Don Jose Lamb v. Michael J Astrue, No. 2:2012cv01605 - Document 17 (C.D. Cal. 2012)

Court Description: MEMORANDUM OPINION AND ORDER by Magistrate Judge Alicia G. Rosenberg. Plaintiff Don Jose Lamb filed this action on February 24, 2012. Pursuant to 28 U.S.C. § 636(c), the parties consented to proceed before the magistrate judge on April 10 and 1 3, 2012. (Dkt. Nos. 11, 12.) On September 28, 2012, the parties filed a Joint Stipulation (JS) that addressed the disputed issues. The court has taken the matter under submission without oral argument. Having reviewed the entire file, the court affirms the decision of the Commissioner. IT IS HEREBY ORDERED that the decision of the Commissioner is affirmed. (See Order for details.) (mp)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 DON JOSE LAMB, 12 Plaintiff, 13 v. 14 15 16 MICHAEL J. ASTRUE, Commissioner of Social Security, Defendant. 17 ) ) ) ) ) ) ) ) ) ) ) ) NO. CV 12-1605 AGR MEMORANDUM OPINION AND ORDER 18 Plaintiff Don Jose Lamb filed this action on February 24, 2012. Pursuant to 19 28 U.S.C. § 636(c), the parties consented to proceed before the magistrate judge 20 on April 10 and 13, 2012. (Dkt. Nos. 11, 12.) On September 28, 2012, the 21 parties filed a Joint Stipulation ( JS ) that addressed the disputed issues. The 22 court has taken the matter under submission without oral argument. 23 24 25 26 27 28 Having reviewed the entire file, the court affirms the decision of the Commissioner. 1 I. 2 PROCEDURAL BACKGROUND 3 On May 27, 2009, Lamb filed an application for disability insurance 4 benefits. Administrative Record ( AR ) 118-19. On May 28, 2009, Lamb filed an 5 application for supplemental security income. AR 125-131. In both applications, 6 he alleged a disability onset date of December 31, 2001. AR 118, 125. The 7 applications were denied initially and on reconsideration. AR 55-58. Lamb 8 requested a hearing before an Administrative Law Judge ( ALJ ). AR 78. On 9 November 2, 2010, the ALJ conducted a hearing at which Lamb, a medical 10 expert and a vocational expert testified. AR 39-54. On November 18, 2010, the 11 ALJ issued a decision denying benefits. AR 19-29. On January 5, 2012, the 12 Appeals Council denied Lamb s request for review. AR 1-5. This action followed. 13 II. 14 STANDARD OF REVIEW 15 Pursuant to 42 U.S.C. § 405(g), this court reviews the Commissioner s 16 decision to deny benefits. The decision will be disturbed only if it is not supported 17 by substantial evidence, or if it is based upon the application of improper legal 18 standards. Moncada v. Chater, 60 F.3d 521, 523 (9th Cir. 1995) (per curiam); 19 Drouin v. Sullivan, 966 F.2d 1255, 1257 (9th Cir. 1992). 20 Substantial evidence means more than a mere scintilla but less than a 21 preponderance it is such relevant evidence that a reasonable mind might 22 accept as adequate to support the conclusion. Moncada, 60 F.3d at 523. In 23 determining whether substantial evidence exists to support the Commissioner s 24 decision, the court examines the administrative record as a whole, considering 25 adverse as well as supporting evidence. Drouin, 966 F.2d at 1257. When the 26 evidence is susceptible to more than one rational interpretation, the court must 27 defer to the Commissioner s decision. Moncada, 60 F.3d at 523. 28 2 1 III. 2 DISCUSSION 3 A. 4 A person qualifies as disabled, and thereby eligible for such benefits, only 5 if his physical or mental impairment or impairments are of such severity that he is 6 not only unable to do his previous work but cannot, considering his age, 7 education, and work experience, engage in any other kind of substantial gainful 8 work which exists in the national economy. Barnhart v. Thomas, 540 U.S. 20, 9 21-22, 124 S. Ct. 376, 157 L. Ed. 2d 333 (2003) (citation and quotation marks Disability 10 omitted). 11 B. 12 The ALJ found Lamb has the medically determinable impairments of mild The ALJ s Findings 13 degenerative changes at L5-S1 with partial sacralization and status post gunshot 14 wound to the lower back. AR 24. Lamb has the residual functional capacity 15 ( RFC ) to perform a full range of medium work. AR 27. He can perform his past 16 relevant work as a janitor and security guard. AR 28. 17 C. 18 On July 23, 2010, Dr. Bleakley co-signed a Physical Residual Functional 19 Capacity Questionnaire prepared by a physician assistant ( Celona ). AR 338. 20 Lamb contends the ALJ did not properly consider that opinion.1 21 Treating Physician An opinion of a treating physician is given more weight than the opinion of 22 non-treating physicians. Orn v. Astrue, 495 F.3d 625, 631 (9th Cir. 2007). To 23 reject an uncontradicted opinion of a treating physician, an ALJ must state clear 24 and convincing reasons that are supported by substantial evidence. Bayliss v. 25 Barnhart, 427 F.3d 1211, 1216 (9th Cir. 2005). When, as here, a treating 26 27 28 1 The ALJ considered Celona s opinion as coming from a treating physician. AR 28. Because Celona s assessment is co-signed by a medical doctor, this court also considers the opinion as coming from an acceptable source. See, e.g., Gomez v. Chater, 74 F.3d 967, 971 (9th Cir.1996). 3 1 physician s opinion is contradicted by another doctor, the ALJ may not reject this 2 opinion without providing specific and legitimate reasons supported by substantial 3 evidence in the record. This can be done by setting out a detailed and thorough 4 summary of the facts and conflicting clinical evidence, stating his interpretation 5 thereof, and making findings. Orn, 495 F.3d at 632 (citations and quotation 6 marks omitted). When there is conflicting medical evidence, the Secretary must 7 determine credibility and resolve the conflict. Thomas v. Barnhart, 278 F.3d 947, 8 956-57 (9th Cir. 2002) (citation and quotation marks omitted). 9 On the Questionnaire, Celona diagnosed Lamb with hypertension, tobacco 10 abuse, substance abuse disorder alcohol, mild disc space narrowing at L5-S1, 11 chronic low back pain, dyslipidemia and carpal tunnel syndrome. AR 335. 12 Celona opined that Lamb can sit, stand and walk less than 2 hours in an 8-hour 13 day. AR 337. He requires a break every 10-15 minutes. Id. Lamb can lift and/or 14 carry less than ten pounds occasionally, ten pounds rarely, and never more than 15 twenty pounds. Id. He would be absent from work more than four days per 16 month. AR 338. 17 The ALJ rejected Celona s opinion because it was unsupported by the 18 objective findings in the record and was contradicted by the medical expert s 19 opinion. AR 28. The ALJ articulated specific and legitimate reasons supported 20 by substantial evidence in the record for discounting Celona s opinion. 21 The ALJ noted that, in the six months leading up to Celona s July 23, 2010 22 opinion, Lamb reported that his pain was well controlled with medication.2 AR 26, 23 253, 323-25. The ALJ also examined the prior medical records, which generally 24 reflected mild, normal or improved findings. See generally AR 24-26, 190-99, 25 201-09, 211-29, 234-89, 317-26, 344-62; Macri v. Chater, 93 F.3d 540, 543-44 26 27 28 2 The ALJ noted that, on the date Celona filled out the forms, Lamb reported that he had lower back pain and stiffness, and was unable to tolerate sitting or standing for more than 5-10 minutes at a time. AR 26, 320. 4 1 (9th Cir.1996) (ALJ is entitled to draw inferences logically flowing from the 2 evidence). 3 The ALJ also relied upon the medical expert s opinion. AR 28. The 4 opinion of a nonexamining physician cannot by itself constitute substantial 5 evidence that justifies the rejection of the opinion of either an examining physician 6 or a treating physician. Ryan v. Comm'r, Soc. Sec. Admin., 528 F.3d 1194, 7 1202 (9th Cir. 2008) (citation omitted; emphasis in original). A non-examining 8 physician's opinion may serve as substantial evidence when it is supported by 9 other evidence in the record and is consistent with it, which is the case here. 10 Andrews v. Shalala, 53 F.3d 1035, 1041 (9th Cir. 1995). The medical expert s 11 area of specialty was orthopedic surgery. AR 28, 107; 20 C.F.R. §§ 12 404.1527(d)(5), 416.927(d)(5). He opined that Celona s restrictive opinion was 13 not supported by objective medical findings in the record. AR 28, 47-48. The 14 medical expert s opinion was consistent with the opinion of consultative examiner, 15 Dr. Enriquez.3 AR 46-47. See Magallanes v. Bowen, 881 F.2d 747, 751 55 (9th 16 Cir.1989) (ALJ may give less weight to treating physician based on testimony of 17 non-examining physician that was consistent with record evidence). 18 19 The ALJ's rejection of Celona s evaluation is supported by substantial evidence. See Orn, 495 F.3d at 632. 20 21 22 23 24 25 26 27 28 3 On July 21, 2009, Dr. Enriquez examined Lamb. AR 246-49. An x-ray on the same date reflected mild degenerative disease at L5-S1 associated with partial sacralization. AR 250. His cervical spine exhibited normal range of motion with no tenderness to palpation or muscle spasm. AR 248. There was tenderness on the lumbosacral spine area with decreased range of motion at 70/90 degrees on flexion with no muscle spasms. Lamb s supine straight leg raising was positive at 70 degrees but was negative when sitting. Id. Examination of all extremities were within normal limits. Id. Dr. Enriquez noted that Lamb s gait and balance were within normal limits and that he did not require an assistive device for ambulation at the time, but observed that Lamb was using a single point cane. Id. Lamb had normal muscle tone and his strength was 5/5 throughout. Id. Lamb could occasionally lift and/or carry 50 pounds and frequently lift and/or carry 25 pounds. He can sit, stand and/or walk with normal breaks for six hours in an eight-hour workday. He can frequently bend, stoop and twist. He can also do above-the-shoulder lifting, pushing and pulling. AR 249. 5 1 2 E. Credibility Lamb contends the ALJ did not properly consider his subjective symptoms. 3 Lamb testified that he was unable to work because he has a bad back, bad 4 shoulders, and the arm on my left side goes numb. AR 44. 5 To determine whether a claimant s testimony regarding subjective pain or 6 symptoms is credible, an ALJ must engage in a two-step analysis. Lingenfelter 7 v. Astrue, 504 F.3d 1028, 1035-36 (9th Cir. 2007). At step one, the ALJ must 8 determine whether the claimant has presented objective medical evidence of an 9 underlying impairment which could reasonably be expected to produce the pain 10 or other symptoms alleged. Id. (quoting Bunnell v. Sullivan, 947 F.2d 341, 344 11 (9th Cir. 1991) (en banc)). The ALJ found that Lamb s medically determinable 12 impairments could reasonably be expected to produce some of the alleged 13 symptoms. AR 27. 14 Second, if the claimant meets this first test, and there is no evidence of 15 malingering, the ALJ can reject the claimant s testimony about the severity of her 16 symptoms only by offering specific, clear and convincing reasons for doing so. 17 Lingenfelter, 504 F.3d at 1036 (citation and quotation marks omitted). In making 18 a credibility determination, the ALJ must specifically identify what testimony is 19 credible and what testimony undermines the claimant s complaints[.] Greger v. 20 Barnhart, 464 F.3d 968, 972 (9th Cir. 2006) (citation omitted). In weighing 21 credibility, the ALJ may consider factors including: the nature, location, onset, 22 duration, frequency, radiation, and intensity of any pain; precipitating and 23 aggravating factors (e.g., movement, activity, environmental conditions); type, 24 dosage, effectiveness, and adverse side effects of any pain medication; 25 treatment, other than medication, for relief of pain; functional restrictions; the 26 claimant s daily activities; and ordinary techniques of credibility evaluation. 27 Bunnell, 947 F.2d at 346 (citing SSR 88-13) (quotation marks omitted). 28 6 1 The ALJ found that Lamb s statements concerning the intensity, 2 persistence and limiting effects of his symptoms were not credible to the extent 3 they were inconsistent with his RFC assessment. AR 27. The ALJ discounted 4 Lamb s credibility for two reasons: (1) conservative treatment; and (2) lack of 5 objective medical evidence supporting the degree of limitations. 6 An ALJ may discount a claimant s testimony based on evidence of 7 conservative treatment. Parra v. Astrue, 481 F.3d 742, 751 (9th Cir.2007); see 8 also Orn, 495 F.3d at 638. The ALJ found that Lamb s hypertension was well 9 controlled with medication when he was compliant, and his complaint of non- 10 dominant hand numbness was resolved by the subsequent visit. AR 27-28. As 11 discussed above, the ALJ found that Lamb s back pain was controlled with 12 medication. AR 26, 253, 323-25. The ALJ concluded that Lamb s complaints 13 were minimal and resolved with conservative treatment (medication). AR 28. 14 The record does not contain any prescription for more aggressive treatment. See 15 Tommasetti v. Astrue, 533 F.3d 1035, 1040 (9th Cir.2008) (describing 16 anti-inflammatory medication as conservative treatment). 17 Although lack of medical evidence cannot form the sole basis for 18 discounting pain testimony, it is a factor that the ALJ can consider in his credibility 19 analysis. Burch v. Barnhart, 400 F.3d 676, 681 (9th Cir. 2005). For the reasons 20 discussed above, substantial evidence supports the ALJ's finding that the 21 objective medical record did not corroborate the degree of Lamb s allegations of 22 disabling limitations. 23 The ALJ s credibility finding is supported by substantial evidence. If the 24 ALJ s credibility finding is supported by substantial evidence in the record, we 25 may not engage in second-guessing. Thomas, 278 F.3d at 959 (citing Morgan v. 26 Comm r of Soc. Sec. Admin., 169 F.3d 595, 600 (9th Cir. 1999)). 27 28 7 1 IV. 2 ORDER 3 4 5 6 IT IS HEREBY ORDERED that the decision of the Commissioner is affirmed. IT IS FURTHER ORDERED that the Clerk of the Court serve copies of this Order and the Judgment herein on all parties or their counsel. 7 8 9 DATED: December 19, 2012 ALICIA G. ROSENBERG United States Magistrate Judge 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 8

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