Oscar Andres Narvaez Miramontez v. Michael J Astrue, No. 8:2012cv00866 - Document 22 (C.D. Cal. 2013)
Court Description: MEMORANDUM OPINION AND ORDER by Magistrate Judge Marc L. Goldman: (See document for details.) For the reasons stated above, the decision of the Social Security Commissioner is AFFIRMED and the action is DISMISSED with prejudice. (rla)
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1 2 3 4 5 UNITED STATES DISTRICT COURT 6 CENTRAL DISTRICT OF CALIFORNIA 7 SOUTHERN DIVISION 8 9 OSCAR ANDRES NARVAEZ MIRAMONTEZ, 10 Plaintiff, 11 v. 12 13 14 MICHAEL J. ASTRUE, Commissioner of the Social Security Administration, Defendant. 15 ) ) ) ) ) ) ) ) ) ) ) ) ) ) Case No. SACV 12-00866-MLG MEMORANDUM OPINION AND ORDER 16 17 Plaintiff Oscar Miramontez seeks judicial review of the 18 Commissioner s final decision denying his application for disability 19 insurance benefits ( DIB ). For the reasons stated below, the decision 20 of the Commissioner is affirmed and the matter is dismissed with 21 prejudice. 22 23 I. Background 24 Plaintiff was born on March 9, 1970, and was 38 years old at the 25 time he filed his application for benefits. (Administrative Record 26 ( AR ) at 131.) He has a high school education and has relevant work 27 experience 28 installer. (AR at 160, 162.) Plaintiff filed his DIB application on as an air conditioning 1 installer, painter and drywall 1 November 3, 2008, alleging disability beginning November 15, 2003, due 2 to lower back pain, insomnia and depression. (AR at 65, 131-34.) 3 Plaintiff s application was denied initially on December 8, 2008, 4 and upon reconsideration on February 18, 2009. (AR at 71-74, 77-81.) An 5 administrative hearing was held on March 16, 2010, before Administrative 6 Law 7 counsel, testified, as did a vocational expert. (AR at 36-64.) Judge ( ALJ ) Alexander Weir, III. Plaintiff, represented by 8 On April 5, 2010, the ALJ issued an unfavorable decision. (AR at 9 21-35.) He found that the medical evidence established that Plaintiff 10 suffered from a severe back impairment. (AR at 24.) However, the ALJ 11 determined that Plaintiff s impairment did not meet, and was not 12 medically equal to, one of the listed impairments in 20 C.F.R., Part 13 404, Subpart P, Appendix 1. (AR at 26.) The ALJ further found that 14 Plaintiff retained the residual functional capacity ( RFC ) to perform 15 light work as defined in 20 C.F.R. 404.1567(b) with the following 16 limitations: 17 Specifically, the claimant could lift or carry 10 pounds 18 frequently and 20 pounds occasionally. He could stand and walk 19 for 2 hours in an 8-hour work day (with normal breaks), and 20 could sit for 6 hours in an 8 hour day. He could push or pull 21 without limitation. He would need to be able to alternate 22 sitting and standing, as needed. In addition he was precluded 23 from climbing ladders, ropes or scaffolds, but he was able to 24 occasionally climb ramps and stairs, balance, stoop, kneel, 25 crouch, and crawl. He has no other manipulative, visual, 26 environmental or communicative limitations. 27 (AR at 27.) 28 // 2 1 The ALJ concluded that although Plaintiff was incapable of 2 performing any past relevant work, there were jobs that existed in 3 significant 4 perform, and therefore Plaintiff was not disabled within the meaning of 5 the Social Security Act. See 20 C.F.R. § 416.920(f). (AR at 30-31.) numbers in the national economy that Plaintiff could 6 On February 23, 2012, the Appeals Council denied review. (AR at 1- 7 6.) Plaintiff then timely commenced this action for judicial review. On 8 December 14, 2012, the parties filed a Joint Stipulation ( Joint Stip. ) 9 of disputed facts and issues. Plaintiff contends that the ALJ erred by: 10 (1) failing to give proper weight to the opinion of Plaintiff s treating 11 physician; and (2) failing to perform a proper credibility analysis. 12 (Joint Stip. at 4.) Plaintiff seeks reversal of the Commissioner s 13 denial 14 alternative, remand for a new administrative hearing. (Joint Stip. at 15 20-21.) The Commissioner requests that the ALJ s decision be affirmed. 16 (Joint Stip. at 21.) of his application and payment of benefits or, in the 17 18 19 II. Standard of Review Under 42 U.S.C. § 405(g), a district court may review the 20 Commissioner s decision to deny benefits. The Commissioner s or ALJ s 21 decision must be upheld unless the ALJ s findings are based on legal 22 error or are not supported by substantial evidence in the record as a 23 whole. Tackett v. Apfel, 180 F.3d 1094, 1097 (9th Cir. 1990); Batson v. 24 Comm r of Soc. Sec. Admin., 359 F.3d 1190, 1193 (9th Cir. 2004); Parra 25 v. Astrue, 481 F.3d 742, 746 (9th Cir. 2007). Substantial evidence means 26 such evidence as a reasonable person might accept as adequate to support 27 a conclusion. Richardson v. Perales, 402 U.S. 389, 401 (1971); Widmark 28 v. Barnhart, 454 F.3d 1063, 1066 (9th Cir. 2006). It is more than a 3 1 scintilla, but less than a preponderance. Robbins v. Soc. Sec. Admin., 2 466 F.3d 880, 882 (9th Cir. 2006). To determine whether substantial 3 evidence supports a finding, the reviewing court must review the 4 administrative record as a whole, weighing both the evidence that 5 supports 6 conclusion. Reddick v. Chater, 157 F.3d 715, 720 (9th Cir. 1996). If 7 the evidence can support either affirming or reversing the ALJ s 8 conclusion, the reviewing court may not substitute its judgment for 9 that of the ALJ. Robbins, 466 F.3d at 882. and the evidence that detracts from the Commissioner s 10 11 III. Discussion 12 A. 13 The ALJ Accorded Appropriate Weight to the Opinion of Plaintiff s Treating Physician 14 Plaintiff contends that the ALJ erred in failing to give 15 controlling weight to the opinion of his treating physician, Dr. 16 Jonathan M. Wong, M.D. (Joint Stip. at 15.) On February 12, 2010, Dr. 17 Wong completed a Residual Functional Capacity Questionnaire, which 18 diagnosed Plaintiff with displacement of the intervertebral disc with 19 myelopathy. (AR at 613.) Dr. Wong opined that Plaintiff could sit for 20 less than two hours and could stand and walk for about two hours in an 21 eight-hour workday. (AR at 616.) Dr. Wong also stated that Plaintiff 22 would likely miss work three times a month as the result of his 23 impairments. (AR at 618.) Dr. Wong determined that Plaintiff s symptoms 24 and limitations began in 2002. (AR at 619.) 25 An ALJ should generally accord greater probative weight to a 26 treating physician s opinion than to opinions from non-treating sources. 27 See 28 legitimate reasons for rejecting a treating physician s opinion in favor 20 C.F.R. § 404.1527(d)(2). The 4 ALJ must give specific and 1 of a non-treating physician s contradictory opinion. Orn v. Astrue, 495 2 F.3d 625 (9th Cir. 2007); Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 3 1996). However, the ALJ need not accept the opinion of any medical 4 source, including a treating medical source, if that opinion is brief, 5 conclusory, and inadequately supported by clinical findings. Thomas v. 6 Barnhart, 278 F.3d 947, 957 (9th Cir. 2002); accord Tonapetyan v. 7 Halter, 8 considered by the adjudicator in determining the weight to give a 9 medical opinion include: [l]ength of the treatment relationship and the 10 frequency of examination by the treating physician; and the nature and 11 extent of the treatment relationship between the patient and the 12 treating 13 404.1527(d)(2)(i)-(ii), 416.927(d)(2)(i)-(ii). 14 242 F.3d 1144, physician. 1149 Orn, (9th 495 Cir. F.3d 2001). at The 631-33; factors 20 to C.F.R. be §§ The ALJ provided several legitimate reasons for refusing to give 15 Dr. 16 substantial evidence in the record. The ALJ reviewed and summarized 17 Plaintiff s relevant medical records from July 2008 to February 2010. 18 (AR at 29-30.) After discussing these records in detail, the ALJ noted 19 that Dr. Wong s opinion was entitled to less weight because it covered 20 a period five years before Dr. Wong actually began treating Plaintiff in 21 2007. (AR at 29.) It was reasonable for the ALJ not to give probative 22 weight to Dr. Wong s retrospective opinion, particularly given that the 23 state agency physician and the qualified medical examiner both concluded 24 that Plaintiff could perform a range of light work. (AR at 519, 541, 25 543). See Magallanes v. Bowen, 881 F.2d 747, 754 (9th Cir. 1989) 26 (affirming rejection of treating physician s retrospective opinion where 27 physician had no direct personal knowledge of the claimant s condition 28 until more than two years after alleged onset date of disability and Wong s opinion controlling weight, 5 which were supported by 1 which was contradicted by findings of several doctors who had the 2 opportunity to examine the claimant during the relevant time period). 3 The ALJ also gave less weight to Dr. Wong s opinion because he is 4 a family physician 5 specialist. (AR at 29.) Plaintiff generally received medical treatment 6 for his back impairment from an orthopedic surgeon, Dr. Jacob Tauber, 7 M.D., rather than Dr. Wong, his primary care physician. (AR at 232-34, 8 243-64, 9 Vicodin prescription for back pain, Dr. Wong primarily treated Plaintiff 10 for anxiety, depression and sleep problems, not for a back impairment. 11 (AR at 313, 336, 356-57, 366.) This was a proper basis under the Social 12 Security regulations for giving less weight to Dr. Wong s opinion 13 regarding 14 404.1527(c)(2)(ii) ( For example, if your ophthalmologist notices that 15 you have complained of neck pain during your eye examinations, we will 16 consider his or her opinion with respect to your neck pain, but we will 17 give it less weight than that of another physician who has treated you 18 for the neck pain. ). 366.) and Although Plaintiff s not Dr. an orthopedic Wong back surgeon occasionally impairment. or refilled See 20 other back Plaintiff s C.F.R. § 19 Finally, the ALJ rejected Dr. Wong s opinion because Dr. Wong s own 20 treatment records contradicted his finding of extreme limitations. (AR 21 at 29.) As noted by the ALJ, Dr. Wong s few examinations of Plaintiff s 22 back found no tenderness, a full range of motion and a negative straight 23 leg raise. (AR at 29, 357, 580.) An ALJ may discredit a treating 24 physician s opinion if it is conclusory, brief, and unsupported by the 25 record as a whole or by objective medical findings. Batson v. Comm r, 26 359 F.3d 1190, 1195 (9th Cir. 2004); Tonapetyan, 242 F.3d at 1149. 27 Accordingly, because the ALJ provided legitimate reasons supported 28 by the record for refusing to give Dr. Wong s February 12, 2010 opinion 6 1 controlling weight, Plaintiff is not entitled to relief with respect to 2 this issue. 3 B. The ALJ Properly Evaluated Plaintiff s Subjective Symptom Testimony 4 5 Plaintiff contends that the ALJ erred by failing to provide clear 6 and convincing reasons for discounting his subjective symptom testimony. 7 (Joint Stip. at 12.) To determine whether a claimant s testimony about 8 subjective pain or symptoms is credible, an ALJ must engage in a two- 9 step analysis. Vasquez v. Astrue, 572 F.3d 586, 591 (9th Cir. 2009) 10 (citing Lingenfelter v. Astrue, 504 F.3d 1028, 1035-36 (9th Cir. 2007)). 11 First, the ALJ must determine whether the claimant has presented 12 objective medical evidence of an underlying impairment which could 13 reasonably be expected to produce the alleged pain or other symptoms. 14 Lingenfelter, 504 F.3d at 1036. [O]nce the claimant produces objective 15 medical evidence of an underlying impairment, an adjudicator may not 16 reject a claimant s subjective complaints based solely on a lack of 17 objective medical evidence to fully corroborate the alleged severity of 18 pain. Bunnell v. Sullivan, 947 F.2d 341, 345 (9th Cir. 1991) (en banc). 19 To the extent that an individual s claims of functional limitations and 20 restrictions due to alleged pain is reasonably consistent with the 21 objective 22 claimant s allegations will be credited. SSR 96-7p, 1996 WL 374186 at *2 23 (explaining 20 C.F.R. §§ 404.1529(c)(4), 416.929(c)(4)).1 24 // medical evidence and other evidence in the case, the 25 26 27 28 1 The Secretary issues Social Security Rulings to clarify the Secretary s regulations and policy .... Although SSRs are not published in the federal register and do not have the force of law, [the Ninth Circuit] nevertheless give[s] deference to the Secretary s interpretation of its regulations. Bunnell, 947 F.2d at 346 n.3. 7 1 Unless there is affirmative evidence showing that the claimant is 2 malingering, the ALJ must provide specific, clear and convincing reasons 3 for discrediting a claimant s complaints. Robbins, 466 F.3d at 883. 4 General findings are insufficient; rather, the ALJ must identify what 5 testimony is not credible and what evidence undermines the claimant s 6 complaints. Reddick, 157 F.3d at 722 (quoting Lester v. Chater, 81 F.3d 7 821, 834 (9th Cir. 1996)). The ALJ must consider a claimant s work 8 record, 9 knowledge of claimant s limitations, aggravating factors, observations of medical providers and third parties with functional 10 restrictions 11 claimant s daily activities. Smolen v. Chater, 80 F.3d 1273, 1283-84 & 12 n.8 (9th Cir. 1996). The ALJ may also consider an unexplained failure to 13 seek treatment or follow a prescribed course of treatment and employ 14 other ordinary techniques of credibility evaluation. Id. (citations 15 omitted). caused by symptoms, effects of medication, and the 16 Plaintiff testified at the administrative hearing to the following 17 symptoms and functional limitations: he has back pain almost every day; 18 his medication makes him feel out of it; he loses sensation in his leg 19 from a pinched nerve; he has rejected surgery but has received physical 20 therapy, which provided only temporary relief; he wears a back brace and 21 walks with a cane to help with his back pain; he can sit for about 20 22 minutes to a few hours before having to get up; he can walk for only 100 23 yards at a time; and he must lie down approximately ten times a day for 24 30-40 minutes to control the pain. (AR at 43-51.) 25 The ALJ found that Plaintiff s medical impairments could reasonably 26 be expected to produce the alleged symptoms. (AR at 28.) The ALJ was 27 therefore required to provide specific, clear and convincing reasons for 28 rejecting Plaintiff s subjective allegations of pain and functional 8 1 limitations. The ALJ provided various reasons for discrediting 2 Plaintiff s testimony, each of which is fully supported by the record. 3 First, the ALJ noted that Plaintiff s activities of daily living were at 4 odds with his claims of debilitating pain and serious functional 5 limitations. (AR at 28-29.) For example, the ALJ noted that, despite 6 Plaintiff s testimony that he could not lift more than 10 to 15 pounds, 7 Plaintiff reported to Dr. Wong in June 2008 that he carried around his 8 two small children. See Smolen v. Chater, 80 F.3d 1273, 1284 (9th Cir. 9 1996) (the ALJ may use ordinary techniques of credibility evaluation, 10 such as considering inconsistent statements and whether the claimant has 11 been candid). 12 The ALJ also noted that Plaintiff s other daily activities were 13 also inconsistent with his allegations of severe pain and limitations. 14 Plaintiff helped prepare his children for school, dropped them off and 15 picked them up from school, watched the youngest child alone during the 16 day five days a week, ran errands, did laundry, washed dishes, cleaned, 17 and traveled to Mexico for two months in December 2008. (AR at 28, 139, 18 140, 142, 147, 595.) Although a claimant does not need to be utterly 19 incapacitated in order to be disabled, Vertigan v. Halter, 260 F.3d 20 1044, 1050 (9th Cir. 2001), the ability to perform certain activities of 21 daily life can support a finding that the claimant s reports of his or 22 her impairment are not fully credible. See Bray v. Comm r of Soc. Sec. 23 Admin., 554 F.3d 1219, 1227 (9th Cir. 2009); Curry v. Sullivan, 925 F.2d 24 1127, 1130 (9th Cir. 1990) (finding that the claimant s ability to take 25 care of her personal needs, prepare easy meals, do light housework and 26 shop for some groceries ... may be seen as inconsistent with the 27 presence of a condition which would preclude all work activity ) (citing 28 Fair v. Bower, 885 F.2d 597, 604 (9th Cir. 1989)). The activity that 9 1 Plaintiff reported performing, particularly daily child care for three 2 children, is much more strenuous than that found in Curry. 3 Finally, the ALJ noted that Plaintiff had declined surgery and been 4 recommended psychotropic medication, which undermined his subjective 5 complaints of pain and depression. (AR at 29.) An ALJ may properly rely 6 on unexplained or inadequately explained failure to seek treatment or 7 to 8 Tommasetti v. Astrue, 533 F.3d 1035, 1039 (9th Cir. 2008); Fair, 885 at 9 604 (finding that the claimant s allegations of persistent, severe pain 10 and discomfort were belied by minimal conservative treatment and 11 failure to follow doctor s advice). Here, Plaintiff apparently refused 12 surgery because he was afraid of the possible complications and because 13 Dr. Tauber stated that surgery might not be successful. (AR at 234-35, 14 286.) As Plaintiff notes, this is a legitimate reason for refusing back 15 surgery. See Nichols v. Califano, 556 F.2d 931, 933 (9th Cir. 1977) ( A 16 patient may be acting reasonably in refusing surgery that is painful or 17 dangerous. ). However, the fact that Plaintiff discontinued taking anti- 18 depressant medication after only three weeks when he reported a 70% 19 improvement in his mental symptoms after taking the medication (AR at 20 29, 21 condition and could indicate that his symptoms were not as severe as 22 reported. See id. (noting that a failure to follow a simple and 23 effective medical procedure could undermine a claimant s credibility). 24 It is the responsibility of the ALJ to determine credibility and 25 resolve conflicts or ambiguities in the evidence, Magallanes, 881 F.2d 26 at 750, and a reviewing court may not second-guess the ALJ s credibility 27 determination when it is supported by substantial evidence in the 28 record, as here. See Fair, 885 F.2d at 604. Accordingly, it was follow 336, a course 565), does of treatment demonstrate an 10 in assessing unwillingness credibility. to improve See his 1 reasonable for the ALJ to rely on the reasons stated above in finding 2 that Plaintiff s subjective testimony regarding the severity of his 3 symptoms was not wholly credible. 4 5 6 7 IV. Conclusion For the reasons stated above, the decision of the Social Security Commissioner is AFFIRMED and the action is DISMISSED with prejudice. 8 9 10 DATED: January 2, 2013 11 12 13 ______________________________ Marc L. Goldman United States Magistrate Judge 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 11
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