Dale L Vorndran v. Michael J Astrue, No. 2:2012cv09010 - Document 16 (C.D. Cal. 2013)
Court Description: MEMORANDUM OPINION AND ORDER by Magistrate Judge Paul L. Abrams. IT IS HEREBY ORDERED that: (1) plaintiff's request for reversal, or in the alternative, remand, is denied; and 2. 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. **See attached Order for details.** (es)
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 WESTERN DIVISION 11 12 13 14 15 16 17 DALE L. VORNDRAN, ) ) Plaintiff, ) ) v. ) ) CAROLYN W. COLVIN, ) ACTING COMMISSIONER OF SOCIAL ) SECURITY ADMINISTRATION, ) ) Defendant. ) ________________________________) No. CV 12-9010-PLA MEMORANDUM OPINION AND ORDER 18 19 I. 20 PROCEEDINGS 21 Plaintiff filed this action on October 19, 2012, seeking review of the Commissioner s denial 22 of his applications for Disability Insurance Benefits and Supplemental Security Income payments. 23 The parties filed Consents to proceed before the undersigned Magistrate Judge on November 26, 24 2012, and December 4, 2012. Pursuant to the Court s Order, the parties filed a Joint Stipulation 25 on August 5, 2013, that addresses their positions concerning the disputed issues in the case. The 26 Court has taken the Joint Stipulation under submission without oral argument. 27 / 28 / 1 II. 2 BACKGROUND 3 Plaintiff was born on September 14, 1954. [Administrative Record ( AR ) at 70.] He has 4 a college education [AR at 162] and past relevant work experience as an assistant controller and 5 a director of fiscal operations. [AR 157.] 6 On April 22, 2008, plaintiff filed his application for Disability Insurance Benefits and 7 protectively filed his application for Supplemental Security Income payments, alleging that he has 8 been disabled since March 2, 2005, due to HIV, hepatitis C, pneumonia, cirrhosis of the liver, 9 osteoporosis, edema, scabies, diabetes, cellulitis, and fatigue. [AR at 70-73, 92-95, 138-47, 156- 10 63, 201-08, 233-40.] After his applications were denied initially and upon reconsideration, plaintiff 11 requested a hearing before an Administrative Law Judge ( ALJ ). [AR at 92-96, 99-104.] A 12 hearing was held on May 27, 2010, at which time plaintiff appeared with counsel and testified on 13 his own behalf. A vocational expert also testified. [AR at 27-69.] On November 16, 2010, the ALJ 14 determined that plaintiff was not disabled. [AR at 77-86.] On April 30, 2012, the Appeals Council 15 denied plaintiff s request for review. [AR at 4-8, 26.] This action followed. 16 17 III. 18 STANDARD OF REVIEW 19 Pursuant to 42 U.S.C. § 405(g), this Court has authority to review the Commissioner s 20 decision to deny benefits. The decision will be disturbed only if it is not supported by substantial 21 evidence or if it is based upon the application of improper legal standards. Moncada v. Chater, 22 60 F.3d 521, 523 (9th Cir. 1995); Drouin v. Sullivan, 966 F.2d 1255, 1257 (9th Cir. 1992). 23 In this context, the term substantial evidence means more than a mere scintilla but less 24 than a preponderance -- it is such relevant evidence that a reasonable mind might accept as 25 adequate to support the conclusion. Moncada, 60 F.3d at 523; see also Drouin, 966 F.2d at 26 1257. When determining whether substantial evidence exists to support the Commissioner s 27 decision, the Court examines the administrative record as a whole, considering adverse as well 28 as supporting evidence. Drouin, 966 F.2d at 1257; Hammock v. Bowen, 879 F.2d 498, 501 (9th 2 1 Cir. 1989). Where the evidence is susceptible to more than one rational interpretation, the Court 2 must defer to the decision of the Commissioner. Moncada, 60 F.3d at 523; Andrews v. Shalala, 3 53 F.3d 1035, 1039-40 (9th Cir. 1995); Drouin, 966 F.2d at 1258. 4 5 IV. 6 THE EVALUATION OF DISABILITY 7 Persons are disabled for purposes of receiving Social Security benefits if they are unable 8 to engage in any substantial gainful activity owing to a physical or mental impairment that is 9 expected to result in death or which has lasted or is expected to last for a continuous period of at 10 least twelve months. 42 U.S.C. § 423(d)(1)(A); Drouin, 966 F.2d at 1257. 11 12 A. THE FIVE-STEP EVALUATION PROCESS 13 The Commissioner (or ALJ) follows a five-step sequential evaluation process in assessing 14 whether a claimant is disabled. 20 C.F.R. §§ 404.1520, 416.920; Lester v. Chater, 81 F.3d 821, 15 828 n.5 (9th Cir. 1995, as amended April 9, 1996). In the first step, the Commissioner must 16 determine whether the claimant is currently engaged in substantial gainful activity; if so, the 17 claimant is not disabled and the claim is denied. Id. If the claimant is not currently engaged in 18 substantial gainful activity, the second step requires the Commissioner to determine whether the 19 claimant has a severe impairment or combination of impairments significantly limiting his ability 20 to do basic work activities; if not, a finding of nondisability is made and the claim is denied. Id. 21 If the claimant has a severe impairment or combination of impairments, the third step requires 22 the Commissioner to determine whether the impairment or combination of impairments meets or 23 equals an impairment in the Listing of Impairments ( Listing ) set forth at 20 C.F.R., Part 404, 24 Subpart P, Appendix 1; if so, disability is conclusively presumed and benefits are awarded. Id. 25 If the claimant s impairment or combination of impairments does not meet or equal an impairment 26 in the Listing, the fourth step requires the Commissioner to determine whether the claimant has 27 sufficient residual functional capacity to perform his past work; if so, the claimant is not disabled 28 and the claim is denied. Id. The claimant has the burden of proving that he is unable to perform 3 1 past relevant work. Drouin, 966 F.2d at 1257. If the claimant meets this burden, a prima facie 2 case of disability is established. The Commissioner then bears the burden of establishing that 3 the claimant is not disabled, because he can perform other substantial gainful work available in 4 the national economy. The determination of this issue comprises the fifth and final step in the 5 sequential analysis. 20 C.F.R. §§ 404.1520, 416.920; Lester, 81 F.3d at 828 n.5; Drouin, 966 6 F.2d at 1257. 7 8 B. THE ALJ S APPLICATION OF THE FIVE-STEP PROCESS 9 In this case, at step one, the ALJ concluded that plaintiff has not engaged in any substantial 10 gainful activity since his alleged disability onset date, March 2, 2005. [AR at 79.]1 At step two, the 11 ALJ concluded that as of the alleged onset date, plaintiff has had the following combination of 12 severe impairments: chronic HIV infection and substance (crystal methamphetamine) abuse. 13 He further found that beginning September 2007, plaintiff also establishes chronic Hepatitis C 14 (status post biopsy) (with hepatomegaly), chronic jaundice, portal hypertension (status post 15 banding of esophageal varices on December 16, 2009 and January 26, 2010[,] and gastropathy, 16 splenomegaly, chronic gastritis, cerebral atrophy, thrombocytopenia, spondylosis of the 17 lumbosacral spine[,] and remission of substance 18 February 2008 or March 2008. [AR at 79-80 (citations omitted).] At step three, the ALJ 19 concluded that plaintiff does not have an impairment or combination of impairments that meets 20 or equals any of the impairments in the Listing. [AR at 81.] The ALJ further found that plaintiff 21 retains the residual functional capacity ( RFC )2 to perform light work as defined in 20 C.F.R. §§ 22 404.1567(b), 416.967(b),3 except he is able to lift and/or carry 20 pounds occasionally and 10 (crystal methamphetamine) abuse since 23 1 24 25 26 27 28 The ALJ concluded that plaintiff last met the insured status requirements of the Social Security Act on December 31, 2010. [AR at 79.] 2 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). 3 20 C.F.R. §§ 404.1567(b), 416.967(b) define light work as work involving lifting no more than 20 pounds at a time with frequent lifting or carrying of objects weighing up to 10 pounds and (continued...) 4 1 pounds frequently, stand and/or walk for six hours total in an eight-hour day, sit for six hours total 2 in an eight-hour day, and perform postural activities occasionally but cannot be exposed to 3 heights, ladders, scaffolding, or hazards. [AR at 82.] At step four, the ALJ concluded that plaintiff 4 is able to perform his past relevant work as an audit clerk/supervisor, an accounting clerk, and a 5 tax accountant. [AR at 85.] Accordingly, the ALJ found that plaintiff was not under a disability 6 from March 2, 2005, through November 16, 2010, the date of the decision. [AR at 85-86.] 7 8 V. 9 THE ALJ S DECISION 10 Plaintiff contends that the ALJ improperly: (1) discounted plaintiff s credibility, and (2) failed 11 to find that plaintiff does not suffer from a medically determinable mental impairment. [Joint 12 Stipulation ( JS ) at 4.] As set forth below, the Court respectfully disagrees with plaintiff and 13 affirms the ALJ s decision. 14 15 A. STEP-TWO ANALYSIS 16 17 Plaintiff contends that the ALJ erred by finding that he does not have a medically determinable mental impairment. [JS at 24-27, 32-33.] 18 A severe impairment, or combination of impairments, is defined as one that significantly 19 limits physical or mental ability to do basic work activities. 20 C.F.R. §§ 404.1520, 416.920. The 20 Supreme Court has recognized that including a severity inquiry at the second stage of the 21 evaluation process permits the [Commissioner] to identify efficiently those claimants whose 22 impairments are so slight that they are unlikely to be found disabled even if the individual s age, 23 education, and experience are considered. Corrao v. Shalala, 20 F.3d 943, 949 (9th Cir. 1994) 24 (citing Bowen v. Yuckert, 482 U.S. 137, 153, 107 S. Ct. 2287, 96 L. Ed. 2d 119 (1987)). 25 However, an overly stringent application of the severity requirement would violate the statute by 26 27 28 3 (...continued) requiring a good deal of walking or standing or sitting most of the time with some pushing and pulling of arm or leg controls. 5 1 denying benefits to claimants who meet the statutory definition of disabled. Corrao, 20 F.3d at 2 949 (citing Bowen v. Yuckert, 482 U.S. at 156-58). Despite use of the term severe, most 3 circuits, including the Ninth Circuit, have held that the step-two inquiry is a de minimis screening 4 device to dispose of groundless claims. Smolen v. Chater, 80 F.3d 1273, 1290 (9th Cir. 1996) 5 (citing Bowen v. Yuckert, 482 U.S. at 153-54); see Hawkins v. Chater, 113 F.3d 1162, 1169 (10th 6 Cir. 1997) ( A claimant s showing at level two that he or she has a severe impairment has been 7 described as de minimis ); see also Hudson v. Bowen, 870 F.2d 1392, 1396 (8th Cir. 1989) 8 (evaluation can stop at step two only when there is no more than minimal effect on ability to 9 work). 10 An impairment or combination of impairments should be found to be non-severe only 11 when the evidence establishes merely a slight abnormality that has no more than a minimal effect 12 on an individual s physical or mental ability to do basic work activities. See Corrao, 20 F.3d at 13 949 (citing Yuckert v. Bowen, 841 F.2d 303, 306 (9th Cir. 1988)); see also 20 C.F.R. §§ 14 404.1521(a), 416.921(a). Basic work activities mean the abilities and aptitudes necessary to 15 do most jobs, including physical functions ..., [u]nderstanding, carrying out, and remembering 16 simple instructions, [u]se of judgment, [r]esponding appropriately to supervision, co-workers 17 and usual work situations, and [d]ealing with changes in a routine work setting. 20 C.F.R. §§ 18 404.1521(b), 416.921(b). 19 In assessing the severity of a claimant s alleged mental impairment, an ALJ is required to 20 reflect in the decision his consideration of plaintiff s mental functional limitations under four broad 21 criteria (also known as the paragraph B criteria ): (1) activities of daily living; (2) social functioning; 22 (3) concentration, persistence, or pace; and (4) episodes of decompensation. See 20 C.F.R., Pt. 23 404, Subpt. P, App. 1, § 12.00C; see also 20 C.F.R. §§ 404.1520a, 416.920a. If a claimant is 24 rated as having greater than mild limitations in any of the first three criteria or more than no 25 episodes of decompensation in criteria four, or if the evidence otherwise indicates that there is 26 more than a minimal limitation in [the claimant s] ability to do basic work activities, then the 27 claimant s mental impairment should be found to be severe. 20 C.F.R. §§ 404.1520a, 416.920a; 28 see also 20 C.F.R. §§ 404.1521, 416.921. 6 1 On July 3, 2008, Dr. Ernest A. Bagner performed a complete psychiatric evaluation of 2 plaintiff. [AR at 467-70.] Plaintiff told Dr. Bagner: My boyfriend died recently, 4 and reported 3 depression with crying spells, nervousness, feelings of helplessness and hopelessness, and 4 difficulty with concentration and memory. [AR at 467.] Plaintiff was not seeing a psychiatrist or 5 counselor at that time. With respect to his level of functioning, plaintiff reported to Dr. Bagner that 6 he could care for his personal needs, perform household chores, cook, run errands, and shop. 7 [AR at 468.] Dr. Bagner s mental status examination reflected that plaintiff s mood was congruent 8 with his feeling depressed ; his speech was intact and coherent but moderately decreased in rate, 9 rhythm, and volume; his thought processes were tight ; his memory and concentration were such 10 that he could register two out of three objects after five minutes; he did not display any evidence 11 of hallucinations, paranoia, or delusions; and he denied suicidal ideations. [AR at 469.] Dr. 12 Bagner diagnosed plaintiff with depressive disorder, not otherwise specified, and opined that 13 plaintiff would have zero to mild limitations in maintaining concentration and attention, and in 14 completing simple tasks; mild limitations in completing complex tasks; and mild to moderate 15 limitations handling stresses at work and completing a normal workweek without interruption. [AR 16 at 469-70.] Dr. Bagner also opined that if plaintiff receives psychiatric treatment, he should be 17 significantly better in less than six months. [AR at 470.] 18 On July 15, 2008, Dr. R.E. Brooks completed a psychiatric review technique concerning 19 plaintiff. [AR at 471-81.] Dr. Brooks acknowledged Dr. Bagner s evaluation notes and findings 20 [AR at 481], and diagnosed plaintiff with depression [AR at 474], but opined that plaintiff s 21 depression did not result in any paragraph B limitations, and that it was not a severe impairment. 22 [AR at 471, 479.] 23 The ALJ found at step two that there is no evidence that a depressive disorder persisted 24 for 12 consecutive months. [AR at 80.] The ALJ also stated that because there is no evidence 25 in the record other than Dr. Bagner s evaluation that plaintiff has depression, he [did] not accept 26 27 28 4 A treating note reflects that plaintiff s partner died on May 2, 2008. [AR at 499.] 7 1 the diagnosis of [Dr. Bagner] or the assessment of [Dr. Brooks]. [See AR at 80-81 (citations 2 omitted).] 3 In evaluating medical opinions, the case law and regulations distinguish among the opinions 4 of three types of physicians: (1) those who treat the claimant (treating physicians); (2) those who 5 examine but do not treat the claimant (examining physicians); and (3) those who neither examine 6 nor treat the claimant (non-examining physicians). See 20 C.F.R. §§ 404.1502, 404.1527, 7 416.902, 416.927; see also Lester, 81 F.3d at 830. The opinion of an examining physician is ... 8 entitled to greater weight than the opinion of a nonexamining physician. Lester, 81 F.3d at 830. 9 The ALJ must provide clear and convincing reasons for rejecting the uncontradicted opinion of 10 an examining physician, and specific and legitimate reasons supported by substantial evidence 11 in the record to reject the contradicted opinion of an examining physician. See id. at 830-31. The 12 ALJ can meet the requisite specific and legitimate standard by setting out a detailed and thorough 13 summary of the facts and conflicting clinical evidence, stating his interpretation thereof, and 14 making findings. Reddick v. Chater, 157 F.3d 715, 725 (9th Cir. 1998). The ALJ must set forth 15 his own interpretations and explain why they, rather than the [examining] doctors , are correct. 16 Id. 17 Here, the ALJ gave clear and convincing reasons for rejecting Dr. Bagner s and Dr. Brooks 18 opinions that plaintiff has depression. First, the ALJ pointed out that less than two and one-half 19 months before Dr. Bagner s evaluation, i.e., on April 22, 2008, plaintiff had denied feeling 20 depressed. [AR at 80, 371.] Second, the ALJ noted that even though plaintiff reported depression 21 and crying spells at the time he was evaluated by Dr. Bagner, and that plaintiff s boyfriend had 22 recently died (on May 2, 2008), plaintiff was not then seeing a psychiatrist or counselor. [AR at 23 80.] Third, the ALJ stated that while a March 18, 2009, treating note indicates that plaintiff 24 complained at that time of insomnia and asked for Ambien, a treating note from March 22, 2010 -- 25 one year later -- reflects that plaintiff had been referred to a social worker and a psychiatrist before 26 that date for insomnia and his history of drug abuse, but had not yet made an appointment. [AR 27 at 80, 866, 980.] Finally, the ALJ pointed out that treating notes from March 22, 2010, and April 28 7, 2010, stated that plaintiff exhibited no depression on those dates. [AR at 80, 972-75, 976-79.] 8 1 The ALJ accurately discussed all of the evidence in the record supporting and detracting 2 from plaintiff s assertion of disability based on depression, interpreted that evidence, and found 3 that there is no evidence that a depressive disorder persisted for 12 consecutive months. 4 Plaintiff does not point to, nor is the Court aware of, any evidence in the hundreds of pages of 5 medical records, other than Dr. Bagner s evaluation, demonstrating that plaintiff reported feeling 6 depressed or sought treatment for depression. The ALJ s conclusion on this issue is supported 7 by substantial evidence, and remand is therefore not warranted.5 8 9 B. PLAINTIFF S SUBJECTIVE SYMPTOM TESTIMONY 10 To determine whether a claimant s testimony regarding subjective pain or symptoms is 11 credible, an ALJ must engage in a two-step analysis. Lingenfelter v. Astrue, 504 F.3d 1028, 12 1035-36 (9th Cir. 2007). First, the ALJ must determine whether the claimant has presented 13 objective medical evidence of an underlying impairment which could reasonably be expected to 14 produce the pain or other symptoms alleged. Id. (quoting Bunnell v. Sullivan, 947 F.2d 341, 344 15 (9th Cir. 1991) (en banc)). Second, if the claimant meets the first test, the ALJ may only reject the 16 claimant s testimony about the severity of his symptoms upon (1) finding evidence affirmatively 17 suggesting that the claimant was malingering, or (2) offering specific, clear and convincing reasons 18 for doing so. See Dodrill v. Shalala, 12 F.3d 915, 918 (9th Cir. 1999); see also Lingenfelter, 504 19 F.3d at 1036; Benton v. Barnhart, 331 F.3d 1030, 1040 (9th Cir. 2003). The factors to be 20 considered in weighing a claimant s credibility include: (1) the claimant s reputation for 21 truthfulness; (2) inconsistencies either in the claimant s testimony or between the claimant s 22 testimony and his conduct; (3) the claimant s daily activities; (4) the claimant s work record; and 23 24 25 26 27 28 5 In any event, even if it was error to find plaintiff s depression not severe at step two, that error would be harmless. As noted supra, Dr. Bagner s evaluation is the only evidence in the record of plaintiff s depression, and thus there is no evidence that plaintiff s depression -- whether severe or non-severe -- persisted for twelve months. Accordingly, there is also no evidence that his depression affected his functional limitations for any period of twelve months or more. See Robbins v. Soc. Sec. Admin., 466 F.3d 880, 885 (9th Cir. 2006) (harmless error is error that is inconsequential to the ultimate nondisability determination ) (citation and internal quotations omitted). 9 1 (5) testimony from physicians and third parties concerning the nature, severity, and effect of the 2 symptoms of which the claimant complains. See Thomas v. Barnhart, 278 F.3d 947, 958-59 (9th 3 Cir. 2002); see also 20 C.F.R. §§ 404.1529(c), 416.929(c). If properly supported, the ALJ s 4 credibility determination is entitled to great deference. See Green v. Heckler, 803 F.2d 528, 532 5 (9th Cir. 1986). 6 Plaintiff stated in his disability reports that he cannot work because his impairments cause 7 him extreme lethargy, uncontrollable episodes of diarrhea, and forgetfulness, and prevent him 8 from being able to walk. [AR at 156, 202, 234, 238.] 9 At the administrative hearing, plaintiff testified that his impairments cause him fatigue and 10 problems with his memory and concentration. 11 [c]oncentration [was] the biggest problem he had at the time of the hearing. [AR at 51.] He 12 reported that he takes a host of medications every day, including medications for his HIV, 13 edema, liver, and diarrhea, as well as magnesium for his memory and sleeping pills. [AR at 53- 14 55.] When plaintiff was asked whether he has any side effects from his medications, he stated, 15 I m constipated all the time from the diarrhea pills. [AR at 54.] With respect to his daily activities, 16 plaintiff testified that he can perform gardening in pots rather than in the dirt, but cannot use a 17 weed eater; can perform chores such as light vacuuming, but not scrubbing; can drive short 18 distances; and goes to Costco and Alcoholics Anonymous meetings with his partner or his 19 roommates. [AR at 55-56, 58, 64.] Plaintiff further testified that approximately twice a week, he 20 volunteers at a theater, where he sweeps leaves and cigarette butts for sixty to ninety minutes at 21 a time. Afterwards, however, he is worn out. [AR at 58-59, 64.] Plaintiff stated that he could not 22 perform his past job as a director of fiscal operations because that job required him to constantly 23 get up and sit back down. [AR at 35, 59-60.] He explained that with respect to a job that involved 24 moving around, it would be easier for him to concentrate, but he would get worn out after only 25 ninety minutes, and would not be able to begin working again even after a break. [AR at 61-62.] 26 When plaintiff was asked whether he could perform a job in which he was constantly sitting, he 27 testified that he could not because he would lose concentration, as he can only concentrate on 28 one thing for five to thirty minutes at a time. [AR at 60.] 10 [AR at 42, 44, 47, 51.] He stated that 1 At step one of the two-step credibility analysis, the ALJ found that plaintiff s medically 2 determinable impairment could reasonably be expected to cause the alleged symptoms. [AR at 3 82.] 4 persistence and limiting effects of these symptoms are not credible to the extent they are 5 inconsistent with the [ALJ s RFC findings for plaintiff]. [AR at 82-83.] Thus, at step two, as the 6 record contains no evidence of malingering by plaintiff,6 the ALJ was required to offer specific, 7 clear and convincing reasons for rejecting his subjective symptom testimony. See Lingenfelter, 8 504 F.3d at 1036. General findings are insufficient; rather, the ALJ must identify what testimony 9 is not credible and what evidence undermines the claimant s complaints. Reddick, 157 F.3d at 10 The ALJ nevertheless concluded that plaintiff s statements concerning the intensity, 722 (quoting Lester, 81 F.3d at 834); see also Dodrill, 12 F.3d at 918. 11 The ALJ rejected plaintiff s subjective symptom testimony because he found that: (1) the 12 longitudinal progress notes from treating sources contradict [plaintiff s] allegations ... regarding 13 chronic and debilitating symptoms ; (2) multiple consultative physicians opined that [plaintiff] is 14 capable of performing at least a range of light work ; (3) no treating source opined that [plaintiff] 15 has been physically unable to work for at least 12 continuous months ; and (4) [t]he record 16 contains numerous references regarding [plaintiff s] failure to follow prescribed treatment. [AR 17 at 83.] Three of these reasons were legally adequate to discount plaintiff s credibility.7 18 First, the ALJ s finding that the longitudinal progress notes from treating sources contradict 19 [plaintiff s] allegations ... regarding chronic and debilitating symptoms is supported by substantial 20 evidence. While a lack of objective medical evidence supporting a plaintiff s subjective complaints 21 cannot provide the only basis to reject a claimant s credibility (see Light v. Social Security 22 Administration, 119 F.3d 789, 792 (9th Cir. 1997)), it is one factor that an ALJ can consider in 23 evaluating symptom testimony. See Rollins v. Massanari, 261 F.3d 853, 857 (9th Cir. 2001) 24 25 26 27 28 6 The ALJ made no finding that plaintiff was malingering, nor does the evidence suggest plaintiff was doing so. 7 As the determination of a claimant s ultimate disability is reserved to the Commissioner (see 20 C.F.R. §§ 404.1527(e)(1), 416.927(e)(1)), the Court does not find that the ALJ s third reason for rejecting plaintiff s subjective symptom testimony was clear and convincing. 11 1 (finding that while medical evidence alone cannot discredit testimony as to pain, it is one factor 2 which the ALJ is permitted to consider). Specifically, the ALJ discussed treating notes reflecting 3 that with respect to plaintiff s HIV, he was doing well and able to perform normal activity when 4 he was on his medications. The ALJ also stated the evidence showed that [plaintiff s] weight has 5 remained relatively stable, that he has no significant and chronic neurological deficits, such as 6 muscle wasting or the need for an assistive device to ambulate, and that his various physical 7 impairments can be dealt with effectively with appropriate treatment. 8 [AR at 83.] 8 Concerning plaintiff s HIV, the ALJ noted that treating notes on April 22, 2008, and May 16, 9 2008, reflect that plaintiff s Karnovsky Score9 on those dates was 90, indicating that he was able 10 to carry out n[orma]l activity. [AR at 83, 370-72, 435-41.] The ALJ also noted that plaintiff 11 reported on October 30, 2008, that he was feeling a lot better after [he] started on HIV 12 medication, and stated on March 4, 2009, that apart from having some difficulties with 13 concentration once distracted, he was doing well and did not feel[] slowed down. [AR at 83, 14 490, 887.] Plaintiff continued to report that he was doing well and feeling well in April, June, 15 September, October, and December 2009, as well as in March 2010. [AR at 763, 782, 815, 833, 16 847, 976-88.] This evidence supports the ALJ s finding that plaintiff s physical impairment of HIV 17 can be dealt with effectively with appropriate treatment. Further, the ALJ s determination that 18 plaintiff s weight has remained relatively stable is consistent with records reflecting that plaintiff 19 weighed 180 pounds in February and March 2005; 178 pounds in May 2005; 176 pounds in July 20 2005; 175 pounds in September 2005; 179 pounds in April 2008; 210 pounds in March 2010; and 21 204 pounds in April 2010. [AR at 267-68, 278-279, 370, 973, 987.] A January 2008, treating note 22 that referred plaintiff for a colonoscopy also noted that his weight has been stable. [AR at 520- 23 8 24 25 26 27 28 The ALJ also stated that, as discussed in the step two portion of his decision, plaintiff s depression did not persist for 12 continuous months. [AR at 83.] 9 Defendant states in the Joint Stipulation that: The Karnovsky performance scale classifies patients according to their functional abilities. A score of 90 indicates Ability to carry on normal activitiy; minor signs or symptoms of disease. [JS at 21 (quoting http://www.aidsetc.org/aidsetc?page=cg-211_karnofsky_scale).] Plaintiff does not dispute this definition of the Karnovsky performance scale, or of a Karnosvky performance score of 90. [See JS at 32-33.] 12 1 22.] Finally, the ALJ accurately stated that the medical evidence indicates that plaintiff has no 2 significant and chronic neurological deficits, such as muscle wasting or the need for an assistive 3 device to ambulate. Plaintiff does not identify, nor is the Court aware of, any record reflecting that 4 plaintiff needs an assistive device to ambulate, or that he has had any muscle atrophy. 5 Second, the ALJ discounted plaintiff s credibility because he found that multiple 6 consultative physicians opined that [plaintiff] is capable of performing at least a range of light 7 work. This finding by the ALJ is supported by the record. Two different nonexamining physicians 8 opined that plaintiff can perform medium work,10 and a third nonexamining physician opined that 9 plaintiff can perform light work. [AR at 459-64, 554-55, 994-1002.] The ALJ gave greater weight 10 to the opinion of the third nonexamining physician, finding that he had the opportunity to review 11 a significant amount of medical evidence that was unavailable to [the two other nonexamining 12 physicians]. [AR at 84.] The ALJ s reliance on the opinions of these physicians concerning the 13 severity and effects of plaintiff s symptoms was a clear and convincing reason to discredit his 14 testimony. See Thomas, 278 F.3d at 958-59. 15 Finally, the ALJ rejected plaintiff s subjective statements because he found that [t]he record 16 contains numerous references regarding [plaintiff s] failure to follow prescribed treatment. An ALJ 17 may properly rely on an unexplained or inadequately explained failure to seek treatment or to 18 follow a prescribed course of treatment to discredit a claimant s subjective symptom testimony. 19 Tommasetti v. Astrue, 533 F.3d 1035, 1039 (9th Cir. 2008) (quoting Smolen, 80 F.3d at 1284) 20 (internal quotations omitted). In doing so, however, an ALJ must consider a claimant s explanation 21 for failing to undergo the recommended treatment. See Smolen, 80 F.3d at 1284. Where a 22 claimant provides evidence of a good reason for not following the prescribed treatment, his 23 symptom testimony cannot be rejected for not doing so. See id. (citations omitted). 24 Concerning plaintiff s failure to follow prescribed treatment, the ALJ noted that while 25 plaintiff s treating physician from 2005 repeatedly advised plaintiff to discontinue his use of crystal 26 27 28 10 20 C.F.R. §§ 404.1567(c), 416.967(c) define medium work as work that involves lifting no more than 50 pounds at a time with frequent lifting or carrying of objects weighing up to 25 pounds. 13 1 methamphetamine, he refused and continued to use the illicit drug for years. [AR at 83.] This 2 is consistent with the evidence in the record. Plaintiff admitted using crystal methamphetamine 3 in December 2004, as well as in February, May, July, August, and September 2005. [AR 267-69, 4 278-79, 340.] In August 2005, plaintiff declined a referral to an inpatient treatment program for his 5 drug use, and in September of that year, he expressed that he did not wish to participate in a 6 rehabilitation program at that time. 7 Administrative Record, and only one from 2007. [See AR at 295.] The last mention of plaintiff s 8 drug use is in September 2008, when a treating note stated that plaintiff went to Tarzana 9 Treatment Center for drug detox and now waiting for a bed for in-patient rehab program. [AR at 10 [AR at 267.] There are no records for 2006 in the 491.] 11 In addition, the ALJ pointed out that plaintiff stated in July 2005 that he had been erratic in 12 taking his HIV medications, but then admitted in August 2005 that he actually had not been taking 13 his antivirals for several months. [AR at 84, 267, 269.] 14 The ALJ also discussed plaintiff s failure to undergo treatment for his memory loss and 15 forgetfulness. When plaintiff complained of those symptoms in July 2008, his doctor 16 recommended a lumbar puncture to rule out neurosyphilis, but plaintiff refused the treatment. 17 [AR at 915.] He was advised to reconsider the treatment in December 2008, and stated he would 18 think about it. [Id.] In January 2009, plaintiff again refused the lumbar puncture, as well as a 19 treatment option involving a Penicillin G Procain injection, but agreed to a third form of treatment. 20 [AR at 911.] It appears that plaintiff was subsequently referred to a hepatologist, as a treating note 21 from March 2009 states that plaintiff still has not made app[ointmen]t for [follow up] visit with 22 hepatologist yet, and also states that: Adherence issue reinforced and advised [plaintiff] to make 23 app[ointmen]t with hepatologist for [follow up]. [AR at 866.] In May 2009, plaintiff saw his doctor 24 for continuing problems with concentration. The treating doctor noted: Given [plaintiff s] h[istory] 25 o[f] syphilis, [he] should have a[] [lumbar puncture] but [plaintiff] defers at this time and ... reports 26 having been treated [with] [follow up] [lumbar punctures] in [the] past. [AR at 837-38.] In 27 September 2009, a lumbar puncture was finally attempted, but only blood was obtained and the 28 procedure was aborted. [AR at 816.] Later that month, a treating note stated that plaintiff had 14 1 unsuccessful [lumbar puncture], and that plaintiff agreed to start on neurosyphilis treatment, 2 which included a series of Penicillin G Procaine injections. [AR at 784-93, 803.] By October 2009, 3 plaintiff reported that his memory [was] improved significantly, and by December 2009, plaintiff 4 reported no memory complaints. [AR at 766, 782.] 5 At the administrative hearing, when the ALJ asked plaintiff why he had refused the lumbar 6 puncture treatment from July 2008 to September 2009, plaintiff testified that he had done three 7 treatments twice in the summer of 2008, and he was just feeling a little punctured out. [AR at 8 47-48.] Plaintiff also stated: 9 11 [W]hen I was presented with the lumbar puncture, the treatment that they would do afterwards was the same thing whether I got the ... lumbar puncture or not. So, if they were going to treat it exactly the same way, I thought, well, ... why go through that procedure? But I ended up going through [with the lumbar puncture] anyway. 12 [AR at 48.] The Court does not find that either of plaintiff s explanations on this issue constitutes 13 a good reason to refuse to follow his doctors prescribed treatment for his memory problems for 14 more than one year. See Smolen, 80 F.3d at 1284. Accordingly, based on the evidence of 15 plaintiff s repeated declination of this treatment -- which the ALJ discussed in detail -- substantial 16 evidence supports the ALJ s conclusion that plaintiff did not consider his subjective memory 17 complaints so severe as to warrant a lumbar puncture or penicillin until September 26, 2009. [AR 18 at 84.] 10 19 The ALJ s rejection of plaintiff s pain testimony on the basis that he failed to follow 20 prescribed treatment and instructions with respect to his illicit drug use, his HIV, and his memory 21 problems, was clear and convincing. 22 Because the ALJ provided multiple clear and convincing reasons to discount plaintiff s 23 allegations of pain and other subjective symptoms, his credibility determination must be upheld. 24 See Green, 803 F.2d at 532. Remand is not warranted on this contention of error. 25 / 26 / 27 28 VI. 15 1 2 3 4 5 6 7 CONCLUSION Accordingly, IT IS HEREBY ORDERED that: (1) plaintiff s request for reversal, or in the alternative, remand, is denied; and 2. 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. 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. 8 9 DATED: August 12 , 2013 PAUL L. ABRAMS UNITED STATES MAGISTRATE JUDGE 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 16
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