Douglas Barron v. Michael J Astrue, No. 5:2010cv00042 - Document 17 (C.D. Cal. 2010)
Court Description: MEMORANDUM DECISION AND ORDER by Magistrate Judge Suzanne H. Segal: IT IS ORDERED that judgment be entered AFFIRMING the decision of the Commissioner and dismissing this action with prejudice. (dhl)
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Douglas Barron v. Michael J Astrue Doc. 17 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 12 13 14 15 16 DOUGLAS BARRON, ) ) Plaintiff, ) ) v. ) ) MICHAEL J. ASTRUE, ) Commissioner of the Social ) Security Administration, ) ) Defendant. ) _______________________________) NO. EDCV 10-00042 SS MEMORANDUM DECISION AND ORDER 17 18 I. 19 INTRODUCTION 20 21 Douglas Barron (“Plaintiff”) brings this action seeking to overturn 22 the decision of the Commissioner of the Social Security Administration 23 (hereinafter the “Commissioner” or the “Agency”) denying his application 24 for Disability Insurance Benefits (“DIB”) and Supplemental Security 25 Income (“SSI”). 26 the jurisdiction of the undersigned United States Magistrate Judge. For 27 the reasons stated below, the decision of the Commissioner is AFFIRMED. The parties consented, pursuant to 28 U.S.C. § 636, to 28 II. Dockets.Justia.com PROCEDURAL HISTORY 1 2 3 Plaintiff filed an application for DIB and SSI on July 17, 2007. 4 (Administrative Record (“AR”) at 12). He alleged a disability onset 5 date of June 17, 2003 due to lumbar sadiculopathy. (AR 60). The Agency 6 initially denied Plaintiff’s claim for DIB and SSI on September 3, 2007. 7 (AR 28). 8 February 9 conducted a hearing to review Plaintiff’s claim. This denial was upheld upon reconsideration. 27, 2009, Administrative Law Judge (AR 21). (AR 34). (“ALJ”) Jesse (AR 203). On Pease The ALJ 10 denied benefits on August 11, 2009. 11 of the ALJ’s decision before the Appeals Council, which denied his 12 request on December 2, 2009. 13 became the final decision of the Commissioner. 14 commenced the instant action on January 8, 2010. (AR 4). Plaintiff sought review Therefore, the ALJ’s decision (Id.). Plaintiff 15 16 III. 17 FACTUAL BACKGROUND 18 19 Plaintiff was born on March 11, 1960. (AR 55). He received a GED 20 in 1980 and had no formal or vocational job training. (AR 65). He 21 worked as a warehouse worker from January 1985 until June 17, 2003. (AR 22 61). 23 24 A. Plaintiff’s Medical History 25 26 Plaintiff’s alleged injury began in 2001 while working in a 27 warehouse. (See AR 60, 208). Plaintiff alleged “constant pain and 28 discomfort in [his] lower back.” (AR 67). 2 As the alleged injury 1 developed, Plaintiff “missed time from work.” (AR 60). In September 2 of 2003, Plaintiff sought medical treatment from Dr. Morris Platt. 3 117-18). 4 treatment from Dr. John Prekezes beginning in February of 2003. 5 118). Dr. Prekezes diagnosed Plaintiff with disc prolapse and arthritis 6 and placed Plaintiff on temporary total disability. 7 Prekezes treated Plaintiff with physical therapy and Darvocet. (AR 91). (AR In his report, Dr. Platt indicated Plaintiff received medical (AR 91, 118). (AR Dr. 8 9 Dr. Platt ordered an EMG examination of Plaintiff which yielded 10 normal results. (AR 119). Dr. Platt noted that Plaintiff continued 11 with physical therapy and experienced positive results. 12 this time, Dr. Platt referred Plaintiff to Dr. Dikran Torian, a pain 13 management specialist. 14 degenerative disc disease, lumbar disk bulges, and lumbar radiculopathy. 15 (Id.). 16 separate epidural steroid injections. (AR 120). Despite some temporary 17 relief, Plaintiff reported persistent pain following the injections. 18 (AR 100, 120). 19 Tantuwaya, a neurosurgeon, who found that Plaintiff did not require 20 surgery. 21 disability which precluded heavy work. 22 Platt found Plaintiff had lost fifty percent of his pre-injury capacity 23 to perform the work required of a warehouse manager. 24 result, Plaintiff qualified for workers’ compensation benefits. 25 AR 146). (AR 114). (Id.). During Dr. Torian diagnosed Plaintiff with Dr. Platt reported that Dr. Torian treated Plaintiff with two Dr. Platt then referred Plaintiff to Dr. Lokesh (AR 120). Ultimately, Dr. Platt found that Plaintiff had a (AR 122). Specifically, Dr. (Id.). As a (See 26 27 In December 28 Evaluation.” of 2004, (AR 158). Plaintiff underwent an “Agreed Medical Dr. V. Parabhu Dhalla performed the evaluation 3 1 and confirmed Dr. Platt’s opinion that Plaintiff could not perform tasks 2 required by his warehouse position. 3 Dr. Dhalla and Dr. Platt’s reports in his initial application and 4 subsequent requests for SSI and DBI benefits. (See AR 163). Plaintiff relied on (AR 28, 33, 38). 5 6 In September of 2008, Plaintiff sought medical treatment from Dr. 7 Robert Robbins. (AR 191). Dr. Robbins diagnosed Plaintiff with a back 8 injury and depression. 9 Plaintiff’s first appointment, Dr. Robbins assessed Plaintiff’s physical He prescribed Welbutrin and Paxil. (AR 183-184). (Id.). At 10 condition. Dr. Robbins found that Plaintiff was unable 11 to stand, walk, or sit for more than two hours in an eight-hour workday. 12 (AR 183). 13 concerning his ability to use his hands or feet for repetitive motions. 14 (Id.). 15 more than ten pounds, 16 crawl. (AR 184). However, Dr. Robbins also found Plaintiff was capable 17 of frequent reaching from waist to chest, chest to shoulders and above 18 the shoulders. 19 medications would not interfere with his ability to work. Dr. Robbins found that Plaintiff had no restrictions Further, Dr. Robbins restricted Plaintiff’s ability to lift (Id.). as well as climb, stoop, kneel, crouch, and Dr. Robbins found that Plaintiff’s treatment or (Id.). 20 21 B. Consultative Examinations 22 23 On August 24, 2007, Dr. Zaven Bilezikjian, (AR 171). an orthopaedic 24 specialist, examined Plaintiff. Dr. Bilezikjian found 25 Plaintiff possessed medium exertional capabilities. 26 Specifically, Dr. Bilezikjian found Plaintiff able to walk, stand, sit, 27 climb ladders, kneel and stoop frequently and without restriction. 28 (Id.). (See AR 171). Dr. Bilezikjian reported Plaintiff did not “appear to be in 4 1 acute or chronic distress” and observed Plaintiff “mov[ing] around the 2 exam room with a fair amount of ease.” 3 Bilezikjian reported Plaintiff was able to rise onto his toes and heels 4 without difficulty. 5 had a normal range of motion that lacked evidence of a discernable 6 limitation on Plaintiff’s flexibility. (Id.). (AR 170). Further, Dr. Also, Dr. Bilezikjian reported Plaintiff (Id.). 7 8 9 Dr. Robin Campbell performed Plaintiff’s complete psychological evaluation on April 16, 2009. (AR 192). Dr. Campbell reported that 10 though Plaintiff appeared sad and depressed at times, he had a pleasant 11 manner and good hygiene. 12 took Welbutrin, Abilify, and Peroxetine to treat his depression and 13 admitted improvement with the medication. (AR 193). Dr. Campbell noted 14 Plaintiff had never been psychiatrically hospitalized, had never been 15 in mental health treatment, and did not see a psychiatrist or therapist. 16 (Id.). (AR 194). Dr. Campbell reported Plaintiff 17 18 Dr. Campbell found Plaintiff had linear thought processes, was 19 alert and oriented to time, and had concentration that was “adequate for 20 conversation and time-limited assessment tasks.” (AR 194-95). Further, 21 Dr. 22 delusions, obsessions, or compulsions nor did Plaintiff 23 paranoia or memory impairment. 24 Plaintiff’s judgment and insight were adequate and he “did not present 25 with 26 “[Plaintiff] is able to do household chores, run errands, shop, drive, 27 cook, and dress and bathe himself.” (AR 194). Dr. Campbell also stated 28 that Plaintiff “gets along very well with those people he comes into Campbell obvious found Plaintiff cognitive did not suffer (AR 195). delays.” (Id.). 5 from hallucinations, show signs of Dr. Campbell reported Dr. Campbell stated, 1 contact with daily.” (Id.). 2 the ability to “care for the horses and dogs” and “pay his own bills,” 3 as well as walk his daughter to and from the bus stop. (Id.). Notably, 4 Dr. Campbell stated Plaintiff was able to “get about without physical 5 assistance.” 6 activities, Dr. Campbell wrote: “In the morning, he gets up and feeds 7 the horses. 8 afternoon, he will take a nap and pick up his daughter. In the evening, 9 he will feed the horses and doges and watch TV.” (Id.). In Dr. Campbell reported Plaintiff possessed concluding his summary of Plaintiff’s He will take his daughter to the bus stop. In the (Id.). 10 11 Based on these reports, Dr. Campbell “rule[d] out major depressive 12 disorder” and diagnosed Plaintiff with bereavement. (AR 196). 13 Specifically, Dr. Campbell stated Plaintiff’s abilities to “understand, 14 remember, and carry out complex instructions,” to “make judgments on 15 complex work decisions,” and to “respond appropriately to usual work 16 situations and changes in a routine setting” were moderately impaired. 17 (Id.). 18 appropriately with the public, supervisors, and coworkers” was mildly 19 impaired. 20 “make judgments on simple, work-related decisions” was unimpaired. 21 (Id). 22 understand, remember and carry out short, simple instructions. Dr. Campbell further stated Plaintiff’s ability to “interact (Id.). However, Dr. Campbell found Plaintiff’s ability to Further, Dr. Campbell found Plaintiff had the ability to (Id.). 23 24 C. Plaintiff’s Subjective Complaints 25 26 In his “Disability Report,” Plaintiff claimed he suffered from 27 lumbar sadiculopathy that precluded lifting, bending, driving, or 28 performing his job as a warehouse worker. 6 (AR 60). Plaintiff stated 1 he stopped working on June 17, 2003 because his employer would only 2 allow him to work at full capacity even though his doctor restricted 3 this ability. (See AR 60). Plaintiff reported his work duties included 4 lifting and carrying supplies that frequently weighed fifty pounds and 5 occasionally weighed one hundred pounds. (See AR 61). 6 7 On August 15, 2007, Plaintiff completed an “Exertional Daily 8 Activities Questionnaire.” (AR 67, 69). In the questionnaire, 9 Plaintiff claimed he suffered constant lower back pain that some days 10 it was “difficult for him to get out of bed.” (AR 67). Plaintiff 11 treated his pain with Extra Strength Tylenol. (AR 69). Plaintiff 12 admitted he could walk several hundred yards to check his mail or go to 13 his doctors’ appointments. 14 though he generally avoided stairs, he could climb the three stairs at 15 his home. 16 groceries if assisted by his fourteen-year-old daughter and that he 17 carried groceries and trash every other day. 18 minor work on his car and in his yard even though overextending himself 19 in these activities increased his pain. (Id.). In addition to his back 20 pain, Plaintiff reported feelings of depression allegedly caused by his 21 wife’s illness and his inability to perform his daily chores without 22 tiring. 23 eight to ten hours at night and one to two hours during the day. 24 69). (AR 68). (AR 67). Plaintiff further admitted that, Additionally, Plaintiff stated that he shopped for (See AR 67, 69). (Id.). Plaintiff does Plaintiff stated that he slept approximately Plaintiff stated on “bad days” his chores went undone. (AR (Id.). 25 26 At the February 27, 2009 hearing, Plaintiff again claimed he 27 suffered from lower back pain and depression as well as neck pain and 28 numb extremities. (See AR 206-07). Plaintiff stated that his back pain 7 1 had remained constant since it first developed, but the severity of his 2 mental condition was cyclical. (See AR 209, 212). Plaintiff speculated 3 it was his physical rather than his mental condition that kept him from 4 working. 5 because his employer would not permit him to return to his warehouse job 6 unless he was capable of performing his full duties. 7 Plaintiff claimed the recent death of his wife had increased his 8 depression. 9 difficulty working with other people in close proximity and completing (AR 207). (AR 206). Plaintiff again claimed he was unable to work (AR 208). Plaintiff speculated his depression would cause 10 tasks in a timely manner. (See AR 209-10). Plaintiff stated he 11 sometimes neglected his personal hygiene and medical regimen. (AR 217- 12 18). 13 takes his daughter to the bus stop. However, Plaintiff cares for his pets, does minor chores, and (AR 210-11). 14 15 D. Vocational Expert’s Testimony 16 17 At the February 27, 2009 hearing, Gregory Jones, a vocational 18 expert (“VE”), testified as to Plaintiff’s ability to work. (AR 218). 19 Answering a hypothetical the ALJ posed, Jones stated an individual with 20 Plaintiff’s education, skills, work history, and residual functional 21 capacity (“RFC”),1 could not perform the duties of a warehouse worker. 22 (AR 219). 23 to work as a housekeeper, cafeteria attendant, or bench assembler as 24 defined in the Dictionary of Occupational Title. However, Jones stated that such an individual would be able (AR 220). Further, 25 26 27 28 1 Residual functional capacity is “the most [one] can still do despite [one’s] limitations” and represents an assessment “based on all the relevant evidence in [one’s] case record.” 20 C.F.R. §§ 404.1545(a), 416.945(a). 8 1 Jones stated that such jobs were available in the national economy as 2 well as Plaintiff’s regional economy. (Id.). 3 4 IV. 5 THE FIVE-STEP SEQUENTIAL EVALUATION PROCESS 6 7 To qualify for disability benefits, a claimant must demonstrate 8 a medically determinable physical or mental impairment that prevents him 9 from engaging in substantial gainful activity2 and that is expected to 10 result in death or to last for a continuous period of at least twelve 11 months. 12 42 U.S.C. § 423(d)(1)(A)). 13 incapable of performing the work he previously performed and incapable 14 of performing any other substantial gainful employment that exists in 15 the national economy. 16 1999) (citing 42 U.S.C. § 423(d)(2)(A)). Reddick v. Chater, 157 F.3d 715, 721 (9th Cir. 1998) (citing The impairment must render the claimant Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 17 18 To decide if a claimant is entitled to benefits, an ALJ conducts 19 a five-step inquiry. 20 follows: 20 C.F.R. §§ 404.1520, 416.920. The steps are as 21 22 (1) Is the claimant presently engaged in substantial gainful 23 activity? If so, the claimant is found not disabled. 24 If not, proceed to step two. 25 26 27 28 2 Substantial gainful activity means work that involves doing significant and productive physical or mental duties and is done for pay or profit. 20 C.F.R. §§ 404.1510, 416.910. 9 1 (2) Is the claimant’s impairment 2 claimant is found not disabled. 3 three. severe? If not, the If so, proceed to step 4 5 (3) Does the claimant’s impairment meet or equal one of a 6 list of specific impairments described in 20 C.F.R. Part 7 404, Subpart P, Appendix 1? 8 found disabled. If so, the claimant is If not, proceed to step four. 9 10 (4) Is the claimant capable of performing her past work? 11 so, the claimant is found not disabled. 12 to step five. If If not, proceed 13 14 (5) Is the claimant able to do any other work? 15 claimant is found disabled. 16 found not disabled. If not, the If so, the claimant is 17 18 Tackett, 180 F.3d at 1098-99; see also 20 C.F.R. §§ 404.1520(b)-(g)(1), 19 416.920(b)-(g)(1); Bustamante v. Massanari, 262 F.3d 949, 953-54 (9th 20 Cir. 2001) (citations omitted). 21 22 The claimant has the burden of proof at steps one through four, and 23 the Commissioner has the burden of proof at step five. Bustamante, 262 24 F.3d at 953-54. 25 establishing an inability to perform past work, the Commissioner must 26 show that the claimant can perform some other work that exists in 27 “significant numbers” in the national economy, taking into account the 28 claimant’s RFC, age, education, and work experience. If, at step four, the claimant meets his burden of 10 Tackett, 180 F.3d 1 at 1098, 1100; Reddick, 157 F.3d at 721; 20 C.F.R. §§ 404.1520(g)(1), 2 416.920(g)(1). 3 by reference to the Medical-Vocational Guidelines appearing in 20 C.F.R. 4 Part 404, Subpart P, Appendix 2 (commonly known as “the Grids”). 5 Osenbrock v. Apfel, 240 F.3d 1157, 1162 (9th Cir. 2001). 6 claimant 7 limitations, the Grids are inapplicable and the ALJ must take the 8 testimony of a VE. has The Commissioner may do so by the testimony of a VE or both exertional (strength-related) and When a nonexertional Moore v. Apfel, 216 F.3d 864, 869 (9th Cir. 2000). 9 10 V. 11 THE ALJ’S DECISION 12 13 On August 11, 2009, the ALJ issued a decision denying Plaintiff’s 14 application for SSI and DIB. 15 step sequential evaluation process, (See AR 13), and concluded that 16 Plaintiff was not disabled within the meaning of the Social Security 17 Act. 18 engaged in substantial gainful activity since the alleged onset of 19 Plaintiff’s injury. 20 from multilevel degenerative disc disease, lumbar spine sprain/strain, 21 and depressive disorder secondary to bereavement. 22 ALJ found these impairments were severe because they affected Plaintiff 23 more than minimally. 24 impairments at step two did not meet or medically equal a listed 25 impairment. (AR 21). (AR 12, 21). The ALJ employed the five- At the first step, the ALJ observed Plaintiff had not (AR 14). (Id.). Next, the ALJ found Plaintiff suffered (Id.). Further, the At step three, the ALJ found the severe (AR 15). 26 27 At step four, the ALJ found Plaintiff could no longer perform his 28 past work and possessed the RFC to perform less than a full range of 11 1 light work as defined in 20 CFR 404.1567(b) and 416.967(b). (AR 15, 2 19). 3 for six hours in an eight-hour work day, perform occasional postural 4 activities, and carry and lift twenty pounds occasionally and ten pounds 5 frequently. 6 non-public tasks that were limited to superficial contact with others. 7 (AR 16). 8 ropes, or scaffolds. 9 could do “non-public, complex tasks, limited to superficial contact with Specifically, the ALJ found Plaintiff could stand, sit, and walk (AR 15). Additionally, the ALJ found Plaintiff could do However, the ALJ held Plaintiff could not climb ladders, (AR 15). Notably, the ALJ found that Plaintiff 10 others” in his decision.3 11 during the hearing about Plaintiff’s ability to work, the ALJ qualified 12 a hypothetical by limiting Plaintiff to performing “no complex tasks.” 13 (See AR 219), and the Court finds that the jobs the ALJ ultimately found 14 Plaintiff capable of were jobs involving “non-complex tasks”. 15 used the VE’s answer to his hypothetical, using non-complex tasks, in 16 the ALJ’s evaluation of Plaintiff’s RFC. 17 admits that the ALJ’s error in his written decision, stating Plaintiff 18 could perform “complex tasks”, was harmless. (See Pl. Compl. Br. at 3). (AR 16). However, when questioning the VE (See AR 16, 20). The ALJ Plaintiff 19 20 The ALJ followed an additional two-step process to (AR 16). consider 21 Plaintiff’s alleged symptoms pursuant to step four. First, 22 the ALJ considered all available medical testimony and determined 23 Plaintiff’s impairments could reasonably be expected to cause his 24 alleged symptoms. (Id.). However, pursuant to the second step, the ALJ 25 26 27 28 3 The Court finds that this was likely a inadvertent error on the part of the ALJ and that the ALJ intended to find that Plaintiff could perform “non-complex tasks,” consistent with the ALJ’s hypothetical and the ALJ’s ultimate findings regarding the jobs Plaintiff could perform. 12 1 held Plaintiff’s testimony regarding the intensity and limiting effects 2 of his impairments was inconsistent with his RFC and medical findings. 3 (AR 16-17). 4 physical functional ability is inconsistent with his claim of physical 5 disability.” 6 a 7 Specifically, the 8 impingement,” normal 9 Plaintiff’s ability to move around with ease. minimal Specifically, the ALJ stated Plaintiff’s, “self-reported (AR 16). treatment The ALJ relied on benign medical evidence and regimen ALJ cited EMG and to support MRI results nerve his position. showing conduction “no study (Id.). (AR 17). significant results, and Also, the ALJ 10 noted Plaintiff’s pain rating suggested Plaintiff’s “pain was manageable 11 and not severe.” 12 Campbell’s opinion that Plaintiff had moderate difficulties regarding 13 concentration, persistence, and pace and mild difficulties in social 14 functioning. 15 psychological effects caused by Plaintiff’s wife’s passing, the ALJ 16 found Plaintiff’s RFC to be less than the RFC found by the consultative 17 orthopedist, Dr. Bilezikjian. (Id.). (AR 19). However, the ALJ gave “great weight” to Dr. As a result, and taking into consideration the (See id.). 18 19 Finally, at step five, the ALJ concluded that, based on Plaintiff’s 20 RFC and the VE’s testimony, Plaintiff could work as a housekeeper, 21 cafeteria attendant, or bench assembler. (AR 20). Accordingly, the ALJ 22 found that Plaintiff was not disabled at any time through the date of 23 the decision. (AR 20). 24 25 26 27 28 13 VI. 1 STANDARD OF REVIEW 2 3 4 Under 42 U.S.C. § 405(g), a district court may review the 5 Commissioner’s decision to deny benefits. The court may set aside the 6 Commissioner’s decision when the ALJ’s findings are based on legal error 7 or are not supported by substantial evidence in the record as a whole. 8 Aukland v. Massanari, 257 F.3d 1033, 1035 (9th Cir. 2001); Smolen v. 9 Chater, 80 F.3d 1273, 1279 (9th Cir. 1996). 10 11 “Substantial evidence is more than a scintilla, but less than a 12 preponderance.” 13 which a reasonable person might accept as adequate 14 conclusion.” (Id.). To determine whether substantial evidence supports 15 a finding, the court must “‘consider the record as a whole, weighing 16 both 17 [Commissioner’s] conclusion.’” Aukland, 257 F.3d at 1035 (quoting Penny 18 v. Sullivan, 2 F.3d 953, 956 (9th Cir. 1993)). 19 reasonably support either affirming or reversing that conclusion, the 20 court may not substitute its judgment for that of the Commissioner. 21 Reddick, 157 F.3d at 720-21. evidence Reddick, 157 F.3d at 720. that supports and evidence It is “relevant evidence that to support a detracts from the If the evidence can 22 23 VII. 24 DISCUSSION 25 26 Plaintiff contends the ALJ erred for two reasons. First, Plaintiff 27 argues the ALJ failed to include a component of Dr. Campbell’s opinion 28 in his decision. (Plaintiff’s Complaint Brief (“Pl. Compl. Br.”) at 314 1 4). Second, Plaintiff argues the ALJ erred by finding Plaintiff’s 2 testimony was not credible. 3 below, the Court disagrees with Plaintiff’s contentions. (Id. at 6). For the reasons discussed 4 5 A. No Remand Is Required For Further Consideration Of The 6 Consultative Examiner’s Opinion As The ALJ’s Residual Functional 7 Capacity Determination Is Supported By Substantial Evidence 8 9 Plaintiff argues the ALJ rejected portions of Dr. Campbell’s 10 opinion regarding Plaintiff’s mental limitations 11 Plaintiff’s RFC. 12 contends the ALJ did not consider Dr. Campbell’s opinion that Plaintiff 13 suffered moderate impairments in his “ability to respond appropriately 14 to usual work situations and changes in a routine setting.” 15 4). 16 Plaintiff’s ability to work and must therefore be factored into the 17 ALJ’s assessment of Plaintiff’s RFC. 18 Reply Br.”) at 2). (Pl. Compl. Br. at 3). when assessing Specifically, Plaintiff (Id. at 3- Plaintiff maintains the rejected limitations would further limit (Plaintiff’s Reply Brief (“Pl. The Court disagrees. 19 20 Consultative physicians are nontreating sources. define a 21 regulations 22 psychologist, or other acceptable medical source who has examined [the 23 claimant] but does not have, or did not have, an ongoing treatment 24 relationship with [the claimant].” 25 “includes an acceptable medical source who is a consultative examiner 26 for [the Agency] when the consultative examiner is not [the claimant’s] 27 treating source.” 28 examiner can only be rejected for “clear and convincing” reasons. Id. “nontreating source” to mean Implementing “a 20 C.F.R. § 416.902. physician, This term The uncontradicted opinion of a consultative 15 1 Lester v. Chater, 81 F.3d 831, 830 (9th Cir., as amended April 9, 1996). 2 Further, the opinion of the consultative examiner, even if contradicted 3 by another doctor, can only be rejected for specific and legitimate 4 reasons that are supported by substantial evidence in the record. 5 Andrews v. Shalala, 53 F.3d 1035, 1043 (9th Cir. 1995). 6 7 Dr. Campbell examined Plaintiff on April 16, 2009 and diagnosed him 8 with bereavement “rul[ing] out major depressive disorder.” 9 Dr. Campbell found Plaintiff had moderate impairments regarding his 10 ability to “understand, remember, and carry out complex instructions,” 11 “to 12 appropriately 13 setting.” 14 impairments regarding his “ability to interact appropriately with the 15 public, supervisors, and coworkers.” 16 Plaintiff was dysphoric and pessimistic but was “able to get along 17 without physical assistance,” and could get along “very well with those 18 people he comes into contact with daily.” 19 reported Plaintiff was alert and well oriented, possessed adequate 20 judgement, insight, and concentration, and “did not present with obvious 21 cognitive delays,” or memory impairment. 22 noted 23 acknowledged some improvement from the medication he took. make judgements to usual (AR 196). Plaintiff on did complex work work decisions,” situations and and changes (AR 196). “to in a respond routine Dr. Campbell further found Plaintiff had mild not see a (Id.). Dr. Campbell stated (AR 194, 196). (AR 194-95). psychiatrist or Dr. Campbell Dr. Campbell therapist, and (AR 193). 24 25 The ALJ gave “great weight” to Dr. Campbell’s findings. (AR 19). 26 The ALJ found the results of Plaintiff’s psychological examination 27 “mostly benign.” 28 Campbell’s opinions regarding Plaintiff’s mental impairments in his (Id.). The ALJ did not expressly reference Dr. 16 1 decision. (See id.). Instead, the ALJ characterized them as “moderate 2 difficulties with regard to concentration, persistence, and pace” and 3 “mild difficulties in social functioning.” 4 restated Dr. Campbell’s findings, but did not ignore them when the ALJ 5 described Plaintiff’s RFC. Based in part on Dr. Campbell’s opinions and 6 Plaintiff’s testimony, the ALJ determined Plaintiff could perform non- 7 public, non-complex tasks4 limited to superficial contact with others. 8 (See AR 16, 19, 219). (Id.). The ALJ merely 9 10 Here, Plaintiff’s RFC is consistent with Dr. Campbell’s opinion 11 because the ALJ incorporated all of it into his decision rather than 12 rejecting some of it as Plaintiff contends. Because the ALJ adopted Dr. 13 Campbell’s opinion with “great weight,” (AR 19), he was not required to 14 provide “specific, legitimate reasons for rejecting” it. 15 Br. 16 impairments in his “ability to respond appropriately to usual work 17 situations and changes in a routine setting.” 18 argues the ALJ rejected this specific component of Dr. Campbell’s 19 opinion when determining Plaintiff’s RFC because he did not state it in 20 his decision. 21 account any of the functional limitations cited by Dr. Campbell, the ALJ 22 instead merely described Dr. Campbell’s opinions . . . .”). 23 the ALJ explicitly stated he gave “great weight” to Dr. Campbell’s 24 opinion and characterized it in his report as “moderate difficulties at 3). Dr. Campbell reported that Plaintiff (Pl. Compl. had (AR 196). moderate Plaintiff (See Pl. Compl. Br. at 3-4) (“Rather than take into However, 25 26 27 28 4 As discussed in footnote 3, above, the Court finds that the ALJ intended to use the term “non-complex” tasks when describing Plaintiff’s RFC, as reflected in the ALJ’s hypothetical, and inadvertently used the term “complex tasks” in his written decision. 17 1 with regard to concentration, persistence, and pace.” (AR 19). The ALJ 2 reasoned Plaintiff “could perform no complex tasks,” (See AR 219), and 3 thus restricted Plaintiff to jobs that were “non-public” and “limited 4 to superficial contact with others.” (AR 16). The ALJ incorporated Dr. 5 Campbell’s opinion by making these restrictions. 6 precluded Plaintiff from working jobs that required rapid judgement and 7 adaptability and thus addressed Plaintiff’s moderate inability to 8 respond appropriately to usual work situations and changes. Therefore, 9 the ALJ fully incorporated Dr. Campbell’s opinion into Plaintiff’s RFC. The restrictions 10 11 Furthermore, substantial evidence supports the ALJ’s RFC. 12 Bilezikjian reported Plaintiff possessed medium exertional capabilities, 13 (See AR 171), based on Plaintiff’s normal range of motion and ability 14 to move with ease. 15 with Plaintiff’s own reported ability to care for his pets, grocery 16 shop, and do minor household chores. 17 Plaintiff testified the effects of his wife’s death exacerbated his 18 depression and caused limitations on his mental capacities. 19 206, 209, 217). 20 RFC from medium to light work and added further restrictions to address 21 Plaintiff’s mental impairments. 22 RFC assessment was lower than any of Plaintiff’s doctors’ assessments, 23 including those who placed Plaintiff on temporary total disability for 24 workers’ compensation purposes. 25 explicitly addressing Dr. Campbell’s allegedly rejected opinion was 26 therefore already incorporated into the ALJ’s RFC. Thus, it is unlikely 27 that the ALJ would have lowered the RFC any further had he listed Dr. 28 Campbell’s statements verbatim in his decision. (AR 170). Dr. Dr. Bilezikjian’s opinion is consistent (AR 67-68, 211). However, (See AR Based on these statements, the ALJ lowered Plaintiff’s (See AR 19). (Id.). 18 The ALJ noted that his Any benefit derived from To the extent the ALJ 1 did not address Dr. Campbell’s opinion verbatim, any failure to do so 2 was harmless error. 3 Cir. 2008) (“So long as there remains ‘substantial evidence supporting 4 the ALJ's conclusions’ and the error ‘does not negate the validity of 5 the ALJ's ultimate conclusion,’ such is deemed harmless and does not 6 warrant reversal)(quoting Batson v. Comm’r of Soc. Sec. Admin., 359 F.3d 7 1190, 1197 (9th Cir. 2004)); Burch v. Barnhart, 400 F.3d 676, 679 (9th 8 Cir. 2005) (“A decision of the ALJ will not be reversed for errors that 9 are harmless.”). See Carmickle v. Comm’r, 533 F.3d 1155, 1162 (9th 10 11 Thus, the Court concludes the ALJ properly incorporated Dr. 12 Campbell’s opinion into his assessment of Plaintiff’s RFC. Further, any 13 error the ALJ made by not addressing Dr. Campbell’s opinion verbatim is 14 harmless. 15 decision is affirmed. Therefore, remand is unwarranted and the Commissioner’s 16 17 18 B. The ALJ Provided Clear And Convincing Reasons For Rejecting Plaintiff’s Subjective Testimony 19 20 Plaintiff argues the ALJ improperly rejected Plaintiff’s testimony. 21 (See Pl. Compl. Br. at 6). 22 provide clear and convincing reasons for finding Plaintiff’s testimony 23 inconsistent with the medical evidence. 24 Plaintiff asserts the ALJ’s findings are not supported by substantial 25 evidence. (Id.). Plaintiff maintains the ALJ failed to (See Pl. Reply Br. at 4). The Court disagrees. 26 27 Whenever an ALJ’s disbelief of a claimant’s testimony is a critical 28 factor in a decision to deny benefits, as it is here, the ALJ must make 19 1 explicit credibility findings. Rashad v. Sullivan, 903 F.2d 1229, 1231 2 (9th Cir. 1990); see Albalos v. Sullivan, 907 F.2d 871, 874 (9th Cir. 3 1990) (holding an implicit finding that claimant was not credible is 4 insufficient). 5 claimant is malingering, the ALJ’s reasons for rejecting the claimant’s 6 testimony must be “clear and convincing.” 7 long as plaintiff offers evidence of a medical impairment that could 8 reasonably be expected to produce pain, the ALJ may not require the 9 degree of pain to be corroborated by objective medical evidence. 10 Bunnell v. Sullivan, 947 F.2d 341, 346-47 (9th Cir. 1991) (en banc); 11 Smolen, 80 F.3d at 1282. Unless there is affirmative evidence showing that the Lester, 81 F.3d at 834. As 12 13 An ALJ can, however, reject a claimant’s testimony regarding the 14 severity of his symptoms if the ALJ points to clear and convincing 15 reasons for doing so. 16 whether testimony regarding the severity of symptoms is credible, the 17 ALJ may consider, among other things, the following evidence: (1) 18 ordinary techniques of credibility evaluation, such as the claimant’s 19 reputation for lying, prior inconsistent statements concerning the 20 symptoms, and other testimony by the claimant that appears less than 21 candid; (2) unexplained or inadequately explained failure to seek 22 treatment or to follow a prescribed course of treatment; and (3) the 23 claimant’s daily activities. 24 finding is supported by substantial evidence in the record, the Court 25 may not engage in second-guessing. 26 959 (9th Cir. 2002). See Smolen, 80 F.3d at 1283-84. Id. at 1284. 27 28 20 To determine If the ALJ's credibility Thomas v. Barnhart, 278 F.3d 947, 1 At the February 27, 2009 hearing, Plaintiff claimed the severity 2 of his pain had 3 Specifically, Plaintiff stated he suffered from “stiffness in [his] 4 neck,” “lower, middle back pain,” a “numb or tingly” right leg, and 5 “problems with [his] right arm and shoulder.” 6 he was “pretty much taking it easy and not doing a lot of physical 7 work.” 8 brought on in part by his wife’s death. 9 suggested his depression would make it difficult for him to work with (AR 212). remained constant since its onset. (Id.). (AR 212). Plaintiff stated Plaintiff also claimed he suffered from depression (See AR 206). Plaintiff 10 other people and complete tasks in a timely manner. (See AR 209-10). 11 However, Plaintiff admitted he could take his daughter “to and from the 12 bus stop,” (Id.), “feed [his] dogs and cats,” and “try to do a little 13 around the house.” (AR 211). 14 15 The ALJ provided clear and convincing reasons for rejecting 16 Plaintiff’s subjective testimony regarding the severity of his pain. 17 The ALJ compared Plaintiff’s testimony, medical history, and prior 18 statements. 19 Plaintiff’s daily activities; (2) the benign medical evidence; and (3) 20 Plaintiff’s conservative treatment regimen. The ALJ then based his decision on three factors: (1) 21 22 First, in regard to Plaintiff’s daily activities, the ALJ stated, 23 “[Plaintiff’s] self-reported physical functional ability is inconsistent 24 with his claim of physical disability.” 25 finding, the ALJ cited Plaintiff’s admission that he could “climb 26 stairs, carry groceries, take out the trash, shop, do laundry, drive, 27 and do yard work.” 28 Plaintiff’s admission to Dr. Campbell that Plaintiff could “care for his (AR 16). (AR 16) (citing AR 68). 21 To support this The ALJ also cited 1 horses and dogs, as well as dress and bathe himself.” (Id.) (citing AR 2 194). 3 of caring for horses and dogs, various household chores, driving and 4 doing yard work are inconsistent with the degree of pain described by 5 Plaintiff. This Court agrees with the ALJ that Plaintiff’s daily activities 6 7 Second, the ALJ cited benign medical evidence to support his 8 rejection of Plaintiff’s testimony. 9 evidence suggests [Plaintiff’s] The ALJ held, “[T]he medical impairment not as severe as 10 [Plaintiff] alleges.” 11 Plaintiff’s MRI results that showed “no significant impingement” and his 12 EMG and nerve conduction study results that were normal. 13 AR 97, 99, 140). 14 suggested Plaintiff’s “pain was manageable and not severe.” 15 (citing AR 159). 16 Plaintiff could work part-time at the warehouse if his employer allowed 17 it. 18 Plaintiff “moving about the examination room with a fair amount of 19 ease.” 20 evidence 21 Plaintiff. (AR 17). (AR 17). was Specifically, the ALJ cited to The ALJ also reasoned that Plaintiff’s pain rating (Id.) The ALJ noted that his treating physician found that Further, the ALJ noted that Dr. Bilezikjian observed (Id.) (citing AR 170). is (Id.) (citing not consistent The Court agrees that the medical with the degree of pain asserted by 22 23 Third, the ALJ cited Plaintiff’s conservative treatment to support 24 rejection of Plaintiff’s testimony. The ALJ found that Plaintiff’s back 25 pain treatment was “minimal.” 26 Plaintiff took only Tylenol to relieve his pain, though he had received 27 epidural injections in the past. (Id.). Finally, the ALJ observed that 28 Plaintiff was not a candidate for surgical intervention. (AR 17). 22 Further, the ALJ noted The ALJ’s 1 conclusion that Plaintiff’s treatment was “minimal” and conservative is 2 supported by the record. 3 Plaintiff’s testimony. This evidence supports the rejection of 4 Thus, the Court concludes the ALJ provided clear and convincing 5 reasons for rejecting Plaintiff’s testimony regarding his claim of 6 complete 7 affirmed. disability. Therefore, the Commissioner’s decision is 8 VIII. 9 CONCLUSION 10 11 12 Consistent with the foregoing, and pursuant to sentence four of 42 13 U.S.C. § 405(g),5 IT IS ORDERED that judgment be entered AFFIRMING the 14 decision of the Commissioner and dismissing this action with prejudice. 15 IT IS FURTHER ORDERED that the Clerk of the Court serve copies of this 16 Order and the Judgment on counsel for both parties. 17 18 DATED: September 20, 2010. ____/S/________ SUZANNE H. SEGAL UNITED STATES MAGISTRATE JUDGE 19 20 21 22 23 24 25 26 27 28 5 This sentence provides: “The [district] court shall have power to enter, upon the pleadings and transcript of the record, a judgment affirming, modifying, or reversing the decision of the Commissioner of Social Security, with or without remanding the cause for a rehearing.” 23
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