Robert E. Tate v. Carolyn W. Colvin

Filing 20

MEMORANDUM OPINION AND ORDER by Magistrate Judge Gail J. Standish. For the reasons reported above, IT IS ORDERED that: (1) the decision of the Commissioner is AFFIRMED; and (2) judgment shall be entered dismissing this action. (ec)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 ROBERT E. TATE, 12 Plaintiff 13 14 15 16 Case No. 5:15-CV-02581-GJS v. CAROLYN W. COLVIN, Acting Commissioner of Social Security, MEMORANDUM OPINION AND ORDER Defendant. 17 18 I. PROCEDURAL HISTORY 19 Plaintiff Robert E. Tate (“Plaintiff”) filed a complaint seeking review of 20 Defendant Commissioner of Social Security’s (“Commissioner”) denial of his 21 application for Disability Insurance Benefits (“DIB”). The parties filed briefs 22 addressing disputed issues in the case [Dkt. 13 (“Pltf.’s Br.”) & Dkt. 14 (“Def.’s 23 Br.”)]. The Court has taken the parties’ briefing under submission without oral 24 argument. For the reasons that follow, the Court affirms the decision of the 25 Commissioner and orders that judgment be entered accordingly. 26 27 28 II. ADMINISTRATIVE DECISION UNDER REVIEW In June 2012, Plaintiff filed an application for DIB, alleging that he became disabled as of November 1, 2008. [Dkt. 11, Administrative Record (“AR”) 12, 1 212.] The Commissioner denied this claim for benefits initially and upon 2 reconsideration. [AR 12, 95-99, 101-05.] Hearings were held before 3 Administrative Law Judge (“ALJ”) Joseph D. Schloss on January 27, 2014 and May 4 19, 2014. [AR 31-41, 44-56.] On May 30, 2014, the ALJ issued a decision denying 5 Plaintiff’s request for benefits. [AR 12-23.] 6 Applying the five-step sequential evaluation process, the ALJ found that 7 Plaintiff was not disabled. See 20 C.F.R. § 404.1520(b)-(g)(1). At step one, the 8 ALJ concluded that Plaintiff had not engaged in substantial gainful activity since the 9 alleged onset date. [AR 14.] At step two, the ALJ found that Plaintiff suffered from 10 the following severe impairments: obesity; depression/anxiety; hypertension; 11 irritable bowel syndrome (IBS); sleep apnea; and kidney disease, stage 3. [Id.] At 12 step three, the ALJ determined that Plaintiff did not have an impairment or 13 combination of impairments that meets or medically equals the severity of one of 14 the listed impairments. [AR 15]; see 20 C.F.R. part 404, subpart P, appendix 1. 15 Next, the ALJ found that Plaintiff had the residual functional capacity (RFC) for a 16 range of light work (citing 20 C.F.R. § 404.1567(b)). [AR 17.] Specifically, the 17 ALJ found that Plaintiff was able to: lift and carry 20 pounds occasionally and 10 18 pounds frequently; stand and/or walk 2 hours in an 8-hour workday for 30 minutes 19 at a time with a change of position to sitting; sit for 6 hours in an 8-hour workday; 20 climb ramps and stairs, bend, and stoop occasionally; perform non-public, simple, 21 repetitive tasks; and perform up to moderately complex tasks occasionally. [Id.] 22 The ALJ further found that Plaintiff was precluded from climbing ladders, ropes or 23 scaffolds and unable to perform jobs involving balancing, the use of vibratory tools 24 or instruments, moving machinery, or unprotected heights. [Id.] At step four, the 25 ALJ found that Plaintiff was unable to perform his past relevant work as an 26 operating engineer. [AR 21.] At step five, the ALJ determined that Plaintiff was 27 capable of performing other work that exists in significant numbers in the economy. 28 [AR 22.] Therefore, the ALJ concluded Plaintiff was not disabled. [AR 22-23.] 2 1 The Appeals Council denied review. [AR 1-3.] III. 2 3 GOVERNING STANDARD Under 42 U.S.C. § 405(g), the Court reviews the Commissioner’s decision to 4 determine if: (1) the Commissioner’s findings are supported by substantial evidence; 5 and (2) the Commissioner used correct legal standards. Carmickle v. Comm’r, Soc. 6 Sec. Admin., 533 F.3d 1155, 1159 (9th Cir. 2008); Hoopai v. Astrue, 499 F.3d 1071, 7 1074 (9th Cir. 2007). Substantial evidence is “such relevant evidence as a 8 reasonable mind might accept as adequate to support a conclusion.” Richardson v. 9 Perales, 402 U.S. 389, 401 (1971) (internal citation and quotation marks omitted); 10 11 see also Hoopai, 499 F.3d at 1074. The Court will uphold the Commissioner’s decision when the evidence is 12 susceptible to more than one rational interpretation. Burch v. Barnhart, 400 F.3d 13 676, 679 (9th Cir. 2005). However, the Court may review only the reasons stated by 14 the ALJ in his decision “and may not affirm the ALJ on a ground upon which he did 15 not rely.” Orn v. Astrue, 495 F.3d 625, 630 (9th Cir. 2007). In addition, “[a] 16 decision of the ALJ will not be reversed for errors that are harmless.” Burch, 400 17 F.3d at 679. 18 IV. DISCUSSION 19 A. The Medical Expert’s Testimony 20 Plaintiff contends that the ALJ failed to properly consider the testimony of the 21 non-examining medical expert, Dr. Stephen Wallach, concerning Plaintiff’s 22 symptoms and impairments. [Pltf.’s Br. at 4-8.] 23 Dr. Wallach testified that Plaintiff suffers from depression, anxiety, 24 hypertension, IBS, obstructive sleep apnea, irregular heartbeat, and chronic kidney 25 disease. [AR 45.] Dr. Wallach indicated that Plaintiff could “fall asleep during the 26 day” because of obstructive sleep apnea, but found that Plaintiff did not have any 27 physical limitations that met a listed impairment. [AR 45-46.] Dr. Wallach then 28 opined that Plaintiff could stand for 2 hours in a day for 30 minutes at a time, sit for 3 1 6 hours at a time, and lift 10 to 20 pounds, but Plaintiff could not creep, crawl, 2 kneel, work around machinery, balance, or use ladders. [AR 46.] Dr. Wallach 3 explained that Plaintiff’s weight contributed to his obstructive sleep apnea and that 4 Plaintiff had been unable to utilize a C-PAP machine to treat the condition. [AR 47- 5 48.] While Dr. Wallach noted that obstructive sleep apnea could lead to potential 6 heart complications, he found that Plaintiff’s irregular heartbeat was not a 7 significant problem. [AR 18-19, 45, 48.] When asked about Plaintiff’s IBS, Dr. 8 Wallach responded, “he should be close to a restroom.” [AR 48.] Dr. Wallach 9 explained that IBS is a problem that causes people a lot of distress. [Id.] The ALJ found that Dr. Wallach’s testimony was “highly credible and 10 11 consistent with the evidence as a whole.” [AR 20.] He adopted Dr. Wallach’s 12 assessment of Plaintiff’s work restrictions as the basis for Plaintiff’s RFC. [AR 20, 13 48.] While the ALJ did not discuss Dr. Wallach’s statements that Plaintiff could 14 “fall asleep during the day” or that “he should be close to a restroom,” he properly 15 considered Dr. Wallach’s assessment of Plaintiff’s limitations and impairments in 16 light of the record evidence. [AR 18-21, 46, 48] Plaintiff contends that the ALJ erred by failing to specifically address Dr. 17 18 Wallach’s testimony that Plaintiff could fall asleep during the day and needs to be 19 close to a restroom. [Pltf.’s Br. at 7.] Plaintiff argues that the ALJ should have 20 developed the record to determine the impact of these restrictions on Plaintiff’s RFC 21 and ability to perform other work. [Pltf.’s Br. at 7-8.] Plaintiff’s argument lacks 22 merit. 23 In determining disability, the ALJ “must develop the record and interpret the 24 medical evidence.” Howard ex rel. Wolff v. Barnhart, 341 F.3d 1006, 1012 (9th Cir. 25 2003). The ALJ must “consider” the testimony of a non-examining medical expert 26 in conjunction with other evidence of record. See Beason v. Colvin, 611 F. App’x 27 905, 906 (9th Cir. 2015) (“[b]ecause the medical expert neither examined nor treated 28 the claimant, the ALJ was required only to ‘consider’ the expert’s testimony in 4 1 conjunction with other record evidence”); see also 20 C.F.R. § 404.1527(b) (ALJ 2 will consider medical opinion evidence “together with the rest of the relevant 3 evidence”), (e) (“We consider all evidence from nonexamining sources to be 4 opinion evidence”). However, the ALJ has a duty to develop the record further 5 “only when there is ambiguous evidence or when the record is inadequate to allow 6 for proper evaluation of the evidence.” See Mayes v. Massanari, 276 F.3d 453, 459- 7 60 (9th Cir. 2001); Tonapetyan v. Halter, 242 F.3d 1144, 1150 (9th Cir. 2001). 8 Here, in evaluating Plaintiff’s claim of disability, the ALJ properly considered 9 Dr. Wallach’s non-examining opinion, along with the other evidence of record. See 10 Beason, 611 F. App’x at 906; see also 20 C.F.R. § 404.1527(b), (e). First, although 11 Dr. Wallach noted that Plaintiff could “fall asleep during the day” due to obstructive 12 sleep apnea, he did not assess any work-related limitations based on this condition 13 other than as identified in his testimony (e.g., standing for 2 hours in a day for 30 14 minutes at a time, sitting for 6 hours in a day, lifting 10 to 20 pounds, and no 15 creeping, crawling, kneeling, working around machinery, balancing or using 16 ladders). [AR 46.] The ALJ properly considered the restrictions assessed by Dr. 17 Wallach and incorporated them into Plaintiff’s RFC. [AR 17, 46.] Thus, the ALJ’s 18 RFC assessment was not inconsistent with Dr. Wallach’s opinion regarding 19 Plaintiff’s obstructive sleep apnea and the ALJ had no obligation to further develop 20 the record in this regard. Second, the ALJ reasonably considered and rejected 21 Plaintiff’s asserted need to be near a restroom. [AR 18, 21.] As discussed in more 22 detail below, the ALJ discounted Plaintiff’s testimony regarding the severity of his 23 symptoms, as Plaintiff received infrequent and conservative treatment, had been 24 able to work successfully for many years after being diagnosed with IBS, and 25 presented with no nutritional deficits despite claiming to suffer from debilitating 26 IBS-related diarrhea. [AR 18, 21, 37, 240, 306.] The ALJ also noted that the 27 medical record showed that Plaintiff’s IBS was stable. [AR 18, 21, 428.] Indeed, 28 none of the reports from Plaintiff’s treating or examining physicians indicated that 5 1 Plaintiff would need to be in close proximity to a restroom. The ALJ’s decision not 2 to credit Dr. Wallach’s suggestion that Plaintiff should be close to a restroom was 3 supported by substantial evidence in the record. See, e.g., Reddick v. Chater, 157 4 F.3d 715, 722 (9th Cir. 1998) (ALJ is responsible for “resolving conflicts in medical 5 testimony”); see also Parra v. Astrue, 481 F.3d 742, 746 (9th Cir. 2007) (reviewing 6 court may set aside ALJ’s denial of benefits only when evidence does not 7 reasonably support decision). Thus, the ALJ did not err in failing to further develop 8 the record. See Mayes, 276 F.3d at 459-460 (rejecting the argument that the ALJ 9 breached his duty to develop the record as an impermissible attempt to shift the 10 burden of proving disability away from the claimant). 11 B. Plaintiff’s Subjective Complaints 12 Plaintiff asserts that the ALJ failed to state sufficient reasons for discounting 13 his subjective symptom testimony. [Pltf.’s Br. at 8-12.] Plaintiff alleged that he was 14 not able to work because of anxiety, panic disorders, arrhythmias, IBS, sleep apnea, 15 depression, high blood pressure, high cholesterol, hypoglycemia, low testosterone, 16 fatty liver, and pain. [AR 17-18, 233, 240, 261.] He claimed that he uses the 17 bathroom ten or more times a day, experiences fatigue, pain, depression, mood 18 swings, agoraphobia, extreme fear, and paranoia, has difficulty with concentration, 19 comprehension, memory, stress, changes in routine, and personal care, and has 20 problems walking, sitting, and breathing. [AR 17-18, 240, 261-62.] 21 If a claimant produces objective medical evidence of an underlying 22 impairment that could reasonably be expected to produce the symptoms alleged and 23 there is no affirmative evidence of malingering, the ALJ must offer “specific, clear 24 and convincing” reasons to reject the claimant’s testimony. Smolen v. Chater, 80 25 F.3d 1273, 1281-82 (9th Cir. 1996); see also Molina v. Astrue, 674 F.3d 1104, 1112 26 (9th Cir. 2012) (when the claimant has presented objective evidence of an 27 underlying impairment and there is no evidence of malingering, the ALJ must 28 provide “specific, clear and convincing reasons” to reject the claimant’s testimony 6 1 about the severity of his symptoms) (citations and internal quotation marks omitted). 2 “The ALJ must state specifically which symptom testimony is not credible and what 3 facts in the record lead to that conclusion.” Smolen, 80 F.3d at 1284; Holohan v. 4 Massanari, 246 F.3d 1195, 1208 (9th Cir. 2001) (the ALJ must “specifically identify 5 the testimony [the ALJ] finds not to be credible and must explain what evidence 6 undermines the testimony”). 7 Here, the ALJ found that although Plaintiff’s medically determinable 8 impairments could reasonably be expected to cause some of Plaintiff’s alleged 9 symptoms, Plaintiff’s allegations concerning the intensity, persistence, and limiting 10 effects of his symptoms were not credible to the extent alleged. [AR 18, 21.] 11 Because there was no evidence of malingering, the ALJ was required to articulate 12 specific, clear, and convincing reasons to support the negative credibility finding. 13 See Molina, 674 F.3d at 1112. As discussed below, the ALJ offered legally 14 sufficient reasons to support the adverse credibility determination. 15 The ALJ found that Plaintiff’s symptoms and limitations were not as severe 16 as alleged, as he had “relatively infrequent” medical visits. [AR 18.] In particular, 17 the ALJ noted minimal evidence of medical treatment around Plaintiff’s alleged 18 onset date of January 31, 2009. [AR 18.] The record shows Plaintiff saw a 19 physician in December 2008 and January 2009, for fatty liver, hypertension, 20 hyperglycemia, and arrthymias. [AR 18, 80, 279-82.] Plaintiff’s exams were 21 generally within normal limits and there were no other treatment records for the 22 remainder of 2009. [AR 279-82.] In May 2010, a physician wrote a brief note 23 excusing Plaintiff from jury duty. [AR 291.] In March 2011, a physician prescribed 24 Plaintiff medication, ordered lab tests, and reported a normal physical examination. 25 [AR 292.] The record does not reflect that Plaintiff received any additional medical 26 treatment for his alleged disabling impairments until 2012. [AR 295, 323.] Thus, 27 the ALJ properly relied on the gaps in medical treatment in discounting Plaintiff’s 28 credibility. See Molina, 674 F.3d at 1113 (“in assessing a claimant’s credibility, the 7 1 ALJ may properly rely on unexplained or inadequately explained failure to seek 2 treatment or to follow a prescribed course of treatment”) (internal citations and 3 quotation marks omitted). Further, the ALJ found that the medical treatment that 4 Plaintiff received was “routine and conservative,” consisting primarily of periodic 5 office visits for medication monitoring. [AR at 18, 21]; see Johnson v. Shalala, 60 6 F.3d 1428, 1432 (9th Cir. 1995) (explaining that an ALJ may rely on the fact that 7 only conservative care has been prescribed in making credibility determination); 8 Parra, 481 F.3d at 751 (“evidence of ‘conservative treatment’ is sufficient to 9 discount a claimant’s testimony regarding severity of an impairment”). 10 Accordingly, the ALJ properly relied on the infrequent and conservative nature of 11 Plaintiff’s treatment in discounting his credibility. 12 The ALJ found that the objective medical evidence was inconsistent with 13 Plaintiff’s allegations that he always needed to be close to a restroom. [AR 18, 21, 14 37.] Although Plaintiff claimed that IBS caused diarrhea and symptoms requiring 15 use of a restroom ten or more times a day, the ALJ noted that Plaintiff was not 16 malnourished. [AR 37, 240.] Rather, Plaintiff, who was 315 pounds at the time of 17 the hearing, was significantly overweight. [AR 18, 47.] The ALJ also noted that 18 Plaintiff’s physician described Plaintiff’s IBS as “stable.” [AR 18, 21, 428.] Thus, 19 in this case, the absence of objective medical evidence to support Plaintiff’s 20 subjective complaints was a specific, clear and convincing reason to discount 21 Plaintiff’s subjective statements. See Rollins v. Massanari, 261 F.3d 853, 857 (9th 22 Cir. 2001) (“While subjective pain testimony cannot be rejected on the sole ground 23 that it is not fully corroborated by objective medical evidence, the medical evidence 24 is still a relevant factor in determining the severity of the claimant's pain and its 25 disabling effects.”). 26 The ALJ also determined that Plaintiff’s testimony as to the severity of his 27 IBS and obstructive sleep apnea was undermined because he had been diagnosed 28 with these conditions long before his alleged onset date and was able to consistently 8 1 engage in substantial gainful work activity despite these conditions. [AR 18, 306- 2 07.] This was a valid reason for finding Plaintiff less than fully credible. See Light 3 v. Social Sec. Admin., 119 F.3d 789, 792 (9th Cir. 1997) (“In weighing a claimant’s 4 credibility, the ALJ may consider . . . inconsistencies either in his testimony or 5 between his testimony and his conduct, his daily activities, his work record, and 6 testimony from physicians and third parties concerning the nature, severity, and 7 effect of the symptoms of which he complains.”). 8 Finally, the ALJ discounted Plaintiff’s credibility because Plaintiff received 9 unemployment benefits and looked for work after his alleged onset date. [AR 18.] 10 At the hearing, Plaintiff testified that he received approximately $22,950 in 11 unemployment benefits between 2011 and 2012 and had looked for work during that 12 period. [AR 34-35.] The ALJ noted that Plaintiff collected unemployment benefits 13 in the last two quarters of 2011 and the first two quarters of 2012. [AR 14, 221.] 14 Under these circumstances, the ALJ reasonably discounted Plaintiff’s credibility 15 given his continued receipt of unemployment benefits and active search for work. 16 [AR 18, 21]; see Ghanim v. Colvin, 763 F.3d 1154, 1165 (9th Cir. 2014) 17 (“Continued receipt of unemployment benefits does cast doubt on a claim of 18 disability, as it shows that an applicant holds himself out as capable of working.”); 19 Copeland v. Bowen, 861 F.2d 536, 542 (9th Cir. 1988); but see Carmickle, 533 F.3d 20 at 1161-62 (finding that a claimant’s receipt of unemployment benefits does not 21 necessarily constitute a legally sufficient reason for an adverse credibility 22 determination when the record “does not establish whether [the claimant] held 23 himself out as available for full-time or part-time work.”). But even if the ALJ erred 24 in relying on this factor, the error was harmless because he provided other specific, 25 clear, and convincing reasons for discounting Plaintiff’s credibility. See Carmickle, 26 533 F.3d at 1162-63 (ALJ’s reliance on erroneous reasons for adverse credibility 27 determination harmless when the ALJ’s “remaining reasoning and ultimate 28 credibility determination were adequately supported by substantial evidence in the 9 1 record”). Accordingly, remand is not warranted. 2 CONCLUSION 3 For the reasons reported above, IT IS ORDERED that: 4 (1) the decision of the Commissioner is AFFIRMED; and 5 (2) judgment shall be entered dismissing this action. 6 7 8 9 DATED: October 17, 2016 ____________________________________ GAIL J. STANDISH UNITED STATES MAGISTRATE JUDGE 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 10

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