Rocconi v. Commissioner of Social Security

Filing 15

ORDER Directing Entry of Judgment in Favor of Commissioner of Social Security and Against Plaintiff, signed by Magistrate Judge Gary S. Austin on 1/9/2019: The Clerk of Court is directed to enter judgment in favor of Defendant, Nancy A. Berryhill, Acting Commissioner of Social Security, and against Plaintiff, Alan Richard Rocconi. (CASE CLOSED)(Hellings, J)

1
2
3
4
5
6
7

UNITED STATES DISTRICT COURT

8

EASTERN DISTRICT OF CALIFORNIA

9
10

ALAN RICHARD ROCCONI,

11

Petitioner,

12
13
14

No. 1:17-cv-00557-GSA

v.
NANCY A. BERRYHILL, Acting
Commissioner of Social Security,

15

ORDER DIRECTING ENTRY OF
JUDGMENT IN FAVOR OF
COMMISSIONER OF SOCIAL SECURITY
AND AGAINST PLAINTIFF

Respondent.

16
17

I.

Introduction
Plaintiff Alan Richard Rocconi (“Plaintiff”) seeks judicial review of a final decision of the

18
19

Commissioner of Social Security (“Commissioner” or “Defendant”) denying his application for

20

disability insurance benefits pursuant to Title II of the Social Security Act. The matter is

21

currently before the Court on the parties’ briefs which were submitted without oral argument to

22

the Honorable Gary S. Austin, United States Magistrate Judge.1 See Docs. 12, 13 and 14. Having

23

reviewed the record as a whole, the Court finds that the ALJ’s decision is supported by substantial

24

evidence. Accordingly, Plaintiff’s appeal is denied.

25

II.

Procedural Background

26

On June 3, 2013, Plaintiff filed an application for disability insurance benefits alleging

27

disability beginning December 31, 2012. AR 23. The Commissioner denied his application

28

1

The parties consented to the jurisdiction of the United States Magistrate Judge. See Docs. 4 and 6.

1

1

initially on October 29, 2013, and upon reconsideration on March 27, 2014. AR 23. On May 14,

2

2014, Plaintiff filed a timely request for a hearing before an Administrative Law Judge. AR 23.

3

Administrative Law Judge E. Alis presided over an administrative hearing on September

4

3, 2015. AR 39-66. Plaintiff, represented by counsel, appeared and testified. AR 39. An

5

impartial vocational expert Cathleen Spencer (the “VE”) also appeared and testified. AR 39.

6

On October 23, 2015, the ALJ denied Plaintiff’s application. AR 23-34. The Appeals

7

Council denied review on February 15, 2017. AR 1-4. On April 20, 2017, Plaintiff filed a

8

complaint in this Court. Doc. 1.

9
10
11

III.

Factual Background
A.

Plaintiff’s Testimony and Report

Plaintiff (born November 9, 1960) had not worked since he injured his left hand on while

12

working as a garbage collector on December 31, 2012. AR 44. When Plaintiff stepped off the

13

platform on the back of the truck, he found himself suspended over the ground after his hand

14

caught between a grab bar and the truck controls. AR 48. Following an extended treatment and

15

recovery period, the doctor determined that Plaintiff could not return to his former work. AR 49.

16

Plaintiff lived with his adult son and a Labrador retriever puppy. AR 44-45. He watched

17

television and played with the puppy. AR 55. Although he experienced pain when putting on his

18

pants and shoes and tying his shoes, Plaintiff was able to dress himself and take care of his own

19

personal hygiene. AR 53, 56. Plaintiff was able to cook for himself, selecting tools that enabled

20

him to perform component tasks without pinching or squeezing. AR 54. He washed dishes and

21

sometimes did his own laundry. AR 56.

22

When Plaintiff last renewed his driver’s license, he elected not to retain his Class B

23

(commercial) license. AR 46. He remained able to drive himself on errands but relied on his son

24

or a friend to drive longer distances, particularly when he towed a boat to go fishing. AR 47-48.

25

After a lifetime of hard work, Plaintiff had continual pain. AR 55-57. His pain interfered

26

with his sleep. AR 58-59. He experienced back particularly when he sat too long. AR 48. He

27

had back spasms for about twenty years which were relieved with medication (Flexeril or

28

metaxalone). AR 50-51. (Flexiril made Plaintiff sleepy, and metaxalone made him dizzy. AR
2

1

51.) Plaintiff’s doctor did not recommend back surgery. AR 50. Plaintiff also had arthritis in

2

his thumb joints and experiences numbness in his hands. AR 48, 53. Although he recently

3

experienced leg pain, he was reluctant to see the doctor because of the expense. AR 57. Plaintiff

4

also had asthma or COPD, which was aggravated by dirty air or hot and muggy weather. AR 58.

5

B.

Medical Records

6

Plaintiff’s medical records include treatment of hand and back conditions not related to

7

Plaintiff’s December 2012 accident as well as treatment for injuries resulting from the accident

8

that were addressed by worker’s compensation coverage.

9

On November 7, 2012, orthopedic surgeon Todd C. Smith, M.D., examined Plaintiff, who

10

had been experiencing bilateral upper extremity pain and weakness for three or four years. AR

11

265-73. Splinting and injections had provided temporary relief but Plaintiff was having trouble

12

with gripping and sleeping. AR 265. Dr. Smith observed a positive Tinel’s sign over left and

13

right carpal tunnels, negative over brachial plexus and cubital tunnel. AR 266. Phalen’s test was

14

positive with paresthesias into the index and middle fingers bilaterally. AR 266. Plaintiff had a

15

mildly positive thumb CMC grind bilaterally and evidence of early Dupuytren disease of both

16

palms. AR 266. Radiographs revealed thumb CMC arthritis. EMG studies confirmed bilateral

17

carpal tunnel syndrome. AR 266. Dr. Smith recommended carpal tunnel surgery, beginning with

18

Plaintiff’s left hand, which was more seriously affected. AR 266.

19

Following his December 31, 2012, accident, Plaintiff immediately sought treatment at the

20

emergency department of Valley Care Medical Center, Pleasanton, California. AR 230-35.

21

Treating professionals observed swelling over the dorsum of the wrist and carpal bones, and

22

superficial abrasions over the second and third metacarpal. AR 230. Plaintiff reported pain with

23

extension and hand grip, and slightly decreased sensation at the tips of the middle fingers. AR

24

230. X-rays showed cortical irregularity along the distal and ulnar aspects of the trapezium but

25

no obvious dislocation. AR 231-32. A radiopaque foreign object was present along the volar

26

aspect of the left hand near the distal metacarpal. AR 231-32. Radiologist Douglas Yoshida,

27

M.D., suspected a fracture of the trapezium. AR 231-32. After the wound was cleaned and volar

28

and spica (thumb) splints applied, Plaintiff was released. AR 233.
3

1

Despite his recent injury, Plaintiff reported to Sutter Health on January 7, 2013, for a

2

preoperative examination for previously scheduled carpal tunnel surgery. AR 240-51. Plaintiff’s

3

medical history included lumbago, neck pain, essential hypertension and asthma. AR 250. The

4

surgery was postponed.

5

On January 16, 2013, Dr. Smith examined Plaintiff’s injury, which the doctor described as

6

a “forced flexion maneuver.” AR 279-91. The doctor was unable to identify the presumed

7

fracture. AR 279. The base of Plaintiff’s thumb was mildly swollen and tender to palpation. AR

8

280. The range of wrist motion was limited to 20 degrees dorsiflexion and 20 degrees volar

9

flexion. AR 280. Although Plaintiff could touch the tip of his index finger with his thumb, he

10

could not bring his fingers, particularly his index and middle finger, to his palm and could not

11

bring his thumb across the palm of the hand. AR 280. The right wrist and fingers had a full

12

range of motion. AR 280. Plaintiff’s pain was significant. AR 280.

13

Plaintiff returned to receive worker’s compensation treatment from Dr. Smith on January

14

30, 2013 (AR 292-300), February 27, 2013 (AR 301-309), March 27, 2013 (AR 310-17), April

15

24, 2013 (AR 318-25), May 24, 2013 (AR 326-37), and July 8, 2013 (AR 609-18). As his injury

16

healed, Plaintiff demonstrated reduced pain and tenderness, and improved range of motion and

17

grip strength. Plaintiff’s treatment included oral medication, local injections and physical

18

therapy. The physical therapy records are included in the record at AR 340-88.

19

On June 4, 2013, Pamela Starks, M.D., who was Plaintiff’s pain management specialist,

20

examined Plaintiff and noted continued neck and back pain, which radiated into his legs. AR

21

253-62. Dr. Starks observed painful and reduced lumbar-sacral range of motion and mild local

22

tenderness over the lumbosacral spine. AR 255. Despite using albuterol for his COPD, Plaintiff

23

reported problems with coughing. AR 253.

24

On October 25, 2013, Dr. Smith examined Plaintiff’s pre-existing carpal tunnel syndrome

25

independent of the ongoing worker’s compensation treatment. AR 619-24. Dr. Smith performed

26

carpal tunnel release surgery on November 5, 2013. AR 743-844.

27
28

By his post-operative examination on November 21, 2013, Plaintiff’s incision was well
healed. AR 626. Plaintiff continued to experience some numbness in his fingers and continuing
4

1

thumb pain from arthritis. AR 626. Although Plaintiff complained of continued soreness on

2

December 27, 2013, Dr. Smith noted full range of motion and improvement in the remaining

3

numbness. AR 633-38.

4

On January 28, 2015, Plaintiff was examined by family practitioner Tiffany Gee, M.D.

5

AR 1037-46. Dr. Gee diagnosed essential hypertension, COPD with asthma and hand pain. AR

6

1037. Plaintiff had not been taking his prescribed medications due to lack of insurance. AR

7

1040. He was using marijuana for pain relief. AR 1040. On March 13, 2015, Plaintiff saw Dr.

8

Starks and requested a return to medication for back pain. AR 1047-54.

9

IV.

10

Standard of Review

Pursuant to 42 U.S.C. §405(g), this court has the authority to review a decision by the

11

Commissioner denying a claimant disability benefits. “This court may set aside the

12

Commissioner’s denial of disability insurance benefits when the ALJ’s findings are based on

13

legal error or are not supported by substantial evidence in the record as a whole.” Tackett v.

14

Apfel, 180 F.3d 1094, 1097 (9th Cir. 1999) (citations omitted). Substantial evidence is evidence

15

within the record that could lead a reasonable mind to accept a conclusion regarding disability

16

status. See Richardson v. Perales, 402 U.S. 389, 401 (1971). It is more than a scintilla, but less

17

than a preponderance. See Saelee v. Chater, 94 F.3d 520, 522 (9th Cir. 1996) (internal citation

18

omitted). When performing this analysis, the court must “consider the entire record as a whole

19

and may not affirm simply by isolating a specific quantum of supporting evidence.” Robbins v.

20

Social Security Admin., 466 F.3d 880, 882 (9th Cir. 2006) (citations and internal quotation marks

21

omitted).
If the evidence reasonably could support two conclusions, the court “may not substitute its

22
23

judgment for that of the Commissioner” and must affirm the decision. Jamerson v. Chater, 112

24

F.3d 1064, 1066 (9th Cir. 1997) (citation omitted). “[T]he court will not reverse an ALJ’s

25

decision for harmless error, which exists when it is clear from the record that the ALJ’s error was

26

inconsequential to the ultimate nondisability determination.” Tommasetti v. Astrue, 533 F.3d

27

1035, 1038 (9th Cir. 2008) (citations and internal quotation marks omitted).

28

///
5

1

V.

2

The Disability Standard
To qualify for benefits under the Social Security Act, a plaintiff
must establish that he or she is unable to engage in substantial
gainful activity due to a medically determinable physical or mental
impairment that has lasted or can be expected to last for a
continuous period of not less than twelve months. 42 U.S.C. §
1382c(a)(3)(A). An individual shall be considered to have a
disability only if . . . his physical or mental impairment or
impairments are of such severity that he is not only unable to do his
previous work, but cannot, considering his age, education, and work
experience, engage in any other kind of substantial gainful work
which exists in the national economy, regardless of whether such
work exists in the immediate area in which he lives, or whether a
specific job vacancy exists for him, or whether he would be hired if
he applied for work.

3
4
5
6
7
8
9

42 U.S.C. §1382c(a)(3)(B).
10
To achieve uniformity in the decision-making process, the Commissioner has established
11

a sequential five-step process for evaluating a claimant’s alleged disability. 20 C.F.R. §§

12
416.920(a)-(f). The ALJ proceeds through the steps and stops upon reaching a dispositive finding
13
that the claimant is or is not disabled. 20 C.F.R. §§ 416.927, 416.929.
14
Specifically, the ALJ is required to determine: (1) whether a claimant engaged in
15
substantial gainful activity during the period of alleged disability, (2) whether the claimant had
16

medically determinable “severe impairments,” (3) whether these impairments meet or are

17
medically equivalent to one of the listed impairments set forth in 20 C.F.R. § 404, Subpart P,
18

Appendix 1, (4) whether the claimant retained the residual functional capacity (“RFC”) to

19
perform his past relevant work, and (5) whether the claimant had the ability to perform other jobs
20
existing in significant numbers at the national and regional level. 20 C.F.R. § 416.920(a)-(f).
21
VI.
22

Summary of the ALJ’s Decision

Using the Social Security Administration’s five-step sequential evaluation process, the

23
ALJ determined that Plaintiff did not meet the disability standard. AR 23-34. The ALJ found
24
that Plaintiff had not worked since the alleged onset date of December 31, 2012. AR 25. Plaintiff
25
had the following serious impairments: degenerative disc disease, osteoarthritis of the CMC
26
articulation of the bilateral hands and carpal tunnel syndrome. AR 25. The severe impairments
27
did not meet or medically equal one of the listed impairments in 20 C.F.R. Part 404, Subpart P,
28
6

1

Appendix 1 (20 C.F.R. §§ 404.1520(d); 404.1525; and 404.1526). AR 26.

2

that Plaintiff had the residual functional capacity to perform light work as defined in 20 C.F.R. §

3

404.1567(b), except that he could only occasionally climb ramps and stairs; climb ladders, ropes

4

and scaffolds; balance, stoop, kneel, crouch and crawl; and reach overhead bilaterally. AR 26.

5

Plaintiff could frequently handle, feel and finger. AR 26. He should have no concentrated

6

exposure to extreme cold. AR 26. Although Plaintiff was unable to perform any past relevant

7

work, significant numbers of jobs that Plaintiff can perform exist in the national economy. AR

8

32. Accordingly, the ALJ found that Plaintiff was not disabled. AR 33.

9

VII.

The ALJ concluded

Plaintiff’s Credibility

10

Plaintiff contends that the ALJ erred in finding that Plaintiff’s testimony lacked credibility

11

without providing clear and convincing reasons for that finding. The Commissioner responds that

12

the ALJ properly discounted Plaintiff’s testimony of disabling pain and other symptoms as

13

inconsistent with both his activities of daily living and the medical evidence.

14

An ALJ is responsible for determining credibility, resolving conflicts in medical

15

testimony, and resolving ambiguities. Andrews v. Shalala, 53 F.3d 1035, 1039 (9th Cir. 1995).

16

His or her findings of fact must be supported by specific, cogent reasons. Rashad v. Sullivan, 903

17

F.2d 1229, 1231 (9th Cir. 1990). To determine whether the ALJ’s findings are supported by

18

substantial evidence, a court must consider the record as a whole, weighing both the evidence that

19

supports the ALJ’s determination and the evidence against it. Magallanes v. Bowen, 881 F.2d

20

747, 750 (9th Cir. 1989).

21

An ALJ performs a two-step analysis to determine whether a claimant’s testimony

22

regarding subjective pain or symptoms is credible. See Garrison v. Colvin, 759 F.3d 995, 1014

23

(9th Cir. 2014); Smolen v. Chater, 80 F.3d 1273, 1281 (9th Cir. 1996). First, the claimant must

24

produce objective medical evidence of an impairment that could reasonably be expected to

25

produce some degree of the symptom or pain alleged. Garrison, 759 F.3d at 1014; Smolen, 80

26

F.3d at 1281-1282. In this case, the first step is satisfied by the ALJ’s finding that Plaintiff’s

27

“medically determinable impairments could reasonably be expected to produce the alleged

28

symptoms.” AR 27. The ALJ did not find Plaintiff to be malingering.
7

1

If the claimant satisfies the first step and there is no evidence of malingering, the ALJ may

2

reject the claimant's testimony regarding the severity of his symptoms only if he makes specific

3

findings that include clear and convincing reasons for doing so. Garrison, 759 F.3d at 1014-15;

4

Smolen, 80 F.3d at 1281. “[T]he ALJ must identify what testimony is not credible and what

5

evidence undermines the claimant’s complaints.” Lester v. Chater, 81 F.3d 821, 834 (9th Cir.

6

1995). See also Social Security Ruling ("SSR") 96-7p2 (stating that an ALJ's decision "must be

7

sufficiently specific to make clear to the individual and to any subsequent reviewers the weight

8

the adjudicator gave to the individual's statements and reasons for that weight”). It is not

9

sufficient for the ALJ to make general findings; he must state which testimony is not credible and

10

what evidence in the record leads to that conclusion. Dodrill v. Shalala, 12 F.3d 915, 918 (9th

11

Cir. 1993); Bunnell v. Sullivan, 947 F.2d 341, 345-346 (9th Cir. 1991).

12

In assessing the claimant’s credibility, the ALJ may use “ordinary techniques of

13

credibility evaluation,” considering factors such as a lack of cooperation during consultative

14

examinations, a tendency to exaggerate, inconsistent statements, an unexplained failure to seek

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

2

Social Security Ruling 96-7p was superseded by Ruling 16-3p, effective March 28, 2016. See 2016 WL
1020935, *1 (March 16, 2016); 2016 WL 1131509, *1 (March 24, 2016) (correcting SSR 16-3p effective date to
March 28, 2016); 2017 WL 5180304, *2 (Oct. 25, 2017) (further correcting SSR 16-3p). Although the second step
has previously been termed a credibility determination, recently the Social Security Administration (“SSA”)
announced that it would no longer assess the “credibility” of an applicant’s statements, but would instead focus on
determining the “intensity and persistence of [the applicant’s] symptoms.” See SSR 16-3p, 2016 WL 1020935 at *1
(“We are eliminating the use of the term ‘credibility’ from our sub-regulatory policy, as our regulations do not use
this term. In doing so, we clarify that subjective symptom evaluation is not an examination of an individual’s
character.”). Social Security Rulings reflect the SSA’s official interpretation of pertinent statutes, regulations, and
policies. 20 C.F.R. § 402.35(b)(1). Although they “do not carry the force of law,” Social Security Rulings “are
binding on all components of the [SSA]” and are entitled to deference if they are “consistent with the Social Security
Act and regulations.” 20 C.F.R. § 402.35(b)(1); Bray v. Comm’r of Soc. Sec. Admin., 554 F.3d 1219, 1224 (9th Cir.
2009) (citations and quotation marks omitted).
As the Ninth Circuit recently acknowledged, SSR 16-3p “makes clear what our precedent already required:
that assessments of an individual’s testimony by an ALJ are designed to ‘evaluate the intensity and persistence of
symptoms after [the ALJ] find[s] that the individual has a medically determinable impairment(s) that could
reasonably be expected to produce those symptoms,’ and not to delve into wide-ranging scrutiny of the claimant’s
character and apparent truthfulness.” Trevizo v. Berryhill, 871 F.3d 664, 678 n.5 (9th Cir. 2017) see also Cole v.
Colvin, 831 F.3d 411, 412 (7th Cir. 2016) (Posner, J.) (“The change in wording is meant to clarify that administrative
law judges aren’t in the business of impeaching claimants’ character; obviously administrative law judges will
continue to assess the credibility of pain assertions by applicants, especially as such assertions often cannot be either
credited or rejected on the basis of medical evidence.”) In this case, SSR 16-3p became effective before the hearing
administrative hearing and issuance of the hearing decision. When a federal court reviews the final decision in a
claim, the district court is to apply the rules in effect when the decision was issued by the agency. SSR 16-3p, 2017
WL 5180304 at *1 (Oct. 25, 2017). Accordingly, Ruling 16-3p does not apply in this case.

8

1

treatment, inconsistencies between the testimony and conduct, and inconsistencies between daily

2

activities and the alleged symptoms.” Tonapetyan v. Halter, 242 F.3d 242 F.3d1144, 1146; see

3

also Smolen, 80 F.3d at 1284; Thomas v. Barnhart, 278 F.3d 947, 959 (9th Cir. 2002) (including

4

as factors claimant’s reputation for truthfulness, inconsistencies in testimony or between

5

testimony and conduct, daily activities, work record, and testimony from physicians and third

6

parties about the nature, severity, and effect of the alleged disabling symptoms). “If the ALJ

7

finds that the claimant's testimony as to the severity of her pain and impairments is unreliable, the

8

ALJ must make a credibility determination with findings sufficiently specific to permit the court

9

to conclude that the ALJ did not arbitrarily discredit claimant's testimony.” Thomas, 278 F.3d at

10

958. “[A] reviewing court should not be forced to speculate as to the grounds for an adjudicator’s

11

rejection of a claimant’s allegations of disabling pain.” Bunnell, 947 F.2d at 346. On the other

12

hand, if the ALJ’s credibility finding is supported by substantial evidence in the record, courts

13

“may not engage in second-guessing.” Thomas, 278 F.3d at 959. In this case, the ALJ provided a

14

detailed and lengthy discussion of Plaintiff’s treatment and recovery following his accident. AR

15

27-32.

16

Using Defendant’s boilerplate language, the ALJ wrote that Plaintiff’s “statements

17

concerning the intensity, persistence and limiting effects of those symptoms were not entirely

18

credible for the reasons explained in the decision.” AR 27. First, the ALJ found that Plaintiff

19

testified to activities of daily living that were not consistent with those of a totally disabled

20

person, including driving himself to the hearing, driving a motor boat, caring for a Labrador

21

puppy, performing his own personal care, making his own breakfast, doing dishes and laundry,

22

vacuuming, mopping, doing yard work, taking out the trash and taking daily walks. AR 27.

23

Second, Plaintiff received only conservative medical treatment that was inconsistent with

24

the level of treatment to be expected for a totally disabled person. AR 27. The ALJ specifically

25

noted that Plaintiff’s hand injury had been treated with splinting, oral pain relieving medication

26

(Vicodin, Norco), anti-inflammatory injections, and physical therapy. AR 28. Over the course of

27

this treatment, Plaintiff’s grip strength and range of motion improved and his pain and swelling

28

subsided. AR 28-29. As early as January 16, 2013, Dr. Smith approved Plaintiff’s return to work
9

1

with modified duties. AR 28. On May 3, 2013, Plaintiff himself reported that yard work and

2

taking out the garbage had become easier as physical therapy progressed. AR 28. By July,

3

Plaintiff’s physician had declared him permanent and stable, able to lift up to 25 pounds, but

4

precluded from pushing and pulling. AR 29.

5

After carpal tunnel release surgery in November 2013, Plaintiff recovered quickly. AR

6

29. By December 27, 2013, less than a year after his occupational accident, Plaintiff had a full

7

range of finger, hand and wrist motion and was cleared to return to all activities as tolerated. AR

8

29. Plaintiff did not seek medical treatment again until January 28, 2015. AR 29.

9

Similarly, although Plaintiff’s neck, back and foot pain limited his range of motion and

10

resulted in tenderness upon palpation, treatment consisted of an oral pain reliever (Norco) and

11

muscle relaxant (Cyclobenzaprine). AR 30. The ALJ noted that Plaintiff was not a candidate for

12

back surgery and had declined injections. AR 30.

13

In support of assessment of the objective medical evidence, the ALJ then set forth a

14

detailed discussion of the medical opinions contained in the record (more fully discussed in

15

section VIII of this order). AR 30-32. Considered with regard to the record as a whole, the Court

16

finds the ALJ’s analysis to set forth clear and convincing reasons for the conclusions she reached.

17

The law does not require an ALJ simply to ignore inconsistencies between objective

18

medical evidence and a claimant’s testimony. “While subjective pain testimony cannot be

19

rejected on the sole ground that it is not fully corroborated by objective medical evidence, the

20

medical evidence is still a relevant factor in determining the severity of claimant’s pain and its

21

disabling effects.” Rollins v. Massanari, 261 F.3d 853, 857 (9th Cir. 2001); SSR 16-3p (citing 20

22

C.F.R. § 404.1529(c)(2)). As part of his or her analysis of the record as a whole, an ALJ properly

23

considers whether the medical evidence supports or is consistent with a claimant’s pain

24

testimony. Id.; 20 C.F.R. § 404.1529(c)(4) (symptoms are determined to diminish residual

25

functional capacity only to the extent that the alleged functional limitations and restrictions “can

26

reasonably be accepted as consistent with the objective medical evidence and other evidence”).

27
28

In short, a claimant’s statement of pain or other symptoms is not conclusive evidence of a
physical or mental impairment or disability. 42 U.S.C. § 423(d)(5)(A); Soc. Sec. Rul. 16-3p,
10

1

2017 WL 5180304 (Oct. 25, 2017). “An ALJ cannot be required to believe every allegation of

2

[disability], or else disability benefits would be available for the asking, a result plainly contrary

3

to the [Social Security Act].” Fair v. Bowen, 885 F.2d 597, 603 (9th Cir. 1989).

4

The standard of review limits a district court’s discretion on challenges to the ALJ’s

5

adverse credibility determinations. “This court may set aside the Commissioner’s denial of

6

disability insurance benefits when the ALJ’s findings are based on legal error or are not supported

7

by substantial evidence in the record as a whole.” Tackett, 180 F.3d at 1097 (citations omitted).

8

Substantial evidence is evidence within the record that could lead a reasonable mind to accept a

9

conclusion regarding disability status. See Richardson, 402 U.S. at 401. If the evidence could

10

reasonably support either outcome, as is the case here, a court may not substitute its judgment for

11

that of the ALJ. Flaten v. Sec’y, Health and Human Servs., 44 F.3d 1453, 1457 (9th Cir. 1995).

12

The Court will not second guess the ALJ’s assessment of Plaintiff’s credibility in this case.
The ALJ’s Determination of Plaintiff’s Residual Functional Capacity

13

VIII.

14

Plaintiff contends that the ALJ’s determination that he could perform a range of light

15

work was not supported by substantial evidence and that the ALJ erred in failing to adopt fully

16

the medical opinions of Dr. Smith, Dr. Lim, and Dr. Van Kirk. The Commissioner disagrees and

17

argues further that any error is harmless in light of Dr. Van Kirk’s opinion, which was less

18

restrictive than the residual functional capacity determined by the ALJ. The Court finds that the

19

ALJ properly relied on the record as a whole.

20

A.

Medical Opinions

21

1.

Agency Physicians

22

In the initial consideration of Plaintiff’s application for benefits, agency physician I.

23

Ocrant, M.D., opined that Plaintiff could lift and carry twenty pounds occasionally and ten

24

pounds frequently; sit, stand or walk about six hours in an eight-hour work day; occasionally

25

climb ramps, stairs, ladders, ropes and scaffolds; occasionally balance, stoop, kneel, crouch and

26

crawl. AR 75. He had unlimited ability to push and pull. AR 75. Plaintiff had limited ability to

27

lift overhead, handle, finger or feel. AR 75-76. Although he should avoid extreme cold,

28

Plaintiff’s exposure to extreme heat, wetness, humidity, noise, vibration, hazards and fumes and
11

1

odors were not limited. AR 76. On reconsideration, agency physician L. Kiger, M.D., agreed.

2

AR 90-92.

3

2.

4

Permanent and Stationary Report

On July 22, 2013, Dr. Smith discharged Plaintiff as permanent and stationary. AR 938-

5

39. Plaintiff continued to experience constant pain in his left wrist and difficulty with turning and

6

gripping. AR 938. Noting that Plaintiff experienced arthritis and carpal tunnel syndrome in

7

addition to his industrial injury, Dr. Smith opined that Plaintiff should lift no more than 25

8

pounds and perform no pushing or pulling. AR 938-39.

9

3.

Orthopedic Consultative Examination

10

On October 10, 2013, orthopedist Dale H. Van Kirk, M.D., examined Plaintiff to assess

11

his left wrist and hand pain and chronic neck and back pain. AR 603-06. Plaintiff told Dr. Van

12

Kirk that he could do some cooking and housekeeping, and took a walk daily. AR 604. Plaintiff

13

was experiencing chronic pain in his left wrist and was scheduled for carpal tunnel release

14

surgery in November 2013. AR 603. The hand pain increased with repetitive grasping and

15

twisting motions. AR 603.

16

Plaintiff had neck and low back pain radiating into the arms and legs for about fifteen

17

years as a result of progressive cumulative trauma. AR 603. The neck pain increased with

18

repetitive flexing and extension of the neck, overhead reaching, and pushing and pulling with the

19

upper extremities. AR 603. The lower back pain increased with coughing and sneezing, heavy

20

lifting, twisting, climbing, running, jumping, squatting, ascending and descending ladders and

21

stairs, crouching and crawling. AR 603. The pain increased in cold weather. AR 604.

22

doctor opined that Plaintiff could lift and carry 50 pounds occasionally and 25 pounds frequently,

23

and stand and walk for a cumulative total of six hours daily. AR 606. Sitting was not limited.

24

AR 606. “Claimant [was] limited to frequent postural activities including bending, stooping,

25

crouching, climbing, kneeling, balancing, crawling, pushing or pulling.” AR 606. He had no

26

manipulative limitations except that he should not be required to work repetitively with his hands.

27

AR 606. He should not work in a cold or damp environment. AR 606.

28

///
12

The

1
2

4.

Post-Surgical Opinion

On December 27, 2013, Dr. Smith conducted his final examination of Plaintiff’s left hand

3

following the November 2013, carpal tunnel release surgery. AR 633. Dr. Smith discharged

4

Plaintiff from care, noting “Return to all activities as tolerated.” AR 633.

5
6

5.

Qualified Medical Examiners’ Opinions

Eduardo Lin, M.D., certified in physical medicine and rehabilitation and pain medicine,

7

prepared a worker’s compensation qualified medical evaluation on January 3, 2014. AR 642-717.

8

After reviewing Plaintiff’s treatment records and examining Plaintiff. Dr. Lin opined that Plaintiff

9

had not yet reached maximum medical improvement for his injury and was not yet permanent and

10

stable. AR 651. Dr. Lin recommended assignment to a physical medicine and rehabilitation

11

specialist for continued treatment. AR 651. For the time being, Plaintiff was capable of

12

“modified work with limitation of no pushing or pulling more than 5 to ten pounds, occasional

13

back bending and twisting activities, and also to avoid repetitive use of the [left] hand.” AR 651.

14

On January 29, 2014, Suresh Mahawar, M.D., certified in internal medicine, physical

15

medicine and rehabilitation, and pain management, prepared a worker’s compensation qualified

16

medical evaluation relating to Plaintiff’s asthma, 2012 hernia repair, and sleep problems. AR

17

888-98. Dr. Mahawar attributed Plaintiff’s development of sleep difficulties to his December

18

2012 hand injury. AR 897. The doctor opined that Plaintiff did not qualify as a qualified injured

19

worker for his internal injuries but may qualify based on his musculoskeletal injuries. AR 896.

20
21

B.

Applicable Law

The opinions of treating physicians, examining physicians, and non-examining physicians

22

are entitled to varying weight in disability determinations. Lester, 81 F.3d at 830. Ordinarily,

23

more weight is given to the opinion of a treating professional, who has a greater opportunity to

24

know and observe the patient as an individual. Id.; Smolen, 80 F.3d at 1285. The opinion of an

25

examining physician is, in turn, entitled to greater weight than the opinion of a non-examining

26

physician. Pitzer v. Sullivan, 908 F.2d 502, 506 (9th Cir. 1990). An ALJ may reject an

27

uncontradicted opinion of a treating or examining medical professional only for “clear and

28

convincing” reasons. Lester, 81 F.3d at 831. In contrast, a contradicted opinion of a treating
13

1

professional may be rejected for “specific and legitimate” reasons. Id. at 830. However, the

2

opinions of a treating or examining physician are “not necessarily conclusive as to either the

3

physical condition or the ultimate issue of disability.” Morgan v. Comm'r of Soc. Sec. Admin., 169

4

F.3d 595, 600 (9th Cir. 1999).

5

The opinion of a non-examining physician may constitute substantial evidence when it is

6

“consistent with independent clinical findings or other evidence in the record.” Thomas, 278 F.3d

7

at 957. Such independent reasons may include laboratory test results or contrary reports from

8

examining physicians and Plaintiff's testimony when it conflicts with the treating physician's

9

opinion. Lester, 81 F.3d at 831 (citing Magallanes, 881 F.2d at 755).
In addition, Drs. Lin and Mahawar’s opinions and Dr. Smith’s July 2013 opinion were

10
11

provided in conjunction with the treatment and evaluation of Plaintiff’s December 31, 2012, hand

12

injury through his employer’s workers’ compensation insurance. A claimant’s ability to work

13

under the Social Security scheme is measured differently from a claimant’s ability to work under

14

California’s workers’ compensation scheme. Desrosiers v. Sec’y of Health and Human Servs.,

15

846 F.2d 573, 576 (9th Cir. 1988). Under the workers’ compensation scheme, categories of work

16

are not based on strength, but on “minimum demands for physical effort,” determined by whether

17

the worker sits, stands or walks for most of the work day. Id. (quoting Schedule for Rating

18

Permanent Disabilities, Guidelines for Work Capacity, 1-A (California State Labor Code)). In

19

contrast, categories of work under the Social Security scheme are differentiated by step increases

20

in lifting capacities. Id. Guidelines for Work Capacity are not conclusive in Social Security

21

cases. Macri v. Chater, 93 F.3d 540, 543-44 (9th Cir. 1996). Although an ALJ may draw logical

22

inferences flowing from evidence of workers’ compensation disability determinations, he or she

23

may not directly find a claimant disabled in a Social Security disability proceeding based on the

24

outcome of the claimant’s claim for workers’ compensation. Id. at 544; Desrosiers, 846 F.2d at

25

576.

26

///

27

///

28

///
14

1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

C.

The ALJ’s Determination is Specific, Legitimate and
Based on the Record as a Whole

As set forth above, the ALJ determined that Plaintiff had the residual functional capacity
to perform light work as defined in 20 C.F.R. § 404.1567(b), except that he could only
occasionally climb ramps and stairs; climb ladders, ropes and scaffolds; balance, stoop, kneel,
crouch and crawl; and reach overhead bilaterally. AR 26. Plaintiff could frequently handle, feel
and finger. AR 26. He should have no concentrated exposure to extreme cold. AR 26.
In reaching this determination, the ALJ first evaluated Plaintiff’s credibility and briefly
outlined the course of treatment of his December 31, 2012, injury and subsequent carpal tunnel
release surgery. AR 26-30. The ALJ placed the various opinions of Plaintiff’s capacity to
perform work in the context of Plaintiff’s preexisting impairment, his work injury and gradual
recovery, and finally, his carpal tunnel release surgery and rapid recovery thereafter. AR 30. In
the course of the analysis, the ALJ also recognized the significantly different standards of
workers’ compensation evaluations and Social Security regulations:
A finding of disability is an ultimate issue that is reserved to the
Commissioner. Because the issue is reserved, these opinions
cannot be afforded controlling weight, but were nevertheless duly
considered per 20 CFR 404.1527(d) and Social Security Ruling 962p. Initially, the claimant was advised to stay off work or limited
from using his left hand immediately following his December 31,
2012, injury. Beginning January 16, 2013, the claimant was
advised to perform modified work with no use of his left hand,
otherwise totally disabled. Beginning February 27, 2013, the
claimant was advised to perform modified work with no more than
five pounds of lifting with his left hand. Beginning May 24, 2013,
the claimant was advised to perform modified work with no more
than 15 pounds of lifting with no pushing or pulling. Beginning
July 8, 2013, the claimant was stated to be unable to return to his
regular work, with permanent restrictions of lifting no more than 25
pounds with no pushing or pulling. Following left carpal tunnel
surgery on November 5, 2013, the claimant was advised to avoid
repetitive activities or any lifting of weight for two weeks, and
considered temporarily and totally disabled. Beginning December
27, 2013, the claimant was advised to return to all activities as
tolerated. These opinions are given some weight. The opinions are
all based on workers’ compensation standards, which are
significantly different from Social Security regulations. The stated
opinions regarding any total, permanent or temporary disability
status are given little weight. For the majority of the period since
the alleged onset date, the claimant was opined to be able to lift 25
pounds and to engage in modified work, which is not inconsistent
15

1
2

with my findings in this decision. The 25 pounds of lifting is also
consistent with the claimant’s own report of abilities on January 4,
2015.

3

AR 30 (citations to record omitted).
In determining that Plaintiff could appropriately perform light work, the ALJ gave “some

4
5

weight” to Dr. Van Kirk’s opinion of Plaintiff’s residual functional capacity, but stated that his

6

consultative opinion “d[id] not sufficiently consider the claimant’s degenerative disc disease,

7

osteoarthritis of the CMC articulation of the bilateral hands and carpal tunnel syndrome, nor his

8

subjective reports.” AR 31. Accordingly, the ALJ declined to adopt Dr. Van Kirk’s opinion that

9

Plaintiff was capable of performing medium work, instead finding that Plaintiff was capable of

10

light work with occasional postural activities and manipulative limitations. AR 31-32.3

11

In contrast, the ALJ gave “great weight” to the opinions of the state agency physicians

12

that Plaintiff could perform the equivalent of light exertion and perform all postural activities

13

occasionally, but could only occasionally reach bilaterally overhead and frequently perform light

14

handling, feeling and fingering. AR 32. The ALJ reasoned that the agency physicians’ opinions

15

were consistent with Plaintiff’s history of degenerative disc disease, osteoarthritis of the CMC

16

articulation in both hands, and bilateral carpal tunnel syndrome.

17

Plaintiff’s contention focusses on the ALJ’s failure to provide specific reasons for

18

rejecting Dr. Smith’s July 2013 opinion that Plaintiff should never push or pull. Plaintiff does not

19

consider Dr. Smith’s December 2013 opinion, following his final examination following

20

Plaintiff’s carpal tunnel surgery, that Plaintiff could return to all activities as tolerated. As

21

indicated in the context of the ALJ’s analysis set forth above, however, the ALJ explicitly gave

22

some weight to Dr. Smith’s directing Plaintiff to resume normal activities as tolerated, which

23

arguably included tolerable amounts of pushing and pulling. Plaintiff’s brief does not consider

24

the opinion the Dr. Smith gave following Plaintiff’s surgery instead emphasizing that in the

25

context of his January 2014 qualified medical opinion, Dr. Lin opined that Plaintiff could push

26

and pull approximately five to ten pounds. The Court declines to conclude that the ALJ erred in

27
3

28

In view of Dr. Van Kirk’s opinion that Plaintiff could perform a range of medium work, the Court is confused by
Plaintiff’s contention that Dr. Van Kirk’s opinion should have been adopted in its entirety. See Doc. 12 at 14-15.

16

1

favoring Dr. Smith’s December 2013 opinion, given when Dr. Smith was acting as Plaintiff’s

2

private physician rather than as a workers’ compensation provider.

3

In any event, Plaintiff’s analysis and preferred outcome are not binding here. “[A]n ALJ

4

is responsible for determining credibility and resolving conflicts in medical testimony.”

5

Magallanes, 881 F.2d at 750. An ALJ may choose to give more weight to opinions that are more

6

consistent with the evidence in the record. 20 C.F.R. § 404.1527(c)(4) (“the more consistent an

7

opinion is with the record as a whole, the more weight we will give to that opinion”). The Court

8

is not required to accept Plaintiff’s characterization of his treatment records. Even if this Court

9

were to accept that the record could support Plaintiff’s opinion, the record amply supports the

10

ALJ’s interpretation as well. When the evidence could arguable support two interpretations, the

11

Court may not substitute its judgment for that of the Commissioner. Jamerson, 112 F.3d at 1066.

12

IX.

Conclusion and Order

13

Based on the foregoing, the Court finds that the ALJ’s decision that Plaintiff is not

14

disabled is supported by substantial evidence in the record as a whole and is based on proper legal

15

standards. Accordingly, this Court DENIES Plaintiff’s appeal from the administrative decision of

16

the Commissioner of Social Security. The Clerk of Court is directed to enter judgment in favor of

17

Defendant, Nancy A. Berryhill, Acting Commissioner of Social Security, and against Plaintiff,

18

Alan Richard Rocconi.

19
20
21

IT IS SO ORDERED.
Dated:

January 9, 2019

/s/ Gary S. Austin
UNITED STATES MAGISTRATE JUDGE

22
23
24
25
26
27
28
17