Dale Newman v. Carolyn W. Colvin, No. 2:2014cv01502 - Document 16 (C.D. Cal. 2014)
Court Description: MEMORANDUM OPINION AND ORDER by Magistrate Judge Jay C. Gandhi (twdb)
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Dale Newman v. Carolyn W. Colvin Doc. 16 O 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 DALE NEWMAN, 12 13 14 Plaintiff, v. 15 CAROLYN W. COLVIN, ACTING COMMISSIONER OF SOCIAL SECURITY ADMINISTRATION, 16 Defendant. 17 ) Case No. CV 14-1502 JCG ) ) ) ) MEMORANDUM OPINION AND ) ORDER ) ) ) ) ) ) ) 18 19 Dale Newman (“Plaintiff”) challenges the Social Security Commissioner’s 20 decision denying his application for disability benefits. Four issues are presented for 21 decision here: 22 1. Whether the Administrative Law Judge (“ALJ”) properly determined 23 Plaintiff’s residual functional capacity (“RFC”), (see Joint Stip. at 4-6, 13-14); 2. Whether the ALJ properly evaluated Plaintiff’s credibility, (see id. at 24 25 14-16, 22-23); 3. Whether the ALJ properly rejected the opinion of Plaintiff’s examining 26 27 physician, (see id. at 24-25); and 4. Whether newly submitted evidence was properly considered by the 28 Dockets.Justia.com 1 Appeals Council, (see id. at 25-26). 2 The Court addresses, and rejects, Plaintiff’s contentions below. 3 A. 4 First, Plaintiff contends that the ALJ erred in determining his RFC. (See id. at The ALJ Properly Determined Plaintiff’s RFC 5 4-6, 13-14.) Specifically, the ALJ’s step-two finding that Plaintiff has a severe 6 shoulder impairment contradicts the ALJ’s RFC finding that Plaintiff can 7 “frequently lift, reach, push and pull over shoulder level with either upper 8 extremity.” (Id. at 6, 13.) The Court disagrees for the following three reasons. 9 First, Plaintiff cites no authority for the proposition that the ALJ is required to 10 attribute particular limitations in the final RFC analysis to each of Plaintiff’s severe 11 impairments. (See generally id.) Indeed, the Ninth Circuit has specifically rejected 12 this argument. See Bray v. Comm’r of Soc. Sec. Admin., 554 F.3d 1219, 1228 (9th 13 Cir. 2009) (holding that ALJ’s failure to include RFC limitations stemming from 14 claimant’s severe disorder was not error, where substantial evidence supported the 15 RFC); Jenkins v. Astrue, 2012 WL 6516455, at *13 (E.D. Cal. Dec. 13, 2012) (“[I]t 16 is well-established that an ALJ is not required to include all the limitations from the 17 impairments deemed severe at step two in the final RFC analysis.”) (citation 18 omitted). 19 Second, the ALJ did include limitations relating to Plaintiff’s shoulder 20 impairment. In particular, the ALJ found that Plaintiff can only “frequently lift, 21 reach, push and pull over shoulder level with either upper extremity.” (AR at 30) 22 (emphasis added). In Social Security parlance, “frequently” means “occurring from 23 one-third to two-thirds of the time.” Social Security Ruling (“SSR”) 83-10, 1983 24 WL 31251, at *6 (1983); see Baltazar v. Astrue, 2012 WL 2319263, at *5 (C.D. Cal. 25 June 19, 2012). Thus, the ALJ actually restricted Plaintiff’s shoulder activity to no 26 more than two-thirds of the workday. 27 Third, the ALJ’s finding that Plaintiff can “frequently lift, reach, push and pull 28 over shoulder level with either upper extremity” is supported by substantial 2 1 evidence. (See AR at 30.) For example, Plaintiff’s treatment notes indicate that, 2 although Plaintiff had left shoulder surgery on November 20, 2007, by June 30, 3 2008, his shoulder had improved, and he could lift 50 pounds without pain. (Id. at 4 35, 223.) Indeed, in his June 2008 discharge summary, Plaintiff’s physical therapist 5 noted that Plaintiff had met his physical therapy goals and “no longer ha[d] 6 functional limitations.” (Id. at 224.) Moreover, Plaintiff was instructed to continue 7 exercising on his own “using heavy weights and to slowly progress to lifting 100 8 lbs.” (Id. at 223.) Finally, Plaintiff reported a pain level of only 3-4 on a scale of 1 9 to 10 every month from February 2008 through June 2008. (Id. at 35, 223, 239, 305; 10 see id. at 242 (“Patient states shoulder feels much better, not as much pain anymore 11 and feels he is getting stronger.”).) 12 Thus, the ALJ committed no error, and Plaintiff’s RFC was supported by 13 substantial evidence. 14 B. The ALJ Properly Rejected Plaintiff’s Credibility 15 Second, Plaintiff argues that the ALJ improperly rejected his credibility. (See 16 Joint Stip. at 14-16, 22-23.) 17 An ALJ can reject a claimant’s subjective complaints by expressing clear and 18 convincing reasons for doing so. Benton ex rel. Benton v. Barnhart, 331 F.3d 1030, 19 1040 (9th Cir. 2003). “General findings are insufficient; rather, the ALJ must 20 identify what testimony is not credible and what evidence undermines the claimant’s 21 complaints.” Lester v. Chater, 81 F.3d 821, 834 (9th Cir. 1995). 22 Here, the ALJ properly discounted Plaintiff’s credibility. Four reasons guide 23 this determination. 24 First, the ALJ found that the objective medical evidence does not support 25 Plaintiff’s alleged degree of disability. (AR at 35.) As noted above, Plaintiff cannot 26 identify any objective evidence that supports his claim of total disability. (See 27 generally id.) Indeed, Plaintiff’s own treating physician precluded Plaintiff only 28 from “heavy” and “very heavy work.” (Id. at 830, 1035, 1044.) Moreover, this 3 1 assessment is supported by treatment notes indicating that Plaintiff can lift up to 50 2 pounds, and has full range of motion in his shoulders. (Id. at 35, 223, 1079 (“full 3 range of motion”), 1060 (“range of motion of the shoulder approaches normal”).) 4 While a lack of objective evidence supporting Plaintiff’s symptoms cannot be the 5 sole reason for rejecting Plaintiff’s testimony, it can be one of several factors used in 6 evaluating Plaintiff’s credibility. Rollins v. Massanari, 261 F.3d 853, 856-57 (9th 7 Cir. 2001). 8 Second, the ALJ found that Plaintiff’s subjective complaints were belied by 9 his work history. (AR at 30 ); see Drouin v. Sullivan, 966 F.2d 1255, 1258 (9th Cir. 10 1992) (The ALJ appropriately considered claimant’s ability to engage in some work 11 activity in assessing his credibility.). Indeed, although Plaintiff alleges that he 12 became disabled on March 1, 2006, his earning records show substantial gainful 13 activity until 2009. (AR at 30, 161, 163-64.) Further, Plaintiff only stopped 14 working because he was laid off, and not due to his impairments. (Id. at 30, 172, 15 187); see Bruton v. Massanari, 268 F.3d 824, 828 (9th Cir. 2001) (ALJ properly 16 considered that claimant was out of work because he was laid off, and not because of 17 disabling impairments.). 18 Third, the ALJ explained that Plaintiff was receiving unemployment benefits, 19 which required him to certify that he was willing and able to work. (AR at 30.) The 20 ALJ concluded that such a certification is inconsistent with a claim of disability. 21 (Id.) This too is a clear and convincing reason supported by the record. (Id. at 57, 22 66-67, 173); see Copeland v. Bowen, 861 F.2d 536, 542 (9th Cir. 1988) (Receipt of 23 unemployment benefits is a valid reason for discounting a claimant’s credibility, as it 24 indicates that the claimant considered himself to be capable of work, and he held 25 himself out as such.). 26 Fourth, the ALJ highlighted inconsistencies between Plaintiff’s testimony and 27 his statements in treatment notes. (See AR at 35); Thomas v. Barnhart, 278 F.3d 28 947, 958-59 (9th Cir. 2002) (specifically listing inconsistent statements as a valid 4 1 reason for discrediting a claimant). For example, Plaintiff’s treatment notes indicate 2 that, by June 2008, Plaintiff was walking four miles a day, and experienced no chest 3 pain or shortness of breath. (AR at 35, 328, 331.) Nevertheless, in his disability 4 claim, Plaintiff alleged that he walked a quarter of a mile only occasionally, it took 5 him at least an hour, and resulted in heavy breathing and light-headedness. (Id. at 6 190-91.) 7 Thus, the ALJ properly discounted Plaintiff’s credibility. 8 C. 9 Third, Plaintiff argues that the ALJ erred by rejecting the opinion of the The ALJ Properly Rejected the Examining Opinion of Dr. Sedgh 10 consultative examiner, Dr. John Sedgh.1/ (See Joint Stip. at 3-7.) The Court 11 disagrees. An ALJ may reject the controverted opinion of an examining physician only 12 13 for “specific and legitimate reasons that are supported by substantial evidence.” 14 Carmickle v. Comm’r, Soc. Sec. Admin., 533 F.3d 1155, 1164 (9th Cir. 2008) 15 (quoting Lester, 81 F.3d at 830-31). Here, the ALJ properly found that “the record indicates [that Plaintiff] can 16 17 perform work at a greater exertional level” than suggested by Dr. Sedgh. (AR at 18 36); see Rollins, 261 F.3d at 856 (ALJ properly discounted physician’s prescribed 19 limitations as being “so extreme as to be implausible” and “not supported by any 20 findings”). In particular, Dr. Sedgh limited Plaintiff to “light work,” (AR at 601), 21 meaning he can lift only “10 lbs. frequently and 20 lbs. occasionally.” 20 C.F.R. 22 § 416.967(b). However, as detailed above, Plaintiff’s treatment records indicate 23 that, by June 2008, he could lift up to 50 pounds, was working toward lifting 100 24 25 1/ Plaintiff contends that the ALJ failed to address Dr. Sedgh’s opinion entirely. 26 (See Joint Stip. at 25.) To the contrary, although he never mentioned Dr. Sedgh by 27 name, the ALJ evaluated the opinion of the “State Agency internal medicine [consultative examiner],” and cited to Exhibit 3F, containing Dr. Sedgh’s report. 28 (AR at 36, 597-601.) 5 1 pounds, and had no further functional limitations. (AR at 222-24.) 2 As such, the ALJ properly rejected Dr. Sedgh’s examining opinion. 3 D. 4 5 The Appeals Council Did Not Err in Denying Review of the ALJ’s Decision Finally, Plaintiff argues that the ALJ’s decision was not supported by 6 substantial evidence because it did not account for the medical evidence presented to 7 the Appeals Council after the issuance of the ALJ’s decision. (See Joint Stip. at 258 26.) 9 Social Security regulations provide that where new and material evidence is 10 submitted to the Appeals Council with the request for review, the entire record will 11 be evaluated. 20 C.F.R. § 404.970(b); see Mayes v. Massanari, 276 F.3d 453, 462 12 (9th Cir. 2001) (To be material, the new evidence must bear “directly and 13 substantially on the matter in dispute.”) (internal quotation marks and citation 14 omitted). Significantly, review of the ALJ’s decision will be granted only where the 15 Appeals Council finds that the ALJ’s actions, findings, or conclusions are contrary 16 to the weight of the evidence. Id. Moreover, the claimant must demonstrate a 17 “reasonable possibility” that the new evidence would have changed the ultimate 18 nondisability finding. Id. 19 The Court is persuaded that Dr. Richard Feldman’s disability endorsement 20 poses no reasonable probability of changing the ALJ’s decision. Two reasons guide 21 this determination. 22 First, Dr. Feldman’s opinion that Plaintiff is unable to work is entitled to little 23 value because that is an issue reserved to the Commissioner. (See id. at 1105-07); 24 Nyman v. Heckler, 779 F.2d 528, 531 (9th Cir. 1985) (because “opinions by medical 25 experts regarding the ultimate question of disability are not binding[,] . . . [the 26 Commissioner] was not obliged to explicitly detail his reasons for rejecting the 27 [treating physician’s] opinion”); Ukolov v. Barnhart, 420 F.3d 1002, 1004 (2005) 28 (“Although a treating physician’s opinion is generally afforded the greatest weight in 6 1 disability cases, it is not binding on an ALJ as to the existence of an impairment or 2 the ultimate determination of disability.”); 20 C.F.R. § 404.1527(e)(1). 3 Second, and moreover, Dr. Feldman’s late-submitted report is not inconsistent 4 with Plaintiff’s RFC. (Compare AR at 30 with id. at 1103-04.) Indeed, although Dr. 5 Feldman states that Plaintiff “remains unable to work,” (see id. at 1104), Dr. 6 Feldman’s previous report explains that this was only because “there are no modified 7 duties available.” (Id. at 1044.) In other words, although Plaintiff cannot engage in 8 his past heavy and very heavy work, he would be capable of performing at a lesser 9 exertional level. As such, Dr. Feldman’s opinion supports the ALJ’s finding that 10 Plaintiff can perform medium work. 11 Accordingly, the Appeals Counsel properly denied review of the ALJ’s 12 decision. 13 Based on the foregoing, IT IS ORDERED THAT judgment shall be entered 14 AFFIRMING the decision of the Commissioner denying benefits. 15 16 Dated: October 31, 2014 17 18 ____________________________________ 19 Hon. Jay C. Gandhi United States Magistrate Judge 20 21 22 23 24 25 26 27 28 7
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