Melody Soyka v. Commissioner of Social Security Administration

Filing 22

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)

1
2
3
4
5
6
7
8

UNITED STATES DISTRICT COURT

9

CENTRAL DISTRICT OF CALIFORNIA

10
11

MELODY SOYKA,

12

Case No. SACV 16-00864 SS
Plaintiff,

13

v.

14

MEMORANDUM DECISION AND ORDER

NANCY BERRYHILL,1
Acting Commissioner of the
Social Security Administration,

15
16

Defendant.

17
18
19
20
I.

21

INTRODUCTION

22
23
24
25

Melody Soyka (“Plaintiff”) brings this action seeking to
overturn the decision of the Commissioner of the Social Security
Administration

(the

“Commissioner”

or

“Agency”)

denying

her

26
27
28

Nancy A. Berryhill is now the Acting Commissioner of Social
Security and is substituted for Acting Commissioner Carolyn W.
Colvin in this case. See 42 U.S.C. § 205(g).
1

1

application for Disability Insurance Benefits (“DIB”).

2

2016, Plaintiff filed a complaint (the “Complaint”) commencing the

3

instant action.

4

the Complaint (the “Answer”) along with the Administrative Record

5

(“AR”).

6

support of the Complaint (“Pl. MSO”).

7

Defendant filed a memorandum in support of the Answer (“Def. MSO”).

8

On January 31, 2017, Plaintiff filed a reply (the “Reply”).

The

9

parties

the

On May 10,

On October 4, 2016, Defendant filed an Answer to

On November 8, 2016, Plaintiff filed a memorandum in

consented,

pursuant

to

28

On January 17, 2017,

U.S.C.

§

636(c),

to

10

jurisdiction of the undersigned United States Magistrate Judge.

11

(Dkt. Nos. 7, 12).

12

the Commissioner’s decision.

For the reasons stated below, the Court AFFIRMS

13
14

II.

15

PROCEDURAL HISTORY

16
17
18
19
20
21
22
23
24
25
26
27

Plaintiff filed an application for DIB on September 5, 2013.
(AR 118-121).
6, 2012.

Plaintiff alleged a disability onset date of August

(AR 118).

December 30, 2013.

The Agency denied Plaintiff’s application on
(AR 60-62).

On January 29, 2014, Plaintiff

requested a hearing before an Administrative Law Judge (“ALJ”).
(AR 63-64).

On September 12, 2014, ALJ Joan Ho conducted a hearing

to review Plaintiff’s claim.

(AR 24-48).

by Troy Monge, testified before the ALJ.

Plaintiff, represented
(AR 30-43).

At the

hearing, Plaintiff requested to amend her alleged disability onset
date to July 16, 2013.

(AR 29).

Vocational expert (“VE”) Susan

Allison also testified at the hearing.

28
2

(AR 44-47).

On November

1

12, 2014, ALJ Ho found that Plaintiff was not disabled under the

2

Social Security Act.

3

ALJ’s decision before the Appeals Council on January 7, 2015.

(AR

4

7-8).

On March 25, 2016, the Appeals Council denied review.

(AR

5

1-3).

As such, the ALJ’s decision became the final decision of

6

the Commissioner.

7

on May 10, 2016.

(AR 9-20).

(AR 1).

Plaintiff sought review of the

Plaintiff commenced the instant action

(Dkt. No. 1).

8
9

III.

10

FACTUAL BACKGROUND

11
12

Plaintiff was born on March 10, 1958.

(AR 118).

She was 55

13

years old as of the alleged disability onset date of July 16, 2013.

14

She was 56 years old when she appeared before the ALJ.

15

Plaintiff completed the twelfth grade and received a high school

16

diploma.

17

disability onset date, Plaintiff worked as a nanny.

18

Prior to that, Plaintiff worked as a file clerk, preschool teacher,

19

and cashier.

(AR 31, 202).

(AR 30).

For fifteen years prior to her alleged
(AR 134, 139).

(AR 202).

20
21

In

the

Disability

Report,

Plaintiff

alleged

that

back

22

problems,

peripheral

neuropathy,

23

ulcerative

colitis,

learning

24

“knees, stomach, etc.” limit her ability to work.

25

According to medical records, Plaintiff has chronic low back pain

26

that worsened in September of 2012 when a vehicle that was backing

27

up struck her car.

a

(AR 215).

28
3

chondromalacia

disability,

patellae,

osteoporosis,

and

(AR 132).

1

At the hearing, Plaintiff testified that she no longer has

2

problems

3

“scoliosis, arthritis … osteoporosis sponlykiosis [phonetic] …

4

[and] neuritis.”

with

ulcerative

colitis

(AR

36),

but

that

she

has

(AR 35).

5
6

A. Plaintiff’s Testimony

7
8

Plaintiff testified that she stopped working on August 6, 2012

9

because she “fractured [the] 5th metatarsal in [her] left foot.”

10

(AR 32).

11

was subsequently let go for not coming back to work at a particular

12

time.

13

Worker’s Compensation for her medical bills.

14

testified that she was on unemployment from October 12, 2012 until

15

December 2013. (Id.).

She was out on disability from August until October and

(Id.).

She testified that, after this injury, she received
(Id.).

She also

16
17

Plaintiff testified that her physician restricted her to

18

standing and walking twenty-five percent of the time and sitting

19

only a certain percentage of the time. (AR 33).

20

she looked for work adhering to these restrictions but was unable

21

to find anything.

22

she looked for office work and nanny jobs.

23

had she received an office job allowing her to work within the

24

guidelines of her restrictions, she would have been able to do it.

25

(AR 33).

(AR 32).

She testified that

Specifically, Plaintiff testified that
She testified that,

26
27

Plaintiff testified that she has been unable to work since

28

July 16, 2013 because her back has gotten increasingly worse and
4

1

she feels that “no employer will hire [her]” with her postural

2

restrictions.

3

bad” and that every day she has to “lie in bed because the pain is

4

so great.”

5

located in her lower back, below the belt line, and that doctors

6

gave her pain medications and back exercises to decrease her pain.

7

(Id.).

8

these back exercises in her bed for 30 minutes a day, seven days a

9

week.

(AR 32).

(AR 34).

She stated that her back pain is “really

Plaintiff further testified that the pain is

Plaintiff testified that, in February of 2013, she did

(AR 41-42).

Plaintiff testified that doctors have not

10

recommended

11

therapy (AR 38) and that doctors told her that there is nothing

12

they can do for her condition.

13

one doctor recommended an epidural injection a long time ago, there

14

was no guarantee that it would help.

any

treatment

aside

from

medication

(AR 35).

and

physical

She stated that while

(AR 39).

15
16

Plaintiff testified that she also has neuritis, meaning that

17

she does not have enough padding in her feet and is “stepping on

18

[her] nerves all the time, and [her] feet are in pain 24/7.”

19

35).

20

rate her pain an 8.

21

consists of Evista for osteoporosis, Tylenol, Codeine, and another

22

medication that she could not recall the name of, Plaintiff would

23

rate her pain a 7.

24

of the hearing, she did not have problems with ulcerative colitis

25

(AR 36), though it was alleged in the Disability Report.

26

stated that her knees pop if she repetitively kneels, bends, and

27

stoops, but that she stays in the guidelines of what she is not

28

supposed to do and has been doing well.

(AR

Plaintiff testified that, on a scale from 1 to 10, she would
(AR 38).

(AR 38)

When she takes her medication, which

Plaintiff testified that, at the time

5

(AR 42-43).

She also

1

Plaintiff testified that she does household chores, including

2

loading the dishes as she eats her meals and the laundry when

3

necessary.

4

without limits. (AR 31).

5

hurts her back (AR 43) and she cannot lift two gallons of milk.

6

(AR 35).

(AR 43).

She testified that she drives every day
However, she does not vacuum because it

7
8

B. Treating Physicians

9
1. Diane A. Song, M.D.

10
11

On March 29, 2013, Plaintiff visited her treating physician,

12
13
14
15
16
17
18

Dr. Diane A. Song, M.D., to follow-up on back pain.

(AR 463).

Pursuant to this visit, Dr. Song completed a progress note, wherein
she stated that Plaintiff “completed a course of physical therapy
and

was

also

evaluated

by

physical

medicine

restrictions.”

(AR 463).

Under “Assessment/Plan”, Dr. Song wrote

“Low back pain: Ok to return to work as a nanny.”

and

given

work

(Id.).

19
20
21
22
23
24
25
26
27

On July 16, 2013, Dr. Song completed a “Work Status Report”,
diagnosing Plaintiff with “strain of back”, stating that she “is
placed on permanent modified work/activity restrictions” including
that she could sit and stand “[o]ccasionally (up to 25% of shift)”
and could lift/carry/push/pull no more than 10 pounds.

(AR 214).

On August 2, 2013, Dr. Song completed another “Work Status Report”,
diagnosing

Plaintiff

with

“osteoporosis,

spondylosis

cervical

joint wo myelopathy, chronic neck pain, strain of lumbar region”

28
6

1

and opining the same restrictions to Plaintiff’s activities.

2

213).

(AR

3
4

2. Alberto Ezroj, M.D.

5
6

On August 6, 2013, Plaintiff’s treating family physician, Dr.

7

Alberto Ezroj, M.D., examined Plaintiff and noted that she had

8

normal range of motion of back without spasm or exacerbation of

9

pain, normal strength in her extremities, and did not exhibit any

10

musculoskeletal

11

Plaintiff’s

12

(Id.).

tenderness.

primary

encounter

(AR

514).

diagnosis

Dr.
as

Ezroj

“strain

listed

of

back.”

13
14

On

September

11,

2013,

Dr.

Ezroj

completed

a

“Medical

15

Assessment of Ability to do Work-Related Activities” form.

16

198).

17

up to 10 pounds, can only stand or walk for 30 minutes without

18

interruption, and can only stand/walk for two hours total in an

19

eight-hour workday. Dr. Ezroj commented that x-rays “revealing

20

Grade 2 spondylolisthesis and osteophytes throughout lumbar spine”

21

support these assessments.

(AR

Therein, Dr. Ezroj opined that Plaintiff can only lift/carry

(Id.).

22
23

3. Andrew Kahn, M.D.

24
25

On January 31, 2013, Plaintiff visited Dr. Andrew Kahn, M.D.,

26

for a physical medicine and rehabilitation outpatient consultation.

27

Notes from this visit indicate that Plaintiff walked without an

28

assistive device and moved easily from sit to stand and with
7

1

transfers to the exam table.

2

that Plaintiff’s lumbar spine was nontender to palpation, with

3

tenderness only noted in the paraspinal muscles at L5 to S1. (Id.).

4

Plaintiff’s manual motor testing was normal, and her sensation was

5

intact to light touch throughout bilateral lower extremities.

6

(Id.).

7

with twisting of spine in extension.

8

range of motion of the hip, and a negative straight leg raising

9

test.

(AR 217).

Physician notes indicate

Plaintiff had normal range of spinal motion and no pain

(AR 218).

(Id.).

Plaintiff had normal

Under “Plan,” Dr. Kahn’s notes state that

10

Plaintiff “was informed of the spectrum of treatment options, from

11

conservative monitoring, physical therapy/therapies, medications,

12

interventions/injections or surgical evaluation/treatment.”

13

218).

(AR

14
15

C. Reviewing Physician, Dr. James Wellons, M.D.

16
17

On November 15, 2013, State Agency reviewing physician, Dr.

18

James Wellons, M.D., reviewed Plaintiff’s medical records and

19

provided a medical assessment.

20

Plaintiff’s “MDIs include: Spondylolisthesis of the LS” and stated

21

that these “MDI’s cannot reasonably be expected to produce the

22

alleged pain and symptoms.”

23

“[t]here

24

limiting Plaintiff to standing or walking two hours during the

25

workday and lifting or carrying no more than ten pounds.

26

He elaborated that the “tx Orthopedist notes [these limitations]

27

and notes he does not endorse” them.

(Id.).

Dr. Wellons also

28

found

normal

except

is

that

no

“XRs

PE

that

of

(AR 54-55).

(AR 55).

describes

both

knees
8

Dr. Wellons noted that

He further noted that

abnormalities

are

that

support”

(Id.).

for

mild

1

osteopenia.”

2

did

3

diagnosable

knee

4

impairment.

(Id.).

not

(Id.).

have

any

Ultimately, Dr. Wellons found that Plaintiff
severe

condition

physical

impairment

and

had

only

a

or

medically

non-severe

spinal

5
6

D. Vocational Expert Testimony

7
8
9

Vocational

Expert

(“VE”)

Susan

Plaintiff’s hearing before the ALJ.

Allison

testified

(AR 44-47).

at

The ALJ asked

10

the VE to consider a series of factors in creating two hypotheticals

11

for determining Plaintiff’s ability to work.

12

ALJ’s

13

postural limitations who could perform light work, as defined in

14

the Dictionary of Occupational Titles2.

15

that an individual with the described hypothetical limitations

16

could perform Plaintiff’s previous work as a nanny as she performed

17

it, but not as the DOT describes it.

first

hypothetical

included

an

(AR 45-46).

individual

(AR 45).

with

The

certain

The VE testified

(Id.).

18
19
20
21
22
23
24
25
26
27
28

“Light work. Light work involves lifting no more than 20 pounds
at a time with frequent lifting or carrying of objects weighing up
to 10 pounds. Even though the weight lifted may be very little, a
job is in this category when it requires a good deal of walking or
standing, or when it involves sitting most of the time with some
pushing and pulling of arm or leg controls. To be considered capable
of performing a full or wide range of light work, you must have
the ability to do substantially all of these activities. If someone
can do light work, we determine that he or she can also do sedentary
work, unless there are additional limiting factors such as loss of
fine dexterity or inability to sit for long periods of time.”
20 C.F.R. § 404.1567 (b).
2

9

1

The ALJ’s second hypothetical included all the limitations

2

described in the first hypothetical, however the individual could

3

only perform work at a sedentary level3 and had additional postural

4

restrictions.

5

these hypothetical limitations could neither perform Plaintiff’s

6

previous work as a nanny as she performed it nor as it is generally

7

performed in the national economy.

(Id.).

The VE testified that an individual with

(AR 45-46).

8
9

E. Third Party Adult Function Report

10
11

On

October

27,

2013,

Plaintiff’s

father,

Robert

Soyka,

12

completed

13

behalf.

14

a mobile home with Plaintiff and that they talk, watch TV, and go

15

to dinner together. (AR 145).

16

light chores (AR 146), can only lift fifteen lbs. (AR 147), goes

17

on short walks, drives a car, and goes out alone.

18

also indicated that Plaintiff is able to pay bills, count change,

19

handle a savings account, and use a checkbook/money orders.

20

15).

21

and to concerts with friends and her mother.

22

prompted

a

Third

Party

(AR 145-154).

Adult

Function

Report

on

Plaintiff’s

Plaintiff’s father stated that he lives in

He noted that Plaintiff helps with

(AR 149).

He

(AR

Plaintiff’s father stated that Plaintiff goes to the movies

to

describe

any

changes

in

social

(AR 151).

When

activities

since

23
“Sedentary work involves lifting no more than 10 pounds at a
time and occasionally lifting or carrying articles like docket
files, ledgers, and small tools. Although a sedentary job is
defined as one which involves sitting, a certain amount of walking
and standing is often necessary in carrying out job duties. Jobs
are sedentary if walking and standing are required occasionally
and other sedentary criteria are met.”
20 C.F.R. § 404.1567
(a).
3

24
25
26
27
28

10

1

Plaintiff’s conditions began, Plaintiff’s father noted that she

2

“[n]ever did go out much.”

3

injury affects her ability to lift, climb stairs, bend, stand,

4

kneel, walk, and sit.

5

walk 50 yards before needing to stop and rest. (AR 152).

(AR 151).

(AR 151).

He noted that Plaintiff’s

He elaborated that Plaintiff can

6
7

F. Adult Function Report

8
9

On October 30, 2013, Plaintiff completed an Adult Function

10

Report (AR 157-164), wherein she stated that she is in pain “24/7”

11

with her back (AR 157).

12

her mother, who is very ill. (AR 158).

13

problems with personal care (Id.), prepares meals daily (AR 159),

14

and that she scrapbooks and plays guitar every once in a while (AR

15

161).

16

eat with others or go to their home to watch TV or to visit and

17

talk.

18

time” and that she has no problems getting along with family,

19

friends, neighbors, or others.

20

drives and is able to pay bills, count change, handle a savings

21

account, and use a checkbook/money orders.

22

that she can walk for thirty minutes before needing to stop and

23

rest, except that she pushes herself to walk longer when she goes

24

grocery shopping.

She stated that she helps take care of
She noted that she has no

She stated that once a month, if that, she may go out to

(AR 161).

She stated that she can pay attention for “a long

(AR 162).

(AR 162).

25
26
27
28
11

She stated that she

(AR 160).

She noted

1

IV.

2

THE FIVE STEP SEQUENTIAL EVALUATION PROCESS

3
4

To

qualify

for

disability

benefits,

a

claimant

must

5

demonstrate a medically determinable physical or mental impairment

6

that prevents him from engaging in substantial gainful activity4

7

and that is expected to result in death or to last for a continuous

8

period of at least twelve months.

9

721

(9th

Cir.

1998)

(citing

42

Reddick v. Chater, 157 F.3d 715,
U.S.C.

§ 423(d)(1)(A)).

The

10

impairment must render the claimant incapable of performing the

11

work he previously performed and incapable of performing any other

12

substantial gainful employment that exists in the national economy.

13

Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999) (citing 42

14

U.S.C. § 423(d)(2)(A)).

15
16

To decide if a claimant is entitled to benefits, an ALJ

17

conducts a five-step inquiry.

18

steps are:

20 C.F.R. §§ 404.1520, 416.920.

The

19
20

(1)

Is the claimant presently engaged in substantial

21

gainful activity?

22

not disabled.

If so, the claimant is found

If not, proceed to step two.

23
24
25
26
27
28

Substantial gainful activity means work that involves doing
significant and productive physical or mental duties and is done
for pay or profit. 20 C.F.R. §§ 404.1520, 416.910.
4

12

1

(2) Is the claimant’s impairment severe?

2

claimant is found not disabled.

3

step three.

If not, the

If so, proceed to

4
5

(3) Does the claimant’s impairment meet or equal one

6

on the list of specific impairments described in

7

20 C.F.R. Part 404, Subpart P, Appendix 1?

8

the claimant is found disabled.

9

to step four.

If so,

If not, proceed

10
11

(4) Is the claimant capable of performing his past

12

work?

13

If not, proceed to step five.

If so, the claimant is found not disabled.

14
15

(5) Is the claimant able to do any other work?

16

the

17

If not,

claimant is found not disabled.

claimant

is

found

disabled.

If

so,

the

18
19
20
21
22

Tackett, 180 F.3d at 1098-99; see also Bustamante v. Massanari,
262 F.3d 949, 953-54 (9th Cir. 2001) (citing Tackett); 20 C.F.R.
§§ 404.1520(b)-404.1520(f)(1) & 416.920(b)-416.920(f)(1).

23
The claimant has the burden of proof at steps one through four

24
25
26
27
28

and

the

Commissioner

has

the

burden

Bustamante, 262 F.3d at 953-54.

of

proof

at

step

five.

If, at step four, the claimant

meets his burden of establishing an inability to perform past work,
the Commissioner must show that the claimant can perform some other
13

1

work that exists in “significant numbers” in the national economy,

2

taking into account the claimant’s residual functional capacity

3

(“RFC”), age, education, and work experience.

4

at

5

404.1520(f)(1), 416.920(f)(1).

6

testimony of a vocational expert or by reference to the Medical-

7

Vocational Guidelines appearing in 20 C.F.R. Part 404, Subpart P,

8

Appendix 2 (commonly known as “the grids”).

9

240 F.3d 1157, 1162 (9th Cir. 2001) (citing Tackett). When a

10

claimant has both exertional (strength-related) and nonexertional

11

limitations, the Grids are inapplicable and the ALJ must take the

12

testimony of a vocational expert.

13

869 (9th Cir. 2000).

1098,

1100;

Reddick,

157

F.3d

at

Tackett, 180 F.3d

721;

20

C.F.R.

§§

The Commissioner may do so by the

Osenbrock v. Apfel,

Moore v. Apfel, 216 F.3d 864,

14
15

V.

16

THE ALJ’S DECISION

17
18
19
20
21
22
23
24
25
26
27

On November 12, 2014, after employing the five-step sequential
evaluation

process,

the

ALJ

issued

a

decision

finding

that

Plaintiff is not disabled within the meaning of the Social Security
Act.

(AR 20).

At step one, the ALJ observed that Plaintiff had

not engaged in substantial gainful activity since July 16, 2013,
the alleged disability onset date.

(AR 14).

At step two, the ALJ

found that Plaintiff’s severe impairments were spondylolisthesis,
lumbosacral spondylosis, and lumbar strain.
the

ALJ

found

that

Plaintiff

did

not

(Id.).

have

an

At step three,
impairment

or

combination of impairments that meets or medically equals the

28
14

1

severity of one of the listed impairments in 20 CFR Part 404,

2

Subpart P, Appendix 1 (20 C.F.R. §§ 404.1520(d), 404.1525 and

3

404.1526).

4

following RFC:

(AR 15).

The ALJ then found that Plaintiff had the

5
6

[C]laimant

7

perform light work as defined in 20 CFR 404.1567(b)

8

including

9

occasionally,

has

the

lifting
10

residual

and/or
pounds

functional

capacity

carrying

frequently,

20
and

to

pounds
sitting,

10

standing, and walking each for 6 hours in an[] 8-hour

11

workday.

12

occasionally bend, stoop, kneel, crouch, crawl, and climb

13

ramps, stairs, ladders, ropes, and/or scaffolds.

As

for

exceptions,

the

claimant

can

only

14
15

(AR 15-16).

16
17

At step four, the ALJ determined that Plaintiff is “capable

18

of performing past relevant work as a nanny.

19

require the performance of work-related activities precluded by

20

the [plaintiff’s] residual functional capacity.”

This work does not

(AR 19).

21
22

VI.

23

STANDARD OF REVIEW

24
25

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

26

Commissioner’s decision to deny benefits.

27

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

28

legal error or are not supported by substantial evidence in the
15

“The court may set aside

1

record as a whole.”

2

(9th Cir. 2001) (citing Tackett, 180 F. 3d at 1097); Smolen v.

3

Chater, 80 F.3d 1273, 1279 (9th Cir. 1996) (citing Fair v. Bowen,

4

885 F.2d 597, 601 (9th Cir. 1989)).

Auckland v. Massanari, 257 F.3d 1033, 1035

5
6

“Substantial evidence is more than a scintilla, but less than

7

a preponderance.”

8

Chater, 112 F.3d 1064, 1066 (9th Cir. 1997)).

9

evidence which a reasonable person might accept as adequate to

Reddick, 157 F.3d at 720 (citing Jamerson v.
It is “relevant

10

support a conclusion.”

11

Smolen, 80 F.3d at 1279). To determine whether substantial evidence

12

supports a finding, the court must “‘consider the record as a

13

whole, weighing both evidence that supports and evidence that

14

detracts from the [Commissioner’s] conclusion.’”

15

F.3d at 1035 (quoting Penny v. Sullivan, 2 F.3d 953, 956 (9th Cir.

16

1993)).

17

or reversing that conclusion, the court may not substitute its

18

judgment for that of the Commissioner. Reddick, 157 F.3d at 720-21

19

(citing Flaten v. Sec’y of Health & Human Servs., 44 F.3d 1453,

20

1457 (9th Cir. 1995)).

Id. (citing Jamerson, 112 F.3d at 1066;

Auckland, 257

If the evidence can reasonably support either affirming

21
22

VII.

23

DISCUSSION

24
25

Plaintiff

challenges

the

ALJ’s

decision

on

two

grounds.

26

First, Plaintiff contends that the ALJ committed legal error in

27

not adequately assessing her testimony regarding her pain and

28

limitations.

(Pl. MSO at 2).

Second, Plaintiff contends that the
16

1

ALJ

2

treating physician, Dr. Alberto Ezroj.

failed

to

properly

consider

the

opinions

of

Plaintiff’s

(Id. at 8).

3
4

The Court disagrees.

The record demonstrates that the ALJ

5

conducted a thorough and proper analysis of Plaintiff’s testimony

6

and gave proper weight to Dr. Ezroj’s opinions.

7

the

8

decision must be AFFIRMED.

reasons

discussed

below,

the

Court

finds

Accordingly, for
that

the

ALJ’s

9
10
11

A.

The ALJ Provided Specific, Clear, And Convincing Reasons To
Reject Plaintiff’s Testimony

12
13

Plaintiff argues that the ALJ committed legal error in not

14

adequately assessing Plaintiff’s testimony regarding her pain and

15

limitations.

16

that the ALJ failed to provide clear and convincing reasons for

17

rejecting

18

disagrees and finds that the ALJ properly rejected Plaintiff’s

19

testimony.

(Pl. MSO at 2).

Plaintiff’s

Specifically, Plaintiff contends

allegations.

(Id.

at

3).

The

Court

20
21

When assessing a claimant’s credibility regarding subjective

22

pain or intensity of symptoms, the ALJ must engage in a two-step

23

analysis.

24

Initially, the ALJ must determine if there is medical evidence of

25

an impairment that could reasonably produce the symptoms alleged.

26

Id. (citation omitted).

27

evidence of malingering, the ALJ must provide specific, clear and

28

convincing reasons for rejecting the claimant’s testimony about

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

If such evidence exists, and there is no

17

1

the symptom severity.

2

ALJ may consider the following:

Id. (citation omitted).

In so doing, the

3
4

[One,]

5

evaluation, such as the claimant’s reputation for lying,

6

prior inconsistent statements concerning the symptoms,

7

and other testimony by the claimant that appears less

8

than candid; [two,] [the] unexplained or inadequately

9

explained failure to seek treatment or to follow a

[the]

ordinary

techniques

10

prescribed

11

of

credibility

claimant’s daily activities.

course

of

treatment;

and

[three,]

the

12
13

Smolen, 80 F.3d at 1284 (brackets added); Tommasetti v. Astrue,

14

533 F.3d 1035, 1039 (9th Cir. 2008).

15
16

Further, the ALJ must make a credibility determination with

17

findings that are “sufficiently specific to permit the court to

18

conclude that the ALJ did not arbitrarily discredit [plaintiff’s]

19

testimony.”

20

Although an ALJ’s interpretation of a claimant’s testimony may not

21

be the only reasonable one, if it is supported by substantial

22

evidence, “it is not [the court’s] role to second-guess it.”

23

Rollins v. Massanari, 261 F.3d 853, 857 (9th Cir. 2001) (citing

24

Fair, 885 F.2d at 604).

Tommasetti, 533 F.3d at 1039 (citation omitted).

25
26

The

ALJ

considered

evidence

in

most

of

the

categories

27

enumerated above when determining that Plaintiff’s symptoms are

28

not as severe as alleged.

First, objective evidence contradicted
18

1

allegations in Plaintiff’s Disability Report and her testimony,

2

making

3

undermining her credibility.

4

knees were normal, suggesting that she has no significant knee

5

problems, despite Plaintiff listing “knees” in her Disability

6

Report.

7

of peripheral neuropathy in her feet (AR 17), despite Plaintiff’s

8

testimony that her feet are in pain 24/7.

9

contends that while the ALJ is correct in her assertions that there

10

is no evidence of peripheral neuropathy, significant knee problems,

11

ulcerative colitis or a learning disability, Plaintiff did not

12

testify that these conditions rendered her disabled and that,

13

“[s]ince they were not a basis of her testimony, the citations are

14

irrelevant.”

15

ALJ

16

Plaintiff’s

17

credible, whether or not she testified to total disability from

18

these symptoms.

these

to

allegations

(AR 17, 132).

appear

candid

and

thereby

Moreover, there is no objective evidence

objective

alleged

than

For example, x-rays of Plaintiff’s

(Pl. MSO at 3).

consider

less

(AR 35).

Plaintiff

However, it is appropriate for the
medical

symptoms

in

evidence

finding

her

that

contradicts

less

than

fully

19
20

The ALJ did note that an MRI taken on September 23, 2013

21

supports Plaintiff’s back allegations and acknowledged Plaintiff’s

22

diagnosis

23

lumbar strain.

24

physical

25

conservative treatment path for these conditions, indicating that

26

Plaintiff’s

27

Specifically, the ALJ noted, there have been no surgery referrals,

28

no recent recommendations for epidural injections, or any other

of

spondylolisthesis,
(AR 17).

therapy

and

condition

spondylosis,

and

However, the ALJ noted that other than

medication,

is

lumbosacral

not

as

19

doctors

severe

as

have

prescribed

alleged.

a

(Id.).

1

significant medical interventions.

2

considered evidence that Plaintiff has normal range of motion in

3

her back, without spasms or exacerbation of pain, and normal

4

strength in her extremities.

(Id.).

Moreover, the ALJ

(AR 17, 514).

5
6

Additionally, the ALJ noted that no specialists have treated

7

Plaintiff for her alleged conditions and, rather, only her family

8

primary care physicians have administered treatment.

9

Plaintiff argues that her physicians did not offer or recommend

(AR 17).

10

additional

11

treatment was offered or suggested, [her] testimony should not be

12

discounted for failure to obtain additional treatment.”

13

at 4).

14

in his credibility determination.”

15

676, 681 (9th Cir. 2005).

treatment

options

and

that

“[s]ince

no

additional

(Pl. MSO

However, an ALJ “is permitted to consider lack of treatment
Burch v. Barnhart, 400 F.3d

16
17

Moreover, as the ALJ also observed, Plaintiff’s activities of

18

daily living suggest that her conditions are not as severe as

19

alleged.

20

of handling personal care, preparing meals, washing dishes, doing

21

laundry, dusting, driving, shopping, handling finances, and playing

22

guitar.

23

Plaintiff is able to complete light household chores, which are

24

“skills that are substantially similar to many working tasks.”

25

(Id.).

26

activities,

27

Plaintiff’s father completed.

28

specifically

(AR 17).

(Id.).

The evidence reflects that Plaintiff is capable

These activities, the ALJ noted, indicate that

Plaintiff
the

ALJ

noted

argues

that,

mistakenly

that

when
cites

describing
only

(Pl. MSO at 6).

Plaintiff’s
20

father,

to

a

her
form

daily
that

However, the ALJ
who

lives

with

1

Plaintiff (AR 145), “alleged substantially [] the same limitations

2

as the claimant … However, he provided more detail.”

3

Moreover, Plaintiff admitted in her own Adult Function Report to

4

performing several of these activities, including laundry, driving,

5

and washing dishes.

6

handles her own finances, as well as shops and plays guitar. (AR

7

157-164).

(AR 43)

(AR 16).

Plaintiff also acknowledged that she

8
9

Plaintiff next argues that the “ALJ fails to show how these

10

sporadic activities are consistent with light work.”

11

7).

12

living in assessing credibility not only if the activities are

13

directly applicable to work, but also when they are inconsistent

14

with the claimant’s subjective allegations of disability.

15

Molina, 674 F.3d at 1112—13 (“While a claimant need not “vegetate

16

in a dark room” in order to be eligible for benefits, the ALJ may

17

discredit

18

participation in everyday activities indicating capacities that

19

are transferable to a work setting.

20

suggest

21

discrediting the claimant’s testimony to the extent that they

22

contradict

23

Valentine v. Astrue, 574 F.3d 685, 693 (9th Cir. 2009) (affirming

24

ALJ’s finding that claimant’s “non-work activities . . . are

25

inconsistent with the degree of impairment he alleges.”).

26

appropriately

27

living indicate that her conditions are not as severe as alleged,

28

thereby undermining her credibility.

(Pl. MSO at

However, an ALJ may rely on a claimant’s activities of daily

a

claimant’s

some

testimony

difficulty

claims

of

when

determined

totally

that

they

may

debilitating

Plaintiff’s

21

claimant

reports

Even where those activities

functioning,

a

the

See

be

grounds

for

impairment.”);

activities

The ALJ
of

daily

1

The ALJ also noted that one of Plaintiff’s primary care

2

physicians, Dr. Song, commented in March of 2013 that Plaintiff

3

could return to work as a nanny.

4

this is not relevant because Plaintiff is not alleging disability

5

until July 16, 2013.

6

stated that the “medical evidence does not reflect a significant

7

deterioration in the [plaintiff’s] lifting and carrying or sitting

8

and standing abilities between March 2013 and July 2013.”

(AR 18).

(Pl. MSO at 5).

Plaintiff argues that

However the ALJ specifically

(AR 18).

9
10

In sum, there are legally sufficient reasons for the ALJ to

11

have declined to credit Plaintiff’s subjective statements in their

12

entirety. For these reasons, the ALJ’s ultimate determination that

13

Plaintiff’s testimony was not credible is valid.

14
15
16

B.

The ALJ Provided Specific And Legitimate Reasons To Reject
Dr. Ezroj’s Opinion

17
18

Plaintiff

next

contends

that

the

ALJ

failed

to

properly

19

consider the opinions of Plaintiff’s treating physician, Dr. Ezroj.

20

(Pl. MSO at 8). The Court disagrees and finds that the ALJ provided

21

specific and legitimate reasons for rejecting Dr. Ezroj’s opinions.

22
23

Social Security regulations require the ALJ to consider all

24

relevant medical evidence when determining whether a claimant is

25

disabled.

26

Where the Agency finds that the treating physician’s opinion about

27

the nature and severity of the claimant’s impairments is well-

28

supported by accepted medical techniques and is not inconsistent

20 C.F.R. §§ 404.1520(e), 404.1527(c), 416.927(c).

22

1

with the other substantive evidence in the record, that opinion is

2

ordinarily

3

Astrue, 495 F.3d 625, 631 (9th Cir. 2007).

controlling.

20

C.F.R.

§

404.1527(c)(2);

Orn

v.

4
5

Nevertheless, the ALJ is also “responsible for determining

6

credibility, resolving conflicts in medical testimony, and for

7

resolving ambiguities.”

8

(9th Cir. 1995); see also Tommasetti, 533 F.3d at 1041 (“[T]he ALJ

9

is the final arbiter with respect to resolving ambiguities in the

Andrews v. Shalala, 53 F.3d 1035, 1039

10

medical evidence.”).

11

substantial evidence are conclusive.

12

Key v. Heckler, 754 F.2d 1545, 1549 (9th Cir. 1985) (“Where the

13

evidence as a whole can support either a grant or a denial, [the

14

court] may not substitute [its] judgment for the ALJ’s.”); Ryan v.

15

Comm’r of Soc. Sec., 528 F.3d 1194, 1198 (9th Cir. 2008) (“‘Where

16

evidence is susceptible to more than one rational interpretation,’

17

the ALJ’s decision should be upheld.”) (quoting Burch, 400 F.3d at

18

679).

19

record, but only evidence that is significant or probative.

20

Howard ex rel. Wolff v. Barnhart, 341 F.3d 1006, 1012 (9th Cir.

21

2006).

Findings of fact that are supported by
42 U.S.C. § 405(g); see also

An ALJ need not address every piece of evidence in the
See

22
23

Furthermore,

“[t]he

treating

physician’s

opinion

is

not,

24

however, necessarily conclusive as to either a physical condition

25

or the ultimate issue of disability.”

26

F.2d 747, 751 (9th Cir. 1989).

27

physician’s

28

sufficient medical data and whether it is consistent with other

opinion

depends

on

23

Magallanes v. Bowen, 881

The weight given a treating
whether

it

is

supported

by

1

evidence in the record.

2

disregard the treating physician’s opinion whether or not that

3

opinion

4

Magallanes, 881 F.2d at 751).

5

of Plaintiff's physician, the ALJ must present clear and convincing

6

reasons for doing so.

7

the treating physician’s opinion is contradicted by other doctors,

8

the Commissioner may reject the opinion by providing “specific and

9

legitimate reasons” for doing so that are supported by substantial

is

See 20 C.F.R. § 404.1527.

contradicted.”

10

evidence in the record.

11

Andrews,

53

F.3d

at

“The ALJ may

1041

(citing

To reject the uncontroverted opinion

Andrews, 53 F.3d at 1041.

Where, as here,

157 F.3d at 725).

Rollins, 261 F.3d at 856 (citing Reddick,

12
13

Here, the ALJ cited several specific and legitimate reasons

14

supported by the record for giving minimal weight to Dr. Ezroj’s

15

opinions.

16

provide for any postural movement limitations despite Plaintiff’s

17

severe spinal impairment.

18

limitations would be to accommodate pressure and rapid movement on

19

the spine.

20

Plaintiff was severely limited with regards to standing and walking

21

but not to provide restrictions on activities such as bending and

22

stooping.

First, the ALJ noted that Dr. Ezroj’s opinion does not

(AR 18).

(AR 18).

The ALJ indicated that such

Thus, it was inconsistent to find that

23
24

Second,

25

inconsistent

26

“[n]othing in the MRI … or other notes in the record support or

27

suggest why such extreme sitting and standing limitations are

28

necessary.”

the
with

ALJ

found

objective

(AR 18).

that

Dr.

medical

Ezroj’s

evidence,

opinion
stating

was
that

The ALJ was referring to a September 19,
24

1

2013

2

spondylolisthesis (AR 18, 207), rather than Grade 2, as reported

3

by Dr. Ezroj (AR 198).

4

opinions that lack support in the record.

5

Comm’r of Soc. Sec., 359 F.3d 1190, 1195 (9th Cir. 2004) (ALJ may

6

discredit treating physicians’ opinions that are conclusory, brief,

7

and unsupported by the record as a whole, or by objective medical

8

findings); Crane v. Shalala, 76 F.3d 251, 253 (9th Cir. 1996) (ALJ

9

properly rejected doctor’s opinion because opinion consisted of

MRI

of

Plaintiff’s

lumbar

spine

which

showed

Grade

1

An ALJ is free to disregard conclusory
See, e.g., Batson v.

10

conclusory and unexplained check-off reports).

11

objective medical evidence supported Dr. Ezroj’s findings supports

12

the ALJ’s determination.

The fact that no

13
14

The ALJ also noted that nothing in the treatment notes or

15

physical therapy notes supported such extreme limitations.

16

18).

17

treatment notes provides another valid basis upon which to reject

18

his opinions.

19

2003)

20

physician’s

21

statements because the treating physician’s “extensive conclusions

22

regarding [claimant’s] limitations [were] not supported by his own

23

treatment

24

(d)(2); see also Tommasetti, 533 F.3d at 1041 (finding that ALJ

25

properly discredited doctor’s opinion where doctor’s responses to

26

questionnaire were inconsistent with doctor’s own medical records).

27

Dr.

28

Plaintiff had a normal range of motion in her back without spasm

(AR

The fact that Dr. Ezroj’s conclusion conflicted with his own

See Connett v. Barnhart, 340 F.3d 871, 875 (9th Cir.

(holding

that

ALJ

in

favor

testimony

notes”);

Ezroj’s

the

see

treatment

properly
of

generally

notes

from

25

20

an

rejected
examining

C.F.R.

August

6,

§

a

treating

physician’s

404.1527(c)(2),

2013

state

that

1

or exacerbation of pain, normal strength in her extremities, and

2

did

3

Plaintiff’s primary diagnosis at that time was “strain of back.”

4

(Id.).

not

exhibit

any

musculoskeletal

tenderness.

(AR

514).

5
6

Plaintiff also argues that the ALJ’s rejection of State Agency

7

physician Dr. Wellons’ opinion demonstrates that “the ALJ failed

8

to properly reject the opinion of Dr. Ezroj because the ALJ is

9

relying on no medical opinion or evidence to the contrary, and she

10

is improperly interpreting the medical evidence as it concerns

11

[Plaintiff’s] spine impairment.”

12

that, while Dr. Wellons’ opinion that Plaintiff did not have a

13

medically diagnosable knee condition was accurate, his conclusions

14

that there was only a non-severe spinal impairment was inconsistent

15

with

16

demonstrating a severe impairment.

17

ALJ found that, although Dr. Wellons did not recommend any postural

18

or

19

required such limitations to reduce mobility requirements and

20

spinal

21

consistent with the totality of the evidence and any error in

22

affording minimal weight to Dr. Wellons’ opinion was harmless as

23

it benefited Plaintiff.

the

spinal

exertional

MRI,

treatment

limitations,

pressure.

(Id.).

(Pl. MSO at 10).

notes,

and

(AR 18).

evidence

However,

physical

therapy

Additionally, the

suggested

the

The ALJ found

that

ALJ’s

Plaintiff

decision

was

24
25

The Court therefore disagrees with Plaintiff’s contention that

26

the ALJ improperly rejected Dr. Ezroj’s opinions and finds that

27

the ALJ provided specific and legitimate reasons for doing so.

28
26

1

VIII.

2

CONCLUSION

3
4

Consistent with the foregoing, IT IS ORDERED that Judgment be

5

entered AFFIRMING the decision of the Commissioner.

6

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

7

counsel for both parties.

The Clerk of

8
9

DATED:

May 23, 2017

10

/S/
SUZANNE H. SEGAL
UNITED STATES MAGISTRATE JUDGE

11
12
13

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

14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
27