Wayne Edward Steiger v. Carolyn W. Colvin

Filing 16

MEMORANDUM OPINION AND ORDER AFFIRMING COMMISSIONER by Magistrate Judge Jean P. Rosenbluth. IT IS ORDERED that judgment be entered AFFIRMING the decision of the Commissioner, DENYING Plaintiffs request for remand, and DISMISSING this action with prejudice. IT IS FURTHER ORDERED that the Clerk serve copies of this Order and the Judgment on counsel for both parties. (See Order for details) 1 (bem)

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1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 CENTRAL DISTRICT OF CALIFORNIA 9 10 WAYNE EDWARD STEIGER, 11 Plaintiff, 12 vs. 13 14 CAROLYN W. COLVIN, Acting Commissioner of Social Security, 15 Defendant. 16 ) Case No. EDCV 14-0027-JPR ) ) ) MEMORANDUM OPINION AND ORDER ) AFFIRMING COMMISSIONER ) ) ) ) ) ) ) 17 18 I. PROCEEDINGS 19 Plaintiff seeks review of the Commissioner’s final decision 20 denying his application for Social Security disability insurance 21 benefits (“DIB”). 22 the undersigned U.S. Magistrate Judge under 28 U.S.C. § 636(c). 23 This matter is before the Court on the parties’ Joint 24 Stipulation, filed October 8, 2014, which the Court has taken 25 under submission without oral argument. 26 below, the Commissioner’s decision is affirmed. The parties consented to the jurisdiction of 27 28 1 For the reasons stated 1 II. 2 BACKGROUND Plaintiff was born on September 11, 1964. (Administrative 3 Record (“AR”) 162.) 4 worked as an electronics technician and tractor-trailer truck 5 driver (AR 65-66, 167). 6 He completed eighth grade (AR 42), and he On June 14, 2010, Plaintiff submitted an application for 7 DIB, alleging that he had been unable to work since March 3, 8 2009, because of “[b]ack and neck injury” and “possible cancer 9 under tongue.”1 (AR 162, 166.) After his application was denied 10 initially and on reconsideration, he requested a hearing before 11 an Administrative Law Judge. 12 August 7, 2012, at which Plaintiff, who was represented by 13 counsel, testified, as did a vocational expert and Plaintiff’s 14 fiancée, Norma Perez. 15 August 16, 2012, the ALJ found Plaintiff not disabled. 16 31.) 17 request for review. 18 III. STANDARD OF REVIEW 19 (AR 96.) (AR 38-77.) A hearing was held on In a written decision issued (AR 21- On November 7, 2013, the Appeals Council denied Plaintiff’s (AR 1.) This action followed. Under 42 U.S.C. § 405(g), a district court may review the 20 Commissioner’s decision to deny benefits. The ALJ’s findings and 21 decision should be upheld if they are free of legal error and 22 supported by substantial evidence based on the record as a whole. 23 See id.; Richardson v. Perales, 402 U.S. 389, 401 (1971); Parra 24 v. Astrue, 481 F.3d 742, 746 (9th Cir. 2007). 25 evidence means such evidence as a reasonable person might accept Substantial 26 27 28 1 Plaintiff clarified at the hearing that the lesion under his tongue was not cancerous and did not interfere with his ability to work. (AR 49.) 2 1 as adequate to support a conclusion. Richardson, 402 U.S. at 2 401; Lingenfelter v. Astrue, 504 F.3d 1028, 1035 (9th Cir. 2007). 3 It is more than a scintilla but less than a preponderance. 4 Lingenfelter, 504 F.3d at 1035 (citing Robbins v. Soc. Sec. 5 Admin., 466 F.3d 880, 882 (9th Cir. 2006)). 6 substantial evidence supports a finding, the reviewing court 7 “must review the administrative record as a whole, weighing both 8 the evidence that supports and the evidence that detracts from 9 the Commissioner’s conclusion.” To determine whether Reddick v. Chater, 157 F.3d 715, 10 720 (9th Cir. 1996). “If the evidence can reasonably support 11 either affirming or reversing,” the reviewing court “may not 12 substitute its judgment” for that of the Commissioner. 13 720-21. 14 IV. Id. at THE EVALUATION OF DISABILITY 15 People are “disabled” for purposes of receiving Social 16 Security benefits if they are unable to engage in any substantial 17 gainful activity owing to a physical or mental impairment that is 18 expected to result in death or which has lasted, or is expected 19 to last, for a continuous period of at least 12 months. 20 U.S.C. § 423(d)(1)(A); Drouin v. Sullivan, 966 F.2d 1255, 1257 21 (9th Cir. 1992). 42 22 A. The Five-Step Evaluation Process 23 An ALJ follows a five-step sequential evaluation process to 24 assess whether someone is disabled. 20 C.F.R. § 404.1520(a)(4); 25 Lester v. Chater, 81 F.3d 821, 828 n.5 (9th Cir. 1995) (as 26 amended Apr. 9, 1996). 27 determine whether the claimant is currently engaged in 28 substantial gainful activity; if so, the claimant is not disabled In the first step, the Commissioner must 3 1 and the claim must be denied. 2 claimant is not engaged in substantial gainful activity, the 3 second step requires the Commissioner to determine whether the 4 claimant has a “severe” impairment or combination of impairments 5 significantly limiting his ability to do basic work activities; 6 if not, a finding of not disabled is made and the claim must be 7 denied. 8 impairment or combination of impairments, the third step requires 9 the Commissioner to determine whether the impairment or § 404.1520(a)(4)(ii). § 404.1520(a)(4)(i). If the If the claimant has a “severe” 10 combination of impairments meets or equals an impairment in the 11 Listing of Impairments (“Listing”) set forth at 20 C.F.R., Part 12 404, Subpart P, Appendix 1; if so, disability is conclusively 13 presumed and benefits are awarded. 14 § 404.1520(a)(4)(iii). If the claimant’s impairment or combination of impairments 15 does not meet or equal one in the Listing, the fourth step 16 requires the Commissioner to determine whether the claimant has 17 sufficient residual functional capacity (“RFC”)2 to perform his 18 past work; if so, he is not disabled and the claim must be 19 denied. 20 proving he is unable to perform past relevant work. 21 F.2d at 1257. 22 case of disability is established. 23 the claimant has no past relevant work, the Commissioner then 24 bears the burden of establishing that the claimant is not 25 disabled because he can perform other substantial gainful work § 404.1520(a)(4)(iv). The claimant has the burden of Drouin, 966 If the claimant meets that burden, a prima facie Id. If that happens or if 26 27 28 2 RFC is what a claimant can do despite existing exertional and nonexertional limitations. § 404.1545; see Cooper v. Sullivan, 880 F.2d 1152, 1155 n.5 (9th Cir. 1989). 4 1 available in the national economy. § 404.1520(a)(4)(v). 2 determination comprises the fifth and final step in the 3 sequential analysis. 4 That Drouin, 966 F.2d at 1257. § 404.1520; Lester, 81 F.3d at 828 n.5; 5 B. The ALJ’s Application of the Five-Step Process 6 At step one, the ALJ found that Plaintiff had not engaged in 7 substantial gainful activity since March 3, 2009, the alleged 8 onset date. 9 had the severe impairments of “degenerative joint disease of the (AR 23.) At step two, he concluded that Plaintiff 10 lumbar spine with radiculopathy,3 status post lumbar fusion at 11 L5-S1 with residual back pain and probable pseudoarthritis, 12 status post hardware removal and augmentation of fusion at L5-S1, 13 and mild lateral recess stenosis at L4-5.” 14 the ALJ determined that Plaintiff’s impairments did not meet or 15 equal any of the impairments in the Listing. 16 four, he found that Plaintiff had the RFC to perform light work 17 except that he could “occasionally climb ramps and stairs”; was 18 “prohibited from climbing ladders, ropes, and scaffolds”; could 19 “frequently balance, stoop, kneel, crouch, and crawl”; “should 20 avoid working around unprotected heights and hazardous 21 machinery”; and could “use the bilateral lower extremities for 22 frequent pushing and pulling.” 23 testimony, the ALJ concluded that Plaintiff could not perform his 24 past work as a truck driver and electronics installer. 25 At step five, the ALJ found that Plaintiff could perform jobs (Id.) (Id.) At step three, (AR 25.) Based on the VE’s 26 27 3 28 Radiculopathy is disease of the spinal cord. Stedman’s Medical Dictionary 1503 (27th ed. 2000). 5 At step See (AR 30.) 1 that existed in significant numbers in the national economy. 2 (Id.) 3 V. Accordingly, he found Plaintiff not disabled. (AR 31.) DISCUSSION 4 Plaintiff contends that the ALJ erred in assessing the 5 testimony of Norma Perez, a lay witness and Plaintiff’s fiancée, 6 and in failing to consider one aspect of the treating physician’s 7 opinion. A. 8 (J. Stip. at 5.) Any Error in the ALJ’s Failure to Address the Lay Witness’s Testimony Was Harmless 9 Plaintiff contends that the ALJ erred because he did not 10 11 “acknowledge much less address” Perez’s testimony. 12 6-8.) 13 (J. Stip. at and remand is not warranted on this ground. For the reasons discussed below, any error was harmless 14 1. Applicable law 15 “‘In determining whether a claimant is disabled, an ALJ must 16 consider lay witness testimony concerning a claimant’s ability to 17 work.’” 18 (quoting Stout v. Comm’r, Soc. Sec. Admin., 454 F.3d 1050, 1053 19 (9th Cir. 2006)); see also § 404.1513(d) (statements from 20 therapists, family, and friends can be used to show severity of 21 impairments and effect on ability to work). 22 competent evidence and “‘cannot be disregarded without comment.’” 23 Bruce, 557 F.3d at 1115 (emphasis in original) (quoting Nguyen v. 24 Chater, 100 F.3d 1462, 1467 (9th Cir. 1996)); Robbins, 466 F.3d 25 at 885 (“[T]he ALJ is required to account for all lay witness 26 testimony in the discussion of his or her findings.”). 27 rejecting the testimony of a lay witness, an ALJ must give 28 specific reasons germane to that witness. Bruce v. Astrue, 557 F.3d 1113, 1115 (9th Cir. 2009) 6 Such testimony is When Bruce, 557 F.3d at 1 1115; see also Stout, 454 F.3d at 1053; Nguyen, 100 F.3d at 1467. 2 An ALJ’s failure to address a lay witness’s testimony is 3 harmless if it is “inconsequential to the ultimate nondisability 4 determination in the context of the record as a whole.” 5 v. Astrue, 674 F.3d 1104, 1122 (9th Cir. 2012) (internal 6 quotation marks omitted); see also Tommasetti v. Astrue, 533 F.3d 7 1035, 1038 (9th Cir. 2008); Carmickle v. Comm’r, Soc. Sec. 8 Admin., 533 F.3d 1155, 1162 (9th Cir. 2008). 9 “‘the same evidence that the ALJ referred to in discrediting [the Molina That happens when 10 claimant’s] claims also discredits [the lay witness’s] claims.’” 11 Molina, 674 F.3d at 1122 (alterations in original) (quoting 12 Buckner v. Astrue, 646 F.3d 549, 560 (8th Cir. 2011)). 13 14 2. Analysis In determining Plaintiff’s RFC, the ALJ discredited 15 Plaintiff’s allegations regarding the severity of his upper-back, 16 neck, and hip pain because they were inconsistent with the 17 medical evidence and his daily activities and because Plaintiff 18 had not complied with his treatment regimen. 19 Plaintiff has not challenged on appeal the ALJ’s credibility 20 determination regarding his own statements and testimony. 21 (AR 26-27.) Perez heard Plaintiff’s testimony at the hearing (AR 41) and 22 then testified herself (AR 71-76). The ALJ did not address her 23 testimony in his written decision. (See AR 25-30.) 24 that was error, see Bruce, 557 F.3d at 1115, it was harmless 25 because Perez described the same limitations as Plaintiff did in 26 his own testimony, and the ALJ’s reasons for rejecting 27 Plaintiff’s testimony “appl[ied] with equal force” to Perez’s 28 testimony. Molina, 674 F.3d at 1122. 7 Although 1 The ALJ first rejected Plaintiff’s allegations because of 2 his “inconsistency in reporting his activities of daily living.” 3 (AR 26); see Tommasetti, 533 F.3d at 1039 (ALJ may consider 4 claimant’s daily activities in assessing his credibility); see 5 also Thomas v. Barnhart, 278 F.3d 947, 958-59 (9th Cir. 2002) (in 6 weighing credibility, ALJ may consider daily activities and 7 “inconsistencies either in claimant’s testimony or between [his] 8 testimony and [his] conduct” (alteration omitted)). 9 noted, in an “Exertion Questionnaire” dated September 1, 2010, 10 Plaintiff stated that his back injury prevented him from doing 11 chores around the house because of “excruciating pain.” 12 172.) 13 to sit or stand or even drive for any one period of time” (id.), 14 though he acknowledged that he could drive up to 30 miles at a 15 time (AR 173). 16 shopping “any more cause it[’]s too much work.” As the ALJ (AR 17 Because of back and leg pain it was “hard for [Plaintiff] He indicated that he could not go grocery (Id.) At the hearing, by contrast, Plaintiff testified that he 18 occasionally washed dishes, made the bed, did laundry, and “once 19 in a while” watered the yard. 20 he could drive himself 30 miles to go to doctor’s appointments, 21 “pay a couple bills here or there,” and go “to the stores.” 22 42.) 23 (Id.) 24 riding dirt bikes” very much. 25 “wife ha[d] to carry everything” when they went fishing. 26 He added, “So it’s [sic] kind of makes you not feel like a man 27 having to have your wife carry everything while you’re trying to 28 enjoy yourself.” (AR 41.) He also testified that (AR He also occasionally drove one hour to family gatherings. He no longer did hobbies like “hiking, fishing, [and] (AR 58.) (Id.) 8 He explained that his (Id.) 1 Perez’s testimony on his activities was nearly identical to 2 Plaintiff’s, as Plaintiff seems to acknowledge. 3 (noting that Perez “confirmed the testimony of [Plaintiff] as to 4 his limited ability to do chores”).) 5 Plaintiff did some chores — washing dishes, making the bed, and 6 watering the yard, the same ones Plaintiff testified to — but did 7 not vacuum, mop, or take out the trash. 8 that Plaintiff could “go the [sic] store, run errands and 9 everything.” (AR 74.) (J. Stip. at 7 She testified that (AR 73.) She stated When asked by the ALJ why she believed 10 Plaintiff was disabled, she answered that they could not go 11 camping and ride bikes like they used to and she carried “all the 12 equipment.” 13 man.” 14 beyond Plaintiff’s own testimony, the ALJ’s discussion of daily 15 activities applied with equal force to Perez’s testimony. 16 The ALJ’s other reasons for discrediting Plaintiff’s (AR 75.) (Id.) She said, “[H]e feels like he’s not a Because Perez’s testimony did not add anything 17 allegations also applied to Perez’s testimony. 18 Plaintiff’s allegations because they were inconsistent with the 19 medical evidence. 20 (contradiction with medical record sufficient basis for rejecting 21 claimant’s subjective testimony). 22 despite two surgeries, he still experienced muscle spasms, 23 cramps, and sharp, shooting pain in his hips and legs. 24 46, 51.) 25 showed “no significant bony spinal canal or neural foraminal 26 stenosis.” 27 April 17, 2012 EMG and nerve-conduction study of both lower 28 extremities and lumbar paraspinals were “entirely within normal He discredited (AR 27-28); see Carmickle, 533 F.3d at 1161 Plaintiff testified that (AR 44, But as the ALJ noted, a February 22, 2012 CT scan (AR 440-41.) Additionally, the findings from an 9 1 limits” and “rule[d] out lumbar radiculopathy.” 2 the extent Perez testified that Plaintiff could not perform any 3 work (see AR 75), the ALJ’s reasoning applied equally to her 4 testimony. 5 (AR 442-45.) To The ALJ also discredited Plaintiff’s allegations of 6 disabling pain because Plaintiff had not complied with his 7 treatment regimen. 8 1285 (9th Cir. 1996) (ALJ may rely on “unexplained or 9 inadequately explained failure to seek treatment or follow a (AR 26); see Smolen v. Chater, 80 F.3d 1273, 10 prescribed course of treatment” in discounting claimant’s 11 testimony regarding severity of impairment). 12 despite doctors’ recommendations that he receive physical therapy 13 (see, e.g., AR 299, 302), Plaintiff testified that he “never had 14 physical therapy for any of [his] surgeries” even though he had 15 “heard a lot of scar tissue builds up” (AR 46-47). 16 acknowledged that the lack of therapy had “hindered [his] 17 healing.” 18 insurance company “could never get it worked out right,” implying 19 that he had not attended the sessions because they were “down the 20 hill.” 21 Perez’s testimony that Plaintiff was unable to work. 22 (AR 47.) (Id.) As the ALJ noted, He He explained ambiguously that his doctor and The ALJ’s reasoning also applied in discrediting In sum, Perez’s testimony was nearly identical to 23 Plaintiff’s and did not describe any limitations beyond those 24 Plaintiff himself described.4 See Molina, 674 F.3d at 1122. 25 26 27 28 4 Plaintiff asserts that Perez’s testimony was “important” because “she testified to his mental state.” (J. Stip. at 7.) He overstates her testimony regarding his mental health, however; she testified only that Plaintiff’s medication seemed to cause mood swings and that he was forgetful, stressed, and irritable. 10 1 Further, the ALJ extensively discussed Plaintiff’s alleged 2 limitations and rejected them based on specific, clear, and 3 convincing reasons, a determination Plaintiff has not challenged 4 on appeal. 5 discredit Plaintiff’s testimony also discredited Perez’s, any 6 error was inconsequential to the ultimate nondisability 7 determination and was therefore harmless. 8 Valentine v. Comm’r Soc. Sec. Admin., 574 F.3d 685, 694 (9th Cir. 9 2009) (when lay witness’s testimony is similar to claimant’s and Because the evidence on which the ALJ relied to Id.; see also 10 ALJ gives clear and convincing reasons for rejecting claimant’s 11 testimony, “it follows that the ALJ also gave germane reasons for 12 rejecting” lay witness’s testimony). 13 Plaintiff is not entitled to remand on this ground. 14 B. 15 16 The ALJ Properly Considered the Treating Physician’s Opinion Plaintiff contends that the ALJ erred in failing to consider 17 one finding of Dr. Sunny Uppal, his treating physician. (J. 18 Stip. at 11-13.) 19 address” Dr. Uppal’s statement on March 16, 2010, that he should 20 not perform heavy lifting, bending, or stooping. 21 AR 305.) Specifically, he asserts that the ALJ “did not (Id.; see also 22 23 24 25 26 27 28 (See AR 73-74.) The ALJ’s reasons for discounting Plaintiff’s mental-health allegations (see AR 24-25) also applied to Perez’s testimony, as her testimony overlapped with portions of Plaintiff’s (see, e.g., AR 59 (Plaintiff testifying medication made him feel “cloudy” and he would “forget stuff constantly”)). Indeed, Plaintiff does not challenge the ALJ’s finding that his mental impairments were nonsevere. (AR 24-25.) 11 1 1. 2 Relevant background On December 11, 2009, Plaintiff started seeing Dr. Uppal, an 3 orthopedic surgeon, for his leg and back pain. 4 318.) 5 that was “not responsive to conservative treatment.” 6 Dr. Uppal recommended — and Plaintiff requested — surgery to 7 perform anterior and posterior decompression and fusion. 8 9 10 (See AR 314, An MRI revealed a five-millimeter herniated disc at L5-S1 (AR 311.) (Id.) On January 8, 2010, before the surgery, Dr. Uppal diagnosed spondylosis5 of L5-S1, noting again that the condition was “not responsive to conservative treatment.” (AR 309.) Plaintiff had back surgery on February 27, 2010. 11 12 371, 442.) 13 (See AR On March 16, 2010, in a postoperative checkup, Dr. Uppal noted that Plaintiff’s 14 preoperative level of pain is essentially gone. He used 15 to have severe pain in his leg, which is now gone. 16 very happy. He is 17 (AR 306). 18 10 degrees of extension, and straight-leg raising was negative. 19 (Id.) 20 ankle plantar flexion and dorsiflexion, quadriceps, and 21 iliopsoas.6 22 noted that “[d]o’s and don’ts were explained to [Plaintiff]” and 23 recommended that he continue his “home walking program” and Plaintiff’s back exhibited 60 degrees of flexion and He demonstrated motor strength of five out of five in (Id.) Under the “Treatment Plan” heading, Dr. Uppal 24 5 25 26 27 28 Spondylosis refers generally to degeneration of the vertebrae. See Stedman’s Medical Dictionary, supra, at 1678. 6 The iliopsoas muscle is part of a group of muscles known as the hip flexors. See Hip flexor strain — aftercare, MedlinePlus, http://www.nlm.nih.gov/medlineplus/ency/ patientinstructions/000682.htm (last updated May 15, 2013). 12 1 perform “[n]o heavy lifting, bending or stooping.” 2 (AR 305.) On May 21, 2010, Dr. Uppal noted that Plaintiff’s 3 “preoperative level of pain ha[d] improved” but he continued to 4 have “some degree of pain.” 5 exhibited 60 degrees of flexion and 10 degrees of extension, and 6 straight-leg raising was negative. 7 strength of five out of five in ankle plantar and dorsiflexion, 8 quadriceps, and iliopsoas. 9 negative, which indicated “no hip pathology.”7 (AR 303.) (Id.) Plaintiff’s back (Id.) He demonstrated motor Plaintiff’s FABER test was (Id.) Plaintiff saw Dr. Uppal again on July 9, 2010. 10 (AR 299- 11 300.) Dr. Uppal again noted that Plaintiff’s preoperative pain 12 had improved but that he continued to have lower back pain. 13 300.) 14 and motor strength as it did in May, and straight-leg raising and 15 FABER tests were again negative. 16 the July treatment plans did Dr. Uppal include a limitation on 17 lifting, bending, or stooping. (AR Plaintiff’s back exhibited the same flexion, extension, 18 2. (Id.) In neither the May nor (AR 299, 302.) Applicable law 19 Three types of physicians may offer opinions in Social 20 Security cases: (1) those who directly treated the plaintiff, (2) 21 those who examined but did not treat the plaintiff, and (3) those 22 who did not treat or examine the plaintiff. 23 830. Lester, 81 F.3d at A treating physician’s opinion is generally entitled to 24 7 25 26 27 28 The FABER test is used to assess the sacroiliac joint as a source of lower back pain. See Comprehensive Diagnostic Approach for the Sacroiliac (SI) Joint, Spine-health, http://www.spinehealth.com/education-centers/sacroiliac-joint-disorders/ physicians/comprehensive-diagnostic-approach-sacroiliac (last visited Feb. 9, 2015). FABER is an acronym for flexion, abduction, and external rotation. Id. 13 1 more weight than that of an examining physician, and an examining 2 physician’s opinion is generally entitled to more weight than 3 that of a nonexamining physician. 4 Id. This is true because treating physicians are employed to 5 cure and have a greater opportunity to know and observe the 6 claimant. 7 opinion is well supported by medically acceptable clinical and 8 laboratory diagnostic techniques and is not inconsistent with the 9 other substantial evidence in the record, it should be given Smolen, 80 F.3d at 1285. If a treating physician’s 10 controlling weight. 11 opinion is not given controlling weight, its weight is determined 12 by length of the treatment relationship, frequency of 13 examination, nature and extent of the treatment relationship, 14 amount of evidence supporting the opinion, consistency with the 15 record as a whole, the doctor’s area of specialization, and other 16 factors. 17 § 404.1527(c)(2). If a treating physician’s § 404.1527(c)(2)-(6). When a treating or examining physician’s opinion is not 18 contradicted by other evidence in the record, it may be rejected 19 only for “clear and convincing” reasons. 20 at 1164 (quoting Lester, 81 F.3d at 830-31). 21 examining physician’s opinion is contradicted, the ALJ must 22 provide only “specific and legitimate reasons” for discounting 23 it. 24 moreover, depends on whether it is consistent with the record and 25 accompanied by adequate explanation, among other things. 26 § 404.1527(c)(3)-(6). Id. See Carmickle, 533 F.3d When a treating or The weight given an examining physician’s opinion, 27 28 14 1 3. 2 Analysis In determining Plaintiff’s RFC, the ALJ expressly rejected 3 Dr. Uppal’s March 16, 2010 statement that Plaintiff was 4 “temporarily totally disabled” and similar state disability 5 certificates completed by Dr. Darren Bergey. 6 311, 320, 328, 332, 487-89.) 7 “temporarily totally disabled” was a “term of art in workers’ 8 compensation law that is not determinative” under Social Security 9 law. (AR 29.) (AR 29; see AR 308, The ALJ noted that the phrase He found that the “temporarily totally disabled” 10 determination was “not relevant” and had “no probative value.” 11 (Id.) 12 March 16, 2010 treatment note in which Dr. Uppal recommended that 13 Plaintiff perform no heavy lifting, bending, or stooping. 14 AR 25-30.) 15 He did not explicitly address the portion of Dr. Uppal’s (See Plaintiff asserts that the ALJ erred by failing to address 16 that limitation. (J. Stip. at 11-12.) But Plaintiff takes Dr. 17 Uppal’s statement out of context and mistakenly characterizes it 18 as a functional assessment. 19 of several recommendations in Plaintiff’s post-surgery treatment 20 plan, not an opinion regarding Plaintiff’s functional 21 limitations. 22 were explained to [Plaintiff],” and Dr. Uppal recommended that 23 Plaintiff continue his “home walking program” and perform “[n]o 24 heavy lifting, bending or stooping.” 25 Dr. Uppal did not include any such limitation in his May and July 26 2010 treatment plans. 27 Uppal’s opinion was not that Plaintiff could not ever perform 28 heavy lifting, bending, or stooping but that he should not do In actuality, the statement was one The “Treatment Plan” noted that “[d]o’s and don’ts (AR 299, 302.) 15 (AR 305.) Significantly, Thus, in context, Dr. 1 2 those things during his post-surgery recovery. In any event, the ALJ extensively referenced Dr. Uppal’s 3 findings in his decision, including the March 16, 2010 4 examination. 5 that Plaintiff’s preoperative pain was “essentially gone.” 6 27 (citing AR 306).) 7 March 16 to July 9, 2010, the ALJ observed that Plaintiff “was 8 generally noted to have normal patellar and Achilles reflexes, 9 ankle dorsiflexors, plantarflexors, quadriceps, and iliopsoas For example, the ALJ noted Dr. Uppal’s findings (AR Reviewing Dr. Uppal’s treatment notes from 10 were all 5/5, and he was mostly negative for straight leg raising 11 and Faber test.” 12 noted Dr. Uppal’s findings that despite surgery and post-surgery 13 treatment, Plaintiff continued to complain of pain, exhibited 14 decreased range of motion in his back, had tenderness over the 15 screw tops, occasionally tested positive in straight-leg raising, 16 and had muscle spasms. 17 also reviewed all of Dr. Uppal’s examinations and Plaintiff’s 18 imaging from after the removal of his hardware on June 6, 2011 19 (AR 433-34), noting medical evidence that was inconsistent as 20 well as consistent with Plaintiff’s alleged functional 21 limitations (AR 28; see AR 412). 22 suggests that he selectively analyzed the medical evidence, nor 23 was he required to discuss every piece of evidence. 24 ex rel. Wolff v. Barnhart, 341 F.3d 1006, 1012 (9th Cir. 2003). 25 Dr. Uppal’s medical findings were duly considered. 26 (AR 28 (citing AR 297-306, 394-411).) (AR 27; see AR 404, 412, 415.) 28 16 The ALJ Nothing in the ALJ’s decision See Howard Plaintiff is not entitled to remand on this ground. 27 He also 1 2 VI. CONCLUSION Consistent with the foregoing, and under sentence four of 42 3 U.S.C. § 405(g),8 IT IS ORDERED that judgment be entered 4 AFFIRMING the decision of the Commissioner, DENYING Plaintiff’s 5 request for remand, and DISMISSING this action with prejudice. 6 IT IS FURTHER ORDERED that the Clerk serve copies of this Order 7 and the Judgment on counsel for both parties. 8 9 DATED: February 13, 2015 10 ____________________________ JEAN ROSENBLUTH U.S. Magistrate Judge 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 8 This sentence provides: “The [district] court shall have power to enter, upon the pleadings and transcript of the record, a judgment affirming, modifying, or reversing the decision of the Commissioner of Social Security, with or without remanding the cause for a rehearing.” 17

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