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