Daquion M Potter v. Michael J Astrue, No. 2:2008cv01684 - Document 17 (C.D. Cal. 2009)
Court Description: MEMORANDUM AND OPINION by Magistrate Judge Jacqueline Chooljian. The decision of the Commissioner of Social Security is affirmed. See document for details. (hr)
Download PDF
<![CDATA[
1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 DAQUION M. POTTER, 12 Plaintiff, 13 14 15 16 17 v. MICHAEL J. ASTRUE, Commissioner of Social Security, Defendant. _________________________ ) Case No. CV 08-1684 JC ) ) ) MEMORANDUM OPINION ) ) ) ) ) ) ) ) 18 19 I. On March 14, 2008, plaintiff Daquion M. Scotty Potter ( plaintiff ) filed 20 21 22 23 a Complaint seeking review of the Commissioner of Social Security s denial of plaintiff s application for benefits. The parties have filed a consent to proceed before a United States Magistrate Judge. This matter is before the Court on the parties cross motions for summary 24 25 26 27 28 SUMMARY judgment, respectively ( Plaintiff s Motion ) and ( Defendant s Motion ). The Court has taken both motions under submission without oral argument. See Fed. R. Civ. P. 78; L.R. 7-15; March 19, 2008 Case Management Order, ¶ 5. /// 1 1 Based on the record as a whole and the applicable law, the decision of the 2 Commissioner is AFFIRMED. The findings of the Administrative Law Judge 3 ( ALJ ) regarding plaintiff s credibility and the medical evidence are supported by 4 substantial evidence and are free from material error.1 5 II. BACKGROUND AND SUMMARY OF ADMINISTRATIVE 6 DECISION 7 On March 16, 2008, plaintiff filed an application for Supplemental Security 8 Income benefits. (Administrative Record ( AR ) 74-76). Plaintiff asserted that he 9 became disabled on September 1, 1985, due to his HIV-positive status, Hepatitis C 10 and asthma. (AR 28). 11 On May 2, 2006, the ALJ examined the medical record and heard testimony 12 from plaintiff (who was represented by counsel), plaintiff s legal guardian, and a 13 vocational expert. (AR 380-408). 14 On May 26, 2006, the ALJ determined that plaintiff was not disabled 15 through the date of the decision. (AR 28-34). Specifically, the ALJ found: 16 (1) plaintiff s HIV positive status was a severe impairment (AR 33); (2) plaintiff s 17 impairment did not meet or medically equal one of the listed impairments (AR 33); 18 (3) plaintiff retained the residual functional capacity to lift and carry 20 pounds 19 occasionally and 10 pounds frequently, stand/walk 4 hours in an 8 hour workday 20 and sit 6 hours in an 8 hour workday (AR 33); (4) plaintiff had no past relevant 21 work (AR 33); (5) plaintiff could perform a full range of sedentary work, thus 22 Medical-Vocational Rule 201.27 directed a finding of not disabled (AR 33); and 23 /// 24 /// 25 26 1 The harmless error rule applies to the review of administrative decisions regarding 27 disability. See Batson v. Commissioner of Social Security Administration, 359 F.3d 1190, 1196 28 (9th Cir. 2004) (applying harmless error standard); see also Stout v. Commissioner, Social Security Administration, 454 F.3d 1050, 1054-56 (9th Cir. 2006) (discussing contours of application of harmless error standard in social security cases). 2 1 (6) plaintiff s allegations regarding his limitations were not fully credible. (AR 2 32). 3 The Appeals Council denied plaintiff s application for review. (AR 4-6). 4 III. APPLICABLE LEGAL STANDARDS 5 A. 6 To qualify for disability benefits, a claimant must show that he is unable to Sequential Evaluation Process 7 engage in any substantial gainful activity by reason of a medically determinable 8 physical or mental impairment which can be expected to result in death or which 9 has lasted or can be expected to last for a continuous period of at least twelve 10 months. Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005) (citing 42 U.S.C. 11 § 423(d)(1)(A)). The impairment must render the claimant incapable of 12 performing the work he previously performed and incapable of performing any 13 other substantial gainful employment that exists in the national economy. Tackett 14 v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999) (citing 42 U.S.C. § 423(d)(2)(A)). 15 In assessing whether a claimant is disabled, an ALJ is to follow a five-step 16 sequential evaluation process: 17 (1) 18 19 Is the claimant presently engaged in substantial gainful activity? If so, the claimant is not disabled. If not, proceed to step two. (2) Is the claimant s alleged impairment sufficiently severe to limit 20 his ability to work? If not, the claimant is not disabled. If so, 21 proceed to step three. 22 (3) Does the claimant s impairment, or combination of 23 impairments, meet or equal an impairment listed in 20 C.F.R. 24 Part 404, Subpart P, Appendix 1? If so, the claimant is 25 disabled. If not, proceed to step four. 26 /// 27 /// 28 /// 3 1 (4) Does the claimant possess the residual functional capacity to 2 perform his past relevant work?2 If so, the claimant is not 3 disabled. If not, proceed to step five. 4 (5) Does the claimant s residual functional capacity, when 5 considered with the claimant s age, education, and work 6 experience, allow her to adjust to other work that exists in 7 significant numbers in the national economy? If so, the 8 claimant is not disabled. If not, the claimant is disabled. 9 Stout v. Commissioner, Social Security Administration, 454 F.3d 1050, 1052 (9th 10 Cir. 2006) (citing 20 C.F.R. §§ 404.1520, 416.920). 11 The claimant has the burden of proof at steps one through four, and the 12 Commissioner has the burden of proof at step five. Bustamante v. Massanari, 262 13 F.3d 949, 953-54 (9th Cir. 2001) (citing Tackett); see also Burch, 400 F.3d at 679 14 (claimant carries initial burden of proving disability). 15 B. 16 Pursuant to 42 U.S.C. section 405(g), a court may set aside a denial of Standard of Review 17 benefits only if it is not supported by substantial evidence or if it is based on legal 18 error. Robbins v. Social Security Administration, 466 F.3d 880, 882 (9th Cir. 19 2006) (citing Flaten v. Secretary of Health & Human Services, 44 F.3d 1453, 1457 20 (9th Cir. 1995)). Substantial evidence is such relevant evidence as a reasonable 21 mind might accept as adequate to support a conclusion. Richardson v. Perales, 22 402 U.S. 389, 401 (1971) (citations and quotations omitted). It is more than a 23 mere scintilla but less than a preponderance. Robbins, 466 F.3d at 882 (citing 24 Young v. Sullivan, 911 F.2d 180, 183 (9th Cir. 1990)). 25 To determine whether substantial evidence supports a finding, a court must 26 consider the record as a whole, weighing both evidence that supports and 27 28 2 Residual functional capacity is what [one] can still do despite [ones] limitations and represents an assessment based upon all of the relevant evidence. 20 C.F.R. § 416.945(a). 4 1 evidence that detracts from the [Commissioner s] conclusion. Aukland v. 2 Massanari, 257 F.3d 1033, 1035 (9th Cir. 2001) (quoting Penny v. Sullivan, 2 F.3d 3 953, 956 (9th Cir. 1993)). If the evidence can reasonably support either affirming 4 or reversing the ALJ s conclusion, a court may not substitute its judgment for that 5 of the ALJ. Robbins, 466 F.3d at 882 (citing Flaten, 44 F.3d at 1457). 6 IV. PERTINENT FACTS 7 A. 8 An HIV questionnaire dated May 24, 2004, reflects the following: Plaintiff Plaintiff s Statements and Testimony 9 (i) was first diagnosed with HIV when he was 8 months old (DOB 8/14/85) (AR 10 141); (ii) experienced diarrhea once a week when he took certain HIV medications 11 (AR 141, 143); (iii) did not experience weight loss, incontinence, night sweats or 12 fevers (AR 141-42); (iv) had no trouble with sleeping, grooming, or household 13 chores (AR 142); (v) could walk two to three miles without resting (AR 142); 14 (vi) went out of his home every weekend (AR 142); (vii) had no mental 15 problems (AR 143); (viii) experienced asthma after running a lot (AR 143); and 16 (ix) had not lost his job due to his impairment, but was tired more when working 17 (AR 143). 18 A disability report dated October 20, 2004, reflects that plaintiff was 19 receiving medical care for HIV infection which included several medications that 20 caused nausea and fatigue. (AR 105, 107, 108). 21 An HIV questionnaire dated January 4, 2005, reflects the same information 22 as plaintiff s May 24, 2004 questionnaire, except plaintiff also stated that he 23 experienced (i) fatigue due to work and school activities that required him to take 24 two naps per day, for one to two hours a piece; and (ii) marked side effects from 25 his medication including nausea, vomiting, abdominal pain, and weight loss. (AR 26 148-151). 27 On May 2, 2006, at the administrative hearing, plaintiff testified regarding 28 his symptoms and limitations. (AR 383-98). He stated, inter alia, that he: (i) was 5 1 attending Los Angeles Harbor College, had earned twenty-seven credits with a 2 GPA of 1.8, had registered for three classes, but dropped two, and expected to 3 drop the third because of his condition (AR 383, 389-90); (ii) was also working at 4 Blockbuster Video as a cashier, but his doctor limited him to a maximum of 5 seventeen hours per week (AR 384, 397-98); (iii) had previously worked more 6 hours at Blockbuster Video, depending on the store s scheduling, or his own 7 school conflicts or health limitations (AR 385-86); (iv) experienced side effects 8 from his medication included back pain, nausea, fatigue/tiredness, and 9 infrequently, headaches (AR 386); (v) experienced nausea two to three times a 10 week for four to five hours at a time, and suffered diminished concentration as a 11 result (AR 386-87); (vi) took four to five hour naps daily due to the fatigue (AR 12 387); (vii) experienced headaches once or twice a week that lasted about half 13 the day (AR 389); (viii) worked varying shifts, but felt run down [and] tired 14 when he worked over seven hours, or had work and school in the same day (AR 15 388); (ix) was positive for hepatitis C but could not be treated simultaneously for 16 his HIV and Hepatitis C (AR 390-91); (x) had a stable liver condition, a normal T17 cell count for a person with HIV, and an undetectable viral load (AR 391-92); 18 (xi) missed work once or twice a month (AR 392-93); (xii) experienced more 19 severe problems, particularly due to fatigue from school and work and back 20 problems due to medication (AR 394); and (xiii) was sometimes administered his 21 medication at the hospital (AR 394-95). 22 B. 23 Dr. Carol D. Berkowitz of Harbor-UCLA Medical Center treated plaintiff Statements of Dr. Carol D. Berkowitz 24 since 1986. (AR 373). Treatment notes from Harbor-UCLA Medical Center 25 between August 23, 2004 to March 20, 2006 reveal, inter alia, that plaintiff 26 suffered primarily from HIV and Hepatitis C infections, and was treated mostly 27 with a combination of several HIV medications. (AR 154-74, 184-352). Plaintiff 28 reported side effects from the medication (e.g., nausea, diarrhea, and fatigue) 6 1 which were resolved with varying degrees of success. (See, e.g., AR 154, 184). 2 His weight remained stable overall. (AR 184-202). Plaintiff was generally doing 3 well; he had no acute complaints and suffered from no significant health problems 4 apart from the HIV and Hepatitis C. (AR 184-202). 5 In an undated fatigue restriction questionnaire, Dr. Berkowitz stated that 6 plaintiff was slightly limited in his attention span and ability to be punctual, was 7 moderately limited in his ability to complete a normal work day without 8 interruptions from fatigue-based symptoms, but had no other limitations. (AR 9 373-75). The prognosis at that time was guarded. (AR 374). 10 In a May 25, 2004 HIV questionnaire physician statement, Dr. Berkowitz 11 opined that plaintiff (i) was fully functional with no current limitations ; 12 (ii) did not appear chronically ill or visibly fatigued; (iii) was not limited in lifting 13 and carrying; and (iv) could stand and/or walk eight hours, and sit for an unlimited 14 period during a 40 hour workweek with normal breaks. (AR 145-46). 15 In a January 4, 2005 HIV questionnaire physician statement, Dr. Berkowitz 16 opined that plaintiff (i) did not appear chronically ill or visibly fatigued; (ii) was 17 [a]ble to do [a] full range of activities with limitation on duration due to his 18 medications; (iii) could stand and/or walk two to four hours, and sit for an 19 unlimited period during a 40 hour workweek with normal breaks; and 20 (v) experienced side effects from protease inhibitors including weakness, dizziness 21 and vomiting. (AR 152-53). 22 On June 9, 2005, in a handwritten letter directed To Whom it May 23 Concern, Dr. Berkowitz requested that plaintiff s work schedule be curtailed at 24 the present time due to recent exacerbations in [plaintiff s] medical condition 25 including adverse reactions to his medications, and the need for frequent 26 medical visits and monitoring . . . . (AR 111). 27 On May 5, 2006, Dr. Berkowitz wrote a letter to the Los Angeles Harbor 28 College Admissions office, urging the school to reinstate plaintiff as a student, and 7 1 explaining plaintiff s challenges due to his medical condition. (AR 127). 2 In a May 5, 2006 physical residual functional capacity questionnaire, Dr. 3 Berkowitz opined that plaintiff (i) experienced multiple side effects from 4 multiple HIV drugs including fatigue, anemia and elevated liver enzymes (AR 5 353, 356, 357-72); (ii) was presently pain free (AR 353); (iii) was very 6 stressed due to his health concerns (fatigue), work and school (AR 354); 7 (iv) experienced diminished attention and concentration frequently due to his 8 symptoms (AR 354); (v) was capable of only low stress work, because he would 9 become fatigued with either physical or emotional stress (AR 354); (vi) could 10 not sit or stand for more than one hour without adjusting his position (AR 354-55); 11 (vii) could not sit, stand or walk more than two hours in an eight-hour workday 12 with normal breaks (AR 355); (viii) did not require additional, unscheduled breaks 13 during an eight-hour work day (AR 355); (ix) could lift and/or carry 20 pounds 14 occasionally, 10 pounds frequently, but never 50 pounds (AR 355); (x) could 15 twist, stoop and bend frequently and climb ladders or stairs occasionally, but had 16 no limitations on repetitive reaching, handling or fingering (AR 355-56); 17 (xi) would expect to be absent from work about four days per month as a result of 18 his impairments (AR 356). 19 In a letter submitted to the Appeal s Council and dated August 1, 2006, Dr. 20 Berkowitz stated: (i) plaintiff s condition required monthly hospital visits to see 21 the doctors and to monitor his viral load and immune competency; (ii) plaintiff 22 often ha[d] experienced adverse reactions to his multiple medications (e.g., 23 nausea, vomiting, and fatigue); and (iii) the medication side effects ma[d]e 24 plaintiff unable to work in a full-time job. (AR 376). 25 C. 26 On January 13, 2005, a non-examining, consulting physician completed a Statement of Medical Consultant 27 residual functional capacity assessment which reflects that plaintiff could (i) lift 28 and/or carry 20 pounds occasionally, and 10 pounds frequently; (ii) stand and/or 8 1 walk four hours in an eight-hour workday; and (iii) sit six hours in an eight-hour 2 workday. (AR 177). The consulting physician imposed no other limitations on 3 plaintiff s abilities. (AR 175-83). 4 D. 5 In his May 26, 2006 decision, the ALJ thoroughly summarized the medical The ALJ s Decision 6 opinions and evaluations regarding plaintiff s physical impairments, statements 7 from plaintiff and his legal guardian, and testimony of plaintiff and the vocational 8 expert at the administrative hearing. (AR 28-34). The ALJ determined that 9 plaintiff s HIV-positive status was a severe impairment, but his Hepatitis C and 10 asthma were not. (AR 32, 33). The ALJ also noted that plaintiff s subjective 11 complaints included, inter alia, back pain, nausea, inability to concentrate, fatigue 12 and repeated headaches. (AR 29). 13 The ALJ rejected the opinions expressed in Dr. Berkowitz s May 5, 2006, 14 physical residual functional capacity questionnaire ( May 5 Opinions ) for several 15 reasons. (AR 31 (citing AR 353-56)). 16 First, the ALJ rejected Dr. Berkowitz s May 5 Opinions because they were 17 not supported by the treatment records. (AR 31). Specifically, the ALJ found: 18 Dr. Berkowitz stated in the May 2004 questionnaire that [plaintiff] 19 [was] fully functional with no current limitations. Approximately 8 20 months later, in the January 2005 questionnaire, Dr. Berkowitz 21 changed the residual functional capacity assessment to lift and carry 22 20 pounds occasionally and 10 pounds frequently, stand/walk 2-4 23 hours in an 8-hour workday and sit unrestricted. A little over [a] year 24 later in the May 2006 questionnaire, she claim[ed] [plaintiff] [was] 25 unable to perform sedentary work on a regular and continuous basis. 26 However, the treatment records (Exhibits 6F and 9F [AR 154-74, 27 184-352]) do not show any significant deterioration in [plaintiff s] 28 condition between the May 2004 and May 2006 questionnaires, 9 1 certainly not the extent that would justify Dr. Berkowitz s 2 assessments in January 2005 and May 2006. The treatment records 3 do show medication side effects; however, those side effects were 4 quickly resolved with adjustment of the medications and did not 5 result in any functional limitations lasting 12 months. [Plaintiff] 6 generally had no acute complaints and reported that he was doing 7 well. There is no evidence of opportunistic infections. [Plaintiff s] 8 weight remained stable overall. 9 (AR 31). 10 Second, the ALJ noted that the May 5 Opinions were inconsistent with 11 plaintiff s testimony regarding his activities of daily living leading up to the 12 administrative hearing. Specifically, the ALJ found the following: 13 Moreover, Dr. Berkowitz even wrote to the claimant s college on 14 May 5, 2006 and urged the college to reinstate the claimant (Exhibit 15 4E [AR 127]). Dr. Berkowitz also wrote a letter dated June 9, 2005, 16 requesting that his work schedule be curtailed, and that he [could not] 17 work 17 hours per week (Exhibit 2E [AR 111]). The claimant 18 currently works 17 hours per week based on Dr. Berkowitz s order, 19 but he also attends college. It is reasonable to assume that if the 20 claimant is unable to perform even sedentary work on a regular and 21 continuous basis, as Dr. Berkowitz contends in the May 2006 22 questionnaire, she would have taken the claimant off school and 23 work. The claimant s ability to work 17 hours a week plus attend 24 college suggests that he has the capacity to work more than the 17 25 hours per week prescribed by Dr. Berkowitz. 26 (AR 31-32) (emphasis in original). 27 Third, the ALJ pointed to the absence of documentation for plaintiff s 28 claims that he called in sick or left work early each month and Dr. Berkowitz s 10 1 opinion that plaintiff would miss work about four days a month due to his 2 impairments, especially considering that plaintiff continued to work and had not 3 lost his job due to the alleged absences. (AR 32). 4 The ALJ accepted the medical consultant s residual functional capacity 5 assessment. (AR 32). He noted that the medical consultant s opinions were 6 essentially consistent with Dr. Berkowitz s January 4, 2005 assessment except that 7 Dr. Berkowitz imposed a standing/walking limitation of two to four hours in an 8 eight-hour workday. (AR 32). The ALJ found the treatment records . . . more 9 consistent with the upper range of Dr. Berkowitz s standing/walking limitation . . . 10 [of] standing/walking 4 hours total in an 8-hour workday. (AR 32). He expressly 11 pointed to the side effects of plaintiff s medications that cumulatively could 12 reasonably limit [plaintiff] to light work with standing/walking 4 hours. (AR 32). 13 The ALJ found plaintiff s allegations regarding the severity of his 14 symptoms and related limitations not fully credible. (AR 32). First, as noted in 15 connection with his analysis of Dr. Berkowitz s May 5 Opinions, the ALJ found 16 that plaintiff s subjective symptoms and limitations were inconsistent with the 17 level of treatment the medical records showed he had received. (AR 32). Second, 18 the ALJ pointed out that the evidence demonstrated that plaintiff was able to both 19 work part time ( earning near substantial gainful activity income ) and attend 20 college indicat[ing] he [was] not as limited as he claim[ed]. (AR 32). 21 V. DISCUSSION 22 A. 23 To the extent plaintiff contends that the ALJ improperly rejected Dr. The ALJ Properly Evaluated the Medical Opinion Evidence 24 Berkowitz s May 5 Opinions (Plaintiff s Motion at 8 n.3), this Court concludes 25 that the ALJ did not materially err. 26 27 1. Pertinent Law In Social Security cases, courts employ a hierarchy of deference to medical 28 opinions depending on the nature of the services provided. Courts distinguish 11 1 among the opinions of three types of physicians: those who treat the claimant 2 ( treating physicians ) and two categories of nontreating physicians, namely 3 those who examine but do not treat the claimant ( examining physicians ) and 4 those who neither examine nor treat the claimant ( nonexamining physicians ). 5 Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1996) (footnote reference omitted). A 6 treating physician s opinion is entitled to more weight than an examining 7 physician s opinion, and an examining physician s opinion is entitled to more 8 weight than a nonexamining physician s opinion.3 See id. In general, the opinion 9 of a treating physician is entitled to greater weight than that of a non-treating 10 physician because the treating physician is employed to cure and has a greater 11 opportunity to know and observe the patient as an individual. Morgan v. 12 Commissioner of Social Security Administration, 169 F.3d 595, 600 (9th Cir. 13 1999) (citing Sprague v. Bowen, 812 F.2d 1226, 1230 (9th Cir. 1987)). 14 The treating physician s opinion is not, however, necessarily conclusive as 15 to either a physical condition or the ultimate issue of disability. Magallanes v. 16 Bowen, 881 F.2d 747, 751 (9th Cir. 1989) (citing Rodriguez v. Bowen, 876 F.2d 17 759, 761-62 & n.7 (9th Cir. 1989)). Where a treating physician s opinion is not 18 contradicted by another doctor, it may be rejected only for clear and convincing 19 reasons. Orn v. Astrue, 495 F.3d 625, 632 (9th Cir. 2007) (citation and internal 20 quotations omitted). The ALJ can reject the opinion of a treating physician in 21 favor of another conflicting medical opinion, if the ALJ makes findings setting 22 forth specific, legitimate reasons for doing so that are based on substantial 23 evidence in the record. Id. (citation and internal quotations omitted); Thomas v. 24 Barnhart, 278 F.3d 947, 957 (9th Cir. 2002) (ALJ can meet burden by setting out 25 detailed and thorough summary of facts and conflicting clinical evidence, stating 26 27 28 3 Cf. Le v. Astrue, 529 F.3d 1200, 1201-02 (9th Cir. 2008) (not necessary or practical to draw bright line distinguishing treating physicians from non-treating physicians; relationship is better viewed as series of points on a continuum reflecting the duration of the treatment relationship and frequency and nature of the contact) (citation omitted). 12 1 his interpretation thereof, and making findings) (citations and quotations omitted); 2 Magallanes, 881 F.2d at 751, 755 (same; ALJ need not recite magic words to 3 reject a treating physician opinion court may draw specific and legitimate 4 inferences from ALJ s opinion). The ALJ must do more than offer his 5 conclusions. Embrey v. Bowen, 849 F.2d 418, 421-22 (9th Cir. 1988). He must 6 set forth his own interpretations and explain why they, rather than the 7 [physician s], are correct. Id. Broad and vague reasons for rejecting the 8 treating physician s opinion do not suffice. McAllister v. Sullivan, 888 F.2d 599, 9 602 (9th Cir. 1989). 10 Although the treating physician s opinion is generally given more weight, a 11 nontreating physician s opinion may support rejecting the conflicting opinion of a 12 claimant s treating physician. Andrews v. Shalala, 53 F.3d 1035, 1041 (9th Cir. 13 1995). If a nontreating physician s opinion is based on independent clinical 14 findings that differ from the findings of the treating physician, the nontreating 15 physician s opinion may be considered substantial evidence. Id. at 1041 (citing 16 Magallanes, 881 F.2d at 751). If that is the case, then the ALJ has complete 17 authority to resolve the conflict.4 On the other hand, if the nontreating physician s 18 opinion contradicts the treating physician s opinion but is not based on 19 independent clinical findings, or is based on the clinical findings also considered 20 by the treating physician, the ALJ can only reject the treating physician s opinion 21 by giving specific, legitimate reasons based on substantial evidence in the record. 22 Id. (citing Magallanes, 881 F.2d at 755); see Magallanes, 881 F.2d at 751-52 23 (Substantial evidence that can support the conflicting opinion of a nonexamining 24 medical advisor can include: laboratory test results, contrary reports from 25 examining physicians, and testimony from the plaintiff that is inconsistent with the 26 treating physician s opinions.). 27 28 4 Where there is conflicting medical evidence, the Secretary must determine credibility and resolve the conflict. Thomas, 278 F.3d at 956-57. 13 1 2 2. Analysis The ALJ rejected Dr. Berkowitz s May 5 Opinions for clear, convincing, 3 specific and legitimate reasons supported by substantial evidence. 4 First, an ALJ may properly rejected a medical opinion that conflicts with the 5 physician s own treatment notes. Connett v. Barnhart, 340 F.3d 871, 875 (9th Cir. 6 2003) (treating physician s opinion properly rejected where treating physician s 7 treatment notes provide no basis for the functional restrictions he opined should 8 be imposed on [the claimant] ); see Tonapetyan v. Halter, 242 F.3d 1144, 1149 9 (9th Cir. 2001) (ALJ need not accept treating physician s opinions that are 10 conclusory and brief, or unsupported by clinical findings, or physician s own 11 treatment notes). Here, the ALJ noted that the relevant treatment records show 12 plaintiff suffered no acute ailments other than HIV and Hepatitis C, that plaintiff s 13 weight remained stable, and he consistently reported he was doing well. (AR 31). 14 The ALJ also noted that plaintiff did not experience weight loss, incontinence, 15 night sweats, or fevers, and had no trouble with sleeping. (AR 30). In addition, 16 the records show that any negative medication side effects were generally resolved 17 with adjustments to plaintiff s medications. Plaintiff also failed to demonstrate 18 that the side effects resulted in any functional limitations lasting 12 months or 19 longer. The ALJ also supported his finding based on the conflicting opinion of the 20 medical consultant, to the extent it corroborated Dr. Berkowitz s earlier findings. 21 Magallanes, 881 F.2d at 752 (ALJ may rely, in part, on nonexamining physician s 22 testimony to reject the opinions of treating physicians). 23 Second, an ALJ may properly reject a medical opinion if it is inconsistent 24 with a plaintiff s demonstrated abilities. Magallanes, 881 F.2d at 751-52. Here, 25 the ALJ explained that Dr. Berkowitz s opinions regarding plaintiff s functional 26 limitations was inconsistent with plaintiff s demonstrated abilities to work and 27 attend school at the same time. (AR 31-32). The ALJ reasonably concluded that a 28 person who was unable to perform even sedentary work would not have been able 14 1 to sustain the schedule maintained by plaintiff. (AR 31-32). The ALJ s finding 2 that Dr. Berkowitz s opinions were inconsistent with plaintiff s demonstrated 3 abilities was supported by substantial evidence. 4 Finally, an ALJ may properly reject a treating physician s opinion that is 5 unsupported by the record as a whole. Batson, 359 F.3d at 1195 (ALJ may 6 discredit treating physicians opinions that are conclusory, brief, and unsupported 7 by record as a whole or by objective medical findings). As the ALJ correctly 8 noted, there is no evidence in the record documenting that plaintiff has been 9 consistently absent from work, or that plaintiff s impairment would particularly 10 cause such absences. As the ALJ also noted, plaintiff continued to attend school 11 and work up until the hearing, and had not been terminated from his job due to his 12 condition. (AR 32). 13 14 15 B. The ALJ Properly Evaluated Plaintiff s Credibility 1. Pertinent Law Questions of credibility and resolutions of conflicts in the testimony are 16 functions solely of the Commissioner. Greger v. Barnhart, 464 F.3d 968, 972 (9th 17 Cir. 2006). If the ALJ s interpretation of the claimant s testimony is reasonable 18 and is supported by substantial evidence, it is not the court s role to 19 second-guess it. Rollins v. Massanari, 261 F.3d 853, 857 (9th Cir. 2001). 20 An ALJ is not required to believe every allegation of disabling pain or other 21 non-exertional impairment. Orn, 495 F.3d at 635 (citing Fair v. Bowen, 885 F.2d 22 597, 603 (9th Cir. 1989)). If the record establishes the existence of a medically 23 determinable impairment that could reasonably give rise to symptoms assertedly 24 suffered by a claimant, an ALJ must make a finding as to the credibility of the 25 claimant s statements about the symptoms and their functional effect. Robbins, 26 466 F.3d 880 at 883 (citations omitted). Where the record includes objective 27 medical evidence that the claimant suffers from an impairment that could 28 reasonably produce the symptoms of which the claimant complains, an adverse 15 1 credibility finding must be based on clear and convincing reasons. Carmickle v. 2 Commissioner, Social Security Administration, 533 F.3d 1155, 1160 (9th Cir. 3 2008) (citations omitted). The only time this standard does not apply is when 4 there is affirmative evidence of malingering. Id. The ALJ s credibility findings 5 must be sufficiently specific to allow a reviewing court to conclude the ALJ 6 rejected the claimant s testimony on permissible grounds and did not arbitrarily 7 discredit the claimant s testimony. Moisa v. Barnhart, 367 F.3d 882, 885 (9th 8 Cir. 2004). 9 To find the claimant not credible, an ALJ must rely either on reasons 10 unrelated to the subjective testimony (e.g., reputation for dishonesty), internal 11 contradictions in the testimony, or conflicts between the claimant s testimony and 12 the claimant s conduct (e.g., daily activities, work record, unexplained or 13 inadequately explained failure to seek treatment or to follow prescribed course of 14 treatment). Orn, 495 F.3d at 636; Robbins, 466 F.3d at 883; Burch, 400 F.3d at 15 680-81; SSR 96-7p. Although an ALJ may not disregard such claimant s 16 testimony solely because it is not substantiated affirmatively by objective medical 17 evidence, the lack of medical evidence is a factor that the ALJ can consider in his 18 credibility assessment. Burch, 400 F.3d at 681. 19 20 2. Analysis The ALJ presented clear and convincing reasons for discounting plaintiff s 21 testimony, and thus did not err in his assessment of plaintiff s credibility. 22 First, in assessing credibility, the ALJ may properly rely on plaintiff s 23 unexplained failure to request treatment consistent with the alleged severity of his 24 symptoms. Bunnell v. Sullivan, 947 F.2d 341, 346 (9th Cir.1991) (en banc); 25 Meanel v. Apfel, 172 F.3d 1111, 1114 (9th Cir. 1999); see Tidwell v. Apfel, 161 26 F.3d 599, 602 (9th Cir. 1999) (lack of treatment and reliance upon nonprescription 27 pain medication clear and convincing reasons for partially rejecting [claimant s] 28 pain testimony ). Here, the ALJ reasonably inferred that if plaintiff s fatigue had 16 1 been more severe, plaintiff would have been prescribed, or at a minimum sought 2 out, more restrictive limits on his work and school schedule. Cf. Meanel v. Apfel, 3 172 F.3d 1111, 1114 (9th Cir. 1999) (ALJ properly rejected plaintiff s claim of 4 severe pain as inconsistent with the minimal, conservative treatment she 5 received); Chavez v. Department of Health and Human Services, 103 F.3d 849, 6 853 (9th Cir. 1996) (failure to seek further treatment for back injury among 7 specific findings justifying rejection of claimant s excess pain testimony). It was 8 equally reasonable for the ALJ to discredit plaintiff s allegations of disabling 9 fatigue because plaintiff did not require hospitalization or seek other more extreme 10 treatment measures.5 Cf. Muniz v. AMEC Construction Management, 2009 WL 11 866843 at *5 (C.D. Cal. March 30, 2009) (fatigue, although common in HIV12 infected adults, ranges in severity and etiology. A mere report of [fatigue] 13 therefore does not inform the Court whether the[] symptoms are so disabling as to 14 make him unable to perform all the essential duties of any occupation for which 15 [he is] or may reasonably become qualified . . . . ). 16 Second, as discussed in connection with plaintiff s treating physician, the 17 ALJ properly discredited plaintiff s allegations of disabling fatigue as inconsistent 18 with the plaintiff s daily activities. See Thomas, 278 F.3d at 958-59 19 (inconsistency between the claimant s testimony and the claimant s conduct 20 supported rejection of the claimant s credibility); Verduzco v. Apfel,188 F.3d 21 1087, 1090 (9th Cir. 1999) (inconsistencies between claimant s testimony and 22 actions cited as a clear and convincing reason for rejecting the claimant s 23 testimony). 24 25 5 Plaintiff contends that absence of opportunistic infections, and lack of hospitalization, 26 or emergency room treatment for HIV-related symptoms are not legitimate reasons for 27 discrediting plaintiff s testimony. (Plaintiff s Motion at 9). Nonetheless, the ALJ s interpretation of the medical evidence and claimant s testimony was reasonable and supported by 28 substantial evidence, thus the Court will not second-guess the ALJ s findings. Rollins, 261 F.3d at 857; Andrews, 53 F.3d at 1041. 17 1 Third, an ALJ may discredit a plaintiff s subjective symptom testimony due, 2 in part, to the absence of supporting objective medical evidence. Burch, 400 F.3d 3 at 681; Rollins, 261 F.3d at 857 ( While subjective pain testimony cannot be 4 rejected on the sole ground that it is not fully corroborated by objective medical 5 evidence, the medical evidence is still a relevant factor in determining the severity 6 of the claimant s pain and its disabling effects. ) (citation omitted). Here, the ALJ 7 reasonably concluded that plaintiff s fatigue was not as profoundly disabling 8 because plaintiff had no severe conditions commonly experienced by people living 9 with HIV (e.g., opportunistic infections, weight loss, incontinence, night sweats, 10 fevers, sleeplessness, other acute complaints ). 11 To the extent plaintiff suggests that the ALJ failed completely to consider 12 plaintiff s limitations due to medication side effects, that assertion is belied by the 13 record. (Plaintiff s Motion at 9-11). The ALJ stated that medication side effects 14 limited plaintiff to standing/walking no more than four hours. (AR 32). The ALJ 15 determined that this limitation significantly eroded plaintiff s ability to perform 16 light work. (AR 33). As a result, the ALJ found plaintiff able to perform only 17 sedentary work. (AR 33). 18 As the ALJ made specific findings stating clear and convincing reasons 19 supported by substantial evidence for disbelieving plaintiff, the ALJ s credibility 20 determination was not erroneous. 21 VI. CONCLUSION 22 For the foregoing reasons, the decision of the Commissioner of Social 23 Security is affirmed. 24 LET JUDGMENT BE ENTERED ACCORDINGLY. 25 DATED: August 27, 2009 26 27 28 ______________/s/___________________ Honorable Jacqueline Chooljian UNITED STATES MAGISTRATE JUDGE 18
]]>
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You
should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google
Privacy Policy and
Terms of Service apply.
