Brice Burkett v. Nancy A Berryhill, No. 2:2018cv01021 - Document 31 (C.D. Cal. 2019)
Court Description: MEMORANDUM OPINION AND ORDER AFFIRMING DECISION OF COMMISSIONER by Magistrate Judge Alexander F. MacKinnon. IT IS ORDERED that Judgment be entered affirming the decision of the Commissioner and dismissing this action with prejudice. (sbou)
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Brice Burkett v. Nancy A Berryhill Doc. 31 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 BRICE CHARLES B.,1 11 12 Case No. 2:18-cv-01021-AFM Plaintiff, 13 MEMORANDUM OPINION AND ORDER AFFIRMING DECISION OF COMMISSIONER v. 14 NANCY A. BERRYHILL, Acting Commissioner of Social Security, 15 16 Defendant. 17 18 19 Plaintiff filed this action seeking review of the Commissioner’s final decision 20 denying his application for disability insurance benefits. In accordance with the 21 Court’s case management order, the parties have filed memorandum briefs 22 addressing the merits of the disputed issues. The matter is now ready for decision. BACKGROUND 23 24 On July 25, 2014, Plaintiff applied for disability insurance benefits, alleging 25 disability since April 6, 2013. Plaintiff’s application was denied. (Administrative 26 27 28 Plaintiff’s name has been partially redacted in accordance with Federal Rule of Civil Procedure 5.2(c)(2)(B) and the recommendation of the Committee on Court Administration and Case Management of the Judicial Conference of the United States. 1 Dockets.Justia.com 1 Record [“AR”] 95-97, 172-175.) A hearing took place on September 13, 2016 before 2 an Administrative Law Judge (“ALJ”). Plaintiff, who was represented by counsel, 3 testified at the hearing, as did a vocational expert (“VE”) and a medical expert 4 (“ME”). (AR 30-75.) 5 In a decision dated November 22, 2016, the ALJ found that Plaintiff suffered 6 from the severe impairments of aortic valve disease status post replacement and 7 cervical spine kyphosis. (AR 17.) The ALJ concluded that Plaintiff retained the 8 residual functional capacity (“RFC”) to perform light work with the following 9 restrictions: only occasionally climb ladders, ropes, or scaffolds; no more than 10 occasional bilateral overhead reaching; avoid exposure to unprotected heights, 11 moving mechanical parts, humidity, wetness, and temperature extremes; and 12 occasional exposure to dusts, odors, fumes, or pulmonary irritants. (AR 19.) Relying 13 upon the testimony of the VE, the ALJ found that Plaintiff was capable of performing 14 his past relevant work as a dentist. (AR 24.) Accordingly, the ALJ concluded that 15 Plaintiff was not disabled. (AR 24-25.) 16 17 The Appeals Council subsequently denied Plaintiff’s request for review (AR 1-6), rendering the ALJ’s decision the final decision of the Commissioner. DISPUTED ISSUES 18 19 20 21 22 23 1. Whether the ALJ properly evaluated the opinion of treating physician, Erik Spayde, M.D. 2. Whether the ALJ properly considered the evidence, including Plaintiff’s testimony, in assessing Plaintiff’s RFC. STANDARD OF REVIEW 24 Under 42 U.S.C. § 405(g), this Court reviews the Commissioner’s decision to 25 determine whether the Commissioner’s findings are supported by substantial 26 evidence and whether the proper legal standards were applied. See Treichler v. 27 Comm’r of Soc. Sec. Admin., 775 F.3d 1090, 1098 (9th Cir. 2014). Substantial 28 evidence means “more than a mere scintilla” but less than a preponderance. See 2 1 Richardson v. Perales, 402 U.S. 389, 401 (1971); Lingenfelter v. Astrue, 504 F.3d 2 1028, 1035 (9th Cir. 2007). Substantial evidence is “such relevant evidence as a 3 reasonable mind might accept as adequate to support a conclusion.” Richardson, 402 4 U.S. at 401. This Court must review the record as a whole, weighing both the 5 evidence that supports and the evidence that detracts from the Commissioner’s 6 conclusion. Lingenfelter, 504 F.3d at 1035. Where evidence is susceptible of more 7 than one rational interpretation, the Commissioner’s decision must be upheld. See 8 Orn v. Astrue, 495 F.3d 625, 630 (9th Cir. 2007). 9 DISCUSSION 10 1. The ALJ provided legally sufficient reasons for discounting Dr. Spayde’s 11 opinion. 12 Plaintiff contends that the ALJ failed to provide specific and legitimate reasons 13 to reject the opinion of his treating physician, Erik Spayde, M.D. (ECF No. 23 at 15- 14 21; ECF No. 28 at 2-3.) For the following reasons, Plaintiff’s contention lacks merit. 15 A. Relevant Medical Evidence. 16 On October 4, 2012, Plaintiff saw Brian D. Rubin, M.D. for complaints of neck 17 pain. (AR 267-268.) Dr. Rubin noted that Plaintiff’s range of motion of the cervical 18 spine was restricted, palpitation revealed mild tenderness in the midline cervical 19 spine, and Plaintiff suffered from an “obvious cervical kyphosis.”2 (AR 261.) 20 Plaintiff was “neurologically intact.” (AR 262.) Dr. Rubin ordered diagnostic tests. 21 (AR 262-263.) 22 At his initial appointment with Dr. Spayde on October 17, 2012, Plaintiff 23 reported experiencing neck pain for ten years. According to Plaintiff, his neck “is 24 fatigued if he is not looking down.” (AR 665.) Physical examination revealed loss of 25 lordosis, no asymmetry, no tenderness of the cervical spine, a negative Spurling’s 26 Test, no tenderness to palpation, and no muscle spasm. Plaintiff’s upper extremity 27 28 2 Kyphosis is a curvature of the spine. (See AR 49.) 3 1 reflexes were normal and his sensation was intact. With regard to range of motion, 2 Dr. Spayde found Plaintiff’s forward and backward flexion and extension to be 45 3 degrees without discomfort, left and right tilt was 30 degrees without discomfort, and 4 left and right rotation was 60 degrees without discomfort. (AR 665-666.) Dr. Spayde 5 diagnosed Plaintiff with degeneration of cervical intervertebral disc, cervical 6 spondylosis, kyphosis (acquired) (postural), and cervicalgia. (AR 666.) He noted that 7 Plaintiff was not interested in surgical intervention, but was interested in 8 “recommendations for maintaining his livelihood and prognosis given his symptoms 9 and diagnoses.” (AR 666.) Dr. Spayde indicated that an MRI should be obtained. 10 An MRI of Plaintiff’s cervical spine was performed on October 24, 2012. It 11 revealed no large disc bulges or canal stenosis; multiple disc bulges less than 3 mm.; 12 and multilevel mild to moderate neural foraminal stenosis. (AR 273-274.) 13 On November 5, 2012, Plaintiff returned to Dr. Spayde to review the MRI 14 results. A physical examination was the same as in October 2012. Dr. Spayde noted 15 that the MRI results showed kyphosis, multiple disc bulges, and multilevel disc 16 degeneration. (AR 663.) Dr. Spayde’s diagnoses remained the same. Dr. Spayde 17 recommended physical therapy. (AR 664.) 18 Physical examination in January 2013 revealed the same findings as prior 19 examinations, and Dr. Spayde’s diagnoses remained the same. (AR 661.) 20 Dr. Spayde’s notes indicate that Plaintiff’s ongoing neck pain “is highly related to 21 his kyphotic deformity. The deformity is directly related to the posture with 22 practicing dentistry. He is continuing with physical therapy and home exercises.” 23 (AR 662.) 24 25 Physical therapy notes from this time indicate that Plaintiff benefitted from therapy and was making slow progress. (See AR 670-671.) 26 Plaintiff saw Dr. Spayde again in May 2013. Dr. Spayde noted that Plaintiff 27 was status post open heart surgery and noted that Plaintiff stopped working on 28 April 5, 2013. (AR 659.) Physical examination revealed the same findings as in 4 1 January 2013 and Dr. Spayde’s diagnoses remained the same. (AR 659.) According 2 to Dr. Spayde’s treatment notes, Plaintiff 3 has ongoing disability related to his cervical spine and severe kyphosis. 4 Regardless of his cardiac condition, he would be unable to work at this 5 point due to his ongoing neck symptoms. His neck was aggravated 6 temporarily by the heart surgery. He has pain in the back of the neck. 7 He will continue PT [physical therapy]. 8 (AR 660.) 9 Plaintiff had a follow up appointment with Dr. Spayde on December 18, 2013. 10 Physical examination revealed the same findings as prior examinations and 11 Dr. Spayde’s diagnoses remained the same. Dr. Spayde indicated “[Plaintiff] is not 12 [to] do overhead heavy weight lifting or exercises that strain the neck. I encourage 13 him to continue working out at the gym. He will avoid excessive neck flexion for 14 prolonged periods.” (AR 657-658.) Dr. Spayde also recommended that Plaintiff 15 begin physical therapy 2-3 times a week. He indicated Plaintiff should return for a 16 follow-up in six weeks. (AR 658.) Plaintiff next saw Dr. Spayde in January 2015. 17 Meanwhile, on November 6, 2014, Sean K. Hirota, M.D. performed a 18 complete internal medicine evaluation of Plaintiff at the request of the Social Security 19 Administration. (AR 680.) On examination, Dr. Hirota found tenderness to palpation 20 in the midline and paracervical spinal regions; severe kyphosis; and limited range of 21 motion of the cervical spine. He noted that when Plaintiff walked, “his head is 22 angulated downwards from time to time.” (AR 683.) Dr. Hirota’s diagnostic 23 impressions included “Kyphosis: severe spinal deformity with reduced range of 24 motion [of] the cervical spine.” (AR 684.) Dr. Hirota opined that Plaintiff could lift 25 and carry 50 pounds occasionally and 25 pounds frequently; could stand or walk for 26 six hours in an eight-hour day; sit for six hours in an eight-hour day; frequently 27 perform postural activities such as bending, stooping, kneeling, and crouching. (AR 28 684-685.) However, given Plaintiff’s restricted range of motion in his cervical spine, 5 1 he was limited to “only occasionally perform[ing] postural activities such as 2 climbing.” (AR 685.) Dr. Hirota opined Plaintiff was not limited in regard to gross 3 motor skills or fine motor skills. (AR 685.) 4 Dr. Spayde examined Plaintiff in January 2015. Plaintiff reported “pain with 5 wearing heavy jackets” and “carrying heavy loads.” Plaintiff had not started physical 6 therapy, but said that he was “interested in starting in February.” (AR 690.) 7 Dr. Spayde’s physical examination revealed the same findings as those during prior 8 visits and his diagnoses remained the same. (AR 690.) Dr. Spayde recommended 9 physical therapy and ordered an updated MRI. (AR 690.) 10 A second MRI of Plaintiff’s cervical spine was performed on February 9, 2015. 11 The results revealed multilevel mild degenerative changes; no central canal stenosis; 12 and scattered foraminal stenosis. There were no significant changes compared to the 13 October 24, 2012 MRI. (AR 700-701.) 14 Plaintiff’s saw Dr. Spayde next in August 2016 – more than a year and a half 15 after his last visit. Under a section of his treatment notes entitled “Follow Up Patient 16 Information,” Dr. Spayde wrote that Plaintiff “is still having neck symptoms. He is 17 unable to work due to ongoing neck disability. He has severe kyphosis.” (AR 830.) 18 Dr. Spayde performed a physical examination. The results were identical to those at 19 prior appointments. Dr. Spayde recommended that Plaintiff continue physical 20 therapy. (AR 830.) Cervical spine X-rays obtained during that visit showed mild 21 dextroscoliosis; kyphosis; and multilevel degenerative disc disease. (AR 830.) 22 In September 2016, Burt O. Tokurara, M.D. evaluated Plaintiff based upon 23 complaints of hip pain. Physical examination revealed tenderness and multiple active 24 trigger points in Plaintiff’s lumbar, thoracic, and cervical spine. (AR 834-835.) 25 Dr. Tokuhara noted that Plaintiff exhibited severe anterior head carriage and severe 26 thoracic hyperkyphosis. In addition, Plaintiff had a reduced range of motion of the 27 cervical spine. (AR 835.) A cervical compression test and a maximum cervical rotary 28 compression test were positive. (AR 836.) Among other things, Dr. Tokuhara 6 1 diagnosed Plaintiff with cervical disc degeneration; cervicalgia; and cervical disc 2 disorder with radiculopathy. (AR 836-837.) He treated Plaintiff with a chiropractic 3 adjustment, ultrasound, and muscle stimulation. (AR 837.) 4 At the hearing, Joseph Gaeta, M.D. testified as a medical expert. Dr. Gaeta 5 reviewed Plaintiff’s medical records and opined that Plaintiff had cardiac 6 impairment, degenerative disc disease of the neck, and cervical spine kyphosis. (AR 7 39-40.) With respect to Plaintiff’s cardiac impairment, Dr. Gaeta opined Plaintiff was 8 limited to light exertional work. (AR 43-44.) With respect to Plaintiff’s cervical spine 9 impairment, Dr. Gaeta noted that Dr. Spayde had recommended that Plaintiff not lift 10 anything heavy over his head, but encouraged Plaintiff to go to the gym. Thus, 11 Dr. Gaeta included a restriction of overhead lifting. (AR 44-45.) He also noted that 12 Plaintiff’s MRI findings had not changed since 2012 and the physical examination 13 findings remained constant. (AR 41-42, 44-45.) When the ALJ asked about 14 Dr. Spayde’s comment that Plaintiff avoid excessive flexion for prolonged periods 15 of time, Dr. Gaeta testified that this recommendation did not impose restrictions 16 greater than those incorporated in light exertional work. Plaintiff’s counsel inquired 17 further about Dr. Spayde’s statement regarding excessive neck flexion for prolonged 18 periods of time. Dr. Gaeta explained that flexion refers to moving the head down. He 19 testified that the term “long periods” is open to interpretation. In Dr. Gaeta’s opinion, 20 nothing suggested that Plaintiff could not flex his cervical spine occasionally (i.e., 21 33% of the time) or more. (AR 44-49.) 22 B. Relevant Law. 23 The medical opinion of a claimant’s treating physician is entitled to controlling 24 weight so long as it is supported by medically acceptable clinical and laboratory 25 diagnostic techniques and is not inconsistent with other substantial evidence in the 26 record. Trevizo v. Berryhill, 871 F.3d 664, 675 (9th Cir. 2017) (quoting 20 C.F.R. 27 § 404.1527(c)(2)). If a treating physician’s medical opinion is uncontradicted, the 28 ALJ may only reject it based on clear and convincing reasons. Trevizo, 871 F.3d at 7 1 675; Ryan v. Comm’r of Soc. Sec. Admin., 528 F.3d 1194, 1198 (9th Cir. 2008). If a 2 treating physician’s opinion is contradicted, the ALJ must provide specific and 3 legitimate reasons supported by substantial evidence in the record before rejecting it. 4 Trevizo, 871 F.3d at 675; Ghanim v. Colvin, 763 F.3d 1154, 1160-1061 (9th Cir. 5 2014); Garrison v. Colvin, 759 F.3d 995, 1012 (9th Cir. 2014). The ALJ can meet 6 the requisite specific and legitimate standard “by setting out a detailed and thorough 7 summary of the facts and conflicting clinical evidence, stating his interpretation 8 thereof, and making findings.” Trevizo, 871 F.3d at 675 (citations and internal 9 quotation marks omitted). 10 Here, Dr. Spayde’s opinion was contradicted by the opinions of the State 11 agency medical consultant, the examining physician Dr. Hirota, and the medical 12 expert Dr. Gaeta, all of whom opined that Plaintiff could perform work at the light 13 or medium exertional level. Consequently, the ALJ was required to provide specific 14 and legitimate reasons supported by substantial evidence in the record for rejecting 15 Dr. Spayde’s opinion. Orn, 495 F.3d at 632. 16 3. Analysis. 17 In assessing Plaintiff’s RFC, the ALJ assigned great weight to the opinion of 18 Dr. Gaeta. The ALJ noted that Dr. Gaeta had reviewed the entire record and found 19 his opinion reasonable and consistent with the objective medical evidence. (AR 23.) 20 The ALJ also gave great weight to the opinion of the State agency medical consultant, 21 who opined that Plaintiff was limited to light work, finding that opinion consistent 22 with the objective medical evidence which showed infrequent and conservative 23 treatment for Plaintiff’s cervical spine. (AR 23.) The ALJ gave partial weight to the 24 opinion of Dr. Hirota that Plaintiff could perform work at the moderate exertional 25 level, explaining that the objective medical evidence supported a finding that Plaintiff 26 was more limited than Dr. Hirota opined. (AR 23-24.) 27 The ALJ considered Dr. Spayde’s opinion and provided three reasons for 28 rejecting that opinion. To begin with, the ALJ noted that Dr. Spayde’s opinion that 8 1 Plaintiff was unable to work due to his neck impairment was an opinion on the 2 ultimate issue reserved for the Commissioner and, therefore, not entitled to 3 controlling weight or special significance. (AR 24.) 4 This is a correct statement of the law. The regulations provide that a treating 5 physician’s opinion on the ultimate issue of disability is not entitled to controlling 6 weight, because statements by a medical source that a claimant is “disabled” or 7 “unable to work ” are not medical opinions. 20 C.F.R. §§ 404.1527(e), 416.927(e); 8 see Tristan v. Berryhill, __ F. App’x __, 2019 WL 581362, at *1 (9th Cir. Feb. 13, 9 2019) (“The ALJ properly rejected Dr. Posner’s opinion that Tristan was unable to 10 work as an opinion on an issue reserved to the Commissioner.”); Social Security 11 Ruling (SSR) 96-5p2, 1996 WL 374183, at *3, (July 2, 1996) (medical opinion on 12 issues reserved to the Commissioner – including whether an individual is disabled – 13 are not entitled to special significance). Nevertheless, while the ALJ is not bound by 14 a treating physician’s opinion on the ultimate issue of disability, he still cannot reject 15 it without presenting legally sufficient reasons for doing so. See Hill v. Astrue, 698 16 F.3d 1153, 1159-1160 (9th Cir. 2012); Draper v. Colvin, 2016 WL 6072344, at *3 17 (C.D. Cal. Oct. 17, 2016). Here, the ALJ provided two such reasons. 18 First, the ALJ explained that Plaintiff’s actual treatment visits for his neck 19 impairment were infrequent. Specifically, the ALJ pointed to gaps of one year and 20 one and a half years between visits. (AR 24.). The ALJ could properly consider the 21 infrequency of Plaintiff’s treatment in determining the weight to attribute to 22 Dr. Spayde’s opinion. See Woodmass v. Berryhill, 707 F. App’x 432, 435 (9th Cir. 23 2017) (“although treating Woodmass every six months may suggest familiarity with 24 her condition, this relatively infrequent treatment also contradicted the seriousness 25 of Woodmass’s symptoms”) (citing 20 C.F.R. § 404.1527(c)(2)(i)); Lusardi v. 26 Astrue, 350 F. App’x 169, 171-172 (9th Cir. 2009) (ALJ’s assignment of minimal 27 weight to treating physician’s opinion satisfied the clear and convincing standard 28 where the ALJ noted the doctor’s infrequent visits with the claimant); see generally, 9 1 Orn, 495 F.3d at 631 (where treating physician’s opinion is contradicted by other 2 evidence, the ALJ should consider factors including “the length of the treatment 3 relationship and the frequency of examination” in deciding what weight to give the 4 opinion). 5 Second, the ALJ concluded that Dr. Spayde’s “own reports failed to reflect the 6 type of significant clinical and laboratory abnormalities one would expect” if Plaintiff 7 were disabled. (AR 24.) As an example, the ALJ noted that Dr. Spayde consistently 8 assessed Plaintiff with intact reflexes, sensation, and motor strength in the bilateral 9 upper extremities and had consistently negative Spurling tests. (AR 24 [citing AR 10 657, 659, 690, 830].) The ALJ could properly reject the treating physician’s opinion 11 on the ground that it was not adequately supported by objective medical findings. See 12 Chaudhry v. Astrue, 688 F.3d 661, 671 (9th Cir. 2012); Batson v. Commissioner, 359 13 F.3d 1190, 1195 (9th Cir. 2004). Furthermore, the ALJ’s reason is supported by 14 substantial evidence. As set forth above, other than a limited range of motion, 15 Dr. Spayde’s physical examinations consistently reflected minimal findings – 16 including no tenderness on axial compression, no tenderness to palpation, no muscle 17 spasm, negative Spurling’s Test, normal reflexes, sensation, and motor examinations. 18 (AR 657, 659, 661, 663, 665-666, 690, 830.) 19 Plaintiff argues that the MRI results constitute objective findings supporting 20 Dr. Spayde’s opinion. (ECF No. 23 at 20.) Plaintiff is correct that Dr. Spayde’s 21 treatment notes mention the MRI findings. In particular, Dr. Spayde noted that the 22 MRI findings showed cervical kyphosis, multiple disc bulges and multilevel disc 23 degeneration. (See, e.g., AR 657, 659, 690.) Nevertheless, as the ALJ correctly noted, 24 the MRI results revealed small disc bulges and mild to moderate foraminal stenosis, 25 but no central canal stenosis and no nerve root impingement. (AR 21; see AR 273- 26 274, 700-701(MRI findings describing “trace” or “minimal” disc bulges and “mild” 27 degenerative changes.). Further, the ALJ pointed to Dr. Gaeta’s testimony regarding 28 the nature of the MRI results – namely, that findings of degenerative disc disease are 10 1 common in people as they age and that Plaintiff’s 2015 MRI results showed no 2 changes from the 2012 MRI results. (AR 22-24; see AR 273-274, 700-701.) 3 Accordingly, the ALJ could properly rely on a lack of objective clinical support in 4 rejecting Dr. Spayde’s opinion. Gonzalez v. Astrue, 2013 WL 394415, at *7-8 (E.D. 5 Cal. Jan. 30, 2013) (ALJ properly rejected treating physician opinion for lack of 6 objective support where MRI and CT scans revealed “mild stenosis”); Coelho v. 7 Astrue, 2011 WL 3501734, at *6 (N.D. Cal. Aug. 10, 2011) (ALJ met his burden of 8 providing a specific, legitimate reason to reject the treating physicians’ opinions for 9 lack of supporting objective evidence where evidence of cervical spine condition 10 included an MRI showing stenosis in 2002; an X-ray showing degenerative changes 11 in 2004; and an MRI showing disc narrowing, desiccation, and posterior disc bulging, 12 but normal cord signal), aff’d, Coelho v. Colvin, 525 F. App’x 637 (9th Cir. 2013). 13 Plaintiff also contends that the ALJ erroneously rejected Dr. Spayde’s opinion 14 limiting Plaintiff from prolonged neck flexion. (ECF No. 28 at 2-3.) Plaintiff’s claim 15 is based upon Dr. Spayde’s treatment notes from December 2013, which include the 16 following notation: 17 Plaintiff is not [to] do overhead heavy weight lifting or exercises that 18 strain the neck. I encourage him to continue working out at the gym. He 19 will avoid excessive neck flexion for prolonged periods. 20 (AR 658.) 21 Dr. Spayde’s note is open to interpretation. To begin with, it is not clear that 22 the foregoing notation was meant to reflect Dr. Spayde’s medical opinion that 23 Plaintiff suffered from permanent functional limitations. Fairly read, Dr. Spayde’s 24 statement appears to reflect advice regarding Plaintiff’s planned exercises. 25 Furthermore, this alleged medical opinion is not reiterated in any other of 26 Dr. Spayde’s reports and, as such, appears to be a temporary one. 27 In any event, Dr. Gaeta testified that “avoiding excessive neck flexion for 28 prolonged periods” was not inconsistent with the ability to perform light work. In the 11 1 absence of contrary evidence, the ALJ was entitled to rely on Dr. Gaeta’s testimony. 2 Thus, the ALJ did not reject Dr. Spayde’s opinion in assessing Plaintiff’s RFC. 3 2. The ALJ did not commit error in concluding that Plaintiff could perform 4 his past relevant work as a dentist. 5 Plaintiff contends that the ALJ failed to properly evaluate the evidence in 6 reaching his conclusion that Plaintiff could perform his past relevant work as a 7 dentist, DOT 072.101-010. Although set out under a single contention, Plaintiff 8 actually makes two separate claims. 9 First, Plaintiff contends that an RFC precluding exposure to moving 10 mechanical parts is inconsistent with the occupation of a dentist. Plaintiff argues that 11 “a limitation to avoid moving mechanical parts should include the tools and 12 instruments used by dentists, since a wrong move or miscalculation could have 13 serious consequences for the health and safety of the patients.” Thus, Plaintiff 14 reasons, the ALJ erred by adopting the VE’s testimony and concluding that he was 15 capable of performing his past relevant work. (ECF No. 23 at 22.) 16 Dr. Gaeta testified that Plaintiff should not work around heights or moving 17 machinery and should not climb ladders or scaffolds because Plaintiff was on 18 anticoagulant therapy with the medication warfarin (Coumadin) for his heart 19 condition. (AR 44.)3 As discussed, the ALJ assigned great weight to Dr. Gaeta’s 20 opinion and adopted these environmental restrictions in assessing Plaintiff’s RFC. 21 (See AR 50.) 22 At Step Four of the Commissioner’s sequential evaluation process, a claimant 23 has the burden of showing that he can no longer perform his past relevant work. See 24 Pinto v. Massanari, 249 F.3d 840, 844 (9th Cir. 2001); 20 C.F.R. § 404.1520(e). The 25 ALJ must determine whether the claimant can perform the actual functional demands 26 27 28 3 Warfarin prevents blood from clotting. As a result, it may take longer than usual for a user of the medication to stop bleeding if cut or injured. Individuals prescribed warfarin are cautioned to “[a]void activities or sports that have a high risk of causing injury.” See https://medlineplus.gov/druginfo/meds/a682277.html. 12 1 and duties of a particular past relevant job, or the functional demands and duties of 2 the occupation as generally required by employers throughout the national economy. 3 Pinto, 249 F.3d at 845 (citing SSR 82–61, 1982 WL 31387, at *2). In making this 4 determination, the ALJ may rely on the Dictionary of Occupational Titles (“DOT”) 5 or the expertise of a vocational expert. See Gutierrez v. Colvin, 844 F.3d 804, 807 6 (9th Cir. 2016); Esparza v. Astrue, 2011 WL 5037049, at *9 (C.D. Cal. Oct. 24, 2011) 7 (citing 20 C.F.R. § 404.1560(b)(2) (A VE or vocational specialist (“VS”) can be used 8 at step four to determine whether a plaintiff can perform his or her past relevant 9 work)). The DOT is the Commissioner’s “‘primary source of reliable job 10 information’ and creates a rebuttable presumption as to job classification.” Gribben 11 v. Colvin, 2016 WL 5842188, at *3 (C.D. Cal. Oct. 4, 2016) (quoting Johnson v. 12 Shalala, 60 F.3d 1428, 1434 n.6, 1435 (9th Cir. 1995)). If there is an “apparent 13 unresolved conflict” between the DOT and the VE’s testimony regarding the 14 claimant’s ability to perform an occupation, the ALJ must ask the VE to resolve the 15 conflict before the ALJ can rely on the testimony. SSR 00–4p, 2000 WL 1898704, at 16 *2 (2000). A conflict is “apparent” if the DOT’s listed occupational “requirements 17 that are essential, integral, or expected” for a particular occupation conflict with the 18 VE’s testimony. Gutierrez, 844 F.3d at 808. 19 Here, the ALJ asked the VE whether a hypothetical claimant with an RFC that 20 included avoiding exposure to moving mechanical parts4 could perform work as a 21 dentist. The VE testified affirmatively. (AR 70-71.) The VE’s testimony was entirely 22 consistent with the DOT because exposure to moving mechanical parts is expressly 23 not present in the job of dentist. D.O.T. 072.101-010, 1991 WL 646699 (“Moving 24 Mech. Parts: Not Present - Activity or condition does not exist”). Because there was 25 26 27 28 4 Appendix D of the Selected Characteristics of Occupations (“SCO”) sets forth environmental conditions describing possible surroundings or settings in which an occupation is found or a job performed. One of those conditions is “Proximity to Moving Mechanical Parts,” which is defined as “exposure to possible bodily injury from moving mechanical parts of equipment, tools, or machinery.” See http://ssaconnect.com/tfiles/SCO-Appendicies.pdf. 13 1 no apparent conflict between the VE’s testimony that Plaintiff could perform his 2 work as a dentist and the requirements of the occupation as listed in the DOT, the 3 ALJ was entitled to rely upon the VE’s testimony. 4 Plaintiff argues that, notwithstanding the DOT and the VE’s testimony, 5 common experience dictates that his use of dental equipment would create a danger 6 to himself and his patients: 7 A commonsense understanding of dental procedures must carry with it 8 a recognition that a slight limitation in dexterity, a slight limitation in 9 attention and concentration, a slight limitation in being able to hold the 10 head in a fixed position while working on the oral presentation of the 11 patient simply eliminates the ability to perform those services within the 12 standard of care. 13 (ECF No. 28 at 5.) 14 Plaintiff fails to point to legal authority supporting his assertion that the 15 environmental condition “exposure to moving mechanical parts” is intended to 16 encompass the use of dental tools. Instead, the only legal authority Plaintiff cites in 17 support of his contention is Gutierrez, 844 F.3d 804. In Gutierrez, the ALJ relied 18 upon the VE’s testimony that a claimant who could not reach above shoulder level 19 with one arm could perform the work of cashier. Gutierrez, 844 F.3d at 807. The 20 Ninth Circuit rejected the plaintiff’s argument that the VE’s testimony conflicted 21 with the DOT which required “reaching” in all directions. The court explained that, 22 based on common experience, it is “unlikely and unforeseeable” that a cashier would 23 need to reach overhead, and even more rare for one to need to reach overhead with 24 both arms. Gutierrez, 844 F.3d at 808-809 & 809 n.2. 25 Gutierrez is inapposite here. Plaintiff does not contend a conflict exists 26 between the VE’s testimony and the terms of the DOT in this case, nor could he − 27 because the DOT description for a dentist excludes exposure to moving mechanical 28 parts. Instead, Plaintiff’s argument would require that the ALJ reject the occupational 14 1 requirements set forth in the DOT and in the testimony of a VE in favor of “common 2 sense” experience. Neither Gutierrez nor any other legal authority support such an 3 approach. See Hernandez v. Colvin, 2016 WL 805252, at *8 (C.D. Cal. Feb. 29, 2016) 4 (rejecting argument that occupation of hand packager was inconsistent with 5 claimant’s RFC precluding working with dangerous machinery because it involves 6 fast-paced assembly line work with a conveyor belt, explaining that the DOT 7 specifically provides that the circumstance of “moving mechanical parts” was not 8 present); Jones v. Colvin, 2015 WL 1266789, at *6 (C.D. Cal. Mar. 18, 2015) (no 9 legal authority supported plaintiff’s argument that ALJ was permitted to disregard 10 DOT definition of school bus monitor and consistent VE testimony in favor of 11 common sense or personal experience that school bus subjects passengers to 12 vibration). Accordingly, Plaintiff has not shown that the ALJ erred by relying upon 13 the VE’s testimony that a claimant with Plaintiff’s RFC could perform the work of a 14 dentist. 15 Second, Plaintiff argues that the ALJ failed to provide clear and convincing 16 reasons for rejecting Plaintiff’s testimony about the side effects from medication – 17 including dizziness, fatigue and headaches – before concluding that Plaintiff was able 18 to perform his past relevant work. (ECF No. 23 at 22-24.)5 Plaintiff points out that 19 his medications include warfarin, pantoprazole, amiodarone, lisinopril, and 20 furosemide. (AR 220.) Plaintiff testified that he does not take pain medication for his 21 neck impairment, explaining that he wanted to avoid any interaction with his heart 22 medication. (AR 57.) According to Plaintiff, the side effects of his heart medication 23 include dizziness, gas, bloating, frequent urination, and light-headedness. (AR 220.) 24 Dr. Gaeta testified that specific restrictions were appropriate to account for Plaintiff’s 25 medications. (AR 44.) In adopting Dr. Gaeta’s opinion, the ALJ accepted at least 26 27 28 5 The Court notes that Plaintiff did not testify about any side effects from medication nor did he claim that he was unable to work due to those side effects. Rather, he testified that he was unable to work due to neck pain. (See AR 51-69.) 15 1 some of Plaintiff’s alleged medication side effects. To the extent that the ALJ may 2 have discounted other side effects alleged by Plaintiff, he did not commit error 3 because, as discussed below, the ALJ provided legally sufficient reasons for 4 discounting Plaintiff’s testimony in its entirety. 5 Plaintiff also makes general assertions regarding his subjective complaints. 6 Specifically, Plaintiff points out that he testified it is difficult for him to keep his neck 7 straight due to pain; his neck is “severely bent over”; he has spasms in the back of 8 his neck all day; and his neck pain limits his walking. (ECF No. 23 at 23 [citing AR 9 54-60].) The Commissioner acknowledges Plaintiff’s “broad” recitation of his 10 subjective complaints, but argues that Plaintiff’s challenge is limited to the ALJ’s 11 rejection of his medication side effects. Thus, in responding to Plaintiff’s claim, the 12 Commissioner limits her discussion to such an argument. (ECF No. 27 at 15-16.) 13 Indeed, in his Reply, Plaintiff does not contend that the Commissioner misconstrued 14 his claim or failed to address it. Accordingly, it does not appear that Plaintiff intends 15 to challenge the ALJ’s overall credibility determination. Even assuming he does so 16 intend – and further assuming that his Memorandum adequately raises such a claim 17 – it lacks merit. 18 Where, as here, a claimant has presented evidence of an underlying impairment 19 that could reasonably be expected to produce pain or other symptoms, the ALJ must 20 “evaluate the intensity and persistence of [the] individual’s symptoms ... and 21 determine the extent to which [those] symptoms limit his ... ability to perform work- 22 related activities ....” SSR 16-3P, 2016 WL 1119029, at *4.6 Absent a finding that the 23 24 25 26 27 28 Social Security Ruling 16-3P, which became effective March 28, 2016 applies to this case. SSR 16-3P rescinded and superseded the Commissioner’s prior rulings as to how the Commissioner will evaluate a claimant’s statements regarding the intensity, persistence, and limiting effects of symptoms in disability claims. See SSR 16-3P, 2017 WL 5180304, at *1. The Ninth Circuit has found the changes in SSR 16-3P to be largely stylistic and held that SSR 16-3P is consistent in substance with Ninth Circuit precedent that existed before the effective date. Trevizo, 871 F.3d at 678 n.5. Accordingly, the Court relies upon Ninth Circuit authority governing the proper method for assessing a claimant’s credibility. 6 16 1 claimant is malingering, an ALJ must provide specific, clear and convincing reasons 2 before rejecting a claimant’s testimony about the severity of his symptoms. Trevizo, 3 871 F.3d at 678 (citing Garrison, 759 F.3d at 1014-1015). “General findings 4 [regarding a claimant’s credibility] are insufficient; rather, the ALJ must identify 5 what testimony is not credible and what evidence undermines the claimant’s 6 complaints.” Burrell v. Colvin, 775 F.3d 1133, 1138 (9th Cir. 2014) (quoting Lester 7 v. Chater, 81 F.3d 821, 834) (9th Cir. 1996)). The ALJ’s findings “must be 8 sufficiently specific to allow a reviewing court to conclude the adjudicator rejected 9 the claimant’s testimony on permissible grounds and did not arbitrarily discredit a 10 claimant’s testimony regarding pain.” Brown-Hunter v. Colvin, 806 F.3d 487, 493 11 (9th Cir. 2015) (quoting Bunnell v. Sullivan, 947 F.2d 345-346 (9th Cir. 1991) 12 (en banc)). 13 Factors an ALJ may consider when making such a determination include the 14 objective medical evidence, the claimant’s treatment history, the claimant’s daily 15 activities, unexplained failure to pursue or follow treatment, and inconsistencies in 16 testimony. See Ghanim, 763 F.3d at 1163; Molina v. Astrue, 674 F.3d 1104, 1112 17 (9th Cir. 2012). If the ALJ’s credibility finding is supported by substantial evidence 18 in the record, the Court may not engage in second-guessing. Thomas v. Barnhart, 278 19 F.3d 947, 958-959 (9th Cir. 2002). 20 Here, the ALJ provided several reasons for discounting Plaintiff’s subjective 21 complaints. For one, the ALJ noted that Plaintiff’s medical records documented 22 infrequent treatment for his neck condition. In particular, the ALJ noted that Plaintiff 23 had “gone anywhere from a year to a year and a half between visits” for his neck 24 impairment. (AR 21.) The ALJ further noted that Plaintiff’s medical history was 25 inconsistent with the alleged severity of his symptoms. In this regard, the ALJ noted 26 that Plaintiff’s MRI revealed mild to moderate findings and that those findings had 27 not changed from 2012 to 2015. In addition, the ALJ noted that the record did not 28 indicate that Plaintiff had ever required hospitalization or emergency room treatment 17 1 for his neck symptoms and that he received routine and conservative treatment 2 (physical therapy). (AR 21.) These are permissible reasons supporting an adverse 3 credibility finding. See Mojarro v. Berryhill, 746 F. App’x 672, 674 (9th Cir. 2018) 4 (ALJ identified clear and convincing reasons supported by substantial evidence for 5 discounting claimant’s testimony regarding the debilitating effects of his symptoms 6 where ALJ relied upon, among other things, gaps in claimant’s treatment); see also 7 Bray v. Comm’r of Soc. Sec. Admin., 554 F.3d 1219, 1227 (9th Cir. 2009); Orn, 495 8 F.3d 638; Burch v. Barnhart, 400 F.3d 676, 681 (9th Cir. 2005); Fair v. Bowen, 885 9 F.2d 597, 603 (9th Cir. 1989). 10 The ALJ also discussed Plaintiff’s daily activities. (See AR 20-21.) The Court 11 need not address whether this additional reason was valid because even assuming 12 that it was not, any error was harmless in light of the other legally sufficient reasons 13 for the ALJ’s determination. See Molina, 674 F.3d at 1115 (where one or more 14 reasons supporting ALJ’s credibility analysis are invalid, error is harmless if ALJ 15 provided other valid reasons supported by the record); Batson, 359 F.3d at 1197 (even 16 if the record did not support one of the ALJ’s stated reasons for disbelieving a 17 claimant’s testimony, the error was harmless where ALJ provided other valid bases 18 for credibility determination). *********** 19 20 For the foregoing reasons, IT IS ORDERED that Judgment be entered 21 affirming the decision of the Commissioner and dismissing this action with prejudice. 22 23 DATED: 3/4/2019 24 25 26 ____________________________________ ALEXANDER F. MacKINNON UNITED STATES MAGISTRATE JUDGE 27 28 18
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