Bell v. Astrue

Filing 20

ORDER by Judge Maria-Elena James denying 14 Plaintiff's Motion for Summary Judgment and granting 18 Defendant's Cross-Motion for Summary Judgment. (cdnS, COURT STAFF) (Filed on 1/29/2014)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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MICHAEL BELL,

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Case No. 12-cv-05738-MEJ

Plaintiff,

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ORDER RE: CROSS-MOTIONS FOR
SUMMARY JUDGMENT

vs.

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CAROLYN W. COLVIN, Acting
Commissioner of Social Security,

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Re: Dkt. Nos. 14, 18

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Defendant.

United States District Court
Northern District of California

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INTRODUCTION

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Plaintiff Michael Bell (“Plaintiff”) brings this action pursuant to 42 U.S.C. § 405(g),

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seeking judicial review of the decision of the Commissioner of Social Security, Defendant

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Carolyn W. Colvin1, denying Plaintiff’s claim for disability benefits. Pending before the Court are

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the parties’ cross-motions for summary judgment. (Dkt. Nos. 14, 18.) Pursuant to Civil Local

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Rule 16-5, the motions have been submitted on the papers without oral argument. Having

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carefully reviewed the parties’ papers, the administrative record (“AR”) in this case, and relevant

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legal authority, the Court hereby DENIES Plaintiff’s Motion and GRANTS Defendant’s Cross-

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Motion for Summary Judgment for the reasons set forth below.

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BACKGROUND

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Plaintiff was born on March 1, 1959, and was 52 years old at the time of his hearing before
the Administrative Law Judge. (AR 41, 150.) Plaintiff worked for Sunset Scavenger from June

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Carolyn W. Colvin became the Acting Commissioner of Social Security on February 14, 2013.
Pursuant to Rule 25(d) of the Federal Rules of Civil Procedure, Carolyn W. Colvin is substituted
for Michael J. Astrue as the defendant in this suit. No further action needs to be taken to continue
this suit by reason of the last sentence of section 205(g) of the Social Security Act, 42 U.S.C. §
405(g).

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1978 through February 2010. (AR 199.) He originally worked as a residential garbage man, but

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injured his left knee and right ankle while exiting a garbage truck at work on November 12, 2003.

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(AR 44, 354). Plaintiff was subsequently transferred to the position of Debris Box Driver, picking

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up and dropping off debris boxes. (AR 44-45, 199.) He continued to work for another six years,

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until having left knee replacement surgery on February 11, 2010. (AR 395-401, 630-32.) He has

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not worked since.

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A.

Michael Jaffin, M.D.

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Plaintiff sought medical treatment from Dr. Jaffin in 2008 and continued to seek treatment

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from him until he filed his disability claim. (AR 361-444, 715-21.) While seeking treatment from
Dr. Jaffin, Plaintiff continued to work for six years, despite having knee, hip and back pain. (AR

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155, 395-96, 398-401, 403-08, 410-11, 715-21.) During this time, Plaintiff’s treatment consisted

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of pain medication and physical therapy. (AR 327-31, 333-36, 338-43, 350, 354-56, 358-60, 383,

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391-92, 396, 398-401, 403-08, 410-11, 444.)

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In June 2008, Dr. Jaffin performed a physical examination in which he found that Plaintiff

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walked with “reasonable gait,” but his lower extremities showed remarkable weakness of toe

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flexion and plantar flexion of his ankle. (AR 410.) Dr. Jaffin also found that Plaintiff had poor

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push-off on the right and could not toe walk on the right. (AR 410.) Standing x-rays revealed

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significant degenerative changes of the left knee. (AR 410.) Dr. Jaffin diagnosed Plaintiff with

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severe degenerative joint disease of the left knee and left calf atrophy, but opined that Plaintiff

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could “continue working in his current capacity,” and prescribed him 50 mg of Indomethacin

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(prescription strength Motrin). (AR 410-11.)

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Over the course of several monthly evaluations from July 2008 through December 2009,

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Dr. Jaffin opined that Plaintiff could continue to work. (AR 395-401, 403-07.) It appears that Dr.

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Jaffin contemplated knee replacement surgery earlier on, but had “held off a longtime because of

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[Plaintiff’s] relative youth.” (AR 395.) However, by December 2009, Dr. Jaffin opined that

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because Plaintiff had reached the end-stage of his degenerative joint disease of the left knee, there

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was no other reasonable alternative other than knee surgery. (AR 395.)

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On February 11, 2010, Plaintiff underwent left knee replacement surgery without any
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complications. (AR 369-72, 622-23.) Prior to the operation, Dr. Jaffin noted that Plaintiff was

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able to walk reasonably well with just a minor limp and could squat and recover. (AR 373). An

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x-ray taken on February 12, 2010 showed that the total knee arthroplasty was in “good position

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without fracture, dislocation, or loosening.” (AR 291-92). On February 25, 2010, Dr. Jaffin noted

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that Plaintiff was “doing well,” had up to 90 degrees of flexion, and could walk well without an

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aid. (AR 368).

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Continuing into April and May of 2010, Dr. Jaffin noted that the Plaintiff was doing

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“extremely well” with over 110 degrees of flexion and no new injuries. (AR 362-63.) In

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September 2010, Plaintiff still walked well and had “excellent range of motion.” (AR 581.)
Despite there being a “little bit” of degenerative changes, Dr. Jaffin opined that the February 2010

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hip x-rays did not show any obvious fractures or significant boney abnormalities. (AR 581.)

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On November 9, 2010, Dr. Jaffin completed a Long Term Disability Claim Physician

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Statement in regards to Plaintiff’s worker’s compensation claim. (AR 575-77.) Dr. Jaffin noted

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Plaintiff was still recovering from his knee surgery and was suffering from pain and decreased

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range of motion. (AR 575.) He opined that Plaintiff was limited to walking, standing, bending,

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and lifting, but was unable to determine how long Plaintiff could perform these activities because

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he “lack[ed] the means to measure [it].” (AR 576.)

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The following day, on November 10, 2010, Plaintiff took a series of x-rays which revealed

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a slight narrowing and sclerosis of the hip joints and bone spurs. (AR 546-48.) The reviewing

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doctor, however, dismissed it as “"nothing acute"” because he found “the bony structures [were]

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otherwise unremarkable.” (AR 546.) A right knee x-ray in December 2010 showed mild to

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moderate osteoarthritis and some calcification of the knee cartilage, but was dismissed as well

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because there was no joint effusion and the soft tissues were unremarkable. (AR 554.)

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Plaintiff continued to seek treatment from Dr. Jaffin until December 2011. (AR 572-74,

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614-15, 715-21.) From December 2010 until December 2011, Dr. Jaffin consistently opined that

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Plaintiff was doing “extremely well” with his knee replacement and that Plaintiff had great range

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of motion. (AR 572-74, 614-15, 715-21.)

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However, in a Physical Capacities Evaluation, which is undated and unsigned, Dr. Jaffin
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opined that Plaintiff would not be able to sit and stand for more than 45 minutes and walk for

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more than 20 minutes during an eight-hour work day. (AR 729.) In this unsigned evaluation, Dr.

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Jaffin also noted that he was unable to define whether or not Plaintiff would be able to lift or carry

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a certain amount of weight because he needed a final function capacity evaluation. (AR 730.)

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B.

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Dr. Calvin Pon, M.D.
Dr. Pon, a state agency physician, conducted a comprehensive Health Analysis for Plaintiff

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on August 16, 2010. (AR 476-79.) At the time of the analysis, Plaintiff complained of having

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lower back, hip, knee, and ankle pains. (AR 476.) Although Plaintiff said he could stand and

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walk without a cane, he did not know his tolerance level. (AR 476.) In general, Plaintiff only
used a cane if he needed to ambulate for long distances, and was capable of walking up and down

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the stairs and around his house without a cane. (AR 476.) Moreover, in addition to driving his

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own car, preparing his own meals, and maintaining his own hygiene, Plaintiff was also able to

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help out with chores like shopping for groceries, taking out the garbage, and cleaning the laundry.

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(AR 477.)

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According to Dr. Pon’'s observations, Plaintiff was able to move with relative ease. Not

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only was Plaintiff capable of sitting comfortably in the waiting room, he was able to get out of his

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chair and walk into the exam room without any visible problems. (AR 477.) He walked with a

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steady gait without limping or using his cane. (AR 477.) During the exam, Plaintiff demonstrated

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he was able to get on and off the exam table normally and could squat approximately one third of

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the way down--limited only by the pain in his right knee. (AR 477.)

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Even though Plaintiff’s gait velocity and stride length were slightly less than normal, Dr.

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Pon noted that Plaintiff was otherwise fine. (AR 477.) He demonstrated normal flexion at 70

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degrees with only a slight limitation in lateral bending at the lumbar spine and trunk, and despite

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some limitations due to pain, Plaintiff was able to fully extend and flex his left knee approximately

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120 degrees. (AR 477-78.) Moreover, Plaintiff did not suffer from any speech or gross visual

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impairments, and was able to hear and understand normal conversational speech. (AR 478.)

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Based on the examination, Dr. Pon assessed that Plaintiff could: stand and walk short

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distances without a cane for a total of about four hours during an eight-hour work day; sit for a
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total of about six hours in an eight-hour workday; occasionally perform limited crouching,

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kneeling, squatting, crawling, and stair climbing; and climb ladders on rare occasions. (AR 478.)

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Dr. Pon also opined that Plaintiff did not have any restrictions in exercising arm and hand control

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or in performing any bilateral actions like pushing, pulling, and reaching. (AR 479.) According

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to Dr. Pon’s assessment, Plaintiff should be able to frequently lift and carry 10-plus pounds and

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even occasionally lift and carry 20-plus pounds without any problems. (AR 479.) Dr. Pon found

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that Plaintiff’s bilateral knee and right ankle pain should not hinder his ability to perform bilateral

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pushing or interfere with his exercise of control over his leg and foot. (AR 479.)

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C.

Stephen E. Conrad, M.D.
On August 24, 2010, orthopedist Stephen Conrad examined Plaintiff as part of an Agreed

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Northern District of California

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Medical Evaluation. (AR 491-510.) During the evaluation, Dr. Conrad noted that Plaintiff was

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able to walk with a normal gait without any signs of limping and could exhibit a normal heel and

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toe walk. (AR 497.) The alignment of the Plaintiff’'s lower extremities was also normal without

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evidence of any atrophy. (AR 497.) However, Plaintiff tested negative in the straight-leg raising

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test for both seated and reclining positions, and Dr. Conrad found Plaintiff’'s right knee, left knee,

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lumbosacral junction, and right ankle to be tender to direct palpitations. (AR 497-8.) Based on

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Plaintiff’s circumferential measurements, there was also an indication that there was a mild degree

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of atrophy in Plaintiff’'s right calf and left thigh. (AR 499.) Due to these findings, Plaintiff was

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advised against returning to his former job at Sunset Scavenger. (AR 509.) Dr. Conrad also

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recommended further work restrictions that precluded Plaintiff from crouching, crawling,

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pivoting, kneeling, squatting, walking on uneven terrain, climbing, and engaging in activities of

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comparable physical effort. (AR 504.)

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D.

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S. Jaituni, M.D.
On November 18, 2010, State Agency Physician Dr. Jaituni reviewed Plaintiff’s record and

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conducted a Physical Residual Functional Capacity Assessment. (AR 549-53.) He determined

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that Plaintiff did not have any visual, manipulative, communicative, or environmental limitations,

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and was only limited by some exertional limitations. (AR 550-52.) In his opinion, while Plaintiff's

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ability to push or pull with his lower extremities were limited, he would still be able to:
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occasionally lift or carry 20 pounds; frequently lift or carry 10 pounds; stand or walk for at least

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six hours in an eight-hour workday; and sit for about six hours in an eight-hour workday. (AR

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550.)

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E.

Richard Brophy, D.C.
Plaintiff began treatment with Dr. Brophy, a chiropractor, in December 2010. (AR 706.)

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He complained of lower back pain, muscle spasms, and difficulty standing, climbing, walking, and

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bending, and was diagnosed with lumbar spine pain. (AR 711-13.)
On January 6, 2012, Dr. Brophy completed a Physical Capacities Evaluation. (AR 725-

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28.) In the evaluation, Dr. Brophy determined that Plaintiff was in severe pain, and that the pain
was interfering with his sleep, daily living activities, and relationship with others. (AR 728.)

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However, he opined that Plaintiff would still be able to: sit, stand, and walk 1-2 hours at a time in

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an eight-hour workday, followed by 30 minutes of rest; continuously lift and carry 20 pounds;

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occasionally lift and carry 50 pounds; repetitively grasp, push, pull, and manipulate; occasionally

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bend, squat, and climb; and continuously reach above shoulder level. (AR 725-26.) He noted that

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Plaintiff's pain will increase in severity with prolonged lifting, bending, walking and stooping.

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(AR 728.) In regards to restrictions, Dr. Brophy determined that there were only some mild

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restrictions on activities involving unprotected heights, moving machinery, and exposure to

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marked changes in temperature and humidity. (AR 727.) There were no restrictions at all on

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driving automotive equipment or exposure to dust, fumes, and gases. (AR 727.)

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F.

Kyle Gaasbeck, M.D.

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On February 27, 2011, Dr. Gaasbeck examined Plaintiff as part of a Comprehensive

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Psychiatric Evaluation. (AR 586-90.) During the evaluation, Plaintiff claimed that he had become

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withdrawn and short-tempered because he felt stressed over his financial situation and the need to

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deal with the disability system. (AR 586.) Dr. Gaasbeck diagnosed Plaintiff with adjustment

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disorder with anxiety, but opined that the “problem [was] treatable.” (AR 589.) He recommended

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that Plaintiff speak to someone about his stress, and claimed that Plaintiff’'s stress level would

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improve, if not disappear altogether, with better financial stability. (AR 589.) Based on the

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evaluation, Dr. Gaasbeck determined that Plaintiff could: handle his own funds, perform simple
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and repetitive tasks; perform detailed and complex tasks, interact with his coworkers and the

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public; complete a normal workday without interruption from a psychiatric condition, and deal

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with the usual stress encountered in a workplace. (AR 589.)

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G.

Additional Documentation

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In March 2010, Plaintiff filed a Disability Report (AR 190-98), claiming inability to work

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due to a recent knee replacement surgery and pain in his hip and right ankle. (AR 191.) On June

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18, 2010, he completed an Exertion Questionnaire (AR 211-13) in which he explained his wife did

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most of the household chores, but he helped as much as he could by carrying the groceries, driving

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the children to school, and taking out the garbage. (AR 211-12.)
After the first application was rejected, Plaintiff completed a Disability Report Appeal in

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January 2011. (AR 222-28). In the appeal, he complained of pain in his left knee, hip, and ankle,

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chronic pain in his lower back, and financial stress and depression stemming from the pain. (AR

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222.) Despite seeing a chiropractor, Plaintiff claimed the chronic pains were making it difficult

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for him to sleep, stand or sit for long periods, or do household chores. (AR 223, 226.)

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On February 16, 2011, Plaintiff completed a Self-Function Report, where he listed his

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daily activities as including bathing, driving his children to school, watching television, going on

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short walks, shopping for groceries, playing on the computer, reading, and helping his children

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with their homework. (AR 239-40, 243.) In the report, Plaintiff mentioned that he did not handle

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stress well, and could not sit or stand for long periods or perform any heavy lifting, squatting,

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bending, or kneeling. (AR 244-45.) At the same time, however, it was noted that Plaintiff did not

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have any issues with personal care and grooming. (AR 240.) He could iron, do laundry, shop for

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groceries, and manage the family’s finances. (AR 240-42.)

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On the same day Plaintiff completed the Self-Function Report, Plaintiff’s wife, Lesia Bell,

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completed a Third Party Function Report, which matched the Plaintiff's report. (AR 231-38.) She

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noted in her report that the stress stemming from Plaintiff’s disability was adversely affecting his

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personality, causing him to become short-tempered, snappy, and irritable, which has lead him to

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isolate himself from his friends and family. (AR 238.)

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SOCIAL SECURITY ADMINISTRATION PROCEEDINGS

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On March 25, 2010, Plaintiff filed a claim for Disability Insurance Benefits, alleging

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disability from February 11, 2010. (AR 20, 65.) On October 8, 2010, the Social Security

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Administration (“SSA”) denied Plaintiff’s claim, finding that he did not qualify for disability

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benefits. (AR 67-71.) Plaintiff subsequently filed for reconsideration on January 14, 2011, which

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was denied again on May 19, 2011. (AR 72-77.) On June 21, 2011, Plaintiff requested a hearing

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before an Administrative Law Judge (“ALJ”). (AR 80-81.) ALJ Caroline Beer conducted a

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hearing on February 14, 2012. (AR 36-64.) Plaintiff appeared at the hearing with his attorney,

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Ms. O’Sullivan. (AR 38.) The ALJ heard testimony from both Plaintiff and Vocational Expert
Lynda Berkley. (AR 38.)

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A.

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Plaintiff’s Testimony
At the February 14 hearing, Plaintiff testified that he tried to keep working despite the

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injuries, but things had reached a point where he could no longer do so. According to Plaintiff, he

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was not the type of person who would stay off work if he could help it. There were only two

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instances where he had taken time off of work because of injuries. The first was when he was off

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work for two-and-a-half months after an orthoscopic surgery in 1981. (AR 53.) The second was

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when he took a month off work after hurting his back in 1997. (AR 53.) Even when he twisted

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his knee at work in 2004, he “just wrap[ped it] up and ke[pt] working.” (AR 45.) He worked until

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he was told he could not work as a garbage man anymore, at which time he transferred to the

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Debris Box Driver position, where he worked for several years before leaving just prior to his

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knee surgery. (AR 45-46.) He has not done any paid work since. (AR 46.) Despite leaving the

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workforce, however, Plaintiff testified that he has continued to help out in the community by

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volunteering as a chaplain at a local hospital one weekend a month and making hospice visits

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about once a month. (AR 46.)

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In regards to his injury, Plaintiff testified that he was still suffering from pain and

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discomfort. Even though his left knee was fine, he lacked the full flexibility that he had before

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surgery. (AR 55.) And his right knee and hip hurt because he had been compensating with his

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right hip for years prior to the surgery. (AR 47, 55.) As a result, he has been receiving continued
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chiropractic treatment and exams for his lower back and right knee to make sure that everything is

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fine. (AR 47.) In terms of medication, Plaintiff testified that he took Oxycotin for pain at least

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twice a day. (AR 48.) On a scale of 1 to 10, he estimated that his pain level would go down to a 3

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or 4 after taking the medication, but never completely all the way down. (AR 49.)

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Lastly, Plaintiff testified that he has been experiencing problems in his daily living because

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of the pain and injury. He explained that he could only sit for 20-30 minutes before having to shift

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his position, and could not stand for more than 20 minutes without getting a numb, aching pain in

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his side. (AR 54.) Even alternating between sitting and standing during an 8-hour workday was

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impossible without medication, which also had the unwanted effect of making him drowsy. (AR
54.) In terms of sleep, Plaintiff claimed that he could sleep about three hours if he took his

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medication, but would still have to shift, get up, or turn on his side throughout the night. (AR 55.)

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This made him tired during the day, so he would take 30-45 minute naps. (AR 55.)

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Despite the pain and injury, Plaintiff remained active. He drove “pretty much every day,”

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taking his children to track practice, attending church, and running errands for his wife. (AR 42-

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43, 52.) On a typical day, he would take his children to school, pick them up, read, run errands,

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grocery shop with his wife, take care of personal needs like showering and shaving, and watch

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television. (AR 49-50.) He also tried to walk around the park near his house up to three times a

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week, and would sometimes play golf, tennis, and bowling on the Wii gaming console. (AR 51.)

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B.

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Vocational Expert’s Testimony
Ms. Berkley appeared by phone as a vocational expert. (AR 39.) She testified that the

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exertional level of Plaintiff’s previous work as a garbage collector was classified as “very heavy,”"

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and that his work as a debris box driver was classified as “medium.” (AR 59.)

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The ALJ then proposed two hypotheticals to the expert. In the first, the ALJ asked Ms.

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Berkley to assume an individual of Plaintiff’s age, education, and work history who is able to: lift

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and carry 20 pounds occasionally and 10 pounds frequently; sit for six hours and stand or walk

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four to six hours during an eight-hour day; frequently push and pull with the bilateral lower

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extremities; use a cane for uneven surfaces and prolonged ambulation; frequently balance; and

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occasionally stoop, climb stairs and ramps, kneel, and crouch. (AR 60.) The ALJ asked if this
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individual would be able to crawl or climb ladders. (AR 60.)

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In response, the vocation expert testified that there were several jobs that the first

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hypothetical person could perform, including: small products assembler, DOT 706.684-022, an

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unskilled job with a light exertional level and approximately 100,000 jobs in the national economy

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and 1,000 locally; office helper, DOT 239.567-010, an unskilled job with a light exertional level

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and about 95,000 jobs in the national economy and 2,500 locally; and production assembler, DOT

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706.687-010, an unskilled job with a light exertional level and about 300,000 jobs in the national

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economy and 1,800 locally. (AR 61-62.)
In the second hypothetical, the ALJ asked the vocational expert to assume everything in

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the first hypothetical, except that the individual cannot use the hand with the cane. (AR 62.) The

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vocational expert testified that this would “preclude [all] work because it [would make] the person

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a one-armed worker while [] standing.” (AR 62.)
In a follow-up question, Plaintiff’s attorney asked if a hypothetical person would be

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precluded from all work if he was limited to sitting for 45 minutes, standing for 45 minutes, and

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walking for 20 minutes in an eight-hour day. (AR 62.) The vocational expert testified that it

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would preclude all eight-hour day work. Plaintiff’s attorney then asked a second hypothetical--an

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individual able to sit for 1-2 hours and walk for 1-2 hours in an eight-hour day, with each sitting,

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standing, and walking followed by 30 minutes of rest. (AR 63.) The vocational expert testified

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that these limitations would also preclude all eight-hour day work. (AR 63.) Plaintiff’s attorney

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then asked a third hypothetical--an individual able to sit for 30-40 minutes, stand for 20 minutes,

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and walk for about 20 minutes in an eight-hour day. (AR 63.) The vocational expert testified that

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such an individual would not be able to perform work in the national economy because it implies

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he would only be able to work one hour a day. (AR 63.)

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C.

The ALJ’s Findings

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The regulations promulgated by the Commissioner of Social Security provide a five-step

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sequential analysis for determining whether a Social Security claimant is disabled.2 20 C.F.R. §

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Disability is “the inability to engage in any substantial gainful activity” because of a medical
impairment which can result in death or “which has lasted or can be expected to last for a
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404.1520 (a). The sequential inquiry is terminated when “a question is answered affirmatively or

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negatively in such a way that a decision can be made that a claimant is or is not disabled.” Pitzer

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v. Sullivan, 908 F.2d 502, 504 (9th Cir. 1990). During the first four steps of this sequential

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inquiry, the claimant bears the burden of proof in demonstrating disability. Valentine v. Comm'r

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Soc. Sec. Admin., 574 F.3d 685, 689 (9th Cir. 2009). At step five, the burden shifts to the

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Commissioner “to show that the claimant can do other kinds of work.” Id. (quoting Embrey v.

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Bowen, 849 F.2d 418, 422 (9th Cir. 1988)).

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The ALJ must first determine whether the claimant is performing “substantial gainful

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activity,” which would mandate that the claimant be found not disabled regardless of medical
condition, age, education, and work experience. 20 C.F.R. § 404.1520(a)(4)(i) and 404.1520(b).

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Here, the ALJ determined that Plaintiff had not performed substantial gainful activity since

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February 11, 2010. (AR 22.)

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At step two, the ALJ must determine, based on medical findings, whether the claimant has

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a “severe” impairment or combination of impairments as defined by the Social Security Act. If no

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severe impairment is found, the claimant is not disabled. 20 C.F.R. § 404.1520(c). Here, the ALJ

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determined that Plaintiff had the following severe impairments: status post total left knee

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replacement; degenerative osteoarthritis of the bilateral knees; multilevel intervertebral disc

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disease; lumbar spine with spinal stenosis, L4-L5; sprained right ankle; and posttraumatic strain,

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medial collateral ligament, left ankle. (AR 22.) The ALJ determined, however, that Plaintiff’s

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depression was not a severe impairment, finding that it caused no more than mild limitations. (AR

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23.)

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If the ALJ determines that the claimant has a severe impairment, the process proceeds to

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the third step, where the ALJ must determine whether the claimant has an impairment or

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combination of impairments that meet or equals an impairment listed in 20 C.F.R. Part 404,

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Subpart P, Appendix 1. 20 C.F.R. § 404.1520(a)(4)(iii). If a claimant’s impairment either meets

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the listed criteria for the diagnosis or is medically equivalent to the criteria of the diagnosis, he is

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continuous period of not less than 12 months.” 42 U.S.C. § 423(d)(1)(A).
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conclusively presumed to be disabled, without considering age, education and work experience.

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20 C.F.R. § 404.1520(d). Here, the ALJ determined that Plaintiff did not have any impairment or

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combination of impairments meeting or equaling in severity any impairment set forth in the

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Listing of Impairments. (AR 23.)

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Before proceeding to step four, the ALJ must determine the claimant’s Residual Functional
Capacity (“RFC”). 20 C.F.R. § 404.1520(e). RFC refers to what an individual can do in a work

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setting, despite mental or physical limitations caused by impairments or related symptoms. 20

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C.F.R. § 404.1545. In assessing an individual’s RFC, the ALJ must consider all of the claimant’s

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medically determinable impairments, including the medically determinable impairments that are

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nonsevere. 20 C.F.R. § 404.1545(a)(1)-(2). Here, the ALJ determined that Plaintiff has the RFC

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to perform light work as defined in 20 C.F.R. § 404.1567(b), with certain variations. (AR 23.)

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Specifically, the ALJ determined that Plaintiff can:

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lift and carry 10 pounds frequently and 20 pounds occasionally, sit
for 6 hours in an 8-hour workday, stand and/or walk 4-6 hours in an
8-hour workday, and push/pull frequently with the bilateral lower
extremities. The claimant requires a cane for uneven surfaces and
prolonged ambulation (the claimant is not precluded from using his
bilateral arms while standing, on even surfaces, or when not walking
a prolonged distance). Finally, the claimant can frequently balance,
never climb stairs, and occasionally stoop, climb stairs/ramps, kneel,
crouch, and crawl.

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19

(AR 23.)
The fourth step of the evaluation process requires that the ALJ determine whether the

20

claimant’s RFC is sufficient to perform past relevant work. 20 C.F.R. § 404.1520(f). Past

21

relevant work is work performed “"within the past 15 years, that was substantial gainful activity,

22

and that lasted long enough for [the claimant] to learn to do it.” 20 C.F.R. § 404.1560(b)(1). If

23

the claimant has the RFC to do his past relevant work, the claimant is not disabled. 20 C.F.R. §

24

404.1520(a)(4)(iv). Here, Plaintiff has past relevant work as a garbage collector and garbage

25

collector driver, but the vocational expert testified that Plaintiff was unable to perform these work.

26

(AR 28.) Based on the expert’s testimony, the ALJ determined that Plaintiff was unable to

27

perform any past relevant work. (AR 28.)

28

In the fifth step of the analysis, the burden shifts to the Commissioner to prove that there
12

1

are other jobs existing in significant numbers in the national economy which the claimant can

2

perform consistent with the claimant’s RFC, age, education, and work experience. 20 C.F.R. §

3

404.1520(g); 20 C.F.R. § 404.1560(c). The Commissioner can meet this burden by relying on the

4

testimony of a vocational expert or by reference to the Medical-Vocational Guidelines at 20

5

C.F.R. pt. 404, subpt. P, app 2. Lounsburry v. Barnhart, 468 F.3d 1111, 1114 (9th Cir. 2006).

6

Here, based on the testimony of the vocational expert, Plaintiff’s age, education, work experience,

7

and RFC, the ALJ determined that there are jobs that exist in significant numbers in the national

8

economy that Plaintiff can perform. (AR 28.)

9

D.

10

ALJ’s Decision and Plaintiff’s Appeal
On February 24, 2012, the ALJ issued an unfavorable decision, finding that Plaintiff was

United States District Court
Northern District of California

11

not disabled. (AR 20-30.) This decision became final when the Appeals Council declined to

12

review it on September 7, 2012. (AR 1-3.) Having exhausted his administrative remedies,

13

Plaintiff commenced this action for judicial review pursuant to 42 U.S.C. § 405(g). On March 13,

14

2013, Plaintiff filed his motion for summary judgment. (Dkt. No. 14.) On May 10, 2013, the

15

Commissioner filed a cross-motion for summary judgment. (Dkt. No. 18.)

16
17

LEGAL STANDARD
This Court has jurisdiction to review final decisions of the Commissioner pursuant to 42

18

U.S.C. § 405(g). The ALJ’s decision must be affirmed if the findings are “supported by

19

substantial evidence and if the [ALJ] applied the correct legal standards.” Holohan v. Massanari,

20

246 F.3d 1195, 1201 (9th Cir. 2001) (citation omitted). “Substantial evidence” means more than a

21

scintilla, but less than a preponderance, of evidence that a reasonable person might accept as

22

adequate to support a conclusion. Thomas v. Barnhart, 278 F.3d 947, 954 (9th Cir. 2002). The

23

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

24

and detracts from the ALJ’s conclusion. McAllister v. Sullivan, 888 F.2d 599, 602 (9th Cir. 1989).

25

However, where the evidence is susceptible to more than one rational interpretation, the court

26

must uphold the ALJ’s decision. Magallanes v. Bowen, 881 F.2d 747, 750 (9th Cir. 1989).

27

Determinations of credibility, resolution of conflicts in medical testimony, and all other

28

ambiguities are to be resolved by the ALJ. Id. Additionally, the harmless error rule applies where
13

1

substantial evidence otherwise supports the ALJ’s decision. Curry v. Sullivan, 925 F.2d 1127,

2

1131 (9th Cir. 1990).

3

DISCUSSION

4

In his motion, Plaintiff raises three arguments in support of his position that this case
should be remanded with instructions to award benefits or, in the alternative, remand with

6

instructions for further proceedings. First, Plaintiff argues that his disability meets or equals

7

listing 1.02 of 20 C.F.R. § 404 app. 1. Second, Plaintiff argues that the ALJ violated 20 CFR

8

§404.1527, evaluating expert opinion evidence, when she accorded “great weight” to the opinion

9

of non-examining DDS employee Dr. Jaituni and failed to give appropriate weight to Dr. Jaffin,

10

the treating physician. Third, Plaintiff argues that the ALJ’s adverse credibility finding was not

11
United States District Court
Northern District of California

5

supported by substantial evidence. The Court shall consider each argument in turn.

12

A.

13

Physician Opinions
Plaintiff argues that the ALJ failed to give proper weight to his treating physician, Dr.

14

Jaffin. Plaintiff asserts that Dr. Jaffin’s opinion should have been given controlling weight, and

15

that the ALJ failed to comply with 20 C.F.R. § 404.1527 in determining Dr. Jaffin’s opinion was

16

inconsistent with his treatment records and Plaintiff’s daily activities. Plaintiff further argues that

17

the ALJ erred in giving Dr. Jaituni’s opinion great weight because it was not supported by

18

substantial evidence.

19

In response, the Commissioner argues that the ALJ thoroughly considered the objective

20

medical evidence and provided specific and legitimate reasons for not fully crediting Dr. Jaffin’s

21

opinion. Specifically, the Commissioner argues that the ALJ correctly found that Dr. Jaffin’s

22

opinion was inconsistent with his treatment notes, the medical record, and Plaintiff’s admitted

23

daily activities. The Commissioner further argues that Dr. Jaituni’s opinion is consistent with the

24

overall record, and supports the ALJ’s decision.

25

“Cases in [the Ninth Circuit] distinguish among the opinions of three types of physicians:

26

(1) those who treat the claimant (treating physicians); (2) those who examine but do not treat the

27

claimant (examining physicians); and (3) those who neither examine nor treat the claimant

28

(nonexamining physicians).” Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1995). Generally, an
14

1

opinion of a treating physician should be favored over that of a non-treating physician. Id. at 830–

2

31. However, a treating physician’s opinion “is not binding on an ALJ with respect to the

3

existence of an impairment or the ultimate determination of disability.” Tonapetyan v. Halter, 242

4

F.3d 1144, 1148 (9th Cir. 2001). If a treating physician’s opinion is uncontradicted, an ALJ must

5

give “clear and convincing” reasons that are supported by substantial evidence to reject the

6

opinion. Lester, 81 F.3d at 830-31. However, if the treating physician’s opinion is contradicted,

7

an ALJ needs to only give “specific and legitimate reasons [that are] supported by substantial

8

evidence in the record” to reject the opinion. Id. Further, the opinions of a specialist about

9

medical issues related to his or her area of specialization are given more weight than the opinions
of a nonspecialist. 20 C.F.R. § 404.1527(c)(5); 20 C.F.R § 416.927(c)(5). “The ALJ is

11
United States District Court
Northern District of California

10

responsible for determining credibility and resolving conflicts” or ambiguities in the medical

12

evidence. Magallanes, 881 F.2d at 750.

13

In determining what weight to give a medical opinion, the ALJ should give a treating

14

physician’s opinion controlling weight if it is “well-supported by medically acceptable clinical and

15

laboratory diagnostic techniques and is not inconsistent with the other substantial evidence.” Orn

16

v. Astrue, 495 F.3d 625, 631 (9th Cir. 2007); 20 C.F.R. § 404.1527(d)(2). As explained in Social

17

Security Ruling 96–2p:

18
19
20
21
22
23

[A] finding that a treating source medical opinion is not wellsupported by medically acceptable clinical and laboratory diagnostic
techniques or is inconsistent with the other substantial evidence in
the case record means only that the opinion is not entitled to
“controlling weight,” not that the opinion should be rejected.
Treating source medical opinions are still entitled to deference and
must be weighed using all of the factors provided in 20 C.F.R. [§]
404.1527. . . . In many cases, a treating source's medical opinion
will be entitled to the greatest weight and should be adopted, even if
it does not meet the test for controlling weight.

24

S.S.R. 96–2p at 4 (Cum. Ed. 1996), available at 61 FR 34490-01 (July 2, 1996). Accordingly,

25

when an ALJ finds a treating physician’s opinion is not entitled to controlling weight, the

26

following factors should be used to determine what weight to give that opinion: length of the

27

treatment relationship and the frequency of examination, nature and extent of the treatment

28

relationship, supportability, consistency, specialization, and any factors that may have bearing. 20
15

1

C.F.R. § 404.1527(c)(2)-(6); see also Orn, 495 F.3d at 632.

2

1.

Dr. Jaffin

3

Here, the ALJ found that Dr. Jaffin’s opinion was “clearly not consistent with his own

4

progress reports” and Plaintiff’s daily activities. (AR 27.) There appears to be no dispute that Dr.

5

Jaffin is Plaintiff’s treating physician and orthopedist. (AR 25, 315.)

6

The ALJ summarized Plaintiff’s medical records as follows. In 2008, Plaintiff began
treatment with Dr. Jaffin. (AR 25, 315.) The ALJ noted that Plaintiff’s treatment records reflect

8

treatment to his left knee and right ankle arising from a 2004 work-related injury. (AR 25.) After

9

this injury, Plaintiff had a course of Naproxen and physical therapy and continued to work despite

10

his injuries. (AR 25.) A “[p]hysical examination from June 2008 showed that [Plaintiff] walked

11
United States District Court
Northern District of California

7

with a reasonable gait and had a poor push-off on the right.” (AR 25.) In December 2008, a MRI

12

demonstrated that Plaintiff had significant spinal stenosis at L4-L5 and at L5-S1. (AR 25.)

13

However, because the lumbar spine was not covered by Workers’ Compensation, Dr. Jaffin ceased

14

further treatment. (AR 25.) On February 11, 2010, “the [Plaintiff] underwent left knee

15

replacement with no complications identified.” (AR 25.) The ALJ noted from Dr. Jaffin’s records

16

that two weeks after knee surgery, Plaintiff had up to 90 degrees of flexion and walked well

17

without aids. (AR 25, 368.) The ALJ additionally noted that in the following month, Plaintiff

18

could jump up and down, squat and recover, and had more than 110 degrees of flexion. (AR 25,

19

362.) At two months post surgery, Dr. Jaffin stated Plaintiff “walked well, and had more than 100

20

degrees of flexion.” (AR 25, 363.)

21

In contrast to this medical evidence, the ALJ noted that Dr. Jaffin’s opinion consists of an

22

undated Physical Capacities Evaluation, in which he opined that the Plaintiff could only sit 45

23

minutes, stand 45 minutes, and walk 20 minutes in an 8-hour workday, and occasionally bend,

24

squat, crawl, climb, and reach above shoulder level. (AR 27, 729-31.) After reviewing the

25

medical evidence, the ALJ found Dr. Jaffin’s records showed “significant improvement following

26

[Plaintiff’s] left knee replacement.” (AR 28.)

27
28

The ALJ assigned Dr. Jaffin’s treatment and progress notes “great weight” because they
“provide contemporaneous descriptions of the [Plaintiff’s] condition and abilities and these
16

1

progress notes cover a longitudinal period of time.” (AR 27.) However, the ALJ accorded Dr.

2

Jaffin’s opinion little weight, finding that: (1) Dr. Jaffin’s opinion is “clearly not consistent with

3

his own progress reports,” which indicated that Plaintiff walks well with great range of motion,

4

has no limp, and can jump up and down; and (2) Dr. Jaffin’s opinion is “inconsistent with

5

[Plaintiff’s] activities of daily living.” (AR 27.)

6
7

a.

Consistency Between Dr. Jaffin’s Opinion and Treatment Records

The first reason the ALJ gave Dr. Jaffin’s opinion little weight was that she found Dr.

8

Jaffin’s opinion to be inconsistent with his own findings. (AR 27.) Consistency is determined by

9

examining the “record as a whole” and does not require similarity in findings over time despite a
claimant’s evolving medical status. 20 C.F.R. § 404.1527 (“Generally, the more consistent an

11
United States District Court
Northern District of California

10

opinion is with the record as a whole, the more weight [the ALJ] will give to that opinion.”); Orn,

12

495 F.3d at 634 (“The primary function of medical records is to promote communication and

13

recordkeeping for health care personnel—not to provide evidence for disability determinations.

14

We therefore do not require that a medical condition be mentioned in every report to conclude that

15

a physician’s opinion is supported by the record.”). However, the incongruity between a

16

physician’s statement and medical records provides a “specific and legitimate” reason for rejecting

17

a physician’s opinion. Tommasetti v. Astrue, 533 F.3d 1035, 1041 (9th Cir. 2008) (quoting Lester,

18

81 F.3d at 830-31).

19

Having reviewed the administrative record in this case, the Court finds that the ALJ

20

properly gave Dr. Jaffin’s opinion little weight based on the inconsistency between his opinion

21

and his own findings. In his treatment records, Dr. Jaffin indicated that Plaintiff was able to work

22

from September 2008 until his preoperative appointment on January 28, 2010. (AR 373, 383,

23

395-401, 403-07.) Following surgery, he noted that Plaintiff walked well with great range of

24

motion, had no limp, and could jump up and down. (AR 25, 27, 475, 573-74, 614-15, 715-20.)

25

He also indicated that Plaintiff’s left knee replacement did “extraordinarily well.” (AR 717.) In

26

contrast to these treatment notes, Dr. Jaffin opined that Plaintiff had work restrictions that would

27

limit him to working to just under two hours in an 8-hour work day. (AR 729-31.) Dr. Jaffin did

28

not provide an explanation for this opinion that contradicted his treatment records.
17

1

An ALJ must evaluate a physician’s explanations for her opinion, and the weight given to
an opinion depends on the strength of such explanations. See 20 C.F.R. § 404.1527(c)(3) (“The

3

better an explanation a source provides for an opinion, the more weight we will give that

4

opinion.”). Here, Dr. Jaffin’s treatment records fail to support his finding that Plaintiff suffered

5

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

6

2003) (treating doctor’s opinion properly rejected when treatment notes “provide no basis for the

7

functional restrictions he opined should be imposed on [claimant]”); Valentine v. Comm’r, Soc.

8

Sec. Admin., 574 F.3d 685, 692-93 (9th Cir. 2009) (contradiction between treating physician’s

9

opinion and his treatment notes constitutes specific and legitimate reason for rejecting treating

10

physician’s opinion); Tommasetti, 533 F.3d at 1041 (incongruity between medical records and

11
United States District Court
Northern District of California

2

opinion provided specific and legitimate reason for rejecting treating physician’s opinion); Batson

12

v. Comm’r Soc. Sec. Admin., 359 F.3d 1190, 1195 (9th Cir. 2004) (“an ALJ may discredit treating

13

physicians’ opinions that are conclusory, brief, and unsupported by the record as a whole . . . or by

14

objective medical findings”); Rollins v. Massanari, 261 F.3d 853, 856 (9th Cir. 2001) (ALJ

15

permissibly rejected treating physician’s opinion when opinion was contradicted by or inconsistent

16

with treatment reports).

17

Despite this inconsistency, Plaintiff argues that Dr. Jaffin’s treatment records as a whole

18

support his opinion. In support of his argument, Plaintiff directs the Court’s attention to a

19

December 7, 2011 report by Dr. Jaffin, in which he notes “[Plaintiff] remains unable to work.”

20

(AR 715.) However, within that same report, Dr. Jaffin also notes that Plaintiff “has done very

21

well,” that “exam reveals a nicely healed incision,” that Plaintiff “can toe and heel walk, jump up

22

and down,” and that Dr. Jaffin would “recheck him in 5 weeks.” (AR 715.) Nowhere does the

23

report indicate that Plaintiff is disabled and permanently unable to perform any type of work.

24

Further, a statement of “unable to work” by a medical source does not mean the ALJ must

25

determine that a qualifying disability exists, nor does it carry any “special significance.” 20

26

C.F.R. § 404.1527(d)(1) (“A statement by a medical source that you are “disabled” or “unable to

27

work” does not mean that we will determine that you are disabled.”); McLeod v. Astrue, 640

28

F.3d 881, 885 (9th Cir. 2011) (internal citation omitted). The ultimate determination of disability
18

1

is reserved to the Commissioner. Boardman v. Astrue, 286 F. App’x 397, 399 (9th Cir. 2008); see

2

also 20 C.F.R. § 404.1527(d)(2). Accordingly, this argument is without merit.
In one sentence of his Motion, without providing any factual or legal support, Plaintiff also

3

argues that Dr. Jaffin’s opinion is supported by the opinions of Dr. Conrad and Dr. Brophy,

5

Plaintiff’s chiropractor.3 Dr. Conrad opined that Plaintiff was precluded from crouching,

6

crawling, pivoting, kneeling, squatting, walking on uneven terrain, climbing, and activities of

7

comparable physical effort. (AR 26, 504.) He recommended that Plaintiff not return to his former

8

job. (AR 28, 509.) The ALJ gave Dr. Conrad’s opinion “some weight” based on his extensive

9

record review and specialty in the field of orthopedics. (AR 27.) However, the ALJ found Dr.

10

Conrad’s “postural limitations [were] not consistent with the improvement demonstrated by Dr.

11
United States District Court
Northern District of California

4

Jaffin’s reports.” (AR 27.)
Dr. Brophy opined that Plaintiff could sit, stand, or walk one to two hours per episode

12
13

followed by 30 minutes of rest, and that Plaintiff had mild restrictions involving unprotected

14

heights, moving machinery, and exposure to marked changes in temperature and humidity. (AR

15

27, 725, 727.) The ALJ noted that Dr. Brophy is not an acceptable medical source, but gave his

16

opinion “some weight,” finding that it was “relatively consistent with the totality of medical

17

evidence.” (AR 27.)
When determining whether a claimant is disabled, the ALJ must consider each medical

18
19

opinion in the record together with the rest of the relevant evidence. 20 C.F.R. § 416.927(b);

20

Zamora v. Astrue, 2010 WL 3814179, at *3 (N.D. Cal. Sep. 27, 2010). However, where the

21

evidence is susceptible to more than one rational interpretation, the court must uphold the ALJ’s

22

decision. Magallanes, 881 F.2d at 750. Determinations of credibility, resolution of conflicts in

23

medical testimony, and all other ambiguities are to be resolved by the ALJ. Id. Thus, because the

24
3

25
26
27
28

Chiropractors are considered medical professionals, but they are not “acceptable medical
sources” under the Social Security regulatory framework. 20 C.F.R. §§ 404.1513(d) (1),
416.913(d)(1). Thus, the evaluations of a claimant by a chiropractor is considered evidence from
“other sources.” Id. The distinction between “other sources” and an “acceptable medical source”
is important because only an “acceptable medical source” may be considered a “treating source.”
See 20 C.F.R. §§ 404.1502, 416.902. In addition to “acceptable medical sources,” an ALJ may
nevertheless examine “other sources to show the severity of [a claimant’s] impairment(s) and how
it affects [his] ability to work.” 20 C.F.R. § 404.1513(d).
19

1

ALJ properly considered each medical opinion and found that they were not supported by the

2

record as a whole, the Court must uphold the ALJ’s decision. Further, even if the Court were to

3

find that Drs. Conrad and Brophy supported Dr. Jaffin’s opinion, the harmless error rule applies

4

because, as discussed above, Plaintiff’s records from his treating physician fail to support such a

5

finding. Curry, 925 F.2d at 1131.

6
7

Based on this analysis, the Court finds that the ALJ properly gave Dr. Jaffin’s opinion little
weight based on the fact that his opinion is inconsistent with his own findings.

8

b.

Plaintiff’s Daily Activities

The second reason the ALJ gave Dr. Jaffin’s opinion little weight was that she found it to

10

be contradicted by Plaintiff’s activities of daily living. (AR 27.) Specifically, the ALJ found that

11
United States District Court
Northern District of California

9

Dr. Jaffin’s restrictions appeared to be inconsistent with the level of activity that Plaintiff engaged

12

in by driving several times a day. (AR 27.) Plaintiff also reported that he is independent in

13

“dressing, feeding, and hygiene, and able to take out the garbage, do laundry, and drive and put

14

gasoline in his car.” (AR 28, citing Ex. 5F at 2.) In addition to driving his children to and from

15

school and activities every day, Plaintiff regularly attended church twice a week, served as an

16

assistant pastor, could go to the store with his wife, perform volunteer work, and play video

17

games. (AR 28.) Plaintiff’s reported activities contradicted Dr. Jaffin’s undated, unsigned opinion

18

that Plaintiff had severe functional limitations. (AR 729.) An ALJ's finding that the doctor's

19

“restrictions appear to be inconsistent with the level of activity that [plaintiff] engaged in”"

20

provides a specific and legitimate reason for discounting that opinion. Rollins, 261 F.3d at 856;

21

Montalvo v. Astrue, 237 F. App’x 259, 261-62 (9th Cir. 2007) (ALJ properly discredited treating

22

physicians' conclusions regarding severity of conditions based in part on claimant's daily living

23

activities of bathing and dressing herself, seeing her children off to school, helping with household

24

chores, meeting with family, and going to the mall).

25
26

The Court finds the ALJ properly rejected Dr. Jaffin’s opinion regarding Plaintiff’s workrelated functional limitations to the extent it was inconsistent with Plaintiff’s daily activities.

27

2.

Dr. Jaituni

28

In his Motion, Plaintiff argues that: “The opinion of Dr. Jaituni is not reflective of the
20

1

opinion of any treating or examining physician and is not supported by substantial evidence.”

2

Pl.’s Mot. at 8. Plaintiff fails to cite any portion of the record in support of this argument, and he

3

also fails to provide any legal authority. Regardless, the Court finds this argument without merit.

4

Dr. Jaituni opined that Plaintiff could: occasionally lift or carry 20 pounds, frequently lift 10

5

pounds; stand or walk for at least six hours in an eight-hour workday; sit about six hours in an

6

eight-hour workday; and that his push or pull exertional limitations were limited in his lower

7

extremities. (AR 550.) He also opined that Plaintiff had no visual, perceptive, manipulative,

8

auditory, or environmental limitations. (AR 551-52.) The Court finds that this opinion is

9

supported by Dr. Jaffin’s treatment records, as discussed above, and is therefore supported by
substantial evidence. Accordingly, this argument fails.

11
United States District Court
Northern District of California

10

B.

12

Credibility Finding
Plaintiff next argues that the ALJ improperly made an adverse credibility determination

13

regarding the “intensity, persistence and limiting effects” of his symptoms. Pl.’s Mot. at 8. A

14

two-step analysis is used when determining whether a claimant’s testimony regarding their

15

subjective pain or symptoms is credible. Lingenfelter v. Astrue, 504 F.3d 1028, 1035-36 (9th Cir.

16

2007). First, it must be determined “whether the claimant has presented objective medical

17

evidence of an underlying impairment ‘which could reasonably be expected to produce the pain or

18

other symptoms alleged.’” Id. at 1036 (quoting Bunnell v. Sullivan, 947 F.2d 341, 344 (9th Cir.

19

1991) (en banc)). A claimant does not need to “show that her impairment could reasonably be

20

expected to cause the severity of the symptom she has alleged; she need only show that it could

21

reasonably have caused some degree of the symptom.” Id. (quoting Smolen v. Chater, 80 F.3d

22

1273, 1282 (9th Cir. 1996)).

23

Second, if the claimant has met the first step and there is no evidence of malingering, “the

24

ALJ can reject the claimant’s testimony about the severity of her symptoms only by offering

25

specific, clear and convincing reasons for doing so.” Id. (quoting Smolen, 80 F.3d at 1281). “The

26

ALJ must state specifically which testimony is not credible and what facts in the record lead to

27

that conclusion.” Smolen, 80 F.3d at 1284. Where the ALJ “has made specific findings justifying

28

a decision to disbelieve an allegation of excess pain, and those findings are supported by
21

1

substantial evidence in the record,” courts must not engage in second-guessing. Fair v. Bowen,

2

885 F.2d 597, 604 (9th Cir. 1989). However, a finding that the claimant lacks credibility cannot

3

be premised wholly on a lack of medical support for the severity of his pain. Light v. Soc. Sec.

4

Admin., 119 F.3d 789, 793 (9th Cir. 1997) (citing Lester, 81 F.3d at 834; Cotton v. Bowen, 799

5

F.2d 1403, 1407 (9th Cir. 1986) (“‘Excess pain’ is, by definition, pain that is unsupported by

6

objective medical findings.”).

7

Factors that an ALJ may consider in weighing a claimant’s credibility include:
“[claimant’s] reputation for truthfulness, inconsistencies either in [claimant’s] testimony or

9

between [his] testimony and [his] conduct, claimant’s daily activities, [his] work record, and

10

testimony from physicians and third parties concerning the nature, severity, and effect of the

11
United States District Court
Northern District of California

8

symptoms of which claimant complains.” Thomas, 278 F.3d at 958-59. Here, the ALJ properly

12

considered these factors in making an adverse credibility finding:

13

After careful consideration of the evidence, the undersigned finds
that the claimant’s medically determinable impairments could
reasonably be expected to cause the alleged symptoms; however, the
claimant’s statements concerning the intensity, persistence and
limiting effects of these symptoms are not credible to the extent they
are inconsistent with the above residual capacity assessment.
(Exhibits 2F and 24F). The claimant also reported that he is
independent in dressing, feeding, and hygiene, and able to take out
the garbage, do laundry, and drive and put gasoline into his car
(Exhibit 5F, p.2). At the hearing, he admitted that he drove several
times per day, transporting his children to and from school and track
practice. He testified that he goes to the store with his wife, is active
in his church, performs volunteer work, and plays video games.

14
15
16
17
18
19
20

While the claimant has an excellent work history and earnings
record, the medical records do not show that he is incapable of light
exertional activity.

21
22

(AR 27-28.)

23

While the failure of the medical record to fully corroborate a claimant’s subjective

24

symptom testimony is not, by itself, a legally sufficient basis for rejecting such testimony, it is a

25

factor that the ALJ may take into account when making a credibility determination. Rollins, 261

26

F.3d at 856. Thus, the Court finds that the ALJ did not err when she considered the lack of

27

objective evidence and objective functional restrictions as a factor in assessing Plaintiff’s

28

credibility.
22

1

The ALJ noted that the longitudinal record showed “significant improvement following the

2

claimant’s left knee replacement.” (AR 28.) The ALJ also noted that Dr. Jaffin’s post surgery

3

progress notes of March 23, 2010 reported that Plaintiff “walk[ed] well with no assistive devices

4

only a month after surgery.” (AR 28, 364.) Citing Dr. Jaffin’s progress notes of May 2010, the

5

ALJ further noted that Plaintiff could “jump up and down and squat and recover.” (AR 28.) The

6

ALJ found this to be consistent with Dr. Jaffin’s most recent notes from December 2011, which

7

“confirm flexion to 115 degrees, full extension, and no abnormalities on walking, as well as the

8

ability to toe and heel walk and jump up and down.” (AR 28.)

9

Additionally, the ALJ noted that there were only mild degenerative changes to Plaintiff’s
bilateral hip joints and right knee, with no acute process. (AR 27: “Right knee x-rays from

11
United States District Court
Northern District of California

10

December 2010 demonstrated mild to moderate osteoarthritis and chondrocalcinosis of the medial

12

and lateral menisci.”) The x-rays of the left knee showed “no acute process” and imaging of the

13

hips showed “slight narrowing of both hip joints and some sclerosis of the superior acetabular

14

surfaces and slight marginal osteophyte formation bilaterally.” (AR 27.) Upon examination, Dr.

15

Pon found that Plaintiff had “some right hip and low back discomfort”" and slightly less than

16

normal gait velocity and stride length,” but maintained a stable gait with no limp. (AR 25-26.)

17

Drs. Jaffin, Pon, and Conrad all recommended varying limitations on postural activities

18

such as bending, stooping, crouching or climbing. However, no physician placed any restriction

19

on Plaintiff’s ability to sit, stand, or walk that would preclude him from sitting for six-hours in an

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eight hour work day, or from standing or walking for 4-6 hours in an eight-hour work day. (AR

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23.) Despite Plaintiff’s subjective complaints, he testified that he was able to reduce his pain to a

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manageable level (3 to 4 on a scale of 1 to 10) by taking medication twice daily. (AR 25.)

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Accordingly, the Court finds that the ALJ properly considered the lack of evidence supporting

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Plaintiff’s subjective complaints and alleged limitations as a factor in assessing his credibility.

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The ALJ may also discredit a claimant’s testimony when there are conflicts between

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claimant’s testimony and his own conduct, or on internal contradictions in that testimony. Light,

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119 F.3d at 793 (ALJ may also make an adverse credibility finding if there are inconsistencies

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between the claimant’s testimony about his daily activities and his testimony about the nature,
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effect, or severity of his symptoms.) Such is the case here. Plaintiff testified that he could not

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perform any work due to severe left knee degenerative joint disease post total knee replacement

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surgery, degenerative joint disease of the right knee, and chronic back and hip pain. (AR 47.) Yet,

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Plaintiff testified to a number of daily activities in conflict with his claim of inability to perform

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sustained light exertional activity. In making an adverse credibility finding, the ALJ determined

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that Plaintiff’s daily activities contradicted at least part of this testimony regarding his functional

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limitations in that Plaintiff is able to routinely drive his children to and from school five days a

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week (at least 20-40 minutes of driving per day4), in addition to routinely driving his children to

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and from their after school activities three days a week, attending church services twice weekly,
doing laundry for two hours at a time every week, ironing, taking out the garbage, putting gasoline

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in the car, and helping to do the bi-weekly grocery shopping for his four children. (AR 28.)

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Plaintiff can also independently attend to his own hygiene and feeding. (AR 28.) Moreover,

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Plaintiff is able to reduce his pain by taking his prescribed medication twice daily. (AR 255.) As

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such, the ALJ properly considered Plaintiff’s daily activities as a factor in assessing his credibility

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regarding his functional limitations due to pain from his back, hips and knees.
The Court finds that based on this record, the ALJ provided clear and convincing reasons

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for finding Plaintiff’s testimony to be not credible with respect to the effect of his pain on his

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functional limitations. Accordingly, no reversible error was committed.

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C.

Finally, Plaintiff argues that his degree of impairment meets or equals Listing of

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Listing 1.02

Impairments 1.02.

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Listing 1.02 requires the following:

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1.02 Major dysfunction of a joint(s) (due to any cause): Characterized by gross
anatomical deformity (e.g., subluxation, contracture, bony or fibrous ankylosis,

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Plaintiff testified the school was five to ten minutes away. (AR 43) A minimum of four trips
daily, at five minutes per trip, would be twenty minutes of routine driving per day. Four trips at
ten minutes per trip would equal forty minutes of routine driving per day, in addition to Plaintiff’s
other regular driving activity.
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Plaintiff rated his pain as a 3 to 4 out of 10 after taking medication, with 10 being commensurate
with the need for immediate medical intervention.
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instability) and chronic joint pain and stiffness with signs of limitation of motion or
other abnormal motion of the affected joint(s), and findings on appropriate
medically acceptable imaging of joint space narrowing, bony destruction, or
ankylosis of the affected joint(s). With:
A. Involvement of one major peripheral weight-bearing joint (i.e., hip, knee, or
ankle), resulting in inability to ambulate effectively, as defined in 1.00B2b[.]
20. C.F.R. § 404, Subpart P, Appendix 1 § 1.02.
At step three of the evaluation process, the ALJ must determine whether a claimant has an

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impairment or combination of impairments that meets or equals a condition outlined in the Listing

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of Impairments. 20 C.F.R. § 404.1520(d). “An ALJ must evaluate the relevant evidence before

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concluding that a claimant’s impairments do not meet or equal a listed impairment. A boilerplate

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finding is insufficient to support a conclusion that a claimant's impairment does not do so.” Lewis

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v. Apfel, 236 F.3d 503, 512 (9th Cir. 2001). In order for a claimant’s impairment or combination

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of impairments to meet the requirement of a listing, all of the criteria of that listing and the

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duration requirement must be satisfied. 20 C.F.R. § 404.1525(c)(3).

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A claimant bears the burden of proving that he or she has an impairment that meets or

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equals the criteria of a listed impairment. Burch v. Barnhart, 400 F.3d 676, 683 (9th Cir. 2005)

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(“An ALJ is not required to discuss the combined effects of a claimant’s impairments or compare

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them to any listing in an equivalency determination, unless the claimant presents evidence in an

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effort to establish equivalence.”); Sullivan v. Zebley, 493 U.S. 521, 530 (1990) (the burden of

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proof rests with the claimant to provide and identify medical signs and laboratory findings that

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support all criteria for a Step 3 impairment determination).

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Plaintiff fails to meet the burden of proof establishing that his impairments meet or equal
Listing 1.02.
By definition, the inability to ambulate effectively means:
. . . an extreme limitation of the ability to walk; i.e., an
impairment(s) that interferes very seriously with the individual's
ability to independently initiate, sustain, or complete activities.
Ineffective ambulation is defined generally as having insufficient
lower extremity functioning (see 1.00J) to permit independent
ambulation without the use of a hand-held assistive device(s) that
limits the functioning of both upper extremities.
20 C.F.R. § 404, Subpart P, Appendix 1 § 1.00(B)(2)(b)(1).
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“To ambulate effectively, individuals must be capable of sustaining a reasonable walking

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pace over a sufficient distance to be able to carry out activities of daily living. They must have the

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ability to travel without companion assistance to and from a place of employment or school.” Id.,

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§ 1.00(B)(2)(b)(2). Examples of ineffective ambulation include, “the inability to walk without the

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use of a walker, two crutches or two canes, the inability to walk a block at a reasonable pace on

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rough or uneven surfaces, the inability to use standard public transportation, the inability to carry

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out routine ambulatory activities, such as shopping and banking, and the inability to climb a few

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steps at a reasonable pace with the use of a single hand rail.” Id.

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First, Plaintiff does not require the use of any assistive device to walk, but uses a cane to
walk long distances, or for support when tired. (AR 49.) Plaintiff’s treating physician noted that

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Plaintiff “walked well” without the use of an assistive device, could heel and toe walk, jump up

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and down, and squat and recover. Plaintiff testified that he has the ability to walk without

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assistance from a companion, and that he walks independently for approximately 20 minutes, two

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to three times a week, with the help of his cane. (AR 51.) Plaintiff can walk one block before

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needing a rest. (AR 244.)

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No doctor opined that Plaintiff is wholly unable to walk on uneven ground. Instead,

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Plaintiff points to Dr. Conrad’s report, in which he opines that Plaintiff would have a functional

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limitation of not ambulating on uneven surfaces. (AR 504.) The only medical evidence of record

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cited by Plaintiff supporting this claim is the August 24, 2010 report of agreed medical examiner,

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Dr. Conrad. (AR 504.) Dr. Conrad opines that Plaintiff be subject to certain work restrictions,

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such as being “precluded from crouching, crawling, pivoting, kneeling, squatting, walking on

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uneven terrain, climbing, and activities of comparable effort” with respect to his left knee and

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right ankle injuries. (AR 504.) This is not the same thing as finding Plaintiff could not walk on

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uneven terrain at a reasonable pace for one block. Plaintiff has never testified that he could not

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walk on uneven terrain. Moreover, Plaintiff reported that he could climb stairs after his knee

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replacement, but needed to hold on to the rail when he went down. (AR 212.)

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Second, the record establishes that Plaintiff is capable of effectively initiating, sustaining,

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and completing activities of daily living which require ambulation, such as being able to shower,
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do laundry, iron, cook breakfast, go grocery shopping, take out the garbage, go to doctor’s

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appointments, attend school sporting events, attend church, perform volunteer work, drive his

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children to school, church, and activities, attend bible study, and serve as an assistant pastor during

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church services. (AR 42, 46, 49, 50-51, 52.) The record also demonstrates that Plaintiff can carry

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out routine ambulatory activities without “an extreme limitation of the ability to walk.” 20 C.F.R.

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Part 404, Subpart P, Appendix 1 § 1.00(B)(2)(b)(2). These activities demonstrate that Plaintiff’s

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impairments do not meet or equal Listing 1.02.

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Based on this analysis, the Court finds that the ALJ did not err in concluding that Plaintiff
does not meet or equal Listing 1.02 because the ALJ considered all of the medical evidence of

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record in assessing Plaintiff’s functional abilities with respect to his injuries, and the medical

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evidence of record failed to support an extreme limitation of Plaintiff’s ability to walk.
CONCLUSION

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Based on the analysis above, the Court hereby DENIES Plaintiff’s Motion for Summary
Judgment and GRANTS Defendant’s Cross-Motion for Summary Judgment.
IT IS SO ORDERED.

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Dated: January 29, 2014
______________________________________
MARIA-ELENA JAMES
United States Magistrate Judge

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