Matthews v. Commissioner Social Security Administration
Filing
23
Opinion and Order: This Court Affirms the ALJ's findings. Ordered by Judge Michael J. McShane. (cp)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
JAMES ROBERT MATTHEWS,
Plaintiff,
v.
Case No. 1:13-CV-01065-MC
OPINION AND ORDER
CAROLYN COLVIN,
ACTINGCOMMISSIONER OF SOCIAL
SECURITY
Defendant.
_____________________________
MCSHANE, Judge:
This action is brought under 42 U.S.C. § 405(g) to obtain judicial review of the final
decision of the Commissioner of Social Security denying plaintiff’s claim for disability insurance
benefits and supplemental security income. This Court affirms the Commissioner’s decision.
1 – OPINION AND ORDER
PROCEDURAL BACKGROUND
On July 19, 2010, plaintiff filed an application for disability insurance benefits and
supplemental security income. The Commissioner initially denied these claims and plaintiff filed
a request for reconsideration. On April 17, 2012, the Administrative Law Judge (ALJ) conducted
a hearing. The ALJ later found the plaintiff not disabled. Plaintiff appeals to this court assigning
error by the ALJ for the following reasons:
1) Whether the ALJ provided sufficient reasons for discounting the opinion of treating
physician Dr. O’Sullivan;
2) Whether the ALJ provided sufficient reasons to discount plaintiff’s subjective
complaints;
3) Whether the ALJ properly determined the plaintiff’s impairments, considered their
limiting effects, and evaluated the medical evidence; and
4) Whether the ALJ’s hypothetical to the Vocational Expert (VE) accurately reflected
the plaintiff’s condition.
STANDARD OF REVIEW
The district court shall affirm the Commissioner’s decision if based upon proper legal
standards and the legal findings are supported by substantial evidence on the record. Batson v.
Comm’r for Soc. Sec. Admin, 359 F.3d 1190, 1193 (9th Cir. 2004). Substantial evidence is more
than a mere scintilla, i.e., a tiny trace or spark of a specified quality or feeling, but less than a
preponderance. Consolidated Edison Co. of New York v. N.L.R.B., 305 U.S. 197, 217 (1938);
Richardson v. Perales, 402 U.S. 389 (1971). Substantial evidence “means such relevant evidence
as a reasonable mind might accept as adequate to support a conclusion.” Richardson, 402 U.S. at
401. The reviewing court shall weigh both evidence that supports and detracts from the
2 – OPINION AND ORDER
Commissioner’s conclusion. Martinez v. Heckler, 807 F.2d 771, 772 (9th Cir. 1989). The
reviewing court shall not simply substitute its judgment for that of the commissioner. Batson,
359 F.3d at 1196. Thus, even if evidence is susceptible to multiple rational interpretations, the
Commissioner’s conclusion must be upheld. Id. at 1193.
DISCUSSION
I.
The ALJ provided sufficient reasons to discount the opinion of Dr. O’Sullivan
The weight accorded to a medical opinion is based upon an interplay of various factors.
20 C.F.R §§ 404.1527 and 416.927. In general, the opinion of a treating physician is entitled to
more weight than an examining physician, and an examining physician is entitled to more weight
than a non-examining physician. Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1995). When one
medical opinion contradicts another medical opinion, “the ALJ is charged with determining
credibility and resolving the conflict.” Benton ex rel. Benton v. Barnhart, 331 F.3d 1030, 1040
(9th Cir. 2003). The ALJ may reject a contradicted treating or examining physician’s opinion
only by providing “specific and legitimate reasons” supported by substantial evidence within the
record. Lester, 81 F.3d at 830. While the opinion of a non-examining physician is not substantial
evidence by itself, it may be when supplemented with more, i.e. independent evidence. Id. at
831; Tonapetyan v. Halter, 242 F.3d 1144, 1149 (9th Cir. 2001). "’The ALJ can meet this burden
by setting out a detailed and thorough summary of the facts and conflicting clinical evidence,
stating his interpretation thereof, and making findings.’" Morgan v. Commissioner of the Soc.
Sec. Assoc., 169 F.3d 595, 600-01 (9th Cir. 1999) (citing Magallanes v. Bowen, 881 F.2d 747,
751 (9th Cir. 1989)).
The ALJ provided three reasons to reject Dr. O’Sullivan’s opinion: 1) Dr. O’ Sullivan’s
ultimate opinion that plaintiff is disabled is one that is reserved for the Commissioner; 2) Dr.
3 – OPINION AND ORDER
O’Sullivan prescribed only conservative treatment; and 3) Dr. O’Sullivan’s opinion is not
supported by the evidence. These reasons often intertwine with each other and the other issues
for review.
a) Dr. O’ Sullivan’s Ultimate Opinion
An opinion that a person is disabled is reserved for the Commissioner. 20 C.F.R §§
404.1527(d)(1) and 416.927(d)(1). When considering such opinions on the ultimate issue of
whether a claimant is disabled, the Ninth Circuit distinguishes between opinions evaluating
“functional exertional capacity” and conclusions regarding whether a claimant can work or is
disabled. See McLeod v. Astrue, 640 F.3d 881, 884-85 (9th Cir. 2011).
A treating physician’s evaluation of a patient’s ability to work may be useful or
suggestive of useful information, but a treating physician ordinarily does not
consult a vocational expert or have the expertise of one. An impairment is a
purely medical condition. A disability is an administrative determination of how
an impairment, in relation to education, age, technological, economic, and social
factors, affects the ability to engage in gainful activity.
Id. at 885.
Some opinions as to a claimant’s capacity to work, however, are properly considered
medical opinions as far as they are not conclusory and are based upon objective medical
evidence. Hill v. Astrue, 698 F.3d 1153, 1160 (9th Cir. 2012). In Dr. O’Sullivan’s first
examination, the doctor stated, “I think because of his pain he is a candidate for social security
disability.” TR 475. In his second examination, a little over a year later, Dr. O’Sullivan stated, “I
do feel with the level of pain, dysfunction and impairment, he is a candidate for SSDI. I cannot
see him returning to gainful employment.” TR 616. In a follow up assessment, Dr. O Sullivan
restated his opinions from the second examination in stronger language. TR 617.
4 – OPINION AND ORDER
The ALJ did not err in rejecting Dr. O’Sullivan’s ultimate opinions regarding plaintiff’s
disability as the opinions are conclusory, make an administrative decision reserved for the
Commissioner, and do not appear to be based upon objective evidence. The statements, while
failing to assert outright that the plaintiff is disabled, indicate strong support for such a
determination. Both statements make a determination requiring interplay of the various factors
that the Commissioner looks towards during administrative hearings. Finally, Dr. O’Sullivan
appeared to base both statements largely upon plaintiff’s subjective claims of pain. As discussed
below, the ALJ concluded plaintiff’s self-reports of pain were not credible.
While the second statement mentions the plaintiff’s dysfunction and impairment, the
statement does not reference any objective evidence apart from the conclusive statement the
impairments make the plaintiff a candidate for SSDI. Such “meager” statements do not often
satisfy courts when making these types of determinations. See Tonapetyan, 242 F.3d at 1149; See
also Meanel v. Apfel, 172 F.3d 1111, 1114 (9th Cir. 1999). Thus, the ALJ was justified in
disregarding Dr. O’Sullivan’s opinion on this matter and using the reasoning behind this
determination as a reason to discredit Dr. O’Sullivan’s medical findings and opinions.
b) Dr. O’ Sullivan’s proscribed treatment
Normally, the type of proscribed treatment goes towards the credibility of the claimant
See e.g. Carmickle v. Comm'r, Soc. Sec. Assoc., 533 F.3d 1155, 1162 (9th Cir. 2008).
Conservative courses of treatments can undermine allegations of pain in circumstances where the
plaintiff lacks good reasons for failing to pursue further forms of treatment. Id. While the ALJ
originally used such argument in the traditional framework (TR 18-19), the claim is equally
applicable in the credibility of a treating physician. Dr. O’Sullivan sought to have plaintiff
5 – OPINION AND ORDER
evaluated by a “pain management specialist.” TR 475. While the claimant requested medication,
there is no indication Dr. O’Sullivan, at first, prescribed such medication. Id. Dr. O’Sullivan
opined that pain management was preferable to surgery. Id. Upon his second time examining the
plaintiff, Dr. O’Sullivan reaffirmed this belief. TR 616. As opposed to options such as surgery,
pain management is a rather conservative treatment. Finally, Dr. O’Sullivan would seem to agree
with this assessment as, during the follow-up, Dr. O’Sullivan noted the “conservative efforts
including injections.” TR 617.
While perhaps the plaintiff had reason to reject further pain injections, Dr. O’Sullivan
surely was aware of those reasons by the second examination. His notes indicate the plaintiff
described worsening pain in the back and shoulder. TR 616. This corresponds with plaintiff’s
testimony that injections made the pain worse in the shoulder and back. TR 39, 49, 51. Dr.
O’Sullivan does not have a duty to force the plaintiff to continue treatment or proscribe treatment
that is more aggressive. However, knowledge of the plaintiff’s reasons for resisting treatment
and the lack of results from conservative treatment reasonably should have informed Dr.
O’Sullivan that other treatment was necessary or should have raised concerns with the credibility
of the plaintiff’s pain. After noting this reasonable inference regarding the knowledge of Dr.
O’Sullivan and the consistent proscriptions of only conservative efforts, it is clear that the lack of
prescribing more aggressive treatment supports the ALJ’s decision to give less weight to Dr.
O’Sullivan’s opinion.
c) Dr. O’ Sullivan’s Evidence Supporting His Opinions
The ALJ specifically noted Dr. O’Sullivan’s opinion held little weight because the
records did not support the opinion. TR 20. The ALJ noted a lack of objective evidence, such as
6 – OPINION AND ORDER
X-rays, imaging studies, laboratory data or other tests, that would support such severe limitations
or indicate a disabling condition. Id. Further, the ALJ noted Dr. O’Sullivan did not explain how
the objective findings that do exist relate to or prove the claims. Id.
In Dr. O’Sullivan’s report from his first examination of plaintiff, he wrote that the
plaintiff’s lower extremities had good range of motion with motor and sensation functions intact
and full range of motion of upper and mid spine. TR 475. The lower spine only demonstrated a
loss of lumbar lordosis, muscle spasm, tenderness and restricted motion. Id. Despite this, Dr.
O’Sullivan opined that plaintiff was a candidate for SSI. Id. Dr. O’Sullivan noted only an MRI
that confirmed minimal scoliosis and degenerative disc disease (DDD) at L4-5 and L5-S1. Id.
The MRI that Dr. O’Sullivan referred to showed mild to moderate DDD causing a mild to
moderate stenosis. TR 505. In the second exam, Dr. O’Sullivan noted diminished motor and
sensation functions in the extremities. TR 616. Further, Dr. O’Sullivan noted new pain in the
plaintiff’s shoulder area and continued pain in the lower back. Apart from the plaintiff’s
statements and basic functionality tests, Dr. O’Sullivan again stated the plaintiff “clearly had
disabling pain” and was a candidate for SSDI. Id. However, no further objective testing was
ordered or viewed. Id. Finally, in the follow-up exam, Dr. O’Sullivan noted only progressive
pain and numbness in the legs with little change in the functional examination findings occurring
in the back. TR 617. Despite this, Dr. O’Sullivan re-affirmed his findings that plaintiff “clearly
was a candidate for social security disability.” Id. Dr. O’Sullivan ordered another MRI for the
lower back and one for the shoulder. Id. However, there is no evidence to suggest Dr. O’Sullivan
ever viewed these at a later point.
The MRI viewed by Dr. O’Sullivan described the condition of the plaintiff’s DDD as
mild to moderate. Mild is defined as “moderate in action or effect; not severe.” Mild, MERRIAM7 – OPINION AND ORDER
WEBSTER, last viewed June 10, 2014, http://www.merriam-webster.com/medical/mild. Moderate
is defined as avoiding extremes of behavior: observing reasonable limits; not severe in effect or
degree.” Moderate, MERRIAM-WEBSTER, last viewed June 10, 2014, http://www.merriamwebster.com/medical/moderate.
In Burch v. Barnhart, the court affirmed an ALJ’s finding that a claimant’s complaints of
severe low back pain were inconsistent with an MRI showing only mild DDD at L5-S1 and a
mild dextroliosis with “no apparent herniation or nerve root impairment.” 400 F.3d 676, 681 (9th
Cir. 2005). The court held that the ALJ could use the medical evidence as a factor in determining
the credibility of a claimant. Id. The court also held that the ALJ could consider lack of treatment
in determining the credibility of a claimant. Id. Thus, because the ALJ provided clear and
convincing reasons to reject the claimant’s testimony, the court upheld this decision of the ALJ.
Here, while the ALJ is applying these factors to the credibility of the treating physician, they are
equally potent. The ALJ had three separate reasons to give little weight to Dr. O’Sullivan’s
opinion. Like in Burch, the ALJ here noted a conservative treatment plan and found the objective
medical evidence did not support Dr. O’Sullivan’s conclusions. These facts are similar to those
in Burch. Both are cases in which an MRI showed little more than mild DDD. Further, Dr.
O’Sullivan proscribed only conservative treatment to deal with what was supposedly severe and
disabling back pain. Finally, Dr. O’Sullivan’s statements were conclusory and not backed with
reasoning pointing to much of anything save the plaintiff’s subjective statements. The ALJ did
not err in concluding that Dr. O’Sullivan’s opinion is entitled to little weight because the
objective medical evidence in the record does not support Dr. O’Sullivan’s opinion.
8 – OPINION AND ORDER
II.
The ALJ provided sufficient reasons to reject the complaints of the Plaintiff
The Cotton test places a burden on the claimant to show: 1) objective medical evidence
of impairment and; 2) that the impairment, or combination of impairments, could reasonably
produce some degree of reported symptoms. Smolen v. Chater, 80 F.3d 1273, 1282 (9th Cir.
1996). Once a claimant meets the Cotton test, and there is not affirmative evidence of
malingering, the ALJ may reject the claimant’s testimony regarding the severity of his symptoms
by identifying specific testimony by the claimant and providing clear and convincing reasons for
finding the testimony not credible. Id. at 1284; Dodrill v. Shalala, 12 F.3d 915, 918 (9th Cir.
1993). In evaluating a claimant’s credibility, the ALJ may use “ordinary techniques of credibility
evaluation.” Molina v. Astrue, 674 F.3d 1104, 1112 (9th Cir. 2012).
The ALJ noted that the plaintiff’s impairments could produce some degree of reported
symptoms. TR 18. However, the ALJ did not find the plaintiff’s reports of pain and limitations
credible to the extent they were inconsistent with the RFC. Id. Specifically, the ALJ noted
plaintiff’s claims of severe levels of pain, that plaintiff could only walk and sit around 10
minutes at a time, and that plaintiff required assistance from a walking stick. TR 19. The ALJ
referenced: 1) the objective medical evidence; 2) the conservative medical treatment plaintiff
received and; 3) plaintiff’s statements regarding work and his walking device. TR 18-19.
First, the ALJ noted that the alleged limitations could not be objectively verified with
“any reasonable degree of certainty.” TR 19. Second, in terms of the medical evidence, the ALJ
stated that, to the extent the limitations are genuine, with such weak medical evidence it is
difficult to attribute the limitations to the plaintiff’s medical impairments. Id. Supporting this
contention, the ALJ pointed to the MRI showing mild/moderate DDD. TR 505. The ALJ pointed
9 – OPINION AND ORDER
to notes during exams showing the plaintiff was ambulating normally and under his own power
as of February 2011. TR 493. The ALJ also pointed to X-ray evidence whose accompanying
treatment notes were consistent with DDD in L4-5 and L5-S1 with only back and bi-lateral pain.
TR 511. Concerning the X-ray, the ALJ specifically noted the absence of nerve root
impingement or radiculopathy. TR 18.
The ALJ also took issue with the type and duration of treatment provided to the plaintiff.
TR 18. In fact, the ALJ noted that since the on set date, little treatment had occurred, the plaintiff
did not go seek treatment regularly, and that the treating doctors routinely described the
treatment as conservative. Id. In fact, the ALJ noted that the plaintiff, when he did seek
treatment, did not follow other proscribed forms of treatment, for example, seeing a pain
management specialist. TR 19. Finally, the ALJ took issue with conflicting statements regarding
the plaintiff’s termination of employment, creation and use of his walking stick and reports
regarding his bathing. Id. Thus, because the ALJ extensively noted objective medical evidence,
inconsistent statements by the plaintiff and the lack of treatment one would expect for treating
such severe impairments, the ALJ produced clear and convincing reasons to reject the claimant’s
subjective testimony.
III.
The ALJ properly determined the plaintiff’s impairments, considered their limiting
effects, and evaluated the medical evidence
Plaintiff argues that the ALJ did not consider whether his obesity and other impairments,
when in combination with each other, were severe enough to be equivalent to a listing and that
the ALJ did not consider these impairments correctly throughout the process. When making a
determination of disability, the ALJ is required to develop the record and interpret the medical
evidence. Howard ex rel. Wolff v. Barnhart, 341 F.3d 1006, 1012 (9th Cir. 2003). This does not
10 – OPINION AND ORDER
require that the ALJ discuss every piece of evidence. Id. (quoting Black v. Apfel, 143 F.3d 383,
386 (8th Cir. 1998)). While the ALJ does have a duty to adequately explain his finding at step
three, see Marcia v. Sullivan, 900 F.2d 172, 176 (9th Cir. 1990), ALJs are presumed to know and
apply the law in their decisions and there is not a magical incantation that is required for
findings. See Lockwood v. Comm'r Soc. Sec. Assoc., 616 F.3d 1068, 1072 note. 3 (9th Cir. 2010);
See Magallanes v. Bowen, 881 F.2d 747, 755 (9th Cir. 1989).Obesity, like other impairments, is
severe when it alone, or in combination with other impairments, significantly limits an
individual’s ability to do basic work activities. SSR 02-01p. An ALJ will not make assumptions
about obesity’s affect on the claimant, but instead must determine this based upon each
individual’s record. Burch, 400 F.3d 676, 682 (9th Cir. 2005).
In evaluating the severity of the plaintiff’s obesity, the ALJ noted the relevant law and,
based upon the plaintiff’s reported weight and height at the time of hearing, noted plaintiff’s
BMI. TR 16. Though conclusory, the ALJ stated that he applied the law to the evidence within
the record. Id. The record as to this issue is almost non-existent as those treating the plaintiff
noted his obesity only in passing and within only a few treatment notes. TR 453, 456, 462.
Further, the ALJ was aware of plaintiff’s work history, plaintiff’s obesity while working, and the
strenuous work involved prior to the back injury. See TR 35, 52. From the limited pieces of
record, review of medical opinions (later within his opinion) that incorporated such knowledge,
and knowledge of the plaintiff’s own history, the ALJ’s determination, while somewhat
conclusory, was adequate regarding his finding that plaintiff’s obesity was not severe.
The ALJ also provided an adequate finding regarding equivalency of the plaintiff’s
impairments, or combination thereof, to those from the listing. In his finding, the ALJ noted the
various listings he considered and explained why he did not find the plaintiff’s impairments an
11 – OPINION AND ORDER
equivalent. TR 16. The ALJ specifically noted that his severe impairment of the shoulder and
knee together did not equal the impairment under the listing for degenerative joint disease. Id.
Thus, since the ALJ is presumed to know and apply the law and the ALJ showed that he
considered at least one combination of impairments, the ALJ adequately explained his findings.
IV.
The ALJ’s hypothetical to the VE accurately reflected the plaintiff’s condition
An ALJ may limit his hypothetical to the limitations he finds credible and substantially
supported within the record. See Bayliss v. Barnhart, 427 F.3d 1211, 1218 (9th Cir. 2005)
(upholding a ALJ’s hypothetical as proper that contained only limitations he found credible and
substantially supported in the record). Further, an ALJ is not bound to accept as true the
limitations posed by counsel when examining the VE. Magallanes v. Bowen, 881 F.2d 747, 756
(9th Cir. 1989). In Magallanes, the VE testified as to what jobs the claimant could do with
limitations as poised by the ALJ. Id. However, the claimant’s attorney then poised other
restrictions that the plaintiff could not stand or sit more than one half hour at a time and elicited
testimony from the VE regarding these limitations. Id. The VE testified that the claimant, under
these restrictions could not work any job. Id. Despite this, because the ALJ was free to disregard
the attorney’s hypothetical limitations so long as the record substantially supported the ALJ’s
hypothetical, the court upheld the ALJ’s reliance on the VE’s testimony. Id. at 757.
Here, the ALJ hypothetical contained the plaintiff’s age, education and work history
along with limitations later adopted by the ALJ in the RFC. TR 53. The plaintiff’s attorney
provided his own assessment of the plaintiff in his hypothetical, which was similar to the one in
Magallanes. TR 54. As discussed above, the ALJ did not find the limitations as described by the
plaintiff’s attorney credible because they derived from Dr. O’Sullivan’s opinions, which the ALJ
12 – OPINION AND ORDER
accorded little weight to, and plaintiff’s subjective claims, which the ALJ found unreliable.
Instead, the ALJ adopted an RFC based upon medical opinions of the DDS physicians and other
items such as MRIs and X-rays from the record. See TR 16, 53. Because substantial evidence in
the record supports the ALJ’s limitations, the hypothetical provided to the VE was free of error.
CONCLUSION
For the reasons above, this Court affirms the ALJ’s findings.
IT IS SO ORDERED.
DATED this _30_ day of June, 2014.
s/ Michael J. McShane ______
Michael McShane
United States District Judge
13 – OPINION AND ORDER
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