Donald Lee Bradley v. Carolyn W. Colvin

Filing 28

MEMORANDUM OPINION by Magistrate Judge Alka Sagar. For all of the foregoing reasons, the decision of the Administrative Law Judge is affirmed. *See attached Order for details.* (es)

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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

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DONALD LEE BRADLEY,

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Plaintiff,
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v.
CAROLYN W. COLVIN, Acting
Commissioner of Social
Security,

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Defendant.

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) NO. ED CV 13-1277-AS
)
)
) MEMORANDUM OPINION
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)

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PROCEEDINGS

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On July 29, 2013, Plaintiff filed a Complaint seeking review

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of

the

Commissioner's

denial

of

Plaintiff’s

supplemental security income (“SSI”).

application

(Docket Entry No. 3).

for
On

August 22, 2013, the matter was transferred and referred to the
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current Magistrate Judge.

(Docket Entry No. 12). The parties

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thereafter consented to proceed before a United States Magistrate
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Judge (Docket Entry Nos. 14-15).
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On December 9, 2013, Defendant

filed an Answer and the Administrative Record (“A.R.”).

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1

(Docket

1

Entry

2

Memorandum of Points and Authorities in support of the Complaint

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(Docket Entry No. 20).

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Memorandum of Points and Authorities in support of the Answer

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8

Nos.

17-20).

On

(Docket Entry No. 24).

January

8,

2014,

Plaintiff

filed

a

On March 12, 2014, Defendant filed a

On March 27, 2014, Plaintiff filed a Reply

Memorandum (Docket Entry No. 25).

The Court has taken this matter
See C.D. Local R. 7-15;

under submission without oral argument.

“Case Management Order,” filed July 31, 2013 (Docket Entry No. 7).

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BACKGROUND AND SUMMARY OF ADMINISTRATIVE DECISION
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Plaintiff,
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disability

since

a

former
January

restaurant
28,

2010,

and

bar

owner,

asserts

based

on

alleged

chronic

arthritis in his neck, back, arms, and feet, depression, high blood
pressure, a sleeping disorder and an eating disorder. (A.R. 22).

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The Administrative Law Judge (“ALJ”) examined the record and held

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a hearing on February 21, 2012. (A.R. 34-67).

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represented by counsel, testified by teleconference. (A.R. 36-58).

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The ALJ also heard testimony from a vocational expert (A.R. 59-66).

Plaintiff, who was

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On February 29, 2012, The ALJ issued a decision denying

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Plaintiff’s application for SSI. (A.R. 18-28).

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following

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determinable impairments of cervical degenerative disc disease,

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depressive disorder, and alcohol abuse (A.R. 20); (2) Plaintiff’s

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impairments do not meet or equal a listed impairment (A.R. 20-22);

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findings:

(1)

Plaintiff

has

the

The ALJ made the
severe

medically

(3) Plaintiff retains the residual functional capacity to perform
medium work, defined as follows: Plaintiff can “lift and carry 25
pounds frequently and 50 pounds occasionally, stand/walk for six
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hours and sit for six hours in an eight-hour day;” frequently climb

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ramps

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occasionally climb ladders, ropes or scaffolds; and is “limited to

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simple, routine, and repetitive tasks, involving only simple work-

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or

stairs,

balance,

stoop,

kneel,

crouch,

and

crawl;

related decisions with few, if any, work place changes” (A.R. 22);
(4) Plaintiff lacks the residual functional capacity (“RFC”) to
(A.R. 26); and (5) Plaintiff is

perform his past relevant work

able to perform jobs that exist in significant numbers in the
national economy, including the occupations of hand packager and

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janitor.

(A.R. 27).

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Accordingly, the ALJ found that Plaintiff was not disabled at
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any time from the alleged disability onset date of January 28,
2010, through February 29, 2012, the date of the decision.
17).

(Id.

On May 21, 2013, the Appeals Council denied review. (A.R. 3-

5).

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PLAINTIFF’S CONTENTIONS

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Plaintiff contends that the ALJ erred in (1) failing to

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articulate

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treating physician’s opinion that he was disabled (Plaintiff’s Mem

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3-9); and (2) failing to articulate specific and legitimate reasons

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for rejecting the examining physician’s opinion that he was capable

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of performing work at the light exertional level. (Id. 9-13).

specific

and

legitimate

reasons

for

rejecting

his

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STANDARD OF REVIEW

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This Court reviews the Commissioner’s decision to determine
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if:

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evidence; and (2) the Commissioner used proper legal standards. 42

3

U.S.C. § 405(g); see Carmickle v. Comm’r, 533 F.3d 1155, 1159 (9th

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Cir. 2008); Hoopai v. Astrue, 499 F.3d 1071, 1074 (9th Cir. 2007).

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(1) the Commissioner’s findings are supported by substantial

“Substantial evidence is more than a scintilla, but less than a
preponderance.”

Reddick v. Chater, 157 F.3d 715, 720 (9th Cir.

1998) (citing Jamerson v. Chater, 112 F.3d 1064, 1066 (9th Cir.
1997).

It is relevant evidence

“which a reasonable person might

accept as adequate to support a conclusion.”

Hoopai, 499 F.3d at

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1074; Smolen v. Chater, 80 F.3d 1273, 1279 (9th Cir. 1996)).

To

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determine whether substantial evidence supports a finding, “a court
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must ‘consider the record as a whole, weighing both evidence that
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supports and evidence that detracts from the [Commissioner’s]
conclusion.’”

Aukland v. Massanari, 257 F.3d 1033, 1035 (9th Cir.

1997) (citation omitted); see Widmark v. Barnhart, 454 F.3d 1063,

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1066 (9th Cir. 2006) (inferences “reasonably drawn from the record”

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can constitute substantial evidence).

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This Court “may not affirm [the Commissioner’s] decision

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simply by isolating a specific quantum of supporting evidence, but

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must also consider evidence that detracts from [the Commissioner’s]

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conclusion.”

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(citation and internal quotation marks omitted); Lingenfelter v.

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Astrue, 504 F.3d 1028, 1035 (9th Cir. 2007) (same).

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Court cannot disturb findings supported by substantial evidence,

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even though there may exist other evidence supporting Plaintiff’s

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claim.
“If

Ray v. Bowen, 813 F.2d 914, 915 (9th Cir. 1987)

However, the

See Torske v. Richardson, 484 F.2d 59, 60 (9th Cir. 1973).

the

reversing

evidence
the

can

reasonably

[Commissioner’s]

support

conclusion,
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either
[a]

affirming
court

may

or
not

1

substitute its judgment for that of the [Commissioner].”

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Reddick,

157 F.3d 715, 720-21 (9th Cir. 1998) (citation omitted).

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DISCUSSION

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After consideration of the record as a whole, the Court finds

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that the Commissioner’s findings are supported by substantial
evidence and are free from material1 legal error.

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A.

Applicable Law

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“The Social Security Act defines disability as the ‘inability
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to engage in any substantial gainful activity by reason of any
medically determinable physical or mental impairment which can be
expected to result in death or which has lasted or can be expected

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to last for a continuous period of not less than 12 months.’”

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v. Barnhart, 433 F.3d 683, 686 (9th Cir. 2005) (quoting 42 U.S.C.

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§ 423 (d)(1)(A)). The ALJ follows a five-step, sequential analysis

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to determine whether a claimant has established disability.

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C.F.R. § 404.1520.

Webb

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At step one, the ALJ determines whether the claimant is

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engaged

in

substantial

gainful

employment

activity.

Id.

§

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404.1520(a)(4)(i).

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“work that . . . [i]nvolves doing significant and productive

“Substantial gainful activity” is defined as

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1

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The harmless error rule applies to the review of
administrative decisions regarding disability.
See McLeod v.
Astrue, 640 F.3d 881, 886-88 (9th Cir. 2011); Burch v. Barnhart,
400 F.3d 676, 679 (9th Cir. 2005) (stating that an ALJ’s decision
will not be reversed for errors that are harmless).
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physical or mental duties[] and . . . [i]s done (or intended) for

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pay or profit.”

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that the claimant is not engaged in substantial gainful activity,

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the ALJ proceeds to step two which requires the ALJ to determine

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whether

the

Id. §§ 404.1510, 404.1572.

claimant

has

a

medically

If the ALJ determines

severe

impairment

or

combination of impairments that significantly limits his ability to
do basic work activities.
Webb, 433 F.3d at 686.

See id. §

404.1520(a)(4)(ii); see also

The “ability to do basic work activities”

is defined as “the abilities and aptitudes necessary to do most
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jobs.”

20 C.F.R. § 404.1521(b);

Webb, 433 F.3d at 686.

An

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impairment is not severe if it is merely “a slight abnormality (or
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combination of slight abnormalities) that has no more than a
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minimal effect on the ability to do basic work activities.”

Webb,

433 F.3d at 686.

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If the ALJ concludes that a claimant lacks a medically severe

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impairment, the ALJ must find the claimant not disabled.

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C.F.R. § 1520(a)(ii); Ukolov v. Barnhart, 420 F.3d 1002, 1003 (9th

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Cir. 2005) (ALJ need not consider subsequent steps if there is a

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finding of “disabled” or “not disabled” at any step).

Id.; 20

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However, if the ALJ finds that a claimant’s impairment is

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severe, then step three requires the ALJ to evaluate whether the

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claimant’s impairment satisfies certain statutory requirements

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entitling him to a disability finding.

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the

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impairment

does

not

satisfy

Webb, 433 F.3d at 686.

the

statutory

If

requirements

entitling the claimant to a disability finding, the ALJ must
determine the claimant’s RFC, that is, the ability to do physical
and mental work activities on a sustained basis despite limitations
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from all his impairments.

20 C.F.R. § 416.920(e).

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3

Once the RFC is determined, the ALJ proceeds to step four to

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assess whether the claimant is able to do any work that he or she

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has done in the past, defined as work performed in the last fifteen

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years prior to the disability onset date.

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the claimant is not able to do the type of work that he or she has

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done in the past or does not have any past relevant work, the ALJ

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proceeds to step five to determine whether - taking into account

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If the ALJ finds that

the claimant’s age, education, work experience and RFC - there is
any other work that the claimant can do and if so, whether there
are a significant number of such jobs in the national economy.
Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999); 20 C.F.R. §

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404.1520(a)(4)(iii)-(v).

The claimant has the burden of proof at

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steps one through four, and the Commissioner has the burden of
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proof at step five.

Tackett, 180 F.3d at 1098.

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B.

The ALJ Provided Specific And Legitimate Reasons For Rejecting
The Opinion Of Plaintiff’s Treating Physician

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In evaluating medical opinions, the case law and regulations

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distinguish among the opinions of three types of physicians:

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those who treat the claimant (treating physicians); (2) those who

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examine but do not treat the claimant (examining physicians); and

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(3) those who neither examine nor treat the claimant (nonexamining

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or reviewing physicians).

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416.902, 416.927; see also Lester v. Chater, 81 F.3d 821, 830 (9th

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Cir. 1995).

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given greater weight than those of other physicians, because
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(1)

See 20 C.F.R. §§ 404.1502, 404.1527,

Generally, the opinions of treating physicians are

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treating physicians are employed to cure and therefore have a

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greater opportunity to know and observe the claimant.

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Astrue, 495 F.3d 625, 631 (9th Cir. 2007); Smolen, 80 F.3d at 1285.

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Where, as here, a treating physician’s opinion is contradicted by

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another doctor, the ALJ must provide specific and legitimate

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reasons supported by substantial evidence to properly reject it.

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Lester, 81 F.3d at 830-31 (citing Andrews v. Shalala, 53 F.3d 1035,

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1043 (9th Cir. 1995)); see also Orn, 495 F.3d at 632-33; Soc. Sec.

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Ruling 96-2p.

Orn v.

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On December 22, 2009, Plaintiff’s treating physician, Bradley
Hope, opined that Plaintiff was unable to work due to neck pains,
noting that Plaintiff continued to experience neck pain and pain

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with range of motion. (A.R. 245). X-rays of Plaintiff’s cervical
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spine revealed mild “C5-C6 spurring consistent with spondylosis,
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but no mineralization, fracture, or vertebral wedge deformities, no
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spondylolisthesis and no soft tissue swelling.

(A.R. 245-47). On

January 28, 2010, Dr. Hope opined that Plaintiff was unable to work
due to neck pains and noted that Plaintiff had left arm pain due to

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a fracture (A.R. 243).

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concluded that Plaintiff was unable to work, part time or full

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time, due to severe neck arthritis.

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2011, Dr. Hope noted that Plaintiff had driven four hours to see

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him and that he had been involved in a hit and run accident one

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week prior for which he had received emergency treatment and had

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tripped and fallen while gardening two days prior to the visit.

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(A.R. 312).

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continued to believe that Plaintiff was unable to work, noting that

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Plaintiff had been in jail due to a DUI conviction but resumed
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On February 24, 2011, Dr. Hope again

(A.R. 306).

On August 18,

Dr. Hope saw Plaintiff on September 23, 2011 and

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drinking upon his release, and had suffered a right wrist deformity

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due to a fracture after he was injured in a motorcycle accident on

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August 7, 2011.

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degenerative disc and facet joint changes but no evidence of acute

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cervical spine, or head, wrist, or pelvis

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327).

(A.R. 318).

X-rays revealed moderately severe

fracture. (A.R. 324-

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10
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On November 15, 2011, Dr. Hope completed a “medical source
statement of ability to do work related activities (physical)”

in

which he checked off boxes indicating that Plaintiff could “never”
lift or carry anything up to or greater than 10 pounds, Plaintiff
could not sit for more than fifteen minutes, stand for more than
six minutes and walk for more than fifteen minutes at any one time

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without interruption, and that during an eight-hour day, Plaintiff
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could only sit for two hours, stand for three hours, and walk for
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thirty minutes.
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(A.R. 349-50). Dr. Hope also indicated that

Plaintiff required the use of a cane to ambulate, the use of the
cane was medically necessary but that Plaintiff could walk one mile
without the use of a cane. (A.R. 350). Dr. Hope’s assessment was

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based on the following: “Plaintiff has severe neck arthritis,”

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“severe bilateral wrist sprains,” “severe left knee [and] right

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[first] toe pains,” and pain walking, sitting, and using arms and

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neck. (A.R. 350).

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reach in any direction with either hand and could never use his

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right lower extremity to operate foot controls, but could operate

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a motor vehicle up to one-third of the workday. (A.R. 351-53).

Dr. Hope also found that Plaintiff could not

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With respect to Dr. Hope’s opinions, the ALJ stated the
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1

following:

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3

I reject this opinion because it is not consistent with

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Dr.

5

limited. In addition, it is not consistent with the fact

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that the claimant was able to drive for long periods to

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attend his appointments, far longer than the 15 minutes

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of

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extremities for driving far in excess of Dr. Hope’s

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11

Hope’s

sitting

own

clinical

opined

by

Dr.

findings,

Hope,

which

and

use

were

his

very

upper

estimate . . . the record reveals that actual treatment
visits have been relatively infrequent.

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(A.R. 24)
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Plaintiff contends that the ALJ failed to provide specific and
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legitimate reasons for rejecting Dr. Hope’s opinion, by failing to
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state why Dr. Hope’s opinion regarding Plaintiff’s disability was
inconsistent with his clinical findings. (Plaintiff’s Mem. 6).

In

particular, Plaintiff claims that the ALJ erred in (1) finding that

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Plaintiff’s ability to drive four hours to see Dr. Hope was

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inconsistent with Dr. Hope’s opinion that Plaintiff could not sit

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for more than fifteen minutes at one time (Id.); (2) considering

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Plaintiff’s relatively infrequent visits to see Dr. Hope (Id. 7);

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and (3) stating that “the possibility always exists that a doctor

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may express an opinion in an effort to assist a patient with whom

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he or she sympathizes.” (Id. 8).

The Court disagrees.

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27

Plaintiff’s reliance on Embrey v. Bowen, 849 F.2d 418 (9th

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Cir. 1988) in support of his claim that the ALJ may not reject a
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1

treating doctor’s opinion because it is inconsistent with the

2

doctor’s clinical findings (Plaintiff’s Mem. 6) is misplaced. The

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Ninth Circuit held, in Embrey, that it was insufficient for an ALJ

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to merely conclude, without further explanation, that the treating

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physician’s opinion was not supported by sufficient objective

6

findings.

7

Dr.

8

inconsistent with his clinical findings, but also specified the

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inconsistencies.

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12

Id. at 421.

Hope’s

opinion

Here, the ALJ not only stated that he found
regarding

Plaintiff’s

disability

to

be

For example, the ALJ noted that Dr. Hope’s

opinion that Plaintiff (1) could not sit for more than fifteen
minutes at any one time without interruption, (2) had limited use
of his arms and hands, and (3) could never use his right lower
extremity to operate foot controls, was inconsistent with Dr.

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Hope’s progress note - just three months prior - in which he
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documented the fact that Plaintiff had driven four hours to make
15
his appointment.
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17
18

(A.R. 312, 350).

Moreover, Plaintiff testified,

during the administrative hearing, that he drove four hours to see
Dr. Hope.
clinical

(A.R. 38-39).
findings

were

The ALJ also noted that Dr. Hope’s
limited.

(A.R.

24).

This

noted

19

inconsistency is a valid basis for rejecting Dr. Hope’s opinion.

20

See Valentine v. Comm’r Soc. Sec. Admin., 574 F.3d 685, 692-93 (9th

21

Cir. 2009) (contradiction between a treating physician’s opinion

22

and his treatment notes constitutes a specific and legitimate

23

reason for rejecting the treating physician’s opinion); Bayliss v.

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Barnhart, 427 F.3d 1211, 1216 (9th Cir. 2005) (contradiction

25

between

26

justifies rejection of assessment); Johnson v. Shalala, 60 F.3d

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1428, 1432 (9th Cir. 1995) (ALJ properly rejected physician’s

28

determination where it was “conclusory and unsubstantiated by

treating

physician’s

assessment

11

and

clinical

notes

1

relevant medical documentation”); see also Rollins v. Massanari,

2

261 F.3d 853, 856 (9th Cir. 2001) (ALJ properly discounted treating

3

doctor’s opinions for being “so extreme as to be implausible,” and

4

“not supported by any findings,” where there was “no indication in

5

the record what the basis for these restrictions might be”).

6

would be “error to give an opinion controlling

7

because it is the opinion of a treating source if it is not well-

8

supported . . . or if it is inconsistent with the other substantial

9

evidence.” Social Security Ruling 96-2p.

Thus, the Court finds

that

medical

10
11
12

the

ALJ’s

reliance

on

conflicting

It

weight simply

evidence

and

inconsistencies constitutes specific and legitimate reasons for
discounting Dr.

Hope’s opinion. See Thomas v. Barnhart, 278 F.3d

947, 957 (9th Cir. 2002); see also 20 C.F.R. § 404.1527(c)(3) (“The
13
more a medical source presents relevant evidence to support an
14
opinion, particularly medical signs and laboratory findings, the
15
more weight we will give the opinion.”).
16
17
18

Plaintiff cites Ghokassian v. Shalala, 41 F.3d 1300 (9th Cir.
1994), a case in which the claimant saw his treating physician

19

twice during the fourteen month period prior to the hearing, in

20

support

21

Plaintiff’s “relatively infrequent” visits in discounting Dr.

22

Hope’s opinion.

23

limited visits were due to his lack of medical coverage.

24

However, Ghokassian held that the ALJ erred by discounting the

25

treating doctor’s opinion on the grounds that the claimant had

26

first seen the doctor a little more than a year before the hearing

27

and had only seen the doctor on two occasions and because the

of

his

position

that

the

(Plaintiff’s Mem. 7).

28
12

ALJ

improperly

relied

on

Plaintiff claims that his
Id.

1

doctor had failed to identify the interpreter who had accompanied

2

the claimant.

3

under the circumstances presented, the doctor’s opinion about the

4

claimant’s disability was the opinion of a treating doctor.

5

the ALJ properly noted that Plaintiff’s “actual treatment visits”

6

to Dr. Hope were infrequent (A.R. 24). Indeed, the record supports

7

this finding and does not support Plaintiff’s claim that he only

8

tried to see Dr. Hope in emergency situations because he lacked

9

medical coverage. (See A.R. 39; Plaintiff’s Mem. 7). Plaintiff saw

10
11
12

Ghokassian, 41 F.3d at 1303.

The Court found that,

Here,

Dr. Hope in February 2011 for a flu shot and in August 2011 for a
laceration on his nose and a “note for disability.”

(A.R. 313,

318). The Court finds that the ALJ properly considered Plaintiff’s
relatively infrequent “actual” treatment visits with Dr. Hope as a

13
factor in conjunction with the lack of supporting objective medical
14
evidence for Plaintiff’s claims regarding the severity and limiting
15
effects of his symptoms in rejecting Dr. Hope’s opinion regarding
16

Plaintiff’s disability.

17
18

Plaintiff also claims that the ALJ erred in stating that “the

19

possibility always exists that a doctor may express an opinion in

20

an effort to assist a patient with whom he or she sympathizes.”

21

(Plaintiff’s Mem. 8; A.R. 24). However, the ALJ followed this

22

observation with the statement that “[w]hile it is difficult to

23

confirm the presence of such motives, they are more likely in

24

situations where the opinion in question departs substantially from

25

the rest of the evidence of record, as in the current case.

26

not

27

capabilities when considered along with the other evidence of

persuaded

by

Dr.

Hope’s

opinions

28
13

about

the

I am

claimant’s

1

record.” (A.R. 24-25). Thus, the ALJ recognized that even if such

2

motives exist, they are difficult to confirm and therefore did not

3

base his decision on this factor. As set forth above, the ALJ

4

provided valid, specific and legitimate reasons for rejecting Dr.

5

Hope’s opinion.

6

harmless because it would not change the outcome of the case.

7

Molina v. Astrue, 674 F.3d 1104, 1115 (9th Cir. 2012) (errors are

8

harmless if the ALJ would have reached the same result absent the

9

error).

Therefore, any error in making this statement is

10
11
12

C.

The ALJ Provided Specific And Legitimate Reasons For Rejecting
The Opinion Of The Examining Doctor

13
Dr.

Song,

a

state

agency

doctor,

examined

Plaintiff

on

14
September 25, 2010. (A.R. 252). Plaintiff reported that his many
15
bone fractures have prevented him from being able to ride a
16
17
18

motorcycle, drive a car, and turn his head, and Dr. Song noted that
Plaintiff was wearing a bandage on his right lower leg, a knee
brace on his left leg and a right wrist brace.

(Id.). Plaintiff

19

indicated that he used a neck brace and a left wrist brace but did

20

not wear them to the examination.

21

he had broken his fibula several months prior to the examination

22

but did not obtain medical treatment for the injury.

23

Song’s examination revealed that Plaintiff, who was not ambulating

24

with a cane, was able to bear weight on both legs without any

25

difficulty, and there was no tenderness to palpation of any of his

26

limbs including his right lower extremity which Plaintiff alleged

27

had been broken. (A.R. 252, 254). A straight leg test was negative

28
14

(Id.).

Plaintiff claimed that

(Id.). Dr.

1

to eighty degrees without pain.

2

prominent bone spurs on Plaintiff’s left foot and less prominent

3

bone spurs on his right foot and minor tenderness to palpation.

4

(Id.). There was no evidence of muscle atrophy. (Id.).

5

diagnosed Plaintiff as having multiple broken bones and limited

6

range of motion of the cervical and lumbar spines, secondary to

7

arthritis and found that Plaintiff could ambulate without a cane

8

and was able to bear weight on both of his legs.

9

Based on these findings, Dr. Song assessed Plaintiff as having the

10
11
12

(A.R. 254).

Dr Song found

Dr. Song

(A.R. 253, 255).

functional capacity to lift and carry twenty pounds occasionally
and ten pounds frequently, stand and walk two to four hours in an
eight-hour day with normal breaks, sit without restriction, but
with exertional limitations for climbing, stooping, kneeling,

13
balancing, crouching and crawling.

(A.R. 254).

14
15
On October 19, 2010, state agency medical consultant, Dr.
16
17
18

Richard Betcher, reviewed Dr. Song’s clinical findings and opinion
regarding Plaintiff’s residual functional capacity and concluded
that, based on Dr. Song’s objective findings, Plaintiff could stand

19

and walk for at least six hours in an eight-hour day and did not

20

require the use of a cane.

21

questioned Plaintiff alleged homelessness, noting that Plaintiff

22

could afford expensive doctor’s prescriptions including Viagra and

23

was able to shop and cook.

24

Plaintiff was capable of medium exertion.

25

another state agency medical consultant, Dr. Roger Fast, concurred

26

with Dr. Betcher’s opinion after reviewing Dr. Song’s clinical

27

findings

and

opinion.

(A.R. 283).

Dr. Betcher also

Accordingly, Dr. Betcher opined that

(A.R.

299).

28
15

Dr.

On February 2, 2011,

Fast

concluded

that

1

Plaintiff’s allegations regarding the severity of his symptoms were

2

only partially credible. Id.

3
4
5

With respect to Dr. Song’s opinions, the ALJ stated the
following:

6
7

I

am not persuaded by Dr. Song’s opinion and am

8

more persuaded by the opinions of the State agency

9

medical consultants who reviewed the evidence and
concluded that the claimant has not shown that he

10

is capable of less

11

than a range of medium work, as

described in the residual functional capacity. . .

12

[ ] As pointed out by the medical consultants,
13
although he has cervical spine degeneration, his
14
allegations of severity and persistence of symptoms
15
is not well documented by the medical evidence.
16

The clinical findings by Dr. Song include a normal

17

gait, normal range of motion, intact strength,

18

intact reflexes, and no evidence of atrophy. He

19

could bear weight without a cane and there was no

20

evidence of tenderness, despite his allegations of

21

a broken leg bone.

22

no treatment for a broken leg are not credible. The

23

claimant describes a difficult but fairly active

24

life style.

25

His statements that he sought

(A.R. 25).

26
27

Plaintiff contends that the ALJ failed to provide specific and

28
16

1

legitimate reasons for rejecting Dr. Song’s opinion that Plaintiff

2

was only capable of light exertion, and erred in giving greater

3

weight to the opinions of the non-examining physicians who concluded

4

that Plaintiff was capable of performing work at the medium exertion

5

level. (Plaintiff’s Mem. 9-10). In particular, Plaintiff challenges

6

the ALJ’s consideration of Dr. Song’s findings that Plaintiff

7

exhibited “normal gait, normal range of motion, intact strength,

8

intact reflexes and no evidence of muscle atrophy” and the ALJ’s

9

observation that Plaintiff lived a fairly active life style. (Id.

10

11-12).

11
The ALJ noted that Dr. Song’s assessment was inconsistent with

12

her own physical examination findings and plaintiff’s statements,
13
and

that

despite

these

inconsistencies,

Dr.

Song

found

the

14
information Plaintiff provided regarding his symptoms to be “fairly
15
reliable.” (A.R. 252-53).
16
17
18

For example, Plaintiff claimed to have

fractured his right leg but did not receive any medical treatment
for this injury and Dr. Song’s physical examination revealed no
tenderness upon palpation. In addition, although Plaintiff brought

19

a cane with him, Dr. Song noted that Plaintiff was able to ambulate

20

without the cane and could bear weight on both legs. (A.R. 25, 253-

21

53).

22

and

23

Plaintiff’s subjective statements which the ALJ discounted.2

The ALJ found Dr. Song’s opinion with respect to the severity
limiting

effects

of

Plaintiff’s

symptoms

to

be

based

on
“An

24
25
26
27

2

The Court finds that the AlJ’s adverse credibility
determination, which Plaintiff does not challenge, is supported by
the record. Morgan v. Comm’r of Soc. Sec., 169 F.3d 595, 600 (9th
Cir. 1999) (conflict between subjective complaints and the
(continued...)

28
17

1

ALJ may reject a treating physician’s if it is based ‘to a large

2

extent’

3

discounted as incredible.”

4

1041 (9th Cir. 2008).

on

a

claimant’s

self-reports

that

have

been

properly

Tommasetti v. Astrue, 533 F.3d 1035,

5
6

The ALJ found that Dr. Song’s physical examination findings of

7

“normal gait, normal range of motion, intact strength, intact

8

reflexes, and no evidence of atrophy,” (A.R. 25, 254-55) and

9

negative straight leg test (A.R. 25, 254) were inconsistent with her

10
11
12

opinion that Plaintiff was only capable of work at the light
exertional level. (A.R. 25, 255-56).

See Batson v. Commissioner,

359 F.3d 1190, 1195 n.3 (9th Cir. 2004) (ALJ entitled to reject
doctor’s report where “treatment notes do not provide objective

13
medical evidence of the limitations asserted in the report”);
14
Connett v. Barnhart, 340 F.3d 871, 875 (9th Cir. 2003) (ALJ entitled
15
to reject doctor’s report where “treatment
16
17

notes provide no basis

for the functional restrictions he opined”).

Thus, the ALJ was

entitled to rely on these factors, demonstrating the lack of

18
19
2

20
21
22
23
24
25
26
27

(...continued)
objective medical evidence in the record is a sufficient reason
that undermines a claimant’s credibility; Osenbrock v. Apfel, 240
F.3d 1157-1165-66 (9th Cir. 2001) (affirming ALJ’s decision that
relied in part on finding that neurological and orthopedic
evaluations revealed “very little evidence” of any significant
disabling abnormality of the claimant’s upper or lower extremities,
or spine). Where the ALJ has made specific findings justifying a
decision to disbelieve Plaintiff’s symptom allegations and those
findings are supported by substantial evidence in the record, “we
may not engage in second guessing.” Thomas, 278 F.3d 947, 958-59
(9th Cir. 2002). Therefore, Dr. Song’s reliance on Plaintiff’s
subjective claims is a specific and legitimate reason for the ALJ
to reject Dr. Song’s opinion about Plaintiff’s ability to perform
light exertional work.

28
18

1

supporting objective evidence for Dr. Song’s opinion, in finding Dr.

2

Song’s opinion to be overly restrictive.

3
4

The

ALJ

properly

considered

Plaintiff’s

reported

daily

5

activities in discounting Dr. Song’s opinion that Plaintiff was only

6

capable of light exertional work, noting that Plaintiff lives a

7

difficult but active life style. (A.R. 25).

8

drinking a few beers a day, and was able to shop, cook, and take

9

care of his personal hygiene when facilities were available, and

10
11
12

Plaintiff admitted to

testified that he was able to drive long distances and that his
daily activities included “looking through garbage dumpsters.” (A.R.
25-26, 52).

The ALJ properly found these daily activities to be

inconsistent with an RFC that was limited to light exertional work.
13
(A.R. 25).3

Daily activities that are inconsistent with alleged

14
symptoms are a relevant credibility determination.

Rollins v.

15
Massanari, 261 F.3d 853, 857 (9th Cir. 2001).
16
17
18

Finally, the ALJ was also entitled to give greater weight to
the opinions of the reviewing doctors who both opined, after

19

reviewing the record, that Plaintiff was capable of medium exertion

20

work with limitations because their findings were more consistent

21

with the record.

22

physicians may also serve as substantial evidence when the opinions

23

are consistent with independent and clinical findings or other

24

evidence in the record.”

25

416.927(d)(4) (providing that more weight is given to an opinion

“The opinions of non-treating or non-examining

Thomas, 278 F.3d at 957; See 20 C.F.R. §

26
3

27

Dr. Betcher found Plaintiff’s ability to shop and cook
was inconsistent with his alleged homelessness. (A.R. 283).

28
19

1

that is more consistent with the record as a whole);

2

404.1527(c)(4) (“Generally, the more consistent an opinion is with

3

the record as a whole, the more weight we will give that opinion.”).

20 C.F.R.

4
5

CONCLUSION

6
7

The Court finds that the ALJ stated specific, legitimate

8

reasons for discrediting Dr. Hope’s opinion regarding Plaintiff’s

9

disability and Dr. Song’s opinion about the limiting effects of

10

Plaintiff’s symptoms.

11

Bowen, 885 F.2d 597, 605 (9th Cir. 1989).

12

that Plaintiff failed to establish disability was properly based

13

upon substantial evidence.

See Thomas, 278 F.3d at 957–58; Fair v.
Thus, the ALJ’s decision

There was no error.

14
ORDER

15
16
17
18

For

all

of

the

foregoing

reasons,

the

decision

of

the

Administrative Law Judge is affirmed.

19
20

LET JUDGMENT BE ENTERED ACCORDINGLY.

21
22

DATED:

January 2, 2015.

23
24
/s/
25
ALKA SAGAR
26
UNITED STATES MAGISTRATE JUDGE
27
28
20