Turnbow v. Commissioner of Social Security

Filing 21

FINAL JUDGMENT and ORDER Regarding Plaintiff's Social Security Complaint, signed by Magistrate Judge Erica P. Grosjean on 11/27/17. CASE CLOSED. (Gonzalez, R)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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MELVIN EUGENE TURNBOW,
Plaintiff,
v.
NANCY A. BERRYHILL, Commissioner
of Social Security,

Case No. 1:16-cv-01227-EPG
FINAL JUDGMENT AND ORDER
REGARDING PLAINTIFF’S SOCIAL
SECURITY COMPLAINT

Defendant.

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This matter is before the Court on Plaintiff’s complaint for judicial review of an

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unfavorable decision of the Commissioner of the Social Security Administration regarding his

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application for a period of disability and disability insurance benefits (ECF No. 1.) The parties

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have consented to entry of final judgment by the United States Magistrate Judge under the

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provisions of 28 U.S.C. § 636(c) with any appeal to the Court of Appeals for the Ninth Circuit.

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(ECF Nos. 6, 20.)

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On November 16, 2017, a hearing was held, at which counsel for Plaintiff, Melissa Newel,

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Esq., and counsel for Defendant, Daniel Talbert, Esq., appeared. (ECF No. 18.) Having reviewed

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the record, administrative transcript, the briefs of the parties, and the applicable law, the Court

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finds as follows:

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First, the ALJ did not err in rejecting the opinion of Plaintiff’s treating clinical

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psychologist, Gary Sunday, Ph.D. “[T]his circuit distinguish among the opinions of three types

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of physicians: (1) those who treat the claimant (treating physicians); (2) those who examine but
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do not treat the claimant (examining physicians); and (3) those who neither examine nor treat the

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claimant (nonexamining physicians).” Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1995), as

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amended (Apr. 9, 1996). Generally, the opinion of treating physicians should be afforded greater

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weight than that of both examining physicians and nonexamining physicians. Lester, 81 F.3d at

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830. In turn, the opinion of examining physicians should be afforded greater weight than that of

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nonexamining physicians. Lester, 81 F.3d at 830.

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An ALJ “must provide ‘clear and convincing’ reasons for rejecting the uncontradicted

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opinion of an examining physician.” Lester, 81 F.3d at 830 (citing Pitzer v. Sullivan, 908 F.2d

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502, 506 (9th Cir.1990). “If a treating or examining doctor’s opinion is contradicted by another

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doctor’s opinion, an ALJ may only reject it by providing specific and legitimate reasons that are

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supported by substantial evidence.” Bayliss v. Barnhart, 427 F.3d 1211, 1216 (9th Cir. 2005).

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“The ALJ can meet this burden by setting out a detailed and thorough summary of the facts and

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conflicting clinical evidence, stating his interpretation thereof, and making findings.” Magallanes

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v. Bowen, 881 F.2d 747, 751 (9th Cir. 1989) (citing Cotton v. Bowen, 799 F.2d 1403, 1408 (9th

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Cir.1986)).

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Here, Plaintiff’s treating clinical psychologist, Gary Sunday, Ph.D., submitted a check-

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the-box Mental Medical Source Statement. AR 605-607. Dr. Sunday stated that due to Plaintiff’s

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chronic conditions, he was “not likely to improve to degree to return to simple or complex work

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duties,” and would be absent from work or unable to complete an 8-hour workday more than five

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days per month. AR 605, 607. Dr. Sunday indicated that Plaintiff’s impairments in the areas of

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concentration, memory, and social interaction would preclude him from performing work for

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15% or more of an 8-hour workday. AR 605-606. Dr. Sunday also indicated that Plaintiff’s

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impairment in the areas of understanding and memory would preclude his ability to understand

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and remember very short and simple instructions 10% of an 8-hour work day. AR 605.

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The ALJ gave Dr. Sunday’s opinion no weight. AR 18. The ALJ found that the opinion

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was “overreaching and exaggerated.” Id. The ALJ reasoned that the opinion was unsupported by

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clinical data and notes, and was contradicted by other opinions and Dr. Sundays’ own finding that

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Plaintiff was not disabled. Id.
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The Court finds that the ALJ has set forth specific and legitimate reasons supported by

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substantial evidence for rejecting the Dr. Sunday’s opinion. The ALJ discussed Dr. Sunday’s

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opinion and treatment notes at length. AR 17-18. The ALJ also compared Dr. Sunday’s

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evaluation of Plaintiff’s symptoms to that of other mental health professionals, who found

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Plaintiff’s symptoms less severe. For example, the ALJ noted that on January 29, 2014, Dr.

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Sunday involuntarily confined Plaintiff because Plaintiff threatened Dr. Sunday for not

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completing Plaintiff’s disability paperwork. AR 17, 735, 760. On the same day, Dr. Olson also

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evaluated Plaintiff and reported a normal mental status examination, and that Plaintiff expressed

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that he had overreacted and would apologize to Dr. Sunday. AR 17, 744-746. Thus, the ALJ’s

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reasoning was specific and legitimate, and supported by substantial evidence.
Second, “an ALJ engages in a two-step analysis to determine whether a claimant’s

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testimony regarding subjective pain or symptoms is credible. The ALJ must first determine

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whether the claimant has presented objective medical evidence of an underlying impairment

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which could reasonably be expected to produce the pain or other symptoms alleged.” Garrison v.

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Colvin, 759 F.3d 995, 1014 (9th Cir. 2014) (quotations omitted). “If the claimant satisfies the

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first step of this analysis, and there is no evidence of malingering, the ALJ can reject the

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claimant’s testimony about the severity of her symptoms only by offering specific, clear and

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convincing reasons for doing so.” Id. at 1014-15. “It’s not sufficient for the ALJ to make only

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general findings; he must state which pain testimony is not credible and what evidence suggests

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the complaints are not credible.” Dodrill v. Shalala, 12 F.3d 915, 918 (9th Cir. 1993) (citation and

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quotations omitted). Furthermore, a lack of objective medical evidence is a factor that the ALJ

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can consider in his credibility analysis. Burch v. Barnhart, 400 F.3d 676, 681 (9th Cir. 2005).

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However, an ALJ “may not disregard [a claimant’s testimony] solely because it is not

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substantiated affirmatively by objective medical evidence.” Robbins v. Soc. Sec. Admin., 466 F.3d

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880, 883 (9th Cir. 2006).

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Here, the ALJ determined that Plaintiff had severe impairments, and found no evidence of

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malingering. Thus, the ALJ was required to provide specific, clear, and convincing reasons for

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finding Plaintiff’s testimony regarding his neck and back pain not fully credible. The ALJ found
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that Plaintiff reported that his neck and pain were controlled with medications and that physical

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examination revealed a normal gait, normal ranges of motion, and full motor strength in all

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extremities. AR. 18-19, 468, 659-660, 740-741. Further, the ALJ found that Plaintiff received

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conservative treatment, was not recommended for surgery or extraordinary therapies, and was not

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prescribed any assistive device. AR 19, 50, 377, 396, 482, 533. The Court finds that the ALJ met

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her burden. See Parra v. Astrue, 481 F.3d 742, 750–51 (9th Cir.2007) (“[E]vidence of

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‘conservative treatment’ is sufficient to discount a claimant's testimony regarding severity of an

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impairment.”); Warren v. Comm’r of Soc. Sec. Admin., 439 F.3d 1001, 1006 (9th Cir. 2006)

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(finding that impairments that are effectively controlled with medication are not disabling); Fair

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v. Bowen, 885 F.2d 597, 603 (9th Cir. 1989) (finding that a failure to follow prescribed treatment

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can be considered in determining credibility). Thus the ALJ provided specific, clear, and

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convincing evidence for rejecting claimant’s testimony about the severity of his symptoms.

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Third, “[l]ay testimony as to a claimant’s symptoms or how an impairment affects the

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claimant’s ability to work is competent evidence that the ALJ must take into account.” Molina v.

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Astrue, 674 F.3d 1104, 1114 (9th Cir. 2012). “If the ALJ wishes to discount the testimony of the

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lay witnesses, he must give reasons that are germane to each witness.” Dodrill v. Shalala, 12 F.3d

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915, 919 (9th Cir. 1993). But, the ALJ is not required “to discuss every witness’s testimony on an

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individualized, witness-by-witness basis.” Molina, 674 F.3d at 1114. “If the ALJ gives germane

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reasons for rejecting testimony by one witness, the ALJ need only point to those reasons when

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rejecting similar testimony by a different witness.” Id. at 1114 (citing Valentine v. Comm’r Soc.

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Sec. Admin., 574 F.3d 685, 694 (9th Cir. 2009)). In short, the ALJ must explain his reasons for

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disregarding a lay witness testimony, either individually or in the aggregate. Id. at 1115.

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Here, Plaintiff’s wife completed a Third-Party Function Report. AR 220-228. The ALJ

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gave this lay opinion little weight. AR 18. She reasoned that “it is unpersuasive for the same

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reasons that the [Plaintiff’s] own allegations do not fully persuade [the ALJ], observing that they

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lack substantial support from objective findings in the record.” Id. The Court finds that the ALJ

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provided germane reasons for rejecting the lay opinion. See Bayliss v. Barnhart, 427 F.3d 1211,

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1218 (9th Cir. 2005) (finding that inconsistency with medical evidence is a germane reason for
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discrediting the testimony of lay witnesses). Thus, the ALJ’s rejection of the Third-Party Function

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Report completed by Plaintiff’s wife was not error.

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Accordingly, for the reasons announced by the Court on the record at the conclusion of

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the parties’ oral argument on November 16, 2017, the Court finds that the decision of the

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Commissioner of Social Security is supported by substantial evidence, and the same is hereby

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affirmed.

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The Clerk of the Court is directed to close this case.

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IT IS SO ORDERED.
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Dated:

November 27, 2017

/s/
UNITED STATES MAGISTRATE JUDGE

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