Maria Moss Gale v. Michael J. Astrue, No. 2:2010cv05516 - Document 18 (C.D. Cal. 2011)
Court Description: MEMORANDUM OPINION by Magistrate Judge Jacqueline Chooljian. The decision of the Commissioner of Social Security is affirmed. See memorandum for details. (hr)
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 MARIA M. GALE, 12 Plaintiff, 13 14 15 16 17 v. MICHAEL J. ASTRUE, Commissioner of Social Security, Defendant. _________________________ ) Case No. CV 10-5516 JC ) ) ) MEMORANDUM OPINION ) ) ) ) ) ) ) ) 18 19 I. On July 26, 2010, plaintiff Maria M. Gale ( plaintiff ) filed a Complaint 20 21 22 23 seeking review of the Commissioner of Social Security s denial of plaintiff s application for benefits. The parties have consented 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; August 3, 2010 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 ) are supported by substantial evidence and are free from material error.1 4 II. BACKGROUND AND SUMMARY OF ADMINISTRATIVE 5 DECISION 6 On December 11, 2007, plaintiff filed an application for Disability 7 Insurance Benefits. (Administrative Record ( AR ) 16, 150). Plaintiff asserted 8 that she became disabled on February 13, 2006 due to multiple physical and 9 mental impairments including neck and back pain (due to previously suffering a 10 broken neck, receiving replacement vertebra and the placement of titanium rods, 11 plates and screws in her neck and back), terrible headaches, anxiety and 12 depression, and vision problems. (AR 171). 13 The ALJ examined the medical record and heard testimony from plaintiff 14 (who was represented by counsel), medical experts Betty L. Borden, M.D. and 15 Minh Vu, M.D.2 on August 19, 2009. (AR 16, 52, 55). 16 On September 30, 2009, the ALJ determined that plaintiff was not disabled 17 prior to June 6, 2008, but became disabled on June 6, 2008, and remained disabled 18 through the date of the decision. (AR 16, 27). Specifically, the ALJ found that: 19 (1) between February 13, 2006 (i.e., the date on which plaintiff alleges she became 20 disabled) and June 6, 2008 (the date on which plaintiff actually became disabled 21 according to the ALJ) plaintiff suffered from the following severe impairments: 22 spondylitis of the cervical spine, history of left foot fracture, capsulitis of the left 23 shoulder, and anxiety disorder (AR 18); (2) prior to June 6, 2008, plaintiff s 24 25 26 27 28 1 The harmless error rule applies to the review of administrative decisions regarding disability. See Batson v. Commissioner of Social Security Administration, 359 F.3d 1190, 1196 (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 The hearing transcript identifies this medical expert phonetically as Lyn Wood. (AR 52, 55). 2 1 impairments, considered singly or in combination, did not meet or medically equal 2 one of the listed impairments (AR 20); (3) prior to June 6, 2008, plaintiff retained 3 the residual functional capacity to perform simple, routine tasks at the light level 4 of physical exertion (as defined in 20 C.F.R. 404.1567(b)), but with several 5 exertional limitations (AR 21);3 (4) plaintiff could not perform her past relevant 6 work (AR 25); (5) prior to June 6, 2008, there were jobs that existed in significant 7 numbers in the national economy that plaintiff could perform, specifically ticket 8 taker, information clerk, and counter clerk (AR 25-26); and (6) plaintiff s 9 allegations regarding her subjective symptoms and limitations lacked credibility in 10 several respects (AR 21-23). 11 The Appeals Council denied plaintiff s application for review. (AR 1). 12 III. APPLICABLE LEGAL STANDARDS 13 A. 14 To qualify for disability benefits, a claimant must show that she is unable to Sequential Evaluation Process 15 engage in any substantial gainful activity by reason of a medically determinable 16 physical or mental impairment which can be expected to result in death or which 17 has lasted or can be expected to last for a continuous period of at least twelve 18 months. Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005) (citing 42 U.S.C. 19 § 423(d)(1)(A)). The impairment must render the claimant incapable of 20 performing the work she previously performed and incapable of performing any 21 other substantial gainful employment that exists in the national economy. Tackett 22 v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999) (citing 42 U.S.C. § 423(d)(2)(A)). 23 24 3 The ALJ determined that plaintiff (i) could lift up to 20 pounds occasionally and 10 25 pounds frequently, stand and/or walk up to six hours in an eight-hour workday, sit up to six hours 26 in an eight-hour workday; (ii) could not perform work that involves extreme range of movement with the neck, climbing ladders, ropes and scaffolds, unprotected heights or dangerous 27 machinery, or use of her left arm for above-the-shoulder level work; (iii) was limited to only frequent use of her left lower extremity for pushing and pulling; and (iv) could occasionally use 28 her right arm for above-the-shoulder level work. (AR 21). 3 1 In assessing whether a claimant is disabled, an ALJ is to follow a five-step 2 sequential evaluation process: 3 (1) 4 5 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 6 her ability to work? If not, the claimant is not disabled. If so, 7 proceed to step three. 8 (3) 9 Does the claimant s impairment, or combination of impairments, meet or equal an impairment listed in 20 C.F.R. 10 Part 404, Subpart P, Appendix 1? If so, the claimant is 11 disabled. If not, proceed to step four. 12 (4) Does the claimant possess the residual functional capacity to 13 perform her past relevant work? If so, the claimant is not 14 disabled. If not, proceed to step five. 15 (5) Does the claimant s residual functional capacity, when 16 considered with the claimant s age, education, and work 17 experience, allow her to adjust to other work that exists in 18 significant numbers in the national economy? If so, the 19 claimant is not disabled. If not, the claimant is disabled. 20 Stout v. Commissioner, Social Security Administration, 454 F.3d 1050, 1052 (9th 21 Cir. 2006) (citing 20 C.F.R. §§ 404.1520, 416.920). 22 The claimant has the burden of proof at steps one through four, and the 23 Commissioner has the burden of proof at step five. Bustamante v. Massanari, 262 24 F.3d 949, 953-54 (9th Cir. 2001) (citing Tackett); see also Burch, 400 F.3d at 679 25 (claimant carries initial burden of proving disability). 26 B. 27 Pursuant to 42 U.S.C. section 405(g), a court may set aside a denial of Standard of Review 28 benefits only if it is not supported by substantial evidence or if it is based on legal 4 1 error. Robbins v. Social Security Administration, 466 F.3d 880, 882 (9th Cir. 2 2006) (citing Flaten v. Secretary of Health & Human Services, 44 F.3d 1453, 1457 3 (9th Cir. 1995)). Substantial evidence is such relevant evidence as a reasonable 4 mind might accept as adequate to support a conclusion. Richardson v. Perales, 5 402 U.S. 389, 401 (1971) (citations and quotations omitted). It is more than a 6 mere scintilla but less than a preponderance. Robbins, 466 F.3d at 882 (citing 7 Young v. Sullivan, 911 F.2d 180, 183 (9th Cir. 1990)). 8 To determine whether substantial evidence supports a finding, a court must 9 consider the record as a whole, weighing both evidence that supports and 10 evidence that detracts from the [Commissioner s] conclusion. Aukland v. 11 Massanari, 257 F.3d 1033, 1035 (9th Cir. 2001) (quoting Penny v. Sullivan, 2 F.3d 12 953, 956 (9th Cir. 1993)). If the evidence can reasonably support either affirming 13 or reversing the ALJ s conclusion, a court may not substitute its judgment for that 14 of the ALJ. Robbins, 466 F.3d at 882 (citing Flaten, 44 F.3d at 1457). 15 IV. DISCUSSION 16 A. 17 Plaintiff contends that the ALJ improperly rejected the opinions of Dr. The ALJ Properly Evaluated the Medical Evidence 18 Srinath Samudrala, plaintiff s treating neurosurgeon, in favor of those expressed 19 by Dr. Minh Vu, the testifying medical expert. (Plaintiff s Motion at 3-13). The 20 Court finds that a remand or reversal on this basis is not warranted. 21 22 1. Pertinent Law In Social Security cases, courts employ a hierarchy of deference to medical 23 opinions depending on the nature of the services provided. Courts distinguish 24 among the opinions of three types of physicians: those who treat the claimant 25 ( treating physicians ) and two categories of nontreating physicians, namely 26 those who examine but do not treat the claimant ( examining physicians ) and 27 those who neither examine nor treat the claimant ( nonexamining physicians ). 28 Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1996) (footnote reference omitted). A 5 1 treating physician s opinion is entitled to more weight than an examining 2 physician s opinion, and an examining physician s opinion is entitled to more 3 weight than a nonexamining physician s opinion.4 See id. In general, the opinion 4 of a treating physician is entitled to greater weight than that of a non-treating 5 physician because the treating physician is employed to cure and has a greater 6 opportunity to know and observe the patient as an individual. Morgan v. 7 Commissioner of Social Security Administration, 169 F.3d 595, 600 (9th Cir. 8 1999) (citing Sprague v. Bowen, 812 F.2d 1226, 1230 (9th Cir. 1987)). 9 The treating physician s opinion is not, however, necessarily conclusive as 10 to either a physical condition or the ultimate issue of disability. Magallanes v. 11 Bowen, 881 F.2d 747, 751 (9th Cir. 1989) (citing Rodriguez v. Bowen, 876 F.2d 12 759, 761-62 & n.7 (9th Cir. 1989)). Where a treating physician s opinion is not 13 contradicted by another doctor, it may be rejected only for clear and convincing 14 reasons. Orn v. Astrue, 495 F.3d 625, 632 (9th Cir. 2007) (citation and internal 15 quotations omitted). The ALJ can reject the opinion of a treating physician in 16 favor of a conflicting opinion of another examining physician if the ALJ makes 17 findings setting forth specific, legitimate reasons for doing so that are based on 18 substantial evidence in the record. Id. (citation and internal quotations omitted); 19 Thomas v. Barnhart, 278 F.3d 947, 957 (9th Cir. 2002) (ALJ can meet burden by 20 setting out detailed and thorough summary of facts and conflicting clinical 21 evidence, stating his interpretation thereof, and making findings) (citations and 22 quotations omitted); Magallanes, 881 F.2d at 751, 755 (same; ALJ need not recite 23 magic words to reject a treating physician s opinion court may draw specific 24 and legitimate inferences from ALJ s opinion). The ALJ must do more than offer 25 26 4 Cf. Le v. Astrue, 529 F.3d 1200, 1201-02 (9th Cir. 2008) (not necessary or practical to 27 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 28 relationship and frequency and nature of the contact) (citation omitted). 6 1 his conclusions. Embrey v. Bowen, 849 F.2d 418, 421-22 (9th Cir. 1988). He 2 must set forth his own interpretations and explain why they, rather than the 3 [physician s], are correct. Id. Broad and vague reasons for rejecting the 4 treating physician s opinion do not suffice. McAllister v. Sullivan, 888 F.2d 599, 5 602 (9th Cir. 1989). 6 When they are properly supported, the opinions of physicians other than 7 treating physicians, such as examining physicians and non-examining medical 8 experts, may constitute substantial evidence upon which an ALJ may rely. See, 9 e.g., Tonapetyan v. Halter, 242 F.3d 1144, 1149 (9th Cir. 2001) (consultative 10 examiner s opinion on its own constituted substantial evidence, because it rested 11 on independent examination of claimant); Morgan, 169 F.3d at 600 (testifying 12 medical expert opinions may serve as substantial evidence when they are 13 supported by other evidence in the record and are consistent with it ). Where, as 14 here, a conflict exists between the assessment of a non-examining, testifying 15 physician based on objective clinical findings and the assessment of a treating 16 physician, the non-examining physician s opinion may itself constitute substantial 17 evidence warranting rejection of the treating doctor s opinion, and it is the sole 18 province of the ALJ to resolve the conflict. Morgan, 169 F.3d at 600; Andrews v. 19 Shalala, 53 F.3d 1035, 1041 (9th Cir. 1995). 20 21 2. Pertinent Facts On February 27, 2008, Dr. Samudrala completed a Medical Source 22 Statement Physical, in which he opined that plaintiff (1) could lift and/or carry 23 10 pounds occasionally, and less than 10 pounds frequently; (2) could stand and/or 24 walk with normal breaks less than two hours in an eight-hour workday; (3) could 25 sit with normal breaks three hours in an eight-hour workday; (4) needed to 26 alternate sitting and standing hourly; (5) could never climb, balance, stoop, kneel, 27 crouch, crawl or reach; (6) could only occasionally handle, finger and feel; and 28 (7) could not do work involving heights or moving machinery. (AR 289-91). 7 1 In Physical Residual Functional Capacity Questionnaires dated August 5, 2 2008, and July 10, 2009, respectively, Dr. Samudrala diagnosed plaintiff with 3 cervical spondylosis with myeloradiculopathy T1 fracture and opined that plaintiff 4 (1) could lift and/or carry 10 pounds or less occasionally; (2) could stand and/or 5 walk with normal breaks less than two hours in an eight-hour workday; (3) could 6 sit with normal breaks less than six hours in an eight-hour workday; (4) needed to 7 shift positions at will throughout the day; (5) required a 20 minute unscheduled 8 break every two hours during an eight-hour workday; (6) would be absent from 9 work due to her impairments or treatment more than three times a month; (7) was 10 limited in pushing and/or pulling with her upper extremities; (8) could never bend, 11 climb, crouch, balance, kneel, crawl or reach; and (9) could only occasionally 12 handle or finger. (AR 322-25, 332-35). In an addendum to the August 5, 2008 13 Physical Residual Functional Capacity Questionnaire, Dr. Samudrala stated that 14 his opinions also applied to plaintiff s medical condition as early as November 15 2006. (AR 222, 376). 16 On April 8, 2008, Dr. H. Harlan Bleecker, a board-certified orthopaedic 17 surgeon, conducted a complete orthopedic evaluation of plaintiff which included a 18 physical examination. (AR 292-95). Dr. Bleecker opined that plaintiff could sit, 19 stand and walk six out of eight hours, lift 20 pounds occasionally and 10 pounds 20 frequently, only occasionally reach with either upper extremity, and was not 21 restricted in the lower extremities. (AR 295). 22 Dr. Minh Vu, the medical expert, testified at the administrative hearing that 23 plaintiff was limited to light work, was precluded from work activity requiring 24 extreme range of movement involving the neck, climbing ladders, ropes and 25 scaffolds, unprotected heights or dangerous machinery, and was precluded from 26 activity involving work at above-the-shoulder level on the left side. (AR 23, 7927 81). 28 /// 8 1 2 3. Analysis Plaintiff s claim that the ALJ erroneously rejected Dr. Samudrala s opinions 3 lacks merit. 4 First, an ALJ may properly reject a medical opinion that conflicts with the 5 physician s own treatment notes or is unsupported the record as a whole. Connett 6 v. Barnhart, 340 F.3d 871, 875 (9th Cir. 2003) (treating physician s opinion 7 properly rejected where treating physician s treatment notes provide no basis for 8 the functional restrictions he opined should be imposed on [the claimant] ); 9 Batson, 359 F.3d at 1195 (ALJ may discredit treating physicians opinions that are 10 conclusory, brief, and unsupported by record as a whole or by objective medical 11 findings); see Tonapetyan, 242 F.3d at 1149 (ALJ need not accept treating 12 physician s opinions that are conclusory and brief, or unsupported by clinical 13 findings, or physician s own treatment notes). Here, as the ALJ correctly noted, 14 Dr. Samudrala s treatment records for plaintiff lack evidence of significant clinical 15 and laboratory abnormalities which would support the extreme limitations he 16 assessed for plaintiff. For example, the medical expert testified that Dr. 17 Samudrala s limitation to less than two hours of standing or walking suggests an 18 impairment to plaintiff s lumbar spine. (AR 24, 81-82, 87-88). Dr. Samudrala s 19 diagnosis, however, was that plaintiff suffered from cervical spondylosis a 20 condition associated with the neck.5 (AR 322, 332). The medical expert also 21 testified that Dr. Samudrala s progress notes otherwise lacked clinical findings of 22 plaintiff s weakness or motor loss which might have supported the treating 23 physician s opinions as to plaintiff s extreme limitations. (AR 24, 81-82, 87-88). 24 Dr. Samudrala s opinions also conflict with plaintiff s statements in her 25 physical therapy records that her pain level had progressively improved (i.e., May 26 27 28 5 See Cervical Osteoarthritis (Cervical Spondylosis), WebMD website available at http://www.webmd.com/osteoarthritis/cervical-osteoarthritis-cervical-spondylosis ( Cervical spondylosis is . . . a condition involving changes to the bones, discs, and joints of the neck. ). 9 1 4, 2007 note: [patient] reports [] neck is feeling much better ; May 14, 2007 note: 2 [patient] reports neck is feeling good; [patient] would like to start taking aerobics 3 classes which were approved by surgeon ; June 18, 2007 note: [patient] reports 4 neck is feeling good; [patient] is able to exercise w/o soreness during or after. ). 5 (AR 267-68). The testimony of the medical expert which is consistent with the 6 other medical evidence in the record (particularly Dr. Bleecker s opinions which 7 are based on that doctor s independent examination of plaintiff) constitutes 8 substantial evidence in support of the ALJ s rejection of Dr. Samudrala s opinions. 9 Morgan, 169 F.3d at 600. 10 Second, the ALJ also noted that Dr. Samudrala s progress reports rarely 11 contained physical examinations or clinical findings, and instead focus[ed] more 12 on [plaintiff s] complaints. (AR 24) (citing Exhibit 13F [AR 332-45]). The ALJ 13 properly discounted Dr. Samudrala s opinions to the extent they were based solely 14 on such subjective complaints. See, e.g., Bayliss v. Barnhart, 427 F.3d 1211, 1217 15 (9th Cir. 2005) (ALJ properly rejected opinion of treating physician which was 16 based solely on subjective complaints of claimant and information submitted by 17 claimant s family and friends). 18 Third, an ALJ may properly reject a treating physician s opinions that are 19 inconsistent with a claimant s demonstrated abilities. See Rollins v. Massanari, 20 261 F.3d 853, 856 (9th Cir. 2001) (ALJ properly rejected opinion of treating 21 physician who prescribed conservative treatment and where the plaintiff s 22 activities and lack of complaints were inconsistent with the physician s disability 23 assessment); Magallanes, 881 F.2d at 751-52 (ALJ may properly reject a medical 24 opinion if it is inconsistent with a plaintiff s demonstrated abilities). As the ALJ 25 correctly noted, Dr. Samudrala s opinions are inconsistent with plaintiff s request 26 to engage in aerobic exercise, her functional activity during physical therapy, and 27 her work from home as an on-line travel agent 2-3 hours each day. (AR 24) 28 (citing Exhibit 1E-2E [AR 156-62]; Exhibit 3F [AR 260-68]). 10 1 Finally, plaintiff suggests that testimony from the medical expert could not 2 serve as substantial evidence supporting the ALJ s decision to reject Dr. 3 Samudrala s opinions because the medical expert (1) had no expertise in 4 neurosurgery, orthopedics, or pain management, and no experience in treating 5 patients post-cervical fusions ; (2) was not adequately familiar with material 6 medical evidence in the record ; and (3) was unable to articulate any specific and 7 valid reasons for disagreeing with the [residual functional capacity] assessment 8 provided by Dr. Samudrala. (Plaintiff s Motion at 6-13). The Court disagrees. 9 First, since plaintiff did not claim at the administrative hearing that the medical 10 expert was not licensed as a physician, she waived any objection on that basis. 11 See Ischay v. Barnhart, 383 F. Supp. 2d 1199, 1222 n.16 (C.D. Cal. 2005) ( If a 12 party fails to object to an expert s qualifications at the hearing, he waives the right 13 to challenge them. ). Second, plaintiff s challenges to the medical expert s 14 experience in specific areas of medicine, to the expert s familiarity with the record 15 evidence, and to the substance of the expert s testimony raise issues of credibility 16 which are reserved solely to the ALJ. See Sample v. Schweiker, 694 F.2d 639, 17 642 (9th Cir. 1982) (Where medical reports are inconclusive, questions of 18 credibility and resolution of conflicts in the testimony are functions solely of the 19 Secretary. ) (citations and internal quotation marks omitted). 20 Accordingly, plaintiff is not entitled to a reversal or remand on this basis. 21 B. 22 23 The ALJ Properly Evaluated Plaintiff s Credibility 1. Pertinent Law An ALJ is not required to believe every allegation of disabling pain or other 24 non-exertional impairment. Orn, 495 F.3d at 635 (citing Fair v. Bowen, 885 F.2d 25 597, 603 (9th Cir. 1989)). If the record establishes the existence of a medically 26 determinable impairment that could reasonably give rise to symptoms assertedly 27 suffered by a claimant, an ALJ must make a finding as to the credibility of the 28 claimant s statements about the symptoms and their functional effect. Robbins, 11 1 466 F.3d 880 at 883 (citations omitted). Where the record includes objective 2 medical evidence that the claimant suffers from an impairment that could 3 reasonably produce the symptoms of which the claimant complains, an adverse 4 credibility finding must be based on clear and convincing reasons. Carmickle v. 5 Commissioner, Social Security Administration, 533 F.3d 1155, 1160 (9th Cir. 6 2008) (citations omitted). The only time this standard does not apply is when 7 there is affirmative evidence of malingering. Id. The ALJ s credibility findings 8 must be sufficiently specific to allow a reviewing court to conclude the ALJ 9 rejected the claimant s testimony on permissible grounds and did not arbitrarily 10 discredit the claimant s testimony. Moisa v. Barnhart, 367 F.3d 882, 885 (9th 11 Cir. 2004). 12 To find the claimant not credible, an ALJ must rely either on reasons 13 unrelated to the subjective testimony (e.g., reputation for dishonesty), internal 14 contradictions in the testimony, or conflicts between the claimant s testimony and 15 the claimant s conduct (e.g., daily activities, work record, unexplained or 16 inadequately explained failure to seek treatment or to follow prescribed course of 17 treatment). Orn, 495 F.3d at 636; Robbins, 466 F.3d at 883; Burch, 400 F.3d at 18 680-81; SSR 96-7p. Although an ALJ may not disregard a claimant s testimony 19 solely because it is not substantiated affirmatively by objective medical evidence, 20 the lack of medical evidence is a factor that the ALJ can consider in his credibility 21 assessment. Burch, 400 F.3d at 681. 22 Questions regarding a claimant s credibility and resolutions of conflicts in 23 the testimony are functions solely of the Commissioner. Greger v. Barnhart, 464 24 F.3d 968, 972 (9th Cir. 2006). If the ALJ s interpretation of the claimant s 25 testimony is reasonable and is supported by substantial evidence, it is not the 26 court s role to second- guess it. Rollins, 261 F.3d at 856. 27 /// 28 /// 12 1 2 2. Analysis Plaintiff contends that the ALJ failed properly to evaluate plaintiff s 3 credibility. (Plaintiff s Motion at 13-17). The Court disagrees. 4 First, the ALJ properly discredited plaintiff s subjective complaints due to 5 internal conflicts within plaintiff s own statements and testimony. See Light v. 6 Social Security Administration, 119 F.3d 789, 792 (9th Cir.), as amended (1997) 7 (in weighing plaintiff s credibility, ALJ may consider inconsistencies either in 8 [plaintiff s] testimony or between his testimony and his conduct ); see also Fair, 9 885 F.2d at 604 n.5 (9th Cir.1989) (ALJ can reject pain testimony based on 10 contradictions in plaintiff's testimony). As the ALJ correctly noted, plaintiff s 11 statements to her physical therapists in 2007 reflect that she actually experienced 12 improvement in her symptoms and limitations. For example, plaintiff stated that 13 her neck and shoulder always feel a little better each day, that she continues to 14 get stronger, has decreased pain, improved stability, and could do more 15 ADLs that [plaintiff] had difficulty with earlier. (AR 22) (citing Exhibit 3F at 416 6 [AR 263-65]). With respect to plaintiff s alleged anxiety and depression, 17 records from Dr. Rajiv Kumar, plaintiff s treating psychiatrist, reflect that from 18 February 2006 until July 2007, plaintiff s mental status evaluations were 19 consistently within normal limits, and plaintiff frequently reported improvement 20 in her symptoms (i.e., doing well, denied panic attacks , mentally better, 21 happy and excited with improvement in attitude, and mood stable ). (AR 23) 22 (citing Exhibit 4F at 8, 10, 14, 16 [AR 276, 278, 282, 284]). 23 Second, the ALJ properly discredited plaintiff s subjective complaints as 24 inconsistent with plaintiff s daily activities. See Thomas, 278 F.3d at 958-59 25 (inconsistency between the claimant s testimony and the claimant s conduct 26 supported rejection of the claimant s credibility); Verduzco v. Apfel,188 F.3d 27 1087, 1090 (9th Cir. 1999) (inconsistencies between claimant s testimony and 28 actions cited as a clear and convincing reason for rejecting the claimant s 13 1 testimony). As noted above, on May 14, 2007, plaintiff stated that she wanted to 2 start taking aerobics classes approved by her physician. (AR 22) (citing Exhibit 3 3F at 8 [AR 267]). In addition, although plaintiff experienced increased symptoms 4 in June 2008, she was still able to attend yoga classes. (AR 22) (citing Exhibit 5 15F at 2 [AR 359]). As the ALJ noted, plaintiff has consistently worked for 6 several hours per day, five days per week since her application date. (AR 23) 7 (citing Exhibits 1E-3E [AR 156-66]). It was reasonable for the ALJ to conclude 8 that, although plaintiff s daily work did not rise to the level of disqualifying 9 substantial gainful activity, it nonetheless suggests that plaintiff s daily activities 10 are to some extent greater than what she has alleged. (AR 23). 11 Third, an ALJ may properly consider a plaintiff s lack of treatment in 12 assessing her credibility. See Smolen v. Chater, 80 F.3d 1273, 1284 (9th Cir. 13 1996). Here, the ALJ noted that there was no record that plaintiff complained of 14 pain or other limitations from her shoulder and left foot injury during an August 15 15, 2006 examination of plaintiff by orthopedic surgeon Robert Gazmarian, and 16 no record of further treatment for such alleged impairments. 17 Finally, an ALJ may discredit a plaintiff s subjective symptom testimony in 18 part based on conflicts with objective medical evidence. Burch, 400 F.3d at 681; 19 Rollins, 261 F.3d at 857 ( While subjective pain testimony cannot be rejected on 20 the sole ground that it is not fully corroborated by objective medical evidence, the 21 medical evidence is still a relevant factor in determining the severity of the 22 claimant s pain and its disabling effects. ) (citation omitted). Here, the ALJ noted 23 that plaintiff s subjective symptoms were, in part, sufficiently managed by 24 plaintiff s medication. (AR 22) (citing Exhibit 15F at 5 [AR 362]). As the ALJ 25 also noted, the findings from Dr. Bleecker s examination of plaintiff are 26 inconsistent with disabling limitations. Dr. Bleecker noted that plaintiff 27 demonstrated only some decrease in range of motion of the cervical spine, had 28 normal range of motion of the bilateral shoulders, and decreased sensation to light 14 1 touch in only two fingers. Plaintiff s motor strength was intact, and plaintiff was 2 able to get on and off of the examination table with ease. In addition, Dr. 3 Bleecker s report does not reflect that plaintiff complained of pain upon range of 4 motion during the examination. (AR 22) (Citing Exhibit 7F [AR 292-95]). The 5 report of an examination on June 11, 2008 reflects that plaintiff had intact sensory, 6 motor, and reflexes in the upper extremities and only a slight decrease in 7 cervical flexion. (AR 362-63). The ALJ also discounted plaintiff s subjective 8 complaints in light of objective medical testing. (AR 22). A March 8, 2006 9 electromyelogram of plaintiff s upper extremities showed mild left C6 sensory 10 dysfunction, but otherwise normal bilateral C5, C7, and C8/T1 sensory 11 responses. (AR 250). An x-ray from approximately April 2008 shows a fracture 12 in plaintiff s cervical spine that was stable and essentially resorbing with 13 increase in the space between that fragment and the remaining bone with no 14 evidence of instability. (AR 338). An x-ray in February 2009 showed healing of 15 the T1 fracture, good position of the cervical spine, of the bones and hardware 16 with stable position of all the grafts. (AR 22, 336). The ALJ properly concluded 17 that all of the above referenced evidence conflicts with plaintiff s allegation that 18 significant subjective symptoms prevent her from working. (AR 22). 19 Since the ALJ provided clear and convincing reasons for discrediting 20 plaintiff s subjective complaints, plaintiff is not entitled to a reversal or remand on 21 this basis. 22 23 24 C. The ALJ Properly Considered Lay Witness Evidence 1. Pertinent Law Lay testimony as to a claimant s symptoms is competent evidence that an 25 ALJ must take into account, unless she expressly determines to disregard such 26 testimony and gives reasons germane to each witness for doing so. Stout, 454 27 F.3d at 1056 (citations omitted); Lewis v. Apfel, 236 F.3d 503, 511 (9th Cir. 28 2001); see also Robbins, 466 F.3d at 885 (ALJ required to account for all lay 15 1 witness testimony in discussion of findings) (citation omitted); Regennitter v. 2 Commissioner of Social Security Administration, 166 F.3d 1294, 1298 (9th Cir. 3 1999) (testimony by lay witness who has observed claimant is important source of 4 information about claimant s impairments); Nguyen v. Chater, 100 F.3d 1462, 5 1467 (9th Cir. 1996) (lay witness testimony as to claimant s symptoms or how 6 impairment affects ability to work is competent evidence and therefore cannot be 7 disregarded without comment) (citations omitted); Sprague v. Bowen, 812 F.2d 8 1226, 1232 (9th Cir. 1987) (ALJ must consider observations of non-medical 9 sources, e.g., lay witnesses, as to how impairment affects claimant s ability to 10 work). The standards discussed in these authorities appear equally applicable to 11 written statements. Cf. Schneider v. Commissioner of Social Security 12 Administration, 223 F.3d 968, 974-75 (9th Cir. 2000) (ALJ erred in failing to 13 consider letters submitted by claimant s friends and ex-employers in evaluating 14 severity of claimant s functional limitations). 15 In cases in which the ALJ s error lies in a failure to properly discuss 16 competent lay testimony favorable to the claimant, a reviewing court cannot 17 consider the error harmless unless it can confidently conclude that no reasonable 18 ALJ, when fully crediting the testimony, could have reached a different disability 19 determination. Robbins, 466 F.3d at 885 (quoting Stout, 454 F.3d at 1055-56). 20 21 2. Analysis In a Third Party Function Report dated February 9, 2008, plaintiff s 22 husband, Robert Gale, stated that (1) plaintiff has difficulty dressing and caring for 23 her hair because she is unable to raise her arms; (2) plaintiff and her husband hired 24 a housekeeper to assist with yard work, cleaning and laundry due to plaintiff s 25 difficulty performing those activities; and (3) plaintiff is unable to sit for extended 26 periods of time (collectively plaintiff s husband s statements ). (AR 21) (citing 27 Exhibit 7E [AR 193-200]). Plaintiff contends that the ALJ failed properly to 28 /// 16 1 consider plaintiff s husband s statements and failed to provide sufficient reasons 2 for disregarding them. (Plaintiff s Motion at 17). The Court disagrees. 3 First, the ALJ was not required to address cumulative lay statements which 4 were already accounted for in plaintiff s residual functional capacity assessment. 5 See Vincent v. Heckler, 739 F.2d 1393, 1394-95 (9th Cir. 1984) (citation omitted) 6 (ALJ must provide an explanation only when he rejects significant probative 7 evidence ). The ALJ assessed plaintiff as having the residual functional capacity 8 to perform light work with significant additional exertional limitations (i.e., the 9 ALJ s residual functional capacity assessment precludes plaintiff from performing 10 work that involves extreme range of movement with the neck, climbing ladders, 11 ropes and scaffolds, unprotected heights or dangerous machinery, or use of her left 12 arm for above-the-shoulder level work, and limit s plaintiff s use of her left lower 13 extremity for pushing and pulling and her right arm for above-the-shoulder level 14 work). (AR 21). The ALJ also limited plaintiff to sitting for six out of eight hours 15 per day. (AR 21). Plaintiff fails to demonstrate that such limitations in the ALJ s 16 residual functional capacity assessment fail to account for plaintiff s husband s 17 assertions that plaintiff has difficulty raising her arms, needs assistance with yard 18 work, cleaning and laundry, and is unable to sit for extended periods of time. 19 While plaintiff suggests that her husband s statements are evidence of more 20 significant limitations, this Court will not second-guess the ALJ s reasonable 21 interpretation that they are not, even if such evidence could give rise to inferences 22 more favorable to plaintiff. 23 Second, even if the ALJ rejected one or more of plaintiff s husband s 24 statements, she properly did so since such statements are essentially the same as 25 plaintiff s own subjective symptom testimony. Since, as discussed above, the ALJ 26 provided clear and convincing reasons for rejecting plaintiff s own subjective 27 complaints, it follows that the ALJ also gave germane reasons for rejecting 28 plaintiff s husband s similar statements. See Valentine v. Commissioner of Social 17 1 Security Administration, 574 F.3d 685, 693-94 (9th Cir. 2009) (ALJ properly 2 discounted spouse s testimony for same reasons used to discredit claimant s 3 complaints which were similar). 4 Accordingly, plaintiff is not entitled to a reversal or remand on this basis. 5 V. CONCLUSION 6 For the foregoing reasons, the decision of the Commissioner of Social 7 Security is affirmed. 8 LET JUDGMENT BE ENTERED ACCORDINGLY. 9 DATED: May 5, 2011 10 11 12 _____________/s/___________________ Honorable Jacqueline Chooljian UNITED STATES MAGISTRATE JUDGE 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 18
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