Rhoads v. Commissioner of Social Security
Filing
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MEMORANDUM, OPINION and ORDER signed by Magistrate Judge Dennis M. Cota on 9/19/18 DENYING 11 Motion for Summary Judgment and GRANTING 14 Cross-Motion for Summary Judgment. The Commissioner's final decision is AFFIRMED. Judgment is entered for the Commissioner. CASE CLOSED (Kastilahn, A)
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IN THE UNITED STATES DISTRICT COURT
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FOR THE EASTERN DISTRICT OF CALIFORNIA
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CLIFF C. RHOADS,
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Plaintiff,
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No. 2:17-CV-0920-DMC
vs.
MEMORANDUM OPINION AND ORDER
COMMISSIONER OF SOCIAL
SECURITY,
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Defendant.
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Plaintiff, who is proceeding with retained counsel, brings this action under
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42 U.S.C. § 405(g) for judicial review of a final decision of the Commissioner of Social Security.
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Pursuant to the written consent of all parties (Docs. 7 and 8), this case is before the undersigned
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as the presiding judge for all purposes, including entry of final judgment. See 28 U.S.C.
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§ 636(c). Pending before the court are the parties’ cross-motions for summary judgment (Docs.
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11 and 14).
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The court reviews the Commissioner’s final decision to determine whether it is:
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(1) based on proper legal standards; and (2) supported by substantial evidence in the record as a
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whole. See Tackett v. Apfel, 180 F.3d 1094, 1097 (9th Cir. 1999). “Substantial evidence” is
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more than a mere scintilla, but less than a preponderance. See Saelee v. Chater, 94 F.3d 520, 521
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(9th Cir. 1996). It is “. . . such evidence as a reasonable mind might accept as adequate to
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support a conclusion.” Richardson v. Perales, 402 U.S. 389, 402 (1971). The record as a whole,
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including both the evidence that supports and detracts from the Commissioner’s conclusion, must
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be considered and weighed. See Howard v. Heckler, 782 F.2d 1484, 1487 (9th Cir. 1986); Jones
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v. Heckler, 760 F.2d 993, 995 (9th Cir. 1985). The court may not affirm the Commissioner’s
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decision simply by isolating a specific quantum of supporting evidence. See Hammock v.
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Bowen, 879 F.2d 498, 501 (9th Cir. 1989). If substantial evidence supports the administrative
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findings, or if there is conflicting evidence supporting a particular finding, the finding of the
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Commissioner is conclusive. See Sprague v. Bowen, 812 F.2d 1226, 1229-30 (9th Cir. 1987).
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Therefore, where the evidence is susceptible to more than one rational interpretation, one of
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which supports the Commissioner’s decision, the decision must be affirmed, see Thomas v.
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Barnhart, 278 F.3d 947, 954 (9th Cir. 2002), and may be set aside only if an improper legal
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standard was applied in weighing the evidence, see Burkhart v. Bowen, 856 F.2d 1335, 1338
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(9th Cir. 1988).
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I. THE DISABILITY EVALUATION PROCESS
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To achieve uniformity of decisions, the Commissioner employs a five-step
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sequential evaluation process to determine whether a claimant is disabled. See 20 C.F.R.
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§§ 404.1520 (a)-(f) and 416.920(a)-(f). The sequential evaluation proceeds as follows:
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Step 1
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Determination whether the claimant is engaged in
substantial gainful activity; if so, the claimant is presumed
not disabled and the claim is denied;
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Step 2
If the claimant is not engaged in substantial gainful activity,
determination whether the claimant has a severe
impairment; if not, the claimant is presumed not disabled
and the claim is denied;
Step 3
If the claimant has one or more severe impairments,
determination whether any such severe impairment meets
or medically equals an impairment listed in the regulations;
if the claimant has such an impairment, the claimant is
presumed disabled and the clam is granted;
Step 4
If the claimant’s impairment is not listed in the regulations,
determination whether the impairment prevents the
claimant from performing past work in light of the
claimant’s residual functional capacity; if not, the claimant
is presumed not disabled and the claim is denied;
Step 5
If the impairment prevents the claimant from performing
past work, determination whether, in light of the claimant’s
residual functional capacity, the claimant can engage in
other types of substantial gainful work that exist in the
national economy; if so, the claimant is not disabled and the
claim is denied.
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See id.
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To qualify for benefits, the claimant must establish the inability to engage in
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substantial gainful activity due to a medically determinable physical or mental impairment which
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has lasted, or can be expected to last, a continuous period of not less than 12 months. See 42
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U.S.C. § 1382c(a)(3)(A). The claimant must provide evidence of a physical or mental
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impairment of such severity the claimant is unable to engage in previous work and cannot,
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considering the claimant’s age, education, and work experience, engage in any other kind of
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substantial gainful work which exists in the national economy. See Quang Van Han v. Bower,
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882 F.2d 1453, 1456 (9th Cir. 1989). The claimant has the initial burden of proving the
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existence of a disability. See Terry v. Sullivan, 903 F.2d 1273, 1275 (9th Cir. 1990).
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The claimant establishes a prima facie case by showing that a physical or mental
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impairment prevents the claimant from engaging in previous work. See Gallant v. Heckler, 753
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F.2d 1450, 1452 (9th Cir. 1984); 20 C.F.R. §§ 404.1520(f) and 416.920(f). If the claimant
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establishes a prima facie case, the burden then shifts to the Commissioner to show the claimant
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can perform other work existing in the national economy. See Burkhart v. Bowen, 856 F.2d
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1335, 1340 (9th Cir. 1988); Hoffman v. Heckler, 785 F.2d 1423, 1425 (9th Cir. 1986); Hammock
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v. Bowen, 867 F.2d 1209, 1212-1213 (9th Cir. 1989).
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If drug or alcohol use is a contributing factor material to a determination of
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disability, an individual is not entitled to benefits. See 20 C.F.R. §§ 404.1535 and 416.945; see
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also Sousa v. Callahan, 143 F.3d 1240, 1245 (9th Cir. 1998). The burden is on the plaintiff to
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demonstrate that drug and alcohol addiction is not a material factor by showing that an
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impairment would have been disabling even if drug and alcohol use ceased. See Parra v. Astrue,
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481 F.3d 742, 748 (9th Cir. 2007). To do so, the plaintiff would have to demonstrate that the
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impairment “. . . would remain during periods when she stopped using drugs and alcohol.” See
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Ball v. Massanari, 254 F.3d 817, 821 (9th Cir. 2001) (citing Sousa, 143 F.3d at 1245).
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II. THE COMMISSIONER’S FINDINGS
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Plaintiff applied for social security benefits on July 24, 2012, alleging disability
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beginning on August 28, 2010. See CAR 12.1 Plaintiff’s claim was initially denied. Following
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denial of reconsideration, plaintiff requested an administrative hearing, which was held on
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September 20, 2013, before Administrative Law Judge (ALJ) L. Kalei Fong. In a June 6, 2015,
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decision, the ALJ concluded that plaintiff is not disabled based on the following relevant
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findings:
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1.
The claimant has the following severe impairment(s): derangement of the
right knee/status post reconstruction of the ACL; osteoarthritis of the right
knee; schizophrenia, rule out paranoid type; mood disorder; personality
disorder; and history of polysubstance abuse;
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The claimant does not have an impairment or combination of impairments
that meets or medically equals an impairment listed in the regulations;
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Citations are to the Certified Administrative Record (CAR) lodged on November
1, 2017 (Doc. 10).
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The claimant has the following residual functional capacity: based on all
of plaintiff’s impairments, including polysubstance use disorder, the
claimant can physically perform sedentary work; mentally, the claimant is
unable to complete more than simple short tasks, he would be able to
maintain attention and concentration intermittently during an 8-hour
workday, he would be able to interact with supervisors and co-workers
occasionally and never with the public, the claimant is unable to handle
changes in the work environment;
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Considering the claimant’s age, education, work experience, residual
functional capacity based on all of plaintiff’s impairments, including
polysubstance use disorder, the Medical-Vocational Guidelines would
direct a finding of “disabled”;
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If the claimant stopped substance use, however, he would have the residual
functional capacity to perform sedentary work; mentally, the claimant
would be able to complete simple short tasks and perform detailed
instructions, maintain concentration and attention, frequently interact with
others, and deal with changes in the work environment;
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Considering the claimant’s age, education, work experience, residual
functional capacity, Medical-Vocational Guidelines, and vocational expert
testimony, and if the claimant stopped substance abuse, there are jobs that
exist in significant numbers in the national economy that the claimant can
perform.
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See Car 14-26.
After the Appeals Council declined review on March 2, 2017, this appeal followed.
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III. DISCUSSION
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In his motion for summary judgment, plaintiff argues: (1) the ALJ failed to
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properly evaluate the medical opinions; and (2) the ALJ failed to properly consider plaintiff’s
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subjective pain testimony.
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A.
Evaluation of Medical Opinions
At Step 4, the ALJ considered the medical opinion evidence to determine
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plaintiff’s residual functional capacity. See CAR 21-22. Initially, the ALJ noted: “As for the
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opinion evidence, no treating physician has provided a medical source statement in this case.”
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Id. at 21. In determining plaintiff’s residual functional capacity, the ALJ relied on the opinions
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of consultative examining physicians. Drs. Kinnison and Torrez, as well as the opinions of
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consultative reviewing physician, Dr. Tyl. See id. As to these doctors, the ALJ stated:
On November 20, 2012, consultative examiner, Dr. Michael Kinnison
found the claimant with knee pain, status post surgery for ACL/MCL
repair approximately one year past. He also had right sided root drop,
exact etiology was unknown. The claimant reported not taking any
medication and drinking 6 to 12 beers a day for pain relief. The claimant
exhibited good muscle strength and 5/5 grip strength. His upper and lower
extremity strength was 5/5. He could not do a deep-knee bend because of
knee pain and his AFO brace would not allow him to bend his ankle. His
straight leg lifting was positive on the right causing him to have knee pain
at about 20 degrees. He was using a prescribed AFO splint on his right
foot to correct his foot drop. He used it for all ambulation. He had right
lower extremity pain. At that time, the doctor believed that the claimant
had the ability to stand and walk up to two hours daily, primarily limited
by his right knee and also by his right foot drop and neurological damage
below the knee. His sitting capacity was unlimited. The assistive device
that he was using was an AFO cast on the right. This was necessary for all
ambulation. The doctor believed that he could lift 20 pounds occasionally
and 10 pounds frequently, limited primarily be knee and leg pain. He
could climb only occasionally, again limited by his knee and leg; his
balance was unlimited. Stooping and crouching were unlimited. Kneeling
and crawling would be limited to just occasionally by knee and leg pain.
Manipulative activities of reaching, handling, fingering, and feeling were
intact bilaterally. He had no environmental limitations (Exhibit 7F).
On November 24, 2012, consultative examiner, Silvia Torrez, Psy.D.,
reported that the claimant was driven to the evaluation by his mother. He
reported that he was seeking SSI benefits because he had physical and
mental health problems and he was kind of bipolar and had psychotic
episodes since 2008. In 2010, it added to his problems when he had his
knee accident while playing football, and things just went down south.
The claimant reported that he was diagnosed with bipolar disorder with
psychotic episodes in 2008 while in prison. He was put into the mental
health program at the correctional clinical case management system and
was prescribed medications. He had individual counseling and he paroled
in May 2009. He reported he has not taken any psychiatric medications
since 2010. The claimant reported hospitalization in a psychiatric facility
for three days in 2004 because he was coming down from a
methamphetamine induced high and he was experiencing heart palpations
and was worried about his health.
He reported to Dr. Torrez that he was prescribed Risperdal while he was
there. While he was in prison from June 2008 to May 2009, he was
reportedly in a crisis bed because “I was schizophrenic and other stuff and
I went blind and I had a heart murmur.” The claimant reports he
experiences auditory hallucinations that consist of bells and clapping off
an on for several minutes on the right side of his head. He does not
believe they are his imagination. The claimant reports his sleep has
improved because he is drinking and he is reading a lot. His appetite is
good and he has lost weight. His energy is poor and he does not have
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much interest in day-to-day activities. He described his mood as “I’m on
edge. I’m about to snap. I’ve gotten worse for the last couple of months.
I feel hopeless and helpless, sometimes even worthless and tearful. I’ve
been feeling like this since my accident. I don’t have a job. I don’t feel
lime I’m work anything.” The claimant reports he last worked as Sun
Sweet Prunes for about three months on a seasonal basis.
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Dr. Torrez diagnosed the claimant with a mood disorder, NOS; alcohol
dependence, nicotine dependence, cannabis dependence, amphetamine
dependence in early partial remission, and anti-social personality disorder.
He did not exhibit a thought disorder and appeared to have a significant
problem with both drugs and alcohol. He was not particularly limited in
areas of mental functioning (Exhibit 6F).
On September 5, 2013, State agency psychological consultant, Dr.
Rosemary Tyl, evaluated the claimant’s mental impairments under
sections 12.03 (Schizophrenia), 13.04 (Affective Disorders), 12.08
(Personality Disorders), and 12.09 (Substance Addiction Disorders) [of the
Listings of Impairments set forth in the regulations]. The doctor noted the
claimant’s minimal history of mental health treatment, except for while
incarcerated. His mental symptoms were likely residual effects of his
chronic polysubstance abuse. She assessed him as limited to adaption for
simple 1-2 step tasks that do not require interaction with the public and
minimal/limited interaction with others (Exhibits 9F-10F).
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CAR 15-17.
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The ALJ gave great weight to these opinions, finding them consistent with the
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record and each other. See id. at 21 In particular, the ALJ relied on Dr. Tyl’s assessment, which
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was based on Dr. Torrez’ examination findings. See id. Dr. Tyl’s finding that plaintiff’s mental
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limitations were likely residual effects of polysubstance use formed the evidentiary basis for the
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ALJ’s conclusion that, absent drug and alcohol abuse, plaintiff’s remaining mental limitations
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would not preclude unskilled work. See id. at 26.
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Plaintiff argues the ALJ improperly rejected the opinions of Physician’s Assistant
Max Hemping and Drs. Andrada and Malan, all of whom plaintiff states are treating sources.
The weight given to medical opinions depends in part on whether they are
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proffered by treating, examining, or non-examining professionals. See Lester v. Chater, 81 F.3d
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821, 830-31 (9th Cir. 1995). Ordinarily, more weight is given to the opinion of a treating
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professional, who has a greater opportunity to know and observe the patient as an individual,
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than the opinion of a non-treating professional. See id.; Smolen v. Chater, 80 F.3d 1273, 1285
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(9th Cir. 1996); Winans v. Bowen, 853 F.2d 643, 647 (9th Cir. 1987). The least weight is given
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to the opinion of a non-examining professional. See Pitzer v. Sullivan, 908 F.2d 502, 506 & n.4
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(9th Cir. 1990).
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In addition to considering its source, to evaluate whether the Commissioner
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properly rejected a medical opinion the court considers whether: (1) contradictory opinions are
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in the record; and (2) clinical findings support the opinions. The Commissioner may reject an
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uncontradicted opinion of a treating or examining medical professional only for “clear and
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convincing” reasons supported by substantial evidence in the record. See Lester, 81 F.3d at 831.
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While a treating professional’s opinion generally is accorded superior weight, if it is contradicted
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by an examining professional’s opinion which is supported by different independent clinical
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findings, the Commissioner may resolve the conflict. See Andrews v. Shalala, 53 F.3d 1035,
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1041 (9th Cir. 1995). A contradicted opinion of a treating or examining professional may be
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rejected only for “specific and legitimate” reasons supported by substantial evidence. See Lester,
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81 F.3d at 830. This test is met if the Commissioner sets out a detailed and thorough summary of
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the facts and conflicting clinical evidence, states her interpretation of the evidence, and makes a
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finding. See Magallanes v. Bowen, 881 F.2d 747, 751-55 (9th Cir. 1989). Absent specific and
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legitimate reasons, the Commissioner must defer to the opinion of a treating or examining
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professional. See Lester, 81 F.3d at 830-31. The opinion of a non-examining professional,
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without other evidence, is insufficient to reject the opinion of a treating or examining
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professional. See id. at 831. In any event, the Commissioner need not give weight to any
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conclusory opinion supported by minimal clinical findings. See Meanel v. Apfel, 172 F.3d 1111,
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1113 (9th Cir. 1999) (rejecting treating physician’s conclusory, minimally supported opinion);
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see also Magallanes, 881 F.2d at 751.
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Physician’s Assistant Max Hemping
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The ALJ gave no evidentiary weight to a December 24, 2012, medical source
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statement provided by Max Hemping because, as a physician’s assistant, he is not an acceptable
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medical source under Social Security Ruling 06-03p. See CAR 21. Plaintiff argues:
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On December 24, 2014, Max Hemping, P.A., from Tehama County
Health Services Agency Outpatient Clinic (Tehama) provided a medical
source statement (MSS) regarding Rhoads’s conditions. AR 341.
Physician assistant (P.A.). Hemping opined that Rhoads is not capable of
working; is diagnosed with schizophrenia and deformity of the right knee;
has primary symptoms of depression, agitation, anxiety, and very poor
concentration; has physical limitations of limited mobility in the right
knee; and other pertinent conditions include emotional instability. Id.
P.A. Hemping had treated Rhoads previously as part of Rhoads’s
treatment team at Tehama and under the supervision of Jon D. Malan,
D.O. AR 422-23, 424-25, 426-27, 428-29, 430-32. P.A. Hemping’s
opinion is consistent with that of his treatment team since they were privy
to Hemping’s medical records at Tehama. The opinion of an examining
physician can only be rejected for specific and legitimate reasons that are
supported by substantial evidence in the record. Andrews v. Shalala, 53
F.3d 1035, 1043 (9th Cir. 1995).
At the time of the ALJ decision, the ALJ had an obligation to
explain the weight given to all medical opinion evidence. 20 C.F.R.
§ 416.927. The current regulations require the ALJ to consider all the
medical opinions together. 20 C.F.R. § 416.927(b) (2017). The
regulations do not permit the ALJ to disregard probative opinion evidence
without explanation; the Commissioner requires the ALJ to explain the
weight given to opinions from non-acceptable medical sources and
nonmedical sources. 20 C.F.R. § 416.927(f)(2) (2017).
The ALJ stated that “as a physician’s assistant, Mr. Hemping is not
considered an acceptable medical source. Social Security Ruling 06-03p.”
AR 21. While Rhoads does not concede that P.A. Hemping’s opinion is
not an acceptable medical source, the ALJ cannot disregard this evidence,
acceptable or not, without further explanation. The ALJ failed to provide
a sufficient explanation for rejecting P.A. Hemping’s opinion.
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Mr. Hemping completed a one-page Medical Source Statement on December 24,
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2014. See CAR 341 (Exhibit 12F). Mr. Hemping indicated diagnoses of schizophrenia and
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deformity of the right knee. See id. Mr. Hemping listed plaintiff’s physical/mental limitations
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and “other pertinent considerations” as “limited mobility right knee” and “unstable emotionally.”
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Id. Mr. Hemping does not reference any objective clinical findings in support of his statement.
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See id.
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The court finds no error in the ALJ’s decision to assign Mr. Hemping’s
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assessment no evidentiary weight. As defendant notes, the ALJ is not required to consider
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evidence that is “neither significant nor probative.” Howard v. Barnhart, 341 F.3d 1006, 1012
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(9th Cir. 2003). Mr. Hemping’s source statement is neither significant nor probative because it
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does not indicate any meaningful functional limitations in terms of plaintiff’s residual functional
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capacity. In determining residual functional capacity, the ALJ must assess what the plaintiff can
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still do in light of both physical and mental limitations. See 20 C.F.R. §§ 404.1545(a),
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416.945(a) (2003); see also Valencia v. Heckler, 751 F.2d 1082, 1085 (9th Cir. 1985) (holding
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residual functional capacity reflects current “physical and mental capabilities”). “Limited
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mobility right knee” is a general clinical observation, not an opinion regarding plaintiff’s ability
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to perform the physical demands of work.2 Similarly, “unstable emotionally” does not suggest
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any particular opinion with respect to plaintiff’s ability to perform the mental demands of work,
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such as interacting with others or completing tasks. Mr. Hemping’s source statement is also
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neither significant nor probative because it does not reference any objective findings. See e.g.
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Meanel, 172 F.3d at 1113 (holding the ALJ need not give any weight to unsupported conclusory
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opinions).
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2.
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As to Drs. Malan and Andrada, the ALJ stated:
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On March 5, 2015, Dr. Jon D. Malan assessed the claimant as only being
able to perform less than sedentary exertion. He could sit, stand, and walk
less then 2 hours in an 8-hour workday. He would need to take six
unscheduled breaks during an 8-hour workday. He could rarely lift and
carry less then 10 pounds during an 8-hour workday. He could never
twist, stoop, crouch, and climb (Exhibit 16F).
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Drs. Malan and Andrada
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The exertional capabilities associated with the physical demands of work are the
primary strength activities of sitting, standing, walking, lifting, carrying, pushing, or pulling and
are generally defined in terms of ability to perform sedentary, light, medium, heavy, or very
heavy work. See 20 C.F.R., Part 404, Subpart P, Appendix 2, § 200.00(a).
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On March 10, 2015, Dr. C. Andrada assessed the claimant based upon
alleged impairments of bipolar disorder, mixed with psychotic features.
The doctor did not designate any signs or symptoms of this impairment.
He rated the claimant as moderate in maintaining his daily activities, and
marked in maintaining social functioning and concentration, persistence,
or pace. He assessed the claimant as having one or two episodes of
decompensation. The doctor noted that the claimant would not be absent
from work due to his impairment or treatment (Exhibit 17F).
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The ALJ found these opinions unsupported by the record and gave them little weight. See id. at
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21. Plaintiff argues the ALJ erred by failing to identify specific reasons for rejecting any
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particular opinion.3
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A review of the record reflects Dr. Malan completed a three-page Physical
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Medical Source Statement on March 5, 2015. See id. at 430-32 (Exhibit 16F). For clinical
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findings and objective signs supporting his statement, the doctor listed: “physical deformity right
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knee.” Id. at 430. Dr. Malan opined plaintiff is unable to walk even one city block without rest
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or severe pain, see id. at 431, plaintiff can sit or stand for only five minutes at a time before
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requiring a change in position, see id., and plaintiff can only sit/stand/walk for less than 2 hours
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over an eight-hour workday, see id. Dr. Malan also opined that plaintiff would require six 15-
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minute rest breaks throughout a normal workday. See id. Dr. Malan concluded that plaintiff can
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rarely lift up to 10 pounds and never lift more than that. See id. The doctor also concluded that
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plaintiff can never twist, stoop, bend, crouch, squat, climb ladders, or climb stairs. See id. at
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432. Regarding other limitations, Dr. Malan listed “psychological schizophrenia, psychotic
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episodes.” Id.
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Plaintiff also argues the ALJ erred by stating no treating physician submitted a
medical source statement because Drs. Malan and Andrada are both treating sources. This
argument is well-taken but, as discussed herein, does not alter the court’s analysis.
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Dr. Andrada completed a four-page Mental Medical Source Statement on March
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10, 2015. See CAR 434-37 (Exhibit 17F). The second page of the doctor’s statement consists of
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a checklist of signs and symptoms, which the doctor left completely blank. See id. at 435. Dr.
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Andrada opined that plaintiff is moderately limited with respect to activities of daily living, see
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id. at 436, and markedly limited in his ability to maintain social functioning, concentration,
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persistence, and pace, see id. The doctor stated that plaintiff is incapable of handling even a
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minor change in work demands or environment. See id. Dr. Andrada did not respond when
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asked to indicate how often plaintiff would miss work due to his impairments and limitations.
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See id. at 437.
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Where, as here, a treating opinion is contradicted by the opinion of an examining
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professional, the ALJ may resolve the conflict in the evidence. See Andrews, 53 F.3d at 1041.
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Dr. Malan’s opinion is contradicted by Dr. Kinnison, who examined plaintiff and opined plaintiff
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can lift 20 pounds occasionally and 10 pounds frequently, can climb occasionally, and can
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balance, stoop, and crouch without limitation, see CAR 310-14 (Exhibit 7F), and Dr. Andrada’s
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opinion is contradicted by Dr. Torrez, who also examined plaintiff and opined plaintiff is not
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limited in mental functioning, see id at 302-309 (Exhibit 6F). In resolving the conflict, the ALJ
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rejected the more limiting opinions expressed by Drs. Malan and Andrada because they are
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unsupported. The court finds no error in this reasoning because, other than a very general
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reference to “physical deformity right knee” in Dr. Malan’s statement, CAR 430, neither
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statement references any clinical objective findings of record to support the doctors’ opinions.
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See Meanel, 172 F.3d at 1113; Magallanes, 881 F.2d at 751.
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B.
Plaintiff’s Credibility
At Step 4, the ALJ also considered plaintiff’s statements and testimony and
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determined his subjective complaints of disabling pain were not credible. See CAR 19-21, 25.
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As to the credibility of plaintiff’s statements and testimony, the ALJ stated:
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The claimant has no work history of consequence. . . . The claimant has
spent an inordinate amount of his life incarcerated related to illicit drugs.
He is not motivated to work as he has never really worked in any gainful
employment. The evidence of record does not show that he has contacted
the State Department of Vocational Rehabilitation with regard to testing or
training to re-enter the world of work. All of these facts diminish his
credibility.
The claimant testified he was in county jail from December 2013 to
November 2014. He was also incarcerated in 2005 to 2006, 2008 to 2009
and 2011 to 2012. He does not remember the exact dates. He is on
probation until next year. He has been arrested for using meth. He also
failed a court date. He is currently going to drug and alcohol classes at
Tehama County Drug Services and has been doing so since December of
2014. He must do drug testing. He also goes to Tehama County Mental
Health. He sees counselor Avery. He stated that he last used meth in
December 2013. He last used pot ten years ago. He last drank beer in
December of 2013. He stated that his impairments include his mental
issues and right knee pain. He has gone to physical therapy for the knee,
which has not helped. His last therapy was January 14, 2015, at
Greenville Rancheria. He has foot drop and nerve problems. He had
surgery in 2010. He last saw a doctor a few years ago. He wears a brace.
He received mental health treatment while in prison and was isolated. He
saw a number of therapists in Tehama County jail. His medications
include Risperdal, Trazadone, and Tramadol. He is mostly tired and
drowsy. He had up and down moments. He is mostly depressed. He has
no self-esteem and he does not want to live. He has 26 bad days a month.
He mostly stays in bed. His grandparents help with his day-to-day
activities. He hears voices who talk down to him. He is paranoid around
others. He often isolates himself 2 to 3 times a week. He walks for 20
yards and has pain that causes him to stop. He has to elevate his right leg
for 3 hours a day. He has pain climbing stairs and stepping on curbs. He
has poor balance and often trips (Testimony).
His most recent incarceration from December 16, 2013, to January 5,
2015, was the result of possession of methamphetamine (meth) and
probation violation (Exhibit 19F)> He attended a court-ordered rehab
program.
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The claimant stated that he was clean and sober from alcohol and meth
since December 2013. Obviously, his incarceration that month would
have “forced” his sobriety. The claimant is not a credible historian and his
sobriety is difficult to confirm while he was incarcerated. He filed this
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claim in July 2012. He completed a Function Report about that same time.
He reported that he bought “lots of booze for pain” and the, he was on
“alright medicine” (Exhibit 5E/5). On March 3, 2015, he was just out of
drug rehab for alcohol and meth. He reported sill having cravings (Exhibit
14F/34).
His right knee was reconstructed (Exhibit 1F/33). Post-operatively, the
knee was stable and required conservative treatment (Exhibit 1F/13).
There did not appear to be a need for physical therapy (Exhibit 5F/5). He
alleges problems with his right knee, however, he has not been in physical
therapy since December 11, 2014 (Exhibit 13F). His last physical therapy
showed that he had a normal physical exam (Exhibit 13F/31).
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***
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The claimant’s medical record documents that he has been dishonest,
manipulative, and deceptive (e.g., trying to “hoard” his administered
medication while incarcerated) (Exhibit 5F/15-16).
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On April 29, 2013, a nurse noted that the claimant often refused his
Ibuprofen at medical call (Exhibit 19F/3, 8, 24, 69, 88). The undersigned
notes that he was prescribed Ibuprofen for his complaints of right knee
pain.
On January 16, 2014, the claimant admitted to working out, but said it was
mostly his upper body. He was advised that if he was found working out
his legs (squats, running, etc.), his Tramadol would be stopped (Exhibit
19F/66). On February 10, 2014, it was noted that the claimant had been
using meth prior to incarceration on December 16, 2013. A nurse
suspected him of “cheeking” his Tramadol (Exhibit 19F/57). On
September 29, 2014, all of his medication was stopped because he was
“cheeking” them all (Exhibit 19F/11). On October 30, 2014, the claimant
reported that it was unfair that his medications were stopped. He was
“cheeking” them to “double up” on them because his knee pain was not
being treated appropriately (Exhibit 19F/6).
While the claimant testified that physical therapy [did not help], the
medical evidence negates his testimony. In August of 2011, therapist
Leonard Hall reported that he had improvement in his right foot strength
since his last session in January of 2011. He was able to do squat
exercises and double stance jumps (Exhibit 5F/13). Then, on December
16, 2014, physical therapist Jim Montana reported that the claimant told
him that his right knee felt good after the last treatment (on December 11,
2014). The claimant reported that there was some medial right knee pain
at present because he fell off of his bike (emphasis added by ALJ) a couple
of days past (Exhibit 13F/26). On January 2, 2015, the claimant reported
that his right knee seemed to be getting stronger. His pain level was less.
He was pleased with his progress thus far (Exhibit 13F/15). On January 5,
2015, he reported that both knees were improving and he had less pain in
both knees when walking (Exhibit 13F/12).
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The undersigned finds that the claimant is deceptive. While advocating
mental impairment he readily presents “catch phrases.” He describes low
self-esteem, not feeling worthy, does not desire to live, he avoids people,
he hears voices, and he is panicky.
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The claimant does not present as an individual who is genuinely motivated
to improve his mental and physical condition. Certainly, he is not
motivated to work.
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***
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His own testimony about problems with his right knee (e.g., has difficulty
stepping on to a curb, must elevate his right leg 3 hours a day) is not
supported by the medical record. As recently as January 12, 2015, he told
physical therapist Jim Montana that he was pleased with the progress of
his right knee and hoped to return to some of his usual recreational
activities eventually (Exhibit 13F/6). Certainly, he was given exercises he
could do at home to enhance his physical therapy.
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The claimant’s credibility is such that the undersigned is not persuaded
that his right knee is as severely impaired as the claimant alleges. Nor is it
unreasonable that he presents himself as incapable of functioning normally
when he is at a higher level of functioning. Clearly, he has the
wherewithal to live on his grandparent’s property and assist his
grandparents without incident. Nonetheless, his RFC when not abusing
polysubstances has been eroded accordingly.
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CAR 19-21, 25.
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The Commissioner determines whether a disability applicant is credible, and the
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court defers to the Commissioner’s discretion if the Commissioner used the proper process and
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provided proper reasons. See Saelee v. Chater, 94 F.3d 520, 522 (9th Cir. 1996). An explicit
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credibility finding must be supported by specific, cogent reasons. See Rashad v. Sullivan, 903
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F.2d 1229, 1231 (9th Cir. 1990). General findings are insufficient. See Lester v. Chater, 81 F.3d
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821, 834 (9th Cir. 1995). Rather, the Commissioner must identify what testimony is not credible
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and what evidence undermines the testimony. See id. Moreover, unless there is affirmative
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evidence in the record of malingering, the Commissioner’s reasons for rejecting testimony as not
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credible must be “clear and convincing.” See id.; see also Carmickle v. Commissioner, 533 F.3d
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1155, 1160 (9th Cir. 2008) (citing Lingenfelter v Astrue, 504 F.3d 1028, 1936 (9th Cir. 2007),
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and Gregor v. Barnhart, 464 F.3d 968, 972 (9th Cir. 2006)).
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If there is objective medical evidence of an underlying impairment, the
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Commissioner may not discredit a claimant’s testimony as to the severity of symptoms merely
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because they are unsupported by objective medical evidence. See Bunnell v. Sullivan, 947 F.2d
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341, 347-48 (9th Cir. 1991) (en banc). As the Ninth Circuit explained in Smolen v. Chater:
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The claimant need not produce objective medical evidence of the
[symptom] itself, or the severity thereof. Nor must the claimant produce
objective medical evidence of the causal relationship between the
medically determinable impairment and the symptom. By requiring that
the medical impairment “could reasonably be expected to produce” pain or
another symptom, the Cotton test requires only that the causal relationship
be a reasonable inference, not a medically proven phenomenon.
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80 F.3d 1273, 1282 (9th Cir. 1996) (referring to the test established in
Cotton v. Bowen, 799 F.2d 1403 (9th Cir. 1986)).
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The Commissioner may, however, consider the nature of the symptoms alleged,
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including aggravating factors, medication, treatment, and functional restrictions. See Bunnell,
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947 F.2d at 345-47. In weighing credibility, the Commissioner may also consider: (1) the
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claimant’s reputation for truthfulness, prior inconsistent statements, or other inconsistent
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testimony; (2) unexplained or inadequately explained failure to seek treatment or to follow a
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prescribed course of treatment; (3) the claimant’s daily activities; (4) work records; and
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(5) physician and third-party testimony about the nature, severity, and effect of symptoms. See
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Smolen, 80 F.3d at 1284 (citations omitted). It is also appropriate to consider whether the
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claimant cooperated during physical examinations or provided conflicting statements concerning
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drug and/or alcohol use. See Thomas v. Barnhart, 278 F.3d 947, 958-59 (9th Cir. 2002). If the
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claimant testifies as to symptoms greater than would normally be produced by a given
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impairment, the ALJ may disbelieve that testimony provided specific findings are made. See
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Carmickle, 533 F.3d at 1161 (citing Swenson v. Sullivan, 876 F.2d 683, 687 (9th Cir. 1989)).
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Plaintiff argues the ALJ erred by improperly referring to mental health “catch
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phrases,” as well as by citing physical therapy records showing improvement and suppositions
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unsupported by the evidence concerning activities plaintiff performed on his grandparents’
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property. Because the ALJ cited other appropriate reasons supported by the record in finding
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plaintiff’s statements and testimony of disabling pain not credible, the court does not reach
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plaintiff’s arguments in concluding the ALJ did not err. The ALJ found plaintiff to be deceptive,
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particularly with regard to hoarding of medication, which is an appropriate comment on
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plaintiff’s reputation for truthfulness. See Smolen, 80 F.3d at 1284. The ALJ also properly
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noted that, despite allegations of disabling pain, plaintiff often did not seek treatment and when
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he did it was conservative. See id. The ALJ also properly cited plaintiff’s daily activities, which
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included riding a bike and are inconsistent with disabling pain. See id. The ALJ properly
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observed that plaintiff’s lack of a work history and record of incarceration suggest his continued
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unemployment is due to a lack of motivation to work and not disability. See id. Finally, the ALJ
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properly cited plaintiff’s conflicting statements concerning drug and alcohol use. See Thomas,
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278 F.3d at 958-59.
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IV. CONCLUSION
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Based on the foregoing, the court concludes that the Commissioner’s final
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decision is based on substantial evidence and proper legal analysis. Moreover, the
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Commissioner’s final decision must be affirmed because drug and alcohol use is a contributing
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factor material to the disability determination. See 20 C.F.R. §§ 404.1535 and 416.945; see also
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Sousa, 143 F.3d at 1245. Accordingly, IT IS HEREBY ORDERED that:
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1.
Plaintiff’s motion for summary judgment (Doc. 11) is denied;
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2.
Defendant’s motion for summary judgment (Doc. 14) is granted;
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3.
The Commissioner’s final decision is affirmed; and
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4.
The Clerk of the Court is directed to enter judgment and close this file.
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DATED:
September 19, 2018
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____________________________________
DENNIS M. COTA
UNITED STATES MAGISTRATE JUDGE
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