff also stated that he did not (AR 26 8 27 28 Similarly, at the earlier hearing before ALJ Burlison on April 3, 2013, Plaintiff stated that he cannot take pain medication 25 1 500). As for the surgery, Plaintiff stated at the hearing that he 2 waited until July 2014 to undergo surgery on his neck – in which two 3 titanium discs were inserted and a bone spur was “ground off” – 4 because the procedure was “very expensive,” and a “dear friend” who 5 is a neurosurgeon at UCLA advised him to wait until the available 6 technology for the procedure improved. (AR 500-01). 7 8 Even taking these explanations into account, the ALJ reasonably 9 determined that Plaintiff’s conservative pain management decisions 10 undermined his allegations of constant, debilitating pain. Notably, 11 Plaintiff did not point to any treating physician’s recommendation to 12 explain his decisions. 13 “expensive” and he would have to “pay 20 percent of it,” (AR 500-01), 14 he did not claim that he was unable to afford it. Moreover, though he said the surgery was 15 16 The ALJ also reasonably determined that Plaintiff’s activities 17 of daily living did not support his allegations of total disability. 18 (AR 450, 453). 19 living to show not only that Plaintiff can perform work in accordance 20 with 21 credibility when such activities are inconsistent with Plaintiff’s 22 subjective allegations of disability. 23 13; Valentine v. Astrue, 574 F.3d 685, 693 (9th Cir. 2009). the RFC An ALJ may rely on a claimant’s activities of daily determination, but also to undermine Plaintiff’s See Molina, 674 F.3d at 1112— Here, 24 25 26 27 28 because he “tr[ies] to keep [his] liver as good as [he] possibly can.” (AR 48). He further stated, “[Pain medication] just makes me completely – I’m sensitive to it, and I don’t like it. It turns me into incoherent [sic]. So I just don’t take it.” (Id.). 26 1 for example, the ALJ reasonably found that Plaintiff’s daily reading 2 activity 3 Plaintiff testified that in a typical eight-hour day, he can focus or 4 think clearly for only about four hours, or half the time. 5 However, as the ALJ noted, Plaintiff also stated that he “loves to 6 read” and “reads four or five hours a day, such as neuroscience and 7 Carl Jung, and he does research on the internet.” 8 491-92 (hearing)). undermined his claim of poor concentration. (AR 450). (AR 485). (AR 450; see AR 9 10 Plaintiff argues that his reading four or five hours a day is 11 consistent with his allegation that he can focus for about half of an 12 eight-hour workday. 13 reading choices demand a heightened lucidity. 14 reading hours of dense texts for pleasure belies his claim of a 15 serious concentration deficit, and reasonably suggests an ability to 16 focus for more than half a workday. 17 Plaintiff claims pain is the cause of his concentration deficit, the 18 pain is clearly not so constant or overwhelming that it poses a 19 serious distraction. (Joint Stip. at 33-34). However, Plaintiff’s His daily habit of Moreover, to the extent that 20 21 In addition, the ALJ found Plaintiff’s alleged physical 22 limitations inconsistent with his activities that apparently included 23 “lifting a kayak full of water.” 24 respect to the first issue, a treatment note signed by Dr. Regan on 25 October 31, 2011 states that Plaintiff “had a popped [sic] in his 26 back in lifting a kayak full of water recently.” (AR 258, 453). 27 28 27 As noted above with (AR 258). The ALJ 1 reasonably found that “[t]his activity is inconsistent with the level 2 of limitation being claimed by the claimant at that time.” (AR 453). 3 4 Accordingly, the ALJ’s findings are “sufficiently specific” for 5 the Court to conclude that “the ALJ did not arbitrarily discredit 6 [Plaintiff’s] testimony.” 7 credibility 8 record, the Court “may not engage in second guessing.” finding is See Thomas, 278 F.3d at 958. supported by substantial As the ALJ’s evidence in the Id. at 959. 9 VI. 10 ORDER 11 12 13 For the foregoing reasons, the decision of the Commissioner is AFFIRMED. 14 15 LET JUDGMENT BE ENTERED ACCORDINGLY. 16 DATED: February 8, 2018 17 18 /s/ ALKA SAGAR UNITED STATES MAGISTRATE JUDGE 19 20 21 22 23 24 25 26 27 28 28

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