Correa v. Commissioner Social Security Administration
Filing
18
OPINION AND ORDER. Signed on 09/01/2015 by Judge Malcolm F. Marsh. (pvh)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
Case No. 1:14-cv-01436-MA
HENRY CORREA,
Plaintiff,
v.
COMMISSIONER SOCIAL SECURITY
ADMINISTRATION,
Defendant.
JOHN E. HAAPALA, Jr.
401 E. 10th Avenue, Suite 240
Eugene, OR 97401
Attorney for Plaintiff
JANICE E. HEBERT
Assistant United States Attorney
District of Oregon
1000 S.W. Third Ave., Suite 600
Portland, OR 97204-2902
FRANCO L. BECIA
Assistant Regional Counsel
Social Security Administration
701 Fifth Ave., Suite 2900 M/S 900
Seattle, WA 98104-7075
Attorneys for Defendant
1 - OPINION AND ORDER
OPINION AND ORDER
MARSH, Judge
Plaintiff Henry Correa seeks
decision
of
the
Commissioner
of
judicial review of the final
Social
Security
denying
his
application for disability insurance benefits (DIB) under Title II
of the Social Security Act, 42 U.S.C.
§§
401-403, and application
for Supplemental Security Income (SSI) disability benefits under
Title XVI of the Social Security Act,
42 U.S. C.
This Court has jurisdiction pursuant to 42 U.S.C.
1383(c) (3).
For
the
reasons
that
follow,
1381-1383£.
§§
405(g)
§§
I
affirm
and
the
Commissioner's decision.
PROCEDURAL AND FACTUAL BACKGROUND
Plaintiff protectively filed an application for DIB on April
8, 2011, and protectively filed an application for SSI on April 30,
2011, alleging disability beginning October 31, 2009, due to high
blood pressure, back pain, and poor blood circulation.
Plaintiff's
claims were denied initially and upon reconsideration.
Plaintiff
filed a request for a hearing before an administrative law judge
(ALJ).
An ALJ held a video hearing on November 20, 2012, at which
plaintiff appeared with her attorney and testified.
expert,
Steven
testified.
decision.
R.
Cardinal,
On February 6,
also
2013,
The Appeals Council
appeared at
the
A voca.tional
hearing
and
the ALJ issued an unfavorable
denied plaintiff's
request
for
review, and therefore, the ALJ's decision became the final decision
of the Commissioner for purposes of review.
2 - OPINION AND ORDER
Plaintiff was born on July 20, 1960 and was 49 years old on
the alleged onset of disability date.
school,
Plaintiff completed high
and has past relevant work as a gas station attendant,
construction maintenance worker, irrigator, ranch hand, and paving
worker.
THE ALJ'S DISABILITY ANALYSIS
The
Commissioner
has
established
a
five-step
sequential
process for determining whether a person is disabled.
Yuckert, 482 U.S. 137, 140 (1987); 20 C.F.R.
Each step is potentially dispositi ve.
burden of proof at
§§
Bowen v.
404.1520; 416.920.
The claimant bears
steps one through four.
the
See Valentine
v.
Commissioner Soc. Sec. Admin., 574 F.3d 685, 689 (9th Cir. 2009);
Tackett v. Apfel,
180 F.3d 1094, 1098
five,
shifts
the
burden
to
the
(9th Cir. 1999).
Commissioner to
At step
show that
the
claimant can do other work which exists in the national economy.
Hill v. Astrue, 698 F.3d 1153, 1161 (9th Cir. 2012).
The
ALJ
concluded
that
plaintiff
met
the
insured
status
requirements of the Social Security Act through December 31, 2014.
A claimant seeking
DIB benefits under Title
II must establish
disability on or prior to the last date insured.
42
u.s.c.
§
416(I) (3); Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005).
At step one, the ALJ found that plaintiff has not engaged in
substantial gainful activity since his alleged onset of disability.
At step two, the ALJ found that plaintiff had the following severe
3 - OPINION AND ORDER
impairments:
status post caged fusion L5-Sl; lumbar degenerative
joint disease with facet arthrosis L4-5 and L5-Sl without neural
impingement;
bulging
disc
Ll-2
without
neural
impingement;
hypertension; and bradycardia with associated fatigue.
At step
three, the ALJ found that plaintiff's impairments, or combination
of
impairments,
did
not
meet
or
medically
equal
a
listed
impairment.
The ALJ assessed plaintiff with a residual functional capacity
(RFC) to perform light work, however, plaintiff can lift and carry
20 pounds occasionally and 10 pounds frequently; he can sit, stand,
and walk six hours in each in an eight-hour day, with the option to
sit or stand at will while performing essential functions; he can
never climb ladders, ropes or scaffolds due to dizziness; he can
occasionally climb ramps
or
stairs,
crouch,
stoop,
kneel,
and
crawl; he can frequently balance; due to narcotic medication use
and alieged dizziness from hypertension, he is to have no exposure
to hazards such as unprotected heights or large moving machinery
and
he
is
limited
to
understanding
and
carrying
out
simple
instructions.
At
step
four,
the ALJ found
perform any past relevant work.
considering
plaintiff's
age,
that
plaintiff
is
unable
to
At step five, the ALJ found that
education,
work
experience,
and
residual functional capacity, jobs exist in significant numbers in
the
national
economy
4 - OPINION AND ORDER
that
plaintiff
can
perform,
such
as
assembler, order filler, and electronics worker.
Accordingly, the
ALJ concluded that plaintiff has not been under a disability under
the Social Security Act from October 31, 2009 through the date of
the decision.
ISSUES ON REVIEW
On appeal to this court,
errors
were
testimony;
committed:
( 2)
(1)
plaintiff contends the following
the
ALJ
improperly
evaluated
his
the ALJ improperly evaluated the opinion of his
treating physician Richard P.
Musselman,
D.O.;
and
(3)
the ALJ
erred at step five.
STANDARD OF REVIEW
The district court must affirm the Commissioner's decision if
the Commissioner applied proper legal standards and the findings
are supported by substantial evidence in the record.
405(g);
Berry v.
Astrue,
622
F.3d 1228,
1231
42 U.S.C.
(9th Cir.
§
2010).
"Substantial evidence is more than a mere scintilla but less than
a preponderance; it is such relevant evidence as a reasonable mind
might accept as adequate to support a conclusion."
Hill, 698 F.3d
at 1159 (internal quotations omitted); Valentine, 574 F.3d at 690.
The court must weigh all the evidence,
whether it supports or
detracts from the Commissioner's decision.
807 F. 2d 771,
772
(9th Cir.
1986).
Martinez v. Heckler,
The Commissioner's decision
must be upheld, even if the evidence is susceptible to more than
one rational interpretation.
5 - OPINION AND ORDER
Batson v.
Commissioner Soc.
Sec.
Admin.,
359
F. 3d 1190,
1193
(9th Cir.
2004).
If the evidence
supports the Commissioner's conclusion, the Commissioner must be
affirmed; "the court may not substitute its judgment for that of
the Commissioner.n
Edlund v. Massanari,
253 F.3d 1152, 1156 (9th
Cir. 2001).
I.
Plaintiff's Credibility
A.
Standards
To
determine
whether
a
claimant's
testimony
regarding
subjective pain or symptoms is credible, an ALJ must perform two
stages of analysis.
stage
is
a
threshold
20 C.F.R.
test
§§
404.1529,
in which
the
416.929.
claimant
The first
must
produce
objective medical evidence of an underlying impairment that could
reasonably be expected to produce the symptoms alleged.
Molina v.
Astrue, 674 F.3d 1104, 1112 (9th Cir. 2012); Tommasetti v. Astrue,
533 F.3d 1035, 1039 (9th Cir. 2008).
At the second stage of the
credibility analysis, absent affirmative evidence of malingering,
the ALJ must provide clear and convincing reasons for discrediting
the claimant's testimony regarding the severity of the symptoms.
Carmickle v.
Commissioner Soc.
Sec.
Admin.,
533 F.3d 1155,
1166
(9th Cir. 2008); Lingenfelter v. Astrue, 504 F.3d 1028, 1036 (9th
Cir. 2007).
The ALJ must make findings that are sufficiently specific to
permit
the
reviewing
court
to
conclude
that
arbitrarily discredit the claimant's testimony.
6 - OPINION AND ORDER
the
ALJ
did
not
Ghanim v. Colvin,
763 F.3d 1154, 1163 (9th Cir. 2014); Tommasetti, 533 F.3d at 1039.
Factors
the
ALJ
determinations
claimant's
may
consider
include
the
when
making
objective
treatment history,
the
such
medical
credibility
evidence,
the
claimant's daily activities,
inconsistencies in testimony, effectiveness or adverse side effects
of any pain medication, and relevant character evidence.
Ghanim,
763 F.3d at 1163; Tommasetti, 533 F.3d at 1039.
At the hearing, plaintiff testified that he completed twelfth
grade and last worked in October 2009 for a paving company fixing
tires and was laid off because the job was seasonal.
Plaintiff
testified that he worked for the paving company for five or six
months,
and at the
difficulty.
he
tried to
time
he was
laid off,
he was experiencing
Plaintiff further testified that in December of 2009,
cut
down a
Christmas
tree
for
a
friend,
but
had
difficulty working the handsaw and experienced fatigue, back pain,
and blurred vision.
Tr. 65.
Plaintiff testified that he takes medication for his back
pain,
high blood pressure,
and migraine headaches,
that
he
no
longer has any side effects from the medications, and that they are
helpful.
Plaintiff testified that he has migraines approximately
three times a week.
Plaintiff stated that he can sit for 10 to 15 minutes before
needing to get up because of tension in his back.
estimated he can lift 20 pounds,
7 - OPINION AND ORDER
Plaintiff
can stand for 10 to 15 minutes
before needing sit down, and can walk for 15 to 20 minutes before
needing to rest.
Plaintiff estimated that he lies down for 15
minutes approximately five or six times per day.
Plaintiff stated
that his wife helps him with his shoes, and that he cannot carry
groceries.
Plaintiff testified that when he was drinking, he consumed a
12 pack of beer on the weekend,
but that he no longer drinks.
Plaintiff stated that the tingling in his feet has improved since
Plaintiff stated that he only drives for
he stopped drinking.
emergencies, such as when scheduling difficulties require him to
take his wife to work.
Tr.
58.
Plaintiff testified that on an
average day, his pain is a six or seven on a 10-point scale, and
that after he takes
Percodan,
his pain is reduced to a two or
three.
Plaintiff testified that he went to the emergency room on New
Year's Eve in 2011 because his blood pressure was out of control
and plaintiff believes he
suffered a
although one was not diagnosed.
Tr. 62.
heart attack that night,
Plaintiff also testified
that a physician in Redding advised him he would need a pacemaker.
Tr. 63.
Plaintiff stated that he continues to experience tingling
in his knees, and that he believes the tingling is caused by his
back.
Tr. 64.
In a May 17, 2011 Exertion Questionnaire, plaintiff indicated
that
he is
in constant pain that prevents him from doing any
8 - OPINION AND ORDER
Plaintiff reported that he cannot climb stairs, lift,
activity.
carry, grocery shop, clean the house, or drive a car.
Tr. 223-24.
Plaintiff reported that he sleeps for only 45 minutes at a time due
to pain,
that he uses a brace,
dressed and put on his shoes.
and that his wife helps him get
Tr. 225.
In the decision, the ALJ concluded that plaintiff's testimony
concerning the intensity, persistence and limiting effects of his
limitations
reasons,
is
when
not entirely credible.
taken
together,
The ALJ cited numerous
constitute
clear
and
convincing
reasons to reject plaintiff's testimony.
First, the ALJ identified several inconsistent statements.
ALJ may consider
inconsistencies
in a
claimant's
An
testimony or
between the testimony and a claimant's activities when assessing
credibility.
Molina, 674 F.3d at 1112.
And, an ALJ may discredit
a claimant's testimony when a claimant reports participating in
everyday activities which are transferrable to a work setting.
The ALJ discussed that at the hearing,
that
he
last
worked
in
October
2009.
Id.
plaintiff testified
The
ALJ
also
noted
plaintiff's testimony that he wanted to continue working despite
being laid off, and plaintiff's explanation that he could no longer
work because of fatigue and pain that he experienced when cutting
down a Christmas tree for a friend in 2009.
Tr. 29, 65.
The ALJ
found these statements inconsistent with plaintiff's January 2011
report
to
Edward
P.
9 - OPINION AND ORDER
Richert,
M. D.,
plaintiff's
then
treating
physician, in which plaintiff described that working manual labor
in the Auction Yard in December 2010 had "stirred up" his back pain
and that he had become sweaty and short of breath when cutting down
Tr.
a Christmas tree the previous month.
29, 289.
Dr. Richert
observed that it had been three and a half years since he had seen
plaintiff,
despite
pressure re-check.
advising
Tr.
289.
plaintiff
to
return
for
a
blood
Thus, as the ALJ correctly noted,
plaintiff's testimony that he stopped working in October 2009 was
inconsistent with his report to Dr. Richert that he worked in the
auction yard in December 2010, over a year after his alleged onset
of
disability
date.
The
ALJ's
findings
are
supported
by
substantial evidence, and the ALJ reasonably discounted plaintiff's
testimony on this basis.
The ALJ also noted that at the hearing and in a May 2011
Exertion
Questionnaire,
plaintiff
indicated
that
he
no
longer
performs any household chores and needs assistance from his wife to
get dressed and put on his shoes.
Tr. 29-30, 54-56, 223-25.
The
ALJ found these statements contradicted by his April 17,
2011
report
to
Shahid
Ali,
M.D.,
that
he
is
capable
of
cooking,
cleaning, vacuuming, and doing the dishes, and his February 2012
report to Dr. Musselman that he is independent with grooming, selfcare,
cooking, shopping, housework, driving, and using the stairs.
Tr. 257, 384.
Similarly, the ALJ found plaintiff's assertion that
he needs assistance putting on his shoes contradicted by Dr. Ali's
10 - OPINION AND ORDER
observations that plaintiff was able to walk without assistance,
sit comfortably, and take his shoes off and put them on "without
difficulty."
Tr. 258.
The ALJ's findings are wholly supported by
substantial evidence.
Having carefully reviewed the record,
the ALJ appropriately
discounted plaintiff's inconsistent statements about his ability to
work, perform household chores, and his ability put on his shoes as
they undermine his allegation of total disability.
Turner v.
Commissioner of Soc.
Sec.
Admin.,
Id. at 1112-13;
613 F. 3d 1217,
1225
(9th Cir. 2010). Thus, I conclude that the numerous inconsistencies
identified by the ALJ provide a clear and convincing reason for
discounting plaintiff's credibility.
Second, the ALJ discounted plaintiff's subjective complaints
because they are inconsistent with the objective medical evidence.
A lack of objective medical record support is an appropriate basis
for rejecting a claimant's testimony.
661, 671 (9th Cir. 2012).
Chaudhry v. Astrue, 688 F.3d
As the ALJ correctly indicated, there is
a lengthy absence of treatment between plaintiff's alleged onset of
disability in 2009 and treatment records in January 2011.
Based on
this gap, the ALJ reasonably inferred that plaintiff's impairments
were
not
as
disabling
as
alleged,
plaintiff's credibility on this basis.
and
permissibly
discounted
See Id. at 670-71 (ALJ may
properly rely upon a claimant's failure to seek or follow treatment
when making an adverse credibility determination); Tommasetti, 533
11 - OPINION AND ORDER
F.3d at 1039 (ALJ may rely on unexplained or inadequately explained
failure to seek treatment to discredit claimant).
Also, the ALJ noted that plaintiff's medical records regarding
his blurry vision, dizziness, fatigue, and shortness of breath were
generally
treatment
from
shortness
of
The
limited.
Dr.
ALJ
Richert
breath
in
discussed
for
that
plaintiff
blurry
2011.
January
vision,
Dr.
sought
dizziness
Richert
and
diagnosed
hypertension and started plaintiff on blood pressure medication.
Tr. 289.
As the ALJ indicated, plaintiff reported some shortness
of breath and dizziness a week later, but those symptoms resolved
by January 31, 2011.
indicate
that
Dr. Richert's treatment notes
Tr. 290-92.
plaintiff
complained
of
occasional
fatigue
in
February 2011 and a stress test was recommended to assess potential
heart disease issues.
the
As the ALJ correctly indicated,
Tr. 294.
cardiac workup showed a
mild valve
otherwise objectively negative.
regurgitation,
but was
Tr. 27, 295.
As the ALJ discussed, plaintiff was diagnosed with bradycardia
(low heart rate) with associated fatigue in August 2011 by Mohammed
Khan, M.D., who noted that if plaintiff's symptoms worsened, he may
require a pacemaker in the future.
that
plaintiff's
Cardiolite
Tr. 29, 272.
stress
echocardiogram results were normal.
test
Dr. Khan reported
was
negative
Tr. 273, 328, 330.
and
Thus, as
the ALJ reasonably inferred, the objective medical record does not
12 - OPINION AND ORDER
support
plaintiff's
allegations
shortness of breath.
Additionally,
of
severe
fatigue,
angina,
or
Tr. 27, 273, 295, 302, 332.
the
ALJ
noted
that
the
objective
medical
evidence was inconsistent with plaintiff's allegations of disabling
back
pain
radiating
into
his
lower
extremities.
As
the
ALJ
correctly indicated, on July 7, 2011, plaintiff established care
with Dr. Musselman's clinic, meeting with Viginia Hassler, FNP.
Ms. Hassler's notes indicate that plaintiff complained of low back
pain radiating bilaterally down his legs, and that plaintiff had
positive
straight
leg
raises,
with
diminished
reflexes.
Ms.
Hassler observed that plaintiff was so uncomfortable, he could not
sit still on the examination table, shifting his weight from side
to side.
Tr. 319.
In a follow-up visit with Dr. Musselman on July
21, 2011, plaintiff was advised to stop drinking, and Dr. Musselman
found plaintiff's heel-to-toe walk normal, with a normal gait.
315.
Dr.
plaintiff's
Musselman
ordered nerve
complaints
correctly indicated,
of
conduction
bilateral
tests
neuropathy.
to
As
Tr.
assess
the
ALJ
there was no evidence of radiculopathy or
peripheral neuropathy.
Tr. 27, 315, 333.
The ALJ also noted that
Dr. Ali noted positive straight leg testing with spasms, but did
not
assess
any
functional
limitations
on
standing,
walking,
sitting, and cited a heavy range of work for lifting and carrying.
Tr.
30,
257-60.
These
13 - OPINION AND ORDER
findings
are
supported by
substantial
evidence,
and
the
ALJ
reasonably
discounted
the
severity
of
plaintiffs subjective complaints.
Additionally, the ALJ found plaintiff's allegations of "heart
problems" inconsistent with the objective medical record.
sure,
at the hearing,
To be
plaintiff insisted he experienced a heart
attack on December 31,
2011.
Tr.
56.
As noted above,
the ALJ
thoroughly discussed the negative cardiac testing performed in
March 2011 and August 2011,
and correctly stated the record was
silent with respect to a cardiac condition occurring on New Year's
Eve.
Tr. 60-62.
Based on the absence of objective evidence, the
ALJ legitimately discounted plaintiff's credibility on this basis.
As
plaintiff
plaintiff's
credibility
screening test.
plaintiff,
highlights,
based
the
on
ALJ
a
erred
2010
The drug screening test
in
discounting
pre-employment
does
not
drug
pertain to
yet was erroneously included in plaintiff's medical
records before the ALJ. 1
Additionally, the ALJ found plaintiff's
allegations of disabling back pain since 2009 inconsistent with a
July 2011 report to Dr.
Richert in which plaintiff stated that
ibuprofen in the morning and hydrocodone in the evening "allows him
to be active working during the day."
Tr. 285.
In this regard,
the ALJ incorrectly attributed plaintiff's report to Dr. Richert as
occurring
in
July
2011.
1
A review
of
the
record
shows
The erroneous record has since been removed from the
transcript. Tr. 251.
14 - OPINION AND ORDER
that
plaintiff made this report to Dr. Richert on April 26, 2007.
285.
Tr.
Thus, this particular finding is not supported by substantial
evidence,
and
the
ALJ
erred
in
relying
on
this
statement
to
discount plaintiff's credibility.
These errors, however, do not detract from the ALJ's citation
to the numerous other inconsistencies in plaintiff's testimony, the
unexplained absence of treatment, and a lack of objective support
in the overall medical record, findings that are wholly supported
by substantial evidence.
See Carmickle,
533 F.3d at 1163 (ALJ's
error does not negate the validity of the ALJ's adverse credibility
determination) .
I
conclude that when the remaining reasons are
taken together, they readily provide clear and convincing reasons
to
discredit
plaintiff,
Therefore,
any
errors
in
the
ALJ' s
credibility determination are harmless.
II.
Medical Evidence
A.
Standards
In general, the opinion of a treating physician is given more
weight than the opinion of an examining physician, and the opinion
of an examining physician is afforded more weight than the opinion
of a nonexamining physician.
Ghanim, 763 F.3d at 1160; Garrison v.
Colvin, 759 F.3d 995, 1012 (9th Cir. 2014); Orn v. Astrue, 495 F.3d
625,
632
(9th Cir.
2007).
"If a treating physician's opinion is
well-supported by medically acceptable
diagnostic
techniques
15 - OPINION AND ORDER
and
is
not
clinical
inconsistent
and
with
laboratory
the
other
substantial
evidence
in
controlling weight."
[the]
case
record,
Orn, 4 95 F. 3d at 631
omitted) (alterations in original);
[it will
be
given]
(internal quotations
20 C. F. R.
416. 927 (c).
§
To
reject the uncontradicted opinion of a treating physician, the ALJ
must provide "clear and convincing reasons that are supported by
substantial evidence." Bayliss v.
Barnhart,
427 F.3d 1211,
1216
(9th Cir. 2005).
If the treating physician's opinion is contradicted, the ALJ
must consider how much weight it is entitled to considering the
factors in 20 C.F.R. § 416.927(c) (2-6).
The factors include the
length of the treatment relationship, the frequency of examination,
the nature and supportability of the opinion, and its consistency
with
other
evidence
416.927(d) (2-6);
the
Ghanim,
examining doctor' s
opinion,
in
record
763
opinion is
F.3d
as
at
a
whole.
1161.
If
20
a
C.F.R.
treating
§
or
contradicted by another doctor's
it may be rejected by specific and legitimate reasons.
Taylor v. Commissioner Soc. Sec. Admin., 659 F.3d 1228, 1232 (9th
Cir, 2011).
physician,
brief,
However, "[t]he ALJ need not accept the opinion of any
including
conclusory,
findings."
B.
a
treating physician,
and
inadequately
if
that
supported
opinion
by
is
clinical
Thomas v. Barnhart, 278 F. 3d 94 7, 957 (9th Cir. 2002) .
Analysis - Dr. Musselman
Dr. Musselman treated plaintiff from July 2011 through October
2012.
On October 15, 2011, Dr. Musselman authored a medical source
16 - OPINION AND ORDER
statement in which he described that plaintiff has an antalgic
gait,
dizziness
bradycardia,
and
fatigue
due
to
high
blood
pressure
and
and that plaintiff can sit for zero to two hours a
day, stand or walk for two hours a day, and must alternate between
sitting and standing every 60 minutes.
Tr.
356.
Dr. Musselman
assessed that plaintiff can frequently lift and carry less than 10
pounds,
occasionally lift and carry 20 pounds,
perform
pushing/pulling
extremities.
Tr. 356.
activities
with
his
and occasionally
upper
and
lower
Dr. Musselman provided that plaintiff can
never climb ramps, scaffolds, ladders, or ropes, and is limited to
occasional reaching in all directions.
Dr. Musselman
Tr 356-57.
also opined that plaintiff requires unscheduled breaks,
walking
breaks and reclining breaks for one to two hours each day.
Tr.
357.
On October 25, 2012, Dr. Musselman authored a letter in which
he
indicated
cephalgia
and
plaintiff's
pressure
that
plaintiff
osteoarthritis,
"general
rises
suffers
anxiety
and he's
from
labile
disorder
in pain."
significant
migraine
hypertension,
and
is
when
his
Continuing,
Dr.
Tr.
quite
392.
high
that
Musselman provided that he has prescribed opioids for plaintiff's
pain,
and that he has "quasi control" of plaintiff's migraines.
Tr. 392.
Dr. Musselman opined that plaintiff is not employable and
described the
stand,
walk,
following
or sit for
17 - OPINION AND ORDER
functional
limitations:
zero to two hours a day,
plaintiff can
cannot climb
stairs, ladders, or scaffolds, his attention span is "quite short
and his memory is limited."
Tr. 392.
Dr. Musselman' s opinion was contradicted by treating physician
Dr. Richert, examining physician Dr. Ali, and agency non-examining
physicians A. Pan, M.D., and S. Clancey, M.D. Tr. 82, 104, 257-60,
304.
Therefore,
the ALJ needed only to provide
specific and
legitimate reasons backed by substantial evidence, for discounting
I conclude the ALJ's decision readily
Dr. Musselman's opinion.
meets this standard.
The ALJ discounted Dr. Musselman's opinion that plaintiff is
unable to perform full-time sedentary work for two reasons:
(1) it
is inconsistent with Dr. Musselman's own treatment notes; and (2)
it is inconsistent with objective medical findings and imaging.
the ALJ correctly detailed,
Dr.
Musselman' s
2011
As
opinion that
plaintiff walks with an antalgic gait is contradicted by his own
treatment
notes.
The
ALJ' s
finding
substantial evidence in the record.
2011,
Dr.
Musselman
observed
normal
is
wholly
supported
by
To be sure, the on July 21,
heel-toe
walking
and
"no
antalgic gait" and on July 27, 2012, again observed "[t)he gait is
normal."
Tr. 315, 395.
Additionally, the ALJ found Dr. Musselman's 2012 opinion that
plaintiff has limitations due to anxiety and memory issues are
completely unsupported by Dr. Musselman's treatment notes.
ALJ correctly highlighted,
18 - OPINION AND ORDER
Dr.
Musselman's treatment
As the
notes are
silent
with
regard
to
any
mental
health
issues.
I
reject
plaintiff's contention that Dr. Musselman diagnosed plaintiff with
See Plaintiff's Opening Brief (#13), p. 8-9.
an anxiety disorder.
As plaintiff indicates,
in a one-time visit with FNP Hassler on
July 7, 2011, the nurse described plaintiff's mood as anxious.
318-19.
Tr.
However, at no point do Dr. Musselman's treatment notes
reflect a diagnosis of an anxiety disorder.
no
indicated,
treatment
records
indicate
As the ALJ correctly
an
anxiety
disorder
diagnosis and Dr. Musselman's treatment notes undercut plaintiff's
current assertion.
27,
2012
Tr. 31.
treatment
appropriate"
On the contrary, Dr. Musselman's July
note
shows
and an August
27,
plaintiff's
2012,
treatment
"mood/affect
note
indicates
plaintiff was "negative for anxiety, depression and sadness."
394
(emphasis added),
Tr.
395.
Additionally,
is
Tr.
at the hearing,
plaintiff's attorney affirmatively indicated that plaintiff was not
alleging disability based on any psychological impairment.
Furthermore,
at Step Two,
Tr. 45.
the ALJ found any alleged impairment
based on plaintiff's alleged anxiety or depression non-medically
determinable - a finding unchallenged by plaintiff.
In short, the ALJ's finding that Dr. Musselman's opinions are
uncut
by his
evidence
own treatment
in the
record,
Musselman's opinions.
19 - OPINION AND ORDER
notes
is
supported by
substantial
and the ALJ reasonably discounted Dr.
I conclude that on the record before me,
this reason alone amounts to a specific and legitimate basis for
Thomas, 278 F.3d at 957.
discounting Dr. Musselman's opinions.
The
ALJ' s
second
reason
for
discounting
Dr.
Musselman' s
opinion also is supported by substantial evidence in the record.
As
the ALJ noted,
objective
examination
findings,
testing
and
imaging are inconsistent with the severity of limitations opined by
Dr. Musselman.
As the ALJ detailed, Dr. Musselman's October 2011
opinion that plaintiff is limited to occasional pushing, pulling,
and reaching is unsupported.
treatment
notes
demonstrate
On the contrary,
that
in
Dr.
July· 2012,
Musselman' s
plaintiff
has
"grossly normal tone and muscle strength" and "full range of motion
of all major muscle groups and joints."
2011,
plaintiff's musculoskeletal
spine with "para vertebral
August
2012,
Dr.
Tr. 392.
exam shows
tenderness."
Musselman's
Tr.
flattening
396.
musculoskeletal
plaintiff is negative for arthalgias and myalgias.
the
ALJ
reasonably
concluded
that
Dr.
On August 18,
lumbar
However,
in
examination
of
Tr. 394.
Musselman's
Thus,
push/pull
limitation was unsupported by objective examination findings and
treatment notes.
Contrary to plaintiff's assertions, Dr. Musselman' s opinion is
not consistent with the overall diagnostic record.
And, as the ALJ
discussed, plaintiff's imaging and objective testing in the record
as
a
whole
is
inconsistent
described by Dr. Musselman.
20 - OPINION AND ORDER
with
the
Tr. 27, 31.
severity
of
limitations
Imaging of plaintiff's
back has shown mild arthrosis without impingement, nerve conduction
tests have been normal, and cardiac stress testing was negative.
Tr. 280, 295, 330, 334.
As discussed in detail above, given the
lack objective findings and imaging supporting the severity Dr.
Musselman's
restrictions,
the
ALJ
reasonably
discounted
his
opinions on the basis of these significant discrepancies.
I disagree with plaintiff's argument that the ALJ discounted
Dr. Musselman's opinion based on a lack of contact with plaintiff.
Although the ALJ did state that Dr. Musselman's year and half long
treatment of plaintiff was "without regular contact," the ALJ also
indicated that the "most significant issue [s]" with Dr. Musselman' s
opinions were the "lack of objective findings per his own treatment
notes on examinations and imaging."
Tr. 31.
The ALJ then detailed
the numerous, significant inconsistencies between Dr. Musselman's
own examination treatment notes and his opinions, and the lack of
objective
findings
endorsed.
Even assuming arguendo that the ALJ erroneously erred in
relying
on a
Musselman's
to
lack of
opinion,
support
contact
the
inconsistencies between Dr.
the
as
error
severity of restrictions
a
basis
would
for
be
discounting
harmless.
he
Dr.
The
Musselman's treatment notes and his
opinions alone are a specific and legitimate reason on the record
before
me
to
justify
2
giving
those
opinions
less
weight. 2
In the decision, the ALJ erroneously attributed a May 20,
2011 opinion to Dr. Musselman, when it actually was authored Dr.
Richert.
Tr. 30. The ALJ gave the May 2011 opinion little
21 - OPINION AND ORDER
Therefore,
reasons
I
conclude the ALJ provided specific and legitimate
for
discounting
substantial
evidence
Dr.
Musselman's
in the
record as
opinions,
a
whole,
backed
by
and the ALJ' s
evaluation of the medical evidence will not be disturbed.
III. Step Five
An
ALJ' s
supported
by
RFC
need
substantial
the
only
incorporate
evidence
restrictions
in
credible
the
record
identified
in
limitations
and
the
must
be
consistent
with
medical
testimony.
Stubbs-Danielson v. Astrue, 539 F.3d 1169, 1175-76 (9th
Cir. 2008); see Bayliss, 427 F.3d at 1217 (the ALJ is only required
to identify specific, credible limitations in the RFC; "[p] reparing
a
function-by-function
analysis
for
medical
conditions
or
impairments that th.e ALJ found neither credible nor supported by
the record is unnecessaryn}.
I
have
assessing
testimony,
not
identified
plaintiff's
and
light
of
the
entire
harmful
credibility
therefore
credible limitations.
any
conclude
or
error
by
evaluating
that
the
RFC
the
the
ALJ
in
medical
included
all
Because this determination is reasonable in
record
and
is
supported
by
substantial
weight because the ALJ concluded that plaintiff was more limited
than assessed in the May 20, 2011 opinion. Accordingly, I
conclude any error in attributing that opinion to Dr. Musselman
instead of Dr. Richert was harmless.
See Treichler v:
Commissioner of Social Security Admin., 775 F.3d 1090, 1099 (9th
Cir. 2014) (noting an error may be harmless if it is
"inconsequential to the ultimate nondisability determinationn or
if "the agency's path may be reasonably discerned, even if the
agency explains its decision with less than ideal clarityn).
22 - OPINION AND ORDER
evidence,
the ALJ's RFC and Step Five finding are affirmed.
Osenbrock v.
also Burch,
Apfel,
240 F.3d 1157,
400 F.3d at 679
1163-65
(9th Cir.
2001);
See
see
(ALJ's decision must be upheld where
evidence is susceptible to more than one rational interpretation) .
CONCLUSION
For the reasons
set forth above,
the Commissioner's final
decision denying benefits to plaintiff is AFFIRMED.
This action is
DISMISSED.
IT IS SO ORDERED.
DATED this _i____ day of SEPTEMBER, 2015.
Malcolm F. Marsh
United States District Judge
23 - OPINION AND ORDER
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