Michael Gonzalez Jr v. Carolyn W Colvin, No. 2:2012cv10261 - Document 21 (C.D. Cal. 2013)
Court Description: MEMORANDUM DECISION AND ORDER by Magistrate Judge Suzanne H. Segal. IT IS ORDERED that Judgment be entered AFFIRMING the decision of the Commissioner. (See document for further details). (mr)
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1 2 3 4 5 6 7 8 9 10 UNITED STATES DISTRICT COURT 11 CENTRAL DISTRICT OF CALIFORNIA 12 MICHAEL GONZALEZ, JR., 13 Plaintiff, 14 v. 15 16 CAROLYN W. COLVIN, Commissioner of the Social Security Administration, 17 Defendant. 18 ) ) ) ) ) ) ) ) ) ) ) ) NO. CV 12-10261 SS MEMORANDUM DECISION AND ORDER 19 I. 20 INTRODUCTION 21 22 Michael Gonzalez, Jr. ( Plaintiff ) seeks review of the final 23 decision of the Commissioner of the Social Security Administration (the 24 Commissioner or the Agency ) denying him disability benefits. The 25 parties consented, pursuant to 28 U.S.C. § 636(c), to the jurisdiction 26 of the undersigned United States Magistrate Judge. For the reasons 27 stated below, the decision of the Commissioner is AFFIRMED. 28 1 II. 2 PROCEDURAL HISTORY 3 4 Plaintiff Michael Gonzalez Jr. filed an application for Title II 5 Disability Insurance Benefits on January 20, 2010. (AR 156-57) 6 Plaintiff alleged a disability onset date of September 1, 2007. (AR 7 156). 8 96). 9 ( ALJ ) on July 15, 2010. The Agency denied Plaintiff s application on May 18, 2010. (AR Plaintiff requested a hearing before an Administrative Law Judge (AR 102). Plaintiff testified at a hearing 10 held before ALJ Lawrence D. Wheeler on April 7, 2011. (AR 20-39). On 11 May 25, 2011, the ALJ issued a decision denying benefits. (Id.). 12 Plaintiff then requested review of the ALJ s decision, which the Appeals 13 Council denied on October 12, 2012. 14 instant action on December 3, 2012. (AR 1-6). Plaintiff filed the 15 16 17 III. 18 FACTUAL BACKGROUND 19 20 Plaintiff was born on May 15, 1970. (AR 201). Plaintiff completed 21 twelfth grade and some college and obtained a contractor s license. (AR 22 184, 309). Plaintiff then worked as a general contractor until 2007. 23 (AR 309). 24 a foreman. 25 doctors for both a left Achilles tendon injury, foot pain and mental 26 health problems. Plaintiff has past relevant work as a general contractor and (AR 37-38). From 2007 to 2010, Plaintiff saw a number of (AR 246-391). 27 28 2 1 A. Medical History and Treating Physicians Opinions 2 1. Physical Condition 3 4 5 On June 5, 2007, Plaintiff visited the El Segundo Family Medical 6 Group for left foot pain. (AR 251). Plaintiff injured his Achilles 7 Tendon in a snowboarding accident in 2006 and had surgery, but alleged 8 pain for a long time . (AR 251, 376). 9 10 Plaintiff had a podiatry evaluation with Michael Bloch, DPM, on 11 March 4, 2008. (AR 260). Plaintiff had mild pain on flexion and 12 Achilles sensitivity. 13 podiatry appointment with Dr. Bloch on March 25, 2008. 14 April 11, 2008, Plaintiff had foot x-rays taken that showed a tendon 15 spur and a metallic object likely left from a surgery. (AR 261). Plaintiff did not show up to his (AR 256). On (AR 257-58). 16 17 Over two years later, Plaintiff visited UCLA Medical Center for an 18 orthopedic evaluation on July 21, 2010. 19 being ok - pain-wise. (Id.). Plaintiff was referred to Gary Briskin, 20 DPM. 21 336). Plaintiff said he had been bike riding for exercise and mentioned 22 that he had scheduled an upcoming surgery with Dr. Briskin. (Id.). (AR 337). Plaintiff noted On August 9, 2010, Plaintiff again visited UCLA. (AR (Id.). 23 24 On August 20, 2010, Plaintiff saw Dr. Gary Briskin for Achilles 25 tendon surgery and removal of spurring. (AR 386). Dr. Briskin said the 26 surgery had excellent results . 27 Plaintiff was reported as having excellent strength. 28 October 26, 2010, Dr. Briskin reported that Plaintiff s level of walking (AR 378). 3 On September 21, 2010, (AR 382) On 1 had increased significantly since the surgery. (AR 380). Plaintiff was 2 also referred to physical therapy. 3 weeks, Plaintiff s weight bearing improved and he went from wearing a 4 boot as needed for walking to wearing normal shoe gear, although he 5 reported pain. 6 ordered to be more aggressive with stretching and to use foot 7 orthotics for stabilization. (AR 379). Plaintiff s last visit with Dr. 8 Briskin was December 28, 2010. 9 the Achilles area, but there was no fluid. 10 (AR 374-77). assessed with inflammation. (AR 376). Over the course of six On November 30, 2010, Plaintiff was (AR 378). Plaintiff reported pain in (Id.). Plaintiff was (Id.). 11 12 In February 2011, Plaintiff reported to his psychiatrist that he 13 had mixed feelings re:attempting to work with Dad part-time. (AR 355). 14 Plaintiff was bike riding and reported that his foot was feeling better. 15 (AR 355). 16 counter medication for relief. 17 reported that he was bike riding a few times a week depending on the 18 weather. Plaintiff still complained of pain but only took over the (Id.). In March of 2011, Plaintiff (AR 354). 19 20 2. Mental Condition 21 22 On June 6, 2007, Plaintiff had a consultation with Elva Ruth 23 Mezquita, M.D. and was approved for twenty treatment sessions. 24 269). 25 disorder, but she later changed her diagnosis to paranoid state. 26 365-66). 27 of alcohol on exam. 28 medication for six weeks and was drinking heavily. (AR Dr. Mezquita initially diagnosed Plaintiff with dissociative (AR On October 23 2007, Dr. Mezquita noted that Plaintiff smelled (AR 364). Plaintiff had not been taking his 4 (Id.). Plaintiff 1 alleged hearing a lot of noise in his head and said he had become 2 suspicious of his wife and kids. 3 drinking at night, for help sleeping. 4 therapy and did not return for over a year. (Id.). On August 22, 2008, 5 Plaintiff returned to visit Dr. Mezquita. 6 explain why he stopped seeing her for mental evaluations. 7 Plaintiff claimed to be anxious and obsessive. (Id.). Plaintiff also admitted to (Id.). Plaintiff then quit (AR 364). Plaintiff did not (Id.). (Id.). 8 9 On December 21, 2009, Plaintiff visited Gelbart and Associates 10 Psychological Services for a psychiatric consultation. 11 Plaintiff alleged depression, panic attack, trust issues, paranoia, 12 auditory 13 Plaintiff stated that he sometimes drank two beers at a time and he 14 smoked marijuana from time to time. 15 three years previously he was an alcoholic. 16 stated that he had a job, but [could not] leave the house. 17 On exam he was appropriately dressed and groomed, able to maintain eye 18 contact and could relate well. 19 depressed, anxious and having limited insight. 20 was psychosis and Plaintiff was given medication. hallucinations, suicidal thoughts (Id.) and (Id.). (AR 280-283). insomnia. (Id.). Plaintiff admitted that (Id.). Plaintiff also (Id.). Plaintiff was also described as (Id.). The diagnosis (Id.). 21 22 Plaintiff returned (AR 283). in January 2010 for further psychiatric 23 treatment. 24 inability to leave the house, but stated that his medications were 25 helping. 26 mushrooms and alcohol, but denied any current abuse. 27 diagnosis was polysubstance abuse. (Id.) Plaintiff continued to report paranoia and the Plaintiff also admitted to a history of cocaine, (Id.). 28 5 (Id.). The 1 On March 19, 2010, Plaintiff went to the Lake Arrowhead Treatment 2 Center to see Michael Bishara, M.D. (AR 290). He reported stopping 3 polysubstance abuse two weeks earlier. 4 still in withdrawal. 5 methamphetamine and opiates. 6 April 19, 2010 appointment, but on April 26, 2010, Plaintiff stated that 7 the medications were helping his mental health. (Id.). (Id.). However, Plaintiff was Plaintiff was detoxing from heroin, (Id.). Plaintiff failed to attend his (AR 294). 8 9 On May 7, 2010, Plaintiff again failed to attend an appointment 10 with Dr. Bishara. (AR 352). On May 25, 2010, Plaintiff alleged body 11 aches and sweats. (Id.). On June 10, 2010, Plaintiff relapsed, 12 allegedly 13 rehabilitation program, having been sober for thirty days, on July 7, 14 2010. due to stress. (AR 351). Plaintiff finished his (AR 350). 15 16 Plaintiff began visiting Beatrice Brody, M.D., for mental treatment 17 on July 27. (AR 362). Plaintiff alleged that his drinking had 18 increased as he began having business problems. 19 reported that he had moved out of his family s home and became involved 20 with people who used drugs, which is allegedly when he began using. 21 (Id.). 22 he felt pressured at home. (AR 361). 23 was playing and interacting with his younger children, but maintained 24 that he was uncomfortable around people. (Id.). Plaintiff alleged that 25 he could not drive and stated he spent all day watching TV and playing 26 video games. 27 Dr. Brody. (AR 360). (Id.). Plaintiff Later that month, Plaintiff met with Dr. Brody and alleged that (Id.). Plaintiff also stated that he In September 2010, Plaintiff again reported to Plaintiff continued to allege that he felt 28 6 1 uncomfortable going outside and that wearing a cap made him feel secure. 2 (Id.). 3 4 In October 2010, Plaintiff reported that he was able to go to his 5 son s football game, but the voices bothered him. 6 also reported going to the store with his father, although he went 7 midday to avoid crowds. 8 Brody that he had to install a Breathalyzer in his truck because of a 9 court order. (AR 358). (Id.). (AR 359). Plaintiff In November 2010, Plaintiff told Dr. Plaintiff was also ordered to enter a class to 10 control alcoholism because of a DUI in 2009. 11 anxiety. 12 felt uncomfortable around others and trapped at home. 13 also stated that he did not speak at his Narcotics Anonymous meetings 14 unless prodded. (Id.). (Id.). Plaintiff alleged In December of 2011, Plaintiff again stated that he (AR 357). He (Id.). 15 16 From October 6, 2010 to November 19, 2010, Plaintiff also saw 17 psychiatrist Michael Towlin, M.D. 18 Plaintiff as schizoaffective. (AR 347). Plaintiff told Dr. Towlin that 19 he had not drank alcohol for years. 20 medication, supportive therapy, and encouraged Plaintiff to exercise. 21 (AR 22 psychologically unstable. 348). Plaintiff was (AR 344-349). (AR 346). described as Dr. Towlin diagnosed Dr. Towlin prescribed anxious, nervous and (Id.). 23 24 B. Examining Physician s Opinion 25 26 On May 9, 2009, at the request of the Agency, Plaintiff saw Hiruy 27 Gessesse, M.D. for a complete psychiatric evaluation. 28 Plaintiff told Dr. Gessesse that his psychotic symptoms were possibly 7 (AR 308-312). 1 due to his addiction to painkillers. (AR 309). 2 he had previously abused painkillers, alcohol and marijuana, but he also 3 stated that he was sixty days clean at the time and acknowledged that 4 he was in a rehabilitation program. 5 no longer hearing voices and stated that his medications were really 6 helping. (Id.). Plaintiff stated that Plaintiff said that he was (Id.). 7 8 9 Dr. Gessesse found that Plaintiff was cooperative, maintained good eye contact and was able to establish rapport with the examiner. (AR 10 310). Plaintiff s thought processes were concrete , linear and 11 goal directed. 12 auditory or visual hallucinations, delusions or illusions. (Id.). Dr. 13 Gessesse diagnosed Plaintiff with substance induced psychosis and 14 polysubstance dependance. 15 Plaintiff 16 consistently and complete a normal workday and workweek. 17 Further, 18 evaluation, Dr. Gessesse found that he could accept instruction from a 19 supervisor. 20 Plaintiff could interact adequately throughout the evaluation, he could 21 interact adequately with coworkers and the public. could because (Id.). Plaintiff also exhibited no evidence of (AR 311). maintain Plaintiff (Id.). regular could Similarly, Dr. Gessesse also found that attendance accept Dr. and perform instruction Gessesse found work (Id.). during that the because (Id.). 22 23 C. Reviewing Physician s Opinion 24 25 On May 18, 2010, State Agency Psychiatrist C. Dudley, M.D. reviewed 26 Plaintiff s mental evidence. (AR 315). Dr. Dudley found that although 27 [Plaintiff] has some mental difficulties, they do not prevent him from 28 performing all types of work activities. 8 (AR 325). Dr. Dudley 1 determined that Plaintiff 2 dependence. 3 understand, remember, and carry out simple work-related tasks and had 4 significant limitations in the ability to . . . relate to others, or 5 otherwise adapt to the requirements of the normal workplace. (AR 328). (AR 321). had the impairment of polysubstance Dr. Dudley also found that Plaintiff could 6 7 State agency consultant S. Choo reviewed Plaintiff s physical 8 history on May 18, 2010. (AR 334). S. Choo found that although 9 Plaintiff experienced some limitations from his ankle impairment, they 10 [did] not prevent him from performing all types of work activities. 11 (AR 333). 12 13 D. Plaintiff s Testimony 14 15 In his application for DIB, Plaintiff alleged disability due to 16 mental illness and Achilles tendon injury. (AR 177). Plaintiff alleged 17 that he was hearing voices and losing touch with reality and that 18 he could not walk without extreme pain. (Id.). Furthermore, medication 19 did not help him and that he could no longer function with his family. 20 (Id.). 21 22 In Plaintiff s function report, Plaintiff alleged that on good 23 days he could look for work and run errands, but that he still needed 24 time to be alone. 25 would be frozen in [his] room, or would drive all day and night and 26 felt angry and depressed. 27 electronics daily and would regularly do so with friends. (AR 205). On bad days he could not get out of bed, (Id.). Plaintiff worked with computers and 28 9 (AR 209). 1 Plaintiff also reported that walking was painful and that in order to 2 walk, he had to take short breaks. (AR 210). 3 4 At his hearing in front of the ALJ, Plaintiff testified that he 5 became unable to work mainly because of his mental health issues. (AR 6 73). his 7 substance abuse problems. 8 became addicted to painkillers following a snowboarding accident. 9 69). According to Plaintiff, his (AR 74). mental condition predated Plaintiff alleged that he first (AR Plaintiff stated that he had never did mushrooms, but had used 10 heroin. (Id.). Plaintiff further testified that he completed 11 rehabilitation for substance abuse and that he had not used illegal 12 drugs or alcohol for over a year. (AR 69-70). In regard to Plaintiff s 13 symptoms, Plaintiff testified that he had daily panic attacks, could not 14 leave the house because of agoraphobia and could not be around crowds 15 or loud things. (Id.). At the time, Plaintiff said his medication kept 16 him even keel to a point. (AR 83). 17 18 Plaintiff testified that he could drive and attended his son s 19 football games once a month. (AR 76-77). Plaintiff also rode his 20 bicycle to the beach for exercise, but spent most days moping around 21 the house, doing some cleaning and playing videogames. 22 Finally, Plaintiff did some construction-related work for his father, 23 such as planning and bidding, in 2008. (AR 81-82). (AR 68, 75). 24 25 E. Vocational Expert Testimony 26 27 28 Vocational Expert ( VE ) Gail Maron testified at Plaintiff s hearing. (AR 84). The ALJ asked the VE to consider a person who was 10 1 Plaintiff s age, with a high school education and the same past work 2 experience as Plaintiff, limited to light exertion and nonexertionally 3 limited work that involves simple, repetitive tasks for psychiatric 4 reasons, no public contact, and no more than occasional peer contact. 5 (AR 87). 6 would not be able to perform Plaintiff s past work. 7 the VE also stated testified that other work was available nationally 8 to a person with such limitations, including housekeeper, semi-automatic 9 machine operator, table worker, and inspector. The VE testified that with those limitations, a individual (Id.). However, (AR 88). 10 11 IV. 12 THE FIVE-STEP SEQUENTIAL EVALUATION PROCESS 13 14 To qualify for disability benefits, a claimant must demonstrate 15 a medically determinable physical or mental impairment that prevents him 16 from engaging in substantial gainful activity1 and that is expected to 17 result in death or to last for a continuous period of at least twelve 18 months. 19 42 U.S.C. § 423(d)(1)(A)). 20 incapable of performing the work he previously performed and incapable 21 of performing any other substantial gainful employment that exists in 22 the national economy. 23 1999) (citing 42 U.S.C. § 423(d)(2)(A)). Reddick v. Chater, 157 F.3d 715, 721 (9th Cir. 1998) (citing The impairment must render the claimant Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 24 25 26 27 28 1 Substantial gainful activity means work that involves doing significant and productive physical or mental duties and is done for pay or profit. See 20 C.F.R. §§ 404.1510, 416.910. 11 1 2 To decide if a claimant is entitled to benefits, an ALJ conducts a five-step inquiry. 20 C.F.R. §§ 404.1520, 416.920. The steps are: 3 4 (1) Is the claimant presently engaged in substantial gainful 5 activity? 6 If not, proceed to step two. 7 (2) Is the If so, the claimant is found not disabled. claimant s impairment 8 claimant is found not disabled. 9 severe? If not, the three. 10 (3) If so, proceed to step Does the claimant s impairment meet or equal one of the 11 specific impairments described in 20 C.F.R. Part 404, 12 Subpart P, Appendix 1? 13 disabled. 14 (4) If so, the claimant is found If not, proceed to step four. Is the claimant capable of performing his past work? 15 so, the claimant is found not disabled. 16 If to step five. 17 (5) If not, proceed Is the claimant able to do any other work? 18 claimant is found disabled. 19 If not, the If so, the claimant is found not disabled. 20 21 Tackett, 180 F.3d at 1098-99; see also Bustamante v. Massanari, 262 F.3d 22 949, 23 404.1520(b)-(g)(1) & 416.920(b)-(g)(1). 953-54 (9th Cir. 2001) (citations omitted); 20 C.F.R. §§ 24 25 The claimant has the burden of proof at steps one through four, and 26 the Commissioner has the burden of proof at step five. 27 F.3d at 953-54. Additionally, the ALJ has an affirmative duty to assist 28 the claimant in developing the record at every step of the inquiry. Id. 12 Bustamante, 262 1 at 954. If, at step four, the claimant meets his burden of establishing 2 an inability to perform past work, the Commissioner must show that the 3 claimant can perform some other work that exists in significant 4 numbers in the national economy, taking into account the claimant s 5 residual 6 experience. 7 20 C.F.R. §§ 404.1520(g)(1), 416.920(g)(1). 8 by the testimony of a vocational expert ( VE ) or by reference to the 9 Medical-Vocational Guidelines appearing in 20 C.F.R. Part 404, Subpart functional capacity2 ( RFC ), age, education, and work Tackett, 180 F.3d at 1098, 1100; Reddick, 157 F.3d at 721; The Commissioner may do so 10 P, Appendix 2 (commonly known as the Grids ). 11 F.3d 1157, 1162 (9th Cir. 2001). 12 (strength-related) 13 inapplicable and the ALJ must take the testimony of a vocational expert. 14 Moore v. Apfel, 216 F.3d 864, 869 (9th Cir. 2000) (citing Burkhart v. 15 Bowen, 856 F.2d 1335, 1340 (9th Cir. 1988)). and Osenbrock v. Apfel, 240 When a claimant has both exertional non-exertional limitations, the Grids are 16 17 V. 18 THE ALJ S DECISION 19 20 The ALJ employed the five-step sequential evaluation process and 21 concluded, at step one, that Plaintiff had not engaged in substantial 22 gainful employment since September 1, 2007. (AR 22). 23 ALJ found that Plaintiff had the severe impairments of panic disorder, 24 status post left Achilles tendon repair and a history of polysubstance 25 abuse. (Id.). At step three, the ALJ found that Plaintiff did not have At step two, the 26 27 28 2 Residual functional capacity is the most [one] can still do despite [his] limitations and represents an assessment based upon all of the relevant evidence. 20 C.F.R. §§ 404.1545(a), 416.945(a). 13 1 an impairment or combination of impairments that met or medically 2 equaled one of the listed impairments in 20 CFR Part 404, Subpart P, 3 Appendix 1. (AR 27). 4 5 The ALJ then found that Plaintiff had the residual functional 6 capacity to perform light work as defined in 20 C.F.R. § 404.1567(b) 7 except 8 jobs with no public contact; and he is limited to occasional interaction 9 with peers. (AR 25). he is limited to simple, repetitive tasks; he is limited to Based on the VE s testimony, the ALJ found that 10 Plaintiff was unable to perform any past relevant work. (AR 37). 11 However, at step five, the ALJ found that Plaintiff could perform jobs 12 that exist in significant numbers in the national economy. (AR 38). 13 Accordingly, the ALJ found that Plaintiff was not disabled within the 14 meaning of the Social Security Act. (AR 39). 15 16 VI. 17 STANDARD OF REVIEW 18 19 Under 42 U.S.C. § 405(g), a district court may review the 20 Commissioner s decision to deny benefits. The court may set aside the 21 Commissioner s decision when the ALJ s findings are based on legal error 22 or are not supported by substantial evidence in the record as a whole. 23 Aukland v. Massanari, 257 F.3d 1033, 1035 (9th Cir. 2001) (citing 24 Tackett, 180 F.3d at 1097); Smolen v. Chater, 80 F.3d 1273, 1279 (9th 25 Cir. 1996) (citing Fair v. Bowen, 885 F.2d 597, 601 (9th Cir. 1989)). 26 27 28 Substantial evidence is more than a scintilla, but less than a preponderance. Reddick, 157 F.3d at 720 (citing Jamerson v. Chater, 14 1 112 F.3d 1064, 1066 (9th Cir. 1997)). 2 a reasonable person might accept as adequate to support a conclusion. 3 Id. (citing Jamerson, 112 F.3d at 1066; Smolen, 80 F.3d at 1279). 4 determine whether substantial evidence supports a finding, the court 5 must consider the record as a whole, weighing both evidence that 6 supports 7 conclusion. 8 F.3d 953, 956 (9th Cir. 1993)). 9 either affirming or reversing that conclusion, the court may not 10 substitute its judgment for that of the Commissioner. Reddick, 157 F.3d 11 at 720-21 (citing Flaten v. Sec y, 44 F.3d 1453, 1457 (9th Cir. 1995)). and evidence that It is relevant evidence which detracts from the To [Commissioner s] Aukland, 257 F.3d at 1035 (quoting Penny v. Sullivan, 2 If the evidence can reasonably support 12 13 VII. 14 DISCUSSION 15 16 Plaintiff contends that the ALJ erred for three reasons. First, 17 Plaintiff alleges that the ALJ failed to properly assess his subjective 18 complaints and credibility. 19 Complaint ( MSPC ) at 6). 20 to properly consider all of the relevant medical evidence. 21 3). 22 discuss Dr. Brisken s treatment records from August 2011 to December 23 2011. 24 find Plaintiff 25 disorder, paranoid state, psychosis and schizoaffective disorder, and 26 therefore erred at step two of the Five-Step evaluation process. 27 at 5). However, the Court disagrees in regard to all three claims. For (Memorandum in Support of Plaintiff s Second, Plaintiff argues that the ALJ failed (Id. at 2- Specifically, Plaintiff maintains that the ALJ erred in failing to (Id. at 3). had Third, Plaintiff contends that the ALJ failed to the severe mental 28 15 impairments of dissociative (Id. 1 the reasons discussed below, the Court finds that the ALJ s decision 2 must be AFFIRMED. 3 4 A. The ALJ Cited Clear And Convincing Reasons For Finding Plaintiff s Subjective Testimony Less Than Fully Credible 5 6 7 Plaintiff contends that the ALJ erred in his evaluation of 8 Plaintiff s credibility by failing to cite clear and convincing reasons 9 for finding Plaintiff less than fully credible. (MSPC at 6). Further, 10 Plaintiff argues that his statements regarding his limitations are 11 consistent with the complete record. 12 disagrees. 13 rejecting Plaintiff s testimony. (Id.). However, the Court The ALJ properly cited clear and convincing reasons for 14 15 When assessing the credibility of a claimant, the ALJ must engage 16 in a two step analysis. Molina v. Astrue, 674 F.3d 1104, 1112 (9th Cir. 17 2012). 18 an impairment that could reasonably produce the symptoms alleged. 19 (Id.). 20 must make specific credibility findings. (Id.). 21 claimant s ordinary 22 credibility evaluation. Turner, 613 F.3d at 1224 (internal quotations 23 omitted). 24 claimant s conduct and any inadequately or unexplained failure to pursue 25 treatment or follow treatment. 26 1039 27 claimant s testimony where his normal activities can transfer to the First, the ALJ must determine if there is medical evidence of Then, if there is, in order to reject the testimony, the ALJ (9th testimony, The Cir. ALJ may 2008). the ALJ also may use consider any In assessing the techniques inconsistencies in of the Tommasetti v. Astrue, 533 F.3d 1035, Additionally, 28 16 the ALJ may discredit the 1 work setting. Morgan v. Comm r of Soc. Sec. Admin., 169 F.3d 595, 600 2 (9th Cir. 1999). 3 4 Here, there was medical evidence of an underlying impairment. 5 However, the ALJ gave specific, clear and convincing reasons to reject 6 Plaintiff s testimony about the severity of his symptoms. 7 reviewed the record and cited to numerous inconsistences in Plaintiff s 8 testimony and the record regarding Plaintiff s substance abuse and his 9 physical and mental impairments. The ALJ (AR 31-36). 10 11 Regarding Plaintiff s substance abuse, the ALJ noted that at the 12 hearing, Plaintiff testified that he had a bad foot and took pain 13 medications, but denied the use of illegal substances or alcohol in over 14 a year and expressly denied any substance abuse in 2010. (AR 31, 70). 15 However, later in the hearing, Plaintiff testified that he had a history 16 of substance abuse and that six to seven months prior, he may have 17 had a beer. 18 testified that he was in rehabilitation for pain medication addiction, 19 yet the medical records included references to the ongoing use of 20 substances, including methamphetamine, cocaine, heroin, mushrooms and 21 alcohol. 22 Plaintiff told Dr. Brody that he had been drinking and was entered into 23 a court-ordered class for treatment of his alcoholism and had a 24 Breathalyzer installed in his truck. (AR 31, 81). The ALJ further pointed out that Plaintiff (AR 31, 285-302). The ALJ also noted that in October 2010, (AR 33, 358). 25 26 Additionally, the ALJ noted that Plaintiff continually minimized 27 his substance abuse problems when speaking with his treating physicians 28 and examiners, including the ALJ himself. 17 (AR 33). Specifically, when 1 starting treatment with Dr. Tolwin in 2010, Plaintiff failed to mention 2 his history of polysubstance abuse. 3 that this repeated failure to provide candid information about his 4 polysubstance 5 [Plaintiff s] credibility. abuse history (AR 33, 336-349). significantly and The ALJ noted adversely affects (AR 33). 6 7 The ALJ also cited clear and convincing reasons for rejecting 8 Plaintiff s testimony 9 inability to work. regarding (AR 33). his physical limitations and his Plaintiff testified that he could not 10 work, yet also testified that he helped his father with construction 11 projects. 12 father was not work . 13 reported to his treating psychiatrist in December 2008, that he was 14 working for his father and that he had a job . 15 Plaintiff also told Dr. Brody that he could no longer drive. 16 However, the ALJ noted that Plaintiff s wife and other reports show that 17 he was driving, including Plaintiff s testimony that he would sometimes 18 drive all day and night. 19 function report to the State Agency, he stated that he did not do any 20 chores, only his wife did. 21 reports from Dr. Brody that showed Plaintiff was doing laundry, picking 22 up around the house, and doing dishes. 23 noted that Plaintiff was fixing things around the house, running 24 errands with his father, cleaning up the children s toys and cleaning 25 up the kitchen after dinner. 26 health care providers that he could not work because of his foot pain. 27 (AR 32, 337). 28 treating doctors that he was riding his bike for exercise and going to Plaintiff explicitly maintained the help he did for his (AR 33, 68). However, the ALJ noted that he (AR 34, 205). (AR 33, 281). (AR 361). Similarly, in Plaintiff s (AR 34, 207). Again the ALJ pointed to (AR 34, 358). The ALJ also (AR 34, 356). Further, Plaintiff told However, Plaintiff testified at the hearing and told 18 1 the gym, undermining his claim that his foot pain prevented normal 2 movement. (AR 33, 354-55). 3 4 The ALJ also noted inconsistencies (AR 35). in Plaintiff s testimony 5 regarding mental limitations. Plaintiff testified that he 6 could not work because his agoraphobia prevented him from showing up to 7 a job consistently. (AR 73). However, the ALJ noted that Plaintiff was 8 able to attend his son s football games, run errands, go to the gym, go 9 on drives, and go for bike rides to the beach. (AR 35, 359) Although 10 Plaintiff repeatedly alleged not being able to leave the house, the ALJ 11 found that much of Plaintiff s activities took him to public places. 12 Further, the ALJ noted that no psychiatrist had ever diagnosed Plaintiff 13 with agoraphobia. 14 consulting psychiatrist that his auditory hallucinations were secondary 15 to his pain medication addiction. 16 Plaintiff alleged that his mental health problems predated his substance 17 abuse. 18 that Plaintiff made no offer of proof to explain why [Plaintiff] would 19 misrepresent 20 providers. (AR 74). his (AR 35). The ALJ also noted that, Plaintiff told a (Id.). However, at the hearing, Despite this conflicting testimony, the ALJ observed mental health condition to his treating source (AR 35). 21 22 Further, Plaintiff argues that the ALJ could not make a complete 23 credibility finding without considering treating records from Dr. 24 Briskin that show a second foot surgery and additional limitations. 25 (Plaintiff s Reply ( Pl s Reply ) at 6). 26 discuss these records is harmless error. 27 when it is inconsequential to the ultimate nondisability determination. 28 Molina, 674 F.3d at 1115 (internal citations and quotations omitted). 19 However, the failure to An ALJ s error is harmless 1 Here, the ALJ cited many inconsistencies in the record, regarding both 2 Plaintiff s physical and mental limitations. 3 erred in stating that there was no medical evidence of a second surgery, 4 the severity of the pain that Plaintiff alleged is still undermined by 5 Plaintiff s active lifestyle and his reports of pain improvement to 6 other treating doctors. 7 Dr. Briskin evidence an underlying impairment, the ALJ would have still 8 found Plaintiff less than fully credible because the record simply does 9 not support the severity of pain alleged. (AR 346, 354-55). Although the ALJ may have Although the reports from 10 11 The Court finds that the discrepancies between the record and 12 Plaintiff s testimony constitutes a clear and convincing reason to 13 discount Plaintiff s testimony. Accordingly, the ALJ provided clear and 14 convincing reasons for finding Plaintiff less than fully credible. 15 16 B. The ALJ Properly Considered The Relevant Medical Evidence 17 18 Plaintiff contends that the ALJ erred in failing to properly 19 consider all of the relevant medical evidence. Specifically, Plaintiff 20 argues that the ALJ erred by failing to discuss Dr. Briskin s treatment 21 records, as well as physical therapy records, from August 2010 to 22 December 2010. 23 probative evidence of Plaintiff s left foot condition and the resulting 24 limitations. Plaintiff states that these records are significant and The Court disagrees. 25 26 Social Security regulations require the ALJ to consider all the 27 relevant 28 disabled. medical evidence when determining whether 20 C.F.R. §§ 404.1520(b), 416.927(c). 20 a claimant is Medical reports from 1 licensed medical physicians are one acceptable source of evidence. 20 2 C.F.R. § 1513(a),(b). 3 give the greatest weight to the opinion of the claimant s treating 4 physicians. 5 (9th Cir. 2010). 6 opinion, the ALJ must give specific reasons for doing so. 7 Comm r of Soc. Sec. Admin., 659 F.3d 1228, 1234 (9th Cir. 2011). 8 Further, while the ALJ is required to develop and interpret the medical 9 record, the ALJ is not required to discuss every piece of evidence. 10 Howard ex rel. Wolff v. Barnhart, 341 F.3d 1006, 1012 (9th Cir. 2003). When considering medical reports, the ALJ must Turner v. Comm r of Soc. Sec. Admin., 613 F.3d 1217, 1222 If an ALJ rejects or ignores a treating physician's Taylor v. 11 12 Here, the ALJ considered all of the relevant medical evidence and 13 it is consistent with his non-disability determination. 14 discussed Plaintiff s left foot problems in his decision in detail. The 15 ALJ noted Plaintiff s first surgery in 2006 and discussed Plaintiff s 16 visit to the doctor in 2007. 17 Plaintiff s X-Ray from 2008 showing the Achilles tendon spur and a 18 metallic object leftover from the previous surgery. 19 The ALJ also made note of the July 2010 report from UCLA, where 20 Plaintiff reported that he was ok pain-wise. 21 discussed Plaintiff s August 2010 complaints that he could only stand 22 ten-fifteen minutes and had pain in his heel and big toe. (AR 24, 305). (AR 22, 26, 251). The ALJ The ALJ discussed (AR 23, 257-58). (AR 32). The ALJ also 23 24 The ALJ further noted that Plaintiff alleged undergoing a second 25 surgery in late 2010 and that the he reported that it improved his pain 26 condition. 27 doing physical therapy for his foot in October of 2010. 28 Furthermore, the ALJ saw from psychiatric records that by February of (AR 25, 32, 346). The ALJ also noted that Plaintiff was 21 (AR 25, 358). 1 2011 Plaintiff was again riding his bike for exercise and that by March 2 of 2011 Plaintiff was only taking over-the-counter medication for pain. 3 (AR 26). 4 were effective and although Plaintiff alleged disabling foot pain, he 5 was not living a sedentary lifestyle. This suggests that Plaintiff s surgery and physical therapy 6 7 Plaintiff further argues that the ALJ erred by stating that there 8 was no objective evidence of a second surgery or a changed foot 9 condition that would lead to Plaintiff s complaints of pain, yet this 10 evidence was provided in exhibit 18f (AR 373-84) in Dr. Briskin s 11 report. (MSPC at 3) 12 most harmless error because the additional records not discussed by the 13 ALJ would not affect the ultimate nondisability determination. Molina, 14 674 F.3d at 1115. However, The ALJ s omission of this evidence is at 15 16 Plaintiff is correct in stating that the August 2010 to December 17 2010 records from Dr. Briskin show that Plaintiff did have objective 18 evidence of further limitations at that time. 19 change the fact that the ALJ considered other records from the same time 20 period in which Plaintiff says the surgery helped with his pain. (AR 21 346). 22 fact that only months after the surgery Plaintiff reported to other 23 treating doctors that he was doing better and was active again. (AR 354- 24 56). 25 directly, he still recognized that there was another surgery from 26 reading 27 Plaintiff s improvement. However, this does not Nor does the failure to discuss Dr. Briskin s records change the Therefore, while the ALJ may have failed to discuss this evidence the psychiatric records and 28 22 also cited evidence showing 1 Furthermore, rather than undermine the ALJ s decision, the physical 2 therapy records that were omitted from the ALJ s discussion support the 3 nondisibility determination. 4 2010 to December 2010 show that the therapist was hoping for recovery 5 in six to eight weeks, that the surgery results were excellent, that 6 Plaintiff initially could walk with a boot, but returned to normal 7 footwear, and that although Plaintiff reported having a limited range 8 of motion and disabling pain, aggressive stretching and exercise was 9 prescribed. (AR 374-77). The records also show that Dr. Briskin noted 10 Plaintiff s walking had increased significantly since the surgery, which 11 establishes that Plaintiff was better after the surgery than before. 12 (AR 380). The physical therapy records from August 13 14 Further, the records that the ALJ failed to discuss do not show 15 that Plaintiff s left foot impairment meets the C.F.R. requirements for 16 a Listing. 17 Plaintiff s 18 inability to ambulate effectively. 19 inability to ambulate effectively is an extreme limitation of the 20 ability to walk, meaning that the impairment interferes very seriously 21 with the individual s ability to independently initiate, sustain, or 22 complete activities. (Id.). Although the records from Dr. Briskin and 23 the physical therapy reports show that Plaintiff did have a second 24 surgery and was complaining of pain, they do not show that Plaintiff was 25 so limited in his ability to walk that he could not independently 26 initiate, sustain or complete activities. 27 the ALJ cited from the same time period show that Plaintiff was active 28 on his own. To meet a Listing for a Musculoskeletal impairment, such as left foot impairment, a claimant must demonstrate (20 C.F.R. § 404 App. 1). an The Furthermore, records that Therefore, even taking into account the evidence from the 23 1 records the ALJ did not discuss, Plaintiff does not meet the Listing 2 criteria. 3 4 The ALJ thoroughly considered all of the relevant evidence from the 5 period of alleged disability. If failing to discuss the August to 6 December 2010 records from Dr. Briskin and physical therapy was error, 7 it was at most harmless error, because those records would not change 8 the ALJ s ultimate nondisability determination. 9 10 C. The ALJ s Step-Two Finding That Plaintiff Had The Severe Mental 11 Impairment Of Panic Disorder, Polysubstance Abuse and Status Post 12 Left 13 Substantial Evidence Achilles Tendon Repair Is Complete And Supported By 14 15 Plaintiff s final contention is that the ALJ erred in failing to 16 find that Plaintiff had the severe mental impairments of dissociative 17 disorder, paranoid state, psychosis, and schizoaffective disorder. 18 (MSPC at 5-6). 19 to include limitations from those impairments in Plaintiff s RFC. (Id. 20 at 6). 21 consider how these additional mental impairments led to Plaintiff s 22 inability to consistently show up to work. 23 reasons stated below, the Court finds that the ALJ s step two finding 24 of 25 Plaintiff s limitations are complete and supported by substantial 26 evidence. Further, Plaintiff argues that the ALJ erred in failing Plaintiff further maintains that the ALJ specifically failed to Plaintiff s mental impairments 27 28 24 and (Pl s Reply at 4). his subsequent For the finding of 1 At step two of the five-step evaluation process, it is Plaintiff s 2 burden to show that his impairments are severe. 3 1110. An impairment is severe if it significantly limits the claimant s 4 physical or mental ability to do basic work. 5 Where the ALJ finds a severe medically determinable impairment at step 6 two of the sequential analysis, all medically determinable impairments 7 must be considered in the remaining steps of the sequential analysis. 8 Orn v. Astrue, 495 F.3d 625, 630 (9th Cir. 2007). 9 consider all limitations that are supported by substantial evidence. 10 Molina, 675 F.3d at 42 C.F.R.§ 404.1520(c). Finally, an ALJ must Osenbrock, 240 F.3d at 1165. 11 12 Here, the ALJ thoroughly considered and discussed Plaintiff s 13 medical 14 infrequent visits and varying diagnoses by multiple doctors over five 15 years, as well as a history substance abuse problems. See, eg, (AR 291- 16 282, 344, 347, 364, 365). 17 anxiety and social problems, as discussed above, the ALJ cited specific 18 reasons for finding Plaintiff only partially credible. 19 ALJ 20 complaints regarding his limitations, such as the alleged complete 21 inability to leave the house. 22 ALJ s findings of impairments of Panic Disorder and polysubstance abuse 23 are supported by substantial evidence. 24 concluded that Plaintiff had three non-exertional limitations: Plaintiff 25 must perform simple, repetitive tasks, may have no public contact, and 26 may only have occasional peer interaction. (AR 28). 27 are entirely consistent with Plaintiff s symptoms and they are supported 28 by substantial evidence. was records not regarding required to his mental health. The records show Although Plaintiff consistently described consider all of Therefore, the Plaintiff s subjective Considering the record as a whole, the Accordingly, the ALJ properly These limitations Plaintiff has not demonstrated that if the 25 1 ALJ found the additional severe impairments of dissociative disorder, 2 paranoid state, psychosis, and schizoaffective disorder, the ALJ would 3 have found additional non-exertional limitations. Plaintiff also fails 4 to show that these additional mental impairments were consistently found 5 by medical providers. 6 7 As noted above, Plaintiff does not cite to any additional 8 limitations that would result from the additional diagnoses that he 9 claims the ALJ ignored. Although Plaintiff contends that the ALJ failed 10 to include Plaintiff s alleged inability to show up to work regularly 11 as a limitation, the ALJ explicitly addressed this issue in his 12 decision. (Pl s Reply at 5). Indeed, the ALJ gave clear and convincing 13 reasons for rejecting Plaintiff s testimony regarding his ability to 14 maintain a regular work schedule because of his fear of leaving the 15 house. (AR 35). The ALJ noted that despite Plaintiff s statements that 16 he was afraid to leave the house, Plaintiff [attended] his son s 17 football games, [ran] errands with his father, [went] to a gym to work 18 out, [went] for drives, [went] on long bike rides down to the beach, and 19 other 20 Accordingly, the ALJ properly disregarded this additional limitation. 21 \\ 22 \\ 23 \\ 24 \\ 25 \\ 26 \\ 27 \\ activities that took him out 28 26 of the house. (AR 35). 1 Finally, even if it was an error for the ALJ to not cite the other 2 diagnoses as impairments, which it was not, it was harmless error, 3 because all of Plaintiff s limitations were included in the RFC. 4 Accordingly, any additional diagnosis not cited as a severe impairment 5 would not change the ultimate nondisability determination. 6 the ALJ did not err in his step two finding, as he made a complete 7 finding of Plaintiff s severe impairments, and the ALJ included all the 8 limitations supported by substantial evidence in Plaintiff s RFC. Therefore 9 10 VIII. 11 CONCLUSION 12 13 Consistent with the foregoing, IT IS ORDERED that Judgment be 14 entered AFFIRMING the decision of the Commissioner. The Clerk of the 15 Court shall serve copies of this Order and the Judgment on counsel for 16 both parties. 17 18 DATED: August 14, 2013 19 20 21 ___________/S/________________ SUZANNE H. SEGAL UNITED STATES MAGISTRATE JUDGE 22 23 THIS MEMORANDUM IS NOT INTENDED FOR PUBLICATION IN WESTLAW, 24 LEXIS OR ANY OTHER ONLINE DATABASE. 25 26 27 28 27
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