Lesley Wright v. Michael J Astrue

Filing 15

MEMORANDUM AND ORDER by Magistrate Judge Arthur Nakazato: (See document for details.) CONCLUSION The Court finds that the ALJ' s determination of non-disability is free of legal error and supported by substantial evidence in the record. Therefo re, Plaintiffs request for an order directing the payment of benefits or remanding this case for further proceedings is DENIED, and the Commissioner's request for an order affirming the Commissioner's final decision and dismissing the action is GRANTED. The clerk shall enter judgment, close the file and terminate all pending motions. (rla)

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1 FILED - SOUTHERN DIVISION CLERK, U.S. DISTRICT COURT 2 APR I I 2013l -..~--·-·---~J 3 4 CENTRAL DISTRICT OF CALIFORNIA B~-l_~ DEPUTY 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 LESLEYWRIGHT, Plaintiff, 11 12 Case No. EDCV 12-565 AN MEMORANDUM AND ORDER v. 13 CAROLYNW.COLVIN ACTING COMMISSIONER OF THE SOCIAL 14 SECURITY ADMINISTRATION, 15 Defendant.!! 16 17 Pursuant to the Court's Case Management Order, the parties have filed the 18 Administrative Record ("AR") and a Joint Stipulation ("JS") raising three disputed 19 issues. The parties have consented to proceed before the Magistrate Judge. The Court has 20 carefully reviewed the parties' respective contentions in conjunction with the AR. This 21 22 23 matter is now ready for decision. Issue #1 Plaintiff contends that the Administrative Law Judge ("ALJ") failed to provide 24 adequate reasons for rejecting the opinion of the examining physician, Moshe Wilker, 25 M.D. (JS 4.) In an orthopedic evaluation report dated December 1, 2009, Dr. Wilker 26 opined that Plaintiff suffered from bilateral knee arthritis and low back pain, and was 27 28 1' The Acting Commissioner is substituted as the defendant pursuant to Rule 25( d) of the Federal Rules of Civil Procedure. No further action is needed to continue this case by reason of the last sentence of 42 U.S.C. § 405(g). 1 restricted to a range of light work, including standing and walking two hours in an 82 hour workday and sitting 6 hours in an 8-hour workday. (AR 521.) Plaintiff asserts that 3 the ALJ rejected Dr. Wilker's opinion with regard to Plaintiffs limitations in sitting, 4 without providing reasons for doing so. 5 In the decision denying benefits, the ALJ stated that he gave "some weight" to Dr. 6 Wilker's evaluation. (AR 22.) The ALJ assessed Plaintiff with a residual functional 7 capacity ("RFC") for a range of light work that was more restrictive than Dr. Wilker's 8 opinion with respect to Plaintiff's ability to stand and walk, but less restrictive with 9 respect to Plaintiffs ability to sit. (AR 22.) Dr. Wilker found that if Plaintiff stopped 10 substance abuse, she could stand and walk 1 hour in an 8-hour workday for 10 to 15 11 minutes at a time, and could sit 8 hours in an 8-hour workday, if given normal breaks 12 every two hours, and 1 to 3 minute breaks every hour to stand and stretch. (AR 16, 20.) 13 The ALJ also assessed Plaintiff with postural, environmental and mental work 14 restrictions. (AR 16, 20.) 15 The decision shows that the ALJ thoroughly considered Dr. Wilker's opinion as 16 well as the other medical opinions of record before assessing Plaintiffs RFC. The ALJ 17 explained that Dr. Wilker's opinion was "not given great weight because additional 18 evidence after the date of the examination" supported the RFC assessment in the 19 decision. (AR 23.) A review of the medical records post-dating Dr. Wilker's evaluation 20 support the ALJ's finding that Plaintiff was able to sit for 8 hours in a workday. In March 21 2010, Plaintiffs treating physician, Neil Halbridge, M.D., reported that Plaintiffs 22 straight leg test was negative on the right and trace on the left, her paraspinal muscles 23 were symmetrical without swelling or spasm, and her deep tendon reflexes in her 24 bilateral lower extremities were symmetrical. (AR 19, 648-50.) In reports fromJuly2010 25 and September 2010, Dr. Halbridge noted that Plaintiffs straight leg test was negative 26 bilaterally. (AR at 19, 548, 582-83.) Plaintiff was able to walk without a supportive 27 device. (AR 19, 582, 649, 654.) On July 23, 2010, Plaintiff underwent an MRI of the 28 lumbar spine which revealed only mild disc desiccation at L2-3 and L3-4 with no Page2 1 evidence of disc protrusion or bulge, areas of canal or foramina! stenosis, or 2 subcutaneous edema in the posterior subcutaneous tissues. (AR at 19, 574.) These more 3 recent clinical and objective findings support the ALJ's RFC assessment of Plaintiffs 4 ability to sit. Osenbrock v. Apfel, 240 F.3d 1157, 1165 (9th Cir. 2001) (explaining that 5 a treating physician's most recent medical reports are highly probative). Further, the 6 Court notes that Dr. Wilker's own clinical findings fail to support a more restrictive 7 sitting limitation. Dr. Wilker reported that Plaintiff sat comfortably with normal posture, 8 had a normal thoracic and lumbar spine examination without paraspinal muscle spasm 9 or tenderness to palpation, full range of motion without pain, and negative straight leg 10 raising tests in sitting and supine positions, bilaterally. (AR 518); see Connett v. 11 Barnhart, 340 F.3d 871, 875 (9th Cir. 2003) (doctor's opinion properly rejected when 12 treatment notes "provide no basis for the functional restrictions he opined should be 13 imposed"). Finally, Samuel Landau, M.D., a medical expert who reviewed Plaintiffs 14 medical records, testified at Plaintiffs hearing that Plaintiff had no limitation to sitting, 15 provided she is given normal breaks every 2 to 3 hours, and 1 to 3 minute breaks every 16 hour to stretch and stand. (AR 20, 46); see Andrews v. Shalala, 53 F.3d 1035, 1041 (9th 17 Cir. 1989) (reports of non-examining medical advisors that are "supported by other 18 evidence in the record and are consistent with it" may serve as substantial evidence for 19 rejection of an examining physician's opinion). Thus, the ALJ provided specific, 20 legitimate reasons supported by substantial evidence for discounting Dr. Wilker's 21 opinion. See Lester v. Chater, 81 F.3d 821, 830-31 (9th Cir. 1996). Plaintiff is not 22 entitled to reversal on this issue. 23 24 Issue #2 Plaintiffcontends the ALJ failed to give proper reasons for rejecting her subjective 25 complaints regarding the severity of her pain and symptoms. (JS 6-18.) 26 The ALJ determined that Plaintiffs statements concerning the intensity, 27 persistence and limiting effects ofher symptoms were "partially credible." (AR 17). The 28 ALJ provided multiple reasons for rejecting Plaintiff's credibility. (AR 16-17.) His Page 3 1 conclusions are entitled to deference. See Morgan v. Commissioner ofthe Social Security 2 Administration, 169 F.3d 595, 599 (9th Cir. 1999) ("questions of credibility and 3 resolutions of conflicts in the testimony are functions solely of the Secretary"). At her 4 administrative hearings in November 2010, Plaintiff testified she had not used drugs or 5 alcohol for the previous four years. (AR 17, 36-37, 75-76.) However, in January 2009, 6 when hospitalized for an overdose of sleeping pills, Plaintiff admitted, and her drug 7 screen confirmed, that she had been drinking alcohol and using methamphetamine. (AR 8 17, 348, 360, 364.) Plaintiff acknowledged that she had been drinking a lot, and would 9 usually drink three 32-ounce beers and take methamphetamine. (AR 348.) In May 2009, 10 Plaintiff told an examining doctor that she had been in drug and alcohol recovery for 11 only five months. (AR 17, 406.) The inconsistency in Plaintiff's statements regarding her 12 use of drugs and alcohol is a legitimate factor to be considered in weighing Plaintiff's 13 credibility. See Thomas v. Barnhart, 278 F .3d 947, 958-60 (9th Cir. 2002). The ALJ also 14 found Plaintiff's daily activities were inconsistent with Plaintiff's claim of disability. 15 (AR 16-17.) Plaintiff claimed that her mental and physical impairments prevent her from 16 working, but admitted that she is able to take care of her children, perform household 17 chores, go out everyday, walk, ride in a car, take public transportation, and shop for 18 groceries, clothing and shoes. (AR 16, 228-30.) The inconsistency between Plaintiff's 19 activities and her claims of disability is a sufficient basis for discrediting Plaintiff's 20 subjective complaints. Light v. Social Security Admin., 119 F.3d 789, 792 (9th Cir. 21 1997); Bunnell v. Sullivan, 947 F .2d 341, 346 (9th Cir. 1991 ). The ALJ further found that 22 Plaintiff's complaints of disabling pain and other symptoms were not reasonably 23 supported by the objective medical evidence, which was discussed in length throughout 24 the decision. (AR at 16-23.) While subjective pain testimony cannot be rejected on the 25 sole ground that it is not fully cqrroborated by objective medical evidence, the medical 26 evidence is still a relevant factor in determining the severity of the claimant's pain and 27 its disabling effects. 20 C.F.R. § 416.929(c)(2); Rollins v. Massanari, 261 F.3d 853, 857 28 (9th Cir. 2001) (objective medical evidence may not be sole reason for discounting Page4 1 credibility but is nonetheless a legitimate and relevant factor to be considered in 2 assessing credibility). Thus, the ALJ offered clear and convincing reasons, supported by 3 substantial evidence for discounting Plaintiffs subjective symptom testimony.~' 4 Accordingly, Plaintiffs contentions with respect to the second disputed issue does 5 not warrant a reversal of the Commissioner's final decision. 6 7 Issue #3 Plaintiff challenges the ALJ's failure to credit the functional limitations assessed 8 by her treating physician, Dr. Halbridge. (JS 23-24.) In a form titled "Medical Opinion 9 re: Ability to Do Work-Related Activities (Physical)," dated April 15, 2010, Dr. 10 Hal bridge opined, in part, that Plaintiff could lift and carry 10 pounds occasionally and 11 less than 10 pounds frequently, stand and walk less than 2 hours in an 8-hour workday, 12 and sit less than 2 hours in an 8-hour workday. (AR 529-31.) 13 The ALJ found that Dr. Hallbridge's assessment of Plaintiffs RFC was not well 14 supported by the objective evidence and inconsistent with the record as whole. (AR 23.) 15 This reason is supported by substantial evidence. As discussed, Dr. Halbridge's clinical 16 findings support the ALJ' s determination that Plaintiff is able to sit 8 hours in a workday, 17 and, necessarily, are inconsistent with a restriction to sitting less than 2 hours in a 18 workday. See, e.g., Valentine v. Commissioner of Social Sec. Admin., 574 F.3d 685, 19 692-93 (9th Cir. 2009) (holding that contradiction between a treating physician's 20 opinion and his treatment notes constitutes a specific and legitimate reason for rejecting 21 the treating physician's opinion); Bayliss v. Barnhart, 427 F.3d 1211, 1216 (9th Cir. 22 2005) (holding that contradiction between treating physician's assessment regarding 23 claimant's capabilities and recorded observations is a clear and convincing reason for 24 rejecting the assessment). As for Plaintiffs ability to lift and carry, Dr. Halbridge's 25 26 ~' There is no need to consider the sufficiency of the evidence supporting the other factors listed by the ALJ in discounting Plaintiffs credibility. Any error as to other 27 factors would be harmless because tliey are inconsequential to the non-disability rlatarm;n<:>t;nn r'rrvM/Iiro/r/n" r'nM/IM/Ih•c-inMov f:;!nf'in/ f:;!o,.-. J;{ iM -'\~~ ~rl '-'VIfHH~oJoJ~VH'-'1' UV'-'~<-H ._.m., •. ' v v v J<' •--'~ 11 v.1:\.1:\ 11 (,.') ._.,, 28 (9th ci~~.l2o'6.18).'""...,_f IIHo..-IH<V V'-''-'• Vo Page 5 .L.I• .L .L .L A. .L . _ , _ 1 opinion was contradicted by Dr. Wilker's independent clinical findings that Plaintiff was 2 capable of lifting and carrying 10 pounds frequently and 20 pounds occasionally. (AR 3 521, 529.) Dr. Wilker's opinion was substantial evidence in this respect, and it was 4 solely in the province of the ALJ to resolve the conflict. Andrews, 53 F.3d at 1041 5 (non-treating physician's opinions based on independent clinical findings constitute 6 substantial evidence on which the ALJ may rely to reject treating physician's opinions). 7 And finally, the ALJ relied on Dr. Landau's non-examining opinion regarding Plaintiffs 8 RFC. (AR ,20, 45-46.) Dr. Landau's findings, which were corroboratedhythemedical 9 evidence of record, constituted substantial evidence upon which the ALJ could properly 10 rely. Andrews, 53 F.3d at 1041; Morgan, 169 F.3d at 600 (testifying medical experts' 11 opinions may serve as substantial evidence when "they are supported by other evidence 12 in the record and are consistent with it"). 13 Accordingly, the Court rejects Plaintiffs contention that reversal is warranted 14 based on Plaintiffs third disputed issue. 15 16 17 CONCLUSION The Court finds that the ALJ' s determination of non-disability is free oflegal error 18 and supported by substantial evidence in the record. Therefore, Plaintiffs request for 19 an order directing the payment ofbenefits or remanding this case for further proceedings 20 is DENIED, and the Commissioner's request for an order affirming the Commissioner's 21 final decision and dismissing the action is GRANTED. The clerk shall enter judgment, 22 close the file and terminate all pending motions. 23 24 25 DATED: Aprill1, 2013 26 27 28 Page 6

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