McMillen v. Commissioner of Social Security

Filing 28

ORDER on Plaintiff's Social Security Complaint, signed by Magistrate Judge Sheila K. Oberto on 8/7/18. CASE CLOSED. (Marrujo, C)

1
2
3
4
5
6
7
8

UNITED STATES DISTRICT COURT

9

EASTERN DISTRICT OF CALIFORNIA

10

FRED D. McMILLEN IV,

11

Case No. 1:17–cv–00664–SKO

Plaintiff,

12

v.

13

NANCY A. BERRYHILL,
Acting Commissioner of Social Security,

14

(Doc. 1)

Defendant.

15

ORDER ON PLAINTIFF’S SOCIAL
SECURITY COMPLAINT

_____________________________________/

16
17

I.

18

INTRODUCTION

On May 13, 2017, Plaintiff Fred D. McMillen IV (“Plaintiff”) filed a complaint under 42

19

20 U.S.C. § 405(g) seeking judicial review of a final decision of the Commissioner of Social
21 Security (the “Commissioner” or “Defendant”) denying his application for Disability Insurance
22 Benefits. (Doc. 1.) The matter is currently before the Court on the parties’ briefs, which were
23 submitted, without oral argument, to the Honorable Sheila K. Oberto, United States Magistrate
24 Judge.1
II. BACKGROUND

25

On October 31, 2012, Plaintiff filed an application for Disability Insurance Benefits,

26

27 alleging that he became disabled on June 1, 2011, due to hypothyroidism, lumbar spine
28

1

The parties consented to the jurisdiction of a U.S. Magistrate Judge. (Docs. 8, 10.)

1 impairment, herniated disc, severe back pain, and thoracic spine impairment. (Administrative
2 Record (“AR”) 158–60, 176.) Plaintiff’s date last insured was March 31, 2014. (AR 23.) Plaintiff
3 was 42 years old on his date last insured. (See AR 158, listing Plaintiff’s date of birth as March
4 22, 1972.) Plaintiff has a high school education, and previously worked as a truck driver from
5 1996 to 2004, a museum host from 2006 to 2008, a bus driver from 2009 to 2010, and a limo
6 driver from March to June 2011. (AR 175, 177.)
7 A.

Relevant Medical Evidence2

8

1.

9

On May 9, 2005, Plaintiff had an MRI performed of his thoracic spine at Mountain

Mountain Diagnostics

10 Diagnostics in Las Vegas, Nevada. (AR 888.) The results were compared to an MRI of
11 Plaintiff’s thoracic spine from November 2003 and revealed “slight dorsal spinal cord
12 displacement at T7–8 and intermittent mild spinal cord encroachment[.]” (AR 888.)
13

2.

14

On June 3, 2010, Plaintiff presented to Dr. Stacey to follow up on previous lab tests and

Michelle Stacey, M.D.

15 refill his medication. (AR 362.) Dr. Stacey’s physical examination of Plaintiff was
16 unremarkable except for mild tenderness upon palpation in the lumbar spine and decreased deep
17 tendon reflex at the knee on the right side. (AR 363.) Dr. Stacey ordered an MRI of Plaintiff’s
18 thoracic and lumbar spine and opined that Plaintiff would benefit from pain management and a
19 surgery evaluation. (AR 364.) Dr. Stacey also ordered an ultrasound of Plaintiff’s thyroid
20 following Plaintiff’s complaints of pain and swelling on the right side of his neck. (AR 362,
21 364.)
22

On July 1, 2010, Plaintiff told Dr. Stacey his back was bothering him more than usual and

23 he had increasing pain that radiated down his right leg. (AR 357.) When Plaintiff returned to
24 Dr. Stacey on July 30, 2010 to review the results of his MRI, Plaintiff complained of neck
25 problems and continued back pain. (AR 350–51.) The MRI of Plaintiff’s thoracic spine
26 revealed mild degenerative disc disease, a prominent posterior disc bulge at T8–T9 without
27
28

As Plaintiff’s assertions of error are limited to the ALJ’s discrediting of the medical opinions of Michelle Stacey,
M.D., Rustom Damania, M.D., and Nurse Practitioner Pamela Rico, as well as the ALJ’s adverse credibility
determination against Plaintiff, only evidence relevant to those arguments is set forth in this Order.
2

2

1 spinal stenosis or neural impingement, and no acute or subacute compression fractures. (AR
2 355.) The MRI of Plaintiff’s lumbar spine revealed a moderate central disc bulge at L4–L5 with
3 moderate narrowing of the lateral recess, minimal degenerative disc disease of L5–S1, an
4 annular tear with a mild to moderate diffuse central disc bulge, and minor narrowing of the left
5 compared with the right lateral recess. (AR 353.)
6

On August 27, 2010, Dr. Stacey received the results of the ultrasound on Plaintiff’s

7 thyroid, which revealed several thyroid nodules, particularly on the right side. (AR 345, 349.)
8 Plaintiff continued to experience pain and swelling in his neck so his back surgery consultation
9 was put on hold until after his thyroid surgery. (AR 322, 324, 326.) On November 29, 2010,
10 Plaintiff underwent a total thyroidectomy. (AR 335–36.) Plaintiff’s surgeon wrote a letter to
11 Dr. Stacey stating that Plaintiff “did great” with the surgery and his pathology was benign. (AR
12 333.)
13

On January 20, 2011, Plaintiff continued to complain of back pain, but his back surgery

14 consultation was delayed because he failed to provide the court in his workers’ compensation
15 case with his medical records in a timely manner. (AR 313.) Dr. Stacey noted Plaintiff had
16 radiculopathy symptoms in his legs, but was in no acute distress. (AR 314.) Plaintiff reported
17 that taking oxycodone instead of Percocet and Lortab was “working out well for his stomach,”
18 but he would like to increase the dosage to adequately control his pain. (AR 314.)
19

On February 17, 2011, Plaintiff reported that he initially felt okay after his thyroidectomy,

20 but he was experiencing pain at the incision site, which worsened when he laid down. (AR 310–
21 11.) Plaintiff also complained of continued back pain that radiated down to his leg. (AR 311.)
22 Plaintiff’s symptoms continued at his appointment on March 17, 2011, but he reported his pain
23 was “fairly well controlled with his medication.” (AR 307.) Dr. Stacey noted that Plaintiff had
24 a surgery consultation pending, but was still waiting for his workers’ compensation case to be
25 processed. (AR 307.) Dr. Stacey started Plaintiff on Neurontin for his neuropathy. (AR 308.)
26

On April 14, 2011, Plaintiff reported the Neurontin worked “really well” at controlling his

27 neck pain, which was almost completely resolved. (AR 304.) Dr. Stacey noted Plaintiff’s
28 condition was stable and Plaintiff had a hearing coming up in June in his workers’ compensation
3

1 case, which Dr. Stacey hoped would allow Plaintiff’s back surgery to move forward. (AR 304.)
2 Plaintiff reported he had gone back to work, which had exacerbated his pain, but he did not want
3 to change his pain medication. (AR 304.) Plaintiff continued to have pain in his lower back and
4 legs at his appointment on May 11, 2011. (AR 296.)
5

In a letter dated August 14, 2012, Dr. Stacey wrote that Plaintiff suffered from multiple

6 medical issues including degenerative disc disease confirmed by MRI, hypothyroidism status
7 post thyroidectomy, nephrolithiasis, gout, and hypertension. (AR 604.) Dr. Stacey stated that
8 Plaintiff remained symptomatic with numbness and tingling in his bilateral lower extremities
9 and chronic neck and back pain, despite medical therapy. (AR 604.) Dr. Stacey also stated
10 Plaintiff “need[ed] further evaluation by pain management, orthopedic surgery, and further
11 testing (potentially neurologic evaluation).” (AR 604.) Finally, Dr. Stacey opined that Plaintiff
12 had been unable to work because of his chronic back problems and side effects of his opioid
13 medications. (AR 604.)
Physician’s Assistant David Armitage

14

3.

15

On December 22, 2010, Plaintiff presented to Dr. Stacey’s physician’s assistant, PA

16 Armitage, to follow up on the results of his thyroidectomy performed during the previous month.
17 (AR 317.) Plaintiff reported his pain medication was no longer as effective as it used to be and
18 his blood pressure increased whenever he took the medication. (AR 317.) Upon examination,
19 PA Armitage found Plaintiff to be alert, oriented, and in no acute distress. (AR 317–18.)
20

On June 8, 2011, PA Armitage noted that when Plaintiff walked, “he held his back really

21 straight” and he would use his arm to push himself up when he stood up out of a chair. (AR
22 293.) PA Armitage recommended Plaintiff continue wearing his back brace and increased his
23 Neurontin prescription. (AR 294.) On July 5, 2011, Plaintiff reported that his back was “just
24 killing him” and he felt like he had “a knife stuck between his shoulder blades all the time.”
25 (AR 285.) The oxycodone helped alleviate Plaintiff’s pain, but its effectiveness wore off
26 quickly. (AR 285.) Plaintiff further reported that his hands were going numb and he was losing
27 fine motor coordination in his left hand. (AR 285.) Plaintiff also stated his workers’
28 compensation case was “dragging on and on” so he would look into private insurance because
4

1 his back pain was getting worse and he wanted the surgery to fix it. (AR 285.) Upon
2 examination, PA Armitage noted Plaintiff had +4 strength in all muscle groups of his upper
3 extremities and a marked tremor against resistance or exertion of his left upper extremity, as
4 well as neuropathy and radiculopathy of the upper and lower extremities. (AR 286.) PA
5 Armitage also noted that Plaintiff had good fine and gross motor control; was able to sit, stand,
6 and walk without difficulty; and had a normal gait. (AR 286.) PA Armitage prescribed Contin
7 and recommended Plaintiff cut back on oxycodone. (AR 286–87.) PA Armitage also ordered
8 another MRI of Plaintiff’s thoracic and lumbar spine. (AR 287.)
9

On August 30, 2011, Plaintiff reported that his medications were “really, really helping”

10 and he was doing “much, much better.” (AR 274.) PA Armitage reviewed the results of
11 Plaintiff’s MRI with him. (AR 274.) According to the doctor that interpreted the images, the
12 MRI of Plaintiff’s thoracic spine was normal, but the MRI of the lumbar spine revealed
13 desiccation of L4–L5 and L5–S1; right paracentral/neuroforaminal disc protrusion associated
14 with an annular tear at L4–L5; questionable contact with the exiting right nerve root; and a mild,
15 broad-based disc bulge at L5–S1 with no significant associate stenosis. (AR 274, 288–89.) PA
16 Armitage provided a referral to orthopedic spine surgeon Dr. William Smith, M.D. (AR 275.)
17

On September 27, 2011, Plaintiff reported to PA Armitage that he was doing “pretty

18 good,” but that his back pain was getting worse. (AR 271.) Plaintiff was also doing “really
19 good” on November 28, 2011, even though he recently returned from a vacation where he was
20 not able to refill his prescription and had to drastically cut down on the medication to make it
21 last. (AR 265.) On December 27, 2011, Plaintiff again reported he was doing “pretty good,” but
22 that his back and legs still hurt. (AR 260.) On March 22, 2012, Plaintiff stated he was having
23 financial trouble and may need to cut back on his medication, but was going to Virginia for a
24 couple months to visit family and would also visit the Spinal Institute to see if a doctor there
25 could offer any assistance for his back pain. (AR 249.)
26

4.

27

On October 3, 2011, Plaintiff presented to Dr. Smith, an orthopedic surgeon, with

William Smith, M.D.

28 complaints of increasing back pain for the previous seven years. (AR 239.) Dr. Smith noted
5

1 Plaintiff had percussion tenderness of this mid-thoracic and lower lumbar spine with flexion and
2 extension that was 80% of normal and “quite painful.” (AR 241.) Dr. Smith further noted that
3 Plaintiff had right sciatic tenderness as well as diminished sensation in the left and right L5
4 dermatomes. (AR 241.) Deep tendon reflexes were normal, active, and symmetrical, and
5 Plaintiff walked with an antalgic gait. (AR 241.) Dr. Smith opined that although Plaintiff’s
6 thoracic spine MRI was read as normal, there was a loss of discal height at T8 and T7. (AR
7 242.) Dr. Smith ordered a CT scan of Plaintiff’s thoracic spine and x-rays of his lumbar spine,
8 and referred him to pain management for epidural steroid injections. (AR 242.) Dr. Smith
9 instructed Plaintiff to return after these studies were done. (AR 242.)
10

The CT scan of Plaintiff’s thoracic spine revealed mild degenerative changes, but no

11 significant canal narrowing, only mild canal narrowing at T7–T8, and mild to moderate
12 foraminal narrowing at the T9–T10 level. (AR 255.) Plaintiff reported to PA Armitage that he
13 attempted several times to make a subsequent appointment with Dr. Smith, but he was unable to
14 get through and Dr. Smith sent him a “massive bill” that he was trying to work out. (AR 257,
15 260.)
16

5.

17

On April 23, 2013, Plaintiff presented to the Saint Agnes Medical Center emergency

Saint Agnes Medical Center

18 room complaining of neck and shoulder pain. (AR 428.) Plaintiff rated his pain as an eight on a
19 scale of one to ten. (AR 432.) The doctor noted Plaintiff was alert, in no acute distress, and had
20 normal range of motion and normal strength with no swelling or deformities. (AR 429.)
21 Plaintiff’s diagnosis was radicular right arm pain. (AR 429.) Plaintiff was instructed to take
22 ibuprofen for his pain and follow up with his doctor if the pain did not go away. (AR 437.)
23

6.

24

On May 16, 2013, Dr. Damania performed an internal medicine evaluation of Plaintiff at

Rustom F. Damania, M.D.

25 the request of state agency. (AR 414–19.) Plaintiff reported he experienced continuous lower
26 back pain since 2003 when he suffered an injury at work. (AR 414.) According to Plaintiff, the
27 pain radiated to his left leg and was associated with paresthesias, numbness, and weakness. (AR
28 414.) The pain in his thoracic spine radiated to both shoulders, upper back, and into both arms
6

1 with paresthesias. (AR 414.) Plaintiff stated he had used a cane since 2011 because he was
2 unable to stand up from a seated position due to pain and weakness in his left leg. (AR 414.)
3 Plaintiff also stated he did not have workers’ compensation or medical insurance and had not
4 been to a doctor for a follow up appointment since May 2012. (AR 414.)
5

Upon physical examination, Dr. Damania observed Plaintiff’s neck and upper and lower

6 extremities to have full range of motion within normal limits. (AR 416–17.) Dr. Damania’s
7 examination also revealed tenderness at the T7–T8 level, but no signs of radiculopathy in the
8 upper extremities; positive straight leg raise test on the left at 45 degrees in the sitting position;
9 and reduced forward flexion, extension, and lateral flexion in Plaintiff’s back. (AR 416–17.)
10 Plaintiff’s muscle strength in the right lower extremity was 5/5 and 4/5 in the left lower
11 extremity with no obvious wasting. (AR 418.) Plaintiff had sensory impairment in the L4–L5
12 distribution of the left lower leg and normal deep tendon reflexes. (AR 418.)
13

After examining Plaintiff and reviewing the available medical records, Dr. Damania

14 opined Plaintiff could lift and carry twenty pounds occasionally and ten pounds frequently, stand
15 and walk four hours out of an eight-hour workday, and sit two to four hours out of an eight-hour
16 workday. (AR 419.) Dr. Damania further opined that Plaintiff did not need an assistive device
17 for ambulation even though Plaintiff subjectively stated he needed a cane because of left lower
18 extremity weakness. (AR 419.) Dr. Damania limited Plaintiff to occasional bending, stooping,
19 crouching, crawling, or kneeling, and no climbing or balancing. (AR 419.) Dr. Damania
20 identified no manipulative impairments and no relevant visual or communicative impairments.
21 (AR 419.)
22

7.

23

On November 5, 2013, NP Helen Monnens at the Community Rural Health Clinic in

Nurse Practitioner Helen Monnens

24 Oakhurst, California, ordered x-rays of Plaintiff’s cervical spine and thoracic spine because
25 Plaintiff was experiencing pain in his bilateral mandibles and numbness in his hands. (AR 448,
26 461.) According to the doctor reading the images, the x-rays of Plaintiff’s cervical spine
27 revealed mild degenerative changes of the cervical spine with neural foraminal narrowing and
28 straightening of the normal cervical lordosis that might have been due to Plaintiff’s positioning
7

1 and/or muscle spasm. (AR 449, 459.) The x-rays of the thoracic spine revealed mild
2 degenerative changes and a suggestion of diffuse osseus demineralization. (AR 450, 460.)
3

MRIs of Plaintiff’s cervical spine and thoracic spine were also performed on December

4 11, 2013. (AR 452–58.) According to the doctor reading the images, the MRI of Plaintiff’s
5 cervical spine revealed degenerative changes in the cervical spine; mild reversal of the normal
6 cervical lordosis at C4–C5; a two-millimeter left paracentral disc osteophyte complex at C4–C5,
7 which mildly indented the left ventral surface of the spinal cord; a two-millimeter central
8 protrusion with associated annular fissuring at the C5–C6 level, which caused a mild impression
9 on the ventral surface of the spinal cord; and a one-millimeter central protrusion with associated
10 annular fissuring, which indented the thecal sac at the C6–C7 level. (AR 453.) The MRI of
11 Plaintiff’s thoracic spine revealed mild chronic wedging of the T6 vertebral body with
12 approximately 15% loss of height, with the rest of the rest of the heights preserved; a normal
13 thoracic spinal cord; and a small central protrusion with associated annular fissuring, which
14 indented the thecal sac, but did not contact the spinal cord. (AR 455–56.) No spinal canal
15 stenosis, neural foraminal narrowing, or abnormal signal in the ligaments or paraspinal muscles,
16 were noted. (AR 455–56.)
17

NP Monnens’ treatment notes from December 19, 2013 state she was referring Plaintiff to

18 a neurosurgeon. (AR 457.)
19

8.

20

On February 13, 2014, Plaintiff presented to NP Pamela Rico at Primary Care Consultants

Nurse Practitioner Pamela Rico

21 in Oakhurst, California, to establish care. (AR 613.) According to Plaintiff, he established care
22 at Primary Care Consultants because his previous provider “dropped the ball” and he was
23 waiting for a referral to a neurosurgeon that was never provided. (AR 613.) Plaintiff reported
24 he had “weaned himself off all meds,” but did have a bottle of Norco from his previous provider
25 that he was trying to stretch as long as possible. (AR 613.) Plaintiff also reported he was angry
26 that he was not getting the disability benefits to which he felt entitled and had not attended
27 physical therapy recently because he could not afford to travel to Oakhurst one to two times a
28 week. (AR 613.)
8

1

Plaintiff complained of muscle cramps, joint pain, back pain, muscle weakness, and loss

2 of strength. (AR 617.) On physical examination, NP Rico observed Plaintiff to be in no acute
3 distress and have normal, full range of motion in all joints, with weakness to upper extremity
4 grips. (AR 617.) NP Rico noted Plaintiff had a steady gait and changed position with ease, but
5 had spasms in his cervical spine and upper shoulder area. (AR 617.) NP Rico prescribed Norco
6 and Synthroid, ordered several additional tests, and referred Plaintiff for a physical therapy
7 consultation. (AR 620.) Plaintiff’s treatment notes from his February 13, 2014 appointment
8 were electronically signed by both NP Rico and Dr. Kathleen Baron, M.D. (AR 621.)
9

Plaintiff returned to NP Rico on March 4, 2014 to follow up on his test results. (AR 642.)

10 NP Rico reviewed Plaintiff’s previous MRIs and explained to Plaintiff that his MRI results were
11 not severe enough to warrant surgery at that time. (AR 642.) NP Rico encouraged Plaintiff to
12 participate in physical therapy because if he did not show improvement, it would help show the
13 neurologist that he had tried everything before surgery. (AR 642.) Plaintiff refused to try
14 physical therapy because he said he could not afford to travel to Oakhurst twice a week; NP Rico
15 reminded Plaintiff of a service that would provide free transportation to his appointments. (AR
16 642.)
17

NP Rico’s treatment notes, co-signed by Dr. Baron, for Plaintiff’s appointments on April

18 10, May 2, May 28, July 1, July 22, and September 12, 2014, indicate his condition generally
19 remained unchanged. (AR 657, 663, 673–74, 680, 686, 854.) Specifically, Plaintiff continued
20 to be in no acute distress, walk with a steady gait, change positions with ease, and have normal
21 range of motion in his extremities with weakness in his upper extremity grips and spasms in his
22 cervical spine and upper shoulder area. (AR 656, 662, 672–73, 679, 685, 853.)
23

An MRI of Plaintiff’s lumbar spine was performed on August 13, 2014. (AR 840.)

24 According to the doctor reading the MRI results, the MRI revealed degenerative changes in the
25 lumbar spine, a three-millimeter central protrusion with associated annular fissuring at the L5–
26 S1 level, and a two-millimeter right paracentral protrusion with associated annular fissuring at
27 the L4–L5 level. (AR 840.) Plaintiff also had MRIs taken of his cervical spine and thoracic
28 spine on September 4, 2014. (AR 844–49.) According to the doctor interpreting the images, the
9

1 cervical spine revealed unchanged findings from the earlier MRI on December 11, 2013. (AR
2 844.) The MRI of the thoracic spine revealed degenerative changes similar to the MRI in
3 December 2013, as well as fissuring of the posterior portion of the annulus at the T5–T6 level
4 and a one-millimeter central protrusion with associated annular fissuring at the T7–T8 level.
5 (AR 848.) The reviewing doctor also noted mild chronic anterior wedging of the T6 vertebral
6 body, with approximately 15% loss of height, which was unchanged compared to the prior MRI
7 in December 2013. (AR 848.)
8

On September 14, 2014, NP Rico completed a Disability Impairment Questionnaire for

9 Plaintiff. (AR 499–503.) NP Rico diagnosed Plaintiff with neck pain, thoracic pain, lumbar
10 back pain, herniated discs (cervical and lumbar), and nerve root and plexus disorder. (AR 499.)
11 As support for her diagnosis, NP Rico generally cited “multiple images” without specifying any
12 particular images and stated Plaintiff had “seen specialists” and had a pending surgery. (AR
13 499.) NP Rico opined that Plaintiff could perform a job in a seated position for less than one
14 hour in an eight-hour workday and needed to get up from a seated position every thirty minutes
15 for five to ten minutes. (AR 501.) NP Rico also opined that Plaintiff could perform a job in a
16 standing and/or walking position for less than one hour in an eight-hour day, and had significant
17 limitations in reaching, handling, or fingering. (AR 501–02.) According to NP Rico, Plaintiff
18 could occasionally lift and carry up to ten pounds, but could never lift or carry more than ten
19 pounds. (AR 501.) NP Rico concluded Plaintiff would need several unscheduled breaks of ten
20 to fifteen minutes, and on average, would likely be absent more than three times per month due
21 to his impairments. (AR 502–03.) NP Rico opined Plaintiff’s limitations and symptoms applied
22 as far back as March 1, 2010. (AR 503.) According to Plaintiff, both NP Rico and Dr. Baron
23 signed the opinion, but the purported signature of Dr. Baron is illegible. (AR 70, 503; see also
24 Doc. 17 at 24.)
25

9.

26

On April 4, 2014, Plaintiff saw Dr. Jawien for a hematology/oncology consultation. (AR

William J. Jawien, M.D.

27 473.) Dr. Jawien’s examination of Plaintiff’s back and spine revealed no kyphosis, scoliosis,
28 compression fractures, or tenderness. (AR 474.) Plaintiff had a normal gait and normal range of
10

1 motion with no obvious weakness. (AR 474–75.) Dr. Jawien assessed Plaintiff with
2 leukocytosis, chronic neck and back pain, and questionable hepatomegaly with increased hepatic
3 echogenicity. (AR 475.) On May 6, 2014, Plaintiff returned to Dr. Jawien for a follow up
4 appointment and Plaintiff’s physical examination remained unremarkable. (AR 478.)
5

10.

6

On April 30, 2014, Plaintiff presented to neurologist Dr. Joshi complaining of numbness

Rohini J. Joshi, M.D.

7 and tingling in his limbs and ringing in his ears. (AR 468.) Upon physical examination, Dr.
8 Joshi found Plaintiff to have normal muscle tone and strength in his upper and lower extremities,
9 with normal bilateral sensation and reflexes. (AR 469–70.) Dr. Joshi noted Plaintiff’s
10 coordination and gait were normal. (AR 470.) Dr. Joshi diagnosed Plaintiff with cervical
11 spondylosis and referred Plaintiff for pain management and neurological surgery. (AR 470.)
12

Dr. Joshi ordered a neurologic evaluation of Plaintiff, which was performed by Dr. Boota

13 Cahil, M.D. on July 28, 2014. (AR 472.) Dr. Cahil found that motor and sensory nerve
14 conduction studies of the right and left median and ulnar nerves were normal. (AR 472.) There
15 was no evidence of compression neuropathy, polyneuropathy, or ongoing cervical
16 radioculopathy. (AR 472.)
17

Dr. Joshi’s examination on August 21, 2014 yielded similar findings to Plaintiff’s April

18 appointment. (AR 466–67.) On October 1, 2014, Dr. Joshi noted Plaintiff had restricted range
19 of motion of the proximal upper extremity with positional pain in the neck. (AR 462.) Dr.
20 Joshi’s examination of Plaintiff yielded otherwise unremarkable results with Plaintiff showing
21 normal muscle tone and strength, reflex, coordination, and gait. (AR 464.)
22

11.

23

On June 10, 2013, W. Jackson, M.D., a Disability Determination Services medical

State Agency Physicians

24 consultant, reviewed the medical evidence of record and concluded Plaintiff could lift and carry
25 twenty pounds occasionally and ten pounds frequently; stand and walk four hours in an eight26 hour day with normal breaks; sit six hours in an eight-hour day with normal breaks; and perform
27 postural activities occasionally. (AR 81–82.) Dr. Jackson identified no manipulative, visual,
28 communicative, or environmental limitations. (AR 82.) Upon reconsideration, on March 8,
11

1 2014, another Disability Determination Services medical consultant, Lisa Mani, M.D.,
2 performed an independent review of Plaintiff’s medical records and affirmed Dr. Jackson’s
3 opinion. (AR 94–95.)
4 B.

Administrative Proceedings

5

The Commissioner denied Plaintiff’s application for Disability Insurance Benefits initially

6 on June 13, 2013, and again on reconsideration on March 10, 2014. (AR 101–05, 107–11.)
7 Consequently, Plaintiff requested a hearing before an Administrative Law Judge (“ALJ”). (AR
8 113–19.)

At the hearing on October 15, 2015, Plaintiff appeared with a non-attorney

9 representative and testified before an ALJ as to his alleged disabling conditions. (AR 21; see
10 generally AR 43–73.)
Plaintiff’s Testimony

11

1.

12

Plaintiff testified that he suffers from disabling neck and back pain, but his neck is the

13 more significant issue. (AR 48.) Plaintiff testified that his neck pain began around January 2013
14 and caused him to lose control of his fine motor skills. (AR 48.) According to Plaintiff, he
15 experiences a burning sensation that radiates from his jaw, down to his shoulders, arms, hands,
16 chest, and rib area and a stabbing sensation in his jaw after he eats. (AR 48–49.) Plaintiff takes
17 several medications, which help alleviate the pain. (AR 49.) Plaintiff also participates in pain
18 management therapy and uses a TENS unit, which helps with the inflammation. (AR 49.)
19 Plaintiff also testified he was undergoing surgery on his neck one week after testifying at the
20 hearing in October 2015. (AR 50–51.) The neck surgery took over two years to schedule
21 because Plaintiff does not have medical insurance. (AR 59.)
22

With regard to his back pain, Plaintiff testified that it started when he fell at work in 2004.

23 (AR 51.) Plaintiff stated that he feels like there is “a knife or something stuck in the middle of
24 my back all the time” and the pain radiates around his ribs to his sternum/chest area. (AR 52.)
25 The pain also radiates down his legs such that he experiences numbness and a burning sensation
26 in his legs, especially in his thighs, which is worse in his left leg. (AR 61.) However, Plaintiff
27 also testified the burning sensation has “been temporarily stuck to my shoulders and arms, but
28 not my legs” and “it’s just been numbness and sometimes shooting pain down my legs.” (AR
12

1 62.) He experiences pain every day that fluctuates depending on what he is doing. (AR 52.)
2 According to Plaintiff, standing and stooping make the pain worse, but he can alleviate the pain
3 by “lean[ing] up against the wall with the flat of [his] back and lock[ing] [his] legs.” (AR 52–
4 53.) Despite experiencing continuous pain for eleven years, Plaintiff has not had any surgeries
5 performed on his back and is not receiving any treatment for his back. (AR 53.) Plaintiff
6 explained that he is waiting to complete the neck surgery before addressing his back and delayed
7 the back surgery “until technology caught up” because he felt the back surgery was too invasive
8 for the problems he was experiencing at the time. (AR 53.)
9

Plaintiff testified that, as a result of his neck and back pain, he can sit for a couple hours

10 before he needs to get up and move around for five to ten minutes. (AR 54–55.) He can stand
11 for around a half hour without sitting before he needs to sit for ten to fifteen minutes. (AR 54–
12 55.) He can walk a quarter mile at a time and lift five to ten pounds. (AR 55.) He does not
13 experience any side effects from his medication, other than his blood pressure medication, which
14 sometimes makes him drowsy. (AR 57.) He was uncertain whether he could go back to work
15 at a job that involved mostly sitting, some standing or walking, and light lifting. (AR 59.)
16

On a typical day, Plaintiff wakes up and helps his wife get ready for work. (AR 56.) He

17 is capable of independently handling his daily personal care including dressing, bathing,
18 grooming, and toileting. (AR 57.) He takes care of the animals at his house, which include three
19 dogs and a chicken, and helps with laundry and cooking. (AR 56.) When he cooks, he has
20 trouble chopping and using a knife, but he can prepare quick and simple meals. (AR 61.) He
21 does some cleaning, but no vacuuming, and he does not clean the dishes because he has broken
22 too many dishes due to his deteriorating fine motor skills. (AR 56.) Plaintiff testified that he
23 does not go shopping and has not driven for the past few months because his doctors advised
24 that he not drive until he gets surgery on his neck. (AR 47, 57.) When he leaves the house,
25 Plaintiff generally goes to visit with his in-laws who live less than a half mile away. (AR 57.)
26

Plaintiff testified he is capable of using a computer including typing and manipulating the

27 mouse, but does not have a computer because he cannot afford one. (AR 57–58, 60.) He has
28 difficulty with writing and pushing buttons, and cannot raise his arms above his shoulders. (AR
13

1 60–61.) His legs give out on him a couple times a month, usually after getting up from sitting
2 down for extended periods. (AR 62.) If he lays down flat, his arms and shoulders go completely
3 numb, so the most comfortable position is lying down with his upper body and legs elevated.
4 (AR 62–63.) According to Plaintiff, he sleeps four hours total each night, which is interrupted
5 every hour for him to move, and takes a nap for up to an hour in the afternoon. (AR 63.)
Vocational Expert’s Testimony

6

2.

7

A Vocational Expert (“VE”) testified at the hearing that Plaintiff has past work experience

8 as (1) a chauffeur, Dictionary of Operational Titles (“DOT”) code 359.673-010, which was
9 semiskilled, light work, with a specific vocational preparation (“SVP”) of 3; (2) bus driver, DOT
10 code 913.463-010, which was semiskilled, medium work, with an SVP of 4; (3) sightseeing
11 guide, DOT code 353.363-010, which was semiskilled, light work, with an SVP of 4; and (4)
12 truck driver, DOT 904.383-010, which was semiskilled, medium work, with an SVP of 4. (AR
13 66–67.)
14

The ALJ then asked the VE three hypothetical questions. First, the ALJ asked the VE to

15 consider a person with Plaintiff’s past work experience and vocational factors, who is limited to
16 sedentary work with no more than occasionally climbing ramps and stairs, balancing, stooping,
17 kneeling, crouching, crawling, and exposure to moving mechanical parts, but never climbing
18 ropes, ladders, or scaffolds. (AR 67.) The ALJ then asked the VE whether, given this, such a
19 person could perform any of Plaintiff’s past work. (AR 67.) The VE testified that such a person
20 could not perform any of Plaintiff’s past relevant work. (AR 67–68.) However, he could perform
21 the following unskilled, sedentary jobs: (1) ticket counter worker, DOT code 219.587-010, SVP
22 of 2, for which there exists approximately 74,000 jobs in the national economy, and (2) charge
23 account clerk, DOT code 205.367-014, SVP of 2, for which there exists approximately 35,000
24 jobs in the national economy. (AR 68.)
25

The ALJ then asked the VE a second hypothetical question considering the same person

26 with the same capabilities as outlined in the first hypothetical, but who is limited to frequent
27 bilateral handling, fingering, and feeling. (AR 68.) The VE testified that such a person could
28 perform the positions outlined in response to the first hypothetical question. (AR 68.)
14

1

The ALJ asked the VE a third hypothetical question considering the same person as

2 outlined in the first hypothetical, but who is limited to occasional bilateral handling, fingering,
3 and feeling. (AR 69.) The VE testified that such a person could not perform the positions
4 outlined in response to the first hypothetical question. (AR 69.)
5 C.

The ALJ’s Decision

6

In a decision dated January 25, 2016, the ALJ found that Plaintiff was not disabled. (AR

7 21–32.) The ALJ conducted the five-step disability analysis set forth in 20 C.F.R. § 404.1520.
8 (AR 22–23.) First, the ALJ found that Plaintiff’s had not engaged in substantial gainful activity
9 from the alleged onset date, June 1, 2011, through his date last insured of March 31, 2014. (AR
10 23.) At Step Two, the ALJ found that Plaintiff had the severe impairments of thoracic, cervical,
11 and lumbar degenerative disc disease, and hypothyroidism. (AR 23.) However, at Step Three,
12 the ALJ found Plaintiff did not have an impairment or combination of impairments that met or
13 medically equaled one of the listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1
14 (“the Listings”). (AR 23–24.) The ALJ determined that Plaintiff had the residual functional
15 capacity (“RFC”)3
16

to perform sedentary work as defined in 20 CFR 404.1567(a) except
lift and carry 20 pounds occasionally and frequently 10. Sit, stand
and walk for 6 hours out of an 8-hour workday. He can occasionally
climb ramps, and stairs, balance, stoop, kneel, crouch and crawl. He
cannot climb ropes, ladders or scaffolds, or work at unprotected
heights. He can occasionally [sic] work around moving mechanical
parts.

17
18
19
20

21 (AR 16.) Of particular relevance to the claims asserted by Plaintiff in the instant action, the ALJ
22 discounted Dr. Stacey’s opinion regarding Plaintiff’s RFC because it “is contrary to the rather mild
23 objective findings noted in Dr. Stacey’s progress notes” and “there is no mention of significant
24 medication side effects rather that they have worked well in controlling his complaints of pain.”
25
3

26
27
28

RFC is an assessment of an individual’s ability to do sustained work-related physical and mental activities in a
work setting on a regular and continuing basis of eight hours a day, for five days a week, or an equivalent work
schedule. Social Security Ruling 96-8p. The RFC assessment considers only functional limitations and restrictions
that result from an individual’s medically determinable impairment or combination of impairments. Id. “In
determining a claimant’s RFC, an ALJ must consider all relevant evidence in the record including, inter alia,
medical records, lay evidence, and ‘the effects of symptoms, including pain, that are reasonably attributed to a
medically determinable impairment.’” Robbins v. Soc. Sec. Admin., 466 F.3d 880, 883 (9th Cir. 2006).

15

1 (AR 28.) The ALJ also discounted the opinion of NP Rico because, as a nurse practitioner, she
2 was not an acceptable medical source under the Social Security regulations and NP Rico’s
3 “objective findings during physical examinations are not supportive of her opinion.” The ALJ
4 gave “significant weight” to the opinion of consultative examiner Dr. Damania and “great weight”
5 to the opinions of state agency medical consultants Dr. Jackson and Dr. Mani because these
6 opinions were consistent with the overall medical record. (AR 29.) Finally, the ALJ found
7 Plaintiff’s statements concerning his symptoms “not entirely credible” because his testimony was
8 inconsistent with his daily activities and objective medical evidence in the record, and Plaintiff
9 was able to effectively manage his symptoms through conservative medical treatment without
10 hospitalization or surgery and work for several years after the accident that caused his back pain.
11 (AR 29–30.) The ALJ determined that, given his RFC, Plaintiff was unable to perform any past
12 relevant work (Step Four), but that Plaintiff was not disabled because he could perform a
13 significant number of other jobs in the local and national economies, specifically ticket counter
14 worker and charge account clerk (Step Five).
15

Plaintiff sought review of this decision before the Appeals Council, which denied review

16 on March 9, 2017. (AR 1–6.) Therefore, the ALJ’s decision became the final decision of the
17 Commissioner. 20 C.F.R. § 404.981. Plaintiff filed a complaint before this Court on May 13,
18 2017 seeking review of the ALJ’s decision. (Doc. 1.)
19
20

III. SCOPE OF REVIEW
The ALJ’s decision denying benefits “will be disturbed only if that decision is not supported

21 by substantial evidence or it is based upon legal error.” Tidwell v. Apfel, 161 F.3d 599, 601 (9th
22 Cir. 1999). In reviewing the Commissioner’s decision, the Court may not substitute its judgment
23 for that of the Commissioner. Macri v. Chater, 93 F.3d 540, 543 (9th Cir. 1996). Instead, the
24 Court must determine whether the Commissioner applied the proper legal standards and whether
25 substantial evidence exists in the record to support the Commissioner’s findings. See Lewis v.
26 Astrue, 498 F.3d 909, 911 (9th Cir. 2007).
27

“Substantial evidence” means “such relevant evidence as a reasonable mind might accept

28 as adequate to support a conclusion.” Richardson v. Perales, 402 U.S. 389, 401 (1971) (quoting
16

1 Consol. Edison Co. of N.Y. v. NLRB, 305 U.S. 197, 229 (1938)). “Substantial evidence is more
2 than a mere scintilla but less than a preponderance.” Ryan v. Comm’r of Soc. Sec., 528 F.3d 1194,
3 1198 (9th Cir. 2008). The Court “must consider the entire record as a whole, weighing both the
4 evidence that supports and the evidence that detracts from the Commissioner’s conclusion, and
5 may not affirm simply by isolating a specific quantum of supporting evidence.” Lingenfelter v.
6 Astrue, 504 F.3d 1028, 1035 (9th Cir. 2007) (citation and internal quotation marks omitted).
7
8

IV. APPLICABLE LAW
An individual is considered disabled for purposes of disability benefits if he or she is unable

9 to engage in any substantial, gainful activity by reason of any medically determinable physical or
10 mental impairment that can be expected to result in death or that has lasted, or can be expected to
11 last, for a continuous period of not less than twelve months. 42 U.S.C. § 423(d)(1)(A); see also
12 Barnhart v. Thomas, 540 U.S. 20, 23 (2003). The impairment or impairments must result from
13 anatomical, physiological, or psychological abnormalities that are demonstrable by medically
14 accepted clinical and laboratory diagnostic techniques and must be of such severity that the
15 claimant is not only unable to do his previous work, but cannot, considering his age, education,
16 and work experience, engage in any other kind of substantial, gainful work that exists in the
17 national economy. 42 U.S.C. § 423(d)(2)–(3).
18

The regulations provide that the ALJ must undertake a specific five-step sequential analysis

19 in the process of evaluating a disability. In the First Step, the ALJ must determine whether the
20 claimant is currently engaged in substantial gainful activity. 20 C.F.R. § 404.1520(b). If not, in
21 the Second Step, the ALJ must determine whether the claimant has a severe impairment or a
22 combination of impairments significantly limiting him from performing basic work activities. Id.
23 § 404.1520(c). If so, in the Third Step, the ALJ must determine whether the claimant has a severe
24 impairment or combination of impairments that meets or equals the requirements of the Listing of
25 Impairments (“Listing”), 20 C.F.R. 404, Subpart P, App. 1. Id. § 404.1520(d). If not, in the Fourth
26 Step, the ALJ must determine whether the claimant has sufficient residual functional capacity
27 despite the impairment or various limitations to perform his past work. Id. § 404.1520(f). If not,
28 in Step Five, the burden shifts to the Commissioner to show that the claimant can perform other
17

1 work that exists in significant numbers in the national economy. Id. § 404.1520(g). If a claimant
2 is found to be disabled or not disabled at any step in the sequence, there is no need to consider
3 subsequent steps. Tackett v. Apfel, 180 F.3d 1094, 1098–99 (9th Cir. 1999); 20 C.F.R. § 404.1520.
4
5

V. DISCUSSION
In his Opening Brief, Plaintiff contends the ALJ erred in four respects: (1) the ALJ failed

6 to articulate sufficient reasons for discrediting Dr. Stacey’s medical opinion; (2) the ALJ’s RFC
7 finding does not adequately reflect the opinion of Dr. Damania, to whom the ALJ gave significant
8 weight; (3) the ALJ erroneously discredited the opinion of NP Rico; and (4) the ALJ failed to
9 articulate clear and convincing reasons for discrediting Plaintiff’s subjective complaints. (See
10 generally Doc. 17 at 14–28.) Defendant responds that the ALJ properly weighed the conflicting
11 evidence and medical opinions regarding Plaintiff’s physical limitations and provided sufficient
12 reasons for discrediting Plaintiff’s subjective complaints. (Doc. 26 at 14–30.)
13 A.

The ALJ’s Consideration of the Medical Opinions

14

1.

15

The ALJ must consider and evaluate every medical opinion of record. See 20 C.F.R. §

Legal Standard

16 404.1527(b) and (c) (applying to claims filed before March 27, 2017); Mora v. Berryhill, No.
17 1:16–cv–01279–SKO, 2018 WL 636923, at *10 (E.D. Cal. Jan. 31, 2018). In doing so,
18 the ALJ “cannot reject [medical] evidence for no reason or the wrong reason.” Mora, 2018 WL
19 636923, at *10.
20

Cases in this circuit distinguish between three types of medical opinions: (1) those given

21 by a physician who treated the claimant (treating physician); (2) those given by a physician who
22 examined but did not treat the claimant (examining physicians); and (3) those given by a
23 physician who neither examined nor treated the claimant (non-examining physicians). Fatheree
24 v. Colvin, No. 1:13–cv–01577–SKO, 2015 WL 1201669, at *13 (E.D. Cal. Mar. 16, 2015).
25 “Generally, a treating physician’s opinion carries more weight than an examining physician’s,
26 and an examining physician’s opinion carries more weight than a reviewing physician’s.”
27 Holohan v. Massanari, 246 F.3d 1195, 1202 (9th Cir. 2001) (citations omitted); see also Orn v.
28 Astrue, 495 F.3d 625, 631 (9th Cir. 2007) (“By rule, the Social Security Administration favors
18

1 the opinion of a treating physician over non-treating physicians.” (citing 20 C.F.R. § 404.1527)).
2 The opinions of treating physicians “are given greater weight than the opinions of other
3 physicians” because “treating physicians are employed to cure and thus have a greater
4 opportunity to know and observe the patient as an individual.” Smolen v. Chater, 80 F.3d 1273,
5 1285 (9th Cir. 1996) (citations omitted).
6

To evaluate whether an ALJ properly rejected a medical opinion, in addition to

7 considering its source, the court considers whether (1) contradictory opinions are in the record;
8 and (2) clinical findings support the opinions. An ALJ may reject an uncontradicted opinion of
9 a treating or examining medical professional only for “clear and convincing” reasons. Lester v.
10 Chater, 81 F.3d 821, 830–31 (9th Cir. 1995). In contrast, a contradicted opinion of a treating or
11 examining professional may be rejected for “specific and legitimate reasons that are supported
12 by substantial evidence.” Trevizo v. Berryhill, 871 F.3d 664, 675 (9th Cir. 2017) (citing Ryan,
13 528 F.3d at 1198); see also Lester, 81 F.3d at 830–31. “The ALJ can meet this burden by setting
14 out a detailed and thorough summary of the facts and conflicting clinical evidence, stating his
15 interpretation thereof, and making findings.” Trevizo, 871 F.3d at 675 (citing Magallanes v.
16 Bowen, 881 F.2d 747, 751 (9th Cir. 1989)). While a treating professional’s opinion generally is
17 accorded superior weight, if it is contradicted by a supported examining professional’s opinion
18 (supported by different independent clinical findings), the ALJ may resolve the conflict.
19 Andrews v. Shalala, 53 F.3d 1035, 1041 (9th Cir. 1995) (citing Magallanes, 881 F.2d at 751).
20 The regulations require the ALJ to weigh the contradicted treating physician opinion, Edlund v.
21 Massanari, 253 F.3d 1152, 1157 (9th Cir. 2001),4 except that the ALJ in any event need not give
22 it any weight if it is conclusory and supported by minimal clinical findings. Meanel v. Apfel,
23 172 F.3d 1111, 1114 (9th Cir. 1999) (treating physician’s conclusory, minimally supported
24 opinion rejected); see also Magallanes, 881 F.2d at 751. The opinion of a non-examining
25 professional, by itself, is insufficient to reject the opinion of a treating or examining professional.
26 Lester, 81 F.3d at 831.
27
28

4

The factors include: (1) length of the treatment relationship; (2) frequency of examination; (3) nature and extent of
the treatment relationship; (4) supportability of diagnosis; (5) consistency; and (6) specialization. 20 C.F.R. §
404.1527.

19

The ALJ Stated Sufficient Reasons for Rejecting Dr. Stacey’s Opinion.

1

2.

2

Dr. Stacey was Plaintiff’s primary care physician and drafted a letter in August 2012

3 opining that Plaintiff was unable to work due to pain and side effects of his medications. (AR
4 604.) Dr. Stacey’s letter stated that as of August 2012, Plaintiff remained symptomatic with
5 numbness and tingling in his bilateral lower extremities and chronic neck and back pain, despite
6 medical therapy. (AR 604.) Dr. Stacey further opined that Plaintiff needed further evaluation for
7 pain management and orthopedic surgery as well as other testing. (AR 604.)
8

In rejecting Dr. Stacey’s opinion, the ALJ stated:

9

No significant weight can be accorded [Dr. Stacey’s] opinion as it is contrary to the
rather mild objective findings noted in Dr. Stacey’s progress notes. In addition,
there is no mention of significant medication side effects rather that they have
worked well in controlling his complaints of pain and he did not abuse them.

10
11

12 (AR 28.) An ALJ may properly discount a treating physician’s opinion that is inconsistent with
13 the physician’s treatment notes. Connett v. Barnhart, 340 F.3d 871, 875 (9th Cir. 2003) (“We
14 hold that the ALJ properly found that Dr. Magsarili’s extensive conclusions regarding Connett’s
15 limitations are not supported by his own treatment notes.”); see also Tonapetyan v. Halter, 242
16 F.3d 1144, 1149 (9th Cir. 2001) (finding that the ALJ properly rejected the opinion of a treating
17 physician since it was not supported by treatment notes or objective medical findings). Although
18 not specifically identified by the ALJ as a basis for its rejection, Dr. Stacey’s opinion is
19 contradicted by the medical opinion evidence of consultative examiner Dr. Damania and
20 Disability Determination Services non-examining consultants Drs. Jackson and Mani. These three
21 physicians all agreed that Plaintiff could (1) lift and carry twenty pounds occasionally and ten
22 pounds frequently; (2) stand and/or walk four hours in an eight-hour day; and (3) occasionally
23 climb, stoop, kneel, crouch, and crawl. (AR 81–82, 94–95, 419.) Thus, the ALJ was required to
24 state “specific and legitimate” reasons, supported by substantial evidence, for rejecting Dr.
25 Stacey’s opinion. Trevizo, 871 F.3d at 675 (citing Ryan, 528 F.3d at 1198); see also Lester, 81
26 F.3d at 830.
27

Here, the ALJ noted that Dr. Stacey’s opinion was contrary to her “rather mild objective

28 findings” in her treatment notes. For example, although Dr. Stacey concluded Plaintiff was unable
20

1 to work in any capacity at all, the ALJ noted Dr. Stacey performed an essentially normal physical
2 examination of Plaintiff. (AR 27 (citing AR 363).) The ALJ also cited by exhibit and page number
3 in the record to Dr. Stacey’s treatment notes in which Plaintiff reported subjective complaints of
4 back pain and radiculopathy symptoms in his legs, but upon physical examination Dr. Stacey
5 observed Plaintiff was in no acute distress. (AR 27 (citing AR 313–14).) The ALJ also cited to
6 Dr. Stacey’s treatment notes from April 2011––one of Plaintiff’s final appointments with Dr.
7 Stacey––in which Dr. Stacey noted that Plaintiff’s condition was stable and she again found
8 Plaintiff to be in no acute distress. (AR 27–28 (citing AR 304–05).) Such sharp contradictions
9 between Dr. Stacey’s treatment notes and her opinion letter constitute “specific and legitimate”
10 reasons for rejecting Dr. Stacey’s opinion.
11

Additionally, while Dr. Stacey opined Plaintiff could not work at all due to side effects from

12 his medication, the ALJ found there was no evidence in the record of significant side effects from
13 Plaintiff’s medication. In response, Plaintiff directs the Court to portions of the record in which
14 Plaintiff’s doctors counseled Plaintiff about potential side effects of his medication and one
15 instance in which Plaintiff reported that when he takes his pain medication, “his blood pressure
16 seems to go up.” (Doc. 17 at 17 (citing AR 286–87, 317, 364).) Although Plaintiff bears the
17 burden of demonstrating the ALJ erred, he has failed to satisfy his burden of pointing to any
18 evidence in the record that Plaintiff experienced debilitating side effects from his medication.
19 Miller v. Heckler, 770 F.2d 845, 849 (9th Cir. 1985) (upholding an ALJ’s decision where the
20 claimant had the burden of producing evidence that his use of prescription narcotics impaired his
21 ability to work, but failed to do so); see also Molina v. Astrue, 674 F.3d 1104, 1111 (9th Cir. 2012)
22 (“[T]he burden of showing that an error is harmful normally falls upon the party attacking the
23 agency’s determination.” (alterations in original) (quoting Shinseki v. Sanders, 556 U.S. 396, 409
24 (2009))). As Plaintiff failed to satisfy his burden of identifying evidence in the record showing
25 the ALJ erred, the Court finds the ALJ’s decision is supported by substantial evidence and will
26 not find the ALJ erred. See Flaten v. Sec’y of Health & Human Servs., 44 F.3d 1453, 1457 (9th
27 Cir. 1995) (“[W]e may set aside a denial of benefits only if it is not supported by substantial
28 evidence or if it is based on legal error.”).
21

1

The ALJ next found that Dr. Stacey’s treatment notes demonstrated that Plaintiff’s

2 medication “worked well in controlling his complaints of pain.” (AR 28.) In support of this
3 finding, the ALJ cited to Dr. Stacey’s treatment notes stating that Plaintiff reported his pain was
4 “fairly well controlled with his medication” in March 2011 and his medication “worked really
5 well for his neck pain” in April 2011. (AR 27–28 (citing AR 304, 307).) Although Plaintiff
6 responds by pointing to the treatment notes of PA Armitage and contending that PA Armitage’s
7 notes are inconsistent with the portions of Dr. Stacey’s treatment notes identified by the ALJ (Doc.
8 17 at 16–17 (citing AR 260, 271, 274, 277)), the ALJ properly pointed to evidence in the record
9 that supported his findings. (AR 27–28 (citing AR 304 (pain “fairly well controlled with his
10 medication”), 307 (medication “worked really well for his neck pain”).) As the ALJ is responsible
11 for resolving such conflicts in the medical record, the Court finds that the ALJ provided specific,
12 legitimate reasons supported by substantial evidence for discounting Dr. Stacey’s opinion that
13 Plaintiff was unable to work, and this Court will not disturb the ALJ’s decision. Tidwell, 161 F.3d
14 at 601 (“The ALJ’s decision denying benefits will be disturbed only if that decision is not
15 supported by substantial evidence or it is based upon legal error.”); Andrews, 53 F.3d at 1039
16 (“The ALJ is responsible for determining credibility, resolving conflicts in medical testimony, and
17 for resolving ambiguities.”).
The ALJ Erroneously Disregarded Portions of Dr. Damania’s Opinion.

18

3.

19

The ALJ purportedly accorded “significant weight” to the opinion of consultative

20 examining physician Dr. Damania. (AR 29.) However, the ALJ erred by failing to consider all
21 the limitations imposed by Dr. Damania.
22

The ALJ found that Plaintiff had the RFC to “[s]it, stand and walk for 6 hours of an 8-hour

23 workday.” (AR 24.) However, Dr. Damania opined that Plaintiff could only stand and walk for
24 four hours in the eight-hour day, and sit for two to four hours in an eight-hour day. (AR 419.)
25 Thus, the ALJ’s RFC assessment was inconsistent with the opinion of Dr. Damania, to which the
26 ALJ gave significant weight.
27

Because the ALJ did not accept that portion of Dr. Damania’s opinion, the ALJ was required

28 to provide specific and legitimate reasons for rejecting it supported by substantial evidence, if the
22

1 opinion conflicted with other medical opinions in the record. Trevizo, 871 F.3d at 675 (citing
2 Ryan, 528 F.3d at 1198); see also Lester, 81 F.3d at 830. Here, Dr. Damania’s opinion conflicted
3 with the opinions of state agency physicians Drs. Jackson and Mani, who both concluded Plaintiff
4 could sit six hours in an eight-hour day. (AR 82, 94.) However, the ALJ did not give any reasons
5 for rejecting any of Dr. Damania’s opinion, and on the contrary, it appears from the ALJ’s decision
6 that he was accepting Dr. Damania’s opinion in toto. (AR 28–29 (explaining Dr. Damania’s
7 opinion and stating the opinion is given significant weight with no indication that the RFC would
8 not reflect Dr. Damania’s opinion in its entirety).) Additionally, even though the ALJ discusses
9 the opinions of Drs. Jackson and Mani, concluding Plaintiff could sit for six hours a day, the
10 opinions of Drs. Jackson and Mani alone do not constitute substantial evidence for rejecting Dr.
11 Damania’s opinion because Drs. Jackson and Mani are non-examining physicians.

Lester, 81

12 F.3d at 831 (“The opinion of a nonexamining physician cannot by itself constitute substantial
13 evidence that justifies the rejection of the opinion of either an examining physician or a treating
14 physician.”). Accordingly, the ALJ erred by failing to point to specific and legitimate reasons for
15 rejecting Dr. Damania’s opinion that Plaintiff was limited to sitting for only two to four hours a
16 day.
17

Defendant contends the ALJ’s error is harmless because the ALJ’s RFC assessment is

18 supported by other substantial evidence in the record. (Doc. 26 at 19.) Specifically, Defendant
19 points to examples in the record when Plaintiff sat with a normal posture, changed positions with
20 ease, and consistently walked with a normal gait. (Doc. 26 at 19 (citing AR 400–01, 613–18).)
21 However, the question is not whether evidence in the record exists to support the ALJ’s finding,
22 but whether the ALJ articulated sufficient reasons for discrediting Dr. Damania’s opinion. Arruda
23 v. Colvin, No. 2:12–cv–2701–AC, 2013 WL 6860293, at *8 (E.D. Cal. Dec. 30, 2013) (“While
24 there are numerous permissible reasons for an ALJ to discount the weight given to the opinion of
25 an examining and/or consulting physician, the ALJ must actually state those reasons and provide
26 factual support from the record that constitutes substantial evidence.”); see also Bray v. Comm’r
27 of Soc. Sec. Admin., 554 F.3d 1219, 1225–26 (“Long-standing principles of administrative law
28 require us to review the ALJ’s decision based on the reasoning and factual findings offered by the
23

1 ALJ––not post hoc rationalizations that attempt to intuit what the adjudicator may have been
2 thinking.”). Here, the ALJ did not point to any reason, much less a specific and legitimate one,
3 for rejecting Dr. Damania’s opinion that Plaintiff could sit for only two to four hours. Thus,
4 Defendant’s argument fails because even if the evidence Defendant identifies could support a
5 finding that Plaintiff is capable of sitting for six hours, the Court has no discussion of the medical
6 evidence from the ALJ to analyze and the Court is not authorized to assess the medical evidence
7 in the first instance. Ortiz v. Astrue, No. 1:11–cv–00064–SKO, 2012 WL 639508, at *11 (E.D.
8 Cal. Feb. 24, 2012) (“While the Court may make reasonable inferences regarding the rationale
9 offered by the ALJ . . . , the absence of a discussion of the medical evidence requires the Court to
10 make findings about the weight of the medical evidence in the first instance or otherwise intuit
11 how the ALJ reached his conclusions and affirm the decision based on rationale not provided—
12 tasks which the Court is not empowered to undertake.”)
13

Moreover, the ALJ’s error is prejudicial because Dr. Damania’s opinion is inconsistent with

14 the ALJ’s ultimate finding of nondisability. Robbins v. Soc. Sec. Admin., 466 F.3d 880, 885 (9th
15 Cir. 2006) (“[W]e have only found harmless error when it was clear from the record that an ALJ’s
16 error was inconsequential to the ultimate nondisability determination.”) The ALJ concluded
17 Plaintiff was not disabled because Plaintiff could perform certain jobs with a sedentary exertion
18 level as identified by the VE. (AR 31.) The relevant definition of “sedentary work” requires an
19 individual to sit for up to six hours a day. 20 C.F.R. § 404.1567(a); SSR 83-10 (“Since being on
20 one’s feet is required ‘occasionally’ at the sedentary level of exertion, periods of standing or
21 walking should generally total no more than about 2 hours of an 8-hour workday, and sitting
22 should generally total approximately 6 hours of an 8-hour workday.”). However, Dr. Damania
23 opined Plaintiff could only sit for two to four hours a day, which is substantially less than the six
24 hours required for sedentary work. (AR 419.) Therefore, because Dr. Damania’s opinion
25 contradicts the ALJ’s finding that Plaintiff could sit for six hours a day and perform sedentary
26 work, the ALJ’s error is prejudicial.
27 //
28 //
24

The ALJ Stated Sufficient Reasons for Rejecting NP Rico’s Opinion.

1

4.

2

NP Rico was Plaintiff’s primary care provider, in conjunction with Dr. Baron, beginning in

3 February 2014. (AR 613–21.) In September 2014, NP Completed a Disability Impairment
4 Questionnaire for Plaintiff, in which NP Rico diagnosed Plaintiff with neck pain, thoracic pain,
5 lumbar back pain, herniated discs (cervical and lumbar), and nerve root and plexus disorder. (AR
6 499.) The questionnaire, which appears to be signed by both NP Rico and Dr. Baron, stated
7 beginning as early as March 1, 2010, Plaintiff could perform a job in a seated position for only
8 one hour in an eight-hour workday, and a standing and/or walking position for only one hour in
9 an eight-hour day. The questionnaire further stated Plaintiff could occasionally lift and carry up
10 to ten pounds, but could never left or carry any more than ten pounds, and on average, Plaintiff
11 would likely be absent more than three times a month due to his impairments. (AR 501–02.)
In discounting NP Rico’s opinion in the Disability Impairment Questionnaire, the ALJ

12
13 stated:
14

As a Nurse Practitioner, Ms. Rico is not an acceptable medical source and this
opinion, standing alone, cannot constitute documentation of severe or disabling
vocational limitations. . . . The claimant has no objective evidence of “herniated
discs”, rather there are small, mild bulges. Ms. Rico’s objective findings during
physical examination are not supportive of her opinion.

15
16
17

5
18 (AR 28.) As NP Rico’s opinion is contradicted by the opinions of Dr. Damania and Drs. Jackson

19 and Mani, who concluded Plaintiff could walk and/or stand for four hours a day and frequently
20
21
22
23
24
25
26
27
28

The Court takes no position regarding the propriety of rejecting NP Rico’s opinion because she is a nurse
practitioner. The Ninth Circuit has held that a nurse practitioner may qualify as an “acceptable medical source” by
working “closely under the supervision” of a doctor to the extent that she is “acting as an agent” of the doctor.
Gomez v. Chater, 74 F.3d 967, 971 (9th Cir. 1996); but see Ka Ying Xiong v. Berryhill, No. 1:17–cv–EPG, 2018
WL 1621161, at *2 (E.D. Cal. Apr. 4, 2018) (“[A]s numerous district courts in the Ninth Circuit have recognized, . .
. the regulation relied on in Gomez regarding ‘interdisciplinary teams’ involving ‘other sources’ such as nurse
practitioners and physician assistants has since been amended, and ‘interdisciplinary teams’ are no longer
considered ‘acceptable medical sources.’) (quoting Vega v. Colvin, No. 14CV1485-LAB (DHB), 2015 WL
7769663, at *12–13 (S.D. Cal. Nov. 12, 2015) (citing cases))). Here, the only support Plaintiff points to as evidence
NP Rico was working “closely under the supervision” of Dr. Baron is over 100 pages of treatment notes from
doctors other than Dr. Baron (which appears to be a mistake as almost all these documents are not from NP Rico or
Dr. Baron) and six treatment notes from Plaintiff’s appointments with NP Rico. (Doc. 17 at 20 (citing AR 409–503
and 658, 681, 693, 706, 776, 809.) However, Dr. Baron’s electronic signatures on the treatment notes cited by
Plaintiff are weeks (AR 658, 706) and in one case well over a month (AR 693) after Plaintiff’s treatment visits, and
the treatment notes from one appointment cited by Plaintiff are not even electronically signed by Dr. Baron (AR
809). Accordingly, while the Court reaches no conclusion as to whether NP Rico is an acceptable medical source,
based on the evidence identified by Plaintiff, it does not appear NP Rico worked closely under the supervision of
Dr. Baron. Randrup v. Berryhill, No. 1:16–cv–00436–SKO, 2017 WL 3334012, at *11 (E.D. Cal. Aug. 4, 2017)
5

25

1 lift and carry ten pounds, the ALJ was required to state “specific and legitimate” reasons,
2 supported by substantial evidence, for rejecting NP Rico’s opinion. Trevizo, 871 F.3d at 675
3 (citing Ryan, 528 F.3d at 1198); see also Lester, 81 F.3d at 830. The inconsistency between NP
4 Rico’s objective findings and her opinion, standing alone, is a sufficient specific and legitimate
5 reason for discrediting NP Rico’s opinion. See Connett, 340 F.3d at 875; see also Tonapetyan,
6 242 F.3d at 1149.
Here, the ALJ found that NP Rico’s opinion was inconsistent with her objective findings

7

8 during her physical examinations and cited a specific example that NP Rico opined Plaintiff
9 suffered from “herniated discs,” while the record only reflected “small, mild bulges.” (AR 28.)
10 Contrary to Plaintiff’s contention, NP Rico did not specifically state on which MRIs her opinion
11 was based when she opined that Plaintiff suffered from herniated discs. (Doc. 17 at 19 (citing AR
12 499).) Instead, NP Rico merely stated that Plaintiff had “multiple images done” as the support for
13 her opinion. (AR 499.) While Plaintiff reaches a different conclusion from the ALJ by looking
14 to MRIs from August 2015, the MRIs from December 2013 and September 2014 are consistent
15 with the ALJ’s decision. Specifically, as the ALJ pointed out, the December 2013 MRI of
16 Plaintiff’s cervical spine revealed degenerative changes in the cervical spine; mild reversal of the
17 normal cervical lordosis at C4–C5; a two-millimeter left paracentral disc osteophyte complex at
18 C4–C5, which mildly indented the left ventral surface of the spinal cord; a two-millimeter central
19 protrusion with associated annular fissuring at the C5–C6 level, which caused a mild impression
20 on the ventral surface of the spinal cord; and a one millimeter central protrusion with associated
21 annular fissuring, which indented the thecal sac at the C6–C7 level. (AR 26 (citing AR 452–53).)
22 These mild degenerative changes were unchanged on Plaintiff’s MRI in September 2014. (AR
23 844.)
24

Further, as the ALJ pointed out, NP Rico herself explained to Plaintiff on March 4, 2014,

25 just weeks before Plaintiff’s date last insured of March 31, 2014, that his MRI findings were not
26 severe enough to warrant surgery. (AR 26 (citing AR 642).) NP Rico strongly encouraged
27
28

(finding that a nurse practitioner was not an acceptable medical source where the only evidence of the relationship
between the nurse practitioner and doctor was the doctor’s electronic signatures on treatment notes weeks and
months after the claimant’s appointments).

26

1 Plaintiff to participate in physical therapy, but Plaintiff refused because he said he could not afford
2 to travel to Oakhurst twice a week despite NP Rico reminding him of a service that would provide
3 free transportation to his appointments. (AR 642.) Additionally, as the ALJ identified in his
4 decision, NP Rico’s physical examinations of Plaintiff regularly found him to be in no acute
5 distress, able to change positions with ease, and have a steady gait and full range of motion in his
6 joints, with weakness to upper extremity grips. (AR 26–27 (citing AR 617, 672–73).) The Court
7 finds that these contradictions between NP Rico’s opinion and treatment notes, identified by the
8 ALJ, constitute “specific and legitimate” reasons for rejecting NP Rico’s opinion and thus, the
9 Court will not disturb the ALJ’s decision. See Tidwell, 161 F.3d at 601.
10 B.

The ALJ’s Consideration of Plaintiff’s Credibility

11

1.

12

In evaluating the credibility of a claimant’s testimony regarding subjective pain,

Legal Standard

13 the ALJ must engage in a two-prong analysis. Vasquez v. Astrue, 572 F.3d 586, 591 (9th Cir.
14 2009). First, the ALJ must determine whether the claimant has presented objective medical
15 evidence of an underlying impairment that could reasonably be expected to produce the pain or
16 other symptoms alleged. Id. The claimant is not required to show that his impairment “could
17 reasonably be expected to cause the severity of the symptom [he] has alleged; [he] need only
18 show

that

it

could

reasonably

have

caused

some

degree

of

the

19 symptom.” Id. (quoting Lingenfelter, 504 F.3d at 1035–36). Second, if the claimant meets the
20 first test and there is no evidence of malingering, the ALJ can only reject the claimant’s
21 testimony about the severity of the symptoms if she gives “specific, clear and convincing
22 reasons” for the rejection. Id.
23

As to the second prong, “[t]he clear and convincing standard is ‘not an easy requirement

24 to meet’ and it ‘is the most demanding standard required in Social Security cases.’” Wells v.
25 Comm’r of Soc. Sec., No. 1:17–cv–00078–SKO, 2017 WL 3620054, at *6 (E.D. Cal. Aug. 23,
26 2017) (quoting Garrison v. Colvin, 759 F.3d 995, 1015 (9th Cir. 2014)). “General findings are
27 insufficient” to satisfy this standard. Burrell v. Colvin, 775 F.3d 1133, 1138 (9th Cir. 2014)
28 (citation omitted). “[R]ather, the ALJ must identify what testimony is not credible and what
27

1 evidence undermines the claimant’s complaints.” Id.; see, e.g., Vasquez, 572 F.3d at 592 (“To
2 support a lack of credibility finding, the ALJ [is] required to ‘point to specific facts in the record
3 which demonstrate that [the claimant] is in less pain than [he] claims.’” (quoting Dodrill v.
4 Shalala, 12 F.3d 915, 918 (9th Cir. 1993))); cf. Burrell, 775 F.3d at 1138 (stating that the Ninth
5 Circuit’s “decisions make clear that [courts] may not take a general finding . . . and comb the
6 administrative record to find specific” support for the finding).
The ALJ Properly Discounted Plaintiff’s Subjective Complaints.

7

2.

8

The ALJ found Plaintiff’s statements concerning the intensity, persistence, and limiting

9 effects of his symptoms were not entirely credible for several reasons. Specifically, the ALJ found
10 Plaintiff’s testimony was undermined by 1) inconsistencies between his testimony and daily
11 activities, 2) objective medical evidence in the record, and 3) his ability to effectively manage his
12 symptoms using conservative treatment methods without hospitalization or surgery and work for
13 several years after the accident that caused his back pain. (AR 29–30.)
14
15

a. Activities of Daily Living
The ALJ properly considered Plaintiff’s activities of daily living in determining that

16 Plaintiff was not entirely credible. When a claimant spends a substantial part of the day “engaged
17 in pursuits involving the performance of physical functions that are transferrable to a work setting,
18 a specific finding as to this fact may be sufficient to discredit a claimant’s allegations.” Morgan,
19 169 F.3d at 600 (quoting Fair v. Bowen, 885 F.2d 597, 603 (9th Cir. 1989)); see also Molina, 674
20 F.3d at 1112 (“While a claimant need not vegetate in a dark room in order to be eligible for
21 benefits, the ALJ may discredit a claimant’s testimony when the claimant reports participation in
22 everyday activities indicating capacities that are transferable to a work setting.”) (internal
23 quotation and citations omitted).

“Even where those activities suggest some difficulty

24 functioning, they may be grounds for discrediting the claimant’s testimony to the extent that they
25 contradict claims of a totally debilitating impairment.” Molina, 674 F.3d at 1112. (citations
26 omitted).
27

At the hearing, Plaintiff testified that he has trouble with his fine motor skills and “can’t

28 control what [he is] doing with [his] fingers.” (AR 60.) He testified his hands “feel like [he is]
28

1 wearing a pair of mitts” and his shoulders and arms feel like they are on fire. (AR 48.) According
2 to Plaintiff, he has pain every day that feels like a knife is stuck in the middle of his back. (AR
3 52.) His pain fluctuates depending on what he is doing and gets worse when he is standing or
4 engaging in any activities. (AR 52.) The ALJ, however, found that:
5
6
7
8

The claimant testified that he reads books and magazines regularly and is capable
of using the computer, tasks that are at odds with his limited hand use complaints
(testimony). The claimant is able to run errands such as the post office or grocery
store without assistance. He can walk 1–2 miles, stand 30–45 minutes and sit for
30–45 minutes. He drives and is able to do light housekeeping chores (Exhibit 4E).

9 (AR 30.) Plaintiff contends the ALJ erred by failing to elaborate on how these activities
10 contradicted Plaintiff’s testimony that his hand problems caused him to drop things, he could not
11 raise his arms above his shoulders, and he was unable to use buttons. (Doc. 17 at 24.) However,
12 the Court finds the ALJ sufficiently identified “which daily activities conflicted with which part
13 of Claimant’s testimony.” Burrell, 775 F.3d at 1138 (emphasis in original). Specifically, the ALJ
14 explained that, Plaintiff’s claim that he had limited use of his hands, conflicted with his ability to
15 regularly read books and magazines and use a computer. (AR 30.) Plaintiff’s testimony is
16 inconsistent with his activities of daily living because if Plaintiff could not control his fingers and
17 felt like he was wearing mitts, as he testified (AR 48, 60), he would not be able to regularly pick
18 up and read books and magazines or push the buttons on a keyboard when using a computer.
19 Accordingly, the ALJ properly found that Plaintiff’s testimony of debilitating fine motor skills
20 conflicted with his daily activities.
21

Additionally, Plaintiff contends that the other activities identified by the ALJ (driving,

22 going on errands, and performing light household chores) are “undemanding” and “sporadic” and
23 do not demonstrate Plaintiff could perform sustained work on a full-time basis. (Doc. 17 at 24.)
24 In support, Plaintiff cites only the Ninth Circuit opinion, Orn v. Astrue, 495 F.3d 625 (9th Cir.
25 2007), in which the ALJ rejected the claimant’s testimony and concluded the claimant could
26 perform a full-time job because he “sometimes reads, watches television, and colors in coloring
27 books.” Id. at 639. However, the Court held the ALJ erred because “watching television, and
28 coloring in coloring books are activities that are so undemanding that they cannot be said to bear
29

1 a meaningful relationship to the activities of the workplace.” Id. In contrast, here, the ALJ based
2 his decision on Plaintiff’s ability to drive his own car,6 go on errands such as the grocery store and
3 post office without assistance, and perform light household chores. (AR 30 (citing 192).) Driving,
4 running errands independently, and performing light housework are plainly activities that bear
5 more relation to activities in a workplace than occasional reading, watching TV, and coloring;
6 thus, Orn provides no support for Plaintiff’s position.
7

Given the nature of the activities of daily living identified by the ALJ, the Court finds that

8 such activities tend to suggest that Plaintiff may still be able to perform, on a sustained basis, the
9 basic demands of the sedentary, unskilled jobs identified by the VE. See Fair, 885 F.2d at 603
10 (finding that if a claimant has the ability to perform activities “that involved many of the same
11 physical tasks as a particular type of job, it would not be farfetched for an ALJ to conclude that
12 the claimant’s pain does not prevent her from working”); see also, e.g., Stubbs-Danielson v.
13 Astrue, 539 F.3d 1169, 1175 (9th Cir. 2008) (finding that the ALJ sufficiently explained his
14 reasons for discrediting the claimant’s testimony because the record reflected that the claimant
15 performed normal activities of daily living, including cooking, housecleaning, doing laundry, and
16 helping her husband managing finances); Nelson v. Colvin, No. 1:15–cv–00696–SKO, 2016 WL
17 3407627, at *20 (E.D. Cal. June 20, 2016) (ALJ properly discredited subjective complaints of
18 claimant who suffered from chronic back problems where claimant engaged in activities such as
19 preparing simple meals, washing dishes, driving a car, shopping for groceries and household
20 supplies two to three times a week, walking up to a mile, using a computer for about half an hour
21 at a time, visiting with family, mopping and vacuuming, independently handling her own finances,
22 and doing yoga tapes at home).
To be sure, the record also contains some contrary evidence, such as Plaintiff’s statements

23

24 regarding his daily pain and inability to wash dishes without breaking them. (AR 52, 56.)
25 However, it is the function of the ALJ to resolve any ambiguities, and the Court finds the ALJ’s
26 assessment of Plaintiff’s daily activities to be reasonable and supported by substantial evidence.
27
28

Although Plaintiff testified at the hearing he was currently not driving based on his doctor’s advice ahead of his
neck surgery (AR 47, 57), Plaintiff’s “Pain Questionnaire” completed on March 11, 2013, states that he drove his
own car to go on errands (AR 192).
6

30

1 See Rollins v. Massanari, 261 F.3d 853, 857 (9th Cir. 2001) (affirming ALJ’s credibility
2 determination even where the claimant’s testimony was somewhat equivocal about how regularly
3 she was able to keep up with all of the activities and noting that the ALJ’s interpretation “may not
4 be the only reasonable one”).
5
6

b. Objective Medical Evidence
The ALJ did not err in finding that the objective medical evidence fails to support Plaintiff’s

7 subjective complaints. While subjective symptom testimony cannot be rejected solely on the
8 ground that it is not fully corroborated by objective medical evidence, the medical evidence is still
9 a relevant factor in determining Plaintiff’s credibility. Rollins, 261 F.3d at 857 (citing 20 C.F.R.
10 § 404.1529(c)(2)); Burch v. Barnhart, 400 F.3d 676, 681 (9th Cir. 2005) (“[L]ack of medical
11 evidence . . . is a factor that the ALJ can consider in his credibility analysis.”).
12

Here, the ALJ discounted Plaintiff’s credibility, in part, because Plaintiff’s allegations of

13 severe symptoms were not supported by the clinical evidence. Specifically, the ALJ noted
14
15
16
17
18
19

Although thoracic spinal stenosis and cord impingement were initially reported
post-2005 in MRI scans, repeat scans since that time do not contain such findings
(see, Exhibit 17F). Records of Dr. Smith notes that MRIs of the back were normal
and two recent scans disclosed nothing in the neck (Exhibit 1F). His gait was
normal (Exhibit 3F). His range of motion and neurological testing were normal
and imaging tests of the thoracic spine were mildly abnormal and [sic] (Exhibit 5F).
Cervical and thoracic MRIs were mildly abnormal (Exhibits 6F and 7F). Dr.
Joshi’s records contain a normal EMG and nerve conduction studies (Exhibit 8F).
More mild spinal changes were noted in imaging studies (Exhibit 9F).

20 (AR 30.) Plaintiff contends that the ALJ mischaracterized the medical evidence and refers to other
21 medical evidence that allegedly conflicts with the evidence cited by the ALJ. (Doc. 17 at 26–27.)
22 For example, in response to the ALJ’s finding that the MRI of Plaintiff’s thoracic spine only
23 revealed mildly abnormal results, Plaintiff contends that the positive findings of his cervical and
24 lumbar spine were more severe. (Doc. 17 at 26–27.) Similarly, Plaintiff disputes the ALJ’s
25 citation to PA Armitage’s treatment notes observing Plaintiff’s gait to be normal (AR 30 (citing
26 AR 400–01)) by citing to Dr. Smith’s treatment notes finding Plaintiff to have an antalgic gait.
27 (Doc. 17 at 27 (citing AR 241).) However, “[e]ven assuming without deciding that the medical
28 evidence could support conflicting inferences, the court must defer to the Commissioner where
31

1 the evidence is susceptible to more than one rational interpretation.” Quinones v. Astrue, No. CV
2 08-7225 AGR, 2009 WL 3122880, at *3 (C.D. Cal. Sept. 25, 2009) (citing Moncada v. Chater,
3 60 F.3d 521, 523 (9th Cir. 1995)); see also Andrews, 53 F.3d at 1039 (“The ALJ is responsible for
4 determining credibility, resolving conflicts in medical testimony, and for resolving ambiguities.”).
5 Accordingly, although Plaintiff identifies other evidence in the record that may support a different
6 conclusion, the ALJ’s findings were supported by specific citations to substantial evidence in the
7 record and this court will not second-guess the ALJ’s conclusions. Davis v. Berryhill, --- Fed.
8 Appx ---, 2018 WL 2772214, at *2 (9th Cir. 2018) (“Though Davis may disagree with the ALJ’s
9 interpretation of the record, the latter’s interpretation is supported by substantial evidence, which
10 precludes the Court from engaging in second-guessing.”).
11

Plaintiff further contends that the ALJ’s description of the cervical spine MRIs as “mildly

12 abnormal” is a lay opinion, which constitutes insubstantial evidence. (Doc. 17 at 27.) However,
13 the cervical spine MRIs cited by the ALJ from November 2013 repeatedly refer to mild
14 abnormalities identified by the medical doctor reviewing the images. (AR 30 (citing AR 449
15 (“mild degenerative changes of the cervical spine” (emphasis added)), 460 (same), 453 (noting a
16 two-millimeter protrusion that “causes a mild impression on the ventral surface of the spinal cord”
17 (emphasis added)). Thus, there is substantial evidence in the record to support the ALJ’s finding
18 and the ALJ did not err by characterizing Plaintiff’s cervical spine MRIs as “mildly abnormal.”
19 See Fair, 885 F.2d at 604 (“Where . . . the ALJ has made specific findings justifying a decision to
20 disbelieve an allegation of excess pain, and those findings are supported by substantial evidence
21 in the record, our role is not to second-guess that decision.”).
22

Plaintiff also disputes the ALJ’s characterization of Dr. Smith’s treatment notes as stating

23 the MRI of Plaintiff’s back was normal. (Doc. 17 at 27.) Indeed, although Dr. Smith found
24 Plaintiff’s thoracic spine to be normal, Dr. Smith found Plaintiff’s lumbar spine to show “a new
25 disc rupture at L4–5 with right L5 and S1 nerve root compression.” (AR 242.) As such, because
26 Dr. Smith’s treatment notes identify lumbar spine abnormalities, the notes do not show Plaintiff’s
27 back was normal as the ALJ stated and the ALJ erred by ignoring this portion of Dr. Smith’s
28 treatment notes. See Garrison, 759 F.3d at 1013 (“[A]n ALJ errs when he rejects a medical
32

1 opinion . . . while doing nothing more than ignoring it.”); Phillips v. Sullivan, No. CV. F-88-2202 REC, 1989 WL 280270, at *3 (E.D. Cal. June 27, 1989) (“If certain evidence in the record supports
3 a plaintiff’s claim, the ALJ may not simply ignore it.”). However, even though the ALJ erred by
4 ignoring a portion of Dr. Smith’s treatment notes, such error is harmless because the ALJ specified
5 ample other objective evidence in the record that contradicted Plaintiff’s subjective complaints.
6 (AR 30 (citing AR 400–01 (treatment notes of PA Armitage observing normal gait), 449 (mildly
7 abnormal MRI findings), 453 (same), 460 (same), 462–72 (treatment notes of Dr. Joshi including
8 normal motor and sensory nerve studies)). Moreover, the inconsistency between Plaintiff’s
9 testimony and activities of daily living as well as his effective conservative treatment record
10 provide independent clear and convincing evidence to discredit Plaintiff’s testimony.

See

11 Carmickle v. Comm’r, Soc. Sec. Admin., 533 F.3d 1155, 1162 (9th Cir. 2008); Wells, 2017 WL
12 3620054, at *10 (“While the ALJ erred in providing one invalid reason for the credibility finding
13 . . . that error was harmless, as substantial evidence still supports the ALJ’s credibility
14 determination notwithstanding the single errant rationale.”).
15
16

c. Conservative Medical Treatment
The ALJ’s credibility assessment properly relied on evidence showing improvement in

17 Plaintiff’s symptoms with conservative medical treatment. However, the ALJ erroneously relied
18 on Plaintiff’s work history prior to his alleged onset date and the fact that Plaintiff did not undergo
19 surgery or hospitalization while managing his conditions with conservative treatment methods.
20 (AR 30.) The ALJ found:
21
22
23
24

This 43-year old man alleges chronic severe neck and back pain following an old
October 2003 work-related spinal injury that resulted in a diagnosis of lumbar,
cervical and thoracic degenerative disease. However, he was able to work
successfully for a number of years after this accident, has never undergone surgery
or hospitalization and has been managed conservatively with scant evidence of
medical treatment during the last several years.

25 (AR 30.) In other words, the ALJ found Plaintiff’s testimony less credible because 1) he worked
26 successfully for several years after the accident that caused his back pain, 2) he never underwent
27 surgery or hospitalization, and 3) he has managed his pain successfully with conservative
28 treatment.
33

1

While the ALJ found Plaintiff less credible because he worked successfully for several

2 years after the accident that caused his back pain (AR 30), the Court notes Plaintiff only worked
3 successfully prior to his alleged onset date of June 1, 2011, when he worked as a museum host
4 from 2006 to 2008 and a bus driver from 2009 to 2010. (AR 177.) Plaintiff also worked as a limo
5 driver from March to June 2011, but stopped because it exacerbated his back pain. (AR 177, 304.)
6 Although Plaintiff’s opening brief does not specifically respond to the ALJ’s finding related to
7 how Plaintiff’s work history affects his credibility, such work history prior to Plaintiff’s alleged
8 onset date is “of limited relevance” and the ALJ erred to the extent he relied on it in discrediting
9 Plaintiff’s credibility. Delegans v. Colvin, 584 Fed. Appx 328, 330 (9th Cir. 2014) (statements
10 about work history were “of limited relevance” because they involved time periods predating
11 alleged onset date); Archer v. Apfel, 66 Fed. Appx 121, 122 (9th Cir. 2003) (“[T]he ALJ erred by
12 considering Archer’s good work history before the alleged onset date as evidence for discrediting
13 his testimony.”); see also Boissiere v. Berryhill, 2017 WL 3741261, at *7 (C.D. Cal. Aug. 30,
14 2017) (ALJ erred by failing to explain how claimant’s “sporadic” employment prior to the alleged
15 onset date in 2008 impacted her testimony in 2014 regarding her impairments).
16

However, to the extent the ALJ erred, the error was harmless because the inconsistency

17 between Plaintiff’s testimony and activities of daily living as well as his effective conservative
18 treatment record are independent, sufficient reasons to discredit Plaintiff’s testimony. Thus, the
19 ALJ met his burden to identify several clear and convincing reasons supporting his adverse
20 credibility determination, which were “sufficiently specific to allow a reviewing court to conclude
21 the ALJ rejected the claimant’s testimony on permissible grounds.” Moisa v. Barnhart, 367 F.3d
22 882, 885 (9th Cir. 2004); see also Thomas v. Barnhart, 278 F.3d 947, 958 (9th Cir. 2002). As
23 such, the reliance upon one invalid reason is harmless, because the error “does not negate the
24 validity of the ALJ’s ultimate credibility conclusion.” Carmickle, 533 F.3d at 1160 (quoting
25 Batson v. Comm’r of Soc. Sec. Admin, 359 F.3d 1190, 1197 (9th Cir. 2004).
26

Additionally, even though the ALJ found Plaintiff less credible because he never underwent

27 surgery or hospitalization (AR 30), as Plaintiff points out, his failure to undergo surgery was due
28 to his lack of medical insurance and inability to afford surgery. (Doc. 17 at 25.) In the Ninth
34

1 Circuit, a claimant’s inability to pay for treatment cannot support an adverse credibility finding.
2 Trevizo, 871 F.3d at 681 (“Disability benefits may not be denied because of the claimant's failure
3 to obtain treatment he cannot obtain for lack of funds.” (quoting Gamble v. Chater, 68 F.3d 319,
4 321 (9th Cir. 1995)); Ondracek v. Comm’r of Soc. Sec., No. 1:15–cv–01308–SKO, 2017 WL
5 714374, at *8 (E.D. Cal. Feb. 22, 2017) (“[A] claimant’s ‘failure to receive medical treatment
6 during the period that he had no medical insurance cannot support an adverse credibility finding.’”
7 (quoting Orn, 495 F.3d at 638)).
8

While the record contains evidence that Plaintiff did not pursue more invasive treatment for

9 reasons other than his lack of insurance, the ALJ did not identify these reasons and ample evidence
10 exists in the record demonstrating Plaintiff’s inability to afford other treatments and medications.
11 (See e.g., AR 53 (testifying he did not undergo surgery on his back because “it seemed like a pretty
12 evasive [sic] surgery for the problem at the time”), 249 (stating he planned to cut back on his
13 medications because he could not afford them), 257 (complaining he could not afford a “massive
14 bill” from Dr. Smith).) Moreover, Plaintiff’s decision to forgo surgery was well before his alleged
15 onset date of June 1, 2011, making this evidence of limited relevance compared to the more recent
16 and prevalent evidence of Plaintiff’s difficult financial circumstances. Accordingly, the ALJ erred
17 by questioning Plaintiff’s credibility where Plaintiff did not seek medical treatment because of his
18 lack of insurance. However, the error was harmless because Plaintiff’s activities of daily living
19 and the success of the treatment methods Plaintiff actually did use establish adequate alternative
20 reasons for discrediting Plaintiff’s testimony. Carmickle, 533 F.3d at 1162.
21

Finally, although the ALJ may not make a negative inference about Plaintiff’s conservative

22 treatment when Plaintiff cannot afford medical care, the record shows Plaintiff’s conservative
23 treatment was generally effective in managing Plaintiff’s pain. An ALJ may properly rely on such
24 effective conservative treatment to discredit a claimant’s testimony. Tommasetti v. Astrue, 533
25 F.3d 1035, 1040 (9th Cir. 2008) (favorable response to conservative treatment undermined
26 claimant’s testimony of subjective complaints); Giordano v. Astrue, 304 Fed. Appx 507, 509 (9th
27 Cir. 2008) (“It was reasonable for the ALJ to conclude that Giordano’s testimony overstated her
28 actual limitations, based on Giordano’s . . . effective pain management with relatively conservative
35

1 treatment.”); see also Warre v. Comm'r of Soc. Sec. Admin., 439 F.3d 1001, 1006 (9th Cir. 2006)
2 (“Impairments that can be controlled effectively with medication are not disabling.”); Randolph
3 v. Comm'r of Soc. Sec., No. 2:16–cv–01188–CKD, 2017 WL 4038386, at *5 (E.D. Cal. Sept. 13,
4 2017) (“All of this reportedly effective treatment was fairly conservative in nature, and serves as
5 a valid basis to discount plaintiff’s credibility.”).
6

Here, the record demonstrates Plaintiff’s conservative treatment effectively managed his

7 pain. Plaintiff testified at the hearing that medication helped alleviate his pain and the TENS unit
8 helped reduce his inflammation. (AR 49–50.) The epidural injections in his neck, however, were
9 not effective. (AR 49–50.) The ALJ noted Plaintiff reported to Dr. Stacey that his pain was “fairly
10 well controlled” on medication and his medication “worked really well for his neck pain.” (AR
11 27–28 (citing AR 304, 307).) The record also includes other instances where Plaintiff reported
12 successful results from his conservative treatment. (AR 274 (medications were “really, really
13 helping” and he was doing “much, much better”), 304 (“neck pain is almost completely resolved”
14 from medication), 372 (“His medications give him relief from pain.”).) Accordingly, the ALJ did
15 not err by finding that Plaintiff’s effective conservative treatment undermined his testimony of
16 subjective complaints.
17

Plaintiff disputes the ALJ’s characterization of Plaintiff’s treatment as “conservative” when

18 he underwent a number of different treatments including physical therapy, injections, use of a
19 TENS unit, and opioid medications. (Doc. 17 at 25.) However, Plaintiff fails to cite any authority
20 to support his position that such treatment was not conservative. To the contrary, several courts
21 in this circuit have found that similar measures constitute conservative treatment. See, e.g.¸
22 Traynor v. Colvin, No. 1:13–cv–1041–BAM, 2014 WL 4792593, at *9 (E.D. Cal. Sept. 24, 2014)
23 (finding evidence that Plaintiff’s symptoms were managed through “prescription medications and
24 infrequent epidural and cortisone injections” was “conservative treatment” and was sufficient for
25 the ALJ to discount the plaintiff’s testimony regarding the severity of impairment.); Morris v.
26 Colvin, No. 13–6236, 2014 WL 2547599, at *4 (C.D. Cal. June 3, 2014) (ALJ properly discounted
27 credibility when plaintiff received conservative treatment consisting of physical therapy, use of
28 TENS unit, chiropractic treatment, Vicodin, and Tylenol with Vicodin); Jones v. Comm’r of Soc.
36

1 Sec., No. 2:12–cv–01714–KJN, 2014 WL 228590, at *7–10 (E.D. Cal. Jan. 21, 2014) (ALJ
2 properly found that plaintiff’s conservative treatment, which included physical therapy, anti3 inflammatory and narcotic medications, use of a TENS unit, occasional epidural steroid injections,
4 and massage therapy, diminished plaintiff’s credibility).

Thus, the ALJ did not err by

5 characterizing Plaintiff’s treatment as conservative.
6 C.

Remand is Required

7

Although the ALJ stated sufficient reasons for rejecting the opinions of Dr. Stacey and NP

8 Rico and properly discredited Plaintiff’s testimony, the ALJ did not provide sufficient reasons for
9 discounting the opinion of Dr. Damania regarding Plaintiff’s ability to sit for only two to four
10 hours in an eight-hour day. Generally, “[w]here the Commissioner fails to provide adequate
11 reasons for rejecting the opinion of a treating or examining physician, [the Court credits] that
12 opinion as ‘a matter of law.’” Lester, 81 F.3d at 830–34 (finding that, if doctors’ opinions and
13 plaintiff's testimony were credited as true, plaintiff's condition met a listing (quoting Hammock v.
14 Bowen, 879 F.2d 498, 502 (9th Cir. 1989))). Crediting an opinion as a matter of law is appropriate
15 when, taking that opinion as true, the evidence supports a finding of disability. See Smolen, 80
16 F.3d at 1292.
17

Courts retain flexibility, however, in applying this crediting-as-true theory. Connett, 340

18 F.3d at 876 (remanding for further determinations where there were insufficient findings as to
19 whether plaintiff's testimony should be credited as true). “In some cases, automatic reversal would
20 bestow a benefits windfall upon an undeserving, able claimant.” Barbato v. Comm'r of Soc. Sec.
21 Admin., 923 F.Supp. 1273, 1278 (C.D. Cal. 1996) (remanding for further proceedings where the
22 ALJ erred by failing to provide legally sufficient reasons for rejecting a physician’s opinion).
23 “[T]he required analysis centers on what the record evidence shows about the existence or non24 existence of a disability” and a claimant is not entitled to disability benefits “unless the claimant
25 is, in fact, disabled, no matter how egregious the ALJ’s errors may be.” Strauss v. Comm’r of the
26 Soc. Sec. Admin., 635 F.3d 1135, 1138 (9th Cir. 2011).
27

Here, the ALJ erred because he failed to provide a legally sufficient reason for partially

28 rejecting Dr. Damania’s opinion, which creates doubt as to whether Plaintiff is, in fact, disabled.
37

1 The ALJ accorded “great weight” to Dr. Damania’s opinion, but the ALJ adopted an RFC that did
2 not reflect all the limitations imposed by Dr. Damania. Although the ALJ’s RFC assessment is
3 more consistent with the opinions of Drs. Mani and Jackson, the ALJ failed to provide specific
4 and legitimate reasons for crediting Drs. Mani and Jackson over Dr. Damania. Thus, there are
5 “outstanding issues to be resolved before the determination of disability can be made.”

Pulido

6 v. Comm’r of Soc. Sec., No. 1:16–cv–01155–SAB, 2017 WL 3588026, at *6 (E.D. Cal. Aug. 21,
7 2017) (citing Treichler v. Comm’r of Soc. Sec. Admin., 775 F.3d 1090, 1106 (9th Cir. 2014)).
8 Although remand necessitates delay, “the cost of this delay should be balanced against the risk of
9 an erroneous determination” and a reviewing court should have discretion to avoid “bestow[ing]
10 a benefits windfall upon an undeserving, able claimant” by remanding the case for further
11 administrative proceedings. Barbato, 923 F.Supp. at 1278; see also McAllister v. Sullivan, 888
12 F.2d 599, 603 (9th Cir. 1989) (remanding for further proceedings because Secretary of Health and
13 Human Services was in better position than court to point to evidence in record to provide specific,
14 legitimate reasons to disregard treating physician’s opinion).
15

Accordingly, the Court exercises its discretion to remand this case to the Commissioner for

16 further proceedings. See McAllister, 888 F.2d at 603 (holding that court may remand to allow
17 ALJ to provide the requisite specific and legitimate reasons for disregarding medical opinions);
18 Burrell, 775 F.3d at 1141 (“We may remand on an open record for further proceedings ‘when the
19 record as a whole creates serious doubt as to whether the claimant is, in fact, disabled within the
20 meaning of the Social Security Act.’” (quoting Garrison, 759 F.3d at 1021)). On remand, the ALJ
21 shall consider the medical evidence as a whole, and either properly credit Dr. Damania’s opinion,
22 or provide specific and legitimate reasons, supported by substantial evidence, for rejecting Dr.
23 Damania’s opinion. The ALJ shall then assess Plaintiff’s RFC and proceed through Steps Four
24 and Five to determine what work, if any, Plaintiff is capable of performing.
25
26

VI. CONCLUSION AND ORDER
Based on the foregoing, the Court finds that the ALJ’s decision is not supported by

27 substantial evidence and is, therefore, REVERSED and the case REMANDED to the ALJ for
28 further proceedings consistent with this order. The Clerk of this Court is DIRECTED to enter
38

1 judgment in favor of Plaintiff Fred D. McMillen and against Defendant Nancy A. Berryhill, Acting
2 Commissioner of Social Security.
3
4

IT IS SO ORDERED.

5 Dated:
6

August 7, 2018

/s/

Sheila K. Oberto

UNITED STATES MAGISTRATE JUDGE

7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
39

.