Clayton Craine v. Michael J. Astrue, No. 2:2009cv08851 - Document 17 (C.D. Cal. 2011)
Court Description: MEMORANDUM OPINION AND ORDER by Magistrate Judge Paul L. Abrams. IT IS HEREBY ORDERED that: (1) plaintiff's request for remand is granted; (2) the decision of the Commissioner is reversed; and (3) this action is remanded to defendant for furthe r proceedings consistent with this Memorandum Opinion. THIS MEMORANDUM OPINION AND ORDER IS NOT INTENDED FOR PUBLICATION, NOR IS IT INTENDED TO BE INCLUDED IN OR SUBMITTED TO ANY ONLINE SERVICE SUCH AS WESTLAW OR LEXIS. **See Order for details.** (ch)
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Clayton Craine v. Michael J. Astrue Doc. 17 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 WESTERN DIVISION 11 12 CLAYTON CRAINE, 13 Plaintiff, 14 15 v. 16 MICHAEL J. ASTRUE, COMMISSIONER OF SOCIAL SECURITY ADMINISTRATION, 17 Defendant. ) ) ) ) ) ) ) ) ) ) ) ) No. CV 09-8851-PLA MEMORANDUM OPINION AND ORDER 18 19 I. 20 PROCEEDINGS 21 Plaintiff filed this action on December 8, 2009, seeking review of the Commissioner’s denial 22 of his application for Supplemental Security Income payments. The parties filed Consents to 23 proceed before the undersigned Magistrate Judge on March 25, 2010, and December 22, 2010. 24 Pursuant to the Court’s Order, the parties filed a Joint Stipulation on October 21, 2010, that 25 addresses their positions concerning the disputed issues in the case. The Court has taken the 26 Joint Stipulation under submission without oral argument. 27 / 28 / Dockets.Justia.com 1 II. 2 BACKGROUND 3 Plaintiff was born on August 24, 1963. [Administrative Record (“AR”) at 31, 61, 127.] He 4 has an eleventh grade education and past relevant work experience as a metal bender, 5 construction worker, store stocker, telephone technician, warehouseman, and delivery driver. [AR 6 at 32, 145-46, 148, 151-62, 166-73.] 7 On April 20, 2007, plaintiff protectively filed his application for Supplemental Security 8 Income payments, alleging that he has been unable to work since April 20, 2007, due to problems 9 with his lower back, neck, hand, elbow, knee, and wrist. [AR at 21, 127-33, 139-50.] After 10 plaintiff’s application was denied initially and on reconsideration, he requested a hearing before 11 an Administrative Law Judge (“ALJ”). [AR at 63-74.] A hearing was held on January 7, 2009, at 12 which time plaintiff appeared with counsel and testified on his own behalf. A medical expert and 13 a vocational expert also testified. [AR at 29-60.] On May 4, 2009, the ALJ issued an unfavorable 14 decision. [AR at 18-28.] When the Appeals Council denied plaintiff’s request for review of the 15 hearing decision on August 12, 2009, the ALJ’s decision became the final decision of the 16 Commissioner. [AR at 5-8.] This action followed. 17 18 III. 19 STANDARD OF REVIEW 20 Pursuant to 42 U.S.C. § 405(g), this Court has authority to review the Commissioner’s 21 decision to deny benefits. The decision will be disturbed only if it is not supported by substantial 22 evidence or if it is based upon the application of improper legal standards. Moncada v. Chater, 23 60 F.3d 521, 523 (9th Cir. 1995); Drouin v. Sullivan, 966 F.2d 1255, 1257 (9th Cir. 1992). 24 In this context, the term “substantial evidence” means “more than a mere scintilla but less 25 than a preponderance -- it is such relevant evidence that a reasonable mind might accept as 26 adequate to support the conclusion.” Moncada, 60 F.3d at 523; see also Drouin, 966 F.2d at 27 1257. When determining whether substantial evidence exists to support the Commissioner’s 28 decision, the Court examines the administrative record as a whole, considering adverse as well 2 1 as supporting evidence. Drouin, 966 F.2d at 1257; Hammock v. Bowen, 879 F.2d 498, 501 (9th 2 Cir. 1989). Where the evidence is susceptible to more than one rational interpretation, the Court 3 must defer to the decision of the Commissioner. Moncada, 60 F.3d at 523; Andrews v. Shalala, 4 53 F.3d 1035, 1039-40 (9th Cir. 1995); Drouin, 966 F.2d at 1258. 5 6 IV. 7 THE EVALUATION OF DISABILITY 8 Persons are “disabled” for purposes of receiving Social Security benefits if they are unable 9 to engage in any substantial gainful activity owing to a physical or mental impairment that is 10 expected to result in death or which has lasted or is expected to last for a continuous period of at 11 least twelve months. 42 U.S.C. § 423(d)(1)(A); Drouin, 966 F.2d at 1257. 12 13 A. THE FIVE-STEP EVALUATION PROCESS 14 The Commissioner (or ALJ) follows a five-step sequential evaluation process in assessing 15 whether a claimant is disabled. 20 C.F.R. §§ 404.1520, 416.920; Lester v. Chater, 81 F.3d 821, 16 828 n.5 (9th Cir. 1995, as amended April 9, 1996). In the first step, the Commissioner must 17 determine whether the claimant is currently engaged in substantial gainful activity; if so, the 18 claimant is not disabled and the claim is denied. Id. If the claimant is not currently engaged in 19 substantial gainful activity, the second step requires the Commissioner to determine whether the 20 claimant has a “severe” impairment or combination of impairments significantly limiting his ability 21 to do basic work activities; if not, a finding of nondisability is made and the claim is denied. Id. 22 If the claimant has a “severe” impairment or combination of impairments, the third step requires 23 the Commissioner to determine whether the impairment or combination of impairments meets or 24 equals an impairment in the Listing of Impairments (“Listing”) set forth at 20 C.F.R., Part 404, 25 Subpart P, Appendix 1; if so, disability is conclusively presumed and benefits are awarded. Id. 26 If the claimant’s impairment or combination of impairments does not meet or equal an impairment 27 in the Listing, the fourth step requires the Commissioner to determine whether the claimant has 28 sufficient “residual functional capacity” to perform his past work; if so, the claimant is not disabled 3 1 and the claim is denied. Id. The claimant has the burden of proving that he is unable to perform 2 past relevant work. Drouin, 966 F.2d at 1257. If the claimant meets this burden, a prima facie 3 case of disability is established. The Commissioner then bears the burden of establishing that the 4 claimant is not disabled, because he can perform other substantial gainful work available in the 5 national economy. The determination of this issue comprises the fifth and final step in the 6 sequential analysis. 20 C.F.R. §§ 404.1520, 416.920; Lester, 81 F.3d at 828 n.5; Drouin, 966 F.2d 7 at 1257. 8 9 B. THE ALJ’S APPLICATION OF THE FIVE-STEP PROCESS 10 In this case, at step one, the ALJ concluded that plaintiff has not engaged in any substantial 11 gainful activity since April 20, 2007, the date of his application for Supplemental Security Income 12 payments. [AR at 23.] At step two, the ALJ concluded that plaintiff has the following severe 13 impairments: “[d]isorders of the lumbar spine, right wrist, left knee and shoulders; gout; and lupus.” 14 [Id.] At step three, the ALJ concluded that plaintiff’s impairments do not meet or equal any of the 15 impairments in the Listing. [AR at 24.] The ALJ further found that plaintiff retained the residual 16 functional capacity (“RFC”)1 to perform light work,2 except that plaintiff “is able to stand and/or walk 17 4 hours out of a[n] 8-hour workday. [Plaintiff] is occasionally able to bend, stoop, and climb ramps 18 and stairs; but is unable to balance or climb ladders, scaffolds, or ropes. [Plaintiff] is occasionally 19 able to reach above the shoulder, and frequently able to finger and frequently able to forcefully 20 handle (grip, grasp, and twist). [Plaintiff] should avoid all exposure to unprotected heights.” [Id.] 21 At step four, the ALJ concluded that plaintiff can perform his past relevant work as a delivery 22 driver-courier. [AR at 27.] Accordingly, the ALJ found plaintiff not disabled. [AR at 28.] 23 / 24 25 26 27 28 1 RFC is what a claimant can still do despite existing exertional and nonexertional limitations. Cooper v. Sullivan, 880 F.2d 1152, 1155 n.5 (9th Cir. 1989). 2 Light work is defined as work involving “lifting no more than 20 pounds at a time with frequent lifting or carrying of objects weighing up to 10 pounds.” 20 C.F.R. §§ 404.1567(b), 416.967(b). 4 1 V. 2 THE ALJ’S DECISION 3 Plaintiff contends that the ALJ erred in rejecting: (1) the opinion of plaintiff’s treating 4 physician; and (2) plaintiff’s subjective testimony. [Joint Stipulation (“JS”) at 4.] As set forth below, 5 the Court agrees with plaintiff, in part, and remands the matter for further proceedings. 6 7 8 9 TREATING PHYSICIAN’S OPINION Plaintiff contends that the ALJ erred in rejecting the opinion of treating physician Dr. W. Joseph Atiya. [JS at 4-7.] 10 In evaluating medical opinions, the case law and regulations distinguish among the opinions 11 of three types of physicians: (1) those who treat the claimant (treating physicians); (2) those who 12 examine but do not treat the claimant (examining physicians); and (3) those who neither examine 13 nor treat the claimant (nonexamining physicians). See 20 C.F.R. §§ 404.1502, 404.1527, 14 416.902, 416.927; see also Lester, 81 F.3d at 830. Generally, the opinions of treating physicians 15 are given greater weight than those of other physicians, because treating physicians are employed 16 to cure and therefore have a greater opportunity to know and observe the claimant. Orn v. Astrue, 17 495 F.3d 625, 631 (9th Cir. 2007); Smolen v. Chater, 80 F.3d 1273, 1285 (9th Cir. 1996). Despite 18 the presumption of special weight afforded to treating physicians’ opinions, an ALJ is not bound 19 to accept the opinion of a treating physician. However, the ALJ may only give less weight to a 20 treating physician’s opinion that conflicts with the medical evidence if the ALJ provides explicit and 21 legitimate reasons for discounting the opinion. See Lester, 81 F.3d at 830-31 (the opinion of a 22 treating doctor, even if contradicted by another doctor, can only be rejected for specific and 23 legitimate reasons that are supported by substantial evidence in the record); see also Orn, 495 24 F.3d at 632-33 (“Even when contradicted by an opinion of an examining physician that constitutes 25 substantial evidence, the treating physician’s opinion is ‘still entitled to deference.’”) (citations 26 27 28 5 1 omitted); Social Security Ruling3 96-2p (a finding that a treating physician’s opinion is not entitled 2 to controlling weight does not mean that the opinion is rejected). 3 The record shows that plaintiff received medical treatment from January 2006 to at least 4 October 2008 from the three physicians at Primary Care Medical Group of Hemet Valley -- Dr. 5 Atiya, Dr. Robert Loera, and Dr. Ingela Elhenawi -- for, among other things, lower back pain. [See 6 AR at 243-47, 257-301.] On April 8, 2008, Dr. Atiya completed a Statement of Provider form, in 7 which he opined that plaintiff has a medically verifiable condition that would prevent him from 8 performing certain tasks, his condition began in 2001 and is chronic, he is actively seeking 9 treatment, and he is unable to work.4 [AR at 287.] On October 28, 2008, Dr. Atiya completed a 10 Multiple Impairment Questionnaire form, in which he diagnosed plaintiff as having intractable back 11 pain, post laminectomy, and degenerative arthritis of the lower spine; asserted that plaintiff’s 12 prognosis was poor; and stated that plaintiff’s clinical condition and pain as well as his old medical 13 history and x-rays supported the diagnosis and prognosis. [AR at 292-93.] Dr. Atiya described 14 plaintiff’s symptoms as including intractable and persistent low back pain and leg pain that lasts 15 all day for which plaintiff is treated with Norco, a prescription pain medication. [AR at 293-94, 296.] 16 Dr. Atiya opined, among things, that plaintiff has a “severe” level of pain of 9 out of 10; he can sit 17 and stand/walk each for one hour out of an eight-hour workday; he should not sit continuously in 18 a work setting; he would need to get up and move around every one to two hours and would need 19 to wait two hours before sitting again; he can never lift or carry any weight; he is significantly 20 limited in his abilities to repetitively reach, handle, finger, or lift; his symptoms would likely increase 21 if he were placed in a competitive work environment; his symptoms would frequently interfere with 22 his ability to concentrate and pay attention; his impairments are ongoing (i.e., expected to last at 23 3 24 25 26 27 28 Social Security Rulings (“SSR”) do not have the force of law. Nevertheless, they “constitute Social Security Administration interpretations of the statute it administers and of its own regulations,” and are given deference “unless they are plainly erroneous or inconsistent with the Act or regulations.” Han v. Bowen, 882 F.2d 1453, 1457 (9th Cir. 1989). 4 On May 29, 2007, Dr. Loera completed a Statement of Provider form expressing a nearly identical opinion concerning plaintiff’s condition as the opinion expressed by Dr. Atiya in the 2008 Statement of Provider form, except that Dr. Loera opined that plaintiff’s condition began in 1997, rather than in 2001. [See AR at 286.] 6 1 least 12 months); he is not a malingerer; during an eight-hour workday, he would need to take 2 unscheduled one-hour breaks every one to two hours; his impairments would likely produce “good” 3 and “bad” days; he would likely miss work more than three times a month as a result of his 4 impairments or treatment; and he should not push, pull, kneel, bend, or stoop. [AR at 294-99.] 5 In the decision, the ALJ asserted that he rejected Dr. Atiya’s opinions expressed in the 6 Statement of Provider and Multiple Impairment Questionnaire forms as “brief, conclusory, and 7 inadequately supported by clinical findings.” [AR at 27.] Specifically the ALJ asserted that no 8 objective documentation or clinical findings supported Dr. Atiya’s opinions; Dr. Atiya did not 9 provide a clinical treatment history “to explain why [plaintiff] has back pain, what has been 10 prescribed to treat his back pain and [plaintiff’s] response to the various treatment options;” and 11 Dr. Atiya “only” saw plaintiff up to nine times since June 2006 during “routine follow up visits.” [Id.] 12 In rejecting Dr. Atiya’s opinions, the ALJ also cited the medical expert’s hearing testimony5 that 13 there was a lack of objective evidence supporting the extent of the limitations assessed by Dr. 14 Atiya. [AR at 27; see also AR at 32-38.] 15 The Court concludes that the ALJ provided insufficient reasons for rejecting Dr. Atiya’s 16 treating opinion. First, the ALJ’s bare assertion that Dr. Atiya’s opinion was not sufficiently 17 supported by the treatment record or the objective medical findings is not a proper reason, by 18 itself, for rejecting the opinion because it fails to reach the level of specificity required for rejecting 19 a treating physician’s opinion. See Embrey v. Bowen, 849 F.2d 418, 421-23 (9th Cir. 1988) (“To 20 say that medical opinions are not supported by sufficient objective findings or are contrary to the 21 preponderant conclusions mandated by the objective findings does not achieve the level of 22 specificity our prior cases have required ... The ALJ must do more than offer his conclusions. He 23 must set forth his own interpretations and explain why they, rather than the doctors’, are correct.”) 24 (footnote omitted). An ALJ can meet the requisite specific and legitimate standard for rejecting 25 a treating physician’s opinion deemed inconsistent with or unsupported by the medical evidence 26 27 28 5 The ALJ referred to the medical expert who testified at the administrative hearing as Dr. Landau. [See AR at 24, 27.] However, the Court observes that Dr. John Orlando was the medical expert who testified at plaintiff’s hearing. [See AR at 32-38.] 7 1 “by setting out a detailed and thorough summary of the facts and conflicting clinical evidence, 2 stating his interpretation thereof, and making findings.” Reddick v. Chater, 157 F.3d 715, 725 (9th 3 Cir. 1998). Here, the ALJ’s conclusory assertion that Dr. Atiya’s opinion was inadequately 4 supported by the clinical findings, objective evidence, or the frequency of plaintiff’s treatment [see 5 AR at 27] does not constitute a specific and legitimate reason for rejecting Dr. Atiya’s treating 6 opinion. See McAllister v. Sullivan, 888 F.2d 599, 602 (9th Cir. 1989) (finding that rejecting the 7 treating physician’s opinion on the ground that it was contrary to clinical findings in the record was 8 “broad and vague, failing to specify why the ALJ felt the treating physician’s opinion was flawed”); 9 see also, e.g., Payne v. Astrue, 2009 WL 176071, at *6 (C.D. Cal. Jan. 23, 2009) (finding 10 inadequate an ALJ’s conclusory rejection of a treating physician’s opinion as inconsistent with the 11 medical treatment, where the ALJ did not specify how the treatment record was inconsistent with 12 the physician’s opinion). 13 Furthermore, the ALJ’s assertions that Dr. Atiya’s opinion was not supported by any 14 objective medical evidence or clinical findings and that Dr. Atiya did not describe plaintiff’s 15 treatment history are not entirely accurate. 16 Questionnaire form that his assessment of plaintiff’s limitations was based on plaintiff’s clinical 17 condition, pain symptoms, old x-rays, and treatment history [see AR at 292-93], and that he had 18 treated plaintiff from January 2006 to October 2008 with pain medication. [AR at 293, 296.] 19 Plaintiff’s treatment records corroborate Dr. Atiya’s statement, showing that plaintiff was treated 20 for lower back pain with pain medication by the physicians of Primary Care Medical Group of 21 Hemet Valley during the time period specified by Dr. Atiya. [See AR at 243-47, 257-301.] To the 22 extent the ALJ overlooked or ignored this evidence to support his rejection of Dr. Atiya’s opinion, 23 that was erroroneous. See Gallant v. Heckler, 753 F.2d 1450, 1456 (9th Cir. 1984) (error for an 24 ALJ to ignore or misstate the competent evidence in the record in order to justify his conclusion.) 25 Moreover, to the extent the ALJ rejected Dr. Atiya’s opinion based on the number of times 26 he treated plaintiff, such a basis for rejection was improper because a treating physician’s opinion 27 should be afforded great weight so long as the physician has seen the claimant “a number of times 28 and long enough to have obtained a longitudinal picture of [the claimant’s] impairment.” 20 C.F.R Dr. Atiya stated in the Multiple Impairment 8 1 §§ 404.1527(d)(2)(i), 416.927(d)(2)(i). The ALJ provided no basis for assuming that Dr. Atiya did 2 not form a longitudinal picture of plaintiff’s impairments in the course of seeing plaintiff nine times 3 from January 2006 to October 2008. Further, the ALJ’s apparent rejection of Dr. Atiya’s opinion 4 on the basis that the ALJ found the treatment to be “routine” or conservative was also erroneous, 5 as the record shows that Dr. Atiya treated plaintiff with prescription pain medication [see, e.g., AR 6 at 282, 284], and the ALJ did not indicate any appropriate treatment that was available to plaintiff 7 that Dr. Atiya did not prescribe. The record also reveals that plaintiff underwent a spine fusion 8 surgery, apparently in 2001 [see AR at 235], and neither plaintiff’s treating physicians nor the ALJ 9 indicated what more plaintiff should have done to treat his continuing back pain. See Yang v. 10 Barnhart, 2006 WL 3694857, at *4 (C.D. Cal. Dec. 12, 2006) (ALJ’s characterization of the treating 11 physician’s treatment of plaintiff as “conservative” did not support the ALJ’s rejection of the 12 physician’s opinion, where plaintiff was prescribed pain medication to alleviate his back pain and 13 “[n]either the Agency nor the ALJ has suggested what more radical treatment would have been 14 appropriate”); Cronin v. Astrue, 2010 WL 702033, at *3 (C.D. Cal. Feb. 25, 2010) (ALJ erred in 15 rejecting as conservative a treating physician’s treatment of plaintiff’s pain symptoms with 16 medication management, where “the ALJ failed to articulate what other treatment was available”). 17 Next, insomuch as the ALJ rejected Dr. Atiya’s opinion in favor of the opinion of the 18 nonexamining medical expert who testified at the hearing, that was also error. A nonexamining 19 physician’s opinion with nothing more cannot constitute substantial evidence to support the ALJ’s 20 rejection of Dr. Atiya’s opinion. See Morgan v. Comm’r of Soc. Sec. Admin., 169 F.3d 595, 602 21 (9th Cir. 1999) (“The opinion of a nonexamining medical advisor cannot by itself constitute 22 substantial evidence that justifies the rejection of the opinion of an examining or treating 23 physician.”); Lester, 81 F.3d at 831-32 (holding that the opinion of a nonexamining physician 24 cannot by itself constitute substantial evidence that justifies the rejection of the opinion of a 25 treating physician). A contrary medical opinion may constitute substantial evidence upon which 26 the ALJ may rely in evaluating the weight to afford a treating physician’s opinion only when the 27 contrary opinion is based on independent clinical findings. See Andrews, 53 F.3d at 1041. Here, 28 however, it appears that the medical expert’s testimony was based on the same clinical findings 9 1 upon which Dr. Atiya based his own opinion (i.e., plaintiff’s treatment history). [See AR at 35-36, 2 293.] Accordingly, the medical expert’s testimony did not constitute substantial evidence to 3 contradict Dr. Atiya’s treating opinion. See Murray v. Heckler, 722 F.2d 499, 501 (9th Cir. 1983) 4 (ALJ improperly rejected treating physician’s opinion based on the opinion of a non-treating 5 physician where “the findings of the non-treating physician were the same as those of the treating 6 physician[, and] [i]t was his conclusions that differed”) (emphasis in original); Jefferson v. Astrue, 7 2010 WL 4366389, at *3 (C.D. Cal. Oct. 26, 2010) (ALJ erred in rejecting treating physician’s 8 findings based only on the testimony of a nonexamining medical expert, where the medical expert 9 premised his opinion on the same evidence as the treating physician). 10 In any event, the ALJ may not properly reject a treating physician’s opinion by merely 11 referencing the contrary findings of another physician. Even when contradicted, a treating 12 physician’s opinion is still entitled to deference, and the ALJ must provide specific and legitimate 13 reasons supported by substantial evidence for rejecting it. See Orn, 495 F.3d at 632-33; SSR 96- 14 2p; see also Valentine v. Comm’r Soc. Sec. Admin., 574 F.3d 685, 692 (9th Cir. 2009) (“to reject 15 the opinion of a treating physician ‘in favor of a conflicting opinion of [a non-treating] physician[,]’ 16 an ALJ still must ‘make[] findings setting forth specific, legitimate reasons for doing so that are 17 based on substantial evidence in the record’”) (quoting Thomas v. Barnhart, 278 F.3d 947, 957 18 (9th Cir. 2002)). Here, the ALJ erred in failing to expressly explain how Dr. Atiya’s findings 19 conflicted with other parts of the medical evidence and why his opinion was rejected in favor of 20 a conflicting medical opinion. The ALJ’s rejection of Dr. Atiya’s opinion without expressly setting 21 forth detailed, legitimate reasons for doing so was improper. See Hostrawser v. Astrue, 364 22 Fed.Appx. 373, 376-77 (9th Cir. 2010) (citable for its persuasive value pursuant to Ninth Circuit 23 Rule 36-3) (ALJ erred in affording nontreating physicians’ opinions controlling weight over the 24 treating physicians’ opinions, where the ALJ did not provide a thorough summary of the conflicting 25 clinical evidence and his interpretations thereof with an explanation as to why his interpretations 26 27 28 10 1 of the evidence, rather than those of the treating physicians, were correct). Remand is warranted 2 on this issue.6 3 4 VI. 5 REMAND FOR FURTHER PROCEEDINGS 6 As a general rule, remand is warranted where additional administrative proceedings could 7 remedy defects in the Commissioner’s decision. See Harman v. Apfel, 211 F.3d 1172, 1179 (9th 8 Cir.), cert. denied, 531 U.S. 1038 (2000); Kail v. Heckler, 722 F.2d 1496, 1497 (9th Cir. 1984). 9 In this case, remand is appropriate in order for the ALJ to reconsider Dr. Atiya’s opinion. The ALJ 10 is instructed to take whatever further action is deemed appropriate and consistent with this 11 decision. 12 Accordingly, IT IS HEREBY ORDERED that: (1) plaintiff’s request for remand is granted; 13 (2) the decision of the Commissioner is reversed; and (3) this action is remanded to defendant 14 for further proceedings consistent with this Memorandum Opinion. 15 16 This Memorandum Opinion and Order is not intended for publication, nor is it intended to be included in or submitted to any online service such as Westlaw or Lexis. 17 18 DATED: January 3, 2011 PAUL L. ABRAMS UNITED STATES MAGISTRATE JUDGE 19 20 21 22 23 24 25 26 27 28 6 As the ALJ’s determination of plaintiff’s credibility may be impacted by further consideration of Dr. Atiya’s opinion, the Court exercises its discretion not to consider plaintiff’s contention that the ALJ improperly considered his subjective testimony. [See JS at 11-14.] 11
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