Jose Humberto Duran v. Carolyn W. Colvin

Filing 22

ORDER ACCEPTING FINDINGS, CONCLUSIONS AND RECOMMENDATIONS OF U.S. MAGISTRATE JUDGE by Judge S. James Otero. The Court accepts and adopts the Magistrate Judge's Report and Recommendation. It is Ordered that: (1) the Report and Recommendation is accepted and adopted as the Findings of Fact and Conclusions of Law herein; (2) Defendant's Motion for Summary Judgment is granted; (3) Plaintiff's Motion for Summary Judgment is denied; and (4) Judgment shall be entered in favor of the Defendant. (Attachments: # 1 Report and Recommendation) (sp)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 12 13 14 15 16 JOSE HUMBERTO DURAN, ) ) Plaintiff, ) ) v. ) ) NANCY A. BERRYHILL, Acting ) Commissioner of Social Security, ) ) Defendant. ) ____________________________________) NO. ED CV 16-2480-SJO(E) REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE 17 18 This Report and Recommendation is submitted to the Honorable 19 S. James Otero, United States District Judge, pursuant to 28 U.S.C. 20 section 636 and General Order 05-07 of the United States District 21 Court for the Central District of California. 22 23 PROCEEDINGS 24 25 Plaintiff filed a complaint on December 1, 2016, seeking review 26 of the Commissioner’s denial of disability benefits. 27 a motion for summary judgment on April 10, 2017. 28 motion for summary judgment on June 9, 2017. Plaintiff filed Defendant filed a The Court has taken the 1 motions under submission without oral argument. 2 See L.R. 7-15; “Order,” filed December 7, 2016. 3 4 BACKGROUND 5 6 Plaintiff, a former highway maintenance worker, asserted 7 disability since August 9, 2013, based primarily on alleged orthopedic 8 problems (Administrative Record (“A.R.”) 34-50, 52, 60, 147, 201, 9 208). An Administrative Law Judge (“ALJ”) examined the medical record 10 and heard testimony from Plaintiff and a vocational expert (A.R. 12- 11 249, 258-1030). 12 13 The ALJ found Plaintiff has some severe impairments but retains 14 the residual functional capacity to perform a limited range of medium 15 work, including Plaintiff’s past relevant work (A.R. 17-23). 16 deemed Plaintiff’s contrary testimony “not entirely credible” (A.R. 17 19-22). 18 Plaintiff’s treating physician (A.R. 20-21). 19 denied review (A.R. 1-4). The ALJ The ALJ also discounted the opinions of Dr. Nathan Carlson, The Appeals Council 20 21 Plaintiff argues that the ALJ erred in connection with evaluating 22 Plaintiff’s credibility. Plaintiff also argues that the ALJ erred in 23 connection with evaluating the opinions of Dr. Carlson. 24 25 STANDARD OF REVIEW 26 27 28 Under 42 U.S.C. section 405(g), this Court reviews the Administration’s decision to determine if: (1) the Administration’s 2 1 findings are supported by substantial evidence; and (2) the 2 Administration used correct legal standards. 3 Commissioner, 533 F.3d 1155, 1159 (9th Cir. 2008); Hoopai v. Astrue, 4 499 F.3d 1071, 1074 (9th Cir. 2007); see also Brewes v. Commissioner, 5 682 F.3d 1157, 1161 (9th Cir. 2012). 6 relevant evidence as a reasonable mind might accept as adequate to 7 support a conclusion.” 8 (1971) (citation and quotations omitted); see also Widmark v. 9 Barnhart, 454 F.3d 1063, 1066 (9th Cir. 2006). See Carmickle v. Substantial evidence is “such Richardson v. Perales, 402 U.S. 389, 401 10 11 If the evidence can support either outcome, the court may 12 not substitute its judgment for that of the ALJ. 13 Commissioner’s decision cannot be affirmed simply by 14 isolating a specific quantum of supporting evidence. 15 Rather, a court must consider the record as a whole, 16 weighing both evidence that supports and evidence that 17 detracts from the [administrative] conclusion. But the 18 19 Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999) (citations and 20 quotations omitted). 21 22 DISCUSSION 23 24 After consideration of the record as a whole, the Magistrate 25 Judge recommends that Defendant’s motion be granted and Plaintiff’s 26 motion be denied. 27 /// 28 /// The Administration’s findings are supported by 3 1 substantial evidence and are free from material1 legal error. 2 Plaintiff’s contrary arguments are unavailing. 3 4 5 I. The ALJ Did Not Materially Err in Connection With Evaluating Plaintiff’s Credibility. 6 7 An ALJ’s assessment of a claimant’s credibility is entitled to 8 “great weight.” 9 1990); Nyman v. Heckler, 779 F.2d 528, 531 (9th Cir. 1985). Anderson v. Sullivan, 914 F.2d 1121, 1124 (9th Cir. Where the 10 ALJ finds that the claimant’s medically determinable impairments 11 reasonably could be expected to cause some degree of the alleged 12 symptoms of which the claimant subjectively complains, any discounting 13 of the claimant’s complaints must be supported by specific, cogent 14 findings. 15 Lester v. Chater, 81 F.3d 821, 834 (9th Cir. 1995); but see Smolen v. 16 Chater, 80 F.3d 1273, 1282-84 (9th Cir. 1996) (indicating that ALJ 17 must offer “specific, clear and convincing” reasons to reject a 18 claimant’s testimony where there is no evidence of malingering).2 See Berry v. Astrue, 622 F.3d 1228, 1234 (9th Cir. 2010); An 19 1 20 21 The harmless error rule applies to the review of administrative decisions regarding disability. See Garcia v. Commissioner, 768 F.3d 925, 932-33 (9th Cir. 2014); McLeod v. Astrue, 640 F.3d 881, 886-88 (9th Cir. 2011). 22 2 23 24 25 26 27 28 In the absence of an ALJ’s reliance on evidence of “malingering,” most recent Ninth Circuit cases have applied the “clear and convincing” standard. See, e.g., Brown-Hunter v. Colvin, 806 F.3d 487, 488-89 (9th Cir. 2015); Burrell v. Colvin, 775 F.3d 1133, 1136-37 (9th Cir. 2014); Treichler v. Commissioner, 775 F.3d 1090, 1102 (9th Cir. 2014); Ghanim v. Colvin, 763 F.3d 1154, 1163 n.9 (9th Cir. 2014); Garrison v. Colvin, 759 F.3d 995, 1014-15 & n.18 (9th Cir. 2014); see also Ballard v. Apfel, 2000 WL 1899797, at *2 n.1 (C.D. Cal. Dec. 19, 2000) (collecting earlier cases). In the present case, the ALJ’s (continued...) 4 1 ALJ’s credibility findings “must be sufficiently specific to allow a 2 reviewing court to conclude the ALJ rejected the claimant’s testimony 3 on permissible grounds and did not arbitrarily discredit the 4 claimant’s testimony.” 5 2004) (internal citations and quotations omitted); see Social Security 6 Ruling 96-7p (explaining how to assess a claimant’s credibility), 7 superseded, Social Security Ruling 16-3p (eff. March 28, 2016).3 8 discussed below, the ALJ stated sufficient reasons for deeming 9 Plaintiff’s subjective complaints less than fully credible. Moisa v. Barnhart, 367 F.3d 882, 885 (9th Cir. As 10 11 The ALJ accurately stated that “the descriptions of [Plaintiff’s] 12 alleged symptoms and limitations that he provided throughout the 13 record are quite vague, generally indicating that he cannot sit or 14 stand for ‘prolonged’ periods or lift/carry ‘heavy’ weight ‘too often’ 15 or without taking breaks (HT and Exhibits 2E; 4E; 6E; 9E; 14E)” (A.R. 16 19; see A.R. 36-38, 175-79, 190-92, 201-03, 219-24, 240). 17 properly may discount a claimant’s credibility based on the vagueness An ALJ 18 2 19 20 21 22 23 24 25 26 27 28 (...continued) findings are sufficient under either standard, so the distinction between the two standards (if any) is academic. 3 Social Security Rulings (“SSRs”) are binding on the Administration. See Terry v. Sullivan, 903 F.2d 1273, 1275 n.1 (9th Cir. 1990). Plaintiff and Defendant appear to believe that SSR 96-7 applies to the evaluation of Plaintiff’s credibility because the ALJ’s decision predated the effective date of SSR 163p (Plaintiff’s Motion at 9; Defendant’s Motion at 8 n.4). The Court need not decide whether Ruling 16-3p applies herein because the appropriate analysis in the present case would be substantially the same under either SSR. See R.P. v. Colvin, 2016 WL 7042259, at *9 n.7 (E.D. Cal. Dec. 5, 2016) (observing that only the Seventh Circuit has issued a published decision applying Ruling 16-3p retroactively; also stating that Ruling 163p “implemented a change in diction rather than substance”) (citations omitted). 5 1 of the claimant’s subjective complaints. See Tommasetti v. Astrue, 2 533 F.3d 1035, 1040 (9th Cir. 2008); accord Hubbard v. Astrue, 371 3 Fed. App’x 785, 787 (9th Cir. 2010). 4 5 The ALJ also pointed out that Plaintiff’s level of daily 6 activities appears inconsistent with Plaintiff’s claimed disability 7 (A.R. 22). 8 than 30 minutes at a time, Plaintiff admitted that, during the period 9 of claimed disability, Plaintiff walked continuously for 50-60 minutes For example, despite claiming an inability to walk more 10 at a time every morning (A.R. 201, 1012). 11 claimed incapacity and admitted activities properly can impugn a 12 claimant’s credibility. 13 1112 (9th Cir. 2012); Thomas v. Barnhart, 278 F.3d 947, 958-59 (9th 14 Cir. 2002); Verduzco v. Apfel, 188 F.3d 1087, 1090 (9th Cir. 1999). Inconsistencies between See, e.g., Molina v. Astrue, 674 F.3d 1104, 15 16 The ALJ also observed that Plaintiff “does not take narcotic 17 based pain relieving medications, and has declined any type of 18 corrective surgery despite his allegations of disabling pain” (A.R. 19 20; see A.R. 757, 850). 20 conservative nature of a claimant’s treatment properly may factor into 21 the evaluation of a claimant’s credibility. 22 533 F.3d at 1039-40; Parra v. Astrue, 481 F.3d 742, 751 (9th Cir. 23 2007), cert. denied, 552 U.S. 1141 (2008); Osenbrock v. Apfel, 240 24 F.3d 1157, 1166 (9th Cir. 2001). Observations regarding the relatively See Tommasetti v. Astrue, 25 26 The ALJ also stressed that the objective medical evidence 27 predominantly discloses only mild or minimal findings on x-rays, MRIs 28 and other testing (A.R. 19-20; see A.R. 259-60, 464, 475-76, 551, 593, 6 1 850). While a lack of objective medical evidence to corroborate the 2 claimed severity of alleged symptomatology cannot form the “sole” 3 basis for discounting a claimant’s credibility, the objective medical 4 evidence is still a relevant factor. 5 676, 680 (9th Cir. 2005); Rollins v. Massanari, 261 F.3d 853, 857 (9th 6 Cir. 2001). See Burch v. Barnhart, 400 F.3d 7 8 To the extent one or more of the ALJ’s stated reasons for 9 discounting Plaintiff’s credibility may have been invalid, the Court 10 nevertheless should uphold the ALJ’s credibility determination under 11 the circumstances presented. 12 at 1162-63 (despite the invalidity of one or more of an ALJ’s stated 13 reasons, a court properly may uphold the ALJ’s credibility 14 determination where sufficient valid reasons have been stated). 15 the present case, the ALJ stated sufficient valid reasons to allow 16 this Court to conclude that the ALJ discounted Plaintiff’s credibility 17 on permissible grounds. 18 Court therefore defers to the ALJ’s credibility determination. 19 Lasich v. Astrue, 252 Fed. App’x 823, 825 (9th Cir. 2007) (court will 20 defer to Administration’s credibility determination when the proper 21 process is used and proper reasons for the decision are provided); 22 accord Flaten v. Secretary of Health & Human Services, 44 F.3d 1453, 23 1464 (9th Cir. 1995).4 See Carmickle v. Commissioner, 533 F.3d In See Moisa v. Barnhart, 367 F.3d at 885. The 24 See 25 26 27 28 4 The Court need not and does not determine herein whether Plaintiff’s subjective complaints are credible. Some evidence suggests that those complaints may be credible. However, it is for the Administration, and not this Court, to evaluate the credibility of witnesses. See Magallanes v. Bowen, 881 F.2d 747, 750, 755-56 (9th Cir. 1989). 7 1 II. 2 The ALJ Did Not Materially Err in Connection with Evaluating the Opinions of Dr. Carlson. 3 4 Generally, a treating physician’s conclusions “must be given 5 substantial weight.” 6 1988); see Rodriguez v. Bowen, 876 F.2d 759, 762 (9th Cir. 1989) (“the 7 ALJ must give sufficient weight to the subjective aspects of a 8 doctor’s opinion. . . . 9 that of a treating physician”) (citation omitted); see also Orn v. 10 Astrue, 495 F.3d 625, 631-33 (9th Cir. 2007) (discussing deference 11 owed to treating physician opinions). 12 physician’s opinions are contradicted,5 “if the ALJ wishes to 13 disregard the opinion[s] of the treating physician he . . . must make 14 findings setting forth specific, legitimate reasons for doing so that 15 are based on substantial evidence in the record.” 16 853 F.2d 643, 647 (9th Cir. 1987) (citation, quotations and brackets 17 omitted); see Rodriguez v. Bowen, 876 F.2d at 762 (“The ALJ may 18 disregard the treating physician’s opinion, but only by setting forth 19 specific, legitimate reasons for doing so, and this decision must 20 itself be based on substantial evidence”) (citation and quotations 21 omitted). 22 sufficient reasons for discounting Dr. Carlson’s opinions. 23 /// 24 /// Embrey v. Bowen, 849 F.2d 418, 422 (9th Cir. This is especially true when the opinion is Even where the treating Winans v. Bowen, Contrary to Plaintiff’s arguments, the ALJ stated 25 26 5 27 28 Rejection of an uncontradicted opinion of a treating physician requires a statement of “clear and convincing” reasons. Smolen v. Chater, 80 F.3d at 1285; Gallant v. Heckler, 753 F.2d 1450, 1454 (9th Cir. 1984). 8 1 The ALJ accurately stated that Dr. Carlson’s opinions were 2 “extreme” in light of “the minimal objective findings” (A.R. 20-21). 3 An ALJ properly may reject a treating physician’s opinion that is 4 “unsupported by the record as a whole . . . or by objective medical 5 findings.” 6 2004). Batson v. Commissioner, 359 F.3d 1190, 1195 (9th Cir. 7 8 9 The ALJ also aptly stated that Dr. Carlson’s extreme opinions were inconsistent with Plaintiff’s admitted activities (A.R. 20-21). 10 For example, Dr. Carlson opined Plaintiff must sit down every 10 to 20 11 minutes (A.R. 778). 12 walk which takes him 55 to 60 minutes to complete (A.R. 201). 13 during the period of claimed disability, Plaintiff manifested a 14 standing/walking tolerance approximately three times greater than the 15 tolerance reflected in Dr. Carlson’s opinion. 16 opined Plaintiff cannot perform any “pushing” or “pulling,” even 17 though Plaintiff admittedly works on cars and does “yard work” each 18 week, including cutting the grass (A.R. 536, 202). 19 inconsistencies between a treating physician’s opinions and a 20 claimant’s admitted activities can furnish a sufficient reason for 21 rejecting the treating physician’s opinions. 22 Massanari, 261 F.3d at 856. Yet, Plaintiff begins each day with a three mile Thus, Similarly, Dr. Carlson Such See, e.g., Rollins v. 23 24 The ALJ also observed that Dr. Carlson “is not an orthopedist or 25 other specialist well qualified to opine as to the claimant’s knee and 26 back limitations, but is rather a general family practitioner” (A.R. 27 20). 28 render infirm the ALJ’s discounting of Dr. Carlson’s opinions. Contrary to Plaintiff’s argument, this observation does not 9 The 1 applicable regulation provides that ALJs “generally give more weight 2 to the medical opinion of a specialist about medical issues related to 3 his or her area of speciality than to the medical opinion of a source 4 who is not a specialist.” 5 Astrue, 364 Fed. App’x 353, 355 (9th Cir. 2010) (ALJ properly 6 discounted the opinions of a treating physician based on, inter alia, 7 the fact that the treating physician was not a specialist). 8 that an ALJ may not properly discount a treating physician’s opinion 9 based exclusively on the physician’s lack of specialization. 20 C.F.R. § 404.1527(c)(5); see Belknap v. It may be See 10 Lester v. Chater, 81 F.3d 821, 833 (9th Cir. 1995); Kennelly v. 11 Astrue, 313 Fed. App’x 977, 978 (9th Cir. 2009); Hickle v. Acting 12 Commissioner, 2017 WL 1731567, at *7 (D. Ariz. May 2, 2017). 13 in the present case, any such reliance was not exclusive. However, 14 15 RECOMMENDATION 16 For all of the foregoing reasons,6 IT IS RECOMMENDED that the 17 18 Court issue an Order: (1) accepting and adopting this Report and 19 Recommendation; (2) granting Defendant's motion for summary 20 /// 21 /// 22 /// 23 /// 24 25 26 27 28 6 The Court has considered and rejected each of Plaintiff’s arguments. Neither Plaintiff’s arguments nor the circumstances of this case show any “substantial likelihood of prejudice” resulting from any error allegedly committed by the ALJ. See generally McLeod v. Astrue, 640 F.3d at 887-88 (discussing the standards applicable to evaluating prejudice). 10 1 judgment; (3) denying Plaintiff's motion for summary judgment; and 2 (4) directing that Judgment be entered in favor of Defendant. 3 4 DATED: June 21, 2017. 5 6 7 /s/ CHARLES F. EICK UNITED STATES MAGISTRATE JUDGE 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 11 1 2 NOTICE Reports and Recommendations are not appealable to the Court of 3 Appeals, but may be subject to the right of any party to file 4 objections as provided in the Local Rules Governing the Duties of 5 Magistrate Judges and review by the District Judge whose initials 6 appear in the docket number. 7 Federal Rules of Appellate Procedure should be filed until entry of 8 the judgment of the District Court. No notice of appeal pursuant to the 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 12

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