Elsesser v. Colvin

Filing 20

ORDER ON PLAINTIFF'S COMPLAINT by Judge J Richard Creatura. (SH)

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT TACOMA

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PAUL E. ELSESSER,

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Plaintiff,

CASE NO. 13-cv-05148 JRC
ORDER ON PLAINTIFF’S
COMPLAINT

v.
CAROLYN W. COLVIN, Acting
Commissioner of the Social Security
Administration,

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Defendant.
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This Court has jurisdiction pursuant to 28 U.S.C. § 636(c), Fed. R. Civ. P. 73 and

18 Local Magistrate Judge Rule MJR 13 (see also Notice of Initial Assignment to a U.S.
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Magistrate Judge and Consent Form, ECF No. 5; Consent to Proceed Before a United
States Magistrate Judge, ECF No. 6). This matter has been fully briefed (see ECF Nos.

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17, 18, 19).
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After considering and reviewing the record, the Court finds that the ALJ properly
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evaluated plaintiff’s credibility, relying on inconsistencies between plaintiff’s allegations
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ORDER ON PLAINTIFF’S COMPLAINT - 1

1 and plaintiff’s report in the medical record, inconsistencies with the objective medical
2 evidence and inconsistencies with medical opinion evidence. The ALJ also properly
3 evaluated the medical and lay evidence, noting that plaintiff’s examining doctors relied
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on plaintiff’s subjective complaints.
Therefore, this matter is affirmed pursuant to sentence four of 42 U.S.C. § 405(g).

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BACKGROUND
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Plaintiff, PAUL E. ELSESSER, was born in 1973 and was 32 years old on the
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alleged date of disability onset of June 12, 2006 (see Tr. 182-83, 184-87). Plaintiff was in
special education and graduated from an alternative high school (Tr. 405). Plaintiff has

11 work experience building trusses, cashiering, doing maintenance at a car wash,
12 remanufacturing auto parts, and, briefly, working as a cook (Tr. 38-44). His last job was
13 building trusses and he has not worked since getting injured on the job (Tr. 45-46).
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According to the ALJ, plaintiff has at least the severe impairments of “lumbar

15 spondylosis, post laminectomy syndrome, pain syndrome, depressive disorder, anxiety
16 disorder, and polysubstance dependence in remission (20 CFR 404.1520(c) and
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416.920(c))” (Tr. 13).
At the time of the hearing, plaintiff was living with a roommate/girlfriend (Tr. 66).

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PROCEDURAL HISTORY
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Following plaintiff’s application for disability insurance (“DIB”) benefits pursuant
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to 42 U.S.C. § 423 (Title II) and Supplemental Security Income (“SSI”) benefits pursuant
to 42 U.S.C. § 1382(a) (Title XVI) of the Social Security Act (see Tr. 182-83, 184-87;

24 see also Tr. 101-03, 104-07, 108, 111, 114-15, 116-18), his requested hearing was held

ORDER ON PLAINTIFF’S COMPLAINT - 2

1 before Administrative Law Judge Ruperta Alexis (“the ALJ”) on June 8, 2011 (see Tr.
2 33-96). On August 18, 2011, the ALJ issued a written decision in which she concluded
3 that plaintiff was not disabled pursuant to the Social Security Act (see Tr.8-32).
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In plaintiff’s Opening Brief, plaintiff raises the following issues: (1) Whether or
not the ALJ erred in giving little weight to the opinions of four examining psychologists

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and a mental health professional while giving greater weight to the opinions of two non7

examining sources and another mental health professional; and (2) Whether or not the
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ALJ gave legally sufficient reasons for finding plaintiff not fully credible (see ECF No.
17, p. 1-2).

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STANDARD OF REVIEW

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Pursuant to 42 U.S.C. § 405(g), this Court may set aside the Commissioner's

13 denial of social security benefits if the ALJ's findings are based on legal error or not
14 supported by substantial evidence in the record as a whole. Bayliss v. Barnhart, 427 F.3d
15 1211, 1214 n.1 (9th Cir. 2005) (citing Tidwell v. Apfel, 161 F.3d 599, 601 (9th Cir.
16 1999)).
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DISCUSSION
(1)

Whether or not the ALJ erred in giving little weight to the opinions of
four examining psychologists and a mental health professional while
giving greater weight to the opinions of two non-examining sources and
another mental health professional.

It should first be noted that the ALJ’s evaluation of the medical evidence

22 regarding plaintiff’s physical impairments are not at issue – plaintiff disputes, however,
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the ALJ’s evaluation of the plaintiff’s mental impairments.

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ORDER ON PLAINTIFF’S COMPLAINT - 3

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A. Examining doctors
Plaintiff contends that the ALJ’s rejection of the opinions by the three examining

3 psychologists and a psychiatrist requires clear and convincing rationale, as their opinions
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are not contradicted. However, the evidence in the record indicates that many of these
opinions are contradicted by state reviewing psychologists; therefore, for those opinions a

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different standard applies.
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The ALJ must provide “clear and convincing” reasons for rejecting the
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uncontradicted opinion of either a treating or examining physician or psychologist.
Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1996) (citing Embrey v. Bowen, 849 F.2d

11 418, 422 (9th Cir. 1988); Pitzer v. Sullivan, 908 F.2d 502, 506 (9th Cir. 1990)). But when
12 a doctor’s opinion is contradicted, that opinion can be rejected “for specific and
13 legitimate reasons that are supported by substantial evidence in the record.” Lester,
14 supra, 81 F.3d at 830-31 (citing Andrews v. Shalala, 53 F.3d 1035, 1043 (9th Cir. 1995);
15 Murray v. Heckler, 722 F.2d 499, 502 (9th Cir. 1983)). The ALJ can accomplish this by
16 “setting out a detailed and thorough summary of the facts and conflicting clinical
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evidence, stating his interpretation thereof, and making findings.” Reddick v. Chater, 157
F.3d 715, 725 (9th Cir. 1998) (citing Magallanes v. Bowen, 881 F.2d 747, 751 (9th Cir.

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1989)).
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An examining physician’s opinion is “entitled to greater weight than the opinion
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of a nonexamining physician.” Lester, supra, 81 F.3d at 830 (citations omitted); see also
20 C.F.R. § 404.1527(d). A non-examining physician’s or psychologist’s opinion may

24 not constitute substantial evidence by itself sufficient to justify the rejection of an opinion

ORDER ON PLAINTIFF’S COMPLAINT - 4

1 by an examining physician or psychologist. Lester, supra, 81 F.3d at 831 (citations
2 omitted). However, “it may constitute substantial evidence when it is consistent with
3 other independent evidence in the record.” Tonapetyan v.Halter, 242 F.3d 1144, 1149
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(9th Cir. 2001) (citing Magallanes, supra, 881 F.2d at 752).
“In order to discount the opinion of an examining physician in favor of the

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opinion of a nonexamining medical advisor, the ALJ must set forth specific, legitimate
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reasons that are supported by substantial evidence in the record.” Van Nguyen v. Chater,
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100 F.3d 1462, 1466 (9th Cir. 1996) (citing Lester, supra, 81 F.3d at 831).
Here, the ALJ failed to credit some of the opinions of plaintiff’s examining

11 psychologists and psychiatrist regarding social functioning, on the basis that they relied
12 for such opinions on plaintiff’s subjective allegations, and the ALJ found that plaintiff’s
13 allegations should not be credited fully. Some of those opinions were contradicted by the
14 state reviewing psychologists; therefore, a lower standard of review applies (see Tr. 23
15 (citing Tr. 530-33)). Some of these opinions regarding social functioning were not
16 directly addressed by the reviewing psychologists (id.). Nevertheless, the ALJ’s analysis
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of these opinions meets the higher “clear and convincing” standard; therefore, the Court
will use that standard for purposes of analysis.

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As explained further below, the Court herein upholds the ALJ’s determination
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regarding her determination not to credit fully plaintiff’s allegations and testimony, see
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infra, section 2. Therefore, to the extent that the examining psychologists and psychiatrist
relied for some of their opinions on plaintiff’s subjective complaints without objective

24 basis for these opinions, the ALJ did not err in failing to credit such opinions. “A

ORDER ON PLAINTIFF’S COMPLAINT - 5

1 physician’s opinion of disability ‘premised to a large extent upon the claimant’s own
2 accounts of his symptoms and limitations’ may be disregarded where those complaints
3 have been” discounted properly. Morgan v. Comm’r of Soc. Sec. Admin., 169 F.3d 595,
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602 (9th Cir. 1999) (quoting Fair v. Bowen, 885 F.2d 597, 605 (9th Cir. 1989) (citing
Brawner v. Sec. HHS, 839 F.2d 432, 433-34 (9th Cir. 1988))).

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i. Dr. D. Knopes, Ph.D., examining doctor
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Dr. Knopes examined plaintiff on February 21, 2008 (see Tr. 286-91). With
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respect to his specific opinions regarding plaintiff’s limitations in the area of social
functioning, Dr. Knopes indicated that plaintiff “feels judged”, experiences “social

11 anxiety and avoidance”, and feels persecuted and anxious in work situations (see Tr.
12 288). These factors clearly were reported by plaintiff and were not the result of clinical
13 observations or test results (see id.).
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The Court concludes that the ALJ’s finding that Dr. Knopes relied for his opinions

15 regarding plaintiff’s limitations in social functioning on plaintiff’s subjective complaints
16 is a finding based on substantial evidence in the record as a whole. The Court also notes
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the opinion by Dr. Knopes that plaintiff’s degree of impairment would not necessarily
persist for longer than six months and that he should be reevaluated at that time (see Tr.

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288). This would be another independent reason supporting the ALJ’s discounting of Dr.
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Knopes’ opinion.
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ii. Dr. Jack T. Norris, Ph.D., examining doctor
Dr. Norris examined and evaluated plaintiff on August 6, 2008 (see Tr. 390-412).

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ORDER ON PLAINTIFF’S COMPLAINT - 6

1 specifically opining that plaintiff had moderate limitation in his ability to exercise
2 judgment and make decisions (see Tr. 401). With respect to his opinion regarding
3 plaintiff’s limitations in social factors, Dr. Norris noted reliance on plaintiff’s activities of
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daily living, plaintiff’s subjective history, and that plaintiff “is distrustful and has panic
with no known precursor; very low self-confidence at this time” (see Tr. 401). These

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factors clearly derive from plaintiff’s subjective report (see id.). The Court also notes that
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Dr. Norris indicates that his opinions on social limitations also are based on clinical
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observations and testing, but a review of plaintiff’s mental status examination results
does not reveal any basis for these opinions (see Tr. 403-04, 406-09). The Court also

11 notes that in the report from Dr. Norris regarding activities of daily living and friends and
12 socialization, Dr. Norris indicated no impairment, noting “OK around people, usually
13 stays at home, but has friends visit” (see Tr. 404).
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The Court concludes that the ALJ’s finding that Dr. Norris relied for his opinions

15 regarding plaintiff’s limitations in social functioning on plaintiff’s subjective complaints
16 is a finding based on substantial evidence in the record as a whole. The Court finds no
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error in the ALJ’s evaluation of the opinion of Dr. Norris.

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iii. Dr. Brett T. Copeland, Psy.D., examining doctor

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Dr. Copeland examined and evaluated plaintiff in January, 2009 (see Tr. 262-76).
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Regarding his opinions on plaintiff’s limitations with respect to social factors, Dr.
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Copeland indicated that plaintiff “suffers from social hypervigilance and may be prone to
anger” (see Tr. 264).

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ORDER ON PLAINTIFF’S COMPLAINT - 7

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Based on a review of the relevant record, the Court concludes that the ALJ’s

2 finding that Dr. Copeland relied on plaintiff’s subjective reports for his opinions
3 regarding limitations on social factors is a finding based on substantial evidence in the
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record as a whole. The Court also notes that when assessing plaintiff’s activities of daily
living, Dr. Copeland opined that plaintiff had no impairment with respect to friends and

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socialization, noting that plaintiff had “good support” (see Tr. 267). The Court concludes
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that the ALJ’s determination to not credit fully Dr. Copeland’s opinions regarding
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plaintiff’s limitations in social factors is substantiated by clear and convincing rationale
based on substantial evidence in the record as a whole.
iv. Dr. Bruce A. Eather, Ph.D., examining doctor
Dr. Eather examined and evaluated plaintiff on June 17, 2009 (see Tr. 506-15).

13 When noting plaintiff’s activities of daily living, Dr. Eather opined that plaintiff suffered
14 from no impairment in the area of friends and socialization, noting that he has a “couple
15 of friends” (see Tr. 512). Regarding the basis for his opinions on plaintiff’s limitations
16 with respect to social factors, Dr. Eather noted that plaintiff “has a girlfriend and a couple
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of friends,” that plaintiff indicated in his history that he suffered from “poor social skills
and judgment,” that he has “low stress tolerance” (see Tr. 508). Although Dr. Eather

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indicated some other bases for his opinions, the Court concludes that the ALJ’s finding
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that his opinions regarding the social limitations suffered by plaintiff were based on
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plaintiff’s subjective reports is a finding based on substantial evidence in the record as a
whole. The Court finds no harmful error.

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ORDER ON PLAINTIFF’S COMPLAINT - 8

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Based on the relevant record and for the reasons discussed, the Court concludes

2 that the ALJ did not commit harmful legal error in his evaluation of the medical opinion
3 evidence from the examining doctors. The ALJ’s findings are based on substantial
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evidence in the record and the rationale is clear and convincing.
Also, as noted above, many of these opinions regarding social functioning were

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contradicted by the state reviewing psychologists, who concluded that plaintiff “could
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have limited coworker and supervisor contacts, but that he should avoid the public” (Tr.
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23 (citing Tr. 530-33, 623)). This finding may be used to support the rejection of
contradicting opinions by examining psychologists and psychiatrists, if supported by

11 substantial evidence in the record, which it is. See Van Nguyen v. Chater, 100 F.3d 1462,
12 1466 (9th Cir. 1996) (citing Lester, supra, 81 F.3d at 831).
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B. Lay Opinions
Plaintiff also contends that the ALJ erred by giving greater weight to one lay

15 opinion over another lay opinion, arguing that germane reasons were not provided for the
16 ALJ’s failure to credit fully the opinions of Ms. Dean.
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Pursuant to the relevant federal regulations, in addition to “acceptable medical
sources,” that is, sources “who can provide evidence to establish an impairment,” 20

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C.F.R. § 404.1513 (a), there are “other sources,” such as friends and family members,
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who are defined as “other non-medical sources” and “other sources” such as nurse
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practitioners, therapists and chiropractors, who are considered other medical sources, see
20 C.F.R. § 404.1513 (d). See also Turner v. Comm’r of Soc. Sec., 613 F.3d 1217, 1223-

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1 06-3p, 2006 SSR LEXIS 5 at *4-*5, 2006 WL 2329939. An ALJ may disregard opinion
2 evidence provided by both types of “other sources,” characterized by the Ninth Circuit as
3 lay testimony, “if the ALJ ‘gives reasons germane to each witness for doing so.” Turner,
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supra, 613 F.3d at 1224 (quoting Lewis v. Apfel, 236 F.3d 503, 511 (9th Cir. 2001)); see
also Van Nguyen v. Chater, 100 F.3d 1462, 1467 (9th Cir. 1996).

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i. Mr. Michael T. Werner, MSW, MHP, examining lay source
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The ALJ gave significant weight to the opinions of Mr. Werner (see Tr. 23).
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Although the ALJ appears to have erred by referring to Mr. Werner as a treating
therapist, the ALJ indicated that she was giving significant weight to his opinions due to

11 the reasoning within her written decision, including the discussion of the examining
12 sources’ opinions discussed briefly by the Court above and including the objective
13 medical evidence quoted and discussed in part by the Court subsequently in the context
14 of plaintiff’s credibility, see infra, section 2. The Court finds no harmful error.
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ii. Ms. Kimberly Dean, MA, MHP, LMFT, examining lay
source
The ALJ gave only little weight to the opinion of Ms. Dean, which was provided
less than one year subsequent to the opinion of Mr. Werner. The ALJ provided two

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reasons for failing to credit fully the opinion by Ms. Dean, including that “nothing in the
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objective record showed that the claimant’s functioning deteriorated between Mr.
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Werner’s assessment in February 2010 and January 2011,” when Ms. Dean provided her
lay opinion (see Tr. 23). The ALJ also found that nothing in the objective record

24 supported the degree of limitation opined by Ms. Dean (see id.).

ORDER ON PLAINTIFF’S COMPLAINT - 10

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The Court concludes that the ALJ did not err when resolving the conflict between

2 the lay opinions provided by Mr. Werner and Ms. Dean. The ALJ’s finding that the
3 objective medical evidence did not support any deterioration in plaintiff’s condition in the
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time period between the opinion by Mr. Werner and the time of the subsequent opinion of
greater limitations by Ms. Dean is a finding based on substantial evidence in the record.

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The ALJ is responsible for determining credibility and resolving ambiguities and
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conflicts in the medical evidence. See Reddick v. Chater, 157 F.3d 715, 722 (9th Cir.
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1998) (citing Andrews v. Shalala, 53 F.3d 1035, 1039 (9th Cir. 1995)). The Court
concludes that the ALJ provided germane rationale for failing to credit fully the opinion

11 by Ms. Dean. See Turner, supra, 613 F.3d at 1224.
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(2)

Whether or not the ALJ gave legally sufficient reasons for finding
plaintiff not fully credible.

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The ALJ’s credibility determinations “must be supported by specific, cogent

15 reasons.” Reddick v. Chater, 157 F.3d 715, 722 (9th Cir. 1998) (citing Bunnell v.
16 Sullivan, 947 F.2d 341, 343, 346-47 (9th Cir. 1991) (en banc)). In evaluating a claimant's
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credibility, the ALJ cannot rely on general findings, but “‘must specifically identify what
testimony is credible and what evidence undermines the claimant's complaints.’” Greger

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v. Barnhart, 464 F.3d 968, 972 (9th Cir. 2006) (quoting Morgan v. Comm’r of Soc. Sec.
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Admin., 169 F.3d 595, 599 (9th Cir. 1999)); Reddick, supra, 157 F.3d at 722 (citations
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omitted); Smolen v. Chater, 80 F.3d 1273, 1284 (9th Cir. 1996) (citation omitted).
Here, plaintiff argues that the ALJ improperly relied on plaintiff’s failure to take

24 psychotropic medications as a reason to discount plaintiff’s crediblity after he had tried

ORDER ON PLAINTIFF’S COMPLAINT - 11

1 approximately fifteen different psychotropic medications. Even if the ALJ’s reliance on
2 this credibility factor was erroneous, the ALJ offered other rationale for her failure to
3 credit fully plaintiff’s allegations and testimony.
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The Ninth Circuit has “recognized that harmless error principles apply in the
Social Security Act context.” Molina v. Astrue, 674 F.3d 1104, 1115 (9th Cir. 2012)

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(citing Stout v. Commissioner, Social Security Administration, 454 F.3d 1050, 1054 (9th
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Cir. 2006) (collecting cases)). The court noted that “several of our cases have held that an
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ALJ’s error was harmless where the ALJ provided one or more invalid reasons for
disbelieving a claimant’s testimony, but also provided valid reasons that were supported

11 by the record.” Id. (citations omitted). The Ninth Circuit noted that “in each case we look
12 at the record as a whole to determine [if] the error alters the outcome of the case.” Id. The
13 court also noted that the Ninth Circuit has “adhered to the general principle that an ALJ’s
14 error is harmless where it is ‘inconsequential to the ultimate nondisability
15 determination.’” Id. (quoting Carmickle v. Comm’r Soc. Sec. Admin., 533 F.3d 1155,
16 1162 (9th Cir. 2008)) (other citations omitted). The court noted the necessity to follow
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the rule that courts must review cases “‘without regard to errors’ that do not affect the
parties’ ‘substantial rights.’” Id. at 1118 (quoting Shinsheki v. Sanders, 556 U.S. 396, 407

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(2009) (quoting 28 U.S.C. § 2111) (codification of the harmless error rule)).
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Here, the ALJ noted that plaintiff’s allegation of side effects from his Interferon
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treatment prescribed for his hepatitis C is contradicted by the opinion of medical expert
Dr. Arthur Lorber, M.D., who “did not believe that there was a period during which the

24 claimant’s Interferon treatment ‘could be pinpointed as causing fatigue’ for 12

ORDER ON PLAINTIFF’S COMPLAINT - 12

1 consecutive months” (see Tr. 15; see also Tr. 86). Similarly, the Court notes Dr. Lorber’s
2 testimony that “I do not see that there are any significant side effects from his prescribed
3 medication” (Tr. 85). Contradiction with an opinion from an acceptable medical source is
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a valid factor supporting the ALJ’s failure to credit fully plaintiff’s allegations and
testimony. See Carmickle v. Commissioner, 533 F.3d 1155, 1161 (9th Cir. 2008). The

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ALJ’s finding of a contradiction here is based on substantial evidence in the record.
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The ALJ also found that many of plaintiff’s depressive and anxiety symptoms
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were “related to situational stressors, including legal issues surrounding the custody and
visitation of his daughter, the death of a family member, relationship difficulties with his

11 girlfriend, and back pain and medical issues” (Tr. 21). This is a finding based on
12 substantial evidence in the record as a whole. In addition, the fact that plaintiff’s mental
13 health symptoms were caused in part by situational factors is a legitimate reason
14 supporting the ALJ’s failure to credit fully plaintiff’s allegations regarding the limiting
15 effects of his mental health impairments. The ALJ also noted that despite the situational
16 stressors, plaintiff “was able to relax and obtain enjoyment from caring for his tropical
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fish, going to the lake to fish, working on his computer, listening to music,[] playing
guitar, [and] socializ[ing] with a friend who shared his interest in music” (Tr. 21).

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When failing to credit fully plaintiff’s testimony and allegations, the ALJ also
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relied on a finding that plaintiff’s allegations are inconsistent with the objective medical
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evidence. This finding, too, is supported by substantial evidence in the record as a whole.
The ALJ included the following discussion in her written decision:

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ORDER ON PLAINTIFF’S COMPLAINT - 13

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Regarding his lumbar symptoms, in an August 21, 2006 letter to Dr.
Zhong, Dr. Cové noted that a post operative lumbar MRI “did not show
a residual or recurrent herniation.” The claimant had a single-level disc
degeneration, but Dr. Cové believed he had “disproportionate disability,”
he was a smoker, and he was very young, so he did not recommend a
spinal fusion or further surgery, as that “often may exacerbate
preexistent somatic [fixation].” (Internal citation to Exhibit 7F/14, i.e.,
Tr. 354).
. . . .
Dr. Mohit’s April 2009 neurological evaluation of the claimant was
grossly normal. Muscle bulk, strength, and tone were normal in the
upper and lower extremities. Sensation to light touch was normal
throughout the upper and lower extremities. Deep tendon reflexes were
within normal limits throughout the upper and lower extremities. While
the March 2009 lumbar MRI showed a small area of recurrent disk (sic)
at the L5 – S1 level, it did “not appear to be significantly compressive.”
Dr. Mohit noted he had “a long discussion” with the claimant about his
treatment options and told him that “quitting smoking and weight loss
would be a significant improvement in his overall spine health.” Dr.
Mohit did not think the claimant was a candidate for revision microdiscectomy or lumbar fusion. (Internal citation to Exhibit 11 F/2, i.e., Tr.
440).

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Records from Dr. [Edward A.] Posuniak, [Jr., D.O.], show that the
claimant’s pain symptoms improved with medication and treatment
management. At a September 15, 2009 follow-up visit with Dr.
Posuniak, the claimant reported that with current treatment and weight
loss, he was “having good days and bad days” . . . . strength was 5/5
throughout the upper and lower extremities . . . . (internal citation to
Exhibit 20 F/21, i.e., Tr. 618).
On November 3, 2009, the claimant told Dr. Posuniak that his
medications seemed to help, his exercises were not painful, and his sleep
was not interrupted. He had not tripped and fallen due to ankle
weakness. Neurologic examination showed no abnormalities. (Internal
citation to Exhibit 20 F/18, i.e., Tr. 615).
On January 5, 2010, the claimant told Dr. Posuniak that he was taking
gabapentin 300 mg three times per day and this seem to be working well
. . . . Neurologic examination was normal (internal citation to Exhibit
35F/39, i.e., Tr. 862).

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ORDER ON PLAINTIFF’S COMPLAINT - 14

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On July 9, 2010, the claimant said that still got radicular symptoms, but
gabapentin 300 mg two capsules per day had brought his pain down to 5/
10. He was “quite happy with that.” He was not tripping and falling.
Neurologic examination was normal. (Internal citation to Exhibit 35F/26,
i.e., Tr. 849).
On August 10, 2010, note shows that the claimant was on Voltaren 50
mg three times a day and told Dr. Posuniak that it was “working far
better than the meloxicam7.5 mg twice per day.” He said that his nerve
pain was better with current medications. . . . . Neurologic
examination was normal. (Internal citation to Exhibit 35F/22, i.e., Tr.
845).
On September 7, 2010, the claimant told Dr. Posuniak that his
medications and exercise were helpful and he was not complaining of
any significant back pain. He also said that hot baths and showers
seemed to help. Neurologic examination was normal. (Internal citation to
Exhibit 35F/19, i.e., Tr. 842).
. . . . .
December 13, 2010 in January 10, 2011 treatment notes show that opioid
management was “working quite well”: the claimant was medically
stable without any neurologic deficit. (Internal citation to Exhibit 35F/7,
10, i.e., Tr. 830, 833).
Additionally, at the hearing, the claimant admitted that when he took
oxycodone and morphine and smoke marijuana, it helped his pain “a
lot.”

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Based on the relevant record, the Court concludes that the ALJ’s discussion of the
objective medical evidence is supported by substantial evidence in the record as a whole,

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as the record substantiates her discussion and contains multiple indications of normal
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neurological examinations with normal strength and normal reflexes demonstrated by
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plaintiff (see Tr. 354, 440, 615, 618, 830, 833, 842, 845, 849, 862). For example, plaintiff
was assessed as “neurologically intact” on December 13, 2010 by Dr. Posuniak; and, on

24 September 7, 2010, Dr. Posuniak indicated that at that time, plaintiff was “not now

ORDER ON PLAINTIFF’S COMPLAINT - 15

1 complaining about any significant back pain” (see Tr. 833, 842). On January 10, 2011,
2 Dr. Posuniak observed that plaintiff’s “mood and affect are appropriate [and] cognition is
3 normal” (Tr. 830).
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The ALJ relies not only on the objective medical evidence, but also relies on the
medical opinion evidence and inconsistencies between plaintiff’s allegations of disabling

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pain and plaintiff’s report to his doctor that he did not have any significant back pain. By
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doing so, the ALJ has provided clear and convincing rationale for her determination not
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to credit fully plaintiff’s allegations and testimony.
Based on the record as a whole and for the reasons stated, the Court concludes that

11 the ALJ did not commit harmful legal error during the evaluation of plaintiff’s allegations
12 and credibility.

CONCLUSION

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Based on the reasons stated herein and the relevant record, the Court ORDERS

15 that this matter be AFFIRMED pursuant to sentence four of 42 U.S.C. § 405(g).
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JUDGMENT should be for defendant and the case should be closed.

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Dated this 19th day of June, 2014.

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A

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J. Richard Creatura
United States Magistrate Judge

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23
24

ORDER ON PLAINTIFF’S COMPLAINT - 16