Adam Richard Nagler v. Nancy A. Berryhill

Filing 21

MEMORANDUM OPINION AND ORDER by Magistrate Judge John D. Early. IT THEREFORE IS ORDERED that judgment be entered affirming the decision of the Commissioner and dismissing this action with prejudice. (see document for details). (dro)

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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

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WESTERN DIVISION

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ADAM RICHARD NAGLER,

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Plaintiff,

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

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Defendant.

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) Case No. CV 17-05216-JDE
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) MEMORANDUM OPINION AND
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) ORDER
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Plaintiff Adam Richard Nagler (“Plaintiff”) filed a Complaint on July

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14, 2017, seeking review of the Commissioner’s denial of his application for

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disability insurance benefits (“DIB”). The parties filed consents to proceed

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before the undersigned Magistrate Judge. In accordance with the Court’s

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Order Re: Procedures in Social Security Appeal, the parties filed a Joint

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Stipulation (“Jt. Stip.”) on March 22, 2018, addressing their respective

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positions. The Court has taken the Joint Stipulation under submission without

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oral argument and as such, this matter now is ready for decision.

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I.

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BACKGROUND

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On December 5, 2012, Plaintiff applied for DIB, alleging disability

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beginning May 18, 2009. (Administrative Record [“AR”] 17, 189-90.) After his

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application was denied initially (AR 105-09) and on reconsideration (AR 111-

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15), Plaintiff requested an administrative hearing, which was held on

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September 28, 2015. (AR 35, 116-17.) Plaintiff, represented by counsel,

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appeared and testified at the hearing before an Administrative Law Judge

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(“ALJ”), as did two medical experts, Dr. Harvey Alpern, M.D. (“Dr.

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Alpern”), misidentified in the hearing transcript as Dr. Halperin, and

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Psychologist Ken Griffin (“Dr. Griffin”), and vocational expert, Gregory

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Jones. (AR 35-73.)

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On October 26, 2015, the ALJ issued a written decision finding Plaintiff

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was not disabled. (AR 14-28.) The ALJ found that Plaintiff had not engaged in

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substantial gainful activity from May 18, 2009, the alleged onset date, through

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the date last insured of December 31, 2014. (AR 19.) The ALJ determined that

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Plaintiff suffered from the following severe impairments: history of left

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shoulder surgery with complications; left carpal tunnel syndrome;

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hypertension; and obesity. (Id.) The ALJ found that Plaintiff did not have an

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impairment or combination of impairments that met or medically equaled a

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listed impairment. (AR 21-22.) The ALJ also found that Plaintiff had the

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residual functional capacity (“RFC”) to perform light work, with the following

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limitations: Plaintiff could (1) stand and walk a total of four hours in an eight

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hour workday; (2) only occasionally push and pull with the left upper

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extremity; (3) never climb ladders, ropes, or scaffolds; (4) only occasionally

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reach overhead with the left upper extremity; and (5) only occasionally grasp

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with the left upper extremity. (AR 22.) The ALJ further found that Plaintiff’s

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RFC precluded him from performing any past relevant work, but considering
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his age, education, work experience, and RFC, Plaintiff was capable of making

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a successful adjustment to other work that existed in significant numbers in the

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national economy. (AR 26-28.) Accordingly, the ALJ concluded that Plaintiff

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was not under a “disability,” as defined in the Social Security Act. (AR 28.)

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Plaintiff filed a request with the Appeals Council for review of the ALJ’s

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decision. (AR 187, 334-36.) On May 17, 2017, the Appeals Council denied

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Plaintiff’s request for review, making the ALJ’s decision the Commissioner’s

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final decision. (AR 1-6.) This action followed.

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II.

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STANDARD OF REVIEW

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Under 42 U.S.C. § 405(g), a district court may review the

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Commissioner’s decision to deny benefits. The ALJ’s findings and decision

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should be upheld if they are free from legal error and supported by substantial

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evidence based on the record as a whole. Brown-Hunter v. Colvin, 806 F.3d

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487, 492 (9th Cir. 2015) (as amended); Parra v. Astrue, 481 F.3d 742, 746 (9th

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Cir. 2007). Substantial evidence means such relevant evidence as a reasonable

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person might accept as adequate to support a conclusion. Lingenfelter v.

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Astrue, 504 F.3d 1028, 1035 (9th Cir. 2007). It is more than a scintilla, but less

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than a preponderance. Id. To determine whether substantial evidence supports

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a finding, the reviewing court “must review the administrative record as a

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whole, weighing both the evidence that supports and the evidence that detracts

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from the Commissioner’s conclusion.” Reddick v. Chater, 157 F.3d 715, 720

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(9th Cir. 1998). “If the evidence can reasonably support either affirming or

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reversing,” the reviewing court “may not substitute its judgment” for that of

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the Commissioner. Id. at 720-21; see also Molina v. Astrue, 674 F.3d 1104,

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1111 (9th Cir. 2012) (“Even when the evidence is susceptible to more than one

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rational interpretation, [the court] must uphold the ALJ’s findings if they are

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supported by inferences reasonably drawn from the record.”). However, a
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court may review only the reasons stated by the ALJ in his decision “and may

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not affirm the ALJ on a ground upon which he did not rely.” Orn v. Astrue,

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495 F.3d 625, 630 (9th Cir. 2007).
Lastly, even when the ALJ commits legal error, the Court upholds the

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decision where that error is harmless. Molina, 674 F.3d at 1115. An error is

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harmless if it is “inconsequential to the ultimate nondisability determination,”

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or if “the agency’s path may reasonably be discerned, even if the agency

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explains its decision with less than ideal clarity.” Brown-Hunter, 806 F.3d at

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492 (citation omitted).

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III.

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DISCUSSION

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The parties present three disputed issues (Jt. Stip. at 2):

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Issue No. 1: Whether the ALJ properly evaluated the medical opinion

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evidence;
Issue No. 2: Whether the ALJ properly evaluated Plaintiff’s subjective

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symptoms; and
Issue No. 3: Whether the ALJ properly determined Plaintiff’s RFC.1

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A.

Medical opinions

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In deciding how to resolve conflicts between medical opinions, the ALJ

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must consider that there are three types of physicians who may offer opinions

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in Social Security cases: (1) those who directly treated the plaintiff, (2) those

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who examined but did not treat the plaintiff, and (3) those who did not treat or

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examine the plaintiff. See 20 C.F.R. § 404.1527(c); Lester v. Chater, 81 F.3d

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In its entirety, this issue is framed as whether the ALJ properly determined
Plaintiff’s RFC and “[a]bility to [p]erform her [sic] [p]ast [r]elevant [w]ork.” (Jt. Stip.
at 2.) Because the ALJ did not determine Plaintiff could perform his past relevant
work and this issue is not discussed further in the Joint Stipulation, the Court
assumes this additional contention was a mistake.
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821, 830 (9th Cir. 1996) (as amended). A treating physician’s opinions are

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entitled to greater weight because a treating physician is employed to cure and

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has a greater opportunity to know and observe the patient as an individual. See

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Magallanes v. Bowen, 881 F.2d 747, 751 (9th Cir. 1989). “The treating

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physician’s opinion is not, however, necessarily conclusive as to either a

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physical condition or the ultimate issue of disability.” Id. “The ALJ may

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disregard the treating physician’s opinion whether or not that opinion is

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contradicted.” Id. For instance, “[t]he ALJ need not accept the opinion of any

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physician . . . if that opinion is brief, conclusory, and inadequately supported

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by clinical findings.” Bray v. Comm’r of Soc. Sec. Admin., 554 F.3d 1219,

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1228 (9th Cir. 2009) (citation omitted); Tonapetyan v. Halter, 242 F.3d 1144,

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1149 (9th Cir. 2001). To reject the uncontradicted opinion of a treating

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physician, the ALJ must provide “clear and convincing reasons that are

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supported by substantial evidence.” Bayliss v. Barnhart, 427 F.3d 1211, 1216

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(9th Cir. 2005). Where the treating physician’s opinion is contradicted by

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another physician’s opinion, the “ALJ may only reject it by providing specific

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and legitimate reasons that are supported by substantial evidence.” Id. The

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opinion of a non-examining physician, standing alone, cannot constitute

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substantial evidence. Widmark v. Barnhart, 454 F.3d 1063, 1066 n.2 (9th Cir.

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2006) (citing Lester, 81 F.3d at 831); Morgan v. Comm’r of the Soc. Sec.

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Admin., 169 F.3d 595, 602 (9th Cir. 1999).

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Dr. Hung

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Dr. Calvin Hung, M.D. (“Dr. Hung”) began treating Plaintiff around

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April 2010. (AR 424.) On March 11, 2013, Dr. Hung completed a medical

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source statement form (AR 440-41), wherein he concluded that Plaintiff could

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lift and/or carry ten pounds occasionally and less than ten pounds frequently;

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stand and/or walk at least two hours in an eight hour workday; sit six hours in

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an eight hour workday; Plaintiff would need to alternate standing and sitting;
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could never climb, stoop, kneel, crouch, or crawl; occasionally balance;

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handle, finger, and feel constantly and reach frequently with his right hand;

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and never reach, handle, or finger and occasionally feel with his left hand. (AR

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440-41.) In support of these findings, Dr. Hung cited to Plaintiff’s decreased

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range of motion and function with the left upper extremity, pain, and

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numbness. (Id.) Dr. Hung further restricted Plaintiff from heights and moving

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machinery. (AR 441.) He indicated that Plaintiff’s prognosis was poor. (Id.)

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The ALJ gave little weight to Dr. Hung’s assessments, finding that “the
probative value of this evidence [was] undermined by a lack of

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contemporaneous treatment records upon which the opinion purports to be

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based or any other medical records.” (AR 25.) The ALJ noted that Dr. Hung’s

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treatment records from 2013 primarily reflected routine visits for blood

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pressure monitoring and lab work and did not reflect the sort of physical

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abnormalities one would expect if Plaintiff was as limited as assessed. (AR 25-

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26.) The ALJ further indicated that Dr. Hung’s opinion was diminished by the

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fact that the assessed limitations were “so extreme as to appear implausible,

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given the evidence in this case.” (AR 26.) For instance, Dr. Hung concluded

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that Plaintiff could never perform postural activities and could never reach,

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handle, or finger with the left upper extremity. The ALJ found that there was

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no support in the record for these limitations. (Id.) The ALJ additionally

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explained that, unlike the medical expert, Dr. Alpern, Dr. Hung lacked

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disability program knowledge and did not have an opportunity to review all of

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the medical evidence through the date last insured. (Id.) Finally, the ALJ

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found that the limitations assessed by Dr. Hung departed significantly from

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those assessed by the physicians involved in Plaintiff’s workers’ compensation

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claim, specifically, Dr. Benjamin Broukhim, M.D. (“Dr. Broukhim”) and Dr.

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Roger Sohn, M.D. (“Dr. Sohn”). The ALJ explained that the relative

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probative value of these opinions was diminished by remoteness, but noted
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that they were essentially consistent with the conclusions reached in the

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decision. The ALJ noted that Dr. Broukhim released Plaintiff in May 2009 –

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the month of his shoulder injury – to modified duties with no lifting greater

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than ten pounds. Following shoulder surgery, Dr. Broukhim assessed

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limitations similar to those of Dr. Alpern, including no lifting in excess of

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thirty pounds, no repetitive work above shoulder level, and no power grasping

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or holding. (Id.) Dr. Sohn opined that Plaintiff was limited to no heavy work

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and no work at or above shoulder level as to the left shoulder and limited to no

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very forceful activities as to the left hand. (Id.)

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An ALJ is permitted to reject a treating physician’s opinion that is

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unsupported by the record as a whole. Batson v. Comm’r of the Soc. Sec.

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Admin., 359 F.3d 1190, 1195 (9th Cir. 2004); see also Shavin v. Comm’r of

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Soc. Sec. Admin., 488 F. App’x 223, 224 (9th Cir. 2012) (ALJ may reject

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physician’s opinion by “noting legitimate inconsistencies and ambiguities in

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the doctor’s analysis or conflicting lab test results, reports, or testimony”

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(internal citation omitted)). As the ALJ specifically noted, Dr. Hung’s

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assessments were not supported by his contemporaneous treatment records.

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The treatment note for March 11, 2013 – the same date the medical source

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statement was completed – reflected that Plaintiff was being seen for follow up

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on his blood pressure and to complete a social security form, presumably

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referring to the medical source statement. (AR 401.) At that time, Dr. Hung

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noted that Plaintiff’s left shoulder and neck pain were stable. (Id.) Although

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Dr. Hung reported limited range of motion with limiting factors of pain and

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decreased strength in his left shoulder, his findings with respect to the right

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shoulder were normal. Despite limited range of motion in the left shoulder and

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normal range of motion and strength on the right shoulder, Dr. Hung

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concluded in the medical source statement that Plaintiff could only lift and/or

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carry ten pounds occasionally and less than ten pounds frequently. (AR 4027

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403, 440.) Dr. Hung noted left wrist strength was decreased, but did not

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indicate that Plaintiff essentially lost all use his left hand except for occasional

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feeling, as assessed in his medical source statement. (Compare AR 403 (left

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wrist strength decreased) with 441 (Plaintiff could never reach, handle, or

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finger and occasionally feel with his left hand).)2 Dr. Hung’s progress note

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from December 2012 is similar. At that time, Plaintiff primarily visited him for

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follow on his lab work. (AR 404.) Plaintiff reported that the tingling and arm

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pain was better and his prescription for Gabapentin was helping with the pain.

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(Id.) Dr. Hung noted limited range of motion with the left shoulder with

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limiting factors of pain, and decreased left wrist strength. (AR 405.) Plaintiff

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was advised to do range of motion exercises. (AR 406.)
As noted, the ALJ also indicated that Dr. Hung’s assessed limitations

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with respect to postural activities were unsupported by the record. (AR 26.) Dr.

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Hung indicated that Plaintiff could never climb, stoop, kneel, crouch, or crawl.

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(AR 441.) Plaintiff argues that Dr. Hung was “not stating he [could not] do

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any of these activities ever, just not on a regular basis in a given workday.” (Jt.

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Stip. at 4.) The Court finds this argument unpersuasive. Regardless of whether

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Dr. Hung was evaluating an eight hour workday or longer, the

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contemporaneous treatment records do not show that Plaintiff was precluded

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from these activities.
The ALJ also found that unlike Dr. Alpern, Dr. Hung lacked disability

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program knowledge and did not have an opportunity to review all of the
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To the extent Plaintiff contends that despite the ALJ’s specific finding that Dr.
Hung’s opinion was not supported by the “contemporaneous treatment records,” the
Court is not permitted to review the actual inconsistent assessments themselves
because “this [was] not a reason cited by the ALJ in rejecting the doctor’s opinion”
(Jt. Stip. at 17), the Court disagrees. The ALJ expressly cited Dr. Hung’s findings
regarding lifting, postural limitations, reach, handling, and fingering with the left
upper extremity. (AR 25-26.)

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medical evidence through the date last insured. (AR 26.) See also 20 C.F.R. §

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404.1527(c)(6) (listing “the amount of understanding of our disability programs

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and their evidentiary requirements that a medical source has” and “the extent

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to which a medical source is familiar with the other information in your case

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record” as relevant factors when considering how much weight to give a

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medical opinion). The ALJ also concluded that the limitations assessed by Dr.

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Hung conflicted with the findings of the workers’ compensation physicians,

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Drs. Broukhim and Sohn. (AR 26.) Again, these findings are supported by

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substantial evidence in the record. The ALJ gave great weight to the opinion

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provided by Dr. Alpern, who had the opportunity to review all of the medical

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evidence through the date last insured. (AR 25.) Dr. Alpern found that Plaintiff

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could lift twenty pounds occasionally, ten pound frequently; stand and/or

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walk four out of eight hours; sit six out of eight hours; no left overhead;

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occasionally push and pull with his left upper extremity; occasionally gross

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grasp with the left hand; no fine restriction; and no ropes or ladders. (AR 45.)

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In June 2010, Dr. Broukhim restricted Plaintiff to no lifting greater than thirty

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pounds with his left shoulder, no repetitive work at above shoulder level, and

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no repetitive power grasping or holding with the left wrist. (AR 362.) A month

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later, Dr. Sohn limited Plaintiff to no “heavy” work with respect to the left

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shoulder; no work at or above shoulder level; and no very forceful activities

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with the left hand. (AR 551.) Because Dr. Broukhim treated Plaintiff and Dr.

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Sohn examined Plaintiff, their opinions constitute substantial evidence for the

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ALJ’s rejection of Dr. Hung’s opinion. See Tonapetyan, 242 F.3d at 1149;

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Andrews v. Shalala, 53 F.3d 1035, 1041 (9th Cir. 1995).

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Plaintiff briefly argues that the state agency physicians’ opinions

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provided further support for Dr. Hung’s opinion, but the ALJ “failed to

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provide a rationale of the weight given to the State Agency physicians.” (Jt.

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Stip. at 5.) In particular, Plaintiff refers to assessed limitations to occasional
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fingering with the left hand, and occasional climbing ramps and stairs,

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balancing, stooping, kneeling, crouching, and crawling. (Id.) Contrary to

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Plaintiff’s contention, the ALJ expressly discussed the opinion of state agency

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medical consultant Dr. H.M. Estrin, M.D., finding that it was consistent with

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Dr. Alpern’s opinion and that with respect to the variances, the ALJ gave Dr.

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Alpern’s opinion greater weight because relatively little evidence was available

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at the time of Dr. Estrin’s evidentiary review. (AR 25.) Although the ALJ did

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not separately discuss the opinion of the other state agency medical consultant,

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Dr. C. Scott, M.D. (“Dr. Scott”), any error in failing to explain the weight

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given to this state agency consultant’s findings was harmless. The ALJ noted

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that it carefully considered “all the evidence.” (AR 17.) Dr. Scott’s assessed

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postural limitations were less restrictive than those provided by Dr. Estrin and

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the same with respect to fine manipulation, (compare AR 83 with AR 98-99),

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and as explained, the ALJ gave greater weight to Dr. Alpern’s opinion over

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Dr. Estrin’s because “relatively little evidence” was available at the time of Dr.

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Estrin’s December 2013 evidentiary review. (AR 25.) Plaintiff does not

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challenge this finding. When Dr. Scott rendered his opinion in April 2013, the

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medical evidence available for review was even more limited. (See AR 111.)

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As such, a failure to address Dr. Scott’s opinion would not have altered the

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outcome. See Molina, 674 F.3d at 1115; Chislock v. Astrue, 2010 WL

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2787955, at *10 (C.D. Cal. July 14, 2010) (concluding that any error in failing

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to explain the weight given to the state agency findings was harmless).

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Finally, Plaintiff contends that the ALJ should have recontacted doctors

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if she had a question as to the completeness of the record or it did not appear

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to be based on medically acceptable clinical and laboratory diagnostic

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techniques. (Jt. Stip. at 4-5, 20-21.) Plaintiff principally relies on language in

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Social Security Ruling (“SSR”) 96-5p, 1996 WL 374183, at *6 which states:

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Because treating source evidence (including opinion evidence) is
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important, if the evidence does not support a treating sources

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opinion on any issue reserved to the Commissioner and the

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adjudicator cannot ascertain the basis of the opinion from the case

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record, the adjudicator must make “every reasonable effort” to

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recontact the source for clarification of the reasons for the opinion.

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However, “[a]n ALJ is required to recontact a doctor only if the doctor’s report

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is ambiguous or insufficient for the ALJ to make a disability determination.”

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Bayliss, 427 F.3d at 1217; Webb v. Barnhart, 433 F.3d 683, 687 (9th Cir. 2005)

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(“The ALJ’s duty to supplement a claimant’s record is triggered by ambiguous

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evidence, the ALJ’s own finding that the record is inadequate or the ALJ’s

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reliance on an expert’s conclusion that the evidence is ambiguous.”). Here, the

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ALJ never stated that Dr. Hung’s opinion was ambiguous or insufficient to

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make a disability determination; rather, the ALJ discounted it because it was

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contradicted by the record. A conflict between the medical opinions does not

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mean that there is ambiguous evidence that triggers a duty to develop the

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record further. See Freeman v. Colvin, 2016 WL 6123538, at *1 (9th Cir. Oct.

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20, 2016) (“conflict between medical opinions alone does not render evidence

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ambiguous”). Where the physician’s reports are neither ambiguous nor

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insufficient to make a disability determination, the ALJ is not required to

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recontact the treating physicians before finding a claimant not disabled. See

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Thornsberry v. Colvin, 552 F. App’x 691, 692 (9th Cir. 2014).

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Here, the ALJ provided specific and legitimate reasons supported by

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substantial evidence for according Dr. Hung’s opinion little weight, including

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the opinions of treating and examining physicians. Even if there are two

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rational interpretations of the evidence, the ALJ’s decision must be upheld. See

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Gallant v. Heckler, 753 F.2d 1450, 1453 (9th Cir. 1984) (“Where evidence is

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susceptible of more than one rational interpretation, it is the ALJ’s conclusion

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which must be upheld.”). The record before the ALJ was neither ambiguous
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nor inadequate to allow for proper evaluation of the evidence. The ALJ had no

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duty to further develop the record. See Mayes v. Massanari, 276 F.3d 453, 460

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(9th Cir. 2001) (finding no duty to develop record where there was substantial

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evidence supporting the ALJ’s decision that the plaintiff was not disabled).

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The Court finds that the ALJ did not err in rejecting Dr. Hung’s opinion.

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2.

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Plaintiff also contends that the ALJ erred in evaluating Dr. Broukhim’s

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finding that he should remain off work if he is on pain medication and muscle

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relaxers. (Jt. Stip. at 5.) Plaintiff argues that the ALJ found no cognitive

Dr. Broukhim’s recommendation regarding medication side effects

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impairment, but treating and examining physicians3 noted the effects of his

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medication caused difficulty with his cognitive functioning. (Id. at 4.)4
On September 14, 2009, Dr. Broukhim conducted an interim workers’

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compensation examination, and noted that he was awaiting authorization for

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left shoulder arthroscopic surgery. (AR 389.) He released Plaintiff to modified

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duties with no lifting greater than ten pounds and noted, “[o]bviously if he is

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taking the pain medication and muscle relaxers he should be off work.” (AR

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390.) Later that month, Dr. Broukhim conducted another interim workers’

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compensation examination and recommended an updated MRI arthrogram of

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the left shoulder. (AR 387.) Dr. Broukhim noted that Plaintiff was apparently

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sent home from work “since he was taking medication and he [was] not

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Although Plaintiff refers to treating and examining physicians, he only specifically
discusses Dr. Broukhim’s finding.
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The Commissioner spends several pages arguing that Plaintiff did not have any
medically determinable mental impairment. However, as framed by Plaintiff, the
issue is limited to Dr. Broukhim’s opinion regarding the pain medication and muscle
relaxers. (Jt. Stip. at 5, 22 (“To Issue No. 1, Plaintiff’s contention is that Dr.
Broukhim’s opinion that he could not work while on pain medication and muscle
relaxers was improperly rejected as it was not even considered.”).) The Court
addresses the disputed issue accordingly.

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allowed in the workplace due to the usage of heavy equipment.” (Id.)

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Accordingly, Dr. Broukhim recommended that Plaintiff “remain off work due

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to his intake of medications and pending surgical intervention to his left

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shoulder.” (Id.) In November 2009, Dr. Broukhim similarly noted that Plaintiff

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was apparently sent home from work “since he was taking medication and he

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[was] not allowed in the workplace due to the usage of heavy equipment.” (AR

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386.) Therefore, Plaintiff would “remain off work due to his intake of

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medications and pending surgical intervention to his left shoulder.” (Id.) After

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being released to return to work following surgery in January 2010, Dr.

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Broukhim’s work status recommendations did not include any work

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restrictions based medication use. (See, e.g., AR 362 (6/3/10), 367 (4/22/10).)

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The ALJ noted that although Plaintiff testified that he has limited

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cognitive function, i.e., “problems with memory and concentration,” Dr.

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Griffin opined that the evidence in this case did not establish any medically

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determinable mental impairment. (AR 20.) The ALJ gave great weight to Dr.

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Griffin’s opinion in light of his medical training; his knowledge of the disability

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program; the fact that he had an opportunity to review all of the relevant

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medical evidence; a state agency psychological consultant reached the same

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conclusion; and was fully consistent with Plaintiff’s accomplishments, valid

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driver’s license, and activities of daily living. (AR 20-21.)

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With respect to side effects from Plaintiff’s medication, the ALJ found

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that Plaintiff reported no side effects from his medication regimen, which the

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ALJ found “casts doubt on his testimony in this regard, which was again

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inconsistent.” (AR 24.) Further, the ALJ noted that a review of the medical

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records failed to reveal any evidence corroborating Plaintiff’s allegations of

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significantly limited cognitive function secondary to medication use. (Id.) In

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2012, Plaintiff reported that his medication helped his pain and generally made

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his condition better. In 2014 and 2015, Plaintiff consistently exhibited an
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entirely normal mental status and did not mention adverse medication side

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effects. (Id.)

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The ALJ’s findings were supported by substantial evidence. During the

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administrative hearing, Plaintiff’s attorney asked Dr. Griffin whether the pain

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medication Plaintiff was taking would “cause cognitive limitations, or [was]

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that consistent with cognitive limitations?” (AR 60.) Dr. Griffin responded that

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typically an individual’s “mentation adjusts to the medication. No. It might

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perhaps initially, but not substantially over time. [¶] Difficulty in concentrating

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identified in the record is likely secondary to [Plaintiff’s] report of chronic

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pain.” (Id.) This assessment is consistent with Dr. Broukhim’s

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recommendation that Plaintiff remain off work while taking medication. Dr.

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Broukhim’s recommendations were made shortly after Plaintiff’s shoulder

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injury – within the first six months – when Plaintiff first began treatment with

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pain medication. Notably, Dr. Broukhim’s later reports do not reflect any such

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restriction. Plaintiff does not refer to any other medical opinions finding that

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his pain medication would cause any lasting cognitive impairment.

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Further, as the ALJ noted, Plaintiff has not reported any side effects

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from his medication regimen. (AR 24.) Plaintiff did not report any adverse

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medication side effects in recent office visits. (See, e.g., AR 576, 581, 586, 591,

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596, 601, 606, 611, 617, 622.) Similarly, Plaintiff did not report any medication

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side effects in his most recent pain management assessments, (see AR 630

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(6/19/15 reported that taking Percocet allowed him limited function), 632

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(10/28/14 reported that taking Oxycontin helped manage pain and let him

24

have his life back a little), 660 (9/15/15 reported that taking Percocet allowed

25

him limited function), 662 (8/14/15 reported that taking Percocet was the only

26

thing that relieved his pain), 664 (6/10/15 reported that taking an unidentified

27

opioid worked to decrease his pain), 666 (3/20/15 reported that taking

28

Percocet allowed him limited function), 668 (4/21/15 reported the same), 670
14

1

(5/19/15 reported the same), 672 (2/23/15 reported the same), 674 (1/23/15

2

no results noted), 676 (12/29/14 reported that taking Percocet allowed him to

3

function and “live [his] life”), and indicated to Dr. Hung that he was “[d]oing

4

well on Perco[c]et” and denied any adverse drug reactions. (AR 581.) See

5

Lester, 81 F.3d at 832 (“medical evaluations made after the expiration of a

6

claimant’s insured status are relevant to an evaluation of the preexpiration

7

condition” (citation omitted)). The Court agrees with the ALJ that a review of

8

the medical records fails to reveal any evidence corroborating Plaintiff’s

9

allegations of significantly limited cognitive function as a result of medication

10

use. The only references the Court has found where Plaintiff reported to his

11

treating physicians that he was experiencing adverse side effects from

12

medication was in April 2012 and October 2014. In April 2012, Plaintiff

13

reported that he could not tolerate Amlodipine and it was discontinued. (AR

14

410-11.) In October 2014, Plaintiff reported that he was mobile with Percocet

15

and could function, but noted that taking Gabapentin more than 300 mg three

16

times a day made him more withdrawn.5 (AR 627.) Plaintiff, however, did not

17

report any cognitive impairment from the medication, and in any event,

18

Plaintiff’s prescription for Gabapentin was limited to 300 mg three times a day.

19

(See, e.g., AR 613, 621, 624, 626.) Substantial evidence supports the ALJ’s

20

findings as to a cognitive impairment based on effects of Plaintiff’s medication.

21

B.

Plaintiff’s subjective symptom testimony
Where a disability claimant produces objective medical evidence of an

22
23

underlying impairment that could reasonably be expected to produce the pain

24

or other symptoms alleged, absent evidence of malingering, the ALJ must

25
26
27
28

5

The Court notes that the ALJ found Plaintiff remained capable of doing other work
existing in significant numbers even assuming an additional limitation to only brief
and casual contact with others in the workplace. (AR 21, 27.)

15

1

provide “‘specific, clear and convincing reasons for’ rejecting the claimant’s

2

testimony regarding the severity of the claimant’s symptoms.” Treichler v.

3

Comm’r of Soc. Sec. Admin., 775 F.3d 1090, 1102 (9th Cir. 2014) (citation

4

omitted); Moisa v. Barnhart, 367 F.3d 882, 885 (9th Cir. 2004); see also 20

5

C.F.R. § 404.1529(a). The ALJ’s findings “must be sufficiently specific to

6

allow a reviewing court to conclude that the [ALJ] rejected [the] claimant’s

7

testimony on permissible grounds and did not arbitrarily discredit the

8

claimant’s testimony.” Moisa, 367 F.3d at 885 (citation omitted). However, if

9

the ALJ’s assessment of the claimant’s testimony is reasonable and is

10

supported by substantial evidence, it is not the court’s role to “second-guess” it.

11

See Rollins v. Massanari, 261 F.3d 853, 857 (9th Cir. 2001).6
On March 11, 2013, Plaintiff completed a function report, stating that

12
13

his medical conditions restrict his ability to perform his past work because he

14

has such pain in his left arm after a short period of time, it takes him one to

15

two days to recover. (AR 234-42.) He cannot type or write reports because of

16

his dyslexia and inability to do math. (AR 234.) He reported trouble lifting,

17

standing, reaching, walking, sitting, using his hands, completing tasks,

18

concentrating, and understanding. (AR 239.) He indicated that he cannot lift

19
20
21
22
23
24
25
26
27

After the ALJ’s decision, SSR 16-3p went into effect. See SSR 16-3p, 2016 WL
1119029 (Mar. 16, 2016). SSR 16-3p provides that “we are eliminating the use of the
term ‘credibility’ from our sub-regulatory policy, as our regulations do not use this
term.” Id. Moreover, “[i]n doing so, we clarify that subjective symptom evaluation is
not an examination of an individual’s character” and requires that the ALJ consider
all of the evidence in an individual’s record when evaluating the intensity and
persistence of symptoms. Id.; see also Trevizo v. Berryhill, 871 F.3d 664, 678 n.5 (9th
Cir. 2017) (as amended). Thus, the adjudicator “will not assess an individual’s
overall character or truthfulness in the manner typically used during an adversarial
court litigation. The focus of the evaluation of an individual’s symptoms should not
be to determine whether he or she is a truthful person.” SSR 16-3p, 2016 WL
1119029, at *10.
6

28
16

1

much of anything with his left arm, and cannot sit or stand without shifting.

2

(Id.) He can walk for twenty minutes before needing to rest, and must then rest

3

approximately two hours before he can resume walking. (Id.) He does not

4

handle stress or changes in routine well. (AR 240.) His medications make him

5

drowsy, unable to focus, and reduce his creativity. (AR 241.)7
Plaintiff stated in the function report that he wakes up in the morning

6
7

and his wife gives him his medication and breakfast. He sometimes drives his

8

children to school. He spends the rest of the day sitting. (AR 235.) He has

9

difficulty sleeping because of pain in his neck, shoulder, and left arm. (Id.) He

10

has difficulty bathing because of his left arm. (Id.) He needs reminders to take

11

care of his personal needs, grooming, and to take his medications. (AR 236.)

12

He does not prepare his own meals or do household chores because of the

13

pain. (AR 236-37.) He does not pay bills, handle a savings account, or use a

14

checkbook/money orders because he is dyslexic. (AR 237.) He watches

15

television, but noted that he used to have many different, fun hobbies and an

16

active life. (AR 238-39.) He no longer has a social life or hobbies. (AR 241.)
During the administrative hearing, Plaintiff testified that in a typical day

17
18

he sits at home and does not do much. (AR 41.) He wakes up, takes his

19

medication and has breakfast, and then usually goes back to bed until noon.

20

He then has lunch, takes his medication, and visits with his family. He

21

sometimes stays up until dinner and then typically sits in his chair for an hour

22

or two before bedtime. (AR 42.) Plaintiff testified that he watches probably

23

three to four hours of television per day and tries to read. (AR 68.) He does not

24

sleep well and does not feel rested in the morning. (AR 63-64.) It varies how

25
26
27
28

7

In his disability appeal, Plaintiff noted that he was taking a different medication
that caused similar effects: loss of concentration, drowsiness, and loss of fine motor
skills. (AR 276.)

17

1

often he sleeps during the day, but generally he takes two naps during the day,

2

occasionally three. (AR 64.) He indicated that he is awake for two to six hours,

3

maybe eight hours, during the day. (AR 65.) He spends the majority of his time

4

in a recliner. (AR 65.) If he was sitting in a regular chair, he estimated he

5

would need to change positions after five to ten minutes and could sit for

6

twenty minutes to thirty minutes before needing to stand up or lay down. (AR

7

66.) Plaintiff reported that if he spent the day sitting in a chair like the one at

8

the hearing, he would probably need to spend two days “virtually immobile.”

9

(Id.) Plaintiff indicated that on a good day, he probably could stand for around

10

an hour and fifteen minutes on a bad day. (AR 64-65.) He then would lie down

11

in a reclined position. (AR 65.) He drives to pick up his son from school once

12

every two weeks. (AR 41.) He also indicated that he drove to the hearing and

13

drives to doctors’ appointments. (Id.) He does not exercise and does not take

14

care of many of his personal needs. (AR 42-43.) He testified that he cannot

15

work because of the limitations from his injuries and a few learning disabilities.

16

(Id.) He testified that he experiences neck and left shoulder pain, which runs

17

down his back “a little bit” and his left arm to his fingertips. (AR 63.) He

18

reported that the pain alternates between feeling like ants, pin pricks, and

19

“different sensations like that.” (AR 63.) He explained that he has problems

20

grasping things with his left hand and drops things. (AR 44.) He also stated

21

that, as a result of his hypertension, he gives the wrong information. (AR 63.)

22

He testified that he experiences memory loss and has trouble concentrating.

23

(AR 67-68.)

24

The ALJ determined Plaintiff’s “medically determinable impairments

25

could reasonably be expected to cause the alleged symptoms,” but his

26

“statements concerning the intensity, persistence and limiting effects of these

27

symptoms rising to the level of disability [were] not reliable for the reasons

28

explained in this decision.” (AR 23.) The ALJ discounted Plaintiff’s subjective
18

1

symptom testimony for the following reasons: (1) lack of objective medical

2

evidence supporting his subjective statements; (2) inconsistent statements; (3)

3

alleged symptoms and limitations at odds with his reported activities; and (4)

4

his course of treatment failed to enhance his allegations of ongoing, disabling

5

symptoms. (AR 23-25.)

6

As an initial matter, the parties agree that the ALJ improperly

7

discounted Plaintiff’s subjective symptom testimony based on his course of

8

treatment. (See Jt. Stip. at 25, 30.)

9

The ALJ also discounted Plaintiff’s subjective symptom testimony

10

because the objective medical evidence did not support his allegations of

11

disabling limitations. (AR 23.) Although a lack of objective medical evidence

12

cannot be the sole reason for rejecting a claimant’s testimony, it can be one of

13

several factors used in evaluating the credibility of Plaintiff’s subjective

14

complaints. See Rollins, 261 F.3d at 857. The ALJ noted that in June 2010,

15

Dr. Broukhim indicated that Plaintiff’s surgical scar had healed, but that there

16

was some residual tenderness at the subacromial region and some limitation in

17

left shoulder of motion. (AR 23, 357.) The ALJ noted, however, that

18

impingement sign was negative and, despite signs of left carpal tunnel

19

syndrome, Plaintiff’s grip strength remained relatively good. (AR 23, 357-58.)

20

The ALJ noted that after settling his workers’ compensation claim in 2011,

21

Plaintiff sought treatment with Dr. Hung. However, the records revealed that

22

Plaintiff’s visits primarily focused on blood pressure management and showed

23

“a relative paucity of findings” regarding Plaintiff’s musculoskeletal

24

condition(s). (AR 23; see, e.g., AR 401-02 (follow up on blood pressure and

25

request for Dr. Hung to complete social security form; mild pain with motion

26

on musculoskeletal examination), 404-06 (follow up on lab work; tingling and

27

arm pain better; cervical spine evaluation reflected active pain free range of

28

motion; recommendation for range of motion exercises), 410 (follow up on
19

1

blood pressure), 413-15 (physical examination, musculoskeletal examination

2

revealed normal range of motion, muscle strength, and stability in all

3

extremities with no pain on inspection), 467 (follow up for blood pressure and

4

lab work, dizziness with ear pain, and “chronic conditions,” described as

5

“[p]ertinent negatives include weight gain and weight loss. Hypertension

6

(onset 7/21/2010; Controlled.) Obesity (onset 07/21/2010; Stable.) Type II

7

diabetes mellitus, uncontrolled”).) Plaintiff’s October 2014 shoulder MRI

8

revealed only postsurgical changes to the AC joint and no other abnormalities

9

except minimal supraspinatus tendinosis. (AR 23, 562.) Further, as the ALJ

10

indicated, recent treatment notes revealed that Plaintiff had full strength in the

11

right upper extremity and only mildly reduced strength in the left upper

12

extremity. (AR 23, 691.) Despite Plaintiff’s allegations of difficulty standing

13

and walking, he exhibited a normal gait; was able to walk on heels and toes;

14

tandem was normal; and an examination of his lower extremities revealed no

15

abnormalities. (Id.) And despite alleged cognitive deficits, Dr. Mark Liker,

16

M.D. described Plaintiff as alert and fully oriented; noted his comprehension

17

was intact; and memory, attention, and concentration were normal. (Id.) This

18

evidence was substantial and reasonably supported the ALJ’s conclusion that

19

Plaintiff’s symptoms and limitations were inconsistent with the objective

20

medical evidence. Accordingly, the ALJ properly relied on a lack of objective

21

evidence to discount Plaintiff’s subjective symptom testimony.

22

Next, the ALJ discounted Plaintiff’s subjective symptom testimony

23

because of inconsistent statements made by Plaintiff. In particular, the ALJ

24

noted that at the hearing, Plaintiff initially stated that he could not stand, but

25

then indicated that he could stand for fifteen minutes to an hour. (AR 23-25.)

26

Further, although he initially testified that he did not do anything during a

27

typical day, he later acknowledged that he picked up his children as needed,

28

enjoyed watching science programs, and read about firearms. (AR 25.) The
20

1

ALJ explained that, “[w]hile not necessarily reflecting a conscious intention to

2

mislead, nevertheless such inconsistencies further indicate that the information

3

reported cannot be used as a reliable source for assessing disability.” (Id.)

4

The ALJ also cited inconsistencies between Plaintiff’s allegations of pain

5

and his documented reports in the clinical context. (AR 24.) The ALJ noted

6

that despite allegations of disabling pain, Plaintiff reportedly told Dr. Sohn that

7

his left shoulder pain was generally mild and only intermittently moderate; and

8

that his left hand pain was only occasional and minimal. (Id.) Similarly, when

9

Plaintiff recently met with a pain management physician, he endorsed

10

generally mild pain – three out of ten in severity with medication. (Id.)

11

Further, as previously noted, Plaintiff did not report any side effects from his

12

medication regimen, which cast doubt on his testimony in that regard. (Id.)

13

The ALJ noted that in 2012, Plaintiff reported that his medication helped his

14

pain and generally made his condition better. In 2014 and 2015, Plaintiff

15

consistently exhibited an entirely normal mental status and made no mention

16

of any adverse medication side effects. (Id.)

17

The ALJ’s determination that Plaintiff’s allegations of disabling pain

18

were inconsistent with his statements to his treating and examining physicians

19

was supported by substantial evidence. See Ghanim v. Colvin, 763 F.3d 1154,

20

1163 (9th Cir. 2014) (the ALJ may consider prior inconsistent statements

21

concerning symptoms in assessing credibility); see also Fair v. Bowen, 885

22

F.2d 597, 604 n.5 (9th Cir. 1989) (“If a claimant . . . has made prior statements

23

inconsistent with his claim of pain, or is found to have been less than candid in

24

other aspects of his testimony, that may be properly taken into account in

25

determining whether or not his claim of disabling pain should be believed.”).

26

As explained, Plaintiff reported in the function report that his medical

27

conditions restrict his ability to perform his past work because of left arm pain,

28

and he has difficulty sleeping because of the pain in his neck, shoulder, and left
21

1

arm. (AR 234-35.) At the hearing, Plaintiff initially testified that on typical day

2

he sits at home and does not do much (AR 41), although he later reported that

3

he watches television three to four hours a day and tries to read. (AR 68.) He

4

stated that he could sit for twenty to thirty minutes before needing to stand up

5

or lay down; would probably need to spend two days “virtually immobile”

6

after spending a day sitting in a chair like the one at the hearing; and could

7

stand for between fifteen minutes to an hour. (AR 64-66.)

8

However, Dr. Sohn summarized Plaintiff’s left shoulder and hand pain

9

as follows: complaints of left shoulder pain were rated as constant and mild

10

becoming intermittent and moderate; and complaints of left hand pain were

11

rated as occasional and minimal. (AR 550.) The ALJ also noted that Plaintiff

12

recently met with a pain management physician and endorsed generally mild

13

pain – three out of ten in severity with medication. (AR 24, 637.) In the Joint

14

Stipulation, Plaintiff argues that this same report noted that pain increased

15

with physical activity and interfered with activities of daily living. (Jt. Stip. at

16

26.) But, as Plaintiff concedes, Plaintiff otherwise reported that pain

17

medication and bed rest helped with “some pain relief.” (AR 637.) Further,

18

Plaintiff often reported similar pain levels in 2014 and 2015. (See, e.g., AR 661

19

(reported pain intensity as two on 9/15/15 and average pain intensity as four),

20

663 (8/14/15 average pain intensity three), 665 (reported pain intensity as four

21

on 6/10/15 and average pain intensity as three), 669 (reported pain intensity as

22

four on 4/21/15 and average pain intensity the same), 671 (reported pain

23

intensity as two on 5/19/15 and average pain intensity as three), 673 (reported

24

pain intensity as three on 2/23/15 and average pain intensity as three/four),

25

677 (reported pain intensity as three on 12/29/14 and average pain intensity as

26

four).) Additionally, as previously discussed, Plaintiff did not report any side

27

effects from his medication regimen. Plaintiff reported one time that an

28

increase in his Gabapentin dosage made him more withdrawn (AR 627) and
22

1

reported in 2012 that he could not tolerate Amlodipine, at which time this

2

medication was discontinued. (AR 410-11.)

3

Although Plaintiff’s statements at the hearing regarding standing and

4

daily activities were not necessarily inconsistent as the ALJ concluded, the

5

ALJ’s additional finding that Plaintiff’s statements were inconsistent with his

6

reported symptoms to his physicians constitutes a specific, clear and

7

convincing reason supported by substantial evidence for discounting Plaintiff’s

8

subjective symptom testimony.

9

Finally, the ALJ concluded that Plaintiff’s alleged symptoms and

10

limitations were at odds with his reported activities during the period at issue.

11

(AR 24.) The ALJ noted that in 2013, Plaintiff reportedly remained able to go

12

out and travel alone, drive his children to school, walk twenty minutes at a

13

time, and get along well with family, friends, neighbors, and others. (AR 24,

14

234-42.) Additionally, the treatment notes reflected that Plaintiff helped his

15

father set up a business, a gun shop, and in so doing was attending out of state

16

trade shows and doing a lot of walking. (AR 24, 611, 627.) The ALJ found that

17

these activities conflicted with the degree of limitation Plaintiff described at the

18

hearing and suggested that his actual daily activities have been somewhat

19

greater than alleged. (AR 24.)

20

The Ninth Circuit has “repeatedly warned that ALJs must be especially

21

cautious in concluding that daily activities are inconsistent with testimony

22

about pain, because impairments that would unquestionably preclude work

23

and all the pressures of a workplace environment will often be consistent with

24

doing more than merely resting in bed all day.” Garrison v. Colvin, 759 F.3d

25

995, 1016 (9th Cir. 2014); Vertigan v. Halter, 260 F.3d 1044, 1050 (9th Cir.

26

2001) (“This court has repeatedly asserted that the mere fact that a plaintiff has

27

carried on certain daily activities, such as grocery shopping, driving a car, or

28

limited walking for exercise, does not in any way detract from her credibility as
23

1

to her overall disability.”). “[O]nly if [his] level of activity [was] inconsistent

2

with [a claimant’s] claimed limitations would these activities have any bearing

3

on [his] credibility.” Garrison, 759 F.3d at 1016. Here, Plaintiff’s reports of

4

walking “a lot” at a trade show and “moving heavy furniture” to help his

5

father set up a business (AR 611, 627) directly contradict many of Plaintiff’s

6

allegations, including that he cannot lift much, has trouble grasping things with

7

his left hand, is unable to do household chores, and can only walk for twenty

8

minutes before needing to rest for two hours. (AR 44, 236-37, 239.) Even

9

attempting such activities is inconsistent for someone who has alleged such

10

disabling pain. While Plaintiff’s other daily activities do not necessarily detract

11

from his credibility as to his overall disability, Plaintiff’s strenuous activities

12

helping his father do. As such, substantial evidence supports the ALJ’s finding

13

that Plaintiff’s reported activities were at odds with his alleged symptoms and

14

limitations.

15

Plaintiff contends that, pursuant to then-applicable SSR 96-7p, 1996 WL

16

374186, the ALJ should have questioned Plaintiff regarding the treatment note

17

reflecting that he helped his father move heavy furniture. (Jt. Stip. at 34-35.)

18

SSR 96-7p provides, “When additional information is needed to assess the

19

credibility of the individual’s statements about symptoms and their effects, the

20

adjudicator must make every reasonable effort to obtain available information

21

that could shed light on the credibility of the individual’s statements.” 1996

22

WL 374186, at *3. Here, the record was adequate to assess the credibility of

23

Plaintiff’s subjective statements such that the ALJ was not obligated to further

24

develop the record as Plaintiff contends. The record before the ALJ contained

25

assessments of Plaintiff’s capacity to perform work-related functions and was

26

sufficient to allow the ALJ to make an appropriate evaluation of Plaintiff's

27

statements of pain and limitations. See McCoy v. Astrue, 648 F.3d 605, 612

28

(8th Cir. 2011) (the duty to develop the record “is not never-ending and an
24

1

ALJ is not required to disprove every possible impairment”). Further, Plaintiff

2

does not identify any additional information that would have been provided in

3

response to a question requesting clarification. Indeed, even in his request for

4

review of the hearing decision, Plaintiff does not offer any explanation

5

reconciling this inconsistency. (See AR 334-36.) Moreover, as to heavy lifting,

6

the ALJ noted that the RFC conclusion was consistent with Plaintiff’s

7

testimony that he stopped working because he had to lift/carry “heavy” items

8

and in so doing, needed good use of both hands. (AR 25.)
Where, as here, an ALJ provides legally sufficient reasons supporting his

9
10

credibility determination, the ALJ’s reliance on erroneous reasons is harmless

11

“[s]o long as there remains substantial evidence supporting the ALJ’s

12

conclusions on . . . credibility and the error does not negate the validity of the

13

ALJ’s ultimate [credibility] conclusion . . . .” Carmickle v. Comm’r, Soc. Sec.

14

Admin., 533 F.3d 1155, 1162 (9th Cir. 2008) (internal quotation marks and

15

citation omitted). Since the ALJ articulated several legally sufficient reasons

16

supporting his adverse credibility finding, any error in relying on improper

17

grounds was harmless. See Nava v. Colvin, 2017 WL 706099, at *5 (C.D. Cal.

18

Feb. 21, 2017) (since history of conservative treatment and lack of

19

corroborating medical evidence were legally sufficient reasons supporting the

20

ALJ’s credibility finding, reliance on plaintiff’s daily activities was harmless).
Accordingly, reversal is not warranted based on the ALJ’s credibility

21
22

determination.

23

C.

24

RFC determination
Issue No. 3 essentially reargues Issue No. 1. Plaintiff argues that the ALJ

25

erred in rejecting the opinions of Drs. Hung and Broukhim and when the

26

vocational expert was asked to consider the additional limitations assessed by

27

these physicians, the expert eliminated all of the work identified in the ALJ’s

28

decision. (Jt. Stip. at 37.) Plaintiff contends that hypothetical questions are
25

1

incomplete if they omit mental impairments or restrictions or if they omit

2

symptoms and restrictions presented through competent lay testimony.

3

According to Plaintiff, the ALJ erred in relying on the response to the

4

hypothetical question that did not include all of Plaintiff’s limitations. (Id. at

5

38.) Because the Court has already concluded that the ALJ provided legally

6

sufficient reasons for rejecting Drs. Hung’s and Broukhim’s opinions as

7

explained above, Plaintiff’s challenge to the RFC determination lacks merit

8

and does not provide a basis for reversal.

9

IV.

10

ORDER

11
12

IT THEREFORE IS ORDERED that judgment be entered affirming the
decision of the Commissioner and dismissing this action with prejudice.

13
14

Dated: April 09, 2018

15

______________________________
JOHN D. EARLY
United States Magistrate Judge

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