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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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

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ANDREW SWARTZ,
Plaintiff,

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v.

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CASE NO. CV 17-4186 SS

MEMORANDUM DECISION AND ORDER

NANCY A. BERRYHILL, Acting
Commissioner of Social
Security,
Defendant.

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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

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States Magistrate Judge.

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stated below, the Court AFFIRMS the Commissioner’s decision.

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“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.”
<https://www.drugs.com/imitrex.html> (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.

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(AR 205).

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chocolate, wine, and cheese, and are relieved with medications.

16

(AR 205).

17

09).

18

migraine

19

neurologic examination today.”

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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. <https://migraine.com/blog/the-ins-and-outs-of-intractable/>
(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).

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16

IV.

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THE FIVE-STEP SEQUENTIAL EVALUATION PROCESS

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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.

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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,