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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1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 CENTRAL DISTRICT OF CALIFORNIA 9 10 DONALD LEE BRADLEY, 11 Plaintiff, 12 13 14 v. CAROLYN W. COLVIN, Acting Commissioner of Social Security, 15 Defendant. 16 ) NO. ED CV 13-1277-AS ) ) ) MEMORANDUM OPINION ) ) ) ) ) ) ) ) ) ) 17 18 PROCEEDINGS 19 20 On July 29, 2013, Plaintiff filed a Complaint seeking review 21 22 23 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 24 current Magistrate Judge. (Docket Entry No. 12). The parties 25 thereafter consented to proceed before a United States Magistrate 26 Judge (Docket Entry Nos. 14-15). 27 On December 9, 2013, Defendant filed an Answer and the Administrative Record (“A.R.”). 28 1 (Docket 1 Entry 2 Memorandum of Points and Authorities in support of the Complaint 3 (Docket Entry No. 20). 4 Memorandum of Points and Authorities in support of the Answer 5 6 7 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). 9 BACKGROUND AND SUMMARY OF ADMINISTRATIVE DECISION 10 11 Plaintiff, 12 13 14 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). 15 The Administrative Law Judge (“ALJ”) examined the record and held 16 a hearing on February 21, 2012. (A.R. 34-67). 17 represented by counsel, testified by teleconference. (A.R. 36-58). 18 The ALJ also heard testimony from a vocational expert (A.R. 59-66). Plaintiff, who was 19 20 On February 29, 2012, The ALJ issued a decision denying 21 Plaintiff’s application for SSI. (A.R. 18-28). 22 following 23 determinable impairments of cervical degenerative disc disease, 24 depressive disorder, and alcohol abuse (A.R. 20); (2) Plaintiff’s 25 impairments do not meet or equal a listed impairment (A.R. 20-22); 26 27 28 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 2 1 hours and sit for six hours in an eight-hour day;” frequently climb 2 ramps 3 occasionally climb ladders, ropes or scaffolds; and is “limited to 4 simple, routine, and repetitive tasks, involving only simple work- 5 6 7 8 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 9 janitor. (A.R. 27). 10 11 Accordingly, the ALJ found that Plaintiff was not disabled at 12 13 14 15 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). 16 17 PLAINTIFF’S CONTENTIONS 18 19 Plaintiff contends that the ALJ erred in (1) failing to 20 articulate 21 treating physician’s opinion that he was disabled (Plaintiff’s Mem 22 3-9); and (2) failing to articulate specific and legitimate reasons 23 for rejecting the examining physician’s opinion that he was capable 24 of performing work at the light exertional level. (Id. 9-13). specific and legitimate reasons for rejecting his 25 26 STANDARD OF REVIEW 27 28 This Court reviews the Commissioner’s decision to determine 3 1 if: 2 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 4 Cir. 2008); Hoopai v. Astrue, 499 F.3d 1071, 1074 (9th Cir. 2007). 5 6 7 8 (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 9 1074; Smolen v. Chater, 80 F.3d 1273, 1279 (9th Cir. 1996)). To 10 determine whether substantial evidence supports a finding, “a court 11 must ‘consider the record as a whole, weighing both evidence that 12 13 14 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, 15 1066 (9th Cir. 2006) (inferences “reasonably drawn from the record” 16 can constitute substantial evidence). 17 18 This Court “may not affirm [the Commissioner’s] decision 19 simply by isolating a specific quantum of supporting evidence, but 20 must also consider evidence that detracts from [the Commissioner’s] 21 conclusion.” 22 (citation and internal quotation marks omitted); Lingenfelter v. 23 Astrue, 504 F.3d 1028, 1035 (9th Cir. 2007) (same). 24 Court cannot disturb findings supported by substantial evidence, 25 even though there may exist other evidence supporting Plaintiff’s 26 27 28 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, 4 either [a] affirming court may or not 1 substitute its judgment for that of the [Commissioner].” 2 Reddick, 157 F.3d 715, 720-21 (9th Cir. 1998) (citation omitted). 3 DISCUSSION 4 5 After consideration of the record as a whole, the Court finds 6 7 8 that the Commissioner’s findings are supported by substantial evidence and are free from material1 legal error. 9 A. Applicable Law 10 11 “The Social Security Act defines disability as the ‘inability 12 13 14 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 15 to last for a continuous period of not less than 12 months.’” 16 v. Barnhart, 433 F.3d 683, 686 (9th Cir. 2005) (quoting 42 U.S.C. 17 § 423 (d)(1)(A)). The ALJ follows a five-step, sequential analysis 18 to determine whether a claimant has established disability. 19 C.F.R. § 404.1520. Webb 20 20 21 At step one, the ALJ determines whether the claimant is 22 engaged in substantial gainful employment activity. Id. § 23 404.1520(a)(4)(i). 24 “work that . . . [i]nvolves doing significant and productive “Substantial gainful activity” is defined as 25 1 26 27 28 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). 5 1 physical or mental duties[] and . . . [i]s done (or intended) for 2 pay or profit.” 3 that the claimant is not engaged in substantial gainful activity, 4 the ALJ proceeds to step two which requires the ALJ to determine 5 6 7 8 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 9 jobs.” 20 C.F.R. § 404.1521(b); Webb, 433 F.3d at 686. An 10 impairment is not severe if it is merely “a slight abnormality (or 11 combination of slight abnormalities) that has no more than a 12 13 minimal effect on the ability to do basic work activities.” Webb, 433 F.3d at 686. 14 15 If the ALJ concludes that a claimant lacks a medically severe 16 impairment, the ALJ must find the claimant not disabled. 17 C.F.R. § 1520(a)(ii); Ukolov v. Barnhart, 420 F.3d 1002, 1003 (9th 18 Cir. 2005) (ALJ need not consider subsequent steps if there is a 19 finding of “disabled” or “not disabled” at any step). Id.; 20 20 21 However, if the ALJ finds that a claimant’s impairment is 22 severe, then step three requires the ALJ to evaluate whether the 23 claimant’s impairment satisfies certain statutory requirements 24 entitling him to a disability finding. 25 the 26 27 28 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 6 1 from all his impairments. 20 C.F.R. § 416.920(e). 2 3 Once the RFC is determined, the ALJ proceeds to step four to 4 assess whether the claimant is able to do any work that he or she 5 has done in the past, defined as work performed in the last fifteen 6 years prior to the disability onset date. 7 the claimant is not able to do the type of work that he or she has 8 done in the past or does not have any past relevant work, the ALJ 9 proceeds to step five to determine whether - taking into account 10 11 12 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. § 13 404.1520(a)(4)(iii)-(v). The claimant has the burden of proof at 14 steps one through four, and the Commissioner has the burden of 15 proof at step five. Tackett, 180 F.3d at 1098. 16 17 18 B. The ALJ Provided Specific And Legitimate Reasons For Rejecting The Opinion Of Plaintiff’s Treating Physician 19 20 In evaluating medical opinions, the case law and regulations 21 distinguish among the opinions of three types of physicians: 22 those who treat the claimant (treating physicians); (2) those who 23 examine but do not treat the claimant (examining physicians); and 24 (3) those who neither examine nor treat the claimant (nonexamining 25 or reviewing physicians). 26 416.902, 416.927; see also Lester v. Chater, 81 F.3d 821, 830 (9th 27 Cir. 1995). 28 given greater weight than those of other physicians, because 7 (1) See 20 C.F.R. §§ 404.1502, 404.1527, Generally, the opinions of treating physicians are 1 treating physicians are employed to cure and therefore have a 2 greater opportunity to know and observe the claimant. 3 Astrue, 495 F.3d 625, 631 (9th Cir. 2007); Smolen, 80 F.3d at 1285. 4 Where, as here, a treating physician’s opinion is contradicted by 5 another doctor, the ALJ must provide specific and legitimate 6 reasons supported by substantial evidence to properly reject it. 7 Lester, 81 F.3d at 830-31 (citing Andrews v. Shalala, 53 F.3d 1035, 8 1043 (9th Cir. 1995)); see also Orn, 495 F.3d at 632-33; Soc. Sec. 9 Ruling 96-2p. Orn v. 10 11 12 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 13 with range of motion. (A.R. 245). X-rays of Plaintiff’s cervical 14 spine revealed mild “C5-C6 spurring consistent with spondylosis, 15 but no mineralization, fracture, or vertebral wedge deformities, no 16 17 18 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 19 a fracture (A.R. 243). 20 concluded that Plaintiff was unable to work, part time or full 21 time, due to severe neck arthritis. 22 2011, Dr. Hope noted that Plaintiff had driven four hours to see 23 him and that he had been involved in a hit and run accident one 24 week prior for which he had received emergency treatment and had 25 tripped and fallen while gardening two days prior to the visit. 26 (A.R. 312). 27 continued to believe that Plaintiff was unable to work, noting that 28 Plaintiff had been in jail due to a DUI conviction but resumed 8 On February 24, 2011, Dr. Hope again (A.R. 306). On August 18, Dr. Hope saw Plaintiff on September 23, 2011 and 1 drinking upon his release, and had suffered a right wrist deformity 2 due to a fracture after he was injured in a motorcycle accident on 3 August 7, 2011. 4 degenerative disc and facet joint changes but no evidence of acute 5 cervical spine, or head, wrist, or pelvis 6 327). (A.R. 318). X-rays revealed moderately severe fracture. (A.R. 324- 7 8 9 10 11 12 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 13 without interruption, and that during an eight-hour day, Plaintiff 14 could only sit for two hours, stand for three hours, and walk for 15 thirty minutes. 16 17 18 (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 19 based on the following: “Plaintiff has severe neck arthritis,” 20 “severe bilateral wrist sprains,” “severe left knee [and] right 21 [first] toe pains,” and pain walking, sitting, and using arms and 22 neck. (A.R. 350). 23 reach in any direction with either hand and could never use his 24 right lower extremity to operate foot controls, but could operate 25 a motor vehicle up to one-third of the workday. (A.R. 351-53). Dr. Hope also found that Plaintiff could not 26 27 28 With respect to Dr. Hope’s opinions, the ALJ stated the 9 1 following: 2 3 I reject this opinion because it is not consistent with 4 Dr. 5 limited. In addition, it is not consistent with the fact 6 that the claimant was able to drive for long periods to 7 attend his appointments, far longer than the 15 minutes 8 of 9 extremities for driving far in excess of Dr. Hope’s 10 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. 12 (A.R. 24) 13 14 Plaintiff contends that the ALJ failed to provide specific and 15 legitimate reasons for rejecting Dr. Hope’s opinion, by failing to 16 17 18 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 19 Plaintiff’s ability to drive four hours to see Dr. Hope was 20 inconsistent with Dr. Hope’s opinion that Plaintiff could not sit 21 for more than fifteen minutes at one time (Id.); (2) considering 22 Plaintiff’s relatively infrequent visits to see Dr. Hope (Id. 7); 23 and (3) stating that “the possibility always exists that a doctor 24 may express an opinion in an effort to assist a patient with whom 25 he or she sympathizes.” (Id. 8). The Court disagrees. 26 27 Plaintiff’s reliance on Embrey v. Bowen, 849 F.2d 418 (9th 28 Cir. 1988) in support of his claim that the ALJ may not reject a 10 1 treating doctor’s opinion because it is inconsistent with the 2 doctor’s clinical findings (Plaintiff’s Mem. 6) is misplaced. The 3 Ninth Circuit held, in Embrey, that it was insufficient for an ALJ 4 to merely conclude, without further explanation, that the treating 5 physician’s opinion was not supported by sufficient objective 6 findings. 7 Dr. 8 inconsistent with his clinical findings, but also specified the 9 inconsistencies. 10 11 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. 13 Hope’s progress note - just three months prior - in which he 14 documented the fact that Plaintiff had driven four hours to make 15 his appointment. 16 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. 24 Barnhart, 427 F.3d 1211, 1216 (9th Cir. 2005) (contradiction 25 between 26 justifies rejection of assessment); Johnson v. Shalala, 60 F.3d 27 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

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