James R. Smith v. Carolyn W. Colvin

Filing 26

MEMORANDUM DECISION AND ORDER by Magistrate Judge Suzanne H. Segal. IT IS ORDERED that Judgment be entered AFFIRMING the decision of the Commissioner. (See document for further details). (mr)

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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

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EASTERN DIVISION

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JAMES R. SMITH,
Plaintiff,

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Case No. EDCV 16-2643 SS

v.

MEMORANDUM DECISION AND ORDER

NANCY A. BERRYHILL,
Acting Commissioner of the
Social Security Administration,
Defendant.

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I.

21

INTRODUCTION

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23

James

R.

Smith

(“Plaintiff”)

seeks

review

of

the

final

24

decision of the Commissioner of the Social Security Administration

25

(the “Commissioner” or the “Agency”) denying his application for

26

Disability Insurance Benefits and Supplemental Security Income.

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The parties consented, pursuant to 28 U.S.C. § 636(c), to the

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jurisdiction of the undersigned United States Magistrate Judge.

1

(Dkt. Nos. 14-15).

For the reasons stated below, the decision of

2

the Commissioner is AFFIRMED.

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4

II.

5

PROCEDURAL HISTORY

6
7

Plaintiff

8

Insurance

9

Supplemental

filed

Benefits

an

application

(“DIB”)

Security
Record

and

an

Income
(“AR”)

for

application

(“SSI)
43,

on

II
for

May

144-53).

Disability
Title
13,

He

XVI

2013.

10

(Administrative

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disability onset date of June 1, 2012.

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initially denied Plaintiff’s applications on November 25, 2013,

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and upon reconsideration on January 24, 2014.

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On February 21, 2014, Plaintiff requested a hearing before an

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Administrative Law Judge (“ALJ”).

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at a hearing before ALJ Mark Greenberg on May 18, 2015 (the “ALJ

17

Hearing”). (AR 27-42). On July 23, 2015, the ALJ issued a decision

18

denying

disability

19

income.

(AR 10-26).

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ALJ’s unfavorable decision on September 14, 2015, which the Appeals

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Council denied on October 27, 2016.

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filed the instant action on December 27, 2016.

23

\\

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insurance

at

Title

(AR 43, 145).

alleged

a

The Agency

(AR 83-86, 89-93).

(AR 94-95). Plaintiff testified

benefits

and

supplement

security

Plaintiff filed a request for review of the

28
2

(AR 1-5, 8-9).

Plaintiff

1

III.

2

FACTUAL BACKGROUND

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4

Plaintiff was born on October 19, 1954.

(AR 144).

He was 58

5

years old as of the alleged disability onset date of June 1, 2012,

6

and 60 years old at the time of ALJ Hearing.

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Plaintiff did not graduate from high school but he has a GED.

8

29-30).

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date.

(AR 29, 144).
(AR

Plaintiff was unemployed at the time of his alleged onset

(AR 30).

Plaintiff was last employed by Powerstride Battery

10

Co. as a regional sales representative until August 11, 2011, when

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he was “laid off for lack of work.” (AR 30, 164, 179). Plaintiff’s

12

earnings record indicates that his last-insured date was December

13

31, 2016.

(AR 154).

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15

Plaintiff listed his illnesses as atrial fibrillation and

16

degenerative lower lumbar spine.

17

indicates Plaintiff was first diagnosed with atrial fibrillation

18

on July 21, 2012, when he was hospitalized due to a seizure and a

19

rapid heart rate.

20

attention for back pain on April 8, 2013.

21

prescribed Digoxin, Diltiazem, and Metoprolol Tartrate for his

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heart condition and Hydrocodone Acetaminophen and Norco1 for his

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back pain.

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(AR 338, 352).

(AR 145, 179).

The record

Plaintiff first sought medical
(AR 299).

Plaintiff is

(AR 251-52).

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27
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Norco is a brand-name combination of hydrocodone and
acetaminophen.
See
MEDLINEPLUS,
https://medlineplus.gov/
druginfo/meds/a601006.html (last visited July 24, 2017).
1

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1

A.

Medical History And Treating Doctors’ Opinions

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3

1.

Treatments For Seizures, Atrial Fibrillation, Chronic

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Obstructive Pulmonary Disease, Congestive Heart Failure,

5

Hypertension, and Hernia

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7

Plaintiff first sought medical attention for seizures and

8

atrial fibrillation on July 21, 2012, when he was admitted to the

9

emergency room of Desert Regional Medical Center.

(AR 338, 352).

10

On July 21, Plaintiff suffered a seizure and called an ambulance.

11

(AR 352).

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experiencing a rapid heart rate the day before.

13

being admitted, Plaintiff initially reported that he was drinking

14

the day prior, but later indicated that he quit drinking two to

15

three weeks ago.

16

pint of vodka every day for 25 years.

17

also been smoking a pack of cigarettes a day for the past 40 years.

18

(AR 349).

The hospital records also indicate that Plaintiff began

(AR 349).

(AR 338).

Upon

Plaintiff specified that he drank a
(AR 352).

Plaintiff has

19
20

Plaintiff remained at the hospital for four days during which

21

time doctors performed various tests.

22

diagnosed with “[n]ew-onset atrial fibrillation, alcohol abuse,

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[and] thrombocytopenia likely secondary to alcohol use.”

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During the hospital stay, “[e]xtensive time was spent discussing.

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. . alcohol cessation” and Plaintiff was “instructed to try to seek

26

help and remain sober from alcohol.”

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Plaintiff’s heart rate and condition was stable.

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4

(AR 331).

(Id.).

Plaintiff was

(Id.).

Upon discharge,
(Id.).

1

The record suggests Plaintiff’s condition was stable between

2

the July 21, 2012 incident until September 2014.

During that time,

3

the record reflects only two medical clinic visits, both for

4

prescription refills.

5

Kerrigan Family Medical Group to obtain refills for his medication.

6

(AR 295).

7

fibrillation

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alcoholism was in remission.

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Borrego Health Cathedral City (“Borrego Health”) for prescription

On September 4, 2012, Plaintiff visited

The progress notes indicate that Plaintiff’s atrial
was

controlled,

his

COPD

(AR 297-98).

was

refills on September 12, 2014.

(AR 435).

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Plaintiff

not

12

cigarettes every day.

13

quitting smoking.

that

he

was

(AR 436).

and

his

Next, Plaintiff visited

10

reported

stable,

using

During this visit,
alcohol

but

smoked

Plaintiff received counseling on

(Id.).

14
15

About two weeks later, on September 26, 2014, Plaintiff was

16

hospitalized due to chest pain. (AR 336). During the consultation,

17

Plaintiff reported that he was drinking alcohol when he developed

18

chest pain, which prompted him to go to the emergency room.

19

345).

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pint a week of alcohol” and smokes four cigarettes a day.

(Id.).

21

Plaintiff

atrial

22

fibrillation;

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congestive heart failure, stable; hypertension, stable; tobacco

24

abuse; alcohol abuse.”

25

stabilized and he was again “strongly advised [to] quit smoking

26

[and] stop alcohol intake immediately.” (AR 346).

(AR

Plaintiff further reported that “he drinks half a pint to 1

was

diagnosed
chronic

with

“chest

obstructive

(AR 328).

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28
5

pain;

pulmonary

chronic
disease,

stable;

Plaintiff’s condition was

1

Plaintiff was admitted to the emergency room for chest pain

2

once again on March 1, 2015.

(AR 333).

The hospital records

3

indicate that Plaintiff had been binge drinking “for the last 10

4

days.” (Id.).

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stable.

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for several days so he could be monitored for alcohol withdrawal

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symptoms.

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“drinks alcohol almost on a daily basis” and smokes one-half to

9

one pack of cigarettes daily.

Test results showed that Plaintiff’s condition was

(AR 326).

However, Plaintiff remained at the hospital

(Id.).

During his stay, Plaintiff reported that he

(AR 341).

Plaintiff also reported

10

that “he does not see his physician on any regular basis.”

(Id.).

11

“Over the course of his hospital stay, [Plaintiff’s] clinical

12

status remained stable.” (AR 326). The doctor once again discussed

13

the need for Plaintiff to quit smoking.

(Id.).

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15

Lastly, Plaintiff suffered from a hernia on April 1, 2015 and

16

sought medical attention at Borrego Health.

17

screening tests showed that his respiratory and cardiovascular

18

function was normal.

(AR 431).

19

“every

but

20

(Id.).

day

smoker”

(AR 430).

Health

Plaintiff reported that he was an

“[d]enied

smoking

cessation

support.”

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2.

Treatment For Degenerative Disc Of The Lumbar Spine

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Plaintiff first sought medical attention for back pain on

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April 8, 2013.

(AR 299).

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assistant

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alleging that he has been suffering from back pain for the past 2

28

years.

Gregory

(Id.).

Plaintiff visited certified physician’s

Lancaster

at

Kerrigan

Family

Medical

Group

Plaintiff reported that it is difficult for him to
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1

get up from a chair and the pain radiates to his thighs.

(Id.).

2

Mr. Lancaster observed that Plaintiff was “unable to stand long

3

periods of time or lift over 15 pounds.” (AR 301).

4

prescribed Norco to Plaintiff and required Plaintiff to have an x-

5

ray performed in order to obtain a refill.

Mr. Lancaster

(Id.).

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7

Four days later, on April 12, 2013, Plaintiff had an x-ray

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performed at Desert Medical Imaging.

(AR 302).

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showed that Plaintiff had “satisfactory vertebral body alignment”

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along with “advanced multilevel disc degeneration and spondylosis

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deformans accelerated for age.”

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from “concave deformation of the superior endplate of the L5

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vertebral body” and “facet arhropathy at L4-5 and L5-S1.”

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However, the paraspinous soft tissues are normal.

(Id.).

The x-ray results

Plaintiff also suffered

(Id.).

(Id.).

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16

Mr. Lancaster, who appears to be a physician’s assistant,

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completed a physical ability form on April 29, 2014.

(AR 312-18).

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Mr. Lancaster opined that Plaintiff can lift and carry up to 10

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pounds continuously and 11-20 pounds occasionally.

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Lancaster further opined that without interruption, Plaintiff can

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sit for 2 hours, stand for 1 hour and walk for 45 minutes.

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313).

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sit for a total of 4 hours, stand for a total of 2 hours, and walk

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for a total of 2 hours.

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Plaintiff is medically required to use a cane and he can walk only

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50 yards without a cane.

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activities, Mr. Lancaster opines that Plaintiff can never climb

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stairs and ramps, climb ladders and scaffolds, stoop, kneel, or

(AR 312).

Mr.

(AR

In Mr. Lancaster’s opinion, in an 8-hour day, Plaintiff can

(Id.).

According to Mr. Lancaster,

(Id.).

7

With regard to postural

1

crouch.

2

frequently.

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cannot walk a block on rough or uneven surfaces.

4

Lancaster based his opinion for each of the determinations above

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on the same few medical and clinical findings: “L-spine tenderness,

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unsteady gait, pain in low back . . . L2-S1 spondylosis.

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of unable to lift >20 pounds, reach overhead, reach/push/pull, and

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has difficulty [with] balance.”

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the medical and clinical findings in Section I and citing “As in

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(AR 315).

Plaintiff can balance occasionally and crawl

(Id.).

Mr. Lancaster also opines that Plaintiff
(AR 317).

Mr.

History

(See AR 312 – 15, 317) (listing

Section I” in remaining sections).

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12

Finally,

Mr.

Lancaster

opined

that

Plaintiff

can

never

13

tolerate exposure to unprotected heights and moving mechanical

14

parts, and that he can only occasionally tolerate exposure to

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extreme heat, dust, odors, fumes, and pulmonary irritants.

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316).

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“[h]as COPD – cannot tolerate inhaled irritants.”

(AR

Mr. Lancaster based his opinion on the reason that Plaintiff
(Id.).

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19

Plaintiff had another x-ray performed on May 1, 2014 at Desert

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Advanced Imaging Palm Springs.

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(AR 320).

The x-ray results

presented the following:

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23

Lumbar alignment is within normal limits.

There is

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moderate multilevel degenerative disease normal lumber

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levels L1 through L5 with disc space narrowing and

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marginal spur formation.

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deformity compression and L2-L4 and L5 may be the result

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of previous old trauma.

Minimal superior endplate

There is arthritic disease in
8

1

facet joints at L3, L4, and L5. Sacroiliac joints within

2

normal limits.

Paraspinous soft tissues unremarkable.

3
4

(Id.).

5
6

On

November

4,

2014,

Plaintiff

visited

Borrego

Health

7

requesting a medication refill for the hydrocodone-acetaminophen.

8

(AR 433).

9

for the past six years, or since 2008.

Plaintiff reported that he has had chronic back pain
(Id.).

A physical exam

10

indicated that that Plaintiff’s musculoskeletal system was normal.

11

(AR 434).

12

and limited range of motion. (Id.). When Plaintiff visited Borrego

13

Health on April 1, 2015 for a hernia, the physical test indicated

14

that his symptoms had improved. (AR 431) (physical test indicating

15

Plaintiff’s musculoskeletal system was normal and that he had a

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normal range of motion).

However, the examiner noted that Plaintiff had back pain

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18

B.

Medical Opinion Of Consultative Examiner

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20

At the request of the Agency, consultative examiner Vicente

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Bernabe, D.O., performed a complete orthopedic consultation of

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Plaintiff on November 13, 2013.

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of lower back pain and reported that the pain began developing in

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May 2011.

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pain in his back, which is exacerbated by prolonged standing,

26

walking, bending, and lifting, causing occasional numbness and

27

tingling in his legs.

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never “received any physical therapy or chiropractic treatment.

(AR 305).

(AR 305-09).

Plaintiff complained

He described the pain as sharp, throbbing

(Id.).

Dr. Bernabe noted that Plaintiff

9

He

1

did not receive any cortisone injections or surgical intervention.

2

He does not wear a brace for support.

3

ambulate.”

4

himself to the clinic and that he “moved freely in and out of the

5

office and around the examination room without the use of any

6

assistive device.”

7

was able to toe and heel walk.

8

history

9

cigarettes per day.”

(Id.).

of

He does not use a cane to

Dr. Bernabe observed that Plaintiff drove

(AR 306).

alcohol

use”

and

Plaintiff’s gait was normal and he
(Id.).
reported

Plaintiff “denie[d] any
that

he

“smokes

eight

(Id.).

10
11

Dr. Bernabe’s physical examination further indicated that

12

Plaintiff’s spine was largely normal.

13

his “cervical spine revealed normal attitude and posture of the

14

head” and his “[r]ange of motion was full and painless.”

(AR 306).

15

“The inspection of the thoracic spine was unrevealing.”

(AR 307).

16

Plaintiff’s lumbar spine had a “normal lordotic curve.”

17

However,

18

lumbosacral junction.

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right” (Id.).

20

revealed “flexion of 40 degrees, extension of 15 degrees, side

21

bending of 15 degrees to the left and right, and rotation of 45

22

degrees to the left and right.”

23

raise test yielded negative results.

“[t]here

was

tenderness

(AR 306-07).

at

the

In particular,

(Id.).

thoracolumbar

and

There was paravertebral muscle spasm on the

An examination of Plaintiff’s range of motion

(Id.).

Further, the straight leg

(Id.).

24
25

Based on this examination, Dr. Bernabe diagnosed Plaintiff

26

with degenerative disc disease of the lumbar spine and lumbar

27

musculoligamentous strain.

28

Plaintiff is able to walk, stand and sit for 6 hours out of an 8-

(AR 308).

10

Dr. Bernabe opined that

1

hour day, lift and carry 50 pounds occasionally and 25 pounds

2

frequently, and push and pull without limitations.

3

Dr. Bernabe opined that Plaintiff did not have any restrictions to

4

agility and postural movements.

5

any impairment in hand use or fine fingering manipulation.

6

Dr. Bernabe’s opinion is that Plaintiff does not need an assistive

7

device.

(AR 309).

(AR 308-09).

Further he did not note
(Id.).

(Id.).

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9

C.

Non-examining Physicians’ Opinions

10
11

1.

Haaland M.D.

12
13

On November 22, 2013, State agency non-examining medical

14

consultant Dr. Haaland, M.D., reviewed Plaintiff’s medical records

15

on the initial level.

16

Plaintiff was not disabled.

17

Plaintiff had “minimal MER [medical evidence of record] to support

18

his allegations of disability.”

19

Haaland noted that Plaintiff has “[n]o MER regarding a-fib” and

20

“[h]e has restriction of spinal ROM [range of motion] on one exam.”

21

(Id.).

22

about his atrial fibrillation.

23

that “he has not had any issues with [his atrial fibrillation] and

24

that

25

medications he is taking.”

(AR 52-60).

Dr. Haaland determined that

(AR 50, 59).

Dr. Haaland found that

(AR 46, 55).

In particular, Dr.

On November 11, 2013, Dr. Haaland called Plaintiff to ask

his

[doctors]

have

told

(AR 45, 54).

him

that

it

Plaintiff reported

is

fine

with

the

(Id.).

26
27

Dr. Haaland requested the orthopedic consultative examination

28

with Dr. Bernabe to obtain additional information about Plaintiff’s
11

1

back pain.

(Id.).

Dr. Haaland found the results of Dr. Bernabe’s

2

orthopedic consultation “quite benign.”

3

observed that Dr. Bernabe’s test results were not consistent with

4

Mr. Lancaster’s exam but noted that Mr. Lancaster’s exam was “not

5

a true objective finding anyway.”

6

information, Dr. Haaland found Plaintiff was partially credible.

7

(Id.).

(AR 56).

(Id.).

Dr. Haaland also

Based on the above

8
9

Dr. Haaland found that one or more of Plaintiff’s medically

10

determinable impairments could reasonably be expected to produce

11

his pain or other symptoms.

12

substantiation

13

persistence and functionally limiting effects of his impairments.

14

(Id.).

15

evaluation and opined that Plaintiff can perform medium work,

16

stand, walk and sit for 6 hours in an 8-hour day, carry and lift

17

50 pounds occasionally and 25 pounds frequently.

18

Haaland concluded that although Plaintiff’s “condition results in

19

some

20

activities,” he had the residual function capacity (“RFC”) to

21

perform his past relevant work as a route drive.”

for

(AR 56).

Plaintiff’s

He also found there was

claims

about

the

intensity,

Dr. Haaland gave significant weight to Dr. Bernabe’s

limitations

in

[his]

ability

to

(AR 48, 57).

perform

work

Dr.

related

(AR 50, 59).

22
23

2.

Subin, M.D.

Dr.

Subin,.M.D.,

24
25

the

State

agency

medical

consultant

on

26

reconsideration, found Plaintiff “not disabled” On January 21,

27

2014.

28

determinations and found that although Plaintiff was limited in

(AR

71,

80).

Dr.

Subin

12

agreed

with

Dr.

Haaland’s

1

his ability to perform certain work activities, he had the RFC to

2

perform his past relevant work as a route driver.

(Id.).

3
4

3.

Minh D. Vu, M.D.

5
6

Following a request from the ALJ, medical expert Dr. Minh D.

7

Vu, M.D., reviewed Plaintiff’s medical records.

8

Vu

9

physical impairments.

opined

that

the

medical

records

(AR 442).

(AR 442-44).

established

Plaintiff

Dr.
had

However, Dr. Vu found that

10

Plaintiff’s impairments did not rise to the level of medically

11

determinable impairments. (AR 444). Plaintiff’s “cardiac function

12

is essentially normal” and his seizures are infrequent.

13

Dr. Vu also opined that Plaintiff is not disabled because of his

14

back pain since there is no significant neuromuscular deficiency.

15

(AR 443).

16

RFC is in order.”

(Id.).

Based on these findings, Dr. Vu opined that “a medium
(AR 444).

17
18

D.

Vocational Expert Testimony

19
20

Vocational Expert (“VE”) Dr. Luis Mas testified at Plaintiff’s

21

ALJ hearing regarding the existence of jobs that Plaintiff could

22

perform given his functional limitations.

23

identified regional sales representative, warehouse manager, and

24

route driver as Plaintiff’s past relevant work.

(AR 38-39).

The VE

(AR 39).

25
26

The ALJ posed one hypothetical to the vocational expert.

27

ALJ described an individual with claimant’s age, education, and

28

prior work experience.

(Id.).

The

The individual would be restricted
13

1

to “medium” work, occasional stooping, occasional ladders, ropes

2

or scaffolds, [and] otherwise frequent postural" activity.

3

The VE opined that such an individual could work as a regional

4

sales representative and route driver.

5

there were no transferrable skills to light work.

(Id.).

(Id.).

The VE opined that
(Id.).

6
7

E.

Plaintiff’s Testimony

8
9

Plaintiff testified at the ALJ Hearing.

Plaintiff stated that

10

he did not finish high school, but obtained a GED.

11

the

12

representative, route driver, and warehouse manager.

13

disability began on June 1, 2012 and that was when he last worked.

14

(Id.).

15

weeks off to care for her. (Id.).

16

to work but “was laid off for lack of work in [his] position.”

17

(Id.).

past

15

years,

Plaintiff

worked

as

a

(AR 30).

regional
(Id.).

In

sales
His

Around that time, his wife had a stroke so he took six
On August 11, 2012, he returned

18
19

Plaintiff stated that some of his symptoms of his heart

20

condition prevent him from working.

(AR 34).

In particular, he

21

is prevented from working because of “chest pains, palpitations,

22

numbness in [his] upper chest quadrant, [his] upper quadrants . .

23

. just the constant chest pains.”

(Id.).

24
25

Plaintiff also testified that he cannot work because of his

26

back pain.

(AR 30).

27

reported to work.

28

was laid off.

He had back pain while employed but still

(Id.).

(AR 31).

His back pain has gotten worse since he

Plaintiff has difficulty sitting, standing
14

1

and walking.

(Id.).

2

kitchen.”

3

wife.”

4

Plaintiff can carry 20 pounds at most, stand for 20 minutes without

5

taking a break, sit for about 1 hour without taking a break, and

6

walk continuously for about 200 – 300 yards.

7

his back condition, Plaintiff has numbness in his feet.

8

Plaintiff has to lay down 2 to 3 hours a day because of his back

9

pain.

(Id.)

(Id.).

(Id.).

He is “still able to function around the

He does his “own laundry and takes care of [his]
However, he cannot play golf anymore.

(AR 32).

(Id.).

Because of
(AR 33).

He also developed a hernia which also causes him

10

pain when coughing or sneezing or doing “anything strenuous.”

11

35).

12

(AR

(Id.).

The hernia bulges out if he has “to lift up a 20-pound dog.”

13
14

Plaintiff described some of his daily activities.

Plaintiff

15

walks his dog in the mornings for about 150 yards in each direction.

16

(AR 36).

17

light dusting, but he does not do any vacuuming, yard work, or work

18

in his garage.

19

majority of the day.

He will prepare breakfast or lunch.

(AR 37).

(Id.).

He does some

Plaintiff sits or reclines for the

(AR 36).

20
21

IV.

22

THE ALJ’S DECISION

23
24

The ALJ employed the five-step sequential evaluation process

25

and concluded that Plaintiff was not under a disability within the

26

meaning of the Social Security Act from his disability onset date

27

of June 1, 2012, through the date of the decision, July 23, 2015.

28

(AR 14).

At step one, the ALJ found that Plaintiff had not engaged
15

1

in substantial gainful employment since June 1, 2012, the alleged

2

onset date.

3

had the following severe impairments: degenerative disc disease of

4

the lumbar spine, atrial fibrillation, obesity, chronic obstructive

5

pulmonary disease, hypertension, congestive heart failure, hernia,

6

history of seizures, and alcoholism.

(AR 15).

At step two, the ALJ found that Plaintiff

(AR 15-16).

7
8

At step three, the ALJ found that Plaintiff did not have an

9

impairment or combination of impairments that met or medically

10

equaled the severity of one of the listed impairments in 20 C.F.R.

11

Part

12

404.1525, 404.1526, 416.920(d), 416.925 and 416.926). (AR 16).2

13

The ALJ observed that “[n]o physician of record has opined that

14

[Plaintiff’s]

15

Specifically, the State agency medical consultants and the medical

16

expert all determined that Plaintiff’s “impairments did not satisfy

17

any listed criteria.”

18

expert Dr. Vu’s opinion, and noted that Dr. Vu opined that

404,

Subpart

P,

Appendix

impairments

(Id.).

1

(20

satisfy

C.F.R.

a

§§

404.1520(d),

listing.”

(Id.).

The ALJ gave great weight to medical

19
20

[Plaintiff] did not meet/equal 11.02 in the absence of

21

EEG and of documented frequency and severity of seizure

22

attacks.

23

meet/equal

24

having significant neuromuscular deficiency.

25

Dr. Vu opined that the [Plaintiff] did not meet/equal

Dr. Vu opined that the [Plaintiff] did not
listing

1.04

for

spinal

impairment,

not

Finally,

26
27
28

A physical or mental impairment is considered “severe” if it
“significantly limits [the claimant’s] physical or mental ability
to do basic work activities.” 20 C.F.R. § 404.1520.
2

16

1

listing

4.00

because

his

left

ventricle

ejection

2

fraction was normal and his chest pain was not of

3

ischemic nature.

4
5

(AR 16-17).

The ALJ noted that Plaintiff has moderate multilevel

6

degenerative disc disease, but there is “no evidence of compromise

7

of a nerve root or spinal cord and no inability to ambulate

8

effectively.”

(AR 17) (citations to the record omitted).

9
10

The ALJ then found that Plaintiff had the RFC “to perform the

11

full range of medium work as defined in 20 CFR 404.1567(c) and

12

416.967(c).”

13

occasionally stoop and climb ladders, ropes, and scaffolds,” and

14

“frequently perform all other postural activity.”

15

reaching this finding, the ALJ stated that he had considered all

16

of Plaintiff’s symptoms and the extent to which these symptoms can

17

reasonably be accepted as consistent with the objective medical

18

evidence and other evidence, based on the requirements of 20 C.F.R.

19

404.1529 and 416.929 and Social Security Rulings (“SSRs”) 96-4p

20

and 96-7p.

21

accordance with the requirements of 20 C.F.R. § 404.1527 and

22

416.927 and SSRs 96-2p, 96-5p, 96-6p and 06-3p (Id.).

(Id.).

(Id.).

The ALJ also found that Plaintiff “can

(Id.).

In

The ALJ also considered opinion evidence in

23
24

The

ALJ

found

that

Plaintiff’s

subjective

allegations

25

regarding the intensity, persistence and limiting effects of his

26

symptoms were “less than fully credible.”

27

considered all the factors set forth in 20 C.F.R. 404,1529, 416.929

28

and SSR 96-7p to assess Plaintiff’s credibility.
17

(AR 18).

(Id.).

The ALJ

The ALJ

1

emphasized that Plaintiff’s allegations are “out of proportion with

2

the medical evidence and the record as a whole.”

(Id.).

3
4

In terms of Plaintiff’s physical complaints, the ALJ explained

5

that although Plaintiff has lumbar spine degenerative disc disease,

6

Plaintiff “has merely received routine and conservative medical

7

treatment with pain medications” not reaching the “amount of pain

8

medication typical of an individual with disabling pain levels.”

9

(AR

18).

Plaintiff

did

not

report

“treatment

with

physical

10

therapy, chiropractic adjustments, cortisone injections, or the

11

use of a cane to ambulate, or a back brace.”

12

that

13

hospitalizations” or require an assistive device to ambulate.

14

(Id.).

Plaintiff

did

not

require

(Id.).

The ALJ noted

“surgery

or

frequent

15
16

The ALJ specifically noted that Plaintiff’s allegations were

17

inconsistent

with

18

doctor,

Bernabe.

19

orthopedic consultation were “unremarkable.”

20

reported

Dr.

the

findings
(Id.).

of
The

the

consultative

results

of

Dr.

(Id.).

examining
Bernabe’s

Dr. Bernabe

21
22

that [Plaintiff] was in no apparent acute or chronic

23

distress and he moved freely in and out of the office

24

and around the examination room without the use of any

25

assistive device.

26

His gait was normal without ataxia or antalgia and he

27

was able to toe and heel walk. His lumbar spine revealed

He drove himself to the examination.

28
18

1

a normal lordotic curve and the pelvis was level.

He

2

had tenderness and paravertebral spasm on the right.

3
4

(Id.) (citations to the record omitted). There was some limitation

5

in Plaintiff’s range of motion, but the straight leg-raising test

6

was

7

limitations.

negative.

(Id.).

Dr.

Bernabe

did

not

note

any

other

8
9

The

ALJ

also

observed

that

Plaintiff’s

allegations

were

10

inconsistent with the findings of the medical expert, Dr. Vu.

(AR

11

19).

12

deficits.”

13

neurological exam, and normal carnial nerves.”

14

“the orthopedic examination was negative with full range of motion

15

of the neck and thoracic spine, negative straight leg raising, full

16

range of motion of the joints, and grip strength of 100lbs left and

17

right.”

Specifically, Dr. Vu noted that there was “no neuro-muscular
(Id.).

Plaintiff had a “normal range of motion, normal
(Id.).

Further,

(Id.).

18
19

The ALJ gave little weight to Mr. Lancaster’s opinion.

(Id.).

20

The ALJ noted that “Mr. Lancaster is a physician’s assistant who

21

completed a physical ability form.” (Id.).

22

no

23

Lancaster’s opinion.”

24

record” for Mr. Lancaster’s findings.

25

that “Mr. Lancaster’s opinion is inconsistent with the record as a

26

whole including the opinion evidence from the State agency medical

27

consultants, Dr. Bernabe, and Dr. Vu.” (Id.).

progress

notes

or

a

narrative

(Id.).

However, “[t]here are

statement

to

support

Mr.

The ALJ found “no support in the

28
19

(Id.).

The ALJ emphasized

1

With regard to Plaintiff’s COPD, hypertension, and atrial

2

fibrillation, the ALJ observed that these impairments “are stable

3

and adequately controlled with medications.”

4

also noted that Plaintiff “continues to smoke despite his COPD

5

impairment.”

6

opinion.

7

was essentially normal.”

8

“chest pain was non-ischemic and his ejection fraction as normal,

9

while

his

(AR 19).

(Id.).

atrial

(AR 18).

The ALJ

The ALJ gave great weight to Dr. Vu’s

Dr. Vu found that Plaintiff’s “cardiac function
(Id.).

fibrillation
(Id.).

Dr. Vu reasoned that Plaintiff’s

did

not

result

in

syncope

or

10

shortness of breath.”

Further, Plaintiff’s seizures were

11

not a medically determinable impairment” due to the infrequency

12

and severity.

(Id.).

13
14

At step four, the ALJ determined that Plaintiff was capable

15

of performing his past relevant work as a regional salesperson and

16

route driver.

17

was not under a disability as defined by 20 C.F.R. 404.1520(f).

18

(Id.).

(AR 20).

Therefore, the ALJ found that Plaintiff

19
20

V.

21

STANDARD OF REVIEW

22
23

Under 42 U.S.C. § 405(g), a district court may review the

24

Commissioner’s decision to deny benefits.

25

the Commissioner’s decision when the ALJ’s findings are based on

26

legal error or are not supported by substantial evidence in the

27

record

28

1035 (9th Cir. 2001) (citing Tackett v. Apfel, 180 F.3d 1094, 1097)

as

a

whole.”

Aukland

20

v.

“The court may set aside

Massanari,

257

F.3d

1033,

1

(9th Cir. 1999); Smolen v. Chater, 80 F.3d 1273, 1279 (9th Cir.

2

1996) (citing Fair v. Bowen, 885 F.2d 597, 601 (9th Cir. 1989)).

3

However, the court must “affirm the denial of disability benefits

4

if it is supported by substantial evidence and the Commissioner

5

applied the correct legal standards.”

6

540, 543 (9th Cir. 1996).

Macri v. Chater, 93 F.3d

7
8
9

“Substantial evidence is more than a scintilla, but less than
a preponderance.”

Reddick v. Chater, 157 F.3d 715, 720 (9th Cir.

10

1998)(citing Jamerson v. Chater, 112 F.3d 1064, 1066 (9th Cir.

11

1997)).

12

accept as adequate to support a conclusion.”

13

whether substantial evidence supports a finding, the court must

14

“‘consider the record as a whole, weighing both evidence that

15

supports and evidence that detracts from the [Commissioner’s]

16

conclusion.’”

17

Sullivan, 2 F.3d 953, 956 (9th Cir. 1993).

18

reasonably support either affirming or reversing that conclusion,

19

the

20

Commissioner. Reddick, 157 F.3d at 720-21 (citing Flaten v. Sec’y,

21

44 F.3d 1453, 1457 (9th Cir. 1995)).

It is “relevant evidence which a reasonable person might

court

may

Aukland,

not

257

F.3d

substitute

at

its

(Id.).

1035

To determine

(quoting

Penny

v.

If the evidence can

judgment

for

that

of

the

22
23

VI.

24

DISCUSSION

25
26

Plaintiff challenges the ALJ’s decision on the ground that

27

the ALJ improperly rejected Plaintiff’s credibility.

28

in Support of Complaint (“MSC”), Dkt. No. 24, at 2, 4).
21

(Memorandum
Plaintiff

1

contends that the ALJ “failed to articulate specific and legitimate

2

reason

3

[Plaintiff’s] credible testimony.”

much

less

clear

and

convincing

reasons

in

rejecting

(Id. at 3).

4
5

The Court disagrees with this contention. The ALJ provided

6

clear and convincing reasons, supported by substantial evidence,

7

for rejecting Plaintiff’s testimony.

8

discussed below, the ALJ’s decision must be AFFIRMED.

Accordingly, for the reasons

9
10

A.

The ALJ Offered Clear And Convincing Reasons Supported By

11

Substantial Evidence For Finding The Subjective Evidence Less

12

Than Fully Credible

13
14

Plaintiff contends that the ALJ erred by failing to articulate

15

clear and convincing reasons for finding Plaintiff’s subjective

16

testimony less than fully credible.

17

disagrees.

The ALJ’s decision contains extensive citation to and

18

discussion

of

19

findings.

substantial

evidence

(MSC at 3).

supporting

his

The Court

credibility

20
21

When assessing a claimant’s credibility, the ALJ must engage

22

in a two-step analysis.

Trevizo v. Berryhill, __ F.3d __, 2017 WL

23

2925434, *9 (9th Cir. July 10, 2017) (citing Garrison v. Colvin,

24

759 F.3d 995, 1014-15 (9th Cir. 2014)).

25

determine if there is medical evidence of an impairment that could

26

reasonably produce the symptoms alleged.

27

exists and there is no evidence of malingering, the ALJ can reject

28

the claimant's testimony about the severity of her symptoms only
22

First, the ALJ must

(Id.).

“If such evidence

1

by offering specific, clear and convincing reasons for doing so.”

2

(Id.).

3

of

4

statements.”

5

(quoting Smolen, 80 F.3d at 1284).

6

inconsistencies in the claimant’s conduct and any inadequately

7

explained or unexplained failure to pursue or follow treatment.

8

Molina v. Astrue, 674 F.3d 1104, 1112 (9th Cir. 2012).

During this inquiry, the ALJ may use “ordinary techniques

credibility

evaluation,

such

as

.

.

.

prior

inconsistent

Ghanim v. Colvin, 763 F.3d 1154, 1163 (9th Cir. 2014)
The ALJ may also consider any

9
10

Here, at the first stage of his credibility analysis, the ALJ

11

found that Plaintiff’s medically determinable impairments could

12

reasonably be expected to cause the alleged symptoms.

13

At the second stage, however, the ALJ found ample evidence that

14

Plaintiff’s account of the intensity, persistence and limiting

15

effects of his symptoms was not fully credible.

(AR 18).

(Id.).

16
17

Plaintiff contends that the ALJ relied solely on objective

18

medical evidence to discount Plaintiff’s credibility.

19

Defendant argues “the ALJ appropriately considered four legally

20

valid

21

(Memorandum in Support of Defendant’s Answer, Dkt. No. 25, at 3).

22

According to Defendant, one factor is “the fact that Plaintiff

23

stopped working for reasons unrelated to his disability.”

24

The Court disagrees with Defendant on this point.

25

give this reason for rejecting Plaintiff’s testimony.

26

19).

27

[Plaintiff’s] conditions have worsened.”

28

“constrained to review the reasons the ALJ asserts.” Burrell v.

credible

The

ALJ

factors”

merely

for

dismissing

states

that

23

Plaintiff’s

“[s]ince

(MSC at 6).

testimony.

(Id.).

The ALJ did not

being

(AR 17).

(See AR 18laid

off

This Court is

1

Colvin, 775 F.3d 1133, 1141 (9th. Cir. 2014).

2

clearly

3

testimony, the Court exercises its discretion to rely on other

4

grounds to affirm the ALJ’s decision.

assert

it

as

a

reason

for

Because the ALJ did

discrediting

Plaintiff’s

5
6

The Court finds that the ALJ provided sufficient clear and

7

convincing

reasons,

8

employment, to discount Plaintiff’s testimony.

9

Court

recognizes

other

four

than

reasons

Plaintiff’s

the

from

Specifically, the

provided

for

rejecting

10

Plaintiff’s statements.

11

follow basic treatment.

12

routine and conservative treatment.

13

conduct was inconsistent with the severity of the symptoms he

14

alleged.

15

symptoms are inconsistent with the medical evidence and the record

16

as a whole.

(Id.).

(AR 17).

ALJ

termination

(AR 18).

First, Plaintiff failed to

Second, Plaintiff received only
(Id.).

Third, Plaintiff’s

Fourth, Plaintiff’s testimony regarding his

(AR 18-19).

17
18

1.

19

Plaintiff Failed To Follow Basic Treatment Advice To
Quit Smoking

20
21

First, the ALJ relied on Plaintiff’s failure to follow basic

22

treatment when evaluating Plaintiff’s credibility.

“A claimant's

23

subjective symptom testimony may be undermined by an unexplained,

24

or inadequately explained, failure to ... follow a prescribed

25

course of treatment.”

26

omitted).

27

“can cast doubt on the sincerity of the claimant's pain testimony.”

28

(Id.).

Trevizo, 2017 WL 2925434, at *10 (citations

Failure to assert a reason for not following treatment

24

1

In Trevizo, the court found that the ALJ did not provide clear

2

and convincing reasons for rejecting credibility when relying on

3

two instances of the claimant failing to take her medication as a

4

reason

5

prescribed narcotics for pain but she did not take them because of

6

a fear of becoming addicted.

7

noncompliant with taking her diabetes medication because she feared

8

that the medication was causing severe rashes.

9

claimant also indicated that there were periods in which she could

to

discount

her

testimony.

First,

(Id.).

the

claimant

was

Second, the claimant was

The

10

not afford her diabetes medication.

11

the claimant provided adequate explanations in both instances.

12

Therefore,

13

convincing” evidence for rejecting her testimony.

14

11).

the

claimant’s

(Id.).

(Id. at *11).

noncompliance

The court held that

was

not

“clear

and

(Id. at *10-

15
16

Here, there is substantial evidence in the record to show that

17

Plaintiff failed to follow basic treatment advice.

However, unlike

18

the claimant in Trevizo, Plaintiff did not provide any explanation

19

for his noncompliance.

20

continues to smoke despite having COPD.

21

that Plaintiff’s doctors repeatedly advised him to quit smoking.

22

(See e.g., AR 329, 334, 346).

23

refused assistance with smoking cessation.

24

also reflects that Plaintiff failed to quit drinking despite his

25

doctors repeatedly advised him to quit.

26

346).

27

adequate

28

Therefore, Plaintiff’s failure to follow basic treatment advice,

The ALJ specifically noted that Plaintiff
(AR 18).

The record shows

In at least one instance, Plaintiff
(AR 431).

The record

(See e.g., AR 331, 334,

Plaintiff does not provide any explanation, let alone an
one,

for

his

failure

to

25

quit

smoking

and

drinking.

1

i.e., to quit smoking, is a clear and convincing reason to reject

2

his testimony.

3
4

2.

5

Plaintiff

Received

Only

Routine

And

Conservative

Treatment

6
7

Second, the ALJ discredited Plaintiff’s testimony because “he

8

merely received routine and conservative medical treatment with

9

pain medications.”

(AR 18).

“A conservative course of treatment

10

can undermine allegations of debilitating pain.”

11

Comm’r, Soc. Sec. Admin., 533 F.3d 1155, 1162 (9th Cir. 2008)

12

(citation

13

rejecting the claimant’s credibility where the claimant has good

14

reason for not seeking more aggressive treatment.” (Id.).

omitted).

However,

it

is

“not

a

Carmickle v.

proper

basis

for

15
16

The Court agrees that there is substantial evidence in the

17

record indicating that Plaintiff received routine and conservative

18

medical treatment.

19

treated his back pain with only pain medications and the amount of

20

medication does not rise to the level typical for an individual

21

with disabling pain.

22

Plaintiff did not require or seek “physical therapy, chiropractic

23

adjustments, [or] cortisone injections.”

24

not require the use of an assistive device for ambulation or a back

25

brace.

26

hospitalization.

(Id.).

The ALJ specifically noted that Plaintiff

(AR 18).

The ALJ further observed that

(Id.).

Plaintiff did

He also did not require surgery or frequent
(Id.).

27
28
26

1

Indeed, the record indicates that other than to refill his

2

pain medication (or for an examination related to his request for

3

benefits), Plaintiff visited a medical professional only three

4

times for his back pain since the alleged onset date of June 1,

5

2012.

6

AR 299).

7

302, 320); (see also Trevizo, 2017 WL2925434 at *2-3 (the record

8

reflected claimant underwent multiple surgeries, had at least

9

twenty-two medical visits with her primary care physician over the

10

course of four years, at least twenty-two medical visits with two

11

different specialists, and “notably” failed multiple treatments)).

12

Plaintiff fails to explain why he did not seek more aggressive

13

treatment.

14

conservative treatment is a clear and convincing reason for the

15

ALJ to reject Plaintiff’s testimony.

Significantly, only one visit was for an examination.
The other two visits were merely for x-rays.

(See

(See AR

Therefore, the Court finds Plaintiff’s routine and

16
17

3.

Inconsistent Conduct

18
19

Third, the ALJ cited to substantial evidence of Plaintiff’s

20

conduct that was inconsistent with the severity of the symptoms he

21

alleged.

22

inconsistencies between the claimant’s conduct and testimony to

23

evaluate credibility).

24

visit to Dr. Bernabe’s office, Plaintiff did not appear to be in

25

“acute or chronic distress.”

26

“moved around freely in and out of the office and around the

27

examination room without the use of any assistive device.”

28

He drove himself to the clinic and he was able to toe and heel

See

Molina,

674

F.3d

at

1112

(ALJ

may

consider

The ALJ specifically noted that during the

(AR 18).

27

Additionally, Plaintiff

(Id.).

1

walk.

(Id.).

Plaintiff’s demonstrated physical abilities are

2

inconsistent

3

Therefore, Plaintiff’s inconsistent conduct is another clear and

4

convincing reason to reject Plaintiff’s credibility.

with

that

of

an

individual

with

disabling

pain.

5
6

4.

7

Plaintiff’s Statements Regarding His Pain Were Not
Supported By The Record

8
9

Finally, in addition to the reasons discussed above, the ALJ

10

explained that he discredited Plaintiff’s testimony because his

11

statements are “out of proportion with the medical evidence and

12

record as a whole.”

13

cannot form the sole basis for discounting pain testimony, it is a

14

factor that the ALJ can consider in his credibility analysis.”

15

Burch v. Barnhart, 400 F.3d 676, 681 (9th Cir. 2005).

(AR 18).

“Although lack of medical evidence

16
17

a.

Atrial Fibrillation

18
19

Plaintiff listed his atrial fibrillation as a disability and

20

testified that some of the symptoms of his heart condition prevent

21

him from working.

22

is

23

Plaintiff’s COPD, hypertension, and atrial fibrillation are stable.

24

(See

25

“[Plaintiff has history of] COPD that has been stable currently

26

asymptomatic”); (see also AR 328) (“Chronic obstructive pulmonary

27

disease, stable” “Congestive heart failure, stable” “Hypertension,

28

stable”);

substantial

e.g.,

AR

(see

(AR 34, 145).

evidence

297-98)

also

in

The ALJ properly found that there

the

(“Atrial

AR

431)
28

medical

records

Flutter

(“Atrial

.

.

to

.

show

that

Controlled,”

fibrillation

well-

1

controlled”).

Furthermore, upon reviewing Plaintiff’s medical

2

records,

3

condition is essentially normal.

medical

expert

Dr.

Vu

opined

that

Plaintiff’s

heart

(AR 443-44).

4
5

More notably, Plaintiff himself reported to the State agency

6

consultant that he does not have any issues with his atrial

7

fibrillation and it is “fine with the medication he is taking.”

8

(AR 45, 54); (see Ghanim, 763 F.3d at 1164 (ALJ did not err by

9

discrediting claimant due to inconsistencies in testimony and

10

previous statements.).

Therefore, the ALJ properly found that

11

Plaintiff’s testimony regarding the limitations resulting from his

12

atrial fibrillation were out of proportion with the record as a

13

whole.

14
15

b.

Degenerative Lower Lumbar

16
17

Plaintiff

also

listed

degenerative

lower

lumbar

as

a

18

disability in his DIB and SSI applications.

Plaintiff alleges an

19

inability to bend, which causes him problems with tying his shoes,

20

cutting his toenails, getting in and out of his truck, walking and

21

standing.

22

care, except for tying my shoes and cutting my toenails because I

23

can’t bend over.”)); (see also, AR 219).

24

that due to his back pain he is limited to lifting at most 20

25

pounds, standing for 20 minutes uninterrupted, sitting for 1 hour

26

uninterrupted, and walking 200-300 yards.

(See e.g., AR 152 (“I do not need help with in-home

27
28
29

Plaintiff also testified

(AR 32).

However, this

1

testimony is inconsistent with nearly all medical evidence on the

2

record, including the opinions of the State agency consultants,

3

the consultative examiner, and the medical expert.

4
5

Dr. Haaland, the State agency

6

Plaintiff is capable of medium work.

7

Plaintiff is capable of bending at the waist occasionally; lifting

8

and carrying 50 pounds occasionally and 20 pounds frequently; and

9

standing, walking, and sitting for 6 hours in an 8-hour day.
57).

Further,

Dr.

Haaland

consultant, concluded that
(AR 47, 56).

noted

some

Specifically,

limitations

(AR

10

48,

to

11

Plaintiff’s ability to climb and perform postural activity.

12

Dr. Subin, the State agency consultant on the reconsideration level

13

agreed with all of Dr. Haaland’s findings.

(Id.).

(AR 67, 69, 76, 78).

14
15

Likewise, after performing a consultative exam, Dr. Bernabe

16

reached

similar

conclusions

regarding

Plaintiff’s

physical

17

ability.

18

occasionally and 25 pounds frequently.

19

able to walk, stand, and sit for 6 hours in an 8-hour day.

20

309).

21

to postural movements.

Dr. Bernabe found that Plaintiff can carry 50 pounds
(AR 308). Plaintiff is also
(AR

Dr. Bernabe opined that Plaintiff did not have restrictions
(Id.).

22
23

Dr.

Vu,

the

medical

expert,

also

had

nearly

identical

24

findings.

Dr. Vu opined that Plaintiff can lift and carry 50

25

pounds occasionally and 25 pounds frequently.

26

can walk and stand for 2 hours at a time for a total of 6 hours in

27

an 8-hour day, but Plaintiff was not limited in his sitting ability.

28
30

(AR 444).

Plaintiff

1

(Id.).

Dr. Vu noted some limitation in climbing, but not for

2

postural activity. (Id.).

3
4

Mr. Lancaster’s opinion is the only evidence that supports

5

Plaintiff’s contentions.

6

inconsistent

7

described

8

conflicts with Plaintiff’s own testimony and conduct.

9

(Plaintiff testifying that he can walk about 200 to 300 yards

10

without taking a break); (AR 36) (Plaintiff testifying that on an

11

average day, he walks his dogs the mornings for a total of about

12

300 yards); (AR 306) (Plaintiff moved freely and walked without

13

the use of a cane during the consultative exam).

14

ALJ noted, “[t]here are no progress notes or a narrative statement

15

to support Mr. Lancaster’s opinion.”

16

Court agrees that Plaintiff’s testimony was out of proportion with

17

the record as a whole.

18

reason to reject Plaintiff’s testimony.

with

above.

all

However, Mr. Lancaster’s opinion is
other

medical

Additionally,

Mr.

evidence

on

Lancaster’s

(AR 19).

record,
opinion

as

even

(AR 32)

Further, as the

Therefore, the

Again, this was a clear and convincing

19
20
21
22
23
24
25
26
27
28
31

1

In sum, the ALJ offered clear and convincing reasons supported

2

by

substantial

evidence

for

finding

3

Plaintiff’s

subjective

testimony less than fully credible.

4
5

VII.

6

CONCLUSION

7
8

Consistent with the foregoing, IT IS ORDERED that Judgment be

9

entered AFFIRMING the decision of the Commissioner. The Clerk

10

of the Court shall serve copies of this Order and the Judgment on

11

counsel for both parties.

12
13

DATED:

July 31, 2017

14
15

/S/
SUZANNE H. SEGAL
UNITED STATES MAGISTRATE JUDGE

16
17
18
19

THIS DECISION IS NOT INTENDED FOR PUBLICATION IN WESTLAW, LEXIS OR
ANY OTHER LEGAL DATABASE.

20
21
22
23
24
25
26
27
28
32