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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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

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ROBERT E. TATE,

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Plaintiff

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Case No. 5:15-CV-02581-GJS

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

MEMORANDUM OPINION AND
ORDER

Defendant.

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I.

PROCEDURAL HISTORY

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Plaintiff Robert E. Tate (“Plaintiff”) filed a complaint seeking review of

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Defendant Commissioner of Social Security’s (“Commissioner”) denial of his

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application for Disability Insurance Benefits (“DIB”). The parties filed briefs

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addressing disputed issues in the case [Dkt. 13 (“Pltf.’s Br.”) & Dkt. 14 (“Def.’s

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Br.”)]. The Court has taken the parties’ briefing under submission without oral

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argument. For the reasons that follow, the Court affirms the decision of the

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Commissioner and orders that judgment be entered accordingly.

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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,

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212.] The Commissioner denied this claim for benefits initially and upon

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reconsideration. [AR 12, 95-99, 101-05.] Hearings were held before

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Administrative Law Judge (“ALJ”) Joseph D. Schloss on January 27, 2014 and May

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19, 2014. [AR 31-41, 44-56.] On May 30, 2014, the ALJ issued a decision denying

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Plaintiff’s request for benefits. [AR 12-23.]

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Applying the five-step sequential evaluation process, the ALJ found that

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Plaintiff was not disabled. See 20 C.F.R. § 404.1520(b)-(g)(1). At step one, the

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ALJ concluded that Plaintiff had not engaged in substantial gainful activity since the

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alleged onset date. [AR 14.] At step two, the ALJ found that Plaintiff suffered from

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the following severe impairments: obesity; depression/anxiety; hypertension;

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irritable bowel syndrome (IBS); sleep apnea; and kidney disease, stage 3. [Id.] At

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step three, the ALJ determined that Plaintiff did not have an impairment or

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combination of impairments that meets or medically equals the severity of one of

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the listed impairments. [AR 15]; see 20 C.F.R. part 404, subpart P, appendix 1.

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Next, the ALJ found that Plaintiff had the residual functional capacity (RFC) for a

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range of light work (citing 20 C.F.R. § 404.1567(b)). [AR 17.] Specifically, the

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ALJ found that Plaintiff was able to: lift and carry 20 pounds occasionally and 10

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pounds frequently; stand and/or walk 2 hours in an 8-hour workday for 30 minutes

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at a time with a change of position to sitting; sit for 6 hours in an 8-hour workday;

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climb ramps and stairs, bend, and stoop occasionally; perform non-public, simple,

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repetitive tasks; and perform up to moderately complex tasks occasionally. [Id.]

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The ALJ further found that Plaintiff was precluded from climbing ladders, ropes or

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scaffolds and unable to perform jobs involving balancing, the use of vibratory tools

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or instruments, moving machinery, or unprotected heights. [Id.] At step four, the

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ALJ found that Plaintiff was unable to perform his past relevant work as an

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operating engineer. [AR 21.] At step five, the ALJ determined that Plaintiff was

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capable of performing other work that exists in significant numbers in the economy.

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[AR 22.] Therefore, the ALJ concluded Plaintiff was not disabled. [AR 22-23.]
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The Appeals Council denied review. [AR 1-3.]
III.

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GOVERNING STANDARD

Under 42 U.S.C. § 405(g), the Court reviews the Commissioner’s decision to

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determine if: (1) the Commissioner’s findings are supported by substantial evidence;

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and (2) the Commissioner used correct legal standards. Carmickle v. Comm’r, Soc.

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Sec. Admin., 533 F.3d 1155, 1159 (9th Cir. 2008); Hoopai v. Astrue, 499 F.3d 1071,

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1074 (9th Cir. 2007). Substantial evidence is “such relevant evidence as a

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reasonable mind might accept as adequate to support a conclusion.” Richardson v.

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Perales, 402 U.S. 389, 401 (1971) (internal citation and quotation marks omitted);

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see also Hoopai, 499 F.3d at 1074.
The Court will uphold the Commissioner’s decision when the evidence is

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susceptible to more than one rational interpretation. Burch v. Barnhart, 400 F.3d

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676, 679 (9th Cir. 2005). However, the Court may review only the reasons stated by

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the ALJ in his decision “and may not affirm the ALJ on a ground upon which he did

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not rely.” Orn v. Astrue, 495 F.3d 625, 630 (9th Cir. 2007). In addition, “[a]

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decision of the ALJ will not be reversed for errors that are harmless.” Burch, 400

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F.3d at 679.

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IV.

DISCUSSION

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A. The Medical Expert’s Testimony

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Plaintiff contends that the ALJ failed to properly consider the testimony of the

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non-examining medical expert, Dr. Stephen Wallach, concerning Plaintiff’s

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symptoms and impairments. [Pltf.’s Br. at 4-8.]

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Dr. Wallach testified that Plaintiff suffers from depression, anxiety,

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hypertension, IBS, obstructive sleep apnea, irregular heartbeat, and chronic kidney

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disease. [AR 45.] Dr. Wallach indicated that Plaintiff could “fall asleep during the

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day” because of obstructive sleep apnea, but found that Plaintiff did not have any

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physical limitations that met a listed impairment. [AR 45-46.] Dr. Wallach then

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opined that Plaintiff could stand for 2 hours in a day for 30 minutes at a time, sit for
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6 hours at a time, and lift 10 to 20 pounds, but Plaintiff could not creep, crawl,

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kneel, work around machinery, balance, or use ladders. [AR 46.] Dr. Wallach

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explained that Plaintiff’s weight contributed to his obstructive sleep apnea and that

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Plaintiff had been unable to utilize a C-PAP machine to treat the condition. [AR 47-

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48.] While Dr. Wallach noted that obstructive sleep apnea could lead to potential

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heart complications, he found that Plaintiff’s irregular heartbeat was not a

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significant problem. [AR 18-19, 45, 48.] When asked about Plaintiff’s IBS, Dr.

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Wallach responded, “he should be close to a restroom.” [AR 48.] Dr. Wallach

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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

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consistent with the evidence as a whole.” [AR 20.] He adopted Dr. Wallach’s

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assessment of Plaintiff’s work restrictions as the basis for Plaintiff’s RFC. [AR 20,

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48.] While the ALJ did not discuss Dr. Wallach’s statements that Plaintiff could

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“fall asleep during the day” or that “he should be close to a restroom,” he properly

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considered Dr. Wallach’s assessment of Plaintiff’s limitations and impairments in

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light of the record evidence. [AR 18-21, 46, 48]
Plaintiff contends that the ALJ erred by failing to specifically address Dr.

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Wallach’s testimony that Plaintiff could fall asleep during the day and needs to be

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close to a restroom. [Pltf.’s Br. at 7.] Plaintiff argues that the ALJ should have

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developed the record to determine the impact of these restrictions on Plaintiff’s RFC

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and ability to perform other work. [Pltf.’s Br. at 7-8.] Plaintiff’s argument lacks

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merit.

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In determining disability, the ALJ “must develop the record and interpret the

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medical evidence.” Howard ex rel. Wolff v. Barnhart, 341 F.3d 1006, 1012 (9th Cir.

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2003). The ALJ must “consider” the testimony of a non-examining medical expert

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in conjunction with other evidence of record. See Beason v. Colvin, 611 F. App’x

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905, 906 (9th Cir. 2015) (“[b]ecause the medical expert neither examined nor treated

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the claimant, the ALJ was required only to ‘consider’ the expert’s testimony in
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conjunction with other record evidence”); see also 20 C.F.R. § 404.1527(b) (ALJ

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will consider medical opinion evidence “together with the rest of the relevant

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evidence”), (e) (“We consider all evidence from nonexamining sources to be

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opinion evidence”). However, the ALJ has a duty to develop the record further

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“only when there is ambiguous evidence or when the record is inadequate to allow

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for proper evaluation of the evidence.” See Mayes v. Massanari, 276 F.3d 453, 459-

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60 (9th Cir. 2001); Tonapetyan v. Halter, 242 F.3d 1144, 1150 (9th Cir. 2001).

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Here, in evaluating Plaintiff’s claim of disability, the ALJ properly considered

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Dr. Wallach’s non-examining opinion, along with the other evidence of record. See

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Beason, 611 F. App’x at 906; see also 20 C.F.R. § 404.1527(b), (e). First, although

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Dr. Wallach noted that Plaintiff could “fall asleep during the day” due to obstructive

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sleep apnea, he did not assess any work-related limitations based on this condition

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other than as identified in his testimony (e.g., standing for 2 hours in a day for 30

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minutes at a time, sitting for 6 hours in a day, lifting 10 to 20 pounds, and no

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creeping, crawling, kneeling, working around machinery, balancing or using

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ladders). [AR 46.] The ALJ properly considered the restrictions assessed by Dr.

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Wallach and incorporated them into Plaintiff’s RFC. [AR 17, 46.] Thus, the ALJ’s

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RFC assessment was not inconsistent with Dr. Wallach’s opinion regarding

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Plaintiff’s obstructive sleep apnea and the ALJ had no obligation to further develop

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the record in this regard. Second, the ALJ reasonably considered and rejected

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Plaintiff’s asserted need to be near a restroom. [AR 18, 21.] As discussed in more

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detail below, the ALJ discounted Plaintiff’s testimony regarding the severity of his

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symptoms, as Plaintiff received infrequent and conservative treatment, had been

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able to work successfully for many years after being diagnosed with IBS, and

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presented with no nutritional deficits despite claiming to suffer from debilitating

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IBS-related diarrhea. [AR 18, 21, 37, 240, 306.] The ALJ also noted that the

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medical record showed that Plaintiff’s IBS was stable. [AR 18, 21, 428.] Indeed,

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none of the reports from Plaintiff’s treating or examining physicians indicated that
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Plaintiff would need to be in close proximity to a restroom. The ALJ’s decision not

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to credit Dr. Wallach’s suggestion that Plaintiff should be close to a restroom was

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supported by substantial evidence in the record. See, e.g., Reddick v. Chater, 157

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F.3d 715, 722 (9th Cir. 1998) (ALJ is responsible for “resolving conflicts in medical

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testimony”); see also Parra v. Astrue, 481 F.3d 742, 746 (9th Cir. 2007) (reviewing

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court may set aside ALJ’s denial of benefits only when evidence does not

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reasonably support decision). Thus, the ALJ did not err in failing to further develop

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the record. See Mayes, 276 F.3d at 459-460 (rejecting the argument that the ALJ

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breached his duty to develop the record as an impermissible attempt to shift the

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burden of proving disability away from the claimant).

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B. Plaintiff’s Subjective Complaints

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Plaintiff asserts that the ALJ failed to state sufficient reasons for discounting

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his subjective symptom testimony. [Pltf.’s Br. at 8-12.] Plaintiff alleged that he was

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not able to work because of anxiety, panic disorders, arrhythmias, IBS, sleep apnea,

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depression, high blood pressure, high cholesterol, hypoglycemia, low testosterone,

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fatty liver, and pain. [AR 17-18, 233, 240, 261.] He claimed that he uses the

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bathroom ten or more times a day, experiences fatigue, pain, depression, mood

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swings, agoraphobia, extreme fear, and paranoia, has difficulty with concentration,

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comprehension, memory, stress, changes in routine, and personal care, and has

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problems walking, sitting, and breathing. [AR 17-18, 240, 261-62.]

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If a claimant produces objective medical evidence of an underlying

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impairment that could reasonably be expected to produce the symptoms alleged and

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there is no affirmative evidence of malingering, the ALJ must offer “specific, clear

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and convincing” reasons to reject the claimant’s testimony. Smolen v. Chater, 80

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F.3d 1273, 1281-82 (9th Cir. 1996); see also Molina v. Astrue, 674 F.3d 1104, 1112

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(9th Cir. 2012) (when the claimant has presented objective evidence of an

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underlying impairment and there is no evidence of malingering, the ALJ must

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provide “specific, clear and convincing reasons” to reject the claimant’s testimony
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about the severity of his symptoms) (citations and internal quotation marks omitted).

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“The ALJ must state specifically which symptom testimony is not credible and what

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facts in the record lead to that conclusion.” Smolen, 80 F.3d at 1284; Holohan v.

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Massanari, 246 F.3d 1195, 1208 (9th Cir. 2001) (the ALJ must “specifically identify

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the testimony [the ALJ] finds not to be credible and must explain what evidence

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undermines the testimony”).

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Here, the ALJ found that although Plaintiff’s medically determinable

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impairments could reasonably be expected to cause some of Plaintiff’s alleged

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symptoms, Plaintiff’s allegations concerning the intensity, persistence, and limiting

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effects of his symptoms were not credible to the extent alleged. [AR 18, 21.]

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Because there was no evidence of malingering, the ALJ was required to articulate

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specific, clear, and convincing reasons to support the negative credibility finding.

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See Molina, 674 F.3d at 1112. As discussed below, the ALJ offered legally

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sufficient reasons to support the adverse credibility determination.

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The ALJ found that Plaintiff’s symptoms and limitations were not as severe

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as alleged, as he had “relatively infrequent” medical visits. [AR 18.] In particular,

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the ALJ noted minimal evidence of medical treatment around Plaintiff’s alleged

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onset date of January 31, 2009. [AR 18.] The record shows Plaintiff saw a

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physician in December 2008 and January 2009, for fatty liver, hypertension,

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hyperglycemia, and arrthymias. [AR 18, 80, 279-82.] Plaintiff’s exams were

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generally within normal limits and there were no other treatment records for the

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remainder of 2009. [AR 279-82.] In May 2010, a physician wrote a brief note

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excusing Plaintiff from jury duty. [AR 291.] In March 2011, a physician prescribed

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Plaintiff medication, ordered lab tests, and reported a normal physical examination.

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[AR 292.] The record does not reflect that Plaintiff received any additional medical

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treatment for his alleged disabling impairments until 2012. [AR 295, 323.] Thus,

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the ALJ properly relied on the gaps in medical treatment in discounting Plaintiff’s

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credibility. See Molina, 674 F.3d at 1113 (“in assessing a claimant’s credibility, the
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ALJ may properly rely on unexplained or inadequately explained failure to seek

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treatment or to follow a prescribed course of treatment”) (internal citations and

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quotation marks omitted). Further, the ALJ found that the medical treatment that

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Plaintiff received was “routine and conservative,” consisting primarily of periodic

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office visits for medication monitoring. [AR at 18, 21]; see Johnson v. Shalala, 60

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F.3d 1428, 1432 (9th Cir. 1995) (explaining that an ALJ may rely on the fact that

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only conservative care has been prescribed in making credibility determination);

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Parra, 481 F.3d at 751 (“evidence of ‘conservative treatment’ is sufficient to

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discount a claimant’s testimony regarding severity of an impairment”).

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Accordingly, the ALJ properly relied on the infrequent and conservative nature of

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Plaintiff’s treatment in discounting his credibility.

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The ALJ found that the objective medical evidence was inconsistent with

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Plaintiff’s allegations that he always needed to be close to a restroom. [AR 18, 21,

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37.] Although Plaintiff claimed that IBS caused diarrhea and symptoms requiring

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use of a restroom ten or more times a day, the ALJ noted that Plaintiff was not

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malnourished. [AR 37, 240.] Rather, Plaintiff, who was 315 pounds at the time of

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the hearing, was significantly overweight. [AR 18, 47.] The ALJ also noted that

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Plaintiff’s physician described Plaintiff’s IBS as “stable.” [AR 18, 21, 428.] Thus,

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in this case, the absence of objective medical evidence to support Plaintiff’s

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subjective complaints was a specific, clear and convincing reason to discount

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Plaintiff’s subjective statements. See Rollins v. Massanari, 261 F.3d 853, 857 (9th

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Cir. 2001) (“While subjective pain testimony cannot be rejected on the sole ground

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that it is not fully corroborated by objective medical evidence, the medical evidence

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is still a relevant factor in determining the severity of the claimant's pain and its

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disabling effects.”).

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The ALJ also determined that Plaintiff’s testimony as to the severity of his

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IBS and obstructive sleep apnea was undermined because he had been diagnosed

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with these conditions long before his alleged onset date and was able to consistently
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engage in substantial gainful work activity despite these conditions. [AR 18, 306-

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07.] This was a valid reason for finding Plaintiff less than fully credible. See Light

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v. Social Sec. Admin., 119 F.3d 789, 792 (9th Cir. 1997) (“In weighing a claimant’s

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credibility, the ALJ may consider . . . inconsistencies either in his testimony or

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between his testimony and his conduct, his daily activities, his work record, and

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testimony from physicians and third parties concerning the nature, severity, and

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effect of the symptoms of which he complains.”).

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Finally, the ALJ discounted Plaintiff’s credibility because Plaintiff received

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unemployment benefits and looked for work after his alleged onset date. [AR 18.]

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At the hearing, Plaintiff testified that he received approximately $22,950 in

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unemployment benefits between 2011 and 2012 and had looked for work during that

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period. [AR 34-35.] The ALJ noted that Plaintiff collected unemployment benefits

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in the last two quarters of 2011 and the first two quarters of 2012. [AR 14, 221.]

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Under these circumstances, the ALJ reasonably discounted Plaintiff’s credibility

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given his continued receipt of unemployment benefits and active search for work.

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[AR 18, 21]; see Ghanim v. Colvin, 763 F.3d 1154, 1165 (9th Cir. 2014)

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(“Continued receipt of unemployment benefits does cast doubt on a claim of

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disability, as it shows that an applicant holds himself out as capable of working.”);

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Copeland v. Bowen, 861 F.2d 536, 542 (9th Cir. 1988); but see Carmickle, 533 F.3d

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at 1161-62 (finding that a claimant’s receipt of unemployment benefits does not

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necessarily constitute a legally sufficient reason for an adverse credibility

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determination when the record “does not establish whether [the claimant] held

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himself out as available for full-time or part-time work.”). But even if the ALJ erred

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in relying on this factor, the error was harmless because he provided other specific,

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clear, and convincing reasons for discounting Plaintiff’s credibility. See Carmickle,

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533 F.3d at 1162-63 (ALJ’s reliance on erroneous reasons for adverse credibility

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determination harmless when the ALJ’s “remaining reasoning and ultimate

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credibility determination were adequately supported by substantial evidence in the
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record”). Accordingly, remand is not warranted.

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CONCLUSION

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For the reasons reported above, IT IS ORDERED that:

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(1) the decision of the Commissioner is AFFIRMED; and

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(2) judgment shall be entered dismissing this action.

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DATED: October 17, 2016

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GAIL J. STANDISH
UNITED STATES MAGISTRATE JUDGE

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