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)
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
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?