John Stuart Marshall v. Michael J Astrue, No. 2:2011cv07815 - Document 21 (C.D. Cal. 2012)
Court Description: MEMORANDUM AND OPINION AND ORDER by Magistrate Judge Sheri Pym: IT IS THEREFORE ORDERED that Judgment shall be entered AFFIRMING the decision of the Commissioner denying benefits, and dismissing this action with prejudice. (am)
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 JOHN STUART MARSHALL, 12 13 14 15 16 17 Plaintiff, v. MICHAEL J. ASTRUE, Commissioner of Social Security Administration, Defendant. ) Case No. CV 11-7815-SP ) ) ) ) MEMORANDUM OPINION AND ) ORDER ) ) ) ) ) ) ) 18 19 I. 20 INTRODUCTION 21 On September 21, 2011, plaintiff John Stuart Marshall filed a complaint 22 against defendant Michael J. Astrue, seeking a review of a denial of Disability 23 Insurance Benefits ( DIB ). Both plaintiff and defendant have consented to 24 proceed for all purposes before the Magistrate Judge pursuant to 28 U.S.C. § 636(c). 25 The parties briefing is now complete, and the court deems the matter suitable for 26 adjudication without oral argument. Having carefully studied, inter alia, the parties written submissions and the 27 28 Administrative Record ( AR ), the court concludes that, as detailed herein, there is 1 substantial evidence in the record, taken as whole, to support the ALJ s decision. 2 First, the ALJ properly rejected the opinions of the treating medical professionals. 3 Second, the ALJ provided clear and convincing reasons for rejecting plaintiff s 4 subjective complaints about his physical impairments. Third, the ALJ s assessment 5 of plaintiff s alleged sleep, fatigue, and concentration problems in finding plaintiff s 6 residual functional capacity ( RFC ) was proper. Therefore, the court affirms the 7 Commissioner s decision denying benefits. 8 II. 9 FACTUAL AND PROCEDURAL BACKGROUND 10 Plaintiff, who was fifty-eight years old on the date of his December 3, 2009 11 administrative hearing, has two master s degrees, one in business administration and 12 the other in applied statistics. See AR at 24. His past relevant work includes 13 employment as a business agent, a business manager, and a financial manager. Id. 14 at 52-53, 71. 15 On August 19, 2008, plaintiff applied for DIB, alleging that he had been 16 disabled since July 1, 2002, due to back, abdominal, and sleep problems. Id. at 11717 120, 128, 151. Plaintiff s application was denied initially and upon reconsideration, 18 after which he filed a request for a hearing.1 Id. at 60, 88-89. 19 On December 3, 2009, plaintiff, represented by counsel, appeared and 20 testified at a hearing before the ALJ. Id. at 18-51. The ALJ also heard testimony 21 from Howard J. Goldfarb, a vocational expert. Id. at 52-59. On March 26, 2010, 22 the ALJ denied plaintiff s request for benefits. Id. at 61-79. 23 Applying the well-known five-step sequential evaluation process, the ALJ 24 found, at step one, that plaintiff was not engaged in substantial gainful activity from 25 1 In the Disability Report Appeal Form, plaintiff reported that, in addition to the other impairments, he suffered from costochondritis, which he 27 claimed the initial review did not consider, and worsening depression. Id. at 13628 37. 26 2 1 July 1, 2002, his alleged disability onset date, to December 31, 2005, his date last 2 insured ( DLI ). Id. at 66. 3 At step two, the ALJ found that, through the DLI, plaintiff suffered from 4 severe medically determinable impairments consisting of: costochondritis (causing 5 chest wall pain), torn meniscus on the right knee, lumbar spine strain with disc 6 degeneration, and disc degeneration of the thoracic spine. Id. at 66-68. 7 At step three, the ALJ determined that the evidence does not demonstrate that 8 plaintiff s impairments, either individually or in combination, meet or medically 9 equal the severity of any listing set forth in 20 C.F.R. Part 404, Subpart P, Appendix 10 1. Id. at 68. 11 The ALJ then assessed plaintiff s RFC2 and determined that, through the DLI, 12 he can perform light work with the following limitations: lift/carry 20 pounds 13 occasionally and 10 pounds frequently with standing/walking and sitting up to 6 14 hours each in an 8-hour workday; no more than occasional stooping, crouching, 15 crawling, kneeling; and no concentrated exposure to unprotected heights or work 16 around dangerous machinery. Id. at 68 (emphasis omitted). 17 The ALJ found, at step four, that plaintiff was capable of performing past 18 relevant work as a sedentary, skilled worker, through the DLI, as a business agent, 19 a business manager, and a financial manager. Id. at 71. 20 At step five, based upon plaintiff s vocational factors and RFC, the ALJ 21 alternatively found that, through the date last insured, considering [plaintiff s] age, 22 education, work experience, and residual functional capacity, [plaintiff] was capable 23 24 2 Residual functional capacity is what a claimant can still do despite 25 existing exertional and nonexertional limitations. Cooper v. Sullivan, 880 F.2d 26 1152, 1155 n.5 (9th Cir. 1989). Between steps three and four of the five-step evaluation, the ALJ must proceed to an intermediate step in which the ALJ assesses 27 the claimant s residual functional capacity. Massachi v. Astrue, 486 F.3d 1149, 28 1151 n.2 (9th Cir. 2007) (citation omitted). 3 1 of making a successful adjustment to other work that exited in significant numbers 2 in the national economy. Id. at 72. The ALJ therefore concluded that plaintiff was 3 not suffering from a disability as defined by the Social Security Act. Id. 4 Plaintiff filed a timely request for review of the ALJ s decision, which was 5 denied by the Appeals Council on August 10, 2011. Id. at 1-6. The ALJ s decision 6 stands as the final decision of the Commissioner. 7 III. 8 STANDARD OF REVIEW 9 This court is empowered to review decisions by the Commissioner to deny 10 benefits. 42 U.S.C. § 405(g) (2010). The findings and decision of the Social 11 Security Administration must be upheld if they are free of legal error and supported 12 by substantial evidence. Mayes v. Massanari, 276 F.3d 453, 458-59 (9th Cir. 2001). 13 But if the court determines that the ALJ s findings are based on legal error or are 14 not supported by substantial evidence in the record, the court may reject the findings 15 and set aside the decision to deny benefits. Aukland v. Massanari, 257 F.3d 1033, 16 1035 (9th Cir. 2001); Tonapetyan v. Halter, 242 F.3d 1144, 1147 (9th Cir. 2001). 17 Substantial evidence is more than a mere scintilla, but less than a 18 preponderance. Aukland, 257 F.3d at 1035. Substantial evidence is such relevant 19 evidence which a reasonable person might accept as adequate to support a 20 conclusion. Reddick v. Chater, 157 F.3d 715, 720 (9th Cir. 1998); Mayes, 276 21 F.3d at 459. To determine whether substantial evidence supports the ALJ s finding, 22 the reviewing court must review the administrative record as a whole, weighing 23 both the evidence that supports and the evidence that detracts from the ALJ s 24 conclusion. Mayes, 276 F.3d at 459. The ALJ s decision cannot be affirmed 25 simply by isolating a specific quantum of supporting evidence. Aukland, 257 F.3d 26 at 1035 (quoting Sousa v. Callahan, 143 F.3d 1240, 1243 (9th Cir. 1998)). If the 27 evidence can reasonably support either affirming or reversing the ALJ s decision, 28 the reviewing court may not substitute its judgment for that of the ALJ. Id. 4 1 (quoting Matney ex rel. Matney v. Sullivan, 981 F.2d 1016, 1018 (9th Cir. 1992)). 2 IV. 3 DISCUSSION 4 A. The ALJ Properly Rejected the Opinions of Plaintiff s Treating 5 Physician and Chiropractor 6 Plaintiff contends that the ALJ improperly discredited the opinions of his 7 treating physician, William Costigan, M.D., and his chiropractor, Mark Anthony, 8 D.C., while relying heavily on relied on the medical opinions of Andrew Roth, 9 M.D., who examined plaintiff after the DLI. Pl. s Mem. at 5-12. The court 10 disagrees, for the reasons discussed below. 11 In evaluating medical opinions, Ninth Circuit case law and Social Security 12 regulations distinguish among the opinions of three types of physicians: (1) those 13 who treat the claimant (treating physicians); (2) those who examine but do not treat 14 the claimant (examining physicians); and (3) those who neither examine nor treat 15 the claimant (nonexamining physicians). Lester v. Chater, 81 F.3d 821, 830 (9th 16 Cir. 1996); see also 20 C.F.R. § 404.1527(c) (2012) (prescribing the respective 17 weight to be given the opinions of treating sources and examining sources). As a 18 general rule, more weight should be given to the opinion of a treating source than to 19 the opinion of doctors who do not treat the claimant. Lester, 81 F.3d at 830 20 (citation omitted); accord Benton ex rel. Benton v. Barnhart, 331 F.3d 1030, 1036 21 (9th Cir. 2003). This is so because a treating physician is employed to cure and 22 has a greater opportunity to know and observe the patient as an individual. 23 Sprague v. Bowen, 812 F.2d 1226, 1230 (9th Cir. 1987) (citation omitted). The 24 opinion of an examining physician is, in turn, entitled to greater weight than the 25 opinion of a nonexamining physician. Lester, 81 F.3d at 830 (citations omitted). 26 Where the treating physician s opinion is not contradicted by another doctor, 27 it may be rejected only for clear and convincing reasons. Benton, 331 F.3d at 28 1036; see also Andrews v. Shalala, 53 F.3d 1035, 1041 (9th Cir. 1995) ( While the 5 1 ALJ may disregard the opinion of a treating physician, whether or not controverted, 2 the ALJ may reject an uncontroverted opinion of a treating physician only for clear 3 and convincing reasons. (citation omitted)). Even if the treating doctor s opinion 4 is contradicted by another doctor, the [ALJ] may not reject this opinion without 5 providing specific and legitimate reasons supported by substantial evidence in the 6 record for doing so. Lester, 81 F.3d at 830 (internal quotation marks and citation 7 omitted); accord Reddick, 157 F.3d at 725. The ALJ can meet the requisite specific 8 and legitimate standard by setting out a detailed and thorough summary of the facts 9 and conflicting clinical evidence, stating his interpretation thereof, and making 10 findings. Magallanes v. Bowen, 881 F.2d 747, 751 (9th Cir. 1989) (internal 11 quotation marks and citation omitted). 12 Here, the ALJ set[] out a detailed and thorough summary of the facts and 13 conflicting clinical evidence, stat[ed] his interpretation thereof, and ultimately gave 14 significant weight to Dr. Roth s opinion while attaching little weight to the 15 opinions of Dr. Costigan and Dr. Anthony. See Magallanes, 881 F.2d at 751 16 (internal quotation marks and citation omitted); AR at 70. Having duly reviewed 17 the record and the parties written submissions, the court finds that the ALJ properly 18 rejected the opinions of Dr. Costigan and Dr. Anthony regarding plaintiff s RFC. 19 First, the ALJ attached little weight to the opinions of Dr. Costigan from 20 April 2003 through June 2003 (as well as to the opinions of Gregory Adamson, 21 M.D., who also examined plaintiff in the same time period). AR at 70. The ALJ 22 considered Dr. Costigan s opinions that plaintiff was unable to perform any lifting, 23 driving, bending, or prolonged standing/walking and/or sitting for more than 30 24 minutes at a time . . . . Id. But the ALJ found no objective support for such 25 opinions and observed that those limitations/restrictions seem to be more 26 prophylactic in nature rather than a statement of claimant s greatest capacity. Id.; 27 see 20 C.F.R. § 404.1545(a)(1) (RFC is the most you can still do despite your 28 limitations ). This is a specific and legitimate reason for rejecting Dr. Costigan s 6 1 opinion. See Batson v. Comm r, 359 F.3d 1190, 1195 (9th Cir. 2004) (an ALJ may 2 discredit treating medical opinions that are conclusory, brief, and unsupported by 3 the record as a whole or by objective medical findings); Thomas v. Barnhart, 278 4 F.3d 947, 957 (9th Cir. 2002) ( The ALJ need not accept the opinion of any 5 physician, including a treating physician, if that opinion is brief, conclusory, and 6 inadequately supported by clinical findings (citation omitted)). 7 In his briefing, plaintiff argues Dr. Costigan s opinions should have been 8 given more weight, [g]iven the fact that [he] performed twenty three physical 9 examinations of the Plaintiff between July 23, 2002 and April 14, 2004, and ordered 10 and reviewed diagnostic studies confirming orthopedic problems . . . . Pl. s Mem. 11 at 7; see also Reply at 4-6. But none of the records from July 2002 through April 12 2004 documenting Dr. Costigan s treatment of plaintiff, his assessment of plaintiff s 13 functional capacity, and his review of diagnostic studies such as magnetic resonance 14 imaging ( MRI ) provide direct, specific, and objective support for the above15 described physical limitations. See AR at 214-55, 352-54. Instead, the ALJ found 16 that plaintiff s testimony at the administrative hearing that between 2002 and 17 2005, plaintiff was able to lift 30 to 40 pound[s], walk approximately 400 yards, 18 [and drove himself to] physical therapy sessions . . . approximately 4 days a week 19 contradicted the physical limitations identified by Dr. Costigan during the same 20 period. See AR at 70; see also id. at 38-39, 43-45. Inconsistency between a 21 treating physician s opinion and a claimant s daily activities may be a specific and 22 legitimate reason for rejecting the opinion. Rollins v. Massanari, 261 F.3d 853, 856 23 (9th Cir. 2001). Considering the record as a whole, the ALJ was justified in 24 concluding that Dr. Costigan s opinions were not based on objective support. 25 Second, the ALJ discounted Dr. Anthony s opinions because Dr. Anthony is a 26 chiropractor and because his opinions were not supported by objective evidence. 27 28 7 1 AR at 70. Relying on Social Security Ruling ( SSR ) 06-3p,3 the ALJ appears to 2 have given Dr. Anthony s opinions less weight than acceptable sources of 3 medical information such as licensed physicians whose opinions carry special 4 weight. Id.; 20 C.F.R. § 404.1513(a), (e). The ALJ also rejected Dr. Anthony s 5 opinions because the ALJ found the opinions to be unsupported by substantial 6 objective evidence. AR at 70. The ALJ pointed out, for example, Dr. Anthony s 7 February 2008 report in which Dr. Anthony limited plaintiff to lifting 5 pounds, 8 revising an earlier lifting restriction of 25 pounds maximum. Id. at 70, 301-303, 9 305. The ALJ found the revised limitations and restrictions set forth in that report 10 to have no convincing basis, as Dr. Anthony s reason for the revision was only 11 that 25 pounds was too heavy. Id. at 70, 305. Dr. Anthony never explained 12 through objective evidence why plaintiff was restricted to 5 pounds, as opposed to 13 10, 15, or 20 pounds. Instead, as the ALJ found, Dr. Anthony essentially 14 record[ed] what [plaintiff] reported to him, which qualifies only as a record of 15 plaintiff s subjective complaints. Id. at 70, 304-06. 16 The ALJ also found Dr. Anthony s February 2008 report to be without 17 objective support because the report was inconsistent with plaintiff s testimony that 18 he could lift 30-40 pounds. Id. at 70; see also id. at 44-45, 304-06. In his briefing, 19 plaintiff argues that the ALJ inaccurately characterized plaintiff as capable of lifting 20 30 to 40 pounds regularly in 2002-2005. Pl. s Mem. at 8. Plaintiff points out that 21 he also testified that he could only lift that amount of weight for 20 feet and doing 22 it just once would trigger significant muscle spasms. Id.; AR at 44-45. The ALJ s 23 24 25 26 27 28 3 The Commissioner issues Social Security Rulings to clarify the Act s implementing regulations and the agency s policies. SSRs are binding on all components of the [Social Security Administration]. SSRs do not have the force of law. However, because they represent the Commissioner s interpretation of the agency s regulations, we give them some deference. We will not defer to SSRs if they are inconsistent with the statute or regulations. Holohan v. Massanari, 246 F.3d 1195, 1203 n.1 (9th Cir. 2001) (internal citations omitted). 8 1 finding of inconsistency, however, was correct in that Dr. Anthony s report and 2 plaintiff s testimony did conflict as to plaintiff s greatest capacity the most 3 plaintiff could do despite his limitations. See 20 C.F.R. § 404.1545(a)(1). 4 Therefore, the ALJ was justified in rejecting Dr. Anthony s opinions. 5 Third, the opinions of Dr. Costigan and Dr. Anthony are unsupported by the 6 opinions of Dr. Roth, an independent medical evaluator who examined plaintiff s 7 medical history dating back to the 1990s and conducted his own orthopedic 8 examination of plaintiff in 2007. AR at 70, 307-61. Attaching significant weight 9 to Dr. Roth s opinions, the ALJ accepted Dr. Roth s conclusion that no evidence of 10 positive objective findings could be found in support of plaintiff and that no 11 functional limitations could be assessed. AR at 70, 348. 12 Plaintiff argues in his briefing that because Dr. Roth s findings were made in 13 2007, well after plaintiff s DLI of December 31, 2005, plaintiff s complaints cannot 14 be measured against those findings, and Dr. Roth s opinions cannot override the 15 conclusions of Dr. Costigan and Dr. Anthony who treated and examined plaintiff 16 over the course of about three years each during the insured period. Pl. s Mem. at 17 9-11; Reply at 4-6. Plaintiff also asserts it was improper and inconsistent for the 18 ALJ to accept Dr. Roth s opinions, which were formed after the DLI, while 19 rejecting plaintiff s depression for being a post-DLI impairment. Pl. s Mem. at 920 10. In addition, plaintiff contends Dr. Roth s opinions must be discounted because 21 his opinions were solicited by an employee of an insurance company, which was 22 determining plaintiff s insurance eligibility. Id. at 10. Plaintiff argues that because 23 Dr. Roth s report arose in that adversarial context, Dr. Roth s opinions are not 24 the most neutral evidence to consider when assessing Plaintiff s limitations. Id. 25 Plaintiff s arguments against the ALJ s adoption of Dr. Roth s opinions fail 26 for the following reasons. First, as plaintiff concedes, medical evaluations made 27 after the expiration of a claimant s insured status are relevant to an evaluation of the 28 pre-expiration condition. Smith v. Bowen, 849 F.2d 1222, 1225 (9th Cir. 1988) 9 1 (citations omitted); Flaten v. Sec y of Health & Human Servs., 44 F.3d 1453, 1461 2 n.5 (9th Cir. 1995) (citation omitted) ( Retrospective diagnoses by treating 3 physicians and medical experts, contemporaneous medical records, and testimony 4 from family, friends, and neighbors are all relevant to the determination of a 5 continuously existing disability with onset prior to expiration of insured status. ). 6 Nothing bars the ALJ from relying on a retroactive evaluation by a physician or 7 from giving the evaluation more significant weight than the opinions of treating 8 medical professionals as long as the ALJ provides specific and legitimate reasons 9 supported by substantial evidence in the record for doing so. Lester, 81 F.3d at 10 830 (internal quotation marks and citation omitted). As discussed above, the ALJ 11 provided specific and legitimate reasons why he could not find objective support for 12 the opinions of Dr. Costigan and Dr. Anthony. The ALJ also pointed to Dr. Roth s 13 finding of an entirely normal orthopedic examination with no evidence of positive 14 objective findings . . . [and] no functional limitations. AR at 70, 348-50. These 15 are sufficiently specific and valid reasons offered by the ALJ to contradict the 16 opinions of Dr. Costigan and Dr. Anthony. Furthermore, because a claimant who is 17 applying for DIB after the DLI has the burden to show that his health condition was 18 continuously disabling from the time of onset during insured status to the time of 19 application for benefits (Flaten, 44 F.3d at 1460), and because plaintiff here did 20 not apply for DIB until August 19, 2008, Dr. Roth s 2007 evaluation of plaintiff and 21 finding of no functional limitations is particularly relevant in this case. AR at 70. 22 Next, there was no inconsistency between the ALJ s acceptance of Dr. Roth s 23 opinions and the ALJ s rejection of depression as a qualifying impairment. As 24 noted above, a medical opinion offered after the DIL is relevant to the determination 25 of RFC. But in order to receive benefits, a plaintiff must establish that his or her 26 disability began on or prior to the DIL. See Flaten, 44 F.3d at 1458. Here, the ALJ 27 concluded that the symptoms of plaintiff s depression started after plaintiff s mother 28 died in July 2008, well after plaintiff s DIL. AR at 67-68. 10 1 Finally, plaintiff s argument that Dr. Roth s opinions lack reliability because 2 they arose out of the adversarial context of insurance eligibility determination is 3 without legal basis. See Pl. s Mem. at 10. 4 Having considered the ALJ s stated reasons for discounting the opinions of 5 Dr. Costigan and Dr. Anthony and for adopting Dr. Roth s opinions, as well as 6 plaintiff s arguments in his briefing, the court finds that the ALJ properly accorded 7 significant weight to Dr. Roth s opinions. AR at 70; see Magallanes, 881 F.2d at 8 751 (examining physician s opinion may constitute substantial evidence if the 9 nontreating physician relies on independent clinical findings that differ from the 10 findings of the treating physician (internal quotation marks and citations omitted)). 11 Accordingly, the ALJ did not err in evaluating the medical opinions here. 12 B. The ALJ Provided Clear and Convincing Reasons for Discounting 13 Plaintiff s Credibility and Subjective Complaints 14 Plaintiff argues that the ALJ failed to provide clear and convincing reasons 15 for rejecting his subjective complaints regarding the painful muscle spasms he 16 suffered in the back, thoracic, and abdominal areas and the resulting sleep problems 17 he experienced during the insured period. Pl. s Mem. at 12. Plaintiff principally 18 asserts that the ALJ erred in discounting his testimony based on evidence of 19 plaintiff s daily activities, as the ALJ mischaracterized statements in the record 20 regarding those activities. Id. Plaintiff maintains that the exhibit upon which the 21 ALJ relied to discredit the Plaintiff s testimony [regarding his capacity for certain 22 daily activities] does not contain sufficient specificity of the nature and extent of the 23 Plaintiff s ability to perform some activities of daily living. Id. at 14. Plaintiff also 24 alleges the ALJ erred in discounting his credibility based on his discontinuation of 25 pain medication, as the ALJ failed to consider the reasons plaintiff provided for not 26 taking pain medication. Id. at 15. 27 A plaintiff claiming DIB carries the burden of producing objective medical 28 evidence of his or her impairments and showing that the impairments could 11 1 reasonably be expected to produce some degree of the alleged symptoms. Benton, 2 331 F.3d at 1040. But once the claimant meets that burden, medical findings are not 3 required to support the alleged severity of pain. Bunnell v. Sullivan, 947 F.2d 341, 4 345 (9th Cir. 1991) (en banc); see also Light v. Soc. Sec. Admin., 119 F.3d 789, 792 5 (9th Cir. 1997) ( claimant need not present clinical or diagnostic evidence to 6 support the severity of his pain (citation omitted)). 7 Instead, once the claimant has met the burden of producing objective medical 8 evidence, an ALJ can reject the claimant s subjective complaint only upon 9 (1) finding evidence of malingering, or (2) expressing clear and convincing reasons 10 for doing so. Benton, 331 F.3d at 1040. The ALJ may consider the following 11 factors in weighing the claimant s credibility: (1) his or her reputation for 12 truthfulness; (2) inconsistencies either in the claimant s testimony or between the 13 claimant s testimony and his or her conduct; (3) his or her daily activities; (4) his or 14 her work record; and (5) testimony from physicians and third parties concerning the 15 nature, severity, and effect of the symptoms of which the claimant complains. 16 Thomas, 278 F.3d at 958-59. Here, the ALJ did not find evidence of malingering. 17 See generally AR at 55-57. Thus, in rejecting plaintiff s credibility, the ALJ was 18 required to articulate clear and convincing reasons. See Benton, 331 F.3d at 1040. 19 Having carefully reviewed the record, the court finds that the ALJ provided several 20 clear and convincing reasons for discounting plaintiff s subjective complaints. 21 First, the ALJ found the objective medical evidence did not support plaintiff s 22 subjective complaints. AR at 69. Based on the medical evidence in the record, the 23 ALJ credited plaintiff as having had severe impairments of costoconchondritis/ 24 chest wall pain; torn meniscus, right knee; lumbar spine strain with disc 25 degeneration; disc degeneration, thoracic spine as well as sleep problems arising 26 from these impairments during the insured period. Id. at 66-67. But in the 27 Independent Medical Evaluation filed by Dr. Roth, which includes a 28 comprehensive medical history and medical records, and orthopedic examination, 12 1 the ALJ found objective medical evidence to discredit plaintiff s subjective 2 complaint that he is unable to work. Id. at 70. As defendant points out in his 3 briefing, the ALJ found evidence of plaintiff having full range of motion of the 4 knee and lumbar spine without pain by December 2002 (id. at 67, 194), no 5 functional limitations based on an entirely normal orthopedic examination in 6 October 2007 (after which Dr. Roth, the examining physician, declared that plaintiff 7 was ready to perform his job on a full 5-day work week ) (id. at 70, 349-50), and 8 no significant stenosis of the thoracic spine by June 2008 (id. at 67, 370). Def. s 9 Mem. at 10. These are clear and convincing reasons based on objective medical 10 evidence that allowed the ALJ to properly discredit plaintiff s subjective 11 complaints. Although a lack of medical evidence supporting plaintiff s alleged 12 symptoms cannot be the sole reason for rejecting his testimony, it can be one of 13 several factors used in evaluating the credibility of his subjective complaints. See 14 Rollins, 261 F.3d at 856-57. 15 Second, the ALJ properly found that plaintiff s statements concerning the 16 intensity, persistence, and limiting effects of the symptoms were contradicted by 17 plaintiff s own testimony and evidence of his activities. AR at 69; see also Thomas, 18 278 F.3d at 958-59 (when weighing a claimant s credibility, the ALJ may consider 19 inconsistencies between the claimant s testimony and daily activities); Tonapetyan, 20 242 F.3d at 1148 (an ALJ may engage in ordinary techniques of credibility 21 evaluation, such as considering inconsistencies in a claimant s testimony). The ALJ 22 particularly found inconsistency between plaintiff s complaint that his spasms, 23 even on a good day, significantly impacted upon his ability to maintain normal 24 activities of daily living and surveillance video recordings of plaintiff from late 25 2003 in which he was filmed running errands, carrying a piece of luggage over his 26 shoulder, driving, taking long walks, dumping trash cans in a dumpster, riding a 27 bike, and performing other activities of daily living. AR at 69, 346. Plaintiff 28 challenges the ALJ s characterization of the surveillance videos by asserting that the 13 1 weight of the items lifted and the actual walking and driving times and distances 2 covered by plaintiff remain unknown. Pl. s Mem. at 12-13. The court disagrees. 3 Even though not all facts about the surveillance videos are ascertainable from the 4 record, the ALJ s finding of inconsistency between plaintiff s subjective complaints 5 and the surveillance recordings is supported by the record. 6 Third, the ALJ properly considered, as part of his overall evaluation of the 7 record, plaintiff s 2004 decision to stop taking pain medications and the fact that 8 no physician of record ever recommended surgical intervention to address his 9 subjective complaints of spasms. See AR at 69-70; Meanel v. Apfel, 172 F.3d 10 1111, 1114 (9th Cir. 1999) (the ALJ properly considered, as part of credibility 11 evaluation, treating physician s failure to prescribe, and the claimant s failure to 12 request, medical treatment commensurate with the supposedly excruciating pain 13 alleged, and the minimal, conservative treatment ) (citation omitted); Parra v. 14 Astrue, 481 F.3d 742, 751 (9th Cir. 2007) ( [E]vidence of conservative treatment 15 is sufficient to discount a claimant s testimony regarding severity of an 16 impairment. ); see Fair v. Bowen, 885 F.2d 597, 604 (9th Cir. 1989) (the ALJ 17 permissibly considered discrepancies between the claimant s allegations of 18 persistent and increasingly severe pain and the nature and extent of treatment 19 obtained). Plaintiff explains in his briefing that he chose to discontinue pain 20 medications because he wanted to undertake alternative forms of treatment, which 21 led to better pain relief. Pl. s Mem. at 15. The ALJ did recognize the panoply of 22 treatments physicians recommended and plaintiff sought (AR at 69-70); plaintiff is 23 incorrect in implying that the ALJ stated plaintiff ceased pain treatment altogether. 24 As such, the ALJ did not err in suggesting that the treatments plaintiff received were 25 not consistent with the alleged severity of plaintiff s impairments. Id. 26 Accordingly, the court finds that the ALJ provided clear and convincing 27 reasons, supported by substantial evidence, for discounting plaintiff s subjective 28 complaints. 14 1 C. The ALJ Did Not Err in His Assessment of Plaintiff s Alleged Sleep, 2 Fatigue, and Concentration Problems in the RFC Determination. 3 Plaintiff argues that the ALJ failed to adequately consider plaintiff s fatigue 4 resulting from interrupted sleep. Pl. s Mem. at 14, 16-17. Specifically, plaintiff 5 indicates in his briefing that the ALJ s RFC assessment was based on purely 6 exertional limitations, without considering the impact of fatigue and 7 concentration problems resulting from lack of sleep and lack of sleep due to pain 8 upon plaintiff s exertional activity. Id. at 16; Reply at 6-7. Plaintiff argues sleep 9 deprivation was the main problem he identified in his application for DIB; thus, it 10 should have been assessed more fully. Pl. s Mem. at 16-17. 11 While plaintiff s is correct to point out that the ALJ did not address plaintiff s 12 sleep problem extensively, the ALJ did discuss the issue as one of several problems 13 associated with thoracic and lumbar issues. AR at 67-69. As part of his 14 examination of the entire record, the ALJ examined the evidence for pain 15 interfering with [plaintiff s] ability to sleep well and [plaintiff s] inability to 16 obtain adequate levels of sleep [which] significantly interfered with his ability to 17 maintain adequate levels of concentration. Id. at 68, 69, 70. The ALJ concluded 18 that plaintiff had the residual functional capacity to perform a restricted range of 19 light work, and that even if plaintiff is restricted to the performance of simple 20 work based upon his alleged symptoms of pain, fatigue, and limited concentration, 21 there would be other jobs existing in the national economy that he is able to 22 perform utilizing his RFC. Id. at 68, 71. 23 The court finds that the ALJ adequately considered and discounted plaintiff s 24 complaints of sleep, fatigue, and concentration problems when the ALJ made his 25 RFC determination. Despite plaintiff s listing of sleep deprivation as the main 26 problem in his application for DIB (Pl. s Mem. at 16), sleep deprivation is 27 nonetheless a derivative problem, the existence and severity of which come into 28 question once plaintiff s subjective complaints about the source of the problem 15 1 pain from back, thoracic, and abdominal regions are found to be not fully credible. 2 In other words, once the ALJ discredited plaintiff s subjective allegations about his 3 pain and functional limitations, the allegations of pain-induced sleep, fatigue, and 4 concentration problems also lost credibility. As he provided clear and convincing 5 reasons to discount plaintiff s subjective complaints about the underlying physical 6 impairments, the ALJ was not required to engage in a separate extended analysis of 7 the sleep and fatigue problems, which allegedly arose from the physical 8 impairments. Having determined that the ALJ did not err in rejecting the opinions 9 of Dr. Costigan and Dr. Anthony, adopting Dr. Roth s opinions, and discounting 10 plaintiff s subjective complaints, the court accordingly finds that the ALJ did not err 11 in his assessment of plaintiff s pain, fatigue, and concentration problems in the RFC 12 determination. 13 V. 14 CONCLUSION 15 IT IS THEREFORE ORDERED that Judgment shall be entered AFFIRMING 16 the decision of the Commissioner denying benefits, and dismissing this action with 17 prejudice. 18 19 Dated: September 17, 2012 20 ____________________________________ 21 SHERI PYM UNITED STATES MAGISTRATE JUDGE 22 23 24 25 26 27 28 16
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