Gloria Boulch v. Andrew Saul, No. 2:2019cv07817 - Document 21 (C.D. Cal. 2021)
Court Description: MEMORANDUM OPINION AND ORDER by Magistrate Judge Sheri Pym. IT IS THEREFORE ORDERED that Judgment shall be entered AFFIRMING the decision of the Commissioner denying benefits, and dismissing this action with prejudice. (es)
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Gloria Boulch v. Andrew Saul Doc. 21 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 GLORIA B., 12 13 14 15 16 17 ) ) Plaintiff, ) ) ) v. ) ) ANDREW M. SAUL, Commissioner of ) ) Social Security Administration, ) ) Defendant. ) ) Case No. CV 19-7817-SP MEMORANDUM OPINION AND ORDER 18 19 I. 20 INTRODUCTION 21 On September 10, 2019, plaintiff Gloria B. filed a complaint against 22 defendant, the Commissioner of the Social Security Administration 23 (“Commissioner”), seeking a review of a denial of a period of disability and 24 disability insurance benefits (“DIB”). The parties have fully briefed the matters in 25 dispute, and the court deems the matter suitable for adjudication without oral 26 argument. 27 Plaintiff presents two disputed issues for decision: (1) whether the 28 1 Dockets.Justia.com 1 Administrative Law Judge (“ALJ”) properly rejected the opinion of a treating 2 physician; and (2) whether the ALJ properly rejected plaintiff’s subjective 3 symptom testimony. Memorandum in Support of Plaintiff’s Complaint (“P. 4 Mem.”) at 2-8; see Memorandum in Support of Defendant’s Answer (“D. Mem.”) 5 at 3-13. 6 Having carefully studied the parties’ memoranda on the issues in dispute, the 7 Administrative Record (“AR”), and the decision of the ALJ, the court concludes 8 that, as detailed herein, the ALJ properly rejected the opinion of plaintiff’s treating 9 physician, and properly discounted plaintiff’s subjective symptom testimony. The 10 court therefore affirms the decision of the Commissioner denying benefits. 11 II. 12 FACTUAL AND PROCEDURAL BACKGROUND 13 Plaintiff was 62 years old on the alleged disability onset date. Id. at 55. She 14 has a sixth grade education from the Philippines, and has past relevant work as a 15 wire harness assembler, cafeteria food service worker, and printed circuit board 16 assembler. Id. at 37-38, 49. 17 On November 18, 2015, plaintiff filed an application for DIB, alleging an 18 onset date of January 7, 2015 due to cervical spine disorder, right and left shoulder 19 pain, right and left wrist pain, both hands and finger pain, arthritis, and carpal 20 tunnel in both hands and arms. Id. at 55-56. The Commissioner denied plaintiff’s 21 application initially and on reconsideration, after which she filed a request for a 22 hearing. Id. at 55-65, 68-81, 123. 23 On July 17, 2018, plaintiff, represented by counsel, appeared and testified at 24 a hearing before the ALJ. Id. at 18-20, 24-48, 50-51, 53. The ALJ also heard 25 testimony from Jacqueline Benson-DeJong, a vocational expert. Id. at 49-52. On 26 October 11, 2018, the ALJ denied plaintiff’s claim for benefits. Id. at 87-96. 27 Applying the well-known five-step sequential evaluation process, the ALJ 28 2 1 found, at step one, that plaintiff had not engaged in substantial gainful activity 2 between January 7, 2015, the alleged onset date, and March 31, 2018, the date last 3 insured. Id. at 89. 4 At step two, the ALJ found plaintiff suffered from the severe impairments of 5 spine disorders and carpal tunnel syndrome. Id. 6 At step three, the ALJ found plaintiff’s impairments, whether individually or 7 in combination, did not meet or medically equal one of the listed impairments set 8 forth in 20 C.F.R. part 404, Subpart P, Appendix 1. Id. The ALJ then assessed plaintiff’s residual functional capacity (“RFC”),1 and 9 10 determined that through the date last insured, plaintiff had the RFC to perform light 11 work with the limitations that she could: occasionally crawl and climb ladders, 12 ropes, and scaffolds; occasionally push and pull with bilateral upper extremities; 13 and frequently handle, finger, and feel bilaterally. Id. at 90. 14 The ALJ found, at step four, that through the date last insured, plaintiff was 15 able to perform her past relevant work as a cafeteria food service worker and 16 printer assembler both as she actually performed them and as generally performed. 17 Id. at 95. 18 Plaintiff filed a timely request for review of the ALJ’s decision, which was 19 denied by the Appeals Council. Id. at 102-07, 170-73. The ALJ’s decision stands 20 as the final decision of the Commissioner. 21 22 23 24 1 Residual functional capacity is what a claimant can do despite existing 25 exertional and nonexertional limitations. Cooper v. Sullivan, 880 F.2d 1152, 115526 56 n.5-7 (9th Cir. 1989). “Between steps three and four of the five-step evaluation, the ALJ must proceed to an intermediate step in which the ALJ assesses the 27 claimant’s residual functional capacity.” Massachi v. Astrue, 486 F.3d 1149, 1151 28 n.2 (9th Cir. 2007). 3 1 III. 2 STANDARD OF REVIEW 3 This court is empowered to review decisions by the Commissioner to deny 4 benefits. 42 U.S.C. § 405(g). The findings and decision of the Social Security 5 Administration must be upheld if they are free of legal error and supported by 6 substantial evidence. Mayes v. Massanari, 276 F.3d 453, 458-59 (9th Cir. 2001) 7 (as amended). But if the court determines the ALJ’s findings are based on legal 8 error or are not supported by substantial evidence in the record, the court may 9 reject the findings and set aside the decision to deny benefits. Aukland v. 10 Massanari, 257 F.3d 1033, 1035 (9th Cir. 2001); Tonapetyan v. Halter, 242 F.3d 11 1144, 1147 (9th Cir. 2001). 12 “Substantial evidence is more than a mere scintilla, but less than a 13 preponderance.” Aukland, 257 F.3d at 1035. Substantial evidence is such 14 “relevant evidence which a reasonable person might accept as adequate to support 15 a conclusion.” Reddick v. Chater, 157 F.3d 715, 720 (9th Cir. 1998); Mayes, 276 16 F.3d at 459. To determine whether substantial evidence supports the ALJ’s 17 finding, the reviewing court must review the administrative record as a whole, 18 “weighing both the evidence that supports and the evidence that detracts from the 19 ALJ’s conclusion.” Mayes, 276 F.3d at 459. The ALJ’s decision “‘cannot be 20 affirmed simply by isolating a specific quantum of supporting evidence.’” 21 Aukland, 257 F.3d at 1035 (quoting Sousa v. Callahan, 143 F.3d 1240, 1243 (9th 22 Cir. 1998)). If the evidence can reasonably support either affirming or reversing 23 the ALJ’s decision, the reviewing court “‘may not substitute its judgment for that 24 of the ALJ.’” Id. (quoting Matney v. Sullivan, 981 F.2d 1016, 1018 (9th Cir. 25 1992)). 26 27 28 4 1 IV. 2 DISCUSSION 3 A. The ALJ Properly Rejected Dr. Yung’s Opinion 4 Plaintiff argues the ALJ erred by rejecting the opinion of treating physician 5 Dr. Alarick Yung. P. Mem. at 2-6. Specifically, plaintiff argues the ALJ failed to 6 provide legally sufficient reasons for rejecting Dr. Yung’s opinion that plaintiff 7 was limited to lifting no more than five pounds. Id. 8 In determining whether a claimant has a medically determinable impairment, 9 among the evidence the ALJ considers is medical evidence. 20 C.F.R. 10 § 404.1527(b).2 In evaluating medical opinions, the regulations distinguish among 11 three types of physicians: (1) treating physicians; (2) examining physicians; and 12 (3) non-examining physicians. 20 C.F.R. § 404.1527(c), (e); Lester v. Chater, 81 13 F.3d 821, 830 (9th Cir. 1996) (as amended). “Generally, a treating physician’s 14 opinion carries more weight than an examining physician’s, and an examining 15 physician’s opinion carries more weight than a reviewing physician’s.” Holohan v. 16 Massanari, 246 F.3d 1195, 1202 (9th Cir. 2001); 20 C.F.R. § 404.1527(c)(1)-(2). 17 The opinion of the treating physician is generally given the greatest weight because 18 the treating physician is employed to cure and has a greater opportunity to 19 understand and observe a claimant. Smolen v. Chater, 80 F.3d 1273, 1285 (9th Cir. 20 1996); Magallanes v. Bowen, 881 F.2d 747, 751 (9th Cir. 1989). 21 Nevertheless, the ALJ is not bound by the opinion of the treating physician. 22 Smolen, 80 F.3d at 1285. If a treating physician’s opinion is uncontradicted, the 23 ALJ must provide clear and convincing reasons for giving it less weight. Lester, 24 81 F.3d at 830. If the treating physician’s opinion is contradicted by other 25 opinions, the ALJ must provide specific and legitimate reasons supported by 26 27 2 All citations to the Code of Federal Regulations refer to regulations 28 applicable to claims filed before March 27, 2017. 5 1 substantial evidence for rejecting it. Id. Likewise, the ALJ must provide specific 2 and legitimate reasons supported by substantial evidence for rejecting the 3 contradicted opinions of examining physicians. Id. at 830-31. The opinion of a 4 non-examining physician, standing alone, cannot constitute substantial evidence. 5 Widmark v. Barnhart, 454 F.3d 1063, 1066 n.2 (9th Cir. 2006); Morgan v. 6 Comm’r, 169 F.3d 595, 602 (9th cir. 1999); see also Erickson v. Shalala, 9 F.3d 7 813, 818 n.7 (9th Cir. 1993). 8 1. 9 On January 12, 2015, Dr. Gregg Kasting initially treated plaintiff for a work- Dr. Gregg Kasting 10 related repetitive use injury to her hands, neck, and shoulders as part of her 11 workers’ compensation claim. AR at 435-39, 440-44. On that same day, bilateral 12 hand x-rays were performed on plaintiff, which revealed normal findings. See id. 13 at 309-10. Thereafter, Dr. Kasting diagnosed plaintiff with carpal tunnel syndrome 14 and should sprain/strain. Id. at 438. Dr. Kasting reported that there was no light 15 duty work available, and that he will place her off work after discussing with her 16 employer. Id. at 443. Shortly thereafter, on January 14, 2015, Physician’s 17 Assistant Allan Traylor reported that plaintiff was “currently on modified duty,” 18 and that “light duty [was] being accommodated.” Id. at 453. In a follow-up visit 19 on April 20, 2015, Traylor again reported that light duty was being accommodated, 20 and that plaintiff “will continue with modified work duties as directed.” Id. at 537, 21 540. 22 2. 23 On May 11, 2015, Dr. Alarick Yung, a hand surgeon, performed an initial Dr. Alarick Yung 24 hand surgical evaluation of plaintiff. Id. at 314-25. Upon examination, Dr. Yung 25 found that plaintiff has slight hyperextension of the left middle finger at the DIP 26 joint along with some ulnar deviation, but no swelling or erythema. Id. at 319. Dr. 27 Yung also found plaintiff has intact sensibility to both hands, and no other 28 6 1 deformity, including no atrophy, no triggering, intact sensibility, negative Tinel’s 2 sign to both carpal tunnels, and negative Durkan’s sign to both wrists. Id. Dr. 3 Yung diagnosed plaintiff with bilateral carpal tunnel syndrome, right shoulder 4 pain, and bilateral hand arthritis. Id. at 320. Plaintiff received a steroid injection to 5 the left carpal tunnel. Id. Dr. Yung opined that plaintiff could perform modified 6 duty with both hands, but “no heavy or repetitive gripping,” and “no lifting, 7 pulling, or pushing more than 5 pounds.” Id. 8 On June 8, 2015, Dr. Yung examined plaintiff and reported the following 9 observations: there was no swelling to either hand; there was a Boutonniere-type 10 deformity to her left little finger with hyperextension at the DIP joint as well as 11 some radial deviation, but she can make a full fist with both hands; there was intact 12 sensibility in both hands; negative Tinel’s sign at the carpal tunnel; negative 13 Durkan’s sign at both wrists; no triggering; and her right hand had a normal 14 appearance. Id. at 583. Dr. Yung also noted that plaintiff “flatly refuses any sort 15 of carpal tunnel release surgery,” because many people she has known who have 16 had them have not done well. Id. at 582. Dr. Yung opined that plaintiff is “likely 17 to be a qualified injured worker” with “permanent prophylactic work restrictions,” 18 and has the same work restrictions as indicated on her previous visit. See id. at 19 584. 20 In a permanent and stationary report dated July 20, 2015, Dr. Yung declared 21 that plaintiff is permanent and stationary with regard to her bilateral carpal tunnel 22 syndrome, because she “flatly refuse[d] any carpal tunnel release surgery.” Id. at 23 767. Dr. Yung again opined that plaintiff has “[p]ermanent prophylactic work 24 restrictions with bilateral upper extremities,” and restricted her to “[n]o lifting, 25 pulling, pushing more than 5 pounds,” and “[n]o heavy or repetitive gripping.” Id. 26 at 768. 27 28 7 1 3. 2 On July 2, 2015, Dr. Andrzej Bulczynski, an orthopedic surgeon, conducted Dr. Andrzej Bulczynski and Dr. Nouriel Niamehr 3 an initial orthopedic evaluation of plaintiff’s shoulder pain at the request of Dr. 4 Yung. Id. at 332-47, 600-610. Dr. Bulczynski noted there is no asymmetry, 5 deformity, or misalignment in plaintiff’s right shoulder, no soft tissue swelling, and 6 that her muscle tone was within normal limits. Id. at 339. Dr. Bulczynski also 7 reported that the diagnostic testing of plaintiff’s bilateral upper extremities in 8 March 2015 by Dr. Frank Lin revealed very mild bilateral carpal tunnel syndrome. 9 Id. at 342. Dr. Bulczynski diagnosed plaintiff with right sided radiculitis and right 10 shoulder impingement, and recommended an MRI of the right shoulder and 11 physical therapy twice a week for three weeks. Id. 12 In a subsequent progress report on July 30, 2015, Dr. Bulczynski noted that 13 plaintiff reported minimal right shoulder pain, and 6/10 pain in the right side of her 14 neck. Id. at 350, 631. Upon examination of plaintiff’s cervical spine, Dr. 15 Bulczynski reported plaintiff’s posture was normal, her muscle tone was within 16 normal limits without atrophy, and no soft tissue swelling was indicated, except for 17 mild tenderness over the trapezius muscle. Id. at 351, 632. Additionally, 18 plaintiff’s cervical spine motions were accomplished without any complaints of 19 pain during the maneuvers, there was no evidence of radiating pain to the upper 20 extremities on cervical motion, and neurological function of the bilateral upper 21 extremities was intact. Id. at 351-52, 632-33. Based on an MRI of plaintiff’s right 22 shoulder, Dr. Bulczynski diagnosed plaintiff with right-sided radiculitis, right 23 shoulder impingement, low-grade bursal sided supraspinatus/infraspinatus tear, and 24 subacromial bursitis. Id. at 355, 636. Dr. Bulczynski’s August and October 2015 25 examinations revealed similar findings. Id. at 650-53, 658-60. 26 In June and August 2015, Dr. Nouriel Niamehr, physical medicine and 27 rehabilitation specialist, repeatedly noted that plaintiff’s hand pain, weakness, and 28 8 1 numbness were most likely cervical, and were not caused by her “very mild carpal 2 tunnel syndrome.” Id. at 360, 364, 665, 688. Dr. Niamehr also diagnosed plaintiff 3 with “boutonniere deformity of the left third digit [and] mild degenerative changes 4 in the right shoulder which could not be causing the severity of her current 5 symptoms.” Id. Dr. Niamehr further noted that plaintiff’s symptoms are most 6 consistent with nerve root irritation from the cervical spine, and diagnostic studies 7 of the shoulder and hand failed to show the cause of her level of severity of 8 symptoms. Id. at 361. Dr. Niamehr indicated in her treatment plan that plaintiff 9 should continue using Voltaren gel, and requested another cervical MRI. Id. In 10 October 2015, Dr. Niamehr reported the same diagnoses, and indicated that 11 plaintiff was in no acute distress. Id. at 665. 12 In a subsequent progress report in June 2016, Dr. Niamehr reported that 13 plaintiff had decreased sensation in bilateral hands and received a positive Spurling 14 result, but her diagnoses remained largely the same as reported in her previous 15 examinations. Id. at 688. Dr. Niamehr again referred plaintiff for a cervical MRI, 16 and recommended that plaintiff continue using Voltaren gel, Tylenol, and 17 Cyclobenzaprine. Id. In July 2016, Dr. Niamehr reported that plaintiff complained 18 of “neck pain radiating down the arms and pain in the hand and bilateral trapezius 19 pain,” and diagnosed plaintiff with cervical radiculopathy, cervical stenosis, and 20 cervical facet arthropathy with hand pain, weakness, and numbness secondary 21 thereto based on a cervical MRI. Id. at 1171-72, 1186-87. Dr. Niamehr also 22 reported plaintiff’s previous diagnoses, including her very mild carpal tunnel 23 syndrome, boutonniere deformity of left third digit, and mild degenerative changes 24 in the right shoulder. Id. at 1187. Plaintiff was advised to continue taking her 25 previous medications, and was referred to physical therapy. Id. at 1188. 26 27 28 9 1 4. 2 Dr. L. Kiger and Dr. F. Greene, state agency physicians, reviewed plaintiff’s The State Agency Physicians 3 medical records as of March and October 2016 respectively. See id. at 55-66, 684 82. Based on a review of the records, both state agency physicians diagnosed 5 plaintiff with spine disorder and carpal tunnel syndrome. Id. at 61, 75. The state 6 agency physicians opined that plaintiff had the RFC to: lift and carry 10 pounds 7 frequently and 20 pounds occasionally; stand and walk for about six hours in an 8 eight-hour workday; sit for about six hours in an eight-hour workday; frequently 9 push and/or pull; frequently perform overhead reaching, handling, fingering, and 10 feeling with the bilateral upper extremities; and occasionally crawl and climb 11 ladders, ropes, and scaffolds. Id. at 62-63, 77-78. 12 5. 13 The ALJ determined that plaintiff had the RFC to perform light work with The ALJ’s Findings 14 the limitations that she could: occasionally crawl and climb ladders, ropes, and 15 scaffolds; occasionally push and pull with the bilateral upper extremities; and 16 frequently handle, finger, and feel bilaterally. Id. at 90. Light work as defined in 17 20 C.F.R. § 404.1567(b) involves lifting no more than 20 pounds at a time with 18 frequent lifting or carrying of objects weighing up to 10 pounds. 19 In reaching his RFC determination, the ALJ gave significant weight to the 20 opinions of the state agency physicians, finding that their opinions were consistent 21 with the objective medical evidence and plaintiff’s statements regarding her 22 activities. Id. at 95. The ALJ also found that the findings of Dr. Niamehr and Dr. 23 Bulczynski were consistent with the ALJ’s RFC determination and based on 24 objective evidence. Id. The ALJ gave no weight to the opinion of Dr. Yung 25 limiting plaintiff to lifting, pulling, and pushing no more than five pounds, on the 26 bases that his opinion was: inconsistent with the findings of other treating sources; 27 inconsistent with Dr. Yung’s own clinical findings of plaintiff’s bilateral ability to 28 10 1 make a fist, intact sensation, and negative Tinel’s and Durkan’s signs; and 2 inconsistent with plaintiff’s conservative treatment. Id. 3 To reject a treating physician’s opinion that is contradicted by other 4 opinions, the ALJ must provide specific and legitimate reasons supported by 5 substantial evidence for rejecting it. Lester, 81 F. 3d at 830. Here, Dr. Yung’s 6 opinion that plaintiff is limited to “lifting, pulling, and pushing no more than five 7 pounds” is contradicted by the opinions of state agency physicians Dr. Kiger and 8 Dr. Greene, who opined that plaintiff had the RFC to lift and carry 10 pounds 9 frequently and 20 pounds occasionally. Compare AR at 320, 768 with 62-63, 7710 78. Thus, the ALJ was required to provide specific and legitimate reasons 11 supported by substantial evidence for rejecting Dr. Yung’s opinion. 12 The ALJ’s first reason for rejecting Dr. Yung’s opinion limiting plaintiff to 13 lifting, pulling, and pushing no more than five pounds – that it was inconsistent 14 with the findings of other treating sources – was not supported by substantial 15 evidence. Id. at 95. Although the ALJ found that the opinions of Dr. Niamehr and 16 Dr. Bulczynski were consistent with the ALJ’s RFC determination, their findings 17 do not appear to conflict with Dr. Yung’s opinion. See id. at 95. Specifically, 18 while the ALJ pointed out that Dr. Niamehr repeatedly noted plaintiff’s bilateral 19 hand pain, weakness, and numbness were not caused by her “very mild bilateral 20 carpal tunnel syndrome,” Dr. Niamehr indicated that her symptoms were likely 21 cervical, and diagnosed plaintiff with cervical radiculopathy based on a cervical 22 MRI of plaintiff. See id. at 360, 364, 665, 688, 1171-72, 1187. Dr. Niamehr also 23 did not provide any work limitations for plaintiff on the basis that “she [was] 24 retired since she was terminated from work.” Id. at 688, 1188. Further, while Dr. 25 Bulczynski’s examination of plaintiff’s cervical spine revealed largely normal 26 findings, he ultimately diagnosed plaintiff with right-sided radiculitis, right 27 shoulder impairment, low-grade bursal sided supraspinatus, infraspinatus tear, and 28 11 1 subacromial bursitis based on an MRI of plaintiff’s right shoulder. See id. at 636. 2 Dr. Bulczynski likewise did not provide any work limitations for plaintiff, and 3 instead deferred to Dr. Yung’s opinion regarding plaintiff’s work status. See id. 4 As such, the ALJ’s first reason for discounting Dr. Yung’s opinion was not a 5 specific and legitimate reason supported by substantial evidence since there are no 6 apparent inconsistencies between Dr. Yung’s opinion and the findings of Drs. 7 Niamehr and Bulczynski. 8 But the ALJ properly discounted Dr. Yung’s opinion on the basis that it was 9 inconsistent with his own clinical findings of plaintiff’s bilateral ability to make a 10 fist, intact sensation, and negative Tinel’s and Durkan’s signs. See id. at 95; 11 Tommasetti v. Astrue, 533 F.3d 1035, 1041 (9th Cir. 2008) (finding the ALJ 12 properly discredited a treating physician’s opinion where it was incongruent to the 13 physician’s medical records); Batson v. Comm’r, 359 F.3d 1190, 1195 (9th Cir. 14 2004) (holding that an ALJ may discredit physicians’ opinions that are 15 “unsupported by the record as a whole . . . or by objective medical findings”). 16 Plaintiff argues that Dr. Yung’s opinion is supported by his other findings of hand 17 arthritis and shoulder impairment. See P. Mem. at 6. But on examination, Dr. 18 Yung observed that plaintiff was able to make a full fist with both hands without 19 any evidence of triggering or atrophy, and both her wrists were stable, not swollen, 20 and nontender. AR at 766. Plaintiff’s forearms and elbows were also normal. Id. 21 Further, Dr. Yung did not examine plaintiff’s shoulders, and declined to make any 22 treatment plans for plaintiff’s alleged right shoulder pain, because that was “not a 23 body part [he] treat[s],” and instead, referred her to an orthopedist. See id. at 836. 24 Thus, the inconsistencies between Dr. Yung’s opinion regarding plaintiff’s upper 25 extremity limitations and his clinical findings is a specific and legitimate reason 26 supported by substantial evidence for discounting his opinion. 27 The ALJ additionally rejected Dr. Yung’s opinion because conservative 28 12 1 treatment was prescribed, and no surgery was performed. Id. at 95. As the ALJ 2 correctly noted, Dr. Yung reported that plaintiff was “declared permanent and 3 stationary with regard to her bilateral carpal tunnel syndrome” because she “flatly 4 refuse[d] any carpal tunnel release surgery.” See id. at 91, 767. For this reason, 5 Dr. Yung only prescribed plaintiff with a refill for Voltaren gel (nonsteroidal anti6 inflammatory drug), Flexeril (muscle relaxant), and extra strength Tylenol for her 7 symptoms. Id. at 767. The conservative treatment prescribed to plaintiff was 8 inconsistent with Dr. Yung’s significant upper extremity limitations, which 9 amounts to another specific and legitimate reason supported by substantial 10 evidence to discount Dr. Yung’s opinion. See Rollins v. Massanari, 261 F.3d 853, 11 856 (9th Cir. 2001) (finding the ALJ provided an adequate reason for rejecting the 12 treating physician’s opinion where the physician prescribed a conservative course 13 of treatment that was inconsistent with a finding of disability). 14 Plaintiff argues that surgery was not medically necessary and she was 15 concerned that she would not be able to bend her right middle finger as a result of 16 the surgery, and thus her failure to pursue that option is not a sufficient reason to 17 discount Dr. Yung’s opinion. See P. Mem. at 6; AR at 409-10. But plaintiff’s 18 argument that surgery was not medically necessary further supports the ALJ’s 19 finding that conservative treatment was sufficient to address plaintiff’s concerns, 20 and that such treatment is inconsistent with Dr. Yung’s upper extremity limitations. 21 Plaintiff also argues that she continued to treat with Dr. Niamehr, who requested an 22 MRI of her cervical spine and recommended no other treatment. See P. Mem. at 6. 23 But an MRI is simply a diagnostic technique, and does not qualify as any particular 24 kind of treatment. Further, contrary to plaintiff’s assertion, Dr. Niamehr 25 recommended other conservative treatment even after reviewing plaintiff’s cervical 26 MRI. For example, Dr. Niamehr recommended that plaintiff continue using 27 Voltaren gel, Tylenol, and Cyclobenzaprine (muscle relaxant), and referred her to 28 13 1 physical therapy. See AR at 1188. The fact that Dr. Niamehr also prescribed 2 conservative treatment likewise supports the ALJ’s finding that plaintiff’s 3 treatment was inconsistent with Dr. Yung’s opinion regarding plaintiff’s bilateral 4 upper extremity limitations. 5 Accordingly, while the ALJ’s first reason for discounting Dr. Yung’s 6 opinion was not supported by substantial evidence, the ALJ provided other specific 7 and legitimate reasons supported by substantial evidence for discounting Dr. 8 Yung’s opinion. 9 B. The ALJ Provided Clear and Convincing Reasons for Discounting 10 Plaintiff’s Testimony 11 Plaintiff also argues the ALJ failed to provide clear and convincing reasons 12 to discount plaintiff’s subjective symptom testimony. See P. Mem. at 6-8. 13 The ALJ must make specific credibility findings, supported by the record. 14 Social Security Ruling (“SSR”) 96-7p. To determine whether testimony 15 concerning symptoms is credible, the ALJ engages in a two-step analysis. 16 Lingenfelter v. Astrue, 504 F.3d 1028, 1035-36 (9th Cir. 2007). First, the ALJ 17 must determine whether a claimant produced objective medical evidence of an 18 underlying impairment “‘which could reasonably be expected to produce the pain 19 or other symptoms alleged.’” Id. at 1036 (quoting Bunnell v. Sullivan, 947 F.2d 20 341, 344 (9th Cir. 1991) (en banc)). Second, if there is no evidence of 21 malingering, an “ALJ can reject the claimant’s testimony about the severity of her 22 symptoms only by offering specific, clear and convincing reasons for doing so.” 23 Smolen, 80 F.3d at 1281; Benton v. Barnhart, 331 F.3d 1030, 1040 (9th Cir. 2003). 24 The ALJ may consider several factors in weighing a claimant’s testimony, 25 including: (1) ordinary techniques of credibility evaluation such as a claimant’s 26 reputation for lying; (2) the failure to seek treatment or follow a prescribed course 27 of treatment; and (3) a claimant’s daily activities. Tommasetti, 533 F.3d at 1039; 28 14 1 Bunnell, 947 F.2d at 346-47. 2 At the first step, the ALJ here found that plaintiff’s medically determinable 3 impairments could reasonably be expected to cause the symptoms alleged. AR at 4 94. At the second step, because the ALJ did not find any evidence of malingering, 5 the ALJ was required to provide clear and convincing reasons for discounting 6 plaintiff’s testimony. The ALJ discounted plaintiff’s testimony because plaintiff’s 7 statements about the intensity, persistence, and limiting effects of her symptoms 8 were not entirely consistent with the medical evidence and other evidence in the 9 record. Id. In particular, the ALJ discounted plaintiff’s subjective testimony, 10 because: (1) evidence from medical and non-medical sources, including plaintiff’s 11 own statements to medical providers, contradict plaintiff’s claimed symptoms; (2) 12 she performed activities of daily living consistent with the determined RFC and 13 inconsistent with her testimony; (3) her medical visits occurred at intervals 14 inconsistent with the urgency of treatment that would be anticipated if her 15 limitations were as severe as alleged; (4) she did not comply with her medical 16 treatment recommendations, and declined carpal tunnel releases; and (5) she was 17 able to return to work after her alleged disability onset date in January 2015. See 18 id. 19 The ALJ’s first reason for discounting plaintiff’s testimony was that it was 20 not entirely consistent with the objective medical evidence. Id. Specifically, the 21 ALJ indicated that plaintiff was consistently noted by all treating sources to be 22 “fully oriented” and in “no acute distress” despite her subjective symptoms of 23 bilateral hand pain, weakness, and numbness, which Dr. Niahmehr indicated was 24 not related to her very mild bilateral carpal tunnel syndrome. See id. at 94, 319, 25 337, 350, 360, 583, 665, 766, 1187. The ALJ also noted that the EMG and nerve 26 conduction study of plaintiff’s bilateral upper extremities assessed by Dr. Lin in 27 March 2015 revealed very mild bilateral carpal tunnel syndrome, and the hand x28 15 1 rays in June 2015 were negative. Id. at 309, 342, 376. As such, the ALJ here 2 properly considered the inconsistency between plaintiff’s testimony and the 3 objective medical evidence in conjunction with other factors in rejecting her 4 testimony. See Burch v. Barnhart, 400 F.3d 676, 681 (9th Cir. 2005) (lack of 5 objective medical evidence is a factor the ALJ can consider in credibility analysis). 6 The ALJ’s second reason for rejecting plaintiff’s testimony was that her 7 activities of daily living were inconsistent with the alleged severity of her 8 symptoms. See id. at 94. The ALJ noted that plaintiff reported she was able to 9 cook, perform light housekeeping, do laundry, socialize, drive an SUV, travel, and 10 handle finances, and that such activities were consistent with his RFC 11 determination. Id. The ALJ also noted that plaintiff went outside daily, shopped 12 for groceries and clothing in stores two times per week for two hours, regularly 13 attended church and family gatherings, and she had a fair ability to handle stress 14 and changes in routine. Id. at 93-94. The ALJ reasonably considered plaintiff’s 15 ability to perform daily activities in finding that plaintiff’s subjective testimony 16 was inconsistent with the alleged severity of her symptoms. See Stubbs-Danielson 17 v. Astrue, 539 F.3d 1169, 1175 (9th Cir. 2008) (ALJ properly rejected plaintiff’s 18 testimony where the record reflected that plaintiff engaged in normal activities of 19 daily living, including cooking, house cleaning, doing laundry, and helping her 20 husband in managing finances). 21 The ALJ also properly explained that plaintiff’s “[m]edical visits occurred at 22 intervals inconsistent with the urgency of treatment that would be anticipated if 23 limitations were as severe as alleged, with a large gap in treatment by specialists 24 from 2016 to present.” See AR at 94; SSR 96-7p (“the [plaintiff]’s statements may 25 be less credible if the level or frequency of treatment is inconsistent with the level 26 of complaints”). In 2015, plaintiff saw various physicians related to her workers’ 27 compensation claim. See AR 90-92. But as the ALJ noted, from 2016 on, 28 16 1 plaintiff’s treatment records do not indicate that she received any consistent 2 treatment with any treating physician. See id. at 92-93. Plaintiff saw Dr. Niamehr 3 in June and July 2016, who referred her to physical therapy for three weeks and 4 asked her to follow up in one to two months or as needed, but nothing in the record 5 suggests that plaintiff actually followed up with Dr. Niamehr or participated in 6 physical therapy. See id. at 688, 1188-89. Additionally, although Chiropractor 7 Nicole Lopez, D.C., issued a letter on May 24, 2018 stating she had treated 8 plaintiff since January 2015 and that plaintiff is completely disabled, Lopez does 9 not qualify as an acceptable medical source, and she did not provide any treatment 10 notes supporting her treatment history. See id. at 93, 1147-48; 20 C.F.R. 11 § 404.1513(d)(1) (chiropractors are not acceptable medical sources). The record 12 also contains some treatment notes from 2016 and 2017, but they document 13 treatment for isolated symptoms unrelated to her severe impairments. See AR at 14 1402-46. As such, the ALJ properly found that the level or frequency of plaintiff’s 15 treatment was inconsistent with the alleged severity of her symptoms. See Hill v. 16 Comm’r of Soc. Sec. Admin., 289 F. App’x 217, 219 (9th Cir. 2008) (finding the 17 ALJ reasonably discounted plaintiff’s testimony where he noted that the number 18 and frequency of doctor visits were inconsistent with the alleged severity of 19 claimant’s impairments, among other reasons). 20 In addition, the ALJ noted that plaintiff failed to comply with her treatment 21 recommendations as a reason for discounting her testimony. AR at 94. As 22 discussed above, Dr. Yung reported that plaintiff was “declared permanent and 23 stationary with regard to her carpal tunnel syndrome” because she “flatly refuse[d] 24 any carpal tunnel release surgery.” Id. at 767. Although it was later determined 25 that the carpal tunnel release surgery was not medically necessary, Dr. Yung 26 recommended the surgery to relieve the pain in plaintiff’s bilateral upper 27 extremities despite having reviewed the EMG and nerve conduction study, which 28 17 1 demonstrated very mild bilateral carpal tunnel syndrome. See id. at 767. 2 Plaintiff’s non-compliance with Dr. Yung’s treatment recommendation was a clear 3 and convincing reason to discount her testimony. See Chaudhry v. Astrue, 688 4 F.3d 661, 672 (9th Cir. 2012) (“[I]f a claimant complains about disabling pain but 5 fails to seek treatment, or fails to follow prescribed treatment, for the pain, an ALJ 6 may use such failure as a basis for finding the complaint unjustified or exaggerated 7 . . . .”) (citation omitted). 8 Moreover, the ALJ further noted that the record indicates that plaintiff was 9 working on modified duties in 2015 despite her allegation that she became disabled 10 on January 7, 2015. See AR at 94. Plaintiff argues the ALJ misinterpreted the 11 record in finding that plaintiff continued to work after her alleged disability onset 12 date. See P. Mem. at 8. Specifically, plaintiff asserts that on January 12, 2015, Dr. 13 Kasting indicated there was no light duty work available for plaintiff, and that he 14 would place her off work after discussing with her employer. See id. (citing AR at 15 443). The record is unclear as to whether Dr. Kasting actually placed plaintiff off 16 of work. But as the ALJ pointed out, on January 14, 2015, Physician’s Assistant 17 Allan Traylor reported that plaintiff was “currently on modified duty” and that 18 “[l]ight duty [was] being accommodated.” AR at 94, 453. Subsequently, on April 19 20, 2015, Traylor again reported that light duty was being accommodated (see id. 20 at 537), and that plaintiff “will continue with modified work duties as directed.” 21 Id. at 540. It was thus reasonable for the ALJ to consider Traylor’s reports given 22 that they were issued after Dr. Kasting’s report and consistently documented that 23 plaintiff was on modified light duty in January and April 2015. As such, the ALJ 24 reasonably determined that plaintiff’s ability to continue working after her alleged 25 disability onset date was inconsistent with her subjective testimony. See Huizar v. 26 Comm’r of Soc. Sec., 428 F. App’x 678, 680 (9th Cir. 2011) (ALJ reasonably 27 found that claimant’s “ability to continue working was inconsistent with her 28 18 1 testimony about the severity of her impairments”), citing 20 C.F.R. § 404.1571 2 (“Even if the work you have done was not substantial gainful activity, it may show 3 that you are able to do more work than you actually did”). 4 In sum, the inconsistencies between plaintiff’s testimony and the objective 5 evidence, in conjunction with her ability to perform various daily activities, her 6 inconsistent treatment and non-compliance with medical recommendations, and her 7 ability to continue working after her alleged disability onset date amount to clear 8 and convincing reasons to reject her subjective testimony 9 V. 10 CONCLUSION 11 IT IS THEREFORE ORDERED that Judgment shall be entered 12 AFFIRMING the decision of the Commissioner denying benefits, and dismissing 13 this action with prejudice. 14 15 DATED: March 23, 2021 16 SHERI PYM United States Magistrate Judge 17 18 19 20 21 22 23 24 25 26 27 28 19
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