Terrie L Marrical v. Carolyn W Colvin
Filing
29
MEMORANDUM OPINION AND ORDER by Magistrate Judge Rozella A. Oliver. IT IS ORDERED that Judgment shall be entered AFFIRMING the decision of the Commissioner denying benefits. IT IS FURTHER ORDERED that the Clerk of the Court serve copies of this Order and the Judgment on counsel for both parties. (sbu)
1
2
3
4
5
6
7
8
UNITED STATES DISTRICT COURT
9
CENTRAL DISTRICT OF CALIFORNIA
10
11
TERRIE L. MARRICAL,
12
Plaintiff,
13
14
15
Case No. EDCV 16-00398-RAO
v.
NANCY A. BERRYHILL, Acting
Commissioner of Social Security,
MEMORANDUM OPINION AND
ORDER
Defendant.
16
17
18
I.
19
20
21
22
23
24
25
26
27
28
INTRODUCTION
Plaintiff Terrie L. Marrical (“Plaintiff”) challenges the Commissioner’s
denial of her application for a period of disability and disability insurance benefits
(“DIB”).
For the reasons stated below, the decision of the Commissioner is
AFFIRMED.
II.
PROCEEDINGS BELOW
On December 30, 2010, Plaintiff filed a Title II application for DIB alleging
disability beginning November 15, 2008, through March 31, 2010, the date last
insured. (Administrative Record (“AR”) 323-24). Her application was denied
initially on March 17, 2011, and upon reconsideration on June 3, 2011. (AR 165-
1
76.) On July 6, 2011, Plaintiff filed a written request for hearing, and a hearing was
2
held on July 13, 2012. (AR 177-79, 253.) Represented by counsel, Plaintiff
3
appeared and testified, along with an impartial vocational expert. (AR 59-90.) On
4
July 25, 2012, the Administrative Law Judge (“ALJ”) found that Plaintiff had not
5
been under a disability, pursuant to the Social Security Act,1 since November 15,
6
2008. (AR 151.) On August 23, 2012, Plaintiff sought review, and the Appeals
7
Council granted her request. (AR 275-78.) Another hearing was held on April 28,
8
2014, where an impartial vocational expert testified in light of additional medical
9
records. (AR 91-114.) On August 1, 2014, the ALJ again found that Plaintiff had
10
not been under a disability, pursuant to the Social Security Act, since November 15,
11
2008. (AR 13-28.) The ALJ’s decision became the Commissioner’s final decision
12
when the Appeals Council denied Plaintiff’s request for review.
13
Plaintiff filed this action on March 3, 2016. (Dkt. No. 1.)
(AR 1-4.)
14
The ALJ followed a five-step sequential evaluation process to assess whether
15
Plaintiff was disabled under the Social Security Act. Lester v. Chater, 81 F.3d 821,
16
828 n.5 (9th Cir. 1995). At step one, the ALJ found that Plaintiff had not engaged
17
in substantial gainful activity since November 15, 2008, the alleged onset date
18
(“AOD”), through March 31, 2010, her date last insured2. (AR 18.) At step two,
19
the ALJ found that through the date last insured, Plaintiff has the following severe
20
impairments: degenerative joint disease and degenerative disc disease of the lumbar
21
spine; pancreatitis; hypertension; depression; cervical strain; and obesity. (Id.) At
22
step three, the ALJ found that Plaintiff “did not have an impairment or
23
combination of impairments that met or medically equaled the severity of one of the
24
1
25
26
27
28
Persons are “disabled” for purposes of receiving Social Security benefits if they
are unable to engage in any substantial gainful activity owing to a physical or
mental impairment expected to result in death, or which has lasted or is expected to
last for a continuous period of at least 12 months. 42 U.S.C. § 423(d)(1)(A).
2
As discussed below, the relevant time period that the ALJ evaluated was a period
that ended in 2010, prior to the administrative hearings and the ALJ’s decision in
this matter.
2
1
listed impairments in 20 CFR Part 404, Subpart P, Appendix 1.” (AR 19.)
Before proceeding to step four, the ALJ found that Plaintiff had the residual
2
3
functional capacity (“RFC”) to:
4
[P]erform a range of sedentary work . . . . Specifically, the claimant
can lift 10 pounds occasionally; can stand and/or walk for two hours
out of an eight-hour workday; can perform postural activities
occasionally; cannot perform repetitive or constant handling or
fingering, but frequent is still permissible; is restricted to unskilled
work; and is precluded from fast paced work production or assembly
line type work.
5
6
7
8
9
(AR 20.)
10
At step four, based on the Plaintiff’s RFC and the VE’s testimony, the ALJ
11
found that Plaintiff was not capable of performing past relevant work as a retail
12
merchandiser, cashier/checker, retail supervisor, or sales clerk. (AR 26.) At step
13
five, the ALJ found, “considering the claimant’s age, education, work experience,
14
and residual functional capacity, there were jobs that existed in significant numbers
15
in the national economy that the claimant could have performed.”
16
Accordingly, the ALJ found that Plaintiff had not been under a disability from the
17
AOD through the date last insured. (AR 28.)
18
III.
(AR 27.)
STANDARD OF REVIEW
19
Under 42 U.S.C. § 405(g), a district court may review the Commissioner’s
20
decision to deny benefits. A court must affirm an ALJ’s findings of fact if they are
21
supported by substantial evidence, and if the proper legal standards were applied.
22
Mayes v. Massanari, 276 F.3d 453, 458-59 (9th Cir. 2001). “‘Substantial evidence’
23
means more than a mere scintilla, but less than a preponderance; it is such relevant
24
evidence as a reasonable person might accept as adequate to support a conclusion.”
25
Lingenfelter v. Astrue, 504 F.3d 1028, 1035 (9th Cir. 2007) (citing Robbins v. Soc.
26
Sec. Admin., 466 F.3d 880, 882 (9th Cir. 2006)). An ALJ can satisfy the substantial
27
evidence requirement “by setting out a detailed and thorough summary of the facts
28
3
1
and conflicting clinical evidence, stating his interpretation thereof, and making
2
findings.” Reddick v. Chater, 157 F.3d 715, 725 (9th Cir. 1998) (citation omitted).
3
“[T]he Commissioner’s decision cannot be affirmed simply by isolating a
4
specific quantum of supporting evidence. Rather, a court must consider the record
5
as a whole, weighing both evidence that supports and evidence that detracts from
6
the Secretary’s conclusion.” Aukland v. Massanari, 257 F.3d 1033, 1035 (9th Cir.
7
2001) (citations and internal quotation marks omitted).
8
susceptible to more than one rational interpretation,’ the ALJ’s decision should be
9
upheld.” Ryan v. Comm’r of Soc. Sec., 528 F.3d 1194, 1198 (9th Cir. 2008) (citing
10
Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005)); see Robbins, 466 F.3d at
11
882 (“If the evidence can support either affirming or reversing the ALJ’s
12
conclusion, we may not substitute our judgment for that of the ALJ.”). The Court
13
may review only “the reasons provided by the ALJ in the disability determination
14
and may not affirm the ALJ on a ground upon which he did not rely.” Orn v.
15
Astrue, 495 F.3d 625, 630 (9th Cir. 2007) (citing Connett v. Barnhart, 340 F.3d
16
871, 874 (9th Cir. 2003)).
17
IV.
“‘Where evidence is
DISCUSSION
18
Plaintiff raises two issues for review: (1) whether the ALJ properly
19
considered Plaintiff’s testimony; and (2) whether the ALJ properly characterized
20
Plaintiff’s inability to manipulate repetitively. (Joint Stipulation (“JS”) at 5, Dkt.
21
No. 28.)
22
testimony (JS at 5-9) and inaccurately characterized Plaintiff’s handling and
23
fingering ability (JS at 22-24). The Commissioner contends that the ALJ properly
24
evaluated Plaintiff’s credibility (JS at 9-18) and that substantial evidence supports
25
the RFC and step five findings (JS at 24-28). For the reasons below, the Court
26
agrees with the Commissioner.
27
///
28
Plaintiff contends that the ALJ improperly discredited Plaintiff’s
///
4
1
A.
The ALJ’s Credibility Determination Is Supported By Substantial
Evidence
2
3
Plaintiff argues that the ALJ’s finding that her subjective complaints are not
4
fully credible is unsupported by clear and convincing evidence. (See JS at 5-9.)
5
The Commissioner argues that the ALJ’s reasons for finding Plaintiff not fully
6
credible are supported by substantial evidence. (See JS at 9-18.)
1.
7
Plaintiff’s Testimony
8
At the July 13, 2012 administrative hearing, Plaintiff testified that she was
9
born on December 6, 1961, and graduated from high school. (AR 66.) She last
10
worked in November 2008, doing part time customer service work at a bowling
11
alley. (AR 66-67.) Plaintiff also testified that after she left the bowling alley, she
12
tried to go back to work as a cashier in a store for about a month, but “it just didn’t
13
work” due to the pain in her side. (AR 67-68.) After that, she looked for other
14
work, but “didn’t get anything.” (AR 68.)
15
Plaintiff testified that she lives with her partner and two of her three adult
16
children. (AR 72.) Her partner’s job is the sole source of household income. (AR
17
72.) She testified that her children helped “a lot” with housework. (AR 79.)
18
Plaintiff testified that she was hospitalized for three days in January 2008
19
when her pancreatitis developed. (AR 78, 80.) She was unable to work prior to
20
March 2010 because about once a week, she would get an “off and on” pain in her
21
right side that would “double [her] over” and make it hard to do anything. (AR 74,
22
81.) The pain would last for about an hour, and Plaintiff would need to lie down.
23
(AR 74, 81.) On a bad day, she would stay in bed because she feared that the pain
24
would start again if she got up. (AR 81-82.) Plaintiff testified that she is not able
25
to engage in any activity during a pancreatitis flare-up. (AR 83.) Her pain is
26
“about a ten” without medication, but “probably may even go down” after her
27
medication begins working. (AR 83.)
28
///
5
1
Plaintiff testified that she also has “constant, constant” back pain that makes
2
it hard for her to lift things and stand. (AR 74.) Before March 2010, her pain was
3
an eight on a ten-point scale. (AR 74.) Plaintiff began taking Vicodin, but “that
4
wasn’t really working,” so she switched to Norco. (AR 74.) Medication would
5
“take the edge off” and bring the pain down to a six. (AR 74.) Plaintiff would have
6
muscle spasms in her lower back three or four times a week, “maybe a couple times
7
a day,” for 10 to 15 minutes at a time. (AR 82-83.) During a spasm, Plaintiff
8
cannot engage in any activity or focus on anything else. (AR 83.) Plaintiff also
9
testified that “once in a while” she has neck pain when she turns her neck. (AR 82.)
10
Plaintiff testified that since she stopped working in November 2008, she has
11
done “[n]othing.” (AR 75.) She talks to her children when they are home, but
12
otherwise “really do[es]n’t do too much” besides sitting or lying down. (AR 76.)
13
Plaintiff sometimes feels depressed because there is “just a lot going on.” (AR 75-
14
76.) Her depression began bothering her “off and on” beginning in 2008. (AR 76,
15
84.)
16
wouldn’t leave her room, and wouldn’t take care of her hygiene. (AR 85.) A
17
depressive episode would last for “[a] couple days” every week. (AR 85-86.) Her
18
primary care doctor prescribed Lexapro, but “[i]t didn’t really help much.” (AR
19
76.) Plaintiff did not see a therapist or psychologist. (AR 76.)
Before March 2010, Plaintiff kept to herself, “wouldn’t do anything,”
20
Plaintiff testified that before March 2010, she could lift and carry ten pounds.
21
(AR 77.) She could not walk or stand for very long because her back “had started
22
really bothering [her].” (AR 77.) She could stand for about 30 to 45 minutes and
23
could sit for “a couple hours” before needing to lie down. (AR 79.) Plaintiff would
24
lie down for two hours about three or four times a day. (AR 79.) She testified that
25
an x-ray revealed degenerative disease, which began to “get worse.” (AR 78.)
26
Plaintiff testified that her doctor told her to “take it easy” and “[d]on’t lift a lot.”
27
(AR 79.)
28
///
6
1
Plaintiff testified that she would sometimes drop things. (AR 74.) She has
2
difficulty with both small and large objects. (AR 84.) She can keyboard “[o]nce in
3
awhile,” but she doesn’t use a computer very much. (AR 84.) Plaintiff can pick up
4
objects like utensils, but when her hands bother her, she drops the objects due to
5
numbness in her fingers. (AR 84.) No doctor has suggested an explanation;
6
Plaintiff testified that it is “[p]robably just from [her] back.” (AR 84.)
7
Plaintiff completed a function report on February 4, 2011. (AR 390-97.)
8
Plaintiff’s son also completed a third party function report on February 4, 2011.
9
(AR 398-405.)
His report repeated Plaintiff’s responses.
Both reports were
10
completed after the date last insured, and the responses addressed Plaintiff’s
11
current, not past, functioning.
12
Plaintiff completed an exertion questionnaire on April 30, 2011. (AR 435-
13
37.) She again reported her current conditions and abilities, after the date last
14
insured.
2.
15
Applicable Legal Standards
16
“In assessing the credibility of a claimant’s testimony regarding subjective
17
pain or the intensity of symptoms, the ALJ engages in a two-step analysis.” Molina
18
v. Astrue, 674 F.3d 1104, 1112 (9th Cir. 2012) (citing Vasquez v. Astrue, 572 F.3d
19
586, 591 (9th Cir. 2009)). “First, the ALJ must determine whether the claimant has
20
presented objective medical evidence of an underlying impairment which could
21
reasonably be expected to produce the pain or other symptoms alleged.” Treichler
22
v. Comm’r of Soc. Sec. Admin., 775 F.3d 1090, 1102 (9th Cir. 2014) (quoting
23
Lingenfelter, 504 F.3d at 1036) (internal quotation marks omitted). If so, and if the
24
ALJ does not find evidence of malingering, the ALJ must provide specific, clear
25
and convincing reasons for rejecting a claimant’s testimony regarding the severity
26
of his symptoms. Id. The ALJ must identify what testimony was found not
27
credible and explain what evidence undermines that testimony. Holohan v.
28
///
7
1
Massanari, 246 F.3d 1195, 1208 (9th Cir. 2001). “General findings are
2
insufficient.” Lester, 81 F.3d at 834.
3.
3
Discussion
4
“After careful consideration of the evidence,” the ALJ found that Plaintiff’s
5
“medically determinable impairments could reasonably be expected to cause some
6
of the alleged symptoms,” but found that Plaintiff’s “statements concerning the
7
intensity, persistence and limiting effects of these symptoms are not credible to the
8
extent those statements are inconsistent with the residual functional capacity
9
assessment herein.” (AR 21.) The ALJ declared her testimony to be “only partially
10
credible.”
11
statements; (2) routine and conservative treatment; and (3) lack of supporting
12
objective evidence. (AR 22.) No malingering allegation was made, and therefore,
13
the ALJ’s reasons must be clear and convincing.
14
(Id.)
The ALJ relied on the following reasons:
(1) inconsistent
a. Reason No. 1: Inconsistent Statements
15
The ALJ found that Plaintiff made inconsistent statements about her ability
16
to work during the alleged disability period. (AR 22.) Specifically, the ALJ noted
17
that, despite Plaintiff’s testimony that she could not work due to her impairments,
18
Plaintiff “admitted that she had looked for other work, but had been unsuccessful in
19
finding anything.” (AR 22, 68.) The ALJ also noted that Plaintiff had once told her
20
physician that she applied to work as a truck driver. (AR 22, 645.)
21
As part of the credibility determination, the ALJ may consider
22
inconsistencies between the claimant’s testimony and her other statements, conduct,
23
and daily activities. See Light v. Soc. Sec. Admin., 119 F.3d 789, 792 (9th Cir.
24
1997); Tonapetyan v. Halter, 242 F.3d 1144, 1148 (9th Cir. 2001). Here, Plaintiff’s
25
statements that she was looking for work while allegedly disabled undermines the
26
credibility of her pain testimony. See Fregoso v. Astrue, 2012 WL 2195655, at *4
27
(C.D. Cal. June 14, 2012) (“[P]laintiff’s testimony at the hearing that she had been
28
looking for work was inconsistent with plaintiff’s assertions that she suffers from
8
1
disabling impairments which preclude her from working at all.”), aff’d (9th Cir.
2
Aug. 13, 2013).
3
4
5
The Court finds that this reason is a clear and convincing reason, supported
by substantial evidence, to discount Plaintiff’s credibility.
b. Reason No. 2: Routine and Conservative Treatment
6
The ALJ also discounted Plaintiff’s credibility because “[t]he treatment
7
records reveal the claimant received routine, conservative, and non-emergency
8
treatment since the alleged onset date through the date last insured” for her
9
pancreatitis, back pain, and depression.
(AR 22.)
An ALJ may discount a
10
claimant’s credibility based on routine and conservative treatment. See Parra v.
11
Astrue, 481 F.3d 742, 750-51 (9th Cir. 2007) (evidence of conservative treatment is
12
sufficient to discount a claimant’s testimony regarding severity of an impairment);
13
see also Meanel v. Apfel, 172 F.3d 1111, 1114 (9th Cir. 1999) (rejecting plaintiff’s
14
complaint “that she experienced pain approaching the highest level imaginable” as
15
“inconsistent with the ‘minimal, conservative treatment’ that she received”).
16
The ALJ noted several instances where Plaintiff sought medical treatment for
17
abdominal or right flank pain, but the ALJ concluded that Plaintiff received
18
“conservative treatment” each time. (AR 22-23.) ALJ’s conclusory determination
19
that Plaintiff received “conservative treatment” is an improper basis for discounting
20
Plaintiff’s credibility. Plaintiff has been prescribed narcotic pain medication for her
21
abdominal pain since at least January 2008. (AR 553, 675.) See Childress v.
22
Colvin, 2014 WL 4629593, at *12 (N.D. Cal. Sept. 16, 2014) (“It is not obvious
23
whether the consistent use of such a narcotic (for several years) is ‘conservative’ or
24
in conflict with Plaintiff’s pain testimony, and therefore requires further
25
explanation.”). Moreover, Plaintiff asserts that chronic pancreatitis, the cause of
26
her abdominal pain (see AR 74, 78, 553), has no cure. (JS at 6.) “A claimant
27
cannot be discredited for failing to pursue non-conservative treatment options
28
where none exist.” Lapeirre–Gutt v. Astrue, 382 F. App’x 662, 664 (9th Cir. 2010);
9
1
see also Carmickle v. Comm’r of Soc. Sec. Admin., 533 F.3d 1155, 1162 (9th Cir.
2
2008) (“[C]onservative course of treatment . . . is not a proper basis for rejecting the
3
claimant’s credibility where the claimant has a good reason for not seeking more
4
aggressive treatment.”).
5
The ALJ also stated that Plaintiff received “routine conservative treatment”
6
for her back pain and depression, but the ALJ failed to explain how the treatment
7
was conservative. (AR 22.) Indeed, the ALJ failed to mention any treatment for
8
back pain during the relevant disability period.3 The ALJ noted that Plaintiff’s
9
primary care physician prescribed medication for her depression, and the record did
10
not contain objective psychological findings or records of any treatment by a
11
mental health specialist. (AR 23.)
12
The ALJ stated that “[t]he lack of more aggressive treatment, surgical
13
intervention, or even referral to a specialist” suggested that Plaintiff’s symptoms
14
were not as severe as alleged. (AR 22.) However, there is no evidence in the
15
record that more frequent or aggressive treatment was available to treat Plaintiff’s
16
conditions, and the ALJ was not qualified to draw her own inference regarding
17
whether such treatment was available. See Tran v. Colvin, 2016 WL 917891, at *6-
18
7 (C.D. Cal. Mar. 8, 2016) (finding no support for ALJ’s finding that surgery or
19
more aggressive treatments were available options to treat claimant’s conditions,
20
and stating that an ALJ is not qualified to draw inferences regarding whether more
21
aggressive treatment is available to treat a claimant’s conditions) (citing Lapeirre-
22
Gutt v. Astrue, 382 F. App’x 662, 664 (9th Cir. 2010) (“A claimant cannot be
23
discredited for failing to pursue non-conservative treatment options were none
24
25
26
27
28
3
The ALJ noted a treatment record dated November 16, 2008 that discussed
Plaintiff’s diagnosis of degenerative joint disease and degenerative disc disease.
(AR 22.) The Court, however, believes that the handwritten date is read as
November 10, 2008—before Plaintiff’s AOD. (AR 620). Regardless whether this
record falls within the disability period, the ALJ did not discuss any treatment,
conservative or not, arising from it.
10
1
exist.”) (citations omitted); Boitnott v. Colvin, 2016 WL 362348, at *4 (S.D. Cal.
2
Jan. 29, 2016) (an ALJ is not qualified to draw his own inference regarding whether
3
more aggressive courses of treatments were available)).
The Court finds that this is not a clear and convincing reason, supported by
4
5
substantial evidence, for discounting Plaintiff’s credibility.
c. Reason No. 3: Lack of Supporting Objective Evidence
6
Finally, the ALJ discounted Plaintiff’s credibility because her “allegations
7
8
are greater than expected in light of the objective evidence of record.” (AR 22.)
9
As the ALJ noted, the evidence in the record for the relevant time period—
10
November 15, 2008 to March 31, 2010—regarding Plaintiff’s back problems was
11
limited. (AR 22-23.) An x-ray on September 30, 2009 revealed narrowing of
12
Plaintiff’s lumbar spine, but the ALJ noted that it was “otherwise unremarkable.”
13
(AR 23, 651.) Plaintiff had “mild” range of motion limitations at a November 3,
14
2009 examination. (AR 23, 685.) Plaintiff testified at the hearing that she would
15
drop things and had difficulty using her hands due to numbness in her fingers. (AR
16
74, 84.) She speculated that the problem was “[p]robably just from [her] back” and
17
admitted that a doctor never suggested a cause. (AR 84.) The ALJ noted that the
18
record is devoid of any evidence that Plaintiff reported this issue to her doctor. (AR
19
22.)
20
The ALJ noted that the evidence in the record regarding Plaintiff’s
21
pancreatitis and abdominal pain indicated a pattern of treatment with pain
22
medication. (AR 22-23.) On January 26, 2009, Plaintiff sought treatment for pain
23
on her right side and received pain medication. (AR 22, 616.) She continued to
24
receive pain medication for similar complaints. (AR 22, 467-73.) The ALJ noted
25
that a May 11, 2009 ultrasound showed mild fatty infiltration of the liver, “but was
26
otherwise unremarkable.”
27
Plaintiff’s “pancreas appears unremarkable.”
28
abdominal pain, nausea, and loose stools on August 4, 2009, and again received
(AR 23, 483.)
11
The exam report also stated that
(AR 483.)
Plaintiff reported
1
pain medication. (AR 22, 636.) A September 2009 computerized tomography
2
(CT) study showed a wider than usual appendix, prominent walls in the mid and
3
lower descending colon and rectosigmoid. (AR 23, 634-35.) Although the ALJ
4
stated that the study contained “no reference to the pancreas” (AR 23), the exam
5
report did note that “[t]he pancreas demonstrates no enlargement” and that “[t]here
6
are several scattered, predominantly linear calcifications in the pancreas compatible
7
with the given clinical diagnosis of chronic pancreatitis.” (AR 634.) On November
8
2, 2009, Plaintiff complained of pain in her lower left quadrant and occasional
9
diarrhea and constipation; treatment records characterized the pain as “on-off.”
10
(AR 23, 645.) The ALJ also noted that Plaintiff’s right side pain on March 10,
11
2010 was treated conservatively. (AR 23.)
12
Regarding Plaintiff’s depression and mental impairments, the ALJ noted that
13
Plaintiff received psychotropic medications from her general practitioner
14
physicians. (AR 23, 647, 667.) The ALJ observed that the record did not contain
15
objective psychological findings or treatments records from a mental health
16
specialist. (AR 23.)
17
Saif Bajwa, M.D., submitted several medical source opinions related to his
18
treatment of Plaintiff from December 21, 2007 to August 5, 2013. (AR 23, 583-88,
19
652-57, 733-36.) The ALJ noted that although Dr. Bajwa has treated Plaintiff since
20
2007, that does not mean that she has been disabled since 2007. (AR 23.) In his
21
January 2011 assessment, Dr. Bajwa indicated that Plaintiff could sit, stand, and
22
walk for no more than two hours in an eight-hour workday; lift and carry no more
23
than 10 pounds occasionally; and never stoop, bend, or crouch. (AR 23, 583.) The
24
ALJ noted that the cited positive straight leg raise test was not documented until
25
after the date last insured. (AR 23, 589.) Dr. Bajwa’s March 2011 assessment
26
again referenced the positive straight leg raise test that was conducted outside the
27
relevant time period. (AR 23-34, 584-88.) In his August 2011 report, Dr. Bajwa
28
///
12
1
specifically stated that the earliest date of Plaintiff’s symptoms and limitations was
2
July 28, 2011. (AR 24, 657.)
3
The ALJ stated that she did not reduce the weight of Dr. Bajwa’s opinions
4
simply because they were submitted on checklist-style forms. (AR 24.) The ALJ
5
rejected Plaintiff’s argument that Dr. Bajwa misunderstood the question about the
6
date that Plaintiff’s limitations began. (Id.)
7
In her representative brief submitted before the remand hearing, Plaintiff also
8
argued that the record should be further developed and that Dr. Bajwa should be
9
recontacted for clarification about the dates listed on his earlier forms. (AR 24,
10
465.) On March 28, 2014, Dr. Bajwa wrote a letter that indicated that Plaintiff had
11
suffered from chronic back pain since he began treating her in December 2007.
12
(AR 732.) The ALJ noted that Dr. Bajwa did not, however, indicate any functional
13
limitations. (AR 24.) At the April 28, 2014 hearing, the ALJ instructed Plaintiff to
14
obtain a clarifying medical opinion from Dr. Bajwa regarding Plaintiff’s limitations
15
before the date last insured. (Id.) Dr. Bajwa completed a medical source statement
16
on May 12, 2014.
17
concerned Plaintiff’s limitations beyond the relevant time period of November 2008
18
to March 31, 2010. (AR 24.) In his assessment, Dr. Bajwa listed the entire
19
duration of his treatment of Plaintiff—December 21, 2007 to August 5, 2013—in
20
response to the question, “What is the earliest date that this assessment applies?”
21
(AR 24, 736.) Dr. Bajwa stated that Plaintiff could sit and stand for one hour at a
22
time, but less than two hours total in an eight-hour workday; could occasionally
23
twist but never stoop, bend, crouch, squat, climb stairs, or climb ladders; would be
24
off-task twenty-five percent or more of the time; and was incapable of even “low
25
stress” work. (AR 24, 735-36.) Dr. Bajwa identified tenderness and limited range
26
of motion of the cervical and lumbar spine as his supporting clinical findings and
27
objective signs. (AR 24, 733.)
28
(AR 733-36.)
The ALJ noted that this assessment again
///
13
1
The ALJ gave “significant weight” to Dr. Bajwa’s opinions and adopted his
2
limitations to the extent that the record reasonably supported them. (AR 24.)
3
Although he indicated that the limitations were present during his entire course of
4
treating Plaintiff, the ALJ stated that the record as a whole does not support the
5
degree of limitations until after the date last insured. (Id.) The ALJ gave less
6
weight to the opinions of the State agency physical review consultants, although
7
they were credible, in deference to Plaintiff and Dr. Bajwa. (Id.) The ALJ also
8
gave little weight to the opinions of the State agency mental review consultants.
9
(AR 24.) Finally, the ALJ found that the third-party function report and opinions of
10
Plaintiff’s son were not credible or unbiased. (AR 25-26.)
11
The ALJ found that the treatment record as a whole revealed mild findings
12
relating to Plaintiff’s alleged back problems, pancreatitis, and depression. (AR 22-
13
26.) In light of the objective evidence discussed, the Court finds that the ALJ’s
14
determination is supported by substantial evidence.
15
16
The Court finds that this is a clear and convincing reason, supported by
substantial evidence, for discounting Plaintiff’s credibility.
4.
17
Conclusion
18
Having determined that one of the ALJ’s reasons for discounting Plaintiff’s
19
credibility—routine and conservative treatment—is not clear and convincing, the
20
Court must decide whether the ALJ’s reliance on that reason was harmless error.
21
Carmickle, 533 F.3d at 1162. The relevant inquiry “is not whether the ALJ would
22
have made a different decision absent any error,” but whether the ALJ’s decision is
23
still “legally valid, despite such error.” Id. The “remaining reasoning and ultimate
24
credibility determination [must be] . . . supported by substantial evidence in the
25
record.” Id. (emphasis in original) (citing Batson v. Comm’r of Soc. Sec. Admin.,
26
359 F.3d 1190, 1197 (9th Cir. 2004)). Here, given the discussion above concerning
27
Plaintiff’s inconsistent statements and the lack of supporting objective evidence, the
28
///
14
1
Court concludes the ALJ’s credibility finding is legally valid and supported by
2
substantial evidence.
3
B.
The ALJ Properly Characterized Plaintiff’s Ability to Manipulate
in the RFC
4
5
Plaintiff contends that the ALJ abused her discretion in the assessment of
6
Plaintiff’s RFC by permitting “frequent” handling while precluding “repetitive”
7
handling. (JS at 22-24.) Plaintiff argues that “[t]he concept of repetitively doing a
8
task encompasses constant activity and at least half of frequent activity.
9
limitation against a repetitive action is broader than a limitation against constant
10
action.” (JS at 23.) Plaintiff acknowledges that the vocational expert’s suggested
11
jobs involve “frequent” handling and fingering, but contends that she “cannot
12
perform these jobs on a full-time basis because she cannot repeatedly handle and
13
finger.” (Id.)
A
14
As a preliminary matter, there is nothing facially contradictory about the
15
RFC’s limitations on handling or fingering. Although “repetitive” is not defined by
16
the Dictionary of Occupational Titles (“DOT”), each time the ALJ used the term
17
“repetitive” in these proceedings, she defined it as “constant.”
18
(“repetitive or constant”), 103 (“what I mean by repetitive movement is constant
19
movement”), 107 (“no repetitive or constant”).) The DOT defines “constantly,” in
20
the context of handling and fingering, as occurring “2/3 or more of the time.” E.g.,
21
DOT 211.467-030 (ticket seller); DOT 159.341-010 (juggler); DOT 144.061-010
22
(painter). “Frequently” refers to handling or fingering that occurs “from 1/3 to 2/3
23
of the time.” E.g., DOT 209.587-010 (addresser); DOT 209.567-014 (order clerk,
24
food and beverage); DOT 713.687-026 (lens inserter). Accordingly, permitting
25
“frequent” handling does not conflict with prohibiting “repetitive or constant”
26
handling.
27
28
(See AR 20
The ALJ is responsible for assessing a claimant’s RFC.
20 CFR
404.1546(c). In doing so, the ALJ may reject the opinion of a treating or examining
15
1
doctor if she articulates specific and legitimate reasons for the rejection.
See
2
Thomas v. Barnhart, 278 F.3d 947, 957 (9th Cir. 2002). Here, “[a]fter careful
3
consideration of the entire record,” the ALJ determined that Plaintiff “cannot
4
perform repetitive or constant handling or fingering, but frequent is still
5
permissible.” (AR 20.) In formulating the RFC, the ALJ gave “significant weight”
6
to Dr. Bajwa’s opinions and adopted his limitations “to the extent they could be
7
reasonably supported by the record,” as discussed above. (AR 24.) Plaintiff notes
8
that Dr. Bajwa reported that Plaintiff could “occasionally lift less than 10 pounds,”
9
but “[o]ccassional lifting does not equate to frequent or repetitive lifting.” (JS at
10
22.) The ALJ did not reject this limitation: the RFC limits Plaintiff to lifting “10
11
pounds occasionally.” (AR 20.) The ALJ also noted that Dr. Bajwa’s most recent
12
report did not include limitations on manipulating. (AR 24.) The ALJ nevertheless
13
deferred to Plaintiff’s testimony and precluded repetitive handling and fingering.
14
(AR 24.)
15
At step five, it is the Commissioner’s burden to establish that, considering the
16
RFC, a claimant can perform other work. 20 CFR 404.1520(g)(1). To make this
17
showing, the ALJ may rely on the testimony of a vocational expert. Tackett v.
18
Apfel, 180 F.3d 1094, 1099 (9th Cir. 1999). Here, the ALJ posed a hypothetical to
19
the vocational expert that presented the same limitations as contained in Plaintiff’s
20
RFC. (AR 107.) The vocational expert provided examples of sedentary, unskilled
21
entry-level work that would be available to someone with those limitations. (AR
22
107.) The jobs identified—addresser, food and beverage order clerk, and lens
23
inserter—all require “frequent,” but not “repetitive or constant,” handling and
24
fingering. (Id.) The ALJ did not err in relying upon this testimony to find that
25
Plaintiff was capable of performing other work and therefore not disabled.
26
The Court finds that the ALJ provided sufficient reasons for rejecting Dr.
27
Bajwa’s opinions and that RFC’s limitations on manipulating are supported by
28
substantial evidence.
16
1
2
3
4
5
V.
CONCLUSION
IT IS ORDERED that Judgment shall be entered AFFIRMING the decision
of the Commissioner denying benefits.
IT IS FURTHER ORDERED that the Clerk of the Court serve copies of this
Order and the Judgment on counsel for both parties.
6
7
8
DATED: October 27, 2017
ROZELLA A. OLIVER
UNITED STATES MAGISTRATE JUDGE
9
10
11
NOTICE
12
THIS DECISION IS NOT INTENDED FOR PUBLICATION IN WESTLAW,
LEXIS/NEXIS, OR ANY OTHER LEGAL DATABASE.
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
17
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?