Crystal Howard v. Michael J. Astrue, No. 5:2012cv01633 - Document 17 (C.D. Cal. 2013)

Court Description: MEMORANDUM AND OPINION AND ORDER by Magistrate Judge Oswald Parada: Based on the foregoing, IT IS THEREFORE ORDERED, that judgment be entered affirming the decision of the Commissioner of Social Security and dismissing this action with prejudice. (am)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 CRYSTAL HOWARD, Plaintiff, 12 13 v. 14 15 CAROLYN W. COLVIN,1 Acting Commissioner of Social Security, 16 Defendant. ) Case No. EDCV 12-01633-OP ) ) ) MEMORANDUM OPINION AND ) ORDER ) ) ) ) ) ) 17 18 19 The Court2 now rules as follows with respect to the disputed issues listed in the Joint Stipulation ( JS ).3 20 21 22 23 24 25 26 27 28 1 Carolyn W. Colvin, the current Acting Commissioner of Social Security, is hereby substituted as the Defendant herein. Fed. R. Civ. P. 25(d)(1). 2 Pursuant to 28 U.S.C. § 636(c), the parties consented to proceed before the assigned United States Magistrate Judge in the current action. (ECF Nos. 8, 9.) 3 As the Court advised the parties in its Case Management Order, the decision in this case is being made on the basis of the pleadings, the (continued...) 1 1 I. 2 DISPUTED ISSUES 3 As reflected in the Joint Stipulation, the disputed issues raised by 4 5 Plaintiff as the grounds for reversal and/or remand are as follows: (1) Whether the Administrative Law Judge ( ALJ ) complied with the 6 previous District Court Order requiring the ALJ to properly 7 consider the opinions of examining physician, Dr. Berman, and 8 treating physician, Dr. Multani; 9 (2) Whether the ALJ inappropriately substituted his own judgment for 10 that of Plaintiff s treating physicians, Dr. Pasuhuk, Dr. Symonett, 11 and Dr. Yang, when he rejected their opinions because the 12 objective evidence did not show what he would expect it to show; 13 and 14 (3) Plaintiff s residual functional capacity ( RFC ). 15 16 Whether the ALJ provided a complete and accurate assessment of (JS at 3.) 17 II. 18 STANDARD OF REVIEW 19 Under 42 U.S.C. § 405(g), this Court reviews the Commissioner s 20 decision to determine whether the Commissioner s findings are supported by 21 substantial evidence and whether the proper legal standards were applied. 22 DeLorme v. Sullivan, 924 F.2d 841, 846 (9th Cir. 1991). Substantial evidence 23 means more than a mere scintilla but less than a preponderance. Richardson 24 25 26 27 28 3 (...continued) Administrative Record and the Joint Stipulation filed by the parties. In accordance with Rule 12(c) of the Federal Rules of Civil Procedure, the Court has determined which party is entitled to judgment under the standards set forth in 42 U.S.C. § 405(g). (ECF No. 6 at 3.) 2 1 v. Perales, 402 U.S. 389, 401, 91 S. Ct. 1420, 28 L. Ed. 2d 842 (1971); 2 Desrosiers v. Sec y of Health & Human Servs., 846 F.2d 573, 575-76 (9th Cir. 3 1988). Substantial evidence is such relevant evidence as a reasonable mind 4 might accept as adequate to support a conclusion. Richardson, 402 U.S. at 5 401 (citation omitted). The Court must review the record as a whole and 6 consider adverse as well as supporting evidence. Green v. Heckler, 803 F.2d 7 528, 529-30 (9th Cir. 1986). Where evidence is susceptible of more than one 8 rational interpretation, the Commissioner s decision must be upheld. Gallant v. 9 Heckler, 753 F.2d 1450, 1452 (9th Cir. 1984). 10 III. 11 DISCUSSION 12 13 A. Procedural History. On April 28, 2005, Plaintiff filed concurrent applications for SSI and 14 SSD Benefits. (Administrative Record ( AR ) at 151-53.) On September 29, 15 2005, Plaintiff s concurrent applications were denied initially (id. at 61-65), on 16 December 13, 2005, upon reconsideration (id. at 55-60). Plaintiff filed a timely 17 Request for Hearing and hearings were held on June 13, 2007, and April 3, 18 2008. (Id. at 765-87, 788-811.) On April 28, 2008, Administrative Law Judge 19 ( ALJ ) Gail Reich, issued an unfavorable decision. (Id. at 32-43.) A request 20 for review of the hearing decision resulted in an Appeals Council remand on 21 January 9, 2009. (Id. at 95-98.) On August 12, 2009, and November 30, 2009, 22 hearings were again held. (Id. at 812-31, 832-48.) On December 18, 2009, an 23 unfavorable decision issued. Plaintiff then commenced a federal court action in 24 this District, case number EDCV 10-914-OP. 25 On January 28, 2011, this Court granted judgment for Plaintiff and 26 remanded the case for further administrative proceedings ( Opinion ). (Id. at 27 870-86.) Specifically, the Court ordered that upon remand, the ALJ would 28 properly consider the opinions of Dr. Berman and Dr. Multani, and, if the ALJ 3 1 again determined rejection was warranted, to set forth legally sufficient reasons 2 for rejecting these doctors opinions. (Id. at 878-79, 882.) On May 8, 2012, a hearing was held before Administrative Law ( ALJ ) 3 4 Joseph Lisiecki III. (Id. at 1386-1407.) On July 30, 2012, the ALJ issued an 5 unfavorable decision. (Id. at 849-67.) On October 3, 2012, Plaintiff 6 commenced this action. 7 B. The ALJ found that Plaintiff has the severe impairments of history of 8 9 ALJ Decision. deep vein thrombosis ( DVT ); migraine headaches; lumbar spine disc disease 10 with chronic back pain; diabetes mellitus; sickle cell anemia; and major 11 depressive disorder. (Id. at 854.) The ALJ also found that Plaintiff has the 12 RFC to perform light work, with the following limitations: Plaintiff is able to 13 lift and/or carry twenty pounds occasionally, ten pounds frequently; stand and 14 walk with normal breaks for six hours of an eight-hour day; sit with normal 15 breaks for a total of six hours of an eight-hour day; can occasionally climb, 16 balance, stoop, kneel, crouch, and crawl, but never climb ladders, ropes or 17 scaffolds; avoid extreme cold, heat, wetness, humidity, noise; avoid 18 concentrated exposure to vibrations and hazards such as fumes, odors, or gases; 19 and is limited to simple tasks with simple work related decisions with only 20 frequent interaction with co-workers and supervisors in a non-public setting. 21 (Id. at 860, 861.) 22 Relying on the testimony of a vocational expert ( VE ), the ALJ 23 concluded that Plaintiff was not capable of performing her past relevant work. 24 (Id. at 865.) Also based on the testimony of the VE, the ALJ found that 25 Plaintiff could perform the requirements of occupations such as Shoe Packer 26 (Dictionary of Occupational Titles ( DOT ) No. 920.687-166), Mail Clerk 27 (DOT No. 209.687-026), and Housekeeping (DOT No. 323.687-014). (Id. at 28 866.) 4 1 C. The ALJ Properly Considered the Opinions of Dr. Berman and Dr. 2 Multani. 3 Plaintiff contends the ALJ failed to comply with the District Court Order 4 requiring the ALJ to properly consider the opinions of the agreed medical 5 examiner from Plaintiff s workers compensation case, Dr. Berman, and 6 Plaintiff s treating psychiatrist, Dr. Multani. (JS at 3-14.) In evaluating medical opinions, the case law and regulations distinguish 7 8 among the opinions of three types of physicians: (1) those who treat the 9 claimant (treating physicians); (2) those who examine but do not treat the 10 claimant (examining physicians); and (3) those who neither examine nor treat 11 the claimant (nonexamining physicians). See 20 C.F.R. §§ 404.1502, 12 404.1527, 416.902, 416.927; see also Lester v. Chater, 81 F.3d 821, 830 (9th 13 Cir. 1995). Generally, the opinions of treating physicians are given greater 14 weight than those of other physicians, because treating physicians are 15 employed to cure and therefore have a greater opportunity to know and observe 16 the claimant. Orn v. Astrue, 495 F.3d 625, 631 (9th Cir.2007); Smolen v. 17 Chater, 80 F.3d 1273, 1285 (9th Cir. 1996). The ALJ may only give less 18 weight to a treating physician s opinion that conflicts with the medical 19 evidence if the ALJ provides explicit and legitimate reasons for discounting the 20 opinion. See Lester, 81 F.3d at 830-31; see also Orn, 495 F.3d at 632-33; 21 Social Security Ruling 96-2p. Similarly, the Commissioner must provide 22 clear and convincing reasons for rejecting the uncontradicted opinion of an 23 examining physician. Lester, 81 F.3d at 830 (quoting Pitzer v. Sullivan, 908 24 F.2d 502, 506 (9th Cir.1990)). Even where an examining physician s opinion 25 is contradicted by another doctor, the ALJ must still provide specific and 26 legitimate reasons supported by substantial evidence to properly reject it. Id. at 27 830-31 (citing Andrews v. Shalala, 53 F.3d 1035, 1043 (9th Cir. 1995)). 28 /// 5 1 1. 2 Dr. Berman s March 20, 2006, Agreed Medical Evaluation, was 3 conducted in relation to Plaintiff s workers compensation claim. (AR at 578- 4 615.) The report is extensive and includes a thorough review of Plaintiff s past 5 medical records as well as Dr. Berman s findings from a physical examination 6 of Plaintiff. Dr. Berman noted that an MRI of Plaintiff s left shoulder revealed 7 mild supraspinatus tendinitis without a definitive rotator cuff tear,4 and an MRI 8 of Plaintiff s lumbar spine was potentially significant with a 4.5 mm posterior 9 and right protrusion at L4-5 and a central 5 mm protrusion at L5-S1. (Id. at 10 608.) Ultimately, Dr. Berman reported limited cervical and lumbar mobility, 11 lower back pain elicited from all planes of motion, and complaints along the 12 posterior aspect of the lower extremities upon sitting straight leg raises. (Id. at 13 581-82, 610.) Plaintiff also exhibited left calf atrophy. (Id. at 610.) Dr. 14 Berman also reported shoulder pain on all planes of motion and complaints on 15 left shoulder impingement testing, but evidenced good strength of the rotator 16 cuff. (Id. at 582-83, 609-10.) Dr. Berman concluded that Plaintiff suffered 17 from a sprained/strained left shoulder with impingement syndrome, chronic 18 recurrent musculoligamentous strain of the lumbosacral spine, lower extremity 19 radicular involvement, discogenic pathology per MRI, and cervicotrapezial 20 musculoligamentous strain. (Id. at 607.) Dr. Berman did not preclude Plaintiff 21 from work, but recommended that Plaintiff avoid heavy lifting and overhead 22 activities with repetitive activities above the shoulder and avoid heavy work 23 activities, along with prolonged weight bearing and prolonged sitting. (Id. at 24 610.) Dr. Berman. 25 26 27 28 4 On March 24, 2005, Plaintiff was caring for a patient who had fallen twice; she picked up that person each time and felt lower back and left shoulder pain. (AR at 579.) 6 1 In its prior Opinion, the Court found remand was warranted, partly for 2 the reason that the ALJ had selectively considered Dr. Berman s findings when 3 he noted that Dr. Berman s findings were overall normal. (AR at 876-77.) 4 Moreover, the Court found that the ALJ s complete disregard of Dr. Berman s 5 opinions due to the fact that they arose from a workers compensation case was 6 error. (Id. at 878.) 7 8 In denying Plaintiff s application on remand, the ALJ discussed Dr. Berman s opinions as follows: 9 The claimant also alleged she has a problem with her left 10 shoulder including tendonitis and a cyst. In the agreed medical 11 examiner s report dated March 20, 2006, there is a note that x-rays 12 of the claimant s left shoulder were unremarkable. The file contains 13 no other imaging scans or radiographs of the . . . claimant s left 14 shoulder as of the alleged onset date. This shows the claimant had 15 no continued complaints of left shoulder problems in spite of past 16 treatment for issues related to that shoulder. Thus, since the alleged 17 onset date [of May 2, 2005], there is no evidence of problems with 18 her left shoulder and I find this is a non-severe impairment. 19 (Id. at 855 (emphasis added) (citation omitted).) The ALJ further examined Dr. 20 Berman s findings: 21 Also considered is the opinion of Jeffrey Berman, M.D., the 22 agreed medical examiner from the claimant s workers compensation 23 case, in the agreed medical examination report dated March 20, 24 2006. Dr. Berman personally examined the claimant and reviewed 25 all of the records given to him that pertained to the claimant s 26 workers compensation case before completing the agreed medical 27 examination report and giving an opinion on the claimant s retained 28 work capacity. Dr. Berman opined the claimant could still work but 7 1 that she should avoid heav[y] lifting and overhead activities with 2 repetitive activities above shoulder level; and avoid heavy work 3 activities along with prolonged weight bearing and prolonged sitting. 4 One problem is the phrasing of the limitations contained in the 5 report. Agency Regulations and Rulings require the residual 6 functional capacity to be worded in terms of what the claimant is still 7 capable of performing in spite of the assessed impairments. As such, 8 it is impossible to determine what the claimant is still capable of 9 performing because Dr. Berman s restrictions are not provided in 10 such terms. Therefore, the opinions of Dr. Berman provide no 11 additional insight into the claimant s retained work capacity because 12 Dr. Berman only indicates what [Plaintiff] is not capable of doing. 13 Therefore, no weight is given to this opinion because the specific 14 opinion given is not given in terms that are usable or identifiable by 15 the Agency, 16 17 (Id. at 862-63 (citations omitted).) Plaintiff contends that although it is unclear how much Plaintiff s left 18 shoulder impairment restricts her lifting ability, the ALJ should have included 19 some limitation in the RFC regarding overhead activities or activities above 20 shoulder level. (JS at 10.) She also contends that the ALJ s rejection of Dr. 21 Berman s opinion simply because [of] the way it was worded, was improper 22 and if the ALJ wanted an opinion worded in terms of what Plaintiff is still 23 capable of doing despite her impairments, or felt Dr. Berman s findings were 24 ambiguous because of the way they were worded, the ALJ had a duty to contact 25 Dr. Berman in order to fully and fairly develop the record. (Id. at 10-11.) In 26 short, Plaintiff contends the ALJ again failed to give specific and legitimate 27 reasons supported by substantial evidence to support his rejection of Dr. 28 Berman s opinions. (Id. at 13.) And, because of this, Plaintiff alleges the ALJ 8 1 2 did not fully comply with the remand order. (Id.) Defendant responds that the ALJ s reasoning for rejecting Dr. Berman s 3 opinion was directly on point, because the terms and analysis used in the 4 workers compensation realm are not useful in the federal disability 5 evaluation. (Id. at 15 (citations omitted).) As such, the ALJ properly 6 rejected Dr. Berman s opinion as not useful. (Id. at 16 (citation omitted).) 7 Thus, the ALJ on remand rejected Dr. Berman s opinions regarding 8 Plaintiff s alleged shoulder impairment for three reasons: (1) Dr. Berman s 9 report indicated that x-rays of Plaintiff s left shoulder were unremarkable ; 10 (2) Plaintiff had no continued complaints of left shoulder problems after Dr. 11 Berman s examination; and (3) the workers compensation terminology used by 12 Dr. Berman was not in terms that are usable or identifiable by the Agency 13 because it did not identify what Plaintiff was capable of doing. 14 With respect to the ALJ s reasoning regarding his displeasure with the 15 workers compensation terminology, the Court finds that if this had been the 16 only reason given, it would not be a specific or legitimate reason for rejecting 17 Dr. Berman s opinion. As the Court clearly stated in its prior Opinion, [T]he 18 ALJ may not disregard a physician s medical opinion simply because it was 19 initially elicited in a state workers compensation proceeding. Booth v. 20 Barnhart, 181 F. Supp. 2d 1099, 1105 (C.D. Cal. 2002) (citing Coria v. 21 Heckler, 750 F.2d 245, 247-48 (3rd Cir. 1984)); see also Lester, 81 F.3d at 832 22 (9th Cir. 1995) ( [t]he purpose for which medical reports are obtained does not 23 provide a legitimate basis for rejecting them ). 24 However, the ALJ did provide two other reasons for discounting Dr. 25 Berman s opinions that were specific and legitimate. The fact that Dr. 26 Berman s x-rays of Plaintiff s shoulder were unremarkable is an indication of 27 a contradiction between Dr. Berman s notes and his opinion, a valid reason for 28 rejecting a doctor s opinion. See Valentine v. Comm r of Soc. Sec. Admin., 9 1 574 F.3d 685, 692-93 (9th Cir. 2009) (holding that contradiction between a 2 treating physician s opinion and his treatment notes constitutes a specific and 3 legitimate reason for rejecting the treating physician s opinion); Bayliss v. 4 Barnhart, 427 F.3d 1211, 1216 (9th Cir. 2005) (holding that contradiction 5 between treating physician s assessment and clinical notes justifies rejection of 6 assessment). 7 Moreover, the fact that the voluminous medical records from Plaintiff s 8 treating doctors spanning the period of 2005 to 2012 failed to document 9 any legitimate continuing complaints of left shoulder problems after Dr. 10 Berman s examination, is a specific and legitimate reason for discounting that 11 opinion. Batson v. Comm r of Soc. Sec., 359 F.3d 1190, 1195 (9th Cir. 2004) 12 (ALJ may discredit treating physicians opinions that are conclusory, brief, and 13 unsupported by the record as a whole); Tonapetyan v. Halter, 242 F.3d 1144, 14 1149 (9th Cir. 2001) (ALJ may discredit treating physicians opinions that are 15 not supported by objective medical findings); see also 20 C.F.R. § 16 404.1527(c)(4) (the more consistent an opinion is with the record as a whole, 17 the more weight it will be given). 18 Although there were some other reports suggesting reaching limitations, 19 the ALJ properly discounted these other reports. For instance, the ALJ 20 discounted the 2005 opinion of Plaintiff s treating physician, Dr. Symonett, 21 who found limitations in reaching activities, on the basis that the objective 22 evidence in the record did not support the limitations suggested by Dr. 23 Symonett. (AR at 863-64.) Moreover, like Dr. Berman s assessment, this 24 report also was contemporaneous with Plaintiff s shoulder and back injury. 25 The ALJ also discounted the September 10, 2010, opinion of the state 26 agency medical consultant, Dr. Do, a non-treating, non-examining physician, 27 who reviewed Plaintiff s medical evidence and included a limitation with 28 respect to work above shoulder level on the left. (Id. at 862.) The ALJ noted 10 1 again that Plaintiff s left shoulder allegations were not fully supported by the 2 medical evidence of record and gave only some weight to Dr. Do s opinion 3 for this reason. (Id.) 4 And, on February 11, 2011, one of Plaintiff s treating physicians, Dr. 5 Pasuhuk, completed a form entitled Medical Opinion Re: Ability to Do Work- 6 Related Activities (Physical) and indicated Plaintiff had physical functions 7 affected by her lumbar spine impairment, including her ability to reach. (Id. at 8 1237.) The ALJ gave Dr. Pasuhuk s opinion little weight as his extreme 9 limitations, which also included very restrictive sitting, standing, and walking 10 limitations, were not supported by the objective evidence in the record. (Id. at 11 863.) For the same reasons, he gave little weight to the January 3, 2007, 12 opinion of treating physician, Dr. Yang, who also completed a Multiple 13 Impairment Questionnaire, and who also suggested more extreme limitations in 14 sitting, standing and walking than the ALJ found to be supported by the record.5 15 (Id. at 500, 864.) Batson, 359 F.3d at 1195 (ALJ may discredit treating 16 physicians opinions that are conclusory, brief, and unsupported by the record as 17 a whole); Tonapetyan, 242 F.3d at 1149 (ALJ may discredit treating physicians 18 opinions that are not supported by objective medical findings); see also 20 19 C.F.R. § 404.1527(c)(4). 20 Thus, as the ALJ found, there are no medical records that support a 21 continuing issue with Plaintiff s left shoulder, and to the extent Plaintiff herself 22 testified to ongoing left shoulder issues, the ALJ properly discounted her 23 credibility, a finding that Plaintiff does not dispute. 24 2. Dr. Multani. 25 Dr. Multani completed four separate questionnaires in which he gave his 26 27 28 5 The Court notes that Dr. Yang indicated Plaintiff had only minimal limitation in reaching, including overhead. (AR at 501.) 11 1 opinion regarding Plaintiff s limitations caused by her mental impairments. 2 Plaintiff contends the ALJ failed to indicate the portions of three of the 3 questionnaires that conflicted with the fourth questionnaire. (JS at 11.) She 4 also contends that contrary to the ALJ s finding of inconsistency between the 5 questionnaires, the March 9, 2009, questionnaire is consistent with the other 6 three questionnaires completed by Dr. Multani on March 4, 2009, August 17, 7 2010, and September 17, 2010. (Id.) She also contends that the ALJ s use of 8 global assessment of functioning ( GAF ) scores to discredit Dr. Multani was 9 improper. (Id. at 12.) Finally, she states that the ALJ misstated the evidence 10 when he stated that Plaintiff s March 2009 GAF score of 40 would not be 11 consistent with an original score of 40 but with improvement in her condition, 12 as her GAF score from that opinion was 45, not 40. (Id. at 12-13 (citing id. at 13 667).) For all of these reasons, Plaintiff contends that the ALJ failed to give 14 specific and legitimate reasons supported by substantial evidence to support his 15 rejection of Dr. Multani s opinions, and, as a result, failed to comply with the 16 Court s Order to properly consider his opinions. (Id. at 13.) 17 The ALJ stated the following with respect to Dr. Multani s opinions: 18 The underlying record shows the claimant received continuous 19 diagnoses of major depressive disorder, single, moderate from Dr. 20 Multani during his treatment of the claimant. The diagnosis given by 21 the claimant s long term treating psychiatrist is given more weight 22 regarding the level of severity and the recurrence of the depressive 23 symptoms than is given to a medical professional who only examined 24 the claimant one time. In addition, the records from Dr. Multani show 25 the claimant s condition improving with treatment, which would 26 indicate that the corresponding GAF score would change and no 27 longer be in the 40 s. . . . 28 .... 12 1 The last opinion considered is from Gurmeet Multani, M.D., the 2 claimant s treating psychiatrist, as contained in four separate 3 questionnaires scattered throughout the file. In three of the four 4 questionnaires, the responses to the questions about the severity of the 5 claimant s impairments were identical. In those questionnaires, Dr. 6 Multani opined the claimant has significant symptoms of depression 7 that are exacerbated by her physical condition. He noted her areas of 8 difficulty are with interacting and communicating effectively with 9 others; with concentration but that she can understand simple 10 instructions; and with difficulty adapting and carrying out tasks and 11 workingongoalsandissues. Intheotherquestionnaire,[Exhibit20F]herankedallofherproblemsinthemoderate 12 or marked range with 12 of the 20 areas considered at the marked level. The 13 Exhibit 20F questionnaire also contained a GAF score of 40/85. The opinions in 14 the questionnaire in 20F, specifically the check-the-box ratings in the 20 separate 15 areas considered, is not consistent with the description of the claimant s 16 functioning level contained in the other three identical reports. Further, the GAF 17 score of 40 reflects the current opinion on the functioning by Dr. Multani while the 18 80 reflects the highest score for the past year. This shows the claimant s GAF 19 score has changed within the past year, but as discussed above, the GAF score is 20 generally not a reliable indicator of the level of severity of mental impairments. 21 This is again true for this situation because the treatment notes from Dr. Multani 22 show the claimant s functioning level had increased steadily with treatment and the 23 current score of 40 would not be consistent with an original score of 40 but with 24 improvement in her condition (see treatment notes in Exhibit 18F). As such, the 25 inconsistencies between the numerous reports from Dr. Multani and his own 26 treatment notes show his opinion is not fully reliable. Thus, I give his opinions 27 little weight. 28 (AR at 858, 859 (citations omitted).) 13 1 The Court notes that the ALJ gave more weight to Dr. Multani s opinions 2 than to that of one-time examiner Liana Tanase, M.D., and did not completely 3 reject Dr. Multani s findings, noting Dr. Multani s diagnosis and the fact that 4 Dr. Multani s records showed improvement in Plaintiff s condition over time. 5 (Id. at 858.) A review of Dr. Multani s questionnaires show that those of March 6 4, 2009, August 17, 2010, and September 17, 2010, describe mostly moderate 7 limitations, while the March 9, 2009, questionnaire, a check-box type form, set 8 forth marked limitations in the majority of categories. (Compare id. at 678, 9 1039, 1043, with id. at 670-72.) This is a legitimate reason for discounting the 10 opinion of a treating physician. Crane v. Shalala, 76 F.3d 251, 253 (9th Cir. 11 1996) (holding that an ALJ may reject check-off forms that do not contain an 12 explanation of the bases for their conclusions). 13 Moreover, consistent with the ALJ s findings, Dr. Multani s treatment 14 notes from January to May 2008, generally indicated an increase in Plaintiff s 15 energy; less worrying; improved sociability; less irritability; less sadness; less 16 anxiety; and fewer sleep problems. (Id. at 617-29); Tommasetti, 533 F.3d at 17 1041 (9th Cir. 2008) (treating physician s opinion properly rejected where 18 opinion was inconsistent with physician s records); Valentine, 574 F.3d at 19 692-93 (holding that contradiction between a treating physician s opinion and 20 his treatment notes constitutes a specific and legitimate reason for rejecting the 21 treating physician s opinion); Bayliss, 427 F.3d at 1216 (holding that 22 contradiction between treating physician s assessment and clinical notes 23 justifies rejection of assessment). 24 With respect to the GAF scores, as a threshold matter, the Commissioner 25 has no obligation to credit or even consider GAF scores in the disability 26 determination. See 65 Fed. Reg. 50746, 50764-65 (Aug. 21, 2000) ( The GAF 27 scale . . . is the scale used in the multiaxial evaluation system endorsed by the 28 American Psychiatric Association. It does not have a direct correlation to the 14 1 severity requirements in our mental disorders listings. ); see also Howard v. 2 Comm r of Soc. Sec., 276 F.3d 235, 241 (6th Cir. 2002) ( While a GAF score 3 may be of considerable help to the ALJ in formulating the RFC, it is not 4 essential to the RFC s accuracy. ). Here, the ALJ specifically noted that GAF 5 scores are not meant to be endorsed or used for the agency s disability 6 programs, as they do not have a direct correlation to the severity requirements in 7 our mental disorders listings. (AR at 858.) Thus, the ALJ s statement that 8 given Dr. Multani s findings of improvement with treatment, which would 9 indicate the GAF score would seem to be no longer in the 40s, and any 10 misstatement regarding the assigned GAF scores, had little to no bearing on the 11 ALJ s finding of no disability and was harmless error. Curry v. Sullivan, 924 12 F.2d 1127, 1131 (9th Cir. 1991) (harmless error rule applies to review of 13 administrative decisions regarding disability). Based on the foregoing, the Court finds there was no error and the ALJ 14 15 sufficiently complied with the Court s previous Order. 16 C. The ALJ Did Not Improperly Substitute His Opinion for That of the 17 Treating Physicians. 18 Plaintiff contends the ALJ failed to properly consider the opinions of 19 Plaintiff s treating physicians, Dr. Pasuhuk, Dr. Symonett, and Dr. Yang. (JS at 20 19.) Specifically, she contends that the ALJ played doctor by rejecting these 21 Doctors opinions because the imaging scans and electro-diagnostic studies do 22 not show observable nerve or spinal cord impingement, Plaintiff s pain level is 23 not consistent with the level of degeneration observed in the imaging scans, 24 there is no evidence of radiculopathy in the lower extremities, and there have 25 been no significant increases or change in her pain medications. (Id. at 27 26 (citing AR at 863-64).) The ALJ also rejected the opinions regarding any 27 limitations due to DVT because there is no evidence of recurrent DVT, as she 28 has not experienced a repeat episode since her initial diagnosis and the insertion 15 1 of the filter, stating that claimant s DVT resolved and there is no evidence of 2 any other DVT episodes, and the level of limitation associated with the 3 history of DVT is out of proportion with the actual limiting effects of the history 4 of DVT as she has no[t] experienced another DVT incident since the initial leg 5 blood clot. (Id. at 28 (citing AR at 863-64).) Plaintiff contends the ALJ 6 assumes Plaintiff s DVT has resolved, despite Dr. Pasuhuk s indication that 7 she suffers from recurrent DVT, and faces a lifetime of treatment with 8 Coumadin to prevent another DVT episode. (Id. at 28 (citing AR at 1363).) 9 She also notes that Dr. Symonett indicated that Coumadin contributes to 10 Plaintiff s chronic leg pain, and, therefore, Plaintiff s leg pain is likely to 11 continue. (Id. (citing AR at 424).) 12 With regard to the ALJ s finding that the medical records do not show the 13 level of degeneration in Plaintiff s lumbar spine sufficient to warrant the 14 extreme limitations suggested by Dr. Pasuhuk and Dr. Symonett, the ALJ may 15 discredit a treating physician s opinions that are unsupported by the record as a 16 whole. Batson, 359 F.3d at 1195 (ALJ may discredit treating physicians 17 opinions that are conclusory, brief, and unsupported by the record as a whole); 18 Tonapetyan, 242 F.3d at 1149 (ALJ may discredit treating physicians opinions 19 that are not supported by objective medical findings); see also 20 C.F.R. § 20 404.1527(c)(4). Here, the ALJ also found that Plaintiff s subjective pain level is 21 not consistent with the level of degeneration observed in Plaintiff s MRI. (AR 22 at 863.) Since May 2005, there was no additional evidence of radiculopathy, no 23 evidence of cord or nerve root impingement, and no evidence of further 24 degeneration or other significant problems with Plaintiff s lumbar spine. (Id. at 25 855.) Moreover, the ALJ properly discounted Plaintiff s credibility, a finding 26 that Plaintiff does not dispute. 27 28 The ALJ also noted that Plaintiff had no significant increases or changes in her pain medications that would show her spinal degeneration had 16 1 significantly worsened over time. This is a specific and legitimate reason for 2 discounting the opinions of Plaintiff s treating physicians. Warre v. Comm r of 3 Soc. Sec. Admin., 439 F.3d 1001, 1006 (9th Cir. 2006) (impairments that can be 4 controlled effectively with medication are not disabling for purposes of 5 eligibility for benefits); Odle v. Heckler, 707 F.2d 439, 440 (9th Cir. 1983) 6 (where claimant s multiple impairments were controllable by medication or 7 other forms of treatment, ALJ did not err by finding impairments did not 8 significantly limit claimant s exertional capabilities). With respect to the ALJ s findings regarding Plaintiff s DVT, the record 9 10 shows that Plaintiff has not had an episode since her initial diagnosis and the 11 insertion of the filter. Again, as this impairment is effectively controlled, it was 12 not error for the ALJ to find it was not disabling. Odle, 707 F.2d at 440. And, 13 with regard to Plaintiff s leg pain, the ALJ s review of the record showed no 14 radiculopathy in the lower extremities and took this, as well as his discounting 15 of Plaintiff s credibility, into account when he found that her allegations of 16 crippling lower extremity pain were not supported by the record. (AR at 863- 17 64.) 18 As noted by Defendant, the objective findings in the record show mild 19 results at most: April 2006 mild right knee imaging (id. at 1338, 1325); June 20 2006 mild right knee MRI (id. at 1325); June 2006 negative ultrasound for leg 21 DVT (id. at 1334); April 2009 normal chest x-ray (id. at 1131); August 2009 22 normal abdominal sonogram (id. at 1127); August 2009 negative chest x-ray (id. 23 at 1121); October 2009 negative head CT scan (id. at 1122); November 2009 24 normal spinal fluid test (id. at 1221); April 2010 negative chest x-ray and CT 25 scan (id. at 1116-17, 1285-86); June 2010 normal abdominal CT scan (id. at 26 1011, 1277); September 2010 normal chest x-ray (id. at 1268); October 2010 27 negative chest x-ray (id. at 1107); October 2010 normal ultrasounds of both legs 28 for DVT (id. at 1074, 1085); and July 2009 (id. at 1202), August 2010 (id. at 17 1 1021-22), and May 2011 (id. at 1165-66, 1169) normal physical examinations. It appears that the ALJ gave great weight to the opinion of the medical 2 3 expert, Dr. Goldhamer, who reviewed the entire medical record and testified at 4 the hearing as to his opinion. (Id. at 860, 1389-93.) Dr. Goldhamer noted 5 Plaintiff s history of DVT with a filter in place; history of migraine headaches; 6 history of chronic back pain; history of diabetes mellitus; and history of sickle 7 cell trait. (Id. at 1390.) Dr. Goldhamer stated that the record did not show any 8 flare-ups of Plaintiff s DVT, and noted that her Coumadin, an anti-coagulant, 9 should prevent any further flare-ups. (Id. at 1392.) He agreed she might need 10 pain medications for her headaches and back pain, but would be able to drive an 11 automobile with those medications. (Id.) He also found no support in the 12 record for Plaintiff s asthma. (Id.) Dr. Goldhamer s functional limitations were 13 virtually identical to the physical limitations of the RFC found by the ALJ. (Id. 14 at 860, 1391.) Opinions of non-treating or non-examining physicians may serve 15 as substantial evidence when the opinions are consistent with independent 16 clinical findings or other evidence in the record, as they are here. Thomas v. 17 Barnhart, 278 F.3d 947, 957 (9th Cir. 2002). Based on the foregoing, the Court finds that substantial evidence supports 18 19 the ALJ s decision in rejecting the opinions of the treating physicians. Thus, 20 there was no error. 21 D. The ALJ Provided a Complete and Accurate Assessment of Plaintiff s 22 RFC. 23 Plaintiff contends the ALJ failed to properly assess Plaintiff s RFC. She 24 bases this on her contention that the ALJ erred in rejecting the opinions of 25 Plaintiff s treating and examining physicians, Drs. Berman, Multani, Symonett, 26 Yang, and Pasuhuk. (JS at 32-33.) She contends that if the ALJ had properly 27 considered these opinions, she would have been found to be disabled, as they 28 found her incapable of performing even sedentary work and/or opined she 18 1 would be absent from work three or more days per week because of her 2 limitations. (Id. at 34.) As discussed above, the Court finds no error in the 3 ALJ s discounting of these opinions. Thus, there was no error in the ALJ s 4 assessment of Plaintiff s RFC. 5 IV. 6 ORDER 7 Based on the foregoing, IT IS THEREFORE ORDERED, that judgment 8 be entered affirming the decision of the Commissioner of Social Security and 9 dismissing this action with prejudice. 10 11 12 DATED: April 25, 2013 HONORABLE OSWALD PARADA United States Magistrate Judge 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 19

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