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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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 EASTERN DIVISION 11 12 JAMES R. SMITH, Plaintiff, 13 14 15 16 Case No. EDCV 16-2643 SS v. MEMORANDUM DECISION AND ORDER NANCY A. BERRYHILL, Acting Commissioner of the Social Security Administration, Defendant. 17 18 19 20 I. 21 INTRODUCTION 22 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. 27 The parties consented, pursuant to 28 U.S.C. § 636(c), to the 28 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. 3 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 11 disability onset date of June 1, 2012. 12 initially denied Plaintiff’s applications on November 25, 2013, 13 and upon reconsideration on January 24, 2014. 14 On February 21, 2014, Plaintiff requested a hearing before an 15 Administrative Law Judge (“ALJ”). 16 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). 20 ALJ’s unfavorable decision on September 14, 2015, which the Appeals 21 Council denied on October 27, 2016. 22 filed the instant action on December 27, 2016. 23 \\ 24 \\ 25 \\ 26 \\ 27 \\ 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 3 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. 7 Plaintiff did not graduate from high school but he has a GED. 8 29-30). 9 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 11 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). 14 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 22 heart condition and Hydrocodone Acetaminophen and Norco1 for his 23 back pain. 24 \\ 25 \\ (AR 338, 352). (AR 145, 179). The record Plaintiff first sought medical (AR 299). Plaintiff is (AR 251-52). 26 27 28 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 3 1 A. Medical History And Treating Doctors’ Opinions 2 3 1. Treatments For Seizures, Atrial Fibrillation, Chronic 4 Obstructive Pulmonary Disease, Congestive Heart Failure, 5 Hypertension, and Hernia 6 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). 12 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, 23 [and] thrombocytopenia likely secondary to alcohol use.” 24 During the hospital stay, “[e]xtensive time was spent discussing. 25 . . alcohol cessation” and Plaintiff was “instructed to try to seek 26 help and remain sober from alcohol.” 27 Plaintiff’s heart rate and condition was stable. 28 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 8 alcoholism was in remission. 9 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). 11 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). 20 pint a week of alcohol” and smokes four cigarettes a day. (Id.). 21 Plaintiff atrial 22 fibrillation; 23 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). 27 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.). 5 stable. 6 for several days so he could be monitored for alcohol withdrawal 7 symptoms. 8 “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.). 14 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.” 21 22 2. Treatment For Degenerative Disc Of The Lumbar Spine 23 24 Plaintiff first sought medical attention for back pain on 25 April 8, 2013. (AR 299). 26 assistant 27 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 6 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.). 6 7 Four days later, on April 12, 2013, Plaintiff had an x-ray 8 performed at Desert Medical Imaging. (AR 302). 9 showed that Plaintiff had “satisfactory vertebral body alignment” 10 along with “advanced multilevel disc degeneration and spondylosis 11 deformans accelerated for age.” 12 from “concave deformation of the superior endplate of the L5 13 vertebral body” and “facet arhropathy at L4-5 and L5-S1.” 14 However, the paraspinous soft tissues are normal. (Id.). The x-ray results Plaintiff also suffered (Id.). (Id.). 15 16 Mr. Lancaster, who appears to be a physician’s assistant, 17 completed a physical ability form on April 29, 2014. (AR 312-18). 18 Mr. Lancaster opined that Plaintiff can lift and carry up to 10 19 pounds continuously and 11-20 pounds occasionally. 20 Lancaster further opined that without interruption, Plaintiff can 21 sit for 2 hours, stand for 1 hour and walk for 45 minutes. 22 313). 23 sit for a total of 4 hours, stand for a total of 2 hours, and walk 24 for a total of 2 hours. 25 Plaintiff is medically required to use a cane and he can walk only 26 50 yards without a cane. 27 activities, Mr. Lancaster opines that Plaintiff can never climb 28 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. 3 cannot walk a block on rough or uneven surfaces. 4 Lancaster based his opinion for each of the determinations above 5 on the same few medical and clinical findings: “L-spine tenderness, 6 unsteady gait, pain in low back . . . L2-S1 spondylosis. 7 of unable to lift >20 pounds, reach overhead, reach/push/pull, and 8 has difficulty [with] balance.” 9 the medical and clinical findings in Section I and citing “As in 10 (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). 11 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 15 extreme heat, dust, odors, fumes, and pulmonary irritants. 16 316). 17 “[h]as COPD – cannot tolerate inhaled irritants.” (AR Mr. Lancaster based his opinion on the reason that Plaintiff (Id.). 18 19 Plaintiff had another x-ray performed on May 1, 2014 at Desert 20 Advanced Imaging Palm Springs. 21 (AR 320). The x-ray results presented the following: 22 23 Lumbar alignment is within normal limits. There is 24 moderate multilevel degenerative disease normal lumber 25 levels L1 through L5 with disc space narrowing and 26 marginal spur formation. 27 deformity compression and L2-L4 and L5 may be the result 28 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 16 normal range of motion). However, the examiner noted that Plaintiff had back pain 17 18 B. Medical Opinion Of Consultative Examiner 19 20 At the request of the Agency, consultative examiner Vicente 21 Bernabe, D.O., performed a complete orthopedic consultation of 22 Plaintiff on November 13, 2013. 23 of lower back pain and reported that the pain began developing in 24 May 2011. 25 pain in his back, which is exacerbated by prolonged standing, 26 walking, bending, and lifting, causing occasional numbness and 27 tingling in his legs. 28 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. 19 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.). 8 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

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