Harvey Benjamin Bachand v. Carolyn W. Colvin, No. 2:2014cv05120 - Document 17 (C.D. Cal. 2016)
Court Description: MEMORANDUM OPINION AND ORDER by Magistrate Judge Patrick J. Walsh. The Agency's decision is affirmed and the case is dismissed with prejudice. See Order for details. (dml)
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Harvey Benjamin Bachand v. Carolyn W. Colvin Doc. 17 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 HARVEY BENJAMIN BACHAND, 11 12 13 Plaintiff, v. 14 CAROLYN W. COLVIN, Acting Commissioner of the Social Security Administration, 15 Defendant. ) ) ) ) ) ) ) ) ) ) ) ) Case No. CV 14-5120-PJW MEMORANDUM OPINION AND ORDER 16 17 18 I. INTRODUCTION Plaintiff appeals a decision by Defendant Social Security 19 Administration (“the Agency”), denying his application for disability 20 insurance benefits (“DIB”). 21 Judge (“ALJ”) erred when he: (1) discounted Plaintiff’s testimony; 22 (2) rejected a treating doctor’s opinion; and (3) accepted the 23 vocational expert’s testimony. 24 concludes that the ALJ did not err. 25 26 27 II. He claims that the Administrative Law For the following reasons, the Court SUMMARY OF PROCEEDINGS In October 2011, Plaintiff applied for DIB, alleging that he had been disabled as of December 2007, due to migraine headaches, pain 28 Dockets.Justia.com 1 throughout his body, insomnia, and diabetes. 2 (“AR”) 125-26, 156.) 3 and was granted a hearing before an ALJ. 4 March 2013, he appeared with counsel and testified at the hearing. 5 (AR 28-56.) Thereafter, the ALJ issued a decision denying benefits. 6 (AR 12-23.) Plaintiff appealed to the Appeals Council, which denied 7 review. (AR 1-3.) After his application was denied, he requested 10 III. A. (AR 57-67, 78, 99, 114.) In He then commenced this action. 8 9 (Administrative Record ANALYSIS The ALJ’s Credibility Determination Petitioner testified that his pain and limitations prevented him 11 from lifting any appreciable weight and from standing, walking, and 12 sitting for any length of time. 13 testimony was not entirely credible. 14 that the ALJ erred in doing so because he based this finding solely on 15 the fact that there was no objective medical evidence to support the 16 testimony. 17 Court finds that the ALJ cited sufficient reasons for discounting 18 Plaintiff’s testimony. 19 (Joint Stip. at 16.) (AR 44-45.) The ALJ found that this (AR 19-21.) Plaintiff argues For the reasons explained below, the ALJs are tasked with judging a claimant’s credibility. Andrews 20 v. Shalala, 53 F.3d 1035, 1039 (9th Cir. 1995). 21 rely on ordinary credibility techniques. 22 1273, 1284 (9th Cir. 1996). 23 malingering, however, ALJs can only reject a claimant’s testimony for 24 specific, clear, and convincing reasons that are supported by 25 substantial evidence in the record. 26 1014-15 (9th Cir. 2014). 27 28 In doing so, they can Smolen v. Chater, 80 F.3d Where there is no evidence of Garrison v. Colvin, 759 F.3d 995, The ALJ cited numerous reasons for discounting Plaintiff’s testimony: (1) there was no correlation between the medical record and 2 1 Plaintiff’s onset date; (2) the objective evidence did not support 2 Plaintiff’s claims of disabling pain; (3) Plaintiff’s treatment was 3 conservative; (4) there were gaps in treatment; (5) Plaintiff’s daily 4 activities contradicted his claims of disabling pain; and 5 (6) Plaintiff was able to work part-time in 2011. 6 (AR 19-21.) These are legally valid reasons to question a claimant’s 7 testimony. 8 (holding ALJ can consider claimant’s ability to perform daily 9 activities and gaps in medical treatment in evaluating claimant’s See Orn v. Astrue, 495 F.3d 625, 639 (9th Cir. 2007) 10 testimony); Bray v. Commissioner of Social Security Admin., 554 F.3d 11 1219, 1227 (9th Cir. 2009) (finding claimant’s part-time work as 12 personal caregiver belied claim of debilitating respiratory illness); 13 Parra v. Astrue, 481 F.3d 742, 751 (9th Cir. 2007) (noting 14 conservative treatment, including use of only over-the-counter 15 medication to control pain, supported discounting claimant’s testimony 16 regarding pain); Bruton v. Massanari, 268 F.3d 824, 828 (9th Cir. 17 2001) (affirming ALJ’s adverse credibility finding based in part on 18 fact that claimant left his job because he was laid off, not because 19 he could no longer work); Rollins v. Massanari, 261 F.3d 853, 857 (9th 20 Cir. 2001) (noting ALJ can consider objective medical evidence in 21 determining credibility of claimant). 22 supported by the record. 23 Further, some of them are For instance, there is very little in the medical record to 24 explain what caused Plaintiff to become disabled in December 2007. 25 According to Plaintiff, his pain had persisted for years. 26 pointed out, though one of Plaintiff’s doctors noted in 2007 that he 27 could no longer work as a construction electrician, he was not working 28 as a construction electrician when the doctor offered that opinion. 3 As the ALJ 1 (AR 19, 559.) 2 electrician four years earlier, in 2003. 3 In fact, he had stopped working as a construction (AR 33.) Plaintiff’s explanation for quitting was equally vague, i.e., “my 4 back and legs just couldn’t take it anymore.” 5 reasonable that someone with severe pain would eventually reach a 6 point where he felt it was no longer possible to work, the ALJ was 7 free to question that explanation where, as here, the record did not 8 provide any objective support for the shift. 9 (AR 38.) Though it is The ALJ also relied on the fact that Plaintiff received 10 conservative care for his purportedly disabling pain. 11 consisted primarily of a TENS unit, physical therapy, and Tylenol. 12 (AR 39, 558.) 13 Plaintiff’s pain testimony.1 His treatment The ALJ properly considered this fact in evaluating 14 The ALJ also focused on gaps in Plaintiff’s care. 15 and 2012, Plaintiff’s treatment was sporadic, at best. 16 During that time frame, he went for long periods without receiving any 17 medical care for his pain. 18 this time frame were for other ailments, not his back and leg pain. 19 Between 2008 (AR 363-547.) And many of his doctor’s visits during The ALJ pointed out in detail how some of the medical records did 20 not support Plaintiff’s claims or contradicted them. 21 Plaintiff generally reported to his doctors that he was feeling well 22 between 2008 and 2012. 23 24 (AR 20.) He noted that The record supports this finding. As to the ALJ’s remaining reasons for questioning Plaintiff’s testimony, i.e., that he was able to perform various daily activities 25 26 27 28 1 Plaintiff testified at the hearing that he was taking Meloxicam, a prescription, non-steroidal, anti-inflammatory drug. (AR 40.) The medical records from 2007 showed that he was only taking Tylenol because he was unable to take non-steroidal, anti-inflammatory drugs due to an ulcer. (AR 558.) 4 1 and that he worked part-time in 2011 for several weeks, the Court does 2 not find them persuasive. 3 cooking an occasional meal, taking out the garbage, driving to a 4 meeting several times a month, etc., nothing about them establishes 5 that Plaintiff was exaggerating his claims of pain or that his ability 6 to perform them suggested that he could function in the workplace. 7 See Orn, 495 F.3d at 639 (“The ALJ must make specific findings 8 relating to the daily activities and their transferability to conclude 9 that a claimant’s daily activities warrant an adverse credibility With regard to daily activities, i.e., 10 determination”) (internal quotation marks omitted). 11 about Plaintiff’s ability to work at a law firm for two hours a day in 12 2011, contacting union members for the firm. 13 that job contradicts Plaintiff’s pain testimony. 14 The same is true (AR 41.) Nothing about In the end, of the six reasons cited by the ALJ for questioning 15 Plaintiff’s testimony, the Court finds that four of them are supported 16 by the record. 17 credibility finding in this case. 18 533 F.3d 1155, 1162-63 (9th Cir. 2008). 19 evidence to support Plaintiff’s claim that he was disabled (and that 20 his disability started in December 2007) combined with the fact that 21 he was treated conservatively and sporadically throughout the relevant 22 period for allegedly disabling pain supports the ALJ’s finding that 23 Plaintiff was exaggerating his claims of pain. 24 affirmed. These four reasons are enough to uphold the ALJ’s See Carmickle v. Comm'r, Soc. Sec., The lack of objective medical For that reason, it is 25 2. 26 Plaintiff’s treating doctor, Dr. Rod Blau, filled out a residual The ALJ’s Rejection of the Treating Doctor’s Opinion 27 functional capacity questionnaire in July 2012, providing his 28 assessment of Plaintiff’s capabilities. 5 (AR 548-54.) He indicated 1 that Plaintiff suffered from carpal tunnel syndrome, impingement in 2 both shoulders, and osteoarthritis in his knees and hips. 3 Dr. Blau also opined that Plaintiff would be severely limited in his 4 ability to sit, stand, and lift and would likely be absent from work 5 more than three times a month due to his medical conditions. 6 54.) 7 (AR 548.) (AR 548- The ALJ rejected this opinion because: (1) it was not supported 8 by Dr. Blau’s records or the records of the other medical care 9 providers; (2) it was based on Plaintiff’s statements to Dr. Blau, 10 which the ALJ discounted; and (3) it was inconsistent with other 11 statements Plaintiff made to Dr. Blau, which the ALJ had accepted. 12 (AR 16-17, 20.) 13 Dr. Blau’s opinion. 14 reasons, the Court disagrees. 15 Plaintiff contends that the ALJ erred in rejecting (Joint Stip. at 22-25.) For the following The ALJ properly questioned Dr. Blau’s opinion because it was 16 based, at least in part, on what Plaintiff had told him, which the ALJ 17 had rejected. 18 opinion. 19 treating doctor’s opinion that was based on claimant’s subjective 20 characterization of her symptoms which the ALJ found was not 21 credible). 22 This is a legitimate reason for discounting a doctor’s See Bray, 554 F.3d at 1228 (affirming ALJ’s discounting of So, too, is the ALJ’s finding that Dr. Blau’s opinion was 23 inconsistent with Plaintiff’s statements that the ALJ did accept. 24 example, though Dr. Blau diagnosed Plaintiff with carpal tunnel 25 syndrome, Plaintiff testified that he had had surgery to resolve his 26 carpal tunnel and did not “have any issues” with it. 27 testimony seems to contradict Dr. Blau’s diagnosis. 28 did not assess any limitations for carpal tunnel, it calls into 6 (AR 47.) For This Though Dr. Blau 1 question his assessment in that clearly one of the three diagnoses he 2 made was contradicted by Plaintiff’s testimony. 3 The ALJ found generally that Dr. Blau’s opinion was not supported 4 by his own medical records. 5 for questioning Dr. Blau’s findings and is supported by the record. 6 For example, the ALJ noted that there was no support in Dr. Blau’s 7 records for the diagnosis of impingement in both shoulders. 8 The Court has not found any reference to shoulder impingement in Dr. 9 Blau’s or any of the other medical records and Plaintiff has not (AR 19-20.) This is also a valid reason (AR 17.) 10 pointed to any references, either. 11 told Dr. Blau in 2011 that he had had surgery on his right shoulder in 12 1998, but that does not amount to a medical record establishing 13 shoulder impingement nor does it support Dr. Blau’s 2012 diagnosis 14 that Plaintiff had impingement in both shoulders. 15 ALJ, the Court sees a contradiction between Dr. Blau’s 2012 diagnosis 16 of shoulder impingement and literally hundreds of pages of treatment 17 records from Dr. Blau and others at Kaiser over a period of years in 18 which Plaintiff was never diagnosed with or treated for shoulder 19 impingement.2 20 He does point to the fact that he (AR 278.) Like the The ALJ also questioned Dr. Blau’s opinion because it was 21 incompatible with “the record as a whole.” 22 rightly complains that the ALJ’s finding here was too general. 23 Though, by reading the ALJ’s decision, it is possible to have a 24 general understanding about what he was referring to, he should have (AR 20.) Plaintiff 25 26 27 28 2 When Dr. Blau submitted a doctor’s statement to the Plaintiff’s union in 2007 so that Plaintiff could go on disability, he diagnosed Plaintiff with arthritis of the knees and “leg length” disparity. (AR 564.) He never mentioned shoulder impingement. (AR 564.) 7 1 explained in detail what he meant when he made this sweeping 2 statement. 3 Even assuming, however, that the Court ignores this reason for 4 rejecting Dr. Blau’s opinion, there is still enough here to affirm the 5 ALJ’s finding. 6 records from Kaiser do not support his opinion that Plaintiff is 7 incapable of doing even sedentary work. 8 doctors, including Dr. Blau, that this was the case and his doctors 9 were not treating him as someone with disabling pain and limitations. Most compelling is the fact that Dr. Blau’s own Plaintiff was not telling his 10 For these reasons, the ALJ’s rejection of Dr. Blau’s opinion will be 11 upheld. 12 3. 13 The vocational expert testified that Plaintiff could perform The ALJ’s Reliance on the Vocational Expert 14 light work, including his former job as a union business 15 representative as he performed it. 16 vocational expert erred in reaching that conclusion because Plaintiff 17 was required to lift ladders weighing between 25 and 50 pounds as a 18 union representative and he is only capable of lifting up to 20 19 pounds. 20 argument is rejected. 21 (Joint Stip. at 6-7.) Plaintiff contends that the For the following reasons, this When initially asked by the ALJ at the administrative hearing 22 whether he had to lift anything as a union representative, Plaintiff 23 testified “No.” 24 Plaintiff repeated that answer. 25 reminding Plaintiff that he had submitted a work activity report in 26 which he had claimed that he had to lift as much as 50 pounds on that 27 job. (AR 41.) (AR 33.) When his lawyer thereafter questioned him, (AR 41.) Counsel probed deeper, Plaintiff explained that he “might have moved some 28 8 1 boxes, files or something like that but that wasn’t typically the 2 job.” 3 (AR 41-42.) Q: 4 5 Undaunted, counsel pressed on: You also indicated that you frequently had to lift 25 pounds, would that be true? A: I think it was more –- I guess I understood the question as 6 to what I could lift, I don’t –- really wasn’t lifting that 7 much, I mean –- you know, you –- a files [sic] and a 8 briefcase maybe –- 9 Q: 10 11 You made a remark that sometimes you’d have to carry ladders? A: If I was on a jobsite if I –- sometimes I had to get up into 12 a space where the electricians were to do interviews and 13 stuff like that I’d have to climb stairs or even use a 14 ladder once in a while –- 15 Q: Did you –- 16 A: –- climb a ladder to get where they were. 17 Q: –- inspect any of the work that they did? 18 A: Not particularly, no. 19 (AR 41-42.) 20 The ALJ later followed up: 21 Q: [W]hen you were working as a business representative for the 22 union, I’m trying to get clear on your testimony, you 23 actually –- you climbed ladders, but you didn’t lift them, 24 or you did lift ladders, or what? 25 A: I lifted them once in a while if I had to get a ladder to 26 get up to an attic space or somewhere where there was 27 construction going on to see the electricians, to see what 28 9 1 they were doing, you know, and to interview them. 2 was very seldom. 3 4 But that (AR 48.) Plaintiff subsequently testified that the ladders weighed 20-25 5 pounds. 6 concluded that Plaintiff’s performed his job as light work and that he 7 could still perform it today. 8 9 (AR 49-50.) Based on this testimony, the vocational expert (AR 50-51.) Plaintiff takes exception to the vocational expert’s conclusions. He refers the Court back to his work history report, in which he 10 represented that the job required him to lift up to 50 pounds, and 11 argues that the hearing testimony established that the ladders weighed 12 25 to 50 pounds. 13 (Joint Stip. at 6-7.) Plaintiff’s argument is contradicted by the record. According to 14 Plaintiff’s testimony, the ladders weighed between 20 and 25 pounds, 15 not 25 and 50. 16 testimony, he seldom ever had to lift anything, including a ladder, as 17 lifting was not really part of his job. 18 opinion that Plaintiff was capable of performing his prior job as he 19 performed it despite the fact that he might have to lift a ladder on 20 occasion is supported by substantial evidence in the record and is 21 affirmed.3 (AR 49-50.) Further, as Plaintiff made clear in his Thus, the vocational expert’s 22 23 24 25 26 27 28 3 Plaintiff complains that the vocational expert erred when she relied on the Dictionary of Occupational Titles to determine the duties of the job as performed nationally because the job description is outdated. The Court need not and does not reach this issue because it has concluded that Plaintiff can perform the job as actually performed. Plaintiff also takes issue with the vocational expert’s testimony that an individual limited to only occasional overhead reaching could perform Plaintiff’s past work as a union representative “per the DOT and as performed.” (Joint Stip. at 11-12; AR 50.) In his description of the job, however, Plaintiff represented that it involved reaching for no more than two hours a day (AR 165), of which 10 1 2 IV. CONCLUSION For these reasons, the Agency’s decision is affirmed and the case 3 is dismissed with prejudice. 4 IT IS SO ORDERED. 5 DATED: February 9, 2016. 6 7 8 9 _______________________________ PATRICK J. WALSH UNITED STATES MAGISTRATE JUDGE 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 S:\PJW\Cases-Social Security\BACHAND, 5120\Memo Opinion and Order.wpd 25 26 27 28 it seems clear reaching overhead encompassed only a fraction of that time. As such, the vocational expert’s testimony that an individual limited to only occasional, i.e., up to one-third of the time, overhead reaching could perform the job as Plaintiff actually performed it is supported by the record. 11
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