Steve W. Metzer v. Carolyn W. Colvin

Filing 23

MEMORANDUM OPINION AND ORDER by Magistrate Judge Ralph Zarefsky. (ib)

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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

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STEVE W. METZGER,
Plaintiff,

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vs.
CAROLYN W. COLVIN, Acting
Commissioner of Social Security,
Defendant.

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CASE NO. SA CV 14-01360 RZ
MEMORANDUM OPINION
AND ORDER

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Plaintiff Steve W. Metzger seeks review of the Commissioner’s decision

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denying his application for disability benefits. Plaintiff and Defendant each have filed

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memoranda in support of their pleadings. The Court determines that a reply is not

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necessary to a full understanding of the issues, and therefore issues its decision now.

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Plaintiff claimed an onset date of September 21, 2008, and testified that his

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condition was greatly improved following his neck surgery in June 2011. [AR 98] His

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attorney noted this improvement during the hearing as well [AR 93] and, in this Court,

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addresses the claimed errors only as they pertain to the findings before December 2011, the

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point at which Plaintiff says his headaches resolved and his cervical fusion became solid.

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(Plaintiff’s Memorandum in Support of Complaint 8:26-9:4.) The medical expert gave his

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opinion of Plaintiff’s capacity prior to the surgery [AR 96]. Thus, the focus of this case is

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whether Plaintiff was entitled to benefits beginning on the onset date and ending sometime

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withing six months after the June 2011surgery. The errors Plaintiff asserts in this Court

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thus are viewed in that context.

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Plaintiff asserts two errors: that the Administrative Law Judge wrongly

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discredited Plaintiff’s treating physician, and that he wrongly discredited Plaintiff himself.

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The Court addresses those in turn.

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The Administrative Law Judge found that Plaintiff had the following residual
functional capacity:

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[O]ccasionally lift and/or carry 20 pounds; frequently lift and/or

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carry 10 pounds; stand and/or walk (with normal breaks) for 2

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hours in an 8-hour workday; sit (with normal breaks) unlimited;

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occasionally perform all posturals, except never climb ladders,

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ropes, or scaffolds; avoid extremes of neck motion, maintaining

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a fixed head position 15 to 30 minutes at a time and keeping it

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at a comfortable position otherwise; and limited to simple tasks

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with simple work related decisions.

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[AR 22] Plaintiff finds fault with that portion of this finding that concerns his ability to

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stand and sit. Dr. Kwok, one of Plaintiff’s treating physicians, completed a physical

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capacities evaluation, in which he checked boxes indicating that Plaintiff was limited in an

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eight hour work day to sitting a total of one hour, standing a total of one hour and walking

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a total of one hour. [AR 372] The Administrative Law Judge rejected this opinion. The

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Administrative Law Judge was justified in his rejection.

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As Plaintiff notes, the Administrative Law Judge stated that Dr. Kwok’s

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opinion was not consistent with the record as a whole [AR 27], but Plaintiff omits the

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following portion of that statement “e.g., unremarkable physical examinations and mild

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MRI/xray findings as discussed above.” [Id.] Thus, the Administrative Law Judge did not

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simply reference the record in general terms; he referenced the specific portions that he had

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discussed concerning examinations and imaging that had been performed:

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He noted Xrays in 2009 showing, among other things, degenerative disc disease and

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spondylosis most severe at C5-6 and C6-7; and a normal CT scan of the head at the

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same time. [AR 23]

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He noted a physical examination in February 2010 which contained largely

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unremarkable findings, except for diagnoses of degenerative disc disease of the

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cervical and lumbar spine.

[AR 24]

Among the observations during that

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examination were that Plaintiff had mild difficulty in getting on and off the

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examining table and changing positions; that he walked with a normal gait; that there

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was no tenderness in the cervical and lumbar spine; and that there were no

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neurological deficits.

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He noted a May 2010 physical examination that showed muscle spasm in the

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cervical spine and mild pain with motion. There was no sensory loss and no motor

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weakness. [AR 24]

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injections. [AR 25]

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He noted an emergency room visit in October 2010 for headaches, in which Plaintiff
denied nausea or vomiting, and obtained relief with Dilaudid.

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He noted an MRI in December 2009, and the mild-moderate reaction to epidural

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He noted a December 2010 physical examination in which Plaintiff appeared to be

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in “moderate distress” secondary to his headache, but had no neurological deficits;

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again he obtained relief with Dilaudid. [AR 25]

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He noted a February 2011 visit where Plaintiff said that his headaches were best

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when he was lying on a bed, but where the examination showed that Plaintiff had no

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weakness or numbness of his extremities, and a CT myelogram showed no evidence

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of cerebro spinal fluid leakage. [AR 25]; and

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He noted a June 2011 examination in which Plaintiff’s neck was soft and supple
with good range of motion, and no cervical tenderness. [AR 25]

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Plaintiff also discusses the record, and discusses parts that he says support

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Dr. Kwok’s opinion. But none of them indicates any opinion by Dr. Kwok that Plaintiff

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can sit or stand for such a limited time as Dr. Kwok indicated on the physical capacities

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evaluation form. And none of them belies the Administrative Law Judge’s conclusion that

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the record as a whole shows “unremarkable physical examinations and mild MRI/xray

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findings” [AR 27] insofar as those bear on the question of Plaintiff’s ability to sit or stand.

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There is a second reason that the Administrative Law Judge was justified in

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rejecting Dr. Kwok’s opinion, as stated in the physical capacities questionnaire, that

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Plaintiff could sit and stand no more than one hour: it wasn’t Dr. Kwok’s opinion.

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Dr. Kwok wrote right on the form that these limitations were “per patient report.” [AR

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372] Thus, the correct evaluation of these limitations depends upon an evaluation of

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Plaintiff’s credibility. As noted, the Administrative Law Judge found Plaintiff not fully

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credible. [AR 26] Thus, whether the Administrative Law Judge’s decision on credibility

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can be upheld forms the more appropriate inquiry on this point.

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The Administrative Law Judge found Plaintiff “less than fully credible.” [AR

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26] As a starting point, therefore, the Administrative Law Judge did not find that nothing

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Plaintiff said was believable. But he clearly did not believe the assertion that Plaintiff’s

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impairments were debilitating and, by finding that Plaintiff could stand or walk for two

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hours in an eight hour day, and sit for an unlimited amount of time [AR 22], clearly

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rejected the assertion that Plaintiff could do so only for an hour a day, or had to constantly

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lie down during the day.

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Evidence cited by the Administrative Law Judge did support his conclusion.

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A person who could mop, drive, cook and perform household chores [AR 26] would not

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have to lie down all day, and would be able to be on his feet more, or sit more, than

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Plaintiff asserted. It was not necessary that the Administrative Law Judge calibrate the
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time, but rather that he identify some information that made Plaintiff’s statements of his

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limitations less believable. Molina v. Astrue, 674 F.3d 1104, 1113 (9th Cir. 2012). This

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he did. Perhaps the evidence could be susceptible to other interpretations; but it was

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reasonably susceptible to the interpretation by the Administrative Law Judge, and that is

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sufficient. Rollins v. Massanari, 261 F.3d 853, 857 (9th Cir. 2001); Burch v. Barnhart,

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400 F.3d 676, 694 (9th Cir. 2009).

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The Court also notes that the residual functional capacity found by the

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Administrative Law Judge, which contained the greater capacity than Plaintiff testified he

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retained, was supported by additional opinion evidence referred to by the Administrative

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Law Judge, and thus also bolstered his determination that Plaintiff was not fully credible.

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The medical expert Dr. Landau found that Plaintiff retained a greater capacity than Plaintiff

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asserted. [AR 94] Plaintiff attempts to shoehorn Dr. Landau’s opinion into the line of

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cases typified by Orn v. Astrue, 495 F.3d 625 (9th Cir. 2007), to the effect that the opinion

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of a non-examining physician who relies on the same data as the treating physician, but

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whose opinion differs, cannot by itself constitute substantial evidence in support of the

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decision. That line of cases does not apply here, however. Dr. Landau surveyed a more

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extensive record than the treating physician did, and his opinion also can impeach

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Plaintiff’s credibility. Moreover, Dr. Landau was not the only physician who gave an

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opinion at odds with Plaintiff’s views of his own limitations. So too did the State agency

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physician [AR 354] and the examining consultant. [AR 340] These medical opinions —

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not alone, but together with the other information identified by the Administrative Law

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Judge — also gave backing to the Administrative Law Judge’s conclusion that Plaintiff was

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not entirely credible. See Stubbs-Danielson v. Astrue, 539 F.3d 1169, 1175 (9th Cir. 2008).

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In short, the Court finds neither of Plaintiff’s arguments persuasive. In
accordance with the foregoing, the decision of the Commissioner is affirmed.
IT IS SO ORDERED.

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DATED: April 16, 2015

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RALPH ZAREFSKY
UNITED STATES MAGISTRATE JUDGE

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