Marc William Schmidt v. Carolyn W. Colvin, No. 5:2013cv01331 - Document 18 (C.D. Cal. 2014)

Court Description: MEMORANDUM OPINION AND ORDER AFFIRMING COMMISSIONER by Magistrate Judge Jean P. Rosenbluth. IT IS ORDERED that judgment be entered AFFIRMING the decision of the Commissioner and dismissing this action with prejudice. IT IS FURTHER ORDERED that the Clerk serve copies of this Order and the Judgment on counsel for both parties. (See Order for details) (bem)

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1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 CENTRAL DISTRICT OF CALIFORNIA 9 MARC WILLIAM SCHMIDT, 10 Plaintiff, 11 vs. 12 13 CAROLYN W. COLVIN, Acting Commissioner of Social Security, 14 Defendant. 15 ) Case No. EDCV 13-1331-JPR ) ) ) MEMORANDUM OPINION AND ORDER ) AFFIRMING COMMISSIONER ) ) ) ) ) ) ) 16 17 I. 18 PROCEEDINGS Plaintiff seeks review of the Commissioner s final decision 19 denying his application for Social Security Disability Insurance 20 benefits ( DIB ). The parties consented to the jurisdiction of 21 the undersigned U.S. Magistrate Judge under 28 U.S.C. § 636(c). 22 This matter is before the Court on the parties Joint 23 Stipulation, filed April 25, 2014, which the Court has taken 24 under submission without oral argument. For the reasons stated 25 below, the Commissioner s decision is affirmed and judgment is 26 entered in her favor. 27 28 1 1 II. BACKGROUND 2 Plaintiff was born December 21, 1963. 3 Record ( AR ) 47.) 4 (AR 48.) He completed the 11th grade and has his GED. He previously worked as a plumber and plumbing 5 supervisor. 6 (Administrative (AR 49, 66, 153.) Plaintiff filed an application for DIB on April 27, 2009. 7 (AR 79, 83, 144-45.) He alleged that he had been unable to work 8 since July 1, 2006, because of depression and low-back, right9 hip, and right-leg pain. (AR 166.) After his application was 10 denied, he requested a hearing before an Administrative Law 11 Judge. (AR 99-100.) A hearing was held on September 16, 2011, 12 at which Plaintiff, who was represented by counsel, and a 13 vocational expert ( VE ) testified. (AR 44-78.) In a written 14 decision issued November 21, 2011, the ALJ determined that 15 Plaintiff was not disabled. (AR 25-40.) On June 6, 2013, the 16 Appeals Council denied Plaintiff s request for review. (AR 2-5.) 17 This action followed. 18 III. STANDARD OF REVIEW 19 Under 42 U.S.C. § 405(g), a district court may review the 20 Commissioner s decision to deny benefits. The ALJ s findings and 21 decision should be upheld if they are free of legal error and 22 supported by substantial evidence based on the record as a whole. 23 Id.; Richardson v. Perales, 402 U.S. 389, 401 (1971); Parra v. 24 Astrue, 481 F.3d 742, 746 (9th Cir. 2007). Substantial evidence 25 means such evidence as a reasonable person might accept as 26 adequate to support a conclusion. Richardson, 402 U.S. at 401; 27 Lingenfelter v. Astrue, 504 F.3d 1028, 1035 (9th Cir. 2007). 28 is more than a scintilla but less than a preponderance. 2 It 1 Lingenfelter, 504 F.3d at 1035 (citing Robbins v. Soc. Sec. 2 Admin., 466 F.3d 880, 882 (9th Cir. 2006)). To determine whether 3 substantial evidence supports a finding, the reviewing court 4 must review the administrative record as a whole, weighing both 5 the evidence that supports and the evidence that detracts from 6 the Commissioner s conclusion. 7 720 (9th Cir. 1996). Reddick v. Chater, 157 F.3d 715, If the evidence can reasonably support 8 either affirming or reversing, the reviewing court may not 9 substitute its judgment for that of the Commissioner. Id. at 10 720-21. 11 IV. THE EVALUATION OF DISABILITY 12 People are disabled for purposes of receiving Social 13 Security benefits if they are unable to engage in any substantial 14 gainful activity owing to a physical or mental impairment that is 15 expected to result in death or which has lasted, or is expected 16 to last, for a continuous period of at least 12 months. 42 17 U.S.C. § 423(d)(1)(A); Drouin v. Sullivan, 966 F.2d 1255, 1257 18 (9th Cir. 1992). 19 A. 20 The ALJ follows a five-step sequential evaluation process in The Five-Step Evaluation Process 21 assessing whether a claimant is disabled. 20 C.F.R. 22 § 404.1520(a)(4); Lester v. Chater, 81 F.3d 821, 828 n.5 (9th 23 Cir. 1995) (as amended Apr. 9, 1996). In the first step, the 24 Commissioner must determine whether the claimant is currently 25 engaged in substantial gainful activity; if so, the claimant is 26 not disabled and the claim must be denied. § 404.1520(a)(4)(i). 27 If the claimant is not engaged in substantial gainful activity, 28 the second step requires the Commissioner to determine whether 3 1 the claimant has a severe impairment or combination of 2 impairments significantly limiting his ability to do basic work 3 activities; if not, a finding of not disabled is made and the 4 claim must be denied. § 404.1520(a)(4)(ii). If the claimant has 5 a severe impairment or combination of impairments, the third 6 step requires the Commissioner to determine whether the 7 impairment or combination of impairments meets or equals an 8 impairment in the Listing of Impairments ( Listing ) set forth at 9 20 C.F.R., Part 404, Subpart P, Appendix 1; if so, disability is 10 conclusively presumed and benefits are awarded. 11 § 404.1520(a)(4)(iii). 12 If the claimant s impairment or combination of impairments 13 does not meet or equal an impairment in the Listing, the fourth 14 step requires the Commissioner to determine whether the claimant 15 has sufficient residual functional capacity ( RFC )1 to perform 16 his past work; if so, the claimant is not disabled and the claim 17 must be denied. § 404.1520(a)(4)(iv). The claimant has the 18 burden of proving he is unable to perform past relevant work. 19 Drouin, 966 F.2d at 1257. If the claimant meets that burden, a 20 prima facie case of disability is established. Id. If that 21 happens or if the claimant has no past relevant work, the 22 Commissioner then bears the burden of establishing that the 23 claimant is not disabled because he can perform other substantial 24 gainful work available in the national economy. 25 § 404.1520(a)(4)(v). That determination comprises the fifth and 26 27 28 1 RFC is what a claimant can do despite existing exertional and nonexertional limitations. § 404.1545; see Cooper v. Sullivan, 880 F.2d 1152, 1155 n.5 (9th Cir. 1989). 4 1 final step in the sequential analysis. § 404.1520; Lester, 81 2 F.3d at 828 n.5; Drouin, 966 F.2d at 1257. 3 B. 4 At step one, the ALJ found that Plaintiff alleged an onset The ALJ s Application of the Five-Step Process 5 date of July 1, 2006, but had engaged in substantial gainful 6 activity by working as a plumber from July 1 to July 31, 2006. 7 (AR 27.) The ALJ further found that Plaintiff had worked for a 8 short period in 2009 but concluded it was an unsuccessful work 9 attempt that did not constitute substantial gainful activity. 10 (Id.) Finally, the ALJ noted that Plaintiff admitted at the 11 hearing that he had self-employment earnings in 2010 in the 12 amount of $11,262.00 from acting as a broker for plumbing 13 equipment, but she gave him the benefit of the doubt and 14 concluded that they did not arise from substantial gainful 15 activity, either. 16 (Id.) At step two, the ALJ concluded that Plaintiff had severe 17 impairments of degenerative disc disease, lumbar spine; 18 herniated disc, L5-S1; lumbar radiculitis;2 insomnia; avascular 19 necrosis of the hip;3 and alcohol dependence syndrome. (AR 28.) 20 The ALJ found that Plaintiff s obesity, hypertension, 21 22 23 24 25 26 27 28 2 Radiculitis is inflamation of a spinal nerve root. Radiculitis, The Free Dictionary, http://medical-dictionary. thefreedictionary.com/radiculitis (last visited Aug. 20, 2014). 3 Avascular necrosis is the death of bone tissue from a lack of blood supply. Avascular necrosis, Mayo Clinic, http://www. mayoclinic.org/diseases-conditions/avascular-necrosis/basics/ definition/con-20025517 (last updated May 4, 2012). Avascular necrosis can lead to tiny breaks in the bone and the bone s eventual collapse. Id. It can be caused by bone fracture or joint dislocation, and it is also associated with long-term use of highdose steroids and excessive alcohol intake. Id. 5 1 hypothyroidism, and depression were nonsevere (AR 28-30), 2 findings that Plaintiff does not challenge. At step three, the 3 ALJ determined that Plaintiff s impairments did not meet or equal 4 a Listing. (AR 30-31.) At step four, she found that Plaintiff 5 retained the RFC to perform a limited range of light work.4 6 31-38.) (AR Based on the VE s testimony, the ALJ concluded that 7 Plaintiff was unable to perform his past work as a plumber or 8 plumbing supervisor but could perform other jobs existing in 9 sufficient numbers in the national and regional economies. 10 38-39.) (AR The ALJ therefore concluded that Plaintiff was not 11 disabled. (AR 40.) 12 V. DISCUSSION 13 Plaintiff argues that the ALJ erred in (1) discounting the 14 opinion of his physician assistant, Chad Sweetnam and (2) failing 15 to properly consider Plaintiff s cervical-spine impairment 16 individually and in combination with the other impairments in 17 assessing his [RFC] .5 (J. Stip. at 4.) 18 A. 19 A district court must uphold an ALJ s RFC assessment when Applicable Law 20 the ALJ has applied the proper legal standard and substantial 21 22 23 24 25 26 27 28 4 Light work involves lifting no more than 20 pounds at a time with frequent lifting or carrying of objects weighing up to 10 pounds. § 404.1567(b). Even though the weight lifted may be very little, a job is in this category when it requires a good deal of walking or standing, or when it involves sitting most of the time with some pushing and pulling of arm or leg controls. Id. A person who can do light work can generally also do sedentary work. Id. 5 The Court addresses the issues in an order different from that followed by the parties, in order to avoid repetition and for other reasons. 6 1 evidence in the record as a whole supports the decision. 2 v. Barnhart, 427 F.3d 1211, 1217 (9th Cir. 2005). Bayliss The ALJ must 3 consider all the medical evidence in the record and explain in 4 [her] decision the weight given to . . . [the] opinions from 5 treating sources, nontreating sources, and other nonexamining 6 sources. 20 C.F.R. § 404.1527(e)(2)(ii); see also 7 § 404.1545(a)(1) ( We will assess your residual functional 8 capacity based on all the relevant evidence in your case 9 record. ); SSR 96-8p, 1996 WL 374184, at *2 (July 2, 1996) (RFC 10 must be based on all of the relevant evidence in the case 11 record ). In making an RFC determination, the ALJ may consider 12 those limitations for which there is support in the record and 13 need not consider properly rejected evidence or subjective 14 complaints. See Bayliss, 427 F.3d at 1217 (upholding ALJ s RFC 15 determination because the ALJ took into account those 16 limitations for which there was record support that did not 17 depend on [claimant s] subjective complaints ); Batson v. Comm r 18 of Soc. Sec. Admin., 359 F.3d 1190, 1197 (9th Cir. 2004) (ALJ not 19 required to incorporate into RFC findings from treating-physician 20 opinions that were permissibly discounted ). 21 Three types of physicians may offer opinions in Social 22 Security cases: (1) those who directly treated the plaintiff, (2) 23 those who examined but did not treat the plaintiff, and (3) those 24 who did not treat or examine the plaintiff. 25 830. Lester, 81 F.3d at A treating physician s opinion is generally entitled to 26 more weight than that of an examining physician, and an examining 27 physician s opinion is generally entitled to more weight than 28 that of a nonexamining physician. 7 Id. Moreover, an ALJ may 1 accord less weight to opinions from other sources, such as 2 physician assistants, Gomez v. Chater, 74 F.3d 967, 970-71 (9th 3 Cir. 1996), superseded by regulation on other grounds as noted in 4 Hudson v. Astrue, No. CV-11-0025-CI, 2012 WL 5328786, at *4 n.4 5 (E.D. Wash. Oct. 29, 2012), and may discount their testimony by 6 giving reasons germane to each witness for doing so. Molina v. 7 Astrue, 674 F.3d 1104, 1111 (9th Cir. 2012) (internal quotation 8 marks omitted). 9 10 B. Background6 On May 19, 2009, Dr. Isaac Schmidt, who treated Plaintiff 11 and specialized in orthopedic surgery, completed a permanent and 12 stationary report in connection with Plaintiff s worker s 13 compensation case. (AR 273-82.) He diagnosed lumbar 14 sprain/strain ; lumbar facet syndrome; herniated disc at L5-S1; 15 avascular necrosis, bilateral hips; and trochanteric bursitis, 16 bilateral hips.7 (AR 278.) Dr. Schmidt noted that Plaintiff s 17 previous job as a plumber had required frequent lifting up to 18 100 pounds, with pushing and pulling of 100 pounds. (AR 274.) 19 He opined that [p]ertaining to his lumbar spine, Plaintiff 20 would be precluded from heavy work, which was a 50 percent 21 loss of his pre-injury capacity for bending, stooping, lifting, 22 pushing, pulling and climbing or other activities involving 23 6 Because the parties with the 24 summarizes them only to are familiar they are facts, the Court the extent relevant to the disputed issues. 25 26 27 28 7 Bursitis occurs when bursae become inflamed. Bursitis, Mayo Clinic, http://www.mayoclinic.org/diseases-conditions/bursitis/ basics/definition/con-20015102 (last updated Aug. 20, 2014). Bursae are the small, fluid-filled sacs that cushion the bones, tendons, and muscles near joints. Id. 8 1 comparable physical effort. (AR 280.) He opined that 2 [p]ertaining to his right hip, Plaintiff was precluded from 3 prolonged standing and/or walking. 4 (Id.) On October 20, 2009, Dr. William C. Boeck, Jr., a board- 5 certified orthopedic surgeon, performed a comprehensive 6 orthopedic evaluation of Plaintiff at the Social Security 7 Administration s request. (AR 238-42.) Dr. Boeck noted that 8 Plaintiff complained of daily low-back pain with radiation into 9 the right-hip area and down to the knee. (AR 238.) After 10 performing a physical examination, Dr. Boeck found that [t]he 11 positive findings noted objectively in examination of this 12 individual are the limited motions in the lumbar spine. 13 242.) (AR He opined that [i]n view of the lack of any other 14 corroborating positive signs, Plaintiff could lift and carry 50 15 pounds occasionally and 25 pounds frequently, stand or walk six 16 hours in an eight-hour day, and sit six hours in an eight-hour 17 workday. (Id.) He had no postural or manipulative limitations. 18 (Id.) 19 On November 3, 2009, Dr. Leonard H. Naiman, who specialized 20 in internal medicine,8 reviewed Plaintiff s medical records and 21 completed a physical-residual-functional-capacity assessment. 22 (AR 245-52.) Dr. Naiman opined that Plaintiff suffered from 23 back pain and could lift and carry 50 pounds occasionally and 24 25 26 27 28 8 Dr. Naiman s electronic signature includes a medical specialty code of 19, indicating internal medicine. (AR 252); see Program Operations Manual System (POMS) DI 26510.089, U.S. Soc. Sec. Admin. (Oct. 25, 2011), http://policy.ssa.gov/poms.nsf/lnx/ 0426510089; POMS DI 26510.090, U.S. Soc. Sec. Admin. (Aug. 29, 2012), http://policy.ssa.gov/poms.nsf/lnx/0426510090. 9 1 25 pounds frequently, stand and walk about six hours in an eight2 hour day, sit for about six hours in an eight-hour day, perform 3 unlimited pushing and pulling, and frequently climb, balance, 4 stoop, kneel, crouch, and crawl. (AR 246-47.) On June 3, 2010, 5 Dr. E. Cooper, who also specialized in internal medicine,9 6 reviewed the medical evidence and affirmed Dr. Naiman s opinion. 7 (AR 313.) 8 On August 20, 2010, Plaintiff reported to physician s 9 assistant Lewis10 that he had experienced neck pain radiating 10 into the right arm for the preceding two months. (AR 323.) In 11 September 2010, Lewis noted that Plaintiff complained of neck 12 pain radiating to his right arm and causing right-arm numbness, 13 tingling, and diminished strength. (AR 319.) In October 2010, a 14 cervical-spine MRI revealed a moderately sized herniated disc 15 at C6-7 and a peripheral disc protrusion bilaterally at C5-6. 16 (AR 327.) A doctor advised Plaintiff to continue his pain 17 medication and referred him to a spine clinic. 18 (AR 317.) In January 2011, Dr. Rahul Basho at the Orthopedic Surgical 19 Spine Clinic noted that Plaintiff complained of cervical pain 20 for over a year that radiated to his right shoulder, arm, and 21 hand. (AR 337.) Plaintiff reported that he had difficulty with 22 day to day activities and had numbness in his thumb and two 23 24 25 26 27 28 9 Dr. Cooper s electronic signature includes a medical specialty code of 19, indicating internal medicine. (AR 313); see Program Operations Manual System (POMS) DI 26510.089, U.S. Soc. Sec. Admin. (Oct. 25, 2011), http://policy.ssa.gov/poms.nsf/lnx/ 0426510089; POMS DI 26510.090, U.S. Soc. Sec. Admin. (Aug. 29, 2012), http://policy.ssa.gov/poms.nsf/lnx/0426510090. 10 The record does not reflect Lewis s other name. 10 1 fingers. (Id.) Plaintiff also reported low-back pain that 2 radiated to his lower extremities, but he was not receiving any 3 active treatment for his low back at this time. (Id.) Upon 4 examination, Dr. Basho noted decreased range of motion and 5 tenderness of the lumbar spine, decreased range of motion of the 6 neck, and tenderness to palpation of the cervical region. (Id.) 7 In the upper extremities, Plaintiff had motor strength of four on 8 a scale of five in the C6 distribution bilaterally and 9 decreased sensation in the right C6 nerve distribution. (Id.) 10 After noting Plaintiff s x-ray and MRI results, Dr. Basho 11 diagnosed C5-7 disc herniation with central foraminal stenosis, 12 C6 radiculopathy to the right,11 and lumbago.12 (Id.) He 13 prescribed physical therapy and noted that Plaintiff would most 14 likely benefit from surgical intervention with respect to the 15 neck but wanted conservative treatment at this time. (AR 337- 16 38.) 17 In March 2011, Dr. Basho noted that Plaintiff complained of 18 pain starting at the base of his neck and shooting into the right 19 shoulder. (AR 335.) He denied any gait imbalance or difficulty 20 with fine motor movements of the hands. (Id.) Upon examination, 21 22 23 24 25 26 27 28 11 Cervical radiculopathy is a disease process marked by nerve compression from herniated disk material or arthritic bone spurs. Jason David Eubanks, Cervical Radiculopathy: Nonoperative Management of Neck Pain and Radicular Symptoms, Am. Family Physician (Jan. 1, 2010), available at http://www.aafp.org/afp/ 2010/0101/p33.html. Cervical radiculopathy leads to neck and radiating arm pain or numbness in the distribution of a specific nerve root. Id. 12 Lumbago is pain in the lower back. Lumbago, Merriam-Webster, http://www.merriam-webster.com/dictionary/lumbago (last visited Aug. 21, 2014). 11 1 Plaintiff had five out of five strength and intact sensation in 2 the lower extremities (id.); in the upper extremities, he had 3 four out of five strength in some muscles and five out of five in 4 others (AR 335). Sensation in the right upper extremity was 5 diminished along the C6 nerve distribution. (Id.) Plaintiff s 6 shoulders were nontender and he had negative Hawkin s and Neer s 7 tests bilaterally.13 (AR 335-36.) Dr. Basho diagnosed cervical 8 radiculopathy, prescribed physical therapy and Medrol,14 and 9 noted that if that treatment did not work, he would consider 10 epidural steroid injections. (AR 336.) On September 2, 2011, 11 physician s assistant Chad Sweetnam noted that Plaintiff had 12 cervical radiculopathy and prescribed physical therapy. (AR 13 334.) 14 On September 6, 2011, Sweetnam completed a lumbar-spine RFC 15 questionnaire. (AR 329-33.) Under diagnosis, Sweetnam noted 16 only cervical radiculopathy. 15 (AR 329.) He noted Plaintiff s 17 cervical-spine x-rays and MRI results and listed the positive 18 19 20 21 22 23 13 A positive Hawkin s test can reveal possible subacromial impingement or rotator-cuff tendonitis of the shoulder; a postitive Neer s test can indicate impingement of the rotator-cuff tendons of the shoulder. Thomas W. Woodward, M.D. et al., The Painful Shoulder: Part 1. Clinical Evaluation, Am. Family Physician (May 15, 2000), available at http://www.aafp.org/afp/2000/0515/ p3079.html. 14 Medrol, or methylprednisolone, is a corticosteroid used to 24 relieve inflamation. Methylprednisolone Oral, MedlinePlus, http://www.nlm.nih.gov/medlineplus/druginfo/meds/a682795.html (last 25 updated Sept. 1, 2010). 26 15 Sweetnam did not mention Plaintiff s lumbar-spine or hip 27 conditions anywhere on the form. Thus, all of the asserted limitations presumably stemmed from Plaintiff s cervical-spine 28 conditions. 12 1 objective signs as 4/5 motor strength right arm, decreased 2 sensation, and a positive Hawkin s test. (AR 330.) Sweetnam 3 opined that Plaintiff could walk for three to four blocks without 4 rest, sit for 45 minutes and stand for 45 minutes at a time, 5 stand and walk a total of two hours in an eight-hour day, and sit 6 about four hours in an eight-hour day. (AR 331.) He could 7 occasionally lift and carry 10 pounds but never more than that. 8 (AR 332.) Plaintiff needed to walk for 15 minutes every hour, 9 take unscheduled 15-minute breaks two or three times a day, and 10 be able to shift positions at will from sitting, standing, or 11 walking. (Id.) Sweetnam opined that Plaintiff had significant 12 limitations in doing repetitive reaching, handling, or fingering; 13 could bend and twist at the waist each for only 20 percent of an 14 eight-hour workday; and would be absent from work about three 15 times a month as a result of his impairments or treatment. (AR 16 333.) 17 In her decision, the ALJ gave great weight, but not full 18 weight, to the opinions of examining physician Boeck and 19 reviewing physicians Naiman and Cooper. (AR 37.) She noted that 20 their opinions were generally consistent in that they all found 21 that Plaintiff could perform a range of medium-exertion work.16 22 (Id.) The ALJ noted, however, that [i]n order to give 23 [Plaintiff] the benefit of the doubt, she had adopted those 24 specific restrictions on a function-by-function basis that are 25 best supported by the objective evidence as a whole. (Id.) 26 27 28 16 Medium work involves lifting no more than 50 pounds at a time with frequent lifting or carrying of objects weighing up to 25 pounds. § 404.1567(c). 13 1 The ALJ also accorded great weight to Dr. Schmidt s 2 opinion but gave Plaintiff the benefit of the doubt and assessed 3 additional limitations to account for [his] allegations of 4 shoulder pain, insomnia and neck pain. (Id.) Finally, the ALJ 5 considered the opinion of Chad Sweetman [sic], a physician 6 assistant, but gave it less weight than other qualifying 7 medical source opinions because it was not from an acceptable 8 medical source and was inconsistent with the medical records as 9 a whole, which indicated a conservative course of treatment, 10 including physical therapy. (Id.) The ALJ therefore concluded 11 that Plaintiff retained the RFC to perform a limited range of 12 light work, specifically, 13 [he] can lift and/or carry twenty pounds occasionally, 14 ten pounds frequently. 15 walk for about six hours each in an eight-hour workday, 16 taking normal breaks. 17 positions 18 minutes at the workstation. [He] can occasionally kneel, 19 stoop, crouch and crawl. 20 ramps, 21 scaffolds. 22 occasionally and ten pounds frequently with his lower 23 extremity. [He] can occasionally reach overhead with his 24 non-dominant upper right extremity. 25 use his right hand for gross and fine manipulation and 26 has no limitations on use of his left hand. 27 occasionally fully rotate his neck from side to side. 28 [He] must avoid hazards such as unprotected heights and every stairs [Plaintiff] can sit, stand or [He] must be able to alternate forty-five and minutes for one to five [He] can occasionally climb never climb ladders, ropes or [He] can push and/or pull twenty pounds 14 [He] can frequently [He] can 1 dangerous 2 exposure to extremely cold weather. moving machinery and avoid concentrated 3 (AR 31.) 4 C. 5 For the reasons discussed below, the ALJ did not err in Analysis 6 discounting Sweetnam s opinion or assessing Plaintiff s cervical7 spine impairment. 8 9 10 1. The ALJ did not err in discounting Sweetnam s opinion The ALJ did not err in rejecting the opinion of physician s 11 assistant Sweetnam. As the ALJ noted (AR 36), Sweetnam is not an 12 acceptable medical source under Social Security regulations. 13 See 20 C.F.R. § 404.1513(a) ( [a]cceptable medical sources 14 include only licensed physicians, psychologists, optometrists, 15 podiatrists, and speech pathologists). Rather, the regulations 16 treat physician s assistants as other sources, see 17 § 404.1513(d), and the ALJ may reject opinions from other 18 sources by giving reasons germane to each witness for doing 19 so, Molina, 674 F.3d at 1111 (internal quotation marks omitted); 20 Turner v. Comm r of Soc. Sec., 613 F.3d 1217, 1224 (9th Cir. 21 2010) (internal quotation marks omitted). 22 Moreover, as the ALJ noted, Sweetnam s opinion was 23 inconsistent with the medical records as a whole and 24 Plaintiff s conservative course of treatment. (AR 37.) Indeed, 25 Sweetnam opined that Plaintiff s cervical-spine impairment, 26 alone, resulted in significant limitations, including an 27 inability to sit or stand for more than 45 minutes at a time, 28 walk for more than three or four blocks before resting, or lift 15 1 more than 10 pounds (AR 331-32); but in March 2011, Dr. Basho 2 noted that Plaintiff could walk on his heels and toes, perform a 3 tandem gait, and had normal strength and sensation in his lower 4 extremities (AR 335-36). Indeed, a physical exam revealed 5 reduced sensation only along the C6 nerve in the right arm and 6 slightly reduced strength in some of the muscles of his upper 7 extremities. (AR 335.) Moreover, Plaintiff s cervical-spine 8 condition was treated with only medication and physical therapy 9 (see AR 334-38); although Dr. Basho noted that Plaintiff might 10 benefit from epidural injections or surgery if his symptoms did 11 not improve (id.), nothing indicates that any physician 12 administered such treatment or found that it was actually 13 warranted. These were therefore sufficient reasons for 14 discounting Sweetnam s opinion. See Bayliss, 427 F.3d at 1218 15 ( inconsistency with medical evidence is germane reason for 16 discounting laywitness testimony); Carter v. Astrue, 472 F. App x 17 550, 553 (9th Cir. 2012) ( We have held that inconsistency with 18 medical evidence is a germane reason to reject lay testimony. ); 19 see also 20 C.F.R. § 404.1527(c)(4) ( Generally, the more 20 consistent an opinion is with the record as a whole, the more 21 weight we will give to that opinion. ). 22 Plaintiff acknowledges that Sweetnam is not a valid medical 23 source but argues that under Social Security Ruling 06-03p, 2006 24 WL 2329939 (Aug. 9, 2006), his opinions nevertheless may rise to 25 the level of treating opinion status depending on the degree of 26 treatment he provided. (J. Stip. at 20.) But SSR 06-03p merely 27 states that depending on the relevant facts and circumstances, 28 the opinion of an other medical source may be entitled to more 16 1 weight than the opinion of an acceptable medical source, 2 stating, [f]or example, it may be appropriate to give more 3 weight to the opinion of a medical source who is not an 4 acceptable medical source if he or she has seen the individual 5 more often than the treating source and has provided better 6 supporting evidence and a better explanation for his or her 7 opinion. See 2006 WL 2329939, at *5. But Sweetnam apparently 8 treated Plaintiff only once, on September 2, 2011, and he made no 9 clinical findings in that note other than stating that Plaintiff 10 had cervical radiculopathy and should undergo physical therapy.17 11 (AR 334.) And as discussed above, Sweetnam s opinion regarding 12 Plaintiff s RFC was inconsistent with the medical record, which 13 reflected only conservative treatment. The ALJ therefore was not 14 obligated to treat Sweetnam s assessment as a treating opinion. 15 Remand is not warranted on this ground. 16 2. 17 18 The ALJ did not err in assessing Plaintiff s cervical-spine impairment Plaintiff concedes that if he had only suffered from lumbar 19 spine and hip impairments, the ALJ s [RFC] assessment perhaps 20 would be supported by substantial evidence because a reasonable 21 person may accept the opinions of Drs. Boeck, Naiman and Schmidt 22 to determine that [Plaintiff] is limited to the [assessed] range 23 of light work. (J. Stip. at 7.) Plaintiff argues, however, 24 that [s]ince the onset of [his] cervical spine impairment as of 25 26 17 Sweetnam also dictated the January 2011 evaluation note, 27 which was signed by Dr. Basho, but nothing indicates that Sweetnam, rather than the doctor, treated Plaintiff that day. (See AR 33728 38.) 17 1 approximately June 2010, a reasonable person could not accept the 2 opinions of Drs. Boeck, Naiman, Cooper and Schmidt because they 3 did not have an opportunity to consider the impact that 4 [Plaintiff s] cervical radiculopathy had on his ability to work. 5 (J. Stip. at 9 (citation omitted).) 6 Plaintiff would perhaps be correct if the ALJ had relied 7 solely on those doctors opinions in formulating the RFC 8 assessment. But after crediting those opinions, all of which 9 stated that Plaintiff could perform a range of medium work, the 10 ALJ in fact gave Plaintiff the benefit of the doubt and 11 assessed significant additional limitations based on his 12 cervical-spine impairment and reported symptoms. (See AR 37.) 13 Plaintiff s medical records reflect that he had a moderately 14 sized herniated disc at the left C6-7 and a peripheral disc 15 protrusion bilaterally at C5-6 (AR 327); upon examination, Dr. 16 Basho noted that Plaintiff had slightly diminished strength in 17 some of his right-arm muscles and diminished sensation in the 18 right C6 nerve distribution (AR 335; see also AR 330 (Sweetnam s 19 RFC assessment noting 4/5 motor strength right arm and 20 decreased sensation along right C6 distribution)). Moreover, in 21 a September 2010 disability report, Plaintiff reported that he 22 had developed neck, shoulder, and right-arm conditions in June 23 2010, which resulted in neck and shoulder numbness down [his] 24 right arm. (AR 189.) At the September 2011 hearing, Plaintiff 25 testified that he had pain in his neck and shoulders (AR 62), and 26 because of his cervical-spine problems, he could probably get 27 [his] elbow about even with [his] shoulder but if he lifted it 28 any further than that, it s like electric shock going up [his] 18 1 arm. (AR 54.) He said he had numbness and tingling in some of 2 his fingers (AR 62, 65), and as a result he had trouble grasping 3 objects with his right hand (AR 65).18 Plaintiff asserted that 4 he had trouble lifting things with his right arm (AR 57); he 5 could carry less than five pounds with his right hand before 6 experiencing pain or discomfort (AR 63) and used his left hand 7 which was his dominant hand (AR 48, 65) to carry a gallon of 8 milk (AR 63). At the hearing and in his disability reports, 9 moreover, Plaintiff attributed his standing and sitting 10 limitations to his low-back condition, not his later cervical11 spine problems. (See AR 54, 60-62, 166, 177.) The ALJ 12 accommodated those medical findings and many of Plaintiff s 13 subjective complaints by, for example, limiting Plaintiff to 14 lifting and carrying 20 pounds occasionally and 10 pounds 15 frequently, only occasional reaching overhead with his right arm, 16 only frequently using his right hand for manipulation, only 17 occasionally rotating his neck from side to side, and only 18 occasionally kneeling, stooping, crouching, and crawling.19 (AR 19 31.) 20 To the extent Plaintiff contends the ALJ should have 21 22 23 24 25 26 27 28 18 Plaintiff s allegations that he had trouble grasping with his right hand appear to conflict with Dr. Basho s observation in March 2010 that Plaintiff denied any difficulty with fine motor movements of the hands. (AR 335.) 19 To the extent Plaintiff alleged limitations exceeding the RFC, moreover, the ALJ properly discredited them because, among other things, he had received only conservative treatment for his allegedly debilitating conditions and made inconsistent statements about his alcohol use and how he first injured his back. (AR 33.) Plaintiff has not challenged the ALJ s credibility determination. 19 1 assessed additional limitations based on physician s assistant 2 Sweetnam s RFC assessment (J. Stip. at 8-10), that argument 3 fails. As previously discussed in Section V.C.1, the ALJ 4 permissibly rejected Sweetnam s opinion because it was 5 inconsistent with the evidence and Plaintiff s conservative 6 treatment. As such, she was not obligated to include his 7 assessed limitations in the RFC assessment. 8 at 1197. See Batson, 359 F.3d Plaintiff also contends that the ALJ erroneously 9 determined that Plaintiff s cervical spine impairment would only 10 result in a limitation against side-to-side rotation and not 11 other limitations such as lifting, carrying, reaching, handling 12 and fingering because of radiculopathy. (J. Stip. at 10.) But 13 as previously discussed, the ALJ in fact included several 14 additional RFC limitations in order to accommodate Plaintiff s 15 cervical-spine impairment, such as limitations on lifting and 16 carrying, overhead reaching, stooping, crouching, and use of his 17 right hand for manipulation. 18 (AR 31.) Plaintiff also contends that as a lay person, an ALJ is 19 simply not qualified to interpret raw medical data in functional 20 terms. (J. Stip. at 10 (some internal quotation marks omitted) 21 (quoting Padilla v. Astrue, 541 F. Supp. 2d 1102, 1106 (C.D. Cal. 22 2008)).) It is true that an ALJ may not simply substitute her 23 own opinion for a doctor s professional interpretation of 24 clinical testing. See Day v. Weinberger, 522 F.2d 1154, 1156 25 (9th Cir. 1975) (noting that hearing examiner erred by failing to 26 set forth any specific reasons for rejecting the . . . doctors 27 uncontroverted conclusions and instead go[ing] outside the 28 record to medical textbooks for the purpose of making his own 20 1 exploration and assessment as to claimant s physical condition 2 even though he was not qualified as a medical expert ). Here, 3 however, the ALJ gave legally sufficient reasons for discounting 4 the opinion of Sweetnam, an other source under the regulations; 5 she also appropriately considered all the medical evidence and 6 Plaintiff s subjective complaints and formulated an RFC that was 7 consistent with them. (See AR 31-38 (summarizing evidence and 8 Plaintiff s subjective complaints)); SSR 96-8p, 1996 WL 374184, 9 at *5 (RFC assessment must be based on all of the relevant 10 evidence in the case record, such as medical history, laboratory 11 findings, effects of treatment, medical-source statements, 12 effects of symptoms, and recorded observations (emphasis in 13 original)); cf. id. at *7 ( If the RFC assessment conflicts with 14 an opinion from a medical source, the adjudicator must explain 15 why the opinion was not adopted. ). Plaintiff also relied on the 16 opinions of Drs. Schmidt, Boeck, Naiman, and Cooper. 17 therefore acted within her authority. The ALJ See Vertigan v. Halter, 18 260 F.3d 1044, 1049 (9th Cir. 2001) ( It is clear that it is the 19 responsibility of the ALJ, not the claimant s physician, to 20 determine residual functional capacity. ); 20 C.F.R. 21 § 404.1546(c) ( [T]he administrative law judge . . . is 22 responsible for assessing your residual functional capacity. ); 23 see also 20 C.F.R. § 404.1545(a)(1) ( We will assess your 24 residual functional capacity based on all the relevant evidence 25 in your case record. ); SSR 96-5p, 1996 WL 374183, at *5 (July 2, 26 1996) (RFC determination is reserved to ALJ and is based upon 27 consideration of all relevant evidence in the case record, 28 including medical evidence and relevant nonmedical evidence, such 21 1 as observations of lay witnesses of an individual s apparent 2 symptomatology, an individual s own statement of what he or she 3 is able or unable to do, and many other factors that could help 4 the adjudicator determine the most reasonable findings in light 5 of all the evidence. ). 6 To the extent Plaintiff argues that he is entitled to remand 7 based on the ALJ s failure to list his cervical-spine condition 8 as a severe impairment at step two of the sequential disability 9 analysis (see J. Stip. at 11), that claim fails. Even if the ALJ 10 erred, it was harmless because she adequately considered that 11 condition and its resulting limitations when formulating 12 Plaintiff s RFC at step four. See Lewis v. Astrue, 498 F.3d 909, 13 911 (9th Cir. 2007) (failure to list bursitis at step two 14 harmless when ALJ extensively discussed condition and 15 considered any limitations posed by [it] at step four). 16 Finally, any error in the ALJ s assessment of Plaintiff s 17 limitations from his cervical-spine impairment is harmless for 18 the additional reason that even accounting for more such 19 limitations, Plaintiff remained able to perform one of the jobs 20 identified by the VE. See Stout v. Comm r, Soc. Sec. Admin., 454 21 F.3d 1050, 1055 (9th Cir. 2006) (finding error harmless when 22 mistake was nonprejudicial to the claimant or irrelevant to the 23 ALJ s ultimate disability conclusion ). The VE originally 24 testified that based on the ALJ s RFC determination, Plaintiff 25 would be able to perform three positions. (AR 74-76.) 26 Plaintiff s counsel then asked whether Plaintiff would be able to 27 work with the additional limitation of use of his right hand 28 less than occasionally because of his cervical-spine problems, 22 1 and the VE testified that he could still do the rental-clerk job. 2 (AR 76-77.) 3 Plaintiff is not entitled to remand on this ground. 4 VI. CONCLUSION 5 Consistent with the foregoing, and pursuant to sentence four 6 of 42 U.S.C. § 405(g),20 IT IS ORDERED that judgment be entered 7 AFFIRMING the decision of the Commissioner and dismissing this 8 action with prejudice. IT IS FURTHER ORDERED that the Clerk 9 serve copies of this Order and the Judgment on counsel for both 10 parties. 11 12 13 DATED: August 26, 2014 14 ______________________________ JEAN ROSENBLUTH U.S. Magistrate Judge 15 16 17 18 19 20 21 22 23 24 25 26 27 28 20 This sentence provides: The [district] court shall have power to enter, upon the pleadings and transcript of the record, a judgment affirming, modifying, or reversing the decision of the Commissioner of Social Security, with or without remanding the cause for a rehearing. 23

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