Andrew Swartz v. Nancy A. Berryhill

Filing 21

MEMORANDUM DECISION AND ORDER by Magistrate Judge Suzanne H. Segal. IT IS ORDERED that Judgment be entered AFFIRMING the decision of the Commissioner. The Clerk of the Court shall serve copies of this Order and the Judgment on counsel for both parties. (See document for further details). (mr)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 ANDREW SWARTZ, Plaintiff, 12 v. 13 14 15 CASE NO. CV 17-4186 SS MEMORANDUM DECISION AND ORDER NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant. 16 17 18 I. 19 INTRODUCTION 20 21 Andrew Swartz (“Plaintiff”) brings this action seeking to 22 overturn the decision of the Acting Commissioner of Social Security 23 (the 24 Supplemental Security Income. 25 28 U.S.C. § 636(c), to the jurisdiction of the undersigned United 26 States Magistrate Judge. 27 stated below, the Court AFFIRMS the Commissioner’s decision. 28 “Commissioner” or “Agency”) denying his application for The parties consented, pursuant to (Dkt. Nos. 13-15). For the reasons 1 II. 2 PROCEDURAL HISTORY 3 4 On December 30, 2013, Plaintiff filed an application for 5 Supplemental Security Income (“SSI”) pursuant to Title XVI of the 6 Social Security Act alleging a disability onset date of July 15, 7 2009. 8 application initially. 9 before an Administrative Law Judge (“ALJ”), which took place on (AR 56, 114-21). The Commissioner denied Plaintiff’s (AR 55-68). Plaintiff requested a hearing 10 February 10, 2016. (AR 69-80, 35-54). The ALJ issued an adverse 11 decision on March 4, 2016, finding that Plaintiff was not disabled 12 because he was capable of performing his past relevant work as a 13 telemarketer, and there are other jobs in the national economy that 14 he can perform. (AR 23-31). On April 10, 2017, the Appeals Council 15 denied Plaintiff’s request for review. 16 followed on June 5, 2017. (AR 1-6). This action 17 18 III. 19 FACTUAL BACKGROUND 20 21 Plaintiff was born on July 26, 1967. (AR 131). He was forty- 22 eight (48) years old when he appeared before the ALJ on February 23 10, 2016. 24 completed three years of college. 25 lives in a group home. 26 June 2009 as a telemarketer. 27 due to chronic asthma and chronic migraines. (AR 38). Plaintiff has a high-school degree and (AR 38, 136). (AR 114, 146). Plaintiff last worked in (AR 135, 141). 28 2 He is single and He alleges disability (AR 135). 1 A. Plaintiff’s Testimony 2 3 Plaintiff testified that he stopped working after missing too 4 many days of work due to his migraine headaches. (AR 5 Plaintiff asserted that he still gets migraines three to four times 6 a week, which can last from a day to two days. 7 he experiences migraines, he needs to lay down in a dark room. 8 43). 9 Sometimes he also experiences nausea and vomiting. (AR 41-42). His head pounds and hurts more when he stands up. 40). When (AR (AR 47). (AR 47-48). 10 Plaintiff avoids strenuous activities, which tend to bring on his 11 headaches. (AR 45). 12 13 Plaintiff takes Imitrex for his migraines, but he claims that 14 he has mixed results.1 (AR 41). “Sometimes it will make the 15 headache not as severe or as long, but as lot of times it really 16 doesn’t have a great effect.” 17 that in the past, he self-medicated for his migraines and became 18 addicted to “substances.” (AR 41). Plaintiff acknowledged (AR 50). 19 20 B. Treatment History 21 22 Plaintiff began treating with Wesley Health Centers in July 23 2013. (AR 188). He complained of a light cough due to his asthma 24 but denied any other complaints. (AR 188). He stated that his 25 26 27 28 Imitrex (sumatriptan) “is used to treat migraine headaches. Imitrex will only treat a headache that has already begun. It will not prevent headaches or reduce the number of attacks.” <> (last visited March 8, 2018). 1 3 1 migraine headaches are controlled by Naproxen. (AR 2 Plaintiff’s doctor instructed him to avoid taking caffeine products 3 and engage in a regular exercise program. 4 2013, Plaintiff denied any migraine symptoms. 5 December 2013, Plaintiff acknowledged that he continues to use 6 caffeine and energy drinks on a daily basis, but reported that his 7 migraines were being controlled by Naproxen. (AR 189). 188). In October (AR 191). In (AR 195). 8 9 In January and March 2014, Plaintiff acknowledged still 10 consuming caffeine and energy drinks daily, but did not report any 11 migraine symptoms. 12 Plaintiff reiterated that his migraine headaches are controlled 13 with Naproxen. 14 to be used as needed. 15 reported 16 medications. 17 prescribed. 18 tablet as early as possible after onset of a migraine attack, which 19 may be repeated after two hours if the headache returns, not to 20 exceed 200mg in a 24-hour period. 21 Plaintiff did not report any migraine attacks, but acknowledged 22 continuing to use caffeine and energy drinks. 23 neurological examination was normal. (AR 198, 221, 224, 229-30). (AR 229). that his On March 20, 2014, Relpax (eletriptan) was also prescribed (AR 231, 237). migraine In October 2014, Plaintiff symptoms were controlled with (AR 281). Relpax was discontinued and Imitrex (AR 281, 283). Plaintiff was advised to take one 50mg (AR 286). In November 2014, (AR 287-89). A (AR 289). 24 25 In March and July 2015, Plaintiff asserted that his migraines 26 were controlled with Imitrex. (AR 27 neurological examination was normal. 28 2015, Plaintiff reported that his migraine symptoms, which he 4 290, 292, 298, (AR 292, 309). 309). A In December 1 described as “moderate,” are chronic and occur randomly. 2 He further acknowledged that the symptoms are usually relieved with 3 Imitrex. 4 migrainosus, 5 concluding 6 management.”2 (AR 302). His doctor diagnosed migraine without status not that (AR 302). intractable, it was unspecified “fairly migraine controlled with type, current (AR 302, 304) (emphasis added). 7 8 9 On April 10, 2014, Steven B. Gerber, M.D., performed an internal medicine evaluation at the request of the Agency. (AR 10 205-09). Plaintiff reported experiencing headaches for many years, 11 asserting that they now occur two to three times weekly, lasting 12 for up to two days. 13 accompanies by nausea and vomiting, but no visual disturbances. 14 (AR 205). 15 chocolate, wine, and cheese, and are relieved with medications. 16 (AR 205). 17 09). 18 migraine 19 neurologic examination today.” 20 can 21 frequently; stand, walk, or sit for six hours in an eight-hour day; (AR 205). The headaches are occasionally Plaintiff stated that the migraines are triggered by A neurological examination was unremarkable. (AR 208- Dr. Gerber concluded that while Plaintiff has a history of lift headaches, or carry Dr. Gerber twenty observed (AR 209). pounds “no abnormalities on He opined that Plaintiff occasionally and ten pounds 22 23 24 25 26 27 28 Cf. <> (last visited March 8, 2018) (“Intractable migraine, also called refractory migraine and/or status migrainosus, is the medical term used to describe a persistent migraine that is either 1) difficult to treat or b) fails to respond to standard and/or aggressive treatments.”). 2 5 1 and should avoid concentrated exposure to dust and fumes. 2 (AR 209). 3 4 C. State Agency Consultant 5 6 On April 24, 2014, Jerry Thomas, M.D., a state agency 7 consultant, reviewed all the available evidence in the medical 8 file. 9 regarding his symptoms were not consistent with the preponderance (AR 56-64). Dr. Thomas opined that Plaintiff’s statements 10 of evidence in the file. (AR 61). He concluded that Plaintiff 11 can occasionally lift twenty pounds, frequently lift ten pounds; 12 stand, walk, or sit six hours in an eight-hour workday; and should 13 avoid even moderate exposure to fumes, odors, dusts, or gasses. 14 (AR 61-62). 15 16 IV. 17 THE FIVE-STEP SEQUENTIAL EVALUATION PROCESS 18 19 To qualify for disability benefits, a claimant must 20 demonstrate a medically determinable physical or mental impairment 21 that prevents the claimant from engaging in substantial gainful 22 activity and that is expected to result in death or to last for a 23 continuous period of at least twelve months. 24 157 F.3d 715, 721 (9th Cir. 1998) (citing 42 U.S.C. § 423(d)(1)(A)). 25 The impairment must render the claimant incapable of performing 26 work 27 employment that exists in the national economy. previously performed or any 28 6 other Reddick v. Chater, substantial gainful Tackett v. Apfel, 1 180 F.3d 1094, 2 1098 (9th Cir. 1999) (citing 42 U.S.C. § 423(d)(2)(A)). 3 4 To decide if a claimant is entitled to benefits, an ALJ 5 conducts a five-step inquiry. 6 20 C.F.R. §§ 404.1520, 416.920. The steps are: 7 8 (1) 9 activity? 10 11 Is the claimant presently engaged in substantial gainful If so, the claimant is found not disabled. If not, proceed to step two. (2) Is the claimant’s impairment 12 claimant is found not disabled. 13 severe? If not, the three. 14 (3) If so, proceed to step Does the claimant’s impairment meet or equal one of the 15 specific impairments described in 20 C.F.R. Part 404, 16 Subpart P, Appendix 1? 17 disabled. 18 (4) If so, the claimant is found If not, proceed to step four. Is the claimant capable of performing his past work? If 19 so, the claimant is found not disabled. 20 to step five. 21 (5) If not, proceed Is the claimant able to do any other work? 22 claimant is found disabled. 23 If not, the If so, the claimant is found not disabled. 24 25 Tackett, 180 F.3d at 1098-99; see also Bustamante v. Massanari, 26 262 F.3d 949, 953-54 (9th Cir. 2001); 20 C.F.R. §§ 404.1520(b)- 27 (g)(1), 416.920(b)-(g)(1). 28 7 1 The claimant has the burden of proof at steps one through four 2 and the 3 Bustamante, 262 F.3d at 953-54. 4 affirmative duty to assist the claimant in developing the record 5 at every step of the inquiry. 6 claimant meets his or her burden of establishing an inability to 7 perform past work, the Commissioner must show that the claimant 8 can perform some other work that exists in “significant numbers” 9 in the Commissioner national has economy, the burden of at step five. Additionally, the ALJ has an Id. at 954. taking proof into If, at step four, the account the claimant’s 10 residual functional capacity (“RFC”), age, education, and work 11 experience. 12 721; 20 C.F.R. §§ 404.1520(g)(1), 416.920(g)(1). 13 may do so by the testimony of a VE or by reference to the Medical- 14 Vocational Guidelines appearing in 20 C.F.R. Part 404, Subpart P, 15 Appendix 2 (commonly known as “the grids”). 16 240 F.3d 1157, 1162 (9th Cir. 2001). 17 exertional (strength-related) and non-exertional limitations, the 18 Grids are inapplicable and the ALJ must take the testimony of a 19 vocational expert (“VE”). 20 Cir. 2000) (citing Burkhart v. Bowen, 856 F.2d 1335, 1340 (9th Cir. 21 1988)). Tackett, 180 F.3d at 1098, 1100; Reddick, 157 F.3d at The Commissioner Osenbrock v. Apfel, When a claimant has both Moore v. Apfel, 216 F.3d 864, 869 (9th 22 23 V. 24 THE ALJ’S DECISION 25 26 The ALJ employed the five-step sequential evaluation process 27 and concluded that Plaintiff was not disabled within the meaning 28 of the Social Security Act. (AR 31). 8 At step one, the ALJ found 1 that Plaintiff has not engaged in substantial gainful activity 2 since December 30, 2013, the application date. 3 two, the ALJ found that Plaintiff’s migraine headaches, asthma, 4 hypertension, hyperlipidemia/dyslipidemia, and clinical obesity 5 are severe impairments. (AR 25). At step three, the ALJ determined 6 that Plaintiff does not have an impairment or combination of 7 impairments that meet or medically equal the severity of any of 8 the listings enumerated in the regulations. (AR 25). At step (AR 25). 9 10 The ALJ then assessed Plaintiff’s RFC and concluded that he 11 can perform light work, as defined in 20 C.F.R. § 416.967(b),3 12 except that Plaintiff is limited to “no exposure to dusts or fumes 13 as defined in the DOT and no hazards as defined in the DOT.” 14 25). 15 performing 16 Alternatively, based on Plaintiff’s RFC, age, education, work 17 experience and the VE’s testimony, the ALJ determined at step five 18 that there are jobs that exist in significant numbers in the 19 national 20 assembler/small 21 22 23 24 25 26 27 28 (AR At step four, the ALJ found that Plaintiff is capable of past relevant economy that products, work as a Plaintiff inspector, telemarketer. can and (AR 29). perform, including marker. (AR 30). “Light work involves lifting no more than 20 pounds at a time 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 sitting most of the time with some pushing and pulling of arm or leg controls. To be considered capable of performing a full or wide range of light work, you must have the ability to do substantially all of these activities. If someone can do light work, we determine that he or she can also do sedentary work, unless there are additional limiting factors such as loss of fine dexterity or inability to sit for long periods of time.” 20 C.F.R. § 416.967(b). 3 9 1 Accordingly, the ALJ found that Plaintiff was not under a 2 disability, as defined by the Social Security Act, at any time 3 since December 30, 2013, the application date. (AR 31). 4 5 VI. 6 STANDARD OF REVIEW 7 8 9 Under 42 U.S.C. § 405(g), a district court may review the Commissioner’s decision to deny benefits. The court may set aside 10 the Commissioner’s decision when the ALJ’s findings are based on 11 legal error or are not supported by substantial evidence in the 12 record as a whole. 13 2014) (citing Stout v. Comm’r, Soc. Sec. Admin., 454 F.3d 1050, 14 1052 (9th Cir. 2006)); Auckland v. Massanari, 257 F.3d 1033, 1035 15 (9th Cir. 2001) (citing Tackett, 180 F.3d at 1097); Smolen v. 16 Chater, 80 F.3d 1273, 1279 (9th Cir. 1996) (citing Fair v. Bowen, 17 885 F.2d 597, 601 (9th Cir. 1989)). Garrison v. Colvin, 759 F.3d 995 (9th Cir. 18 19 “Substantial evidence is more than a scintilla, but less than 20 a preponderance.” 21 Chater, 112 F.3d 1064, 1066 (9th Cir. 1997)). 22 evidence which a reasonable person might accept as adequate to 23 support a conclusion.” 24 Smolen, 25 evidence supports a finding, the court must “ ‘consider the record 26 as a whole, weighing both evidence that supports and evidence that 27 detracts from the [Commissioner’s] conclusion.’ ” 28 F.3d at 1035 (citing Penny v. Sullivan, 2 F.3d 953, 956 (9th Cir. 80 F.3d Reddick, 157 F.3d at 720 (citing Jamerson v. at It is “relevant Id. (citing Jamerson, 112 F.3d at 1066; 1279). To 10 determine whether substantial Auckland, 257 1 1993)). If the evidence can reasonably support either affirming 2 or reversing that conclusion, the court may not substitute its 3 judgment for that of the Commissioner. 4 21 (citing Flaten v. Sec’y, 44 F.3d 1453, 1457 (9th Cir. 1995)). Reddick, 157 F.3d at 720- 5 6 VII. 7 DISCUSSION 8 9 Plaintiff contends that the ALJ erred for the following two 10 reasons: (1) the ALJ impermissibly rejected the opinions of his 11 treating physician; and (2) the ALJ impermissibly found Plaintiff’s 12 testimony not credible. (Dkt. No. 19 at 3-15). 13 14 A. 15 The ALJ’s Reasons for Discrediting Plaintiff’s Subjective Symptom Testimony Were Specific, Clear and Convincing 16 17 Plaintiff asserted that he is unable to work due to chronic 18 asthma and chronic migraine headaches.4 19 that he gets migraines three to four times a week, which can last 20 up to a day or two. 21 but he has mixed results. 22 headache not as severe or as long, but a lot of times it really 23 doesn’t have a great effect.” (AR 42). (AR 135). He testified He takes Imitrex for his migraines, (AR 41). “Sometimes it will make the (AR 41). Sometimes, he does not 24 25 26 27 28 The ALJ accommodated Plaintiff’s asthma by restricting him to “no exposure to dust or fumes . . . and no hazards.” (AR 25). Plaintiff does not dispute the ALJ’s finding in this regard. (See generally Dkt. No. 19 at 11-15). 4 11 1 take the Imitrex because he doesn’t “feel it really works.” 2 (AR 47). 3 4 When assessing a claimant’s credibility regarding subjective 5 pain or intensity of symptoms, the ALJ must engage in a two-step 6 analysis. 7 First, the ALJ must determine if there is medical evidence of an 8 impairment that could reasonably produce the symptoms alleged. 9 Garrison, 759 F.3d at 1014. Trevizo v. Berryhill, 874 F.3d 664, 678 (9th Cir. 2017). “In this analysis, the claimant is 10 not required to show that her impairment could reasonably be 11 expected to cause the severity of the symptom she has alleged; she 12 need only show that it could reasonably have caused some degree of 13 the symptom.” 14 must a claimant produce objective medical evidence of the pain or 15 fatigue itself, or the severity thereof.” Id. (emphasis in original) (citation omitted). “Nor Id. (citation omitted). 16 17 If the claimant satisfies this first step, and there is no 18 evidence of malingering, the ALJ must provide specific, clear and 19 convincing reasons for rejecting the claimant’s testimony about 20 the symptom severity. 21 see also Smolen, 80 F.3d at 1284 (“[T]he ALJ may reject the 22 claimant’s testimony regarding the severity of her symptoms only 23 if he makes specific findings stating clear and convincing reasons 24 for doing so.”); Robbins v. Soc. Sec. Admin., 466 F.3d 880, 883 25 (9th Cir. 2006) (“[U]nless an ALJ makes a finding of malingering 26 based on affirmative evidence thereof, he or she may only find an 27 applicant 28 credibility and stating clear and convincing reasons for each.”). not Trevizo, 874 F.3d at 678 (citation omitted); credible by making 12 specific findings as to 1 “This is not an easy requirement to meet: The clear and convincing 2 standard is the most demanding required in Social Security cases.” 3 Garrison, 759 F.3d at 1015 (citation omitted). 4 5 6 In discrediting the claimant’s subjective symptom testimony, the ALJ may consider the following: 7 8 (1) ordinary techniques of credibility evaluation, such 9 as the claimant’s reputation 11 other testimony by the claimant that appears less than 12 candid; 13 failure to seek treatment or to follow a prescribed 14 course 15 activities. unexplained treatment; or and (3) the prior inconsistent of concerning lying, 10 (2) statements for symptoms, inadequately the and explained claimant’s daily 16 17 Ghanim v. Colvin, 763 F.3d 1154, 1163 (9th Cir. 2014) (citation 18 omitted). 19 conduct, or internal contradictions in the claimant’s testimony, 20 also may be relevant. 21 Cir. 2014); Light v. Soc. Sec. Admin., 119 F.3d 789, 792 (9th Cir. 22 1997). 23 treating and examining physicians regarding, among other matters, 24 the functional restrictions caused by the claimant’s symptoms. 25 Smolen, 80 F.3d at 1284; accord Burrell, 775 F.3d at 1137. However, 26 it is improper for an ALJ to reject subjective testimony based 27 “solely” on its inconsistencies with the objective medical evidence Inconsistencies between a claimant’s testimony and Burrell v. Colvin, 775 F.3d 1133, 1137 (9th In addition, the ALJ may consider the observations of 28 13 1 presented. Bray v. Comm’r of Soc. Sec. Admin., 554 F.3d 1219, 1227 2 (9th Cir. 2009) (citation omitted). 3 4 Further, the ALJ must make a credibility determination with 5 findings that are “sufficiently specific to permit the court to 6 conclude that the ALJ did not arbitrarily discredit claimant’s 7 testimony.” 8 2008) (citation omitted); see Brown-Hunter v. Colvin, 806 F.3d 487, 9 493 (9th Cir. 2015) (“A finding that a claimant’s testimony is not 10 credible must be sufficiently specific to allow a reviewing court 11 to conclude the adjudicator rejected the claimant’s testimony on 12 permissible grounds and did not arbitrarily discredit a claimant’s 13 testimony regarding pain.”) (citation omitted). 14 interpretation of a claimant’s testimony may not be the only 15 reasonable one, if it is supported by substantial evidence, “it is 16 not [the court’s] role to second-guess it.” 17 261 F.3d 853, 857 (9th Cir. 2001). Tommasetti v. Astrue, 533 F.3d 1035, 1039 (9th Cir. Although an ALJ’s Rollins v. Massanari, 18 19 The ALJ provided multiple, specific, clear, and convincing 20 reasons to find Plaintiff’s complaints of disabling 21 headaches only partially credible. 22 sufficient to support the Commissioner’s decision. (AR 23). migraine These reasons are 23 24 The ALJ found that Plaintiff’s claims of debilitating 25 migraines, occurring three to four times a week and lasting up to 26 a day or two, were belied by treatment notes, which indicated that 27 his migraines were moderate and "random". 28 in December 2015, Plaintiff reported that his migraines, while 14 (AR 26, 29). Indeed, 1 chronic, are “moderate” and occur only randomly. (AR 302; accord 2 id. 28). 3 basis 4 Carmickle v. Comm’r, Soc. Sec. Admin., 533 F.3d 1155, 1161 (9th 5 Cir. 2008); see SSR 16-3p, at *5 (“objective medical evidence is a 6 useful indicator to help make reasonable conclusions about the 7 intensity and persistence of symptoms, including the effects those 8 symptoms 9 activities”). “Contradiction with the medical record is a sufficient for rejecting may have on the claimant’s the ability subjective to perform testimony.” work-related 10 11 In contrast to his testimony that Imitrex does not work, 12 Plaintiff consistently reported to his treating doctors that his 13 migraines, when they did occur, were controlled with medication. 14 (AR 188, 229, 231, 237, 281, 283, 290, 292, 298, 302, 304, 309; 15 accord id. 26-27, 28, 29). 16 effectively with medication are not disabling for the purpose of 17 determining eligibility for SSI benefits.” 18 Sec. Admin., 439 F.3d 1001, 1006 (9th Cir. 2006). 19 acknowledgment that he achieved “fair relief” of his headaches 20 through over-the-counter medications and were “controlled” with 21 prescription medications (AR 229, 281; accord id. 27) indicates 22 that 23 suggested. 24 infer that claimant’s pain “was not as all-disabling as he reported 25 in light of the fact that he did not seek an aggressive treatment 26 program”). his migraines were “Impairments that can be controlled not as Warre v. Comm’r of Soc. disabling as Plaintiff’s his testimony See Tommasetti, 553 F.3d at 1039-40 (ALJ may properly 27 28 15 1 Plaintiff’s migraines were addressed with conservative 2 treatment. 3 (“[E]vidence of conservative treatment is sufficient to discount a 4 claimant’s 5 (citation omitted); Meanel v. Apfel, 172 F.3d 1111, 1114 (9th Cir. 6 1999), 7 experienced pain approaching the highest level imaginable was 8 inconsistent with the ‘minimal, conservative treatment’ that she 9 received.”). as See Parra v. Astrue, 481 F.3d 742, 751 (9th Cir. 2007) testimony amended regarding (June 22, severity 1999) of an (“Meanel’s impairment.”) claim that she The ALJ noted that Plaintiff was advised to control 10 his migraines merely by avoiding caffeine products and engaging in 11 regular exercise. 12 continued to consume caffeine, against the advice of this doctor. 13 (AR 195, 198, 221, 224, 229-30, 287-89; accord id. 27). 14 of noncompliance with a treatment regimen may properly be weighed 15 against a claimant’s credibility. (AR 189; accord id. 26). Plaintiff, however, Instances Trevizo, 874 F.3d at 681. 16 17 Plaintiff’s claims of debilitating symptoms were contradicted 18 by clinical tests. Multiple neurological examinations 19 unremarkable. 20 inconsistencies with the objective medical evidence cannot be the 21 sole ground for rejecting a claimant’s subjective testimony, it is 22 a factor that the ALJ may consider when evaluating credibility. 23 Bray, 554 F.3d at 1227; Burch v. Barnhart, 400 F.3d 676, 681 (9th 24 Cir. 2005); Rollins, 261 F.3d at 857. (AR 208-09, 289, 292, 309; accord id. 27). were While 25 26 Finally, Plaintiff’s allegations were internally 27 inconsistent. 28 inconsistencies in the claimant’s testimony); Burch, 400 F.3d at See 20 C.F.R. § 416.929(c)(4) (ALJ may consider 16 1 680 (“an ALJ may engage in ordinary techniques of credibility 2 evaluation, 3 testimony”). 4 application that he stopped working in 2009 due to chronic asthma 5 and chronic migraines, he testified that he stopped working in 2009 6 due to substance abuse issues and did not become sober until 2013. 7 (Compare AR 40, 114, 135, 205, with id. 50). 8 properly infer that “[Plaintiff’s] disability allegations are also 9 somewhat such as . . . While diminished inconsistencies Plaintiff given his asserted testimony in in claimant’s his disability Thus, the ALJ could that his sparse work 10 history is due to past substance abuse. This raises the question 11 as to whether [Plaintiff’s] continued unemployment is actually due 12 to his medical condition.” (AR 26). 13 14 In sum, the ALJ offered clear and convincing reasons, 15 supported by substantial evidence in the record, for his adverse 16 credibility findings. 17 supports the ALJ’s assessment of Plaintiff’s credibility, no remand 18 is required. Accordingly, because substantial evidence 19 20 B. 21 The ALJ Provided Specific And Legitimate Reasons For Rejecting Dr. Bleakley’s Opinions 22 23 Plaintiff contends that the ALJ failed to properly evaluate 24 the opinions of Dennis Bleakley, M.D., 25 limitations from his migraine headaches. regarding Plaintiff’s (Dkt. No. 19 at 3-11). 26 27 28 “To reject an uncontradicted opinion of a treating or examining doctor, an ALJ must state clear and convincing reasons 17 1 that are supported by substantial evidence.” 2 427 F.3d 1211, 1216 (9th Cir. 2005); see Lester v. Chater, 81 F.3d 3 821, 830 (9th Cir. 1995), as amended (Apr. 9, 1996) (“As is the 4 case with the opinion of a treating physician, the Commissioner 5 must provide ‘clear and convincing’ reasons for rejecting the 6 uncontradicted 7 treating or examining doctor’s opinion is contradicted by another 8 doctor’s opinion, an ALJ may only reject it by providing specific 9 and legitimate reasons that are supported by substantial evidence.” 10 Bayliss, 427 F.3d at 1216; see Lester, 81 F.3d at 830-31 (“And like 11 the opinion of a treating doctor, the opinion of an examining 12 doctor, 13 rejected for specific and legitimate reasons that are supported by 14 substantial evidence in the record.”). 15 conflicting medical opinions, an ALJ may reject an opinion that is 16 conclusory, brief, and unsupported by clinical findings. 17 427 F.3d at 1216; Tonapetyan v. Halter, 242 F.3d 1144, 1149 (9th 18 Cir. 2001). even opinion if of an contradicted examining by Bayliss v. Barnhart, physician.”). another doctor, can “If only a be Further, when weighing Bayliss, 19 20 On March 20, 2014, Dr. Bleakley, Plaintiff’s treating 21 physician, completed a Migraine Headache Form at the request of 22 the Agency. 23 migraines occur two-to-three times weekly and last for a day. 24 202). 25 throbbing, and pulsing. 26 “fair” response to his medications, but that his migraines would 27 interfere with his ability to work, causing him to miss two-to- 28 three days of work per week. (AR 202). He reported that Plaintiff’s bitemporal (AR Plaintiff’s symptoms include nausea, vomiting, photophobia, (AR 202). He opined that Plaintiff has a (AR 202). 18 1 On November 6, 2014, Dr. Bleakley completed a Physical RFC 2 Questionnaire at the request of Plaintiff. 3 that Plaintiff’s prognosis was “good with treatment.” 4 Plaintiff’s migraine pain, which he characterized as 10/10, is 5 accompanied by nausea and photophobia, and is triggered by certain 6 foods. 7 neurological 8 migraines are relieved if Plaintiff takes Imitrex at the outset of 9 an attack. (AR 242). (AR 242-46). He opined (AR 242). Nevertheless, Dr. Bleakley acknowledged that a examination was (AR 242-43). “normal” and that Plaintiff’s He opined that Plaintiff’s migraines 10 cause frequent interruptions with concentration and attention and 11 a marked limitation in Plaintiff’s ability to cope with work 12 stresses. 13 Plaintiff has a migraine, he would be able to sit or stand only 14 five minutes continuously and less than two hours during an eight- 15 hour workday, and can lift less than ten pounds. 16 opined that Plaintiff would have good days and bad days and would 17 likely miss more than three days a month due to his migraines. 18 246). (AR 243-44). Dr. Bleakley also concluded that when (AR 244-45). He (AR 19 20 The ALJ gave “little weight” to Dr. Bleakley’s opinions 21 because they were internally inconsistent, contrary to his own 22 treatment 23 Plaintiff’s 24 opinions 25 consultant. 26 reasons, supported by substantial evidence, for rejecting Dr. 27 Bleakley’s opinions. notes, of unsupported subjective the clinical allegations, consultative (AR 28). by and examiner testing, based contradicted by and the state on the agency The ALJ has provided specific and legitimate 28 19 1 Dr. Bleakley’s opinion that Plaintiff suffers from significant 2 functional limitations 3 inconsistent 4 prognosis is “good with treatment” and “relieved by Imitrex if 5 taken at onset.” 6 Internal inconsistencies and ambiguities within a doctor’s opinion 7 provide specific and legitimate reasons for an ALJ to reject the 8 opinion. 9 Admin., 169 F.3d 595, 603 (9th Cir. 1999). with Dr. due to Bleakley’s his migraine observation headaches that is Plaintiff’s (Compare AR 202, 244-46, with id. 242-43). Rollins; 261 F.3d at 856; Morgan v. Comm’r of Soc. Sec. Plaintiff contends that 10 “[t]he fact that Imitrex[ ] relieves the symptoms at onset does 11 not mean that [Plaintiff] experiences no symptoms at all.” 12 No. 19 at 6). However, the ALJ is not questioning whether Plaintiff 13 suffers from any migraine symptoms. 14 that someone whose prognosis is good and whose migraine symptoms 15 are relieved with medication would be incapable of performing any 16 work. (Dkt. Instead, the ALJ was skeptical 17 18 Dr. Bleakley’s opinion is also belied by his own treatment 19 notes. “A 20 provider’s opinions may constitute an adequate reason to discredit 21 the opinions of a treating physician or another treating provider.” 22 Ghanim, 23 indicate 24 Imitrex. 25 migraine headaches occur only randomly, are relieved by Imitrex, 26 and are “fairly controlled” with the current treatment regimen. 27 (AR 302, 304). 28 status 763 conflict F.3d that at between 1161. Plaintiff’s (AR 281, 290). treatment Dr. notes Bleakley’s symptoms are and a treatment being treating records controlled with Dr. Bleakley observed that Plaintiff’s Further, Dr. Bleakley diagnosed migraine without migrainosus, not intractable, 20 which indicates that 1 Plaintiff’s migraines are responding to treatment. 2 issue is not whether Plaintiff experiences migraine headaches. 3 Instead, 4 uncontrollable, such that Plaintiff is precluded from all work 5 capacities. 6 medication 7 eligibility for SSI benefits.” it is whether the headaches, when (AR 304). they occur, The are “Impairments that can be controlled effectively with are not disabling for the purpose of determining Warre, 439 F.3d at 1006. 8 9 Dr. Bleakley’s opinions are also unsupported by clinical 10 testing. “[A]n ALJ may discredit treating physicians’ opinions 11 that are conclusory, brief, and unsupported by the record as a 12 whole or by objective medical findings.” 13 Sec. 14 omitted). 15 specific 16 limited.” 17 supports Dr. Bleakley’s opinion that Plaintiff can only lift less 18 than ten pounds and is incapable of sitting or standing more than 19 two hours in an eight-hour workday. 20 testing performed was largely unremarkable. Admin., 359 F.3d 1190, 1195 Batson v. Comm'r of Soc. (9th Cir. 2004) (citation As the ALJ found, “Dr. Bleakley does not provide any explanations (AR 28). for why [Plaintiff] is so functionally Indeed, there is nothing in the record that To the contrary, the clinical (AR 289, 292, 309). 21 22 The ALJ properly concluded that “Dr. Bleakley took 23 [Plaintiff’s] subjective allegations at face value and merely 24 reiterated 25 assertions regarding [Plaintiff’s] ability to work.” 26 ALJ may reject a treating physician’s opinion if it is based to a 27 large extent on a claimant’s self-reports that have been properly 28 discounted as incredible.” those allegations in his reports when making his (AR 28). “An Tommasetti, 533 F.3d at 1041 (citation 21 1 omitted). As discussed above, the ALJ’s rejection of Plaintiff’s 2 subjective complaints was supported by substantial evidence. Here, 3 given that Plaintiff’s allegations of disabling symptoms from his 4 migraine 5 appears that Dr. Bleakley’s opinions were based to a large extend 6 on Plaintiff’s self-reports and were, therefore, properly rejected 7 by the ALJ. attacks are otherwise unsupported in the record, it 8 9 These findings provide a specific and legitimate basis for 10 the ALJ to discount Dr. Bleakley’s opinions in favor of other 11 opinions. 12 be better supported by the evidence and more consistent with the 13 record as a whole. 14 Bleakley’s 15 consultative examiner and the state agency consultant. 16 and Thomas opined that Plaintiff is capable of “light” exertion, 17 with no concentrated exposure to dust or fumes. 18 The ALJ found that these opinions were consistent with the medical 19 record and gave them great weight. 20 the consultative examiner included “detailed clinical findings and 21 narratives explaining and supporting the examiner’s medical opinion 22 and 23 consultative 24 substantial 25 Stubbs-Danielson v. Astrue, 539 F.3d 1169, 1174 (9th Cir. 2008); 26 see 27 opinion alone constitutes substantial evidence, because it rests 28 on his own independent examination of [the claimant].”). The ALJ properly found other opinions in the record to opinions functional See Tonapetyan, 242 F.3d at 1149. were assessment.” examiner evidence Tonapetyan, contradicted 242 and in support F.3d at 28). agency of 1149 22 the (AR 28). (AR state by the opinions Dr. of the Drs. Gerber (AR 61-62, 209). He emphasized that The opinions consultant ALJ’s RFC (“[Consultative of a constitute assessment. examiner’s] 1 In sum, the ALJ provided specific and legitimate reasons, 2 supported by substantial evidence in the record, for giving Dr. 3 Bleakley’s 4 substantial 5 Bleakley’s opinions, no remand is required. opinions evidence little weight. supports the Accordingly, ALJ’s assessment because of Dr. 6 7 VIII. 8 CONCLUSION 9 10 Consistent with the foregoing, IT IS ORDERED that Judgment be 11 entered AFFIRMING the decision of the Commissioner. The Clerk of 12 the Court shall serve copies of this Order and the Judgment on 13 counsel for both parties. 14 15 DATED: March 13, 2018 16 /S/ __________ SUZANNE H. SEGAL UNITED STATES MAGISTRATE JUDGE 17 18 19 20 21 THIS DECISION IS NOT INTENDED FOR PUBLICATION LEXIS/NEXIS OR ANY OTHER LEGAL DATABASE. 22 23 24 25 26 27 28 23 IN WESTLAW,

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