Lucas v. Commissioner, Social Security Administration
Filing
29
OPINION AND ORDER. For the foregoing reasons, the Commissioner's decision is AFFIRMED. IT IS SO ORDERED. Signed on 10/28/2014 by Judge Malcolm F. Marsh. (pvh)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
EDWARD P. LUCAS,
Plaintiff,
v.
COMMISSIONER SOCIAL SECURITY
ADMINIS'l'RATION,
Defendant.
ALAN STUART GRAF
208 Pine Street
Floyd, Virginia 24091
Attorney for Plaintiff
S. AMANDA MARSHALL
United States Attorney
ADRIAN L. BROWN
Assistant United States Attorney
1000 S.W. Third Avenue, Suite 600
Portland, Oregon 97204-2902
ERIN F. HIGHLAND
Social Security Administration
Office of the General Counsel
701 Fifth Avenue, Suite 2900 M/S 221A
Seattle, Washington 98104
Attorneys for Defendant
1 - OPINION AND ORDER
6:13-cv-01178-MA
OPINION AND ORDER
MARSH, Judge
Plaintiff, Edward P. Lucas, brings this action for judicial
review of a final decision of the Commissioner of Social Security
(the
Commissioner)
denying
his
applications
for
disability
insurance benefits (DIB) under Title II of the Social Security Act
(the
Act)
and
supplemental
security
benefits under Title XVI of the Act.
1381-1383f.
405 (g).
income
{SSI)
See 4 2 U. S . C.
disability
401-4 3 4,
§§
This Court has jurisdiction pursuant to 42 U.S.C.
For the
reasons
set
forth below,
I
affirm the
§
final
decision of the Commissioner.
PROCEDURAL BACKGROUND
Plaintiff protectively filed the instant applications for DIB
and SSI on January 23,
tunnel
syndrome,
fibromyalgia,
alleging disability due to carpal
degenerative
"(b]ulging
immunodeficiency virus
disorder
2009,
(PTSD),
disc
or
(HIV),
compressed
depression,
irritable bowel
deficit disorder (ADHD).
Tr. 233.
neuropathy,
discs,"
human
post-traumatic stress
syndrome
initially and upon reconsideration.
(ALJ)
disease,
(IBS),
and attention
His applications were denied
An Administrative Law Judge
held a .hearing on August 10, 2011,
at which Plaintiff was
represented by counsel and testified.
On
September
2,
2011,
the
ALJ issued a
decision
Plaintiff not disabled within the meaning of the Act.
finding
After the
Appeals Council considered additional evidence and declined review
2 - OPINION AND ORDER
of the ALJ's decision, Plaintiff timely filed a Complaint in this
Court.
Tr. 1-3.
FACTUAL BACKGROUND
Born on May 18,
1965,
Plaintiff was
37
years
old on
the
alleged onset date of disability and 46 years old on the date of
the hearing.
Plaintiff has a
relevant work as a Cashier,
high school equivalency and past
Gas Station Attendant,
Assistant Manager, and Baker.
Gas Station
Tr. 24, 45.
Plaintiff alleges his conditions became disabling on April 1,
2003.
Tr.
functional
233.
Plaintiff testified about his conditions
limitations
at
the
hearing
and
submitted
and
two Adult
Function Reports - one in relation to the present application and
the other in relation to a 2005 disability application not directly
at issue in this case.
Tr. 38-49, 198-205, 260-67.
On June 19, 2006, Kurt Brewster, M.D., examined Plaintiff and
submitted an opinion as to Plaintiff's physical limitations.
602-12.
Tr.
Robert Pelz, M.D., Ph.D.; Robert H. K. Choi, M.D., Ph.D.;
and Paul G.
Curtin,
M. D.,
each submitted forms
and letters to
Plaintiff's community college concerning his functional limitations
as they related to educational accommodations.
694-95,
933.
Zak Schwartz,
Ph.D.,
Tr. 690-91, 692-93,
one of Plaintiff's treating
psychological providers, submitted a February 20, 2009, opinion as
to Plaintiff's mental conditions and functional limitations.
785-87.
Tr.
The record also contains a report from Carmina Angeles,
3 - OPINION AND ORDER
M.D.,
Ph.D,
who
evaluated
Plaintiff
for
purposes
of
Tr.
treatment of Plaintiff's neck and mid-back pain.
medical
1172-75.
Finally, Tara R. Workman, M.D., wrote a letter dated February 9,
2012, which was first submitted to the Appeals Council, concerning
Plaintiff's physical conditions.
Tr. 1181.
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,
potentially dispositi v,e.
Cir. 1999).
show
that
(1987);
416.920(a) (4) (i)-(v).
404.1520(a) (4) (i)--(v),
Steps One through Four.
140-42
20
Bowen v.
C.F.R.
Each
step
§§
is
The claimant bears the burden of proof at
Tackett v. Apfel, 180 F.3d 1094, 1098 (9th
The burden shifts to the Commissioner at Step Five to
a
significant
number
of
jobs
economy that the claimant can perform.
exist
in
See Yuckert,
the
national
4 82 U.S. at
141-42; Tackett, 180 F.3d at 1098.
At Step One the ALJ determined that Plaintiff has not engaged
in substantial gainful activity since the alleged onset date, April
1, 2003.
See 20 C.F.R.
§§
404.1571 et seq., 416.971 et seq.; Tr.
13.
At
Step
Two
the
ALJ
found
Plaintiff's
degenerative
disc
disease; fibromyalgia; history of bilateral carpal tunnel syndrome,
status post bilateral release surgery;
history of left meniscal
tear, status post arthroscopy; HIV-positive with mild neuropathy;
4 - OPINION AND ORDER
obesity; depression; PTSD; ADHD; and history of methamphetamine use
.were severe impairments.
See 20 C.F.R.
§§
404.1520(c}, 416.920(c};
Tr. 13-14.
At Step Three the ALJ determined Plaintiff does not have an
impairment or combination of impairments that meet or medically
equal
any
listed
impairment.
See
20
C.F.R.
§§
404.1520(d},
404 .1525, 404 .1526, 416. 920 (d}, 416. 925, 416. 926; Tr. 15-16.
The ALJ found Plaintiff has the residual functional capacity
(RFC}
to perform a range of light work except that Plaintiff can
frequently balance and climb stairs and ramps.
The ALJ found
Plaintiff could perform all other postural activities occasionally,
but
should avoid
exposure
to
vibration
and hazards.
The ALJ
further limited Plaintiff to entry-level work consisting of simple
one- to two-step instructions and only occasional contact with the
general public.
Tr. 16-24.
At Step Four the ALJ found Plaintiff is unable to perform all
of his past relevant work.
See 20 C.F.R.
§§
404.1565, 416.965; Tr.
24.
At
Step
Five,
significant numbers
perform,
however,
the ALJ
found
that
jobs
in
in the national economy that Plaintiff can
including Laundry Sorter and Cleaner/Polisher.
In the alternative,
exist
Tr.
25.
the ALJ also found that if a limitation to
"occasional use of the hands and arms for reaching, fingering, and
handling were added" to the RFC, Plaintiff would be able to perform
5 - OPINION AND ORDER
the occupations of Bakery Helper and Blending Tank Tender Helper.
Tr. 25.
Accordingly, the ALJ found Plaintiff was not disabled within
the meaning of the Act.
ISSUES ON REVIEW
Plaintiff
raises
two
primary
issues
on
appeal.
First,
Plaintiff argues the ALJ improperly rejected Plaintff's testimony.
Second,
opinions
Plaintiff maintains the ALJ erroneously discredited the
of
Ors.
Pelz,
Choi,
Curtin,
Schwartz,
Angeles,
and
Workman.
STANDARD OF REVIEW
The 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); Andrews v.
1039 (9th Cir.
Shalala,
53 F.3d 1035,
42
U.S. C.
§
1995).
"Substantial evidence means 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."
Court must
weigh
all
of the
evidence,
whether
detracts from the Commissioner's decision.
807 F.2d 771, 772 (9th Cir. 1986).
to
more
than
one
rational
decision must be upheld.
supports
The
or
Martinez v. Heckler,
If the evidence is susceptible
interpretation,
Andrews,
it
Id.
the
Commissioner's
53 F. 3d at 1039-40.
If the
evidence supports the Commissioner's conclusion, the Commissioner
6 - OPINION AND ORDER
must be affirmed;
"the court may not substitute its judgment for
that of the Commissioner."
Edlund v.
Massanari,
253 F.3d 1152,
1156 {9th Cir. 2001).
DISCUSSION
I.
Plaintiff's Testimony
Plaintiff
testimony.
first
In
argues
deciding
the
ALJ
whether
to
improperly
accept
rejected
subjective
testimony, an ALJ must perform two stages of analysis.
§
404.1529.
evidence
First,
of an
his
symptom
20 C.F.R.
the claimant must produce objective medical
underlying
impairment
that
expected to produce the symptoms alleged.
F.3d 1273, 1281-82 {9th Cir. 1996).
could reasonably be
Smolen v. Chater,
80
Second, absent a finding of
malingering, the ALJ can reject the claimant's testimony about the
severity of his symptoms only by offering specific,
convincing reasons for doing so.
for
rejecting
a
claimant's
Id. at 1281.
testimony
substantial evidence in the record.
clear,
and
The ALJ's reasons
must
be
supported
by
See Carmickle v. Comm'r Soc.
Sec. Admin., 533 F.3d 1155, 1161 (9th Cir. 2008).
If
an
ALJ
finds
the
claimant's
subjective symptoms unreliable,
regarding
his
the "ALJ must make a credibility
determination
citing
unpersuasive."
Morgan v. Comm'r Soc. Sec. Admin., 169 F.3d 595,
599
(9th Cir.
1999).
the
testimony
reasons
In doing so,
why
the
testimony
is
the ALJ must identify which
testimony is credible and which testimony undermines the claimant's
7 - OPINION AND ORDER
complaints, and make "findings sufficiently specific to permit the
court to conclude that the ALJ did not arbitrarily discredit [the]
claimant's testimony."
Cir.
2002).
The
ALJ
Thomas v. Barnhart, 278 F.3d 947, 958 (9th
may
credibility evaluation in
rely
upon
ordinary
weighing the
techniques
claimant's
of
credibility.
Tommasetti v. Astrue, 533 F.3d 1035, 1039 (9th Cir. 2008).
A.
Plaintiff's Testimony
At the hearing, Plaintiff testified he was primarily disabled
by back and neck pain, and that he cannot use his hands or wrists
on account of swelling,
Tr.
39.
As to his hand limitations,
Plaintiff told the ALJ that his hands "are not usable," and that he
had been suffering from such limitations "for a long time."
51~52.
Plaintiff testified his
somewhat after two surgeries,
hand and wrist
symptoms
Tr.
eased
but that severe symptoms returned
within six months of the second surgery.
Tr.
55-56.
Plaintiff
additionally reported that he cannot lift his hands above his head
without his arms going numb.
Tr. 52.
Plaintiff testified that he also has ADHD, but that Adderall
helps him stay focused during school.
reported
the
Adderall
helps
with
Tr. 48.
his
reported headaches and memory problems.
Although Plaintiff
attention
span,
he
also
Tr. 53-54.
As to his daily activities, Plaintiff reported that he takes
the bus to the grocery store, which is about a mile away, but that
he cannot walk to the store because of knee and ankle problems.
8 - OPINION AND ORDER
Tr.
Plaintiff testified that he takes classes two days per
43.
week at Lane Community College, but that he can only take one class
per quarter on account of his functional limitations.
Tr. 44-46.
In an Adult Function Report dated February 21, 2009, Plaintiff
reported he wakes around 6:00 a.m., takes his medications, and eats
breakfast.
Tr. 260.
Plaintiff reported he showers on days when he
is not too sore to do so, then gets dressed and leaves for school.
Tr.
Plaintiff wrote he receives various accommodations at
260.
school,
including
additional
time
on
assignments
and
tests,
assistance with note-taking, and late arrival and early departure
privileges.
Tr. 268.
After school, Plaintiff reported he visits
his partner, son, and dog; watches television; rests; and goes to
the dog park.
board
games
television.
Tr.
268.
before
After dinner,
returning
home
Plaintiff plays cards or
for
homework,
reading,
or
Tr. 268.
As to his ability to care for himself,
Plaintiff noted he
sometimes requires help with his shoes, maintains short hair for
ease
of
care,
and
shaves
once
or
twice
per
week.
Tr.
261.
Plaintiff reported he cooks simple meals daily, performs a range of
housework including vacuuming, dusting, washing dishes, and wiping
down counters for approximately 30 minutes once or twice per week.
Tr. 262.
Plaintiff wrote that he goes outside daily and shops for
groceries for 45 minutes twice per month.
and social activities,
9 - OPINION AND ORDER
Tr. 263.
As to hobbies
Plaintiff noted he goes to school, reads,
watches television and movies, listens to audio books, visits with
family,
and
attends
alcohol-treatment
meetings.
Tr.
264.
Plaintiff reported, however, that his social circle is much smaller
than it used to be and he cannot partake in physical activity he
previously enjoyed.
Tr. 264-65.
With regard to his functional limitations, Plaintiff reported
his conditions affect his abilities to lift, squat, bend, stand,
reach, walk, sit,
kneel,
climb stairs,
concentrate, understand,
get along with others.
remember,
follow instructions,
Tr.
265.
complete tasks,
use his hands,
and
Plaintiff reported he can only
walk two or three blocks before requiring "a few minutes" of rest;
cannot lift "more than a few pounds, and not repetitively;" cannot
stand for more than 15 to 30 minutes without pain or numbness; and
cannot sit continuously for more than 30 minutes.
Tr. 265,
269.
As to his memory limitations, Plaintiff reported he must re-read
written instructions
"several
times"
instructions repeated to him.
stress
causes
depression
and frequently needs
Tr. 265.
and
he
has
authority figures, especially police.
oral
Plaintiff reported that
difficulty
dealing
with
Tr. 266.
In an Adult Function Report submitted for a prior application
and dated February 28,
activities
of
daily
2005,
living
visiting his partner and son.
Plaintiff reported largely similar
including
Tr. 198.
watching
television
At that time,
and
Plaintiff
checked that his conditions affected his abilities to lift, squat,
10 - OPINION AND ORDER
bend,
stand,
reach,
walk,
sit,
kneel,
climb
stairs,
remember,
complete tasks, use his hands, and get along with others.
Tr. 203.
Plaintiff reported he could only walk one block before requiring
three to six minutes of rest.
Tr. 203.
B.
ALJ' s Reasons for Rejecting Plaint.iff' s Testimony
The
ALJ
findings
rejected
Plaintiff's
testimony
because
clinical
and objective medical evidence were inconsistent with
Plaintiff's allegations and Plaintiff's activities of daily living
as
reported
throughout
the
record
allegations of disabling conditions.
were
inconsistent
Tr. 17-19.
with
his
I conclude these
reasons, taken together, constitute clear and convincing reasons to
reject Plaintiff's allegations of disabling conditions.
1.
Clinical Findings Inconsistent with Allegations
The ALJ cited many instances in which Plaintiff's allegations
were not consistent with medical providers' clinical findings.
As
noted, Plaintiff testified that his hand and wrist conditions were.
one of his primary disabling conditions and caused very significant
functional limitations.
The ALJ noted,
frequently
no
strength.
demonstrated
~Tr.
as the ALJ noted,
study
deficits
381, 610, 1032, 1174.
Dr.
that Plaintiff
and
normal
grip
On exam in June of 2006,
Brewster "did not find signs for ongoing
carpal tunnel syndrome."
conduction
sensory
however,
Tr.
indicated
"a
612.
very
An October 19,
mild
right
2010,
carpal
nerve
tunnel
syndrome in normal circumstances," which in light of Plaintiff's
11 - OPINION AND ORDER
history of two carpal tunnel
just
reflect
syndromes."
As to
residual
surg~ries
changes
on each wrist "could really
from
the
prior
carpal
tunnel
Tr. 1045.
Plaintiff's back and neck pain,
the ALJ noted that
Plaintiff reported that medication and physical therapy had been
very helpful in controlling his pain.
Tr. 1147, 1187.
Imaging of
Plaintiff's back and neck consistently revealed mild or minimal
findings.
Tr. 341, 498, 882, 883, 888, 1113.
Similarly, findings
concerning Plaintiff's neuropathy were frequently mild.
Tr. 339,
855, 877' 881, 887' 1187.
The ALJ also properly noted that clinical records indicated
Plaintiff's
mental
impairments
methamphetamine cessation.
improved
with
medication
and
Indeed, on November 17, 2005, Plaintiff
noted his mental health symptoms appeared to be improving since he
had been "off the amphetamines for a month."
January of that year,
a
diagnosis
Even as of
Plaintiff had reported he had "been doing
well enough" without resuming Prozac.
after
Tr. 412.
with
ADHD,
Tr.
mental
423.
health
More recently,
providers
Plaintiff's Adderall was· helping him work on his GED.
Thereafter,
Plaintiff
consistently
improved symptoms on Adderall.
Tr.
demonstrated
690,
694, 954.
Tr.
noted
719.
significantly
Finally, the
ALJ reasonably noted that Plaintiff did not demonstrate memory
deficits on exam commensurate with his allegations.
12 - OPINION AND ORDER
Tr. 653, 1173.
In
the
sum,
ALJ
appropriately
noted
that
Plaintiff's
allegations of disabling conditions were inconsistent with clinical
findings
throughout the
record.
This
is
a
compelling reason,
supported by substantial evidence, to reject Plaintiff's testimony.
2.
The
Inconsistency
Living
ALJ
allegations
also
of
rejected
disabling
with
Reported Activities
Plaintiff's
conditions
testimony
were
Plaintiff's reports of his daily activities.
of
Daily
because
his
contradicted
by
Indeed,
there are
several reports of daily activities throughout the record that the
ALJ
could
reasonably
find
are
inconsistent
with
Plaintiff's
allegations.
On August 23,
2006,
Plaintiff reported that he "dropped a
transmission on his right foot."
Tr.
923.
On January 17, 2005,
Plaintiff reported he "was moving furniture boxes around."
423.
On March 19,
'fr. 550.
2004,
Plaintiff reported working on his car.
On August 19, 2008,
Plaintiff reported "[h]e spent the
weekend hunched over books and scribbling out a term paper."
865.
Tr.
Tr.
On April 29, 2009, Plaintiff reported doing "several hours of
raking."
Tr. 938.
Finally, on March 23, 2011, Plaintiff reported
"running cin an elliptical machine at
minutes.
Tr. 1172.
[the] gym" for at least 15
Each of these reports of activities of daily
living are inconsistent with aspects of Plaintiff's reports of very
limited functional capabilities in his Adult Function Reports and
at the hearing.
While Plaintiff reported many of these activities
13 - OPINION AND ORDER
caused pain, the ALJ could reasonably find that Plaintiff's ability
to
complete
these
tasks· was
inconsistent
with
his
alleged
limitations.
Accordingly,
the ALJ properly cited inconsistency between
Plaintiff's allegations and his reported daily activities as a
reason
to
reject
Plaintiff's
testimony.
Plaintiff's
reported
activities of daily living, then, are another compelling reason,
supported
by
substantial
credibility determination.
and
convincing
reasons,
evidence,
for
the
ALJ's
adverse
In sum, I conclude the ALJ cited clear
supported by
substantial
evidence,
to
reject Plaintiff's testimony of disabling conditions and functional
limitations.
II.
Medical Testimony
Plaintiff
opinions
of
Workman.
next
Ors.
The
argues
Pelz,
the
Choi,
Commissioner
ALJ
erroneously
rejected
the
Schwartz,
Angeles,
and
Curtin,
must
provide
clear
and
reasons to reject the uncontradicted opinion of a
examining physician.
Cir. 1995).
convincing
treating or
Lester v. Chater, 81 F.3d 821, 830-31
(9th
Where a physician's opinion is contradicted by that of
another physician, the ALJ may reject the physician's opinion by
providing specific and legitimate reasons supported by substantial
evidence in the record.
Id.
"'The ALJ need not accept the opinion
of any physician, including a treating physician, if that opinion
is
brief,
conclusory,
14 - OPINION AND ORDER
and
inadequately
supported
by
clinical
findings.'"
Chaudhry v. Astrue, 688 F.3d 661, 671 (9th Cir. 2012)
(quoting Bray v. Comm'r Soc. Sec. Admin., 554 F.3d 1219, 1228 (9th
Cir. 2009)).
the
"'Where
evidence,
the ALJ is
record
contains
Id.
F.3d 1030,
1040
(9th Cir.
2003)).
translating
the
claimant's
limitations in the RFC.
"consistent with
testimony."
(quoting Benton v.
medical
Barnhart,
331
The ALJ is responsible for
conditions
into
functional
See Stubbs-Danielson v. Astrue, 539 F.3d
1169, 1174 (9th Cir. 2008).
is
medical
charged with determining credibility and
resolving the conflict.'"
it
conflicting
Ultimately, the RFC is sufficient if
restrictions
identified in the medical
Id.
A.
Drs. Pelz, Choi, and Curtin
The
record contains
Curtin
submitted
to
statements
Lane
from
Community
College
establishing classroom accommodations. 1
95, 933.
Dr.
Drs.
Pelz,
for
Tr. 690-91,
Choi,
purposes
and
of
692-93, 694-
All three providers were treating sources.
Pelz
listed
Plaintiff's
fibromyalgia[,) chronic pain,
diagnoses
as
[and) carpal tunnel."
"ADHD,
Tr. 690.
HIV,
Dr.
Pelz noted that Plaintiff's HIV was "[a)symptomatic," and that his
ADHD was
"[b) etter on Adderall," but that
1
Plaintiff still had
The record contains an additional record from Dr. Pelz
arguably meeting the criteria for being considered medical
testimony. Tr. 1103. Plaintiff, however, does not argue the ALJ
erroneously rejected this opinion.
15 - OPINION AND ORDER
memory problems and "distractibility."
Tr.
690.
In response to
whether Plaintiff's disabilities substantially affected any major
life activities,
Pelz
Dr. Pelz wrote "yes - learning."
circled
Plaintiff's
that
concentration,
multi-tasking,
and
processing
Dr.
affected
conditions
Tr. 691.
his
Tr.
691.
speed.
Accordingly, Dr. Pelz opined Plaintiff would require "extra time to
complete work."
Tr. 691.
Dr. Choi listed "neck pain, low back pain,
Tr.
neuropathy" as Plaintiff's diagnoses.
Plaintiff's
onset
date
as
January
29,
[and] peripheral
692.
2008,
Dr. Choi listed
and circled
that
Plaintiff's conditions affect major life activities without further
specification.
Tr.
Dr.
693.
conditions cause chronic pain,
Choi
circled
fatigue,
his endurance and flexibility.
Tr.
not recommend any accommodations.
that
Plaintiff's
and weakness, and affect
693.
Dr. Choi, however, did
Tr. 693.
Dr. Curtin listed Plaintiff's diagnoses as HIV, carpal tunnel,
fibromyalgia,
neuropathy,
and ADHD.
Tr.
694.
Dr. Curtin noted
that Plaintiff's HIV was asymptomatic and his ADHD was "improved
with [medication]."
Tr. 694.
conditions
his
affect
Dr. Curtin circled that Plaintiff's
abilities
to
learn
as
well
as
his
concentration, multi-tasking, and processing speed, and cause him
chronic pain and weakness.
recommended
that
Plaintiff
Tr.
receive
"[a]bility to change positions."
16 - OPINION AND ORDER
695.
Accordingly,
"[e]xtra
Tr. 695.
time"
Dr.
Curtin
and
the
The
record contains an
additional
letter
submitted in relation to school accommodations.
letter,
Dr.
recommended
Curtin
noted
Plaintiff
be
Plaintiff's
Dr.
Tr. 933.
Tr.
In that
of
ADHD
and
time
for
933.
diagnosis
Curtin
"additional/prolonged
given
completion of his testing."
from
Dr. Curtin estimated that
Plaintiff would require double the typical time for testing.
933.
Finally,
Dr.
Curtin noted
Plaintiff
would
also
Tr.
require
additional time on account of his carpal tunnel syndrome, which
would require Plaintiff to "take breaks from his penmanship."
Tr.
933.
The ALJ gave
these
opinions
some,
but
not
great
weight,
because educational accommodations do not directly correlate to
possible vocational limitations, the record indicates Plaintiff's
carpal
tunnel
and
ADHD
improved
with
treatment,
and
the
accommodations were inconsistent with Plaintiff's activities· of
daily living.
Tr. 21.
To the extent they were inconsistent with
the RFC, these opinions were contradicted by, among other opinions,
Dr.
Brewster's
Joshua J.
Boyd,
examining opinion and the
Psy. D.
Tr.
602-12,
reviewing opinion of
831-33.
Thus,
the ALJ was
required to cite specific and legitimate reasons to reject the
school-accommodation opinions.
I conclude the ALJ did so.
The ALJ is correct that academic accommodations do not,
in
many circumstances, easily translate to workplace limitations.
In
this instance, this is particularly true with the accommodations
17 - OPINION AND ORDER
for
extra
time
with
assignments
and
testing,
as
workplace
activities are inherently different from educational assignments
and tests.
Notably, the RFC contains a very significant limitation
of Plaintiff to "entry-level work consisting of simple,
step
instructions."
differences
limitations
Tr.
in
academic
by
accommodations
the
between
cited
Especially
16.
this
ALJ,
light
of
the
and
workplace
is
reasonably
limitation
consistent with the medical testimony.
to 2-
1~
See Stubbs-Danielson, 539
F.3d at 1174.
As
discussed
above,
the
ALJ
also
reasonably
noted
that
Plaintiff's carpal tunnel syndrome and ADHD improved after surgery
and medication,
Plaintiff
Finally,
respectively.
required
an
accommodation
Dr.
to
Curtin' s
permit
him
note that
to
change
positions is inconsistent with Plaintiff's reports of activities of
daily living, including Plaintiff's report that he spent a "weekend
hunched over books and scribbling out a term paper."
ALJ properly noted that
inconsistent
with
The
the school-accommodation opinions were
Plaintiff's
conclude these reasons,
Tr. 865.
activities
taken together,
of
daily
living.
I
constitute specific and
legitimate reasons to reject the opinions of Drs. Pelz, Choi, and
Curtin.
B.
Dr. Schwartz
Plaintiff
next
Schwartz's opinion.
argues
the
ALJ
erred
in
rejecting
Dr.
Dr. Schwartz noted that Plaintiff demonstrated
18 - OPINION AND ORDER
"agitated depression," impulsivity, and "angry acting out."
785.
his
Tr.
Dr. Schwartz noted that Plaintiff had significantly improved
impulse
Schwartz
control
repo~ted
and
relationship
skills.
Tr.
786.
Dr.
that Plaintiff's activities of daily living vary
greatly based on Plaintiff's mood and symptoms, but were "usually
adequate."
Tr. 786.
As to social functioning, Dr. Schwartz opined
Plaintiff had "[l]imited ability" and was "inconsistent."
Tr. 786.
With respect to Plaintiff's concentration, persistence, and pace
abilities, Dr. Schwartz opined Plaintiff has "some function" unless
triggered.
Tr.
787.
Dr.
Schwartz also opined,
however,
that
Plaintiff has a "[h]istory of inability to adjust to work [and]
home stressors over time such that cont[inued] employment [is] not
feasible."
Tr. 787.
Although Dr. Schwartz completed the report on
February 20, 2009, his last clinical encounter with Plaintiff was
January 31, 2008.
Tr. 787.
The ALJ rejected Dr.
Schwartz's opinion because he gave no
specific vocational limitations,
between
the
time
Dr.
Schwartz
more than one year had elapsed
last
saw
Plaintiff and when
he
submitted his opinion, Plaintiff showed significant improvement on
Adder all,
and
Dr.
Schwartz's
Plaintiff's daily activities.
contradicted by the
opinion
Tr. 22.
opinion of
Dr.
inconsistent
with
Dr. Schwartz's opinion was
Boyd in which he
minimal limitations in social functioning.
19 - OPINION AND ORDER
was
Tr. 830-32.
assigned
Thus, the
ALJ was required to cite specific and legitimate reasons to reject
Dr. Schwartz's opinion.
I conclude the ALJ did so.
The ALJ's rejection of Dr. Schwartz's opinion because of the
gap between treatment and submission of the opinion and Plaintiff's
improvement on Adderall is particularly convincing.
October 20,
but a
Indeed,
on
2008, after Dr. Schwartz finished treating Plaintiff
few months before Dr.
Schwartz's opinion,
Dr.
Pelz noted
Plaintiff "made numerous important gains over the last year or so"
and
that
Plaintiff's
Adderall.
clinical
appears
Tr.
954.
functionality
Thus,
encounter with
to
have
been
"improved
significantly"
the year between Dr.
on
Schwartz's last
Plaintiff and the date of the opinion
particularly
significant
and
provides
a
convincing reason to reject Dr. Schwartz's opinion.
The ALJ was also correct that Plaintiff's reported activities
of daily living were inconsistent with Plaintiff's activities of
daily living.
Indeed,
in Plaintiff's Adult Function Report,
reported significant social interaction with his family.
68.
he
Tr. 260-
While there are references in the record to difficulties in
Plaintiff's relationship with his partner, those references become
sparse after Plaintiff's cessation of methamphetamine.
Otherwise,
the,ALJ could reasonably find that Plaintiff's activities of daily
living,
including daily contact with local family,
traveling to
California to visit his son, and attending school multiple days per
week,
indicate Plaintiff was capable of somewhat limited social
20 - OPINION AND ORDER
functioning as provided in the RFC.
I
conclude
the
ALJ
cited
Tr. 260-68, 976.
specific
and
Accordingly,
legitimate
reasons
to
purposes
in
discount Dr. Schwartz's opinion.
C.
Dr. Angeles
Dr.
Angeles
evaluated Plaintiff for treatment
relation to his neck and back pain.
Tr.
1172.
After exam,
Dr.
Angeles opined Plaintiff "mainly has axial neck pain with left
upper extremity radiculopathy," and reported Plaintiff's "pain is
to the point that he is unable to obtain work or perform daily
household activities."
Tr.
1175.
As
to
the duration of
the
symptoms, Dr. Angeles reported that Plaintiff's "neck and thoracic
pain have been occurring for 7 years now."
noted
Plaintiff's
cervical
spine
MRI
Tr. 1172.
dated
Dr. Angeles
March
7,
demonstrated "multilevel spondylosis and disc degeneration."
2011,
Tr.
1175.
The ALJ rejected Dr. Angeles's opinion because it "appears to
be a recitation of the claimant's subjective complaints rather than
an opinion regarding functional limitations."
Tr. 21.
Indeed, Dr.
Angeles did not opine on Plaintiff's functional limitations or the
severity of Plaintiff's back impairments in any detail aside from
her statement that Plaintiff's pain precludes him from obtaining
work and daily household activities.
Tr. 1175.
In this respect,
the ALJ is correct that Dr. Angeles's opinion appears to have been
based on Plaintiff's discredited subjective reporting.
21 - OPINION AND ORDER
Notably,
the report that Plaintiff is precluded from performance of daily
household activities is inconsistent with several reports discussed
by
the
ALJ
Plaintiff's
mentioning
throughout
pain
was
Plaintiff
the
record,
"improved"
raking
for
or
including
"well-controlled,"
"several
hours,"
transmission, and "moving furniture boxes around."
938, 1147, 1187.
reports
that
notes
carrying
a
Tr. 423, 923,
Accordingly, reliance on Plaintiff's subjective
symptom reporting is a compelling reason to reject Dr. Angeles's
opinion.
The ALJ did not err in weighing Dr. Angeles's testimony.
D.
Dr. Workman
Finally, Plaintiff argues that the Commissioner's failure to
discuss
Dr.
Workman's
substantial evidence.
opinion
deprives
the
ALJ' s
decision
of
Dr. Workman's opinion was submitted to the
Appeals Council after the ALJ issued his decision.
Tr.
4, 1181.
When evidence is submitted for the first time to - and considered
by - the Appeals Council, the court asks "whether, in light of the
record as a whole, the ALJ's decision was supported by substantial
evidence."
Brewes v. Comm'r Soc. Sec. Admin., 682 F.3d 1157, 1163
(9th Cir. 2012).
In her opinion, Dr. Workman noted Plaintiff was being treated
for "chronic neck pain, neuropathic pain, and fibromyalgia."
1181.
Tr.
Dr. Workman opined Plaintiff "is currently debilitated by
these conditions and is seeking to further his education doing
studies four days a week."
22 - OPINION AND ORDER
Tr.
1181.
As a result,
Dr. Workman
wrote "it is thus my recommendation that during the time that he is
studying, due to his debilitating pain from the above conditions,
that he refrain from other physicai activity,
which may be work
related and cause progression of his symptoms."
Viewing
opinion
the
does
evidence.
record
not
As
as
deprive
noted,
the
a
whole,
the
I
ALJ's
ALJ' s
Tr. 1181.
conclude
decision
finding
that
Dr.
of
Workman's
substantial
Plaintiff's
pain
symptoms were not as severe as alleged is supported by considerable
evidence in the record.
In addition,
Plaintiff
pain,
is
limited by
Dr.
ascribe any functional limitations.
aside from reporting that
Workman's
opinion does
not
Finally, Dr. Workman's opinion
only speaks to Plaintiff's ability to work while in school four
days per week, a standard of disability that differs considerably
from that which the Commissioner applies.
Thus,
Dr.
Workman's
opinion does not necessitate remand to the Commissioner for further
proceedings.
In
sum,
I
conclude
the
ALJ
cited
sufficient
discredit to varying degrees the opinions
Curtin, Schwartz, and Angeles.
Drs.
Pelz,
to
Choi,
In addition, I find Dr. Workman's
opinion does not deprive the ALJ' s
substantial evidence.
of
reasons
decision of the support of
The ALJ appropriately weighed the medical
testimony and permissibly incorporated the functional limitations
contained therein into the RFC.
Ill
23 - OPINION AND ORDER
CONCLUSION
For the
foregoing
reasons,
the Commissioner's decision is
AFFIRMED.
IT IS SO ORDERED.
DATED this ;z..f day of October, 2014.
Malcolm F. Marsh
United States District Judge
24 - OPINION AND ORDER
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