Joseph Kozlowski v. Carolyn W. Colvin

Filing 20

MEMORANDUM OPINION AND ORDER by Magistrate Judge Jay C. Gandhi. Based on the foregoing, IT IS ORDERED THAT judgment shall be entered AFFIRMING the decision of the Commissioner denying benefits. (see document for details). (dro)

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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

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JOSEPH JOHN KOZLOWSKI,
Plaintiff,

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v.

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CAROLYN W. COLVIN,
COMMISSIONER OF SOCIAL
SECURITY ADMINISTRATION,

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Defendant.

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Case No. ED CV 15-2010 JCG
MEMORANDUM OPINION AND
ORDER

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Joseph John Kozlowski (“Plaintiff”) challenges the Social Security

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Commissioner’s decision denying in part his application for disability benefits.1 Two

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issues are presented for decision here:
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Whether the ALJ properly rejected a treating physician’s opinion (see

Joint Stip. at 10-18); and

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This Court reversed and remanded for reevaluation an Administrative Law Judge (“ALJ”)’s
previous decision denying benefits. (Administrative Record (“AR”) at 21-32, 712, 814-19); see
Kozlowski v. Colvin, 2014 WL 1716048, at *3 (C.D. Cal. Apr. 29, 2014). On remand, a different
ALJ found that Plaintiff was disabled from August 31, 2010 to October 1, 2012. However, the ALJ
concluded that Plaintiff’s condition improved after his second surgery, and was no longer disabled as
of October 2, 2012. (Id. at 682-83, 687, 691-92, 701-02, 712, 728-29.)

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2.

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27-31).
The Court addresses Plaintiff’s contentions below, and finds that reversal is not

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Whether the ALJ properly assessed Plaintiff’s credibility (see id. at 10-11,

warranted.

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A.

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Plaintiff contends that the ALJ improperly rejected the opinion of treating

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The ALJ Properly Rejected the Treating Physician’s Opinion

physician Dr. Matthew Long. (See Joint Stip. at 10-18.)
As a rule, if an ALJ wishes to disregard the opinion of a treating or examining

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physician, “he or she must make findings setting forth specific, legitimate reasons for

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doing so that are based on substantial evidence in the record.” Murray v. Heckler, 722

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F.2d 499, 502 (9th Cir. 1983); accord Carmickle v. Comm’r, Soc. Sec. Admin., 533

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F.3d 1155, 1164 (9th Cir. 2008).
Here, the ALJ properly concluded that Dr. Long’s opinion – that Plaintiff was

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extremely limited in his ability to work2 – was not entitled to significant weight, for

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five reasons. (AR at 667-75, 699.)

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First, Dr. Long’s opinion “contrast[ed] sharply” with other medical opinions.

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(AR at 699); see Batson v. Comm’r Soc. Sec. Admin., 359 F.3d 1190, 1197 (9th Cir.

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2004) (“[I]t was permissible for the ALJ to give [a medical opinion] minimal

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evidentiary weight, in light of the objective medical evidence and the opinions and

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observations of other doctors.”); Kane v. Colvin, 2015 WL 5317149, at *3 (E.D. Cal.

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Sept. 10, 2015) (ALJ properly rejected treating physician’s opinion regarding

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claimant’s standing and walking limitations in part because opinion was contradicted

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by state agency physicians’ findings). Significantly, six other medical opinions

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Dr. Long completed a multiple impairment questionnaire on February 9, 2013, and wrote a
supporting letter on June 10, 2013. (AR at 667-76). He opined that Plaintiff could not (1) stand, sit,
or walk for more than one hour in a workday; (2) lift more than five pounds; or (3) complete an eight
hour workday. (Id. at 670-74.) He also opined that Plaintiff would likely miss work more than three
times a month due to his impairments or treatment. (Id. at 674.)

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concluded that Plaintiff could at least perform light work with limitations. (AR at 98-

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100, 561, 615-16, 731-35, 740-43, 773, 848-49, 1012.)
Second, Dr. Long examined Plaintiff on only one occasion after Plaintiff’s

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second surgery.3 (AR at 699, 719, 764, 761, 773); see Thebo v. Astrue, 436 F. App’x

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774, 776 (9th Cir. 2011) (rejecting treating physician’s opinion in part because it

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“appeared to rest on a single meeting with [claimant], undercutting the rationale for

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giving greater weight to a treating physician’s opinion.” (internal quotation marks and

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citation omitted)); Turner v. Comm’r Soc. Sec., 613 F.3d 1217, 1223 (9th Cir. 2010)

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(ALJ properly rejected medical evaluation based on infrequent interaction with

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claimant).
Third, Dr. Long’s opinion was inconsistent with his September 2012

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examination, which included Plaintiff’s statement regarding how the second surgery

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had “improved everything.” (AR at 653, 699, 728); see Wilhelm v. Comm’r Soc. Sec.

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Admin., 597 F. App’x 425, 425 (9th Cir. 2015) (ALJ properly rejected doctor’s opinion

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because it contradicted her own treatment notes); Sujo v. Colvin, 2016 WL 1045349, at

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*4 (E.D. Cal. Mar. 16, 2016) (ALJ permitted to discount medical opinion based on

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evidence that claimant’s impairments improved with successful surgeries).
Fourth, Dr. Long’s opinion was inconsistent with his other examination and

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treatment notes indicating that: (1) Plaintiff had stopped taking prescription medication

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after the second surgery; and (2) Plaintiff’s condition was otherwise under control.

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(AR at 525-26, 557, 592-95, 653, 699, 1042, 1063, 1076, 1082); see Wilhelm, 597 F.

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App’x at 425; Warre v. Comm’r Soc. Sec. Admin., 439 F.3d 1001, 1006 (9th Cir. 2006)

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(impairments that can be controlled are not disabling).
Fifth, Dr. Long did not cite diagnostic tests by their dates or list specific

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findings.4 (AR at 699, 767); see Batson, 359 F.3d at 1195 (ALJ properly rejects a

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As noted by the ALJ, at the time Dr. Long completed his questionnaire, he had not examined
Plaintiff in roughly five months. (AR at 668-76, 699.)
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Rather, in response to the impairment questionnaire’s request to “[i]dentify laboratory or
diagnostic test results” supporting his opinion, Dr. Long simply stated that Plaintiff “has had past CT

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treating physician’s opinion when it is conclusory, brief, and unsupported); Holohan v.

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Massanari, 246 F.3d 1195, 1205 (9th Cir. 2001) (requiring ALJ to read treating

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physician’s statements “in context of the overall diagnostic picture he draws”).

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Thus, the ALJ properly rejected Dr. Long’s opinion.

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B.

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Next, Plaintiff contends that the ALJ improperly assessed his credibility.5 (See

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Any Error in Assessing Plaintiff’s Credibility Was Harmless

Joint Stip. at 10-11, 27-31.)
As a rule, an ALJ can reject a claimant’s subjective complaints by “expressing

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clear and convincing reasons for doing so.” Benton ex rel. Benton v. Barnhart, 331

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F.3d 1030, 1040 (9th Cir. 2003). “General findings are insufficient; rather, the ALJ

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must identify what testimony is not credible and what evidence undermines a

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claimant’s complaints.” Brown-Hunter v. Colvin, 806 F.3d 487, 493 (9th Cir. 2015)

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(internal quotation marks and citation omitted).
Preliminarily, the parties appear to agree that the ALJ erred in rejecting

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Plaintiff’s credibility based on a gap in treatment. (See Joint Stip. at 28, 34; AR at

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694); see also Burrell v. Colvin, 775 F.3d 1133, 1139 (9th Cir. 2014) (accepting

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government’s concession that ALJ’s statement regarding gap in treatment was contrary

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to record).
Nonetheless, any such error is harmless in light of at least five other valid

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reasons for rejecting the testimony. See Carmickle, 533 F.3d at 1162 (ALJ decision

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may be upheld despite ALJ’s reliance on an improper reason for adverse credibility

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determination if the “remaining reasoning and ultimate credibility determination” were

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[s]cans of [the] neck.” (AR at 669.) This lack of specificity was critical because earlier imaging
studies were consistent with disability, but later, post-surgery results showed marked improvement.
(See id. 390, 688-89, 694-95, 1034, 1052-53.) Thus, the ALJ reasonably inferred that Dr. Long “may
have been considering old diagnostic tests that were no longer accurate after [Plaintiff’s] second
surgery.” (Id. at 699, 767); see Batson, 359 F.3d at 1193 (“[T]he Commissioner’s findings are upheld
if supported by inferences reasonably drawn from the record[.]”).
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The ALJ found Plaintiff’s allegations regarding his symptoms during the closed period of
disability “generally credible.” (AR at 688.) However, for the period of time after Plaintiff’s second
surgery, the ALJ found Plaintiff “not entirely credible.” (Id. at 693-94.)

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supported by substantial evidence (emphasis omitted)); Strutz v. Colvin, 2015 WL

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4727459, at *7 (D. Or. Aug. 10, 2015) (upholding credibility finding because ALJ

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provided at least one valid reason to discount claimant’s testimony).

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First, Plaintiff’s testimony that his neck pain was not alleviated by surgery

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conflicted with his report to Dr. Long that the second surgery “improved everything.”

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(AR at 653, 694, 728); see Flaten v. Sec’y of Health & Human Servs., 44 F.3d 1453,

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1464 (9th Cir. 1995) (ALJ’s decision to discredit claimant’s testimony was supported

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by evidence that claimant responded well to surgery); Warre, 439 F.3d at 1006.

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Second, Plaintiff stopped taking medication after his second surgery and

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reported that his condition was controlled. (AR at 525-26, 592-95, 653, 694-96, 1029,

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1032, 1039, 1042-43, 1063, 1066, 1068-72, 1076, 1080, 1084, 1092); see Swanson v.

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Sec’y of Health & Human Servs., 763 F.2d 1061, 1065 (9th Cir. 1985) (ALJ properly

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rejected subjective complaints in part because claimant stopped taking medication);

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see Lindquist v. Colvin, 588 F. App’x 544, 547 (9th Cir. 2014) (ALJ properly

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discounted claimant’s testimony in part because symptoms were controlled).

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Third, Plaintiff’s testimony that his upper extremity numbness had worsened

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since his surgeries was inconsistent with his own prior statements and the medical

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evidence. (AR at 694, 764-66); see Ghanim v. Colvin, 763 F.3d 1154, 1163 (9th Cir.

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2014) (an ALJ may consider a variety of factors in weighing a claimant’s believability,

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including ordinary techniques of credibility evaluation, prior inconsistent statements,

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and testimony by the claimant that “appears less than candid”); Rollins v. Massanari,

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261 F.3d 853, 856-57 (9th Cir. 2001) (inconsistencies with objective evidence, when

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combined with other factors, are valid reasons for rejecting a claimant’s testimony).

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Specifically, (1) Plaintiff denied weakness or numbness to treatment providers; and (2)

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medical examinations did not show diminished upper extremity muscle strength or

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sensation. (Id. at 557, 1011, 1029, 1031, 1035-37, 1059-60.)

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Fourth, Plaintiff’s allegation in a function report that he could not sit in a chair
for 10 continuous minutes was contradicted by: (1) the ALJ’s observations that
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Plaintiff could sit in “apparent comfort” through an hour-and-a-half hearing with

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needing to stretch only once;6 and (2) the fact that Plaintiff drove for an hour-and-a-

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half to and from the hearing without medication. (AR at 694, 718-19, 737, 739, 760,

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764, 771, 994); see Orn v. Astrue, 495 F.3d 625, 639 (9th Cir. 2007) (ALJ’s

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“observations of a claimant’s functioning” at the hearing are permissible as part of the

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overall credibility assessment but “may not form the sole basis for discrediting a

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person’s testimony”); Terriquez v. Colvin, 2014 WL 2803916, at *7 (C.D. Cal. June

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18, 2014) (“ALJ [properly] reasoned that [claimant’s] claim that she could only sit for

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20 minutes was not believable, because (1) she admitted she could drive a car for 30

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minutes . . . ; and (2) she never stood up throughout the hour-long hearing.”).
Fifth, Plaintiff received conservative treatment after his second surgery, which

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primarily consisted of medication, hot showers, a heat pad, and referrals to physical

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therapy. (AR at 592-93, 695-96, 722-23, 738-39, 1008-09, 1032, 1039, 1042-43, 1061,

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1066, 1068-72, 1082, 1089-90); see Parra v. Astrue, 481 F.3d 742, 751 (9th Cir. 2007)

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(“[E]vidence of ‘conservative treatment’ is sufficient to discount a claimant’s

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testimony regarding severity of an impairment.”) (citation omitted); Edginton v.

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Colvin, 625 F. App’x 334, 336 (9th Cir. 2015) (ALJ properly relied on claimant’s

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“routine and conservative” back treatment, which generally consisted of medication

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and transcutaneous electrical nerve stimulation).

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Notably, Plaintiff declined the ALJ’s invitation to stand and stretch on other occasions during
the hearing. (AR at 694, 764, 771.)

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Accordingly, the ALJ’s assessment of Plaintiff’s credibility does not warrant
reversal.
Based on the foregoing, IT IS ORDERED THAT judgment shall be entered
AFFIRMING the decision of the Commissioner denying benefits.

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DATED: September 15, 2016
________________________________________
Hon. Jay C. Gandhi
United States Magistrate Judge

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***

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This Memorandum Opinion and Order is not intended for publication. Nor is it
intended to be included or submitted to any online service such as
Westlaw or Lexis.

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