Trelle v. Commissioner of Social Security, No. 3:2010cv00015 - Document 20 (D. Or. 2011)
Court Description: OPINION and ORDER - For the reasons stated, the Commissioner's decision is AFFIRMED. IT IS SO ORDERED. Dated this 20th day of September, 2011, by U.S. Magistrate Judge John V. Acosta. (peg)
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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF OREGON PORTLAND DIVISION Civ. No. 10-lS-AC JOHN TRELLE, OPINION AND ORDER Plaintiff, v. MICHAEL J. ASTRUE, Commissioner of Social Security, Defendant. ACOSTA, Magistrate Judge: Claimant John Trelle ("Claimant") seeks judicial review of a final decision of the Commissioner of Social Security ("Commissioner") denying his application for Disability Insurance Benefits ("DIB") under Title II of the Social Security Act ("SSA") and for Supplemental Security Income ("SSI") disability benefits under Title XVI of the SSA. See 42 U.S.C. §§ 401-433 and OPINION AND ORDER 1 {KPR} er's decision pursua §§ 1381- 83f (201 0). This court has jurisdi ction to review the Comm ission nt to affirms the decisio n of the 42 U.S.C. § 405(g). Follow ing a careful review of the record, the COUlt ALl Procedural History a disability onset date Claim ant filed for DIB and SSI benefits on August 9, 2005, alleging on. On May 15,20 07, a of Februm y 4, 2004. The claim was denied initially and on reconsiderati issued a decisio n on Octob er hearing was held before an Administrative Law Judge ("ALJ"), who of this decision on Novem ber 26,20 07, finding Claim ant not disabled. Claim ant requested review decision the 23,200 7. The Appeals Council denied this request, makin g the ALJ' s Comm ission er's court on January 6, 2010. final decision. Claim ant filed for review of the final decisio n in this Factual Background On March 9,2004 , after Claim ant sustained an injury at work, Dr. Gmy Hansen, M.D. ("Dr. of his veltebrae, the disc Hanse n") diagnosed Claim ant with nerve root compression in one on May 18, 2004, Claim ant designated LS-S! . (Tr. 175.) Approximately two month s later, underw ent surgeJY to remove the disc that was causing the compression . (Tr. 178.) The surgery was was successful and Claim ant perfor med by Dr. Jeffrey A. Louie ("Dr. Louie"). The procedure was discharged the following reported, post-operation, that he no longer had leg pain. Id. Claim ant discharging nurse concluded day, at which time he reported a pain level of three out of ten, and the 9.) that he could perfOlID activities of daily living withou t assistance. (Tr.20 Anderson"). (Tr. On Novem ber 4, 2004, Claim ant saw Dr. K. Clair Anderson, M.D. ("Dr. y, 224.) Claim ant repOlted significantly decreased leg pain since the surger but that contin ued back .) Claim ant stated that lifting, and buttoc k pain prevented him from returning to work. (Tr.22 4-225 OPINI ON AND ORDE R 2 {KPR} bending, and reaching triggered his back pain and that he could lift nothing heavier than a gallon of milk. (Tr. 225.) He also reported that he had a feeling of numbness in his feet. (Tr. 224.) Dr. Anderson concluded that Claimant could not return to his previous position as a Certified Nursing Assistant ("CNA"), and could not perform outside of the "light to light-medium physical demand range." (Tr.227.) Dr. Anderson stated, in conclusion: Absent any fiuiher treatment, in my opinion, the patient is medically stationary. The patient has marked limitation of motion and marked hamstring tightness. An aggressive exercise program, such as a work hardening program, could significantly improve the patient's flexibility and, in all likelihood, give him better control of his pain. Id The same day Susan Bottomley ("Bottomley"), an occupational therapist, performed a "Work Capacity Evaluation" and concluded that Claimant was capable of light to light-medium work and had potential to improve fiuther. (Tr. 230.) Although he could not currently perform the duties of a CNA, Bottomley felt that Claimant may be able to do so in the future. On January 3, 2005, Dr. Louie agreed with previous determinations that Claimant could not return to his work as a CNA, but "recommend[ed] vocational retraining perhaps as a lab tech." (Tr. 247.) The following month, Claimant was examined by Dr. Mark D. Peterson ("Dr. Peterson") at his request, and that of his insurance company. (Tr. 238.) Dr. Peterson recommended that Claimant get a post-operative MRI to determine ifthere were additional lesions on the lumbar spine. If the MRI revealed that there were not, it was Dr. Peterson's opinion that Claimant "[was] probably medically stationary and should undergo a Physical Capacities Evaluation for claim closure and be returned to work under the recommended activity levels." (Tr. 238A.) He also recommended "ongoing therapeutic exercises." Id. On March 28, 2005, Dr. Louie saw Claimant to review his condition for "significant changes." (Tr. 246.) He observed that Claimant's leg pain was resolved OPINION AND ORDER 3 {KPR} by surgely, but that he still had back pain. Dr. Louie noted that Claimant was "no[t] interested in a fusion" at the time. Id. On November 1, 2005, Claimant saw Dr. Mark Greenberg, M.D. ("Dr. Greenberg") about his back pain and underwent an MRI. Dr. Greenberg read the MRI which revealed "[n]o reherniation or nerve root compression[,]" and recommended diagnostic injections. (Tr. 350.) On November 21, 2005, Dr. Maty Ann Westfall, M.D. ("Dr. Westfall"), evaluated Claimant's RFC. Dr. Westfall found that Claimant could lift fifty pounds occasionally and twenty-five pounds frequently; Claimant could both stand/walk and sit for six hours total out of an eight hour work day; Claimant was not limited in his ability to push and pull; and Claimant had no postural, manipulative, visual, communicative, or environmental limitations. (Tr. 387-391.) Dr. Westfall concluded that, with respect to Claimant's back pain, the disc herniation had not recurred since his surgery. She wrote that Claimant had previously been known to exaggerate his symptoms and refuse alcohol treatment. (Tr. 392.) Dr. Westfall noted that Claimant's reports as to his activities of daily living were inconsistent and not credible. (Tr. 392.) She cited Dr. Greenberg's conclusions and concurred, stating that Claimant "ha[d] begun self-limiting himself to the point of deconditioning." (Tr. 393.) On November 23, 2005, Claimant's psychiatric health was again reviewed by Dr. Anderson who concluded that Claimant's anxiety, depression, and substance abuse disorders were non-severe and that Claimant was not functionally limited by these conditions. (Tr. 372-385. Beginning in 2002, Claimant began to experience difficulty with his memory, blacking out, and shaking. (Tr. 280, 286.) Claimant was diagnosed with cavernoma, or "cavernous malformation[']"which is "an abnormal cluster of capillaries and venules that periodically bleed and give rise to a . . . lesion in the brain or spinal cord." OPINION AND ORDER 4 Johns Hopkins Medicine, {KPR} http ://w ww ,hop kin sme dici ne,o rg/n cur surgely/conditions_mainloldlcavel1l0us_malformation.html, last visited o\o gy neu ro- May 17,2011. Cavel1l0mas bleed." fd. On May 15, typically manifest themselves with "seizures, headaches or with a large ing his cavel1l0ma, and 2005, Claimant was seen by Dr. Jonathan Carlson ("Dr. Carlson") regard reported no change in his underwent an MRI that confirmed the diagnosis. (Tr. 241.) Claimant tomatic." fd Claimant was symptoms and Dr. Carlson wrote that he was "for the most part asymp vely scheduled for one to not interested in having surgelY and a follow-up appointment was tentati two years in the future. Registered Nurse On an "Impairment Questionnaire" regarding his seizures, Advanced Practitioner Jonathan Wolman ("Nurse Wolman") wrote that Claimant was not having seizures, but "possibly/probably causing that his prognosis was nonetheless "[p]oor[,]" as his cavel1l0ma was (Tr. 341.) In conclusion, multiple neurological deficits along with alcohol use and depression." this patient's language, Nurse Wolman wrote, "Malformation in the brain will continue to affect disabled. Alcohol use and visual, memory and possibly motor activities. He is permanently depression may also be contributing to this." (Tr. 346.) 2005, at which time Dr. Jon Elmsh ar ("Dr. Ermshar") examined Claimant on August 24, and that if he spent twenty Claimant repOlied that he could not stand for more than five minutes, 335.) Dr. Ermshar referred minutes shopping, he would need to lie down for an hour to recover. (Tr. him to Dr. Greenberg for a pain evaluation and recommended that Claim ant walk daily and engage in weight lifting. (Tr. 336.) Questionnaire," In November 2005, Dr. Ennsh ar filled out a "Multiple Impairments sis offair or stable with a diagnosing Claimant with degenerative disc disease and giving a progno OPINION AND ORDER 5 {KPR} ant's lab repOlts and observed likely need for ongoin g care 01' surgery. Dr. Ermsh ar reviewed Claim was constant and limited him disc protrusion. (Tr. 355.) Dr. Ermsh ar stated that Claim ant's pain move around every twenty to daily such that he could not sit 01' stand all day, but had get up and Claim ant's pain level was thirty minutes for five minute s at a time. (Tr. 356.) He estimated that three 01' ant could sit for four four out of ten; his fatigue level was seven out of ten; and that Claim He noted that Claim ant was to five hours and stand for two hours in an eight hour day. (Tr. 357.) moderately limited with respect to carrying only ten to twenty pounds and reaching up with his arms. that he could handle (Tr. 358.) Dr. Ermsh ar stated that Claim ant was not malingering and full-time increase in a competitive work and tolerate a high degree of stress, but that his sympt oms would breaks daily and would be work enviro nment such that he would need unscheduled thirty-minute absent at least three days a month. Id. (Tr. 100.) He stated Claim ant filled out a "Disab ility RepOlt Adult" on Augus t 16, 2005. in question, and that pain he had worke d in the past, but not since he sustained the back injury 101.) preven ted him from returning to work, as did his doctor 's orders. (Tr. ed that he was not on On an Septem ber 29, 2005, "Seizure Questionnaire," Claim ant repOlt medic ation for seizures; did not remem ber his last seizure; and had not had a seizure in the last three in three years. (Tr. 131.) months. Claim ant's wife reported that Claimant had only one seizure constant, aching pain in his Claim ant also filled out a "Pain Questionnaire" where in he repOlted stated that he took ibupro fen lower back that becam e worse with movement. (Tr. 126.) Claim ant three or four times a week; needed to rest every three hours; could walk 200 yards at a time; and was able to perform personal grooming tasks, though he generally could not perfor m household chores. (Tr. 127-128.) OPINION AND ORDE R 6 {KPR} s: he bathed and Claimant reported that he could engage in activities of daily living as follow took short walks for five performed other personal care sitting down; did dishes sitting in a chair; to ten minutes two times a day; exercised in a pool for forty-five minute s, two or three times a week; cats, dusted, and watered performed basic food preparation and ran an occasional errand; fed the yards; no longer painted plants; could not lift more than a gallon of milk or walk fmthe r than 150 and had difficulty sleeping. or gardened; occasionally used a cane and an electrotherapy machine; engage in a numbe (Tr. 133-140.) Claimant's wife reported that Claimant could no longer activities including, dancing, doing household chores, walking around, r of basic major shopping, yard work, could walk for only twenty exercise, or painting. She also noted that he had difficulty sleeping, (Tr. 141-148.) minutes at a time, and used a cane when his back was particularly bad. Legal Standard legal standard This comt must affirm the Commissioner's decision if it is based on proper whole. 42 U.S.C. § 405(g); and the findings are suppOlted by substantial evidence in the record as a antial evidence is such see also Andrews v. Shalala, 53 F.3d 1035, 1039 (9th Cir. 1995). "Subst relevant evidence as a reasonable mind might accept as adequate to suppo rt a conclusion." Tylitzki "both the evidence that v. Shalala, 999 F.2d 1411, 1413 (9th Cir. 1993). The court must weigh ez v. Heckler, 807 F .2d 771, supports and detracts from the [Commissioner's1conclusion." Martin it is a rational interpretation 772 (9th Cir. 1986). The Commissioner's decision must be upheld if of the evidence, even ifthere are other possible rational interpretations. Magallanes v. Bowen, 881 ing comt may not substitute F.2d 747, 750 (9th Cir. 1989);Andrews, 53 F.3d at 1039-40. The review ., 466 F.3d 880, 882 (9th its judgm ent for that of the Commissioner. Robbins v. Social Sec. Admin Cir.20 06). OPINION AND ORDE R 7 {KPR} The ALJ is responsible for determinin g credibility, resolving conflicts in me dical testimony, nt's residual d at 1039. In determining a cla ima lving ambiguities. Andrews, 53 FJ and reso ord, including, sider all relevant evidence in the rec capacity ("RFC"), an ALJ must con functional pain, that are "the effects of symptoms, including medical records, lay evidence, and inter alia, 883, citing impairment." Robbins, 466 F.3d at ibuted to a medically determinable reasonably attr v. Chatel', .1545(a)(3), 416.945(a)(3); Smolen 6 WL 374184, at *5; 20 C.F.R. §§ 404 SSR 96-8p, 199 80 FJ d 1273, 1281 (9th Cir. 1996). Summary a/th e AL J's Findings luated evaluation" process when she eva aged in the five-step "sequential The ALJ eng . see also Bowen v. Yuckert, 482 U.S required. See 20 C.F.R. § 416.920; Claimant's disability, as 137 ,14 0 (1987). 1 Steps One and Two substantial gainful t Claimant had not engaged in any At Step One, the ALJ concluded tha J determined that ty. (Tr .39 .) At Step Two, the AL since the onset of his alleged disabili activity my and mil d low back pain status post laminecto the following severe impairments: Claimant had that Claimant (Tr .39 .) The ALJ also determined disc disease of the cervical spine. degenerative anxiety. ck outs, cavernoma, depression, and non-severe impairments: seizures, bla had the following d below. ings as to each impairment are detaile (Tr. 39-41.) The AL J's specific find A. Back Pain Degenerative Disc Disease and Low ially February 2004. (Tr. 42.) He init tained an on-the-job back injUly in Claimant sus I relieved by physical therapy. An MR n in his right leg and this pain was not complained of nerve pai ent spinal surgery, a root compression. Claimant undelw ealed a protruding disc and nerve rev OPINION AND ORDER 8 {KPR} (Tr. 42.) As a result of the laminectomy, in May 2004. The surgelY was performed by Dr. Louie. injury, Claimant was unable to return to his job as a CNA, but was lookin g for less demanding work in the same field. (Tr. 42.) In September 2004, Dr. Louie reported that Claimant suffered from lower back pain, but that still could not lift more than he enjoyed full motor strength in all extremities. However, Claimant fifteen pounds and could not return to his CNA position. When Claimant was (Tr. 42.) independently evaluated in conjunction with his workers' compensatio n claim, in November 2004, ise resolved. He also he reported intermittent nelve pain in his leg, but that the pain had otherw d that Claimant could reported improvement with physical therapy. (Tr. 42.) Dr. Anderson reporte that he otherwise had "full not return to work as a CNA due to temporary lifting restrictions, but motor strength" and his pain was managed with 400 to 600 milligrams of ibuprofen. (Tr. 42.) Also in November 2004, Claimant was evaluated by Bottomley, an occupational therapist, who prescribed s. (Tr.43 .) She noted that light or medium work with "micro breaks" evelY thirty to sixty minute Claimant could not perform work as a CNA without modifications. ant was medically In Janu81Y 2005, Claimant again saw Dr. Louie who reported that Claim any remaining pain was station81Y, that Claimant's surgely-related symptoms had resolved, and Dr. Peterson that the back unrelated to the surgery. (Tr. 43.) In Feb1U81y 2005, Claimant told surgelY had resolved his nerve pain, but that he continued to suffer from lower back pain. Claimant that Claimant did not suffer also reported that his left leg gave out at times. Dr. Peterson reported "moto r deficits in any of his extremities" and that his symptoms were manag ed with over-the-counter new or recurring hernia medications. (Tr.43 .) An MRI taken the following month revealed no tion in Claimant's spine. (Tr. 43.) OPINION AND ORDER 9 {KPR} He filled out two eatedly beginning in April 2004. Dr. Ermshar evaluated Cla ima nt rep worksheets contain ber 2005 and September 2006. The Impairments Worksheets in No vem Multiple occasionally and ten Claimant could lift twenty pounds information. They bot h state that similar s three or more l impairments would cause him to mis uently, and tha t Cla ima nt's physica pounds freq s of time, lity to sit or stand for extended period month. With regard to Cla ima nt's abi wo rk days per ht hour hours and walk for two hours in an eig t stated tha t he could sit four to five the 2005 workshee [eight] , stand, or wal k [for two1hours in an rksheet said that Claimant could "sit day. The 2006 wo hour workday." (Tr. 44.) 5. by Dr. Greenberg in November 200 r's request, Claimant was evaluated At Dr. Erm sha a on his left side, but that it was only experienced occasional nerve pai n Claimant reported that he d the degree of pai n as l ache in his lower back, and rate or problem; he also reported a dul min that Claimant had a (Tr. 43.) Dr. Greenberg observed ween three and six on a scale of ten. bet right side bend. He ngth, except for minor pain wit h a l range of motion, flexion, and stre norma dural shots to ima nt's bac k and recommended epi evidence of additional injury to Cla not ed no July 2006, follow up with Dr. Greenberg. By lower bac k pain. Claimant did not address his Claimant was still not on prescriptio n medication for his pain. "m ild the ALJ noted that Claimant had ard to Cla ima nt's cervical spine, With reg mal. (Tr. overall cervical alig nm ent was nor disease at C5-6 and C6-7" but that degenerative disc al spine, some pain associated wit h his cervic imant had previously complained of 45.) Although Cla ed e and full range of motion was not ptomatology with his cervical spin he "re por ted no sym therein[,]" during his evaluation by OPINION AND OR DE R Dr. Greenberg. (Tr. 45.) 10 {KPR} B. Seizures/Black Ouls -like activity in According to his wife's testimony, Claimant "had experienced one seizure the prior tlll'ee years[,]" which is priOlo to the claimed disability onset date. filled out a "Seizures Impairment Questionnaire" which stated that he (Tr. 39.) Nurse Wolman had seen Claimant annually ) since 2002 and that "no specific seizures had been diagnosed." (Tr. 39-40. Claimant has also reported experiencing "black outs" and "loss of time" in several instances, In the course of one such all of which occurred prior to Claim ant's alleged disability onset date. charged episode, Claimant reported that "the police showed up at his home and him with [driving "), a state agency, "found under the influence.]" (Tr.40 .) Disability Determination Services ("DDS insight that preven that [Claimant] had a long history of alcohol dependence with restricted ted him uence of his addiction." from recognizing the reported black outs and memOlY problems as a conseq for depression or alcohol (Tr. 40.) Nurse Wolman noted that Claimant did not wish to be treated dependence, and Claimant "reported that he continued to drink despite" medical advice. (Tr. 40-41.) occulTing subseq Furthennore, Claimant has not reported seizure or black-out episodes uent to the alleged disability onset date. ime seizure-like The AU wrote that, in light of the record as a whole, Claimant's "one-t ive alcohol abuse, which activity and difficulties with memOlY 01' black outs were induced by extens stopped once his intake of alcohol was reduced." (Tr. 40.) C. Cavernoma ing vision loss Claimant was diagnosed with a cavernoma in 2003, after an episode involv resolved quickly and the and weakness on the left side. (Tr. 40.) At the time, the condition to [Claimant's] functional cavernoma was diagnosed as benign, "with no direct limitations OPINION AND ORDER 11 {KPR} n, a neurologist, to follow capacities." (Tr.40 .) In March 2005, Claimant was seen by Dr. Carlso Claimant had experienced up on his cavernoma diagnosis. (Tr. 40.) Since the prior appointment, disruptions in his visual field and had changed his prescription for his glasse s at least three times in c and an MRI revealed no the intervening period. (Tr. 40.) Claimant was otherwise asymptomati change to the cavernoma and tha~ no surgical intervention was called for. (Tr.40 .) Nurse Wolman opined that Claimant's cavernoma coupled with his alcohol abuse and depres sion led to his reported Claimant's cavernoma was neurological problems. (Tr. 40.) The ALJ concluded that, overall, sis. (Tr. 41.) benign, asymptomatic, and essentially unchanged since its initial diagno D. Depression and Anxiety Claimant reported to DDS that he experienced depressiortand anxiety but did not suffer from Veterans Administration functional limitations as a result. (Tr. 41.) His medical records from the has been controlled by ("V A") indicate a long histOlY of depression and anxiety, but one that medication. ment of (Tr. 41.) In 2002, the VA records show that Claimant Global Assess omatology. (Tr.41 .) The Functioning score was assessed at 85, which suggests little to no sympt past. Id. records indicate that Claimant has refused mental health treatment in the II. Sten Three At Step Three, the ALJ determined that Claimant's impairments did not meet or medically ers equal a listing as set fOlih in the regulations, specifically Listing 1.04, Disord of the Spine. (Tr. ere, singularly and in 41.) The ALJ wrote: "the claimant's impairments, severe and nonsev combination, are not accompanied by the findings specified for any impair ment or combination of ning physician mentioned impairments included in any section of the Listings. No treating or exami (Tr. 41.) The ALJ findings equivalent in severity to the criteria of any listed impairment." OPINION AND ORDER 12 {KPR} al intervention had been elaborated on this findin g later in the decision, stating both that surgic the listing. successful and that the impairment was too sholi-lived to qualify for III. Claim ant's RFC The AU concluded that Claim ant "has the RFC to lift 20 pounds occasi onally and 10 pound s s. The claima nt needs a . frequently. The claimant needs a minor break after sitting 30 to 60 minute onal bendin g and twistin g." minor break after standing 30 minutes. The claima nt is limited to occasi imately one minute with the (Tr. 42.) The ALJ defined a "mino r break" as one lasting approx purpose of stretching and breaking up the "static postur es" of standing and sitting for longer period s of time. (Tr. 41-42 n.1.) IV. Step Four relevant work. (Tr. At Step Four, the AU concluded that Claim ant could not perfor m past 46.) V. Step Five ming other work that At Step Five, the ALJ concluded that Claim ant was capable of perfor testified, in response to the exists in substantial numbe rs in the national economy. (Tr. 47.) The VE ALl's hypothetical, that Claimant was capable of acting as a mail clerk, an outside deliverer, and an ally. office helper. Each of these jobs are available both regionally and nation Discussion be reversed: (1) the Claim ant asserts five grounds upon which the ALl's decision should arded the testimony of Dr. AU's credibility determination was flawed; (2) the AU improperly disreg ant's mental impair ments Ermsh ar and Nurse Wolman; (3) Claimant meets Listing 1.04; (4) Claim are severe; and (5) the Vocational Exper t's testimony was not based on OPINION AND ORDE R 13 all of Claim ant's limitations. {KPR} rt affirms the AL l's decision. For the reasons that follow, the cou 1 Claimant Credibility tha t may there is an underlying impairment cui t precedent holds that, where Nin th Cir ptoms: reasonably produce the alleged sym ering, the win g tha t the claimant is maling [wJithout affiImative evidence sho r and cla ima nt's testimony mu st be clea mis sio ner 's reasons for rejecting the Com intensity of cla ima nt's testimony relating to the convincing. If an ALJ finds that a ility ble, the AL J must make a credib pain and other limitations is unrelia [her] the testimony is unpersuasive. determination citing the reasons why 595 ,59 9 (9th Morgan v. Commissioner, 169 F.3 d d). Cir. 1999) (internal citations omitte Cla ima nt exi sted that wo uld whether underlying impairments that the ALJ failed to determine argues cting Cla ima nt's and that the AL I's reasons for reje y pro duc e the claimed symptoms reasonabl onds tha t the convincing. The Commissioner resp as not credible were neither clear nor testimony t the AL J's t in the credibility analysis and tha an underlying impairment is implici existence of reasons were clear and convincing. did not g Cla ima nt's credibility: Claimant gave several reasons for questionin The AL J Cla ima nt ms of disabling pain; wh en he did, me dic atio n regime, despite his clai pursue a consistent nt failed to follow through on the treatme e-counter pai n medication; Claimant primarily use d over-th to Dr. Enn sha r that Dr. Louie told him dical professionals; Claimant told recommendations of me Cla ima nt's reports as to mended retraining, not retirement; re, though Dr. Louie actually recom reti ima nt's reports to Dr. h the objective medical evidence; Cla cervical spine were inconsistent wit his matology wit h his orts in tha t he "reported no sympto erg were inconsistent wit h other rep Greenb d activities of daily noted therein[J"; Cla ima nt's reporte spine and full range of motion was cervical imant used ce and wit h one another; and Cla e inconsistent wit h medical eviden living wer OPINION AN D OR DE R 14 {KPR} "embellished language" to describe his condition in starker terms that were warranted. (Tr.45 -46.) the court will not The ALJ has thus given sufficient support for his credibility finding and disturb it. II. Medical Opinions those from treating "There are three types of medical opinions in social security cases: Valentine v. Commissioner physicians, examining physicians, and non-examining physicians." Lester v. Chatel', 81 F.3d Social Security Administration, 574 F.3d 685,6 92 (9th Cir. 2009) (citing is entitled to controlling 821, 830 (9th Cir. 1995» . In general, the opinion of a treating physician ALJ may not reject treating weight if well-supported and consistent with underlying evidence: "[A]n ate reasons for doing physicians' opinions unless he 'make s findings setting f01ih specific, legitim ', 80 F.3d 1273, 1285 so that are based on substantial evidence in the record.'" Smolen v. Chatel . Where the opinion is (1996) (quoting Magallanes v. Bowen, 881 F.2d 747, 751 (9th Cit'. 1989» uncontroverted, the ALJ must give clear and convincing reasons to reject the opinion of the treating physician. Id than those of nonThe conclusions of examining physicians are given greater weight Cit'. 1990). Where the examining physicians. Pitzer v. Sullivan, 908 F .2d 502, 506 n.4 (9th r must provide 'clear and examining physician's opinion is not contradicted, "the Commissione ning physician." Lester, convincing' reasons for rejecting the uncontradicted opinion of an exami contradicted, it may only be 81 F.3d at 830 (quoting Pitzer, 908 F.2d at 506). Where the opinion is rejected for specific and legitimate reasons. Id, at 830-831. A. Dr. El'lI1shar 's Findings Claimant argues that the ALJ improperly discounted the testimony of Dr. OPINION AND ORDE R 15 Ermshar, a treating {KPR} physician. Claimant's Self-Reports 1., r improperly relied First, the ALJ found that Dr. Enn sha was not wholly credible. were problematic because Claimant on Claimant's self-reports, which According to the AU , Dr. Enn sha r by fiftylson that his bac k pain had reduced back Claimant's ow n report to Dr. Car merely pa\l'Oted ance are important diagnostic tools and reli ery. Claimant argues that self-reports percent since surg on such reports is not error. e evidentiary val The court agrees that self-repOlts hav ly the extent that the claimant is proper ue and may be relied upon, except to i v. Astrue, 533 F.3d deemed not credible. See Tommasett n if it is bas ed 'to a reject a treating physician's opinio 5, 1041 (9th Cir. 2008) ("A n AU may 103 redible." (quoting t have been properly discounted as inc extent' ona claimant's self-reports tha large al citation omitted)). F.3d 595, 602 (9th Cir. 1999) (intern n v. CO/llm 'I' Soc. Sec. Admin., 169 Morga Dr. Erm sha r's , as such, was justified in discounting AU found Claimant not credible and Here, the its. findings that relied upon these repO 2. Failure to seek treatment ure to see The AU may also conclude that fail k treatment commensurate with the stated level , 604 ity. See Fail' v. Bowen, 885 F.2d 597 pain undermines a claimant's credibil of impairment or ility tment may inform an AU 's credib ncluding that a failure to seek trea (9th Cir. 1989) (co el of treatment sought is not always gh, as Claimant points out, the lev determination). Althou erity of the claimant's nent, it may "ca st doubt on the sinc lUnensurate with the degree of impain cOl on Dr. Greenberg's noted Claimant's failure to follow up testimony." fd. at 603. Here, the AU pai n ilitating pain. To scription medication for allegedly deb lendation and that he was not on pre reconm OPINION AND OR DE R 16 {KPR} AL l's credibility determ the extent these factors informed the ination, it was not error. Conflict wit h Dr. Louie 1, t Claimant The ALJ makes mu ch oft he fact tha in Dr. Erm sha r's he retire. He relies on a statement told Dr. Erm sha rtha t Dr. Louie recom mended Loui[eJ has report from August 24, 2005: "Dr. ie's that this wa s in conflict wit h Dr. Lou re." (Tr. 440.) The ALJ concluded advised him to reti he return to wo rk as a CNA. He thinks wh ich reads: "A t this time he cannot actual treatment note ine nt physical capacities exa m to determ , I therefore rec om me nd independe can only lift 15 pounds attempt to get vocational J further reasoned that Cla ima nt's wo rk capacity." (Tr .24 8.) The AL his misrepresented it to Dr. Dr. Lou ie's conclusion and actively ning is evidence tha t he understood trai a que stio n for this interpretation of this evidence is not l'. Whether this is the only or best Ennsha committed to the on substantial evidence and, thus, was a reasonable conclusion based court. It jud gm ent of the ALJ. wh Claimant also argues that Dr. Louie, o concluded that Claimant could not ima nt's general work, was not asked to evaluate Cla perform his pas t wo rk capacity and that Cla ima nt's des him in his disabili for other wo rk sho uld not prejudice ire to trai n k. The ty claim if he is indeed unable to wor rather not wit h Dr. Lou ie's conclusion but r tha t the AL J's concern, here, was com t notes how eve was not Dr. Ennshal'. Thi s interpretation resentation of that conclusion to wit h Cla ima nt's rep t rd. The ALJ did not suggest tha y to substantial evidence in the reco unreasonable or contrar Cla ima nt's argument istent wit h his claimed disability, and ima nt's desire to retrain was incons Cla on this point is misplaced. 4. Conflict wit h Dr. Greenberg Dr. Greenberg, a r's findings conflicted wit h those of The AL J also found tha t Dr. Erm sha OPINION AND OR DE R 17 {KP R} specialist to whom Dr. Ermshar referred Claimant. Dr. Greenberg's report revealed that Claimant had a full range of motion, experienced only minor pain upon "sidebending," and relied exclusively on non-prescription medication for pain relief. The record further reveals that Claimant failed to follow through with Dr. Greenberg's recommended epidural injections. The AU concluded that this repmi conflicted with Dr. Ermshar's assessment and gave greater weight to Dr. Greenberg as he is both a specialist and performed a more comprehensive evaluation to arrive at his conclusions. In particular, Dr. Greenberg's opinion undermined Dr. Erl11shar's opinion that Claimant would miss three or more days of work per month as a result of his limitations. Claimant contends that this was error. The Commissioner countered that Dr. Greenberg is a specialist in the subject area and Dr. Greenberg's objective medical findings were in conflict with Dr. Erl11shar's conclusory findings and, thus, the AU reasonably elevated Dr. Greenberg's conclusions above those of Dr. Ermshar. Claimant argues further that Dr. Greenberg did not give an opinion on his work capacity and that the AU should not have inferred anything about Claimant's capacity from Dr. Greenberg's omission and, in doing so, improperly substituted lay opinion for that of an expert. Because Dr. Ermshar's findings were in dispute, the AU needed only give specific and legitimate reasons to reject Dr. Erl11shar's findings in favor of Dr. Greenberg'S findings. The AU considered Dr. Greenberg'S report more reliable based on Dr. Greenberg'S expeliise and the manner in which he reached his conclusions. In addition, Dr. Erl11shar's findings were already otherwise undermined by his reliance on Claimant's self reports, which reports the AU deemed not fully credible. Thus, the AU gave specific and legitimate reasons for assigning greater weight to Dr. Greenberg'S findings. Furthermore, there is no indication that the AU inferred anything from Dr. OPINION AND ORDER 18 {KPR} Greenberg's lack of findings regarding Claimant's vocational capabilities and Claimant provides no specific instances of such an inference. Accordingly, the court will not disturb the ALJ's conclusions with respect to the relative weight of Dr. Ennshar and Dr. Greenberg's opinions. 5. Conflict with Treatment Notes The ALJ gave Dr. Ermshar's questiOimaires less weight because they conflicted with his own treatment notes wherein he recommended that Claimant walk and lift weights daily, but later opined that he would miss three days of work per month. Claimant argues that these findings are not inconsistent and that limited exercise may be consistent with the existence of a disability. Although the ability to engage in limited exercise does not necessarily undermine an otherwise valid disability claim, it may weigh against just such a finding. Here, the ALJ determined that the exercise Dr. Ermshar recommended was at odds with his ultimate conclusions as to the degree of Claimant's impairment. The ALJ was permitted to reach this conclusion and, in light of numerous additional reasons given by the ALJ with respect to Dr. Ermshar, the conclusion does not constitute en·or. The ALJ's determination as to Dr. Ermshar's consistency and the weight to be given his ultimate conclusions was suppOlied by substantial record evidence and will not be disturbed by the couti. B. Nurse Wolman's Findings The ALJ gave no weight to Nurse Wolman's statement regarding Claimant's permanent disability "because the overall record fails to corroborate his conclusory statement." (Tr. 40.) The ALJ explained that "[t]he specialists that evaluated the claimant's cavernoma reported it was benign with no direct limitations to his functional capacities[,]" and that, according to the record, Claimant OPINION AND ORDER 19 {KPR} has suffered only one seizure and that the other such occurrences, i.e., the blackouts and memory problems, were exacerbated by alcohol abuse. Id. The ALJ also noted that Nurse Wolman's conclusion as to Claimant's disability is "an opinion on an issue reserved to the Commissioner under Social Security Ruling 96-5p, and requires vocational expertise outside the purview ofthe claimant's nurse practitioner." Id. Claimant argues that the ALJ e11'ed in giving no weight to the findings of Nurse Wolman. According to Claimant, Nurse Wolman is an acceptable medical source who made findings about Claimant's work limitations based on Claimant's treatment records from the VA; these findings were based on objective evidence and were not contradicted. Claimant further argues Dr. Carlson's contradictory findings should not receive deference because they were based on a single examination and, further, it is not clear from the record if Dr. Carlson reviewed Claimant's other records prior to forming his own conclusion. Finally, Claimant argues that Nurse Wolman's conclusions should be given greater weight because he was part of a "treatment team" that included medical professionals. The Commissioner responds that the ALJ did not err in giving little to no weight to Nurse Wolman's conclusions because they were not corroborated by the record as a whole and were specifically contradicted by Dr. Carlson, a neurologist; as an "other source" Nurse Wolman is entitled to the same treatment as a lay witness; and Claimant's "treatment team" argument does not stand up to scrutiny. The ALJ did not give weight to Nurse Wolman's ultimate conclusion that Claimant was permanently disabled by his neurological condition, possibly in conjunction with his alcohol use and depression. It is well established that, "[iJf the ALJ wishes to discount the testimony of the lay witnesses, he must give reasons that are germane to each witness." Dodrill]'. Shalala, 12 F.3d 915, OPINION AND ORDER 20 {KPR} 919 (9th Cir. 1993). It is appropriate to rejectthe testimony of a lay witness where it is inconsistent with medical evidence. Bayliss v. Barnhart, 427 F.3d 1211, 1218 (9th Cir. 2005). The court agrees that the record amply supports the AU's finding that Claimant was not disabled by his neurological condition and, thus, it was not error to disregard Nurse Wolman's conclusions to the contraty. As to whether Nurse Wolman should have been given the weight of a lay witness or a treating source, the distinction is immaterial in this case. Even if Nurse Wolman's conclusions were given the weight of those of a treating physician, the AU rejected those conclusions for clear and convincing reasons, the standard for rejecting such findings. The couti will not disrupt this determination by the AU. Ill. Listing 1.04 Claimant argues that he meets the definition of Listing 1.04 and that the AU erred in his conclusory finding that Claimant did not meet the listing. The Commissioner argues that Claimant, having the burden to prove disability, has not met that burden with respect to Listing 1.04. Furthermore, the Commissioner contends, Claimant has ignored the AU's detailed treatment of this listing in the administrative ruling. The AU first referenced Listing 1.04 in performing the five-step process and stated: "No treating or examining physician mentioned findings equivalent in severity to the criteria of any listed impairment. Particular consideration is given to Listing 1.04 (disorders of the spine) in Appendix 1, Subpati P, Regulations Number 4." (Tr. 41.) The AU later explained his reasoning with respect to Listing 1.04. He wrote: "There is no evidence of record that indicates that the claimant had nerve root compression that was not resolved with the laminectomy completed in May 2004; there is no indication that it lasted the 12 months required under the Social Security Regulations." (Tr. 46.) In OPINION AND ORDER 21 {KPR} other words, the surgical intervention was successful and the impairment was too shott-lived to qualifY for benefits under the law. The COutt agrees that the ALJ gave sufficient analysis as to why the listing was not met. Futther, the court agrees that the finding was consistent with substantial evidence in the record. The record reveals the following: Claimant underwent spinal surgery which resolved his leg pain, though he continued to suffer buttock and back pain; Dr. Anderson found Claimant to be medically stationary; Bottomley, an occupational therapist, concluded that Claimant could perform light to medium work; Dr. Greenberg performed a post-operative MRI which showed no reherniation or nerve compression; and Dr. Westfall agreed that reherniation had not occurred. Based on the record as a whole and the ALJ's legitimate credibility determinations, the ALl's finding regarding Listing 1.04 was not in error. IV. Mental Impairments As outlined above, the ALJ found that despite a long histoty of anxiety and depression, Claimant had successfully controlled his mental impairments with medication and had been assigned a GAF score indicating a high-degree of functionality. Claimant argues that his mental impairments were in fact severe and that, in conjunction with Claimant's other impairments, they caused him to be disabled under the law. Claimant cites evidence that he sought treatment for depression and was treated for it; that Nurse Wolman characterized it as a complicating factor in Claimant's impairment profile; and his own testimony that depression presented more than a de minimis limitation. The Commissioner responds that Claimant failed to establish that the impairment was severe from an evidentiary perspective and that the ALJ reasonably interpreted the evidence to find Claimant's mental impairments non-severe. OPINION AND ORDER 22 {KPR} A severe impairment, for purposes of the disability determination, is an "impairment or combination of impairments which significantly limits [the claimant's] physical or mental ability to do basic work activities[.]" 20 C.F.R. § 416.920(c) (2011). The court agrees that based on the record evidence the ALJ did not err in concluding that Claimant's mental impairments were nonsevere. The record evidence shows that, although Claimant has a history of depression and anxiety, his conditions have been adequately managed through medication and do not present a significant limitation of his ability to work. V. Vocational Expert Testimony Claimant argues that the ALI's hypothetical as presented to the VE was incomplete as it did not include all of Claimant's limitations, namely that Claimant will miss tln·ee or more days of work per month. The Commissioner responds that the hypothetical was proper because it included all of the limitations that the ALJ found credible and supported by the evidentimy record, noting that the ALJ appropriately rejected the testimony of Dr. Ermshar and Nurse Wolman and, as such, the conclusion that Claimant would miss three or more days of work per month. The couti agrees that, based on the ALJ' s legitimate decision not to credit that finding, it was not enor for the ALJ to omit it from the hypothetical. Conclusion For the reasons above stated, the Commissioner's decision is AFFIRMED. IT IS SO ORDERED. DATED this 20th day of September, 2011. Unite~,~>ates OPINION AND ORDER 23 Magistrate Judge {KPR}
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