Samuel Edmond v. Carolyn W Colvin, No. 5:2013cv01108 - Document 24 (C.D. Cal. 2014)

Court Description: AMENDED MEMORANDUM AND OPINION by Magistrate Judge Alka Sagar. re: Memorandum Opinion and Order 22 (afe)

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Samuel Edmond v. Carolyn W Colvin Doc. 24 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 SAMUEL EDMOND, NO. EDCV 13 -1108-AS 12 AMENDED MEMORANDUM OPINION Plaintiff, 13 v. 14 CAROLYN W. COLVIN, Acting 15 II Commissioner of Social Securi t y , 16 Defendant. 17 18 19 PROCEEDINGS 20 21 On July 1, 2013 , Plaintiff filed a Complaint seeking review of 22 "the Commissioner's denial of Plaintiff's applicat i on for a period 23 l of disability , and disability insurance 2 4 "supplemental security income ("SSI"). 25 August 27 , 2013 , Defe nda nt 28 II("A.R ."). ( "DIB") , (Docket Entry No. 3 ). and On the matter was transferred and referred t o the 26 c urre nt M agistrate Judge . 27 2 01 3 , benefits fi l e d (Docket Entry No. 14). a n Answer On Decembe r 3 0 , a nd the Adminis t rat i v e (Docket Entry Nos. 19, 2 0). Re cord The parties have consented Dockets.Justia.com 1 to proceed before a United States Magistrate Judge. 2 Nos. 3 Stipulation 4 positions regarding Plaintiff's claim. 5 Court has taken this matter under submission without oral argumen t. 15, 16). On March ("Joint 3, Stip.u) 2014, the setting (Docket Entry parties forth filed their a Joint respecti ve (Docket Entry No. 21). The See C.D. Local R. 7-15; "Case Management Order,u filed August 7, 6 2013 (Docket Entry No. 6). 7 8 BACKGROUND AND SUMMARY OF ADMINISTRATIVE DECISION 9 10 Plaintiff, a former medical technician, phlebotomist, and 11 medical receptionist 12 (A.R. 16), asserts disability beginning May 13, 2 009, based on the alleged physi ca l impairments of degene rative 13 disk 14 dis ea s e resection; 15 of the lumbar hypertension; spine ; colon gastroesophageal history of coronary artery disease, cancer, reflux status disease; post and status post single coronary 16 artery bypass and rece nt h istor y of a b order line electrocardi ogram . 17 (Id. 9; Joint Stip. 2). 18 Law Judge, Paula J. Goodrich ("ALJu), examined the record and heard 19 testimony from Plaintiff a nd a vocati ona l 20 Scott. On February 29, 2012, the Administrative expert ("VEu), Troy L . (A. R. 2 4-63). 21 22 23 On 11 Ap ril 6, 2012, the ALJ issued Plaintiff ' s appl ications for DIB and SS I. a (I d . decision denying 9- 17) . The ALJ 24 fo und that Plaintiff h as the severe impairment o f degene rative disc 25 disease of the lumbar spine. 26 Plaintiff has the nonsevere conditi ons of colon can cer , status p o st 27 r ese ction ; 28 hype rt e nsi on ; (Id. 11). She also determined that gastroesophagea l hist ory of coronary artery disease, 2 reflux dis ease ; and status post single coronary 1 artery bypass graft, and recent 2 electrocardiogram. 3 alleged depression is not medically determinable. (Id. 11-12). history of a borderline She determined that Plaintiff's (Id. 12). 4 The ALJ determined that Plaintiff has the residual functional 5 6 7 capacity ( "RFC") to perform the full range of medium work. ( Id. 13) . 8 Relying on the testimony of the VE, 9 10 the ALJ determined that Plaintiff was able to perform his past relevant work, as actually and generally performed, as a medical technician (Dictionary of 11 Occupational Titles ("DOT") No. 078.381-014); phlebotomist (DOT No. 12 079.364-022); and medical receptionist (DOT No. 237 .367-038). 13 (Id. 16) . 14 15 16 17 Accordingly, the ALJ found that Plaintiff was not disabled at any time from the alleged disability onset date of May 13, 2009, through April 6, 2012, the date of the decision. (Id. 17). 18 19 PLAINTIFF'S CONTENTIONS 20 21 Plaintiff contends that the ALJ erred 22 U opinions 23 11 of his treating Plaintiff's credibility. physician; and (1) (2) in rejecting the in discounting (Joint Stip. 3) • 24 STANDARD OF REVIEW 25 26 This Court reviews the Commissioner's decision to determine 27 28 if: (1) the Commissioner's findings are supported by substantial 3 1 evidence; and (2) the Commissioner used proper legal standards. 2 U.S.C. § 405(g); see Carmickle v. Comm'r, 533 F.3d 1155, 1159 (9th 3 Cir. 2008); Hoopai v. Astrue, 499 F.3d 1071, 1074 (9th Cir. 2007 ) . 4 "Substantial evidence is more than a scintilla, but less than a 5 preponderance." 6 7 8 9 10 1998) Reddick v. Chater, (citing Jamerson v. Chater, 1997). It is relevant evidence 157 F.3d 715, 42 720 (9th Cir. 112 F.3d 1064, 1066 (9th Cir. "which a reasonable person might accept as adequate to support a conclusion." Hoopai, 499 F.3d at 1074; Smolen v. Chater, 80 F.3d 1273, 1279 (9th Cir. 1996)). To d e t e rmine whether substantial evidence supports a finding, "a court must 'consider the record as a whole, weighing both evidence that 11 supports 12 13 14 15 and evidence conclusion.'" 1997) that detracts from the [Commissioner's] Aukland v. Massanari, 257 F.3d 1033, 1035 (9th Cir. (citation omitted); see Widmark v. Barnhart, 454 F. 3d 1063, 1066 (9th Cir. 2006) (inferences "reasonably drawn from the record" can constitute substantial evidence). 16 17 This Court "may not affirm [the Commissioner's] decision 18 simply by isolating a specific quantum of supporting evidence, but 19 must a lso consider evidence that d e tra ct s from [the Commissioner 's] 20 con c lus ion." 21 (citation and internal quotation marks omitted); Lingenfelter v. 22 Astrue, 504 F.3d 1 028, 1035 ( 9th Cir. 20 0 7) 23 Cou rt canno t 24 eve n though there may exist other evidenc e supporting Plainti ff ' s 25 c laim. 26 " If 27 28 Ray v. Bowe n, 81 3 F. 2d 914, 91 5 ( 9t h Ci r . (same). 1 987 ) However, the disturb fin d i n g s sup p orted by s ub stan ti al e vide n ce , See Torske v. Richardson, 484 F. 2d 59, 60 (9th Cir. 19 73) . t he reve r si ng e vide n ce t he c an reasonably [Commissioner ' s ] suppo rt con c lusion, e i the r [a ] affirmi n g cou rt substitute its judgment for that of the [Commissioner]." 4 ma y or not Reddi c k, 111157 F.3d 715, 720-21 (9th Cir. 1998) (citation omitted). 2 DISCUSSION 3 4 After consideration of the record as a whole, the Court finds 5 that 6 the Commissioner's findings are supported by substantial evidence and are free from material 1 legal error. 7 8 A. 9 Applicable Law 10 "The Social Security Act defines disability as the 'inability 11 to engage in any substantial gainful activity by reason of any 12 medically determinable physical or mental impairment which can be 13 expected to result in death or which has lasted or can be expected 14 to last for a continuous period of not less than 12 months.'" 15 v. Barnhart, 433 F.3d 683, 686 (9th Cir. 2005) 16 § 17 423 (d) (1) (A)). Webb (quoting 42 U.S.C. The ALJ follows a five-step, sequential analysis to determine whether a claimant has established disability. 20 1 811 C.F.R. § 404.1520. 19 20 II At 21 II engaged step in one, the substantial ALJ determines gainful whether employment the claimant activity. Id. is § 2211 404.1520(a) (4) (i). "Substantial gainful activity" is defined as 23 II "work [ i] nvol ves 24 11 that doing physical or mental duties[] and . . . significant and productive [i]s done (or intended) for 25 26 27 28 The harmless error rule applies to the review of administrative decisions regarding disability. See McLeod v. Astrue, 640 F. 3d 881, 886-88 (9th Cir. 2011); Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005) (stating that an ALJ's decision will not be reversed for errors that are harmless). 5 1 II pay or profit." Id. §§ 404.1510, 404.1572. If the ALJ determines 2 that the claimant is not engaged in substantial gainful activity, 3 the ALJ proceeds to step two which requires the ALJ to determine 4 whether 5 combination of impairments that significantly limits his ability to 6 7 8 9 10 the claimant has do basic work activities. Webb, 433 F.3d at 686. a medically See id. severe impairment or 404.1520(a) (4) (ii); see also § The "ability to do basic work activities" is defined as "the abilities and aptitudes necessary to do most jobs." 20 C.F.R. § 404.15 21 (b); Webb, 433 F.3d at 686. An impairment is not severe if it is merely "a slight abnormality (o r combination of slight abnormalities) that has no more than a 11 minimal effect on the ability to do basic work activities." 12 Webb, 433 F.3d at 686. 13 14 15 If the ALJ concludes that a claimant lacks a medically severe impairment, the ALJ must find the claimant not disabled. 16 C.F.R. 17 Cir. 2005) 18 Id.; 2 0 finding of "disabled" or "not disabled" at any step) . § 1520(a) (ii); Ukolov v. Barnhart, 42 0 F.3d 1002, 1003 (9th (ALJ need not consider subsequent steps if there is a 19 20 Howe v er , if the ALJ finds that a c laima nt's impairme n t is 21 severe, then step three requires the ALJ to evaluate whether the 22 claimant's 23 entitling him to a disability finding. 24 t he 25 e ntitling 26 determine the claimant 's RFC, that is, the ability to do physical 27 28 impairment impairment the does satisfies not claimant to certain satisfy a statutory requirements Webb, 433 F .3d a t 686 . the disability statutory finding, If requirements the ALJ must a nd me ntal wo rk acti v ities on a sus t a ined basi s d e spi t e l i mit a tions from all his impairments. 20 C.F.R. 6 § 416.920(e). 1 Once the RFC is determined, the ALJ proceeds to step four to 2 assess whether the claimant is able to do any work that he or she 3 has done in the past, defined as work performed in the last fifteen If the ALJ finds that 4 II years prior to the disability onset date. 5 the claimant is not able to do the type of work that he or she has 6 done in the past or does not have any past relevant work, the ALJ 7 proceeds to step five to determine whether - taking into account 8 the claimant's age, education, work experience and RFC- there is 9 any other work that the claimant can do and if so, whether there are a 10 significant number of such jobs in the national economy. Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999); 20 C.F.R. § 11 404.1520(a) (4) (iii)-(v). 13 The claimant has the burden of proof at steps one through four, 12 and the Commissioner has the burden of proof at step five. 14 Tackett, 180 F.3d at 1098. 15 B. The ALJ Properly Discounted the Opinions of Plaintiff's 16 Treating Physician 17 18 1. Legal Standard 19 20 In evaluating medical opinions, the case law and regulations 21 distinguish among the opinions of three types of physicians: 22 those who treat the claimant (treating physicians); 23 examine but do not treat the claimant (examining physicians); and 24 (3) those who neither examine nor treat the claimant (nonexamining 25 II or reviewing physicians). See 20 C.F.R. §§ ( 1) (2) those who 404.1502, 404.1527, 2611416.902, 416.927; see also Lester v. Chater, 81 F.3d 821, 830 (9th 27 II Cir. 28 11 given 1995). greater Generally, weight the opinions of treating physicians are than those 7 of other physicians, because 1 II treating physicians are 2 II greater opportunity to employed to cure and therefore have know and observe the claimant. a Orn v. 311Astrue, 495 F.3d 625, 631 (9th Cir. 2007); Smolen, 80 F.3d at 1285. 4 The ALJ may only reject a treating or examining physician's 5 6 uncontradicted medical 7 reasons." 8 9 10 11 12 13 14 11 F. 3d opinion based on "clear and convincing Lester, 81 F.3d at 830-31 (citing Andrews v. Shalala, 53 1035, 1043 (9th Cir. Where 1995)). such an opinion is contradicted, however, it may only be rejected for "specific and legitimate reasons that are supported by substantial evidence in the record." 2 Id. (citing Andrews, 53 F.3d at 1043). The opinion of a nonexamining physician cannot by itself constitute substantial evidence justifying the rejection of an examining physician's opinion. 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Here, on April 7, 2010, the consultative examiner, Bunsri T. Sophon, MD, concluded that Plaintiff "does not have significant physical impairment and there are no functional limitations." (A.R. 369). Thus, Dr. Lee's opinion is controverted by Dr. Sophon. The ALJ, however, gave Dr. Sophon' s opinion "[1] ittle weight" because there was no indication that she had reviewed Plaintiff's records, "did not cite to her examination in support of her conclusions, and evidence received subsequent to the rendering of this opinion, along with the presentation of the claimant at the hearing, justifies the findings made and the limitations accordingly imposed." ( Id. 15) . Plaintiff appears to concede that Dr. Lee's opinions were controverted and that the ALJ's reasons need only be specific and legitimate. (See, e.g., Joint Stip. 9 ("the ALJ erred . . . by not setting forth specific and legitimate reasons supported by substantial evidence" for discounting Dr. Lee's opinions)) . Even assuming that Dr. Lee's opinions were uncontroverted, the Court finds that the ALJ's reasoning satisfies even the stricter "clear and convincing" standard and, therefore, was legally sufficient under either standard. 8 2 1 2. Analysis 2 3 On April 13, 2011, plaintiff's treating physician, Jonathan 4 II Lee, MD, completed a "Primary Treating Physician's 5 II Report," for Plaintiff's Worker's Compensation Claim. 6 II 95). 7 11 (A.R. 492- In that report, Dr. Lee opined that Plaintiff was temporarily restricted to "modified duty," limiting him to sedentary work. 811 (Id. 494). 9 Progress another One month later, on May 11, 2013, progress report that Plaintiff Dr. Lee opined in was "permanent 10 stationary with restrictions of no prolonged standi ng, 11 sitting, 12 and walking, stooping and bending and no repetitive lifting." (Id. 490) . 13 14 With respect to Dr. Lee's opinions, the ALJ stated following: 15 16 Dr. Lee tre ated the claimant ove r a lengthy per i od, was 17 18 19 20 reporting within the bounds of his professional certifications, and had access to the claimant's medical records; h oweve r, he did not cite to the r e cords in s uppo r t of his c o n c lus ions, t h e r e i s no indicati on tha t 21 he bears even a passing familiarity with the disability 22 pro cess, his opinion altered in the space of [a] single 23 month 24 explain such a shift, 25 fun c tional l i mitation that finds n o foundati on in his 26 o bj ective 27 d iffere n t gov e rnment p rog ram, wit h d ifferen t ob ject i v es . 28 9 wi t h no c h a nge s f indings in hi s o b j ective fi ndi ngs to his opinion reported degrees of a nd his opinion was o ffer ed t o a the 1 Accordingly, 2 opinions. little weight was accorded either of his 3 411 (Id. 15-16). 5 Plaintiff argues that the ALJ improperly rejected the April 6 7 11 8 11 9) . (Joint Stip. 3- 13, 2011, and May 11, 2011, opinions of Dr. Lee. He contends that the ALJ failed to state whether she accepted or rejected Dr. Lee's opinions, and did not provide specific and 9 legitimate reasons supported by substantial evidence for rejecting 10 his opinions. 11 argues (Id. 4; see also supra note 2). 13 that the ALJ specificity 12 any evidence regarding 14 Dr. Lee's failed to to articulate support opinions; her failed Specifically, he with any degree conclusory to credit of findings Dr. Lee's longitudinal relationship with Plaintiff; improperly relied on a 15 finding that Dr. Lee is not familiar with the disability process; 16 and erred in concluding that Dr. Lee's opinions had no foundation 17 in his objective findings. (Id. 6-7). The Court disagrees. 18 19 a. Lack of Objective Findings 20 21 The ALJ found that Dr. Lee's opinions were unsupported by Dr. 22 23 Lee's objective findings. II 24 (Id. 15-16). Specifically, the ALJ also discounted Dr. Lee's opinions because his opinion changed in the space of a month, 25 II findings, 26 II "permanent from and without explanation or support from objective "[m]odified stationary duty, with sedentary restrictions work of no only," to prolonged 27 11 standing, walking, sitting, stooping and bending and no repetitive 28 U lifting," which would preclude even sedentary work. 10 (Compare A.R. 1 494 with id. 409). 2 3 An ALJ "need the any 6 Thomas v. Barnhart, 278 F.3d 947, 957 (9th Cir. 2002); 20 C.F.R. 7 404.1527 (d) (2) 8 is 9 substantial 12 13 14 well-supported . . evidence treating by supported opinion is clinical brief, findings." § ("If we find that a treating source's opinion controlling weight"). a that physician, conclusory inadequately if of 5 and physician, opinion including 11 treating accept 4 10 a not . in and not your inconsistent case record, with we the will other give it Additionally, an ALJ may properly discount physician's limitations as "not supported by any findings" where there is "no indication in the record what the basis for these restrictions might be." Rollins v. Massanari, 261 F.3d 853, 856 (9th Cir. 2001); see also 20 C.F.R. Valentine v. Comm'r Soc. Sec. Admin., 404.1527(c) (2); § 574 F.3d 685, 692-93 (9th 15 Cir. 2009) 16 17 18 19 20 21 (contradiction between a treating physician's opinion and his treatment notes constitutes a valid reason for rejecting the treating physician's opinion); Bayliss v. Barnhart, 427 F.3d 1211, treating 1216 (9th Cir. 2005) (contradiction between physician's assessment and clinical notes justifies rejection of assessment); see also Johnson v. Shalala, 60 F.3d 1428, 1432 (9th Cir. 1995). 22 23 A review of Dr. Lee's April and May 2011 reports shows that 24 despite Dr. Lee's change in opinion in May 2011, he stated in that 25 later report that Plaintiff's "[c]urrent complaints are unchanged 26 from his previous visit," and that since Plaintiff's last visit 27 "there have not been any new injuries." 28 Court notes that Dr. Lee had 11 also (Id. 488.) assessed Moreover, the "Modified duty, 1 sedentary work only," 3 in all of his prior reports, dated October 2 20, 2010, November 17, 2010, December 15, 2010, January 19, 2011, 3 II February 16, 2011, and March 16, 2011. (Id. 501-29). 4 Dr. 5 Lee provided no explanation for his sudden change in 6 II opinion after nine months of treating Plaintiff and finding him 7 11 capable of modified sedentary work throughout that time. This 811 inconsistency is a basis for rejecting Dr. Lee's opinion. Thomas, 9 278 F.3d at 957; Johnson, See 60 F.3d at 1432; Rollins, 261 F.3d at 856 (ALJ properly discounted treating doctor's opinions for 10 being "so e x treme as to be implausible," and "not supported by any 11 findings," where there was "no indication in the record what the 12 basis for these restrictions might be"). 13 14 Dr. Lee's objective findings also fail to support his May 11, 15 2 011, and subsequent opinions. In the examination on May 11, 2011, 16 Dr. 17 Lee observed that Plaintiff nourished male who ambulates 18 was a "well-developed, into the examination well- room with a normal heel to toe gait, independently, without assistive device." 19 (A.R. 489). 20 He also noted the following: areas of tenderness on palpation of plaintiff's lumbar area; Plaintiff's lumbar range of 21 motion was 70 % of normal in flexion and extension; straight leg 22 raising bilaterally; 23 II was negative; motor functioning was 5/5 Plaintiff's reflexes were normal; and there was no atrophy, gross 24 25 An August 24, 2010 "Initial Orthopedic/Neurologic Consultation and Request for Authorization of Medical Treatment for Utilization Review Purposes" completed by Gail Hopkins, II, MD, also noted that Plaintiff should continue "on the same modified duties at sedentary work . . . . " (A.R. 529). 3 26 27 28 12 1 deformity, 2 ( Id.) . or edema in Plaintiff's upper and lower extremities. These objective clinical findings were identical to Dr. 3 II Lee's April 2011 findings; indeed, they were identical to all of 4 II Dr. Lee's previous findings in his reports dated October 20, 2010, 5 II November 17, 2010, 6 11 December 15, 2010, January 19, 2011, February 16, 2011, and March 16, 2011, and in the August 24, 2010, initial 7 n consultation report completed by Dr. Hopkins, who also took x-rays 8 in her office on that date. 4 (Id. 501-23, 524-29). 9 Similarly, even after his May 2011 opinion that Plaintiff was 10 11 12 13 14 precluded from "prolonged standing, walking, sitting, stooping, and bending and no repetitive lifting," Dr. Lee's subsequent August 24, 2 011, and November 16, 2011, reports merely parroted that finding despite also noting that Plaintiff's " [ c] urrent complaints are unchanged from his previous visit," and that "there have not been 15 any new injuries," since his prior visit. 16 17 18 19 (Id. 480, 484). these the same objective later reports Dr. Lee also assessed clinical findings as found prior to May 2011: In areas of tenderness on palpation of plaintiff's lumbar area; Plaintiff's lumbar range of motion was 70 % of normal in fle x ion and extension; straight leg 20 raising 21 Plaintiff's reflexes were normal; and there was no atrophy, gross was negative; motor functioning was 5/5 bilaterally; 22 23 24 25 26 27 See also suora note 3. Dr. Hopkins noted that the x -rays of Plaintiff's lumbar spine showed "degenerative disc disease at L5-S1 of moderate degree," and x-rays of the thoracic showed "evidence of very mild degenerative changes consistent with age." (A.R. 529). Dr. Hopkins also stated that Plaintiff was not a surgical candidate, and noted that although epidural steroid injections had been recommended to Plaintiff after his 2002 MRI, they were never performed because Plaintiff stated "that he opted not to undergo the injections." (Id. 5 2 2, 525, 529). 28 13 1 2 deformity, II or edema in Plaintiff's upper and lower extremities. (.llL_) · 3 4 On February 8, 2012, Dr. Lee did note that Plaintiff's 5 II "[c]urrent complaints have worsened from his previous visit, and 6 II that Plaintiff reported "an increase[] of pa[i]n in his arms, and 7 11 legs along with weakness. 811 9 10 11 12 13 (Id. If 4 71) . In this report, Dr. Lee noted that Plaintiff "is doing OK with meds" but that even also with medications, Plaintiff " n,.eeds cane for ambu1ation." (Id. 4 73) . However, the Court's review of the record did not find any indication that Dr. Lee had ever prescribed Plaintiff a cane for ambulation. Indeed, all of Dr. Lee's reports, including the February 8, 2012, report, state that Plaintiff had walked into the examination room with a "normal heel to toe gait, independently, without assistive device." 14 481, 15 505, 510, 514). Also (See, telling, e.g., Dr. id. Lee's 472, objective 485, 502, clinical 16 findings on February 8, 2012, were again unchanged from any of Dr. 17 Lee's previous reports. 18 19 20 Finally, the only diagnostic studies referred to by Dr. Lee in his records were a "repeat MRI of the lumbar spine" performed on 21 July 11, 2008, "which revealed mild degenerative disc disease and 22 facet osteoarthritis at L4-5 and L5-S1 with no evidence of abnormal 23 contrast enhancement or spinal stenosis" 5 (id. 521), 24 24, 25 thoracic spine" (id. 490, 494, 496). 2011, MRI of the thoracic spine, and a March which showed a "[n]ormal Dr. Lee did not take any of 26 27 5 These findings were consistent with Plaintiff's prior MRI on October 3, 2002. (See, e.g., A.R. 525). 28 14 1 his own x-rays, nor did he mention or appear to rely in any way on 2 Dr. 3 treated Plaintiff conservatively with medication 4 503, 507, 511, 515, 522), and it was not until his May 11, 2011, 5 report 6 physical therapy for the next five years." (id. 490). Hopkins' x-rays. that he ( Id.; recommended see also supra note 3) . Plaintiff receive ( id. Dr. 4 90, Lee 4 99, "ten sessions of 7 Worker's Compensation Context b. 8 9 The ALJ also noted that Dr. Lee's opinion, prepared i n the 10 11 12 13 14 worker's compensation context, contains no indication that "he bears even a passing familiarity with the disability process." (A. R. 16) . Although Plaintiff contends this is irrelevant, regulations the provide our that "the amount of understanding of disability programs and their evidentiary requirements that an 15 acceptable medical source has . 16 17 . are relevant factors that we will consider in deciding the weigh t to g i ve to a medical opinion." 20 C.F.R. § 404.1527(c) (6). 18 19 3. Conclusion 20 21 Based on the foregoing, the ALJ provided clear and convincing 22 r e asons for discounting the opinions of Dr . Lee. 23 was n o error . Therefore, the re 24 2511 c. The ALJ Did Not Arbitrarily Discredit Plaintiff's Testimony 26 27 Plainti ff cont ends t hat t he 28 15 ALJ erred in dis counting 1 Plaintiff's credibility. (Joint Stip. at 12-15). 2 3 1. Legal Standard 4 5 II 6 11 Where, as here, the ALJ finds that a claimant suffers from a medically determinable impairment that could reasonably be expected 711 to produce his or her alleged symptoms, the ALJ must evaluate "the 8 intensity, 9 individual's symptoms 10 11 12 13 symptoms persistence, affect activities. the and functionally limiting effects of the to determine the extent to which the individual's This requires the ability to do basic work [ALJ] to make a finding about the credibility of the individual's statements about the symptom(s) and its functional effect." Soc. Sec. Ruling 96-7p. 14 An ALJ's assessment of a claimant's credibility is entitled to 15 "great weight." 16 17 18 19 20 Anderson v. Sullivan, 914 F.2d 1121, Ci r . 1 9 9 0 ) ; Nyman v . Heck 1 e r , 7 7 9 F . 2 d 52 8 , 5 31 1124 (9th ( 9th Ci r. 1 9 8 5 ) . The ALJ may not discount the claimant's testimony regarding the severity findings. of the Lester, symptoms without making "specific, cogent" 81 F.3d at 834; see also Berry v. Astrue, F.3d 1228, 1234 (9th Cir. 2010) 62 2 (reaffirming same); but see Smolen, 21 80 F.3d at 1283-84 22 clear and convincing reasons to reject a claimant's testimony where 23 there is no evidence of malingering); see Rashad v. Sullivan, 903 (indicating that ALJ must provide "specific, 2 4 II F. 2 d 1229, 1231 (9th Cir . 1990) . 6 Generalized, conclusory findings 25 26 27 In the absence of evidence of "malingering," most recent Nlnth Circuit cases have applied the "clear and convincing" standard. See, e.g., Chaudhry v. Astrue, 688 F.3d 661, 670, 67 2 (continued ... ) 6 28 16 1 do not suffice. 2112004) (the See Moisa v. Barnhart, 367 F.3d 882, 885 (9th Cir. ALJ's credibility findings "must be sufficiently 3 II specific to allow a reviewing court to conclude the [ALJ] rejected 4 II [the] claimant's testimony on permissible 5 II arbitrarily discredit the claimant's grounds testimony") and did not ( citation and 6 internal quotation marks omitted); Holohan v. Massanari, 246 F.3d 7 1195, 1208 (9th Cir. 2001) 8 testimony [the ALJ] finds not to be credible and must explain what 9 evidence undermines the testimony"); Smolen, 80 F.3d at 1284 ("The 10 ALJ must state specifically which symptom testimony is not credible 11 12 (the ALJ must "specifically identify the and what facts in the record lead to that conclusion."); see also Soc. Sec. Ruling 96-7p. 13 14 An ALJ may credibility, consider including " ( 1) a range of factors ordinary techniques in of assessing credibility 15 evaluation, such as the claimant's reputation for lying, prior and other 16 inconsistent 17 18 19 20 statements testimony by the conce rning claimant that the appears symptoms, less than candid; ( 2) unexplained or inadequately explained failure to seek treatment or to follow a prescribed course of treatment; and (3) the claimant 's daily activities. " Smolen , 80 F . 3d at 12 84. 21 22 23 24 25 26 27 6 ( ••• continued ) n.10 (9 th Cir. 2012 ); Molina v. Astrue, 674 F.3d 1104 , 1112 (9th Cir . 2 01 2 ); Ta ylor v . Comm'r of Soc . Sec . Admin ., 659 F . 3d 1228, 1234 (9th Cir. 2011); Valentine, 574 F. 3d at 693; Ballard v. Apfel, 200 0 WL 1899797, at *2 n.1 (C,D. Cal. Dec. 19, 2000) (collecting cases) . As set forth infra, the ALJ's f indings in this case are sufficient under e ither the " clear and convincing" standard, or the requirement that the ALJ make " specific f indings" suppo rted by the record i n making t he credibi lity eval u ation, so the distinction between the t wo standards (i f any ) is academic . 28 17 1 The ALJ's Credibility Finding 2. 2 3 n The ALJ stated that Plaintiff "alleges chronic, 4 n pain with muscle spasms and numbness in his legs." 5 II severe back (A.R. 13). She stated the following with respect to Plaintiff's credibility: 6 After careful consideration of the evidence, 7 undersigned 8 that finds the claimant's the medically determinable impairments could reasonably be expected to 9 cause 10 the alleged statements 11 symptoms; concerning the however, the intensity, claimant's persistence and limiting effects of these symptoms are not credible to 12 the extent they are inconsistent with the above 13 residual functional capacity assessment. 14 15 (Id.) 16 17 18 19 The Court's discounted reasons: review Plaintiff's of the ALJ' s testimony decision for the shows following that she specific (1) diagnostic testing, and the record when viewed as a 20 whole, 21 impairment is "preclusive of all types of work"; 22 prescription medications are effective, and without side effects; 23 ( 3) 24 nature; 25 more 26 injections, and 27 activities which is not supportive Plaintiff's (4) treatment of Plaintiff's contention (2) that his Plaintiff's has been conservative and routine in Plaintiff declined to follow up on therapies somewhat invasive than physical therapy, a are discogram; not (5) limited 28 18 including epidural steroid Plaintiff to the described extent that daily would be 1 expected 2 limitations; 3 regarding his medication side effects. given his and complaints of Plaintiff made (6) disabling symptoms inconsistent and statements (Id. 14-15). 4 a. 5 Objective Medical Evidence 6 7 Although a claimant's credibility "cannot be rejected on the 8 sole ground that it is not fully corroborated by objective medical 9 evidence, 10 11 12 13 14 Rollins, the medical evidence is still a relevant factor 261 F.3d at 857. evidence is credibility. determining a key " Lack of supporting objective medical consideration See 20 C.F.R. disability, . §§ an for the ALJ in evaluating 404.1529(c) (4); 416.929(c) (4) ALJ must evaluate a (in claimant's statements about the intensity, persistence and limiting effects of his symptoms "in relation to the objective medical evidence and 15 other evidence"). 16 17 18 19 20 Here, the ALJ reviewed the July 11, 2008, diagnostic imaging of Plaintiff's lumbar spine, which reported only mild degenerative disc disease and osteoarthritic changes "from the 14 through 11 vertebral bodies." (A.R. 14 (citing id. 525)). The ALJ also noted 21 that the imaging showed no evidence of canal or foramina! stenosis, 22 or nerve root involvement. (Id.). 23 24 Furthermore, Plaintiff's physical examinations "consistently, 25 albeit 26 findings." 27 reflected normal posture when sitting and standing, rising without not universally, (Id.). For reported either instance, various 28 19 minimal or normal examination reports 1 difficulty from a sitting position or the examining table, a normal 2 gait, no tenderness of the lumbar spine (although one report noted 3 "areas of tenderness to palpation"), mildly reduced or full range 4 of lumbar motion, 5 strength, 6 assistive device for ambulation. normal These 7 II 502)). negative straight leg raising, reflexes, are valid 8 subjective complaints. 9 595, 10 11 12 13 14 600 normal (Id. reasons Morgan v. (9th Cir. 1999) sensation, normal muscle and lack of an (citing id. 367-69, 472-73, for discounting Plaintiff's Comm'r of Soc. Sec., 169 F.3d (conflict between subjective complaints and the objective medical evidence in the record is a sufficient reason that Apfel, undermines 240 F.3d decision that orthopedic a claimant's 1157-1165-66 credibility; (9th Cir. 2001) relied in part on finding evaluations revealed "very Osenbrock (affirming ALJ' s that neurological little v. evidence" of and any significant disabling abnormality of the claimant's upper or lower 15 extremities, or spine). 16 17 18 19 20 Accordingly, substantial evidence supports the ALJ's credibility analysis with respect to the objective medical evidence and this was a clear and convincing reason for discounting Plaintiff's credibility. 21 22 More importantly, as discussed below, this was not the sole 23 legally sufficient reason for discounting Plaintiff's credibility. 24 25 b. Effective Medication Without Side Effects 26 27 The ALJ also discredited Plaintiff's testimony because the 28 20 1 treatment notes reflected that 2 prescription 3 effective, and without side effects. medications," "a regimen of Plaintiff follows which, according Dr. to Lee are (A.R. 14). 4 The 5 ALJ also reported that Plaintiff made inconsistent 6 statements regarding the side effects of his medications, noting 7 that in his disability report he reported side effects, but then 8 reported to his treating source that there are no side effects from 9 the 10 11 same medications. ( Id. 15 (citing id. 24 7 (claiming his medications may cause ringing in his ears), 429 (Plaintiff reported no side effects from the medication he "has been on regularly")). 12 The 13 14 record supports these findings. Plaintiff's health records do not indicate any complaints of side effects, and there is no indication that aRy medications were discontinued or modified 15 as 16 17 18 19 20 a result of such complaints. Indeed, Dr. Lee routinely continued prescribing Plaintiff the same medications. ( Id. 24 7, 427-29, 499, 501, 480, 482, 484, 486, 488, 490, 503, 505, 507, 509, 511, 513, 515)). 492, 494, 497, On March 16, 2011, Dr. Lee noted that he was renewing Plaintiff's medication "as it allows [Plaintiff] to function." (Id. 499; see also id. 482 (Plaintiff 21 told Dr. Lee he needs medication for his pain "which allows him to 22 function") ) . 23 symptoms 24 and/or therapy 25 hearing, although Plaintiff noted that he sometimes feels dizzy, or 2 6 II needs are Dr. Lee also repeatedly "alleviated with (Id. 488, 492, massage, 497, 501, to take a nap during the day, noted heat 505, 21 Plaintiff's and medications," 509, 513). At the he was not sure if it was 27 Ubecause of his medications or for other reasons. 28 that (Id. 41-42, 44). 1 He did not mention ringing in his ears. 2 3 In assessing a claimant's credibility about his symptoms, an 4 ALJ may consider "the type, dosage, effectiveness, and side effects 5 of any medication." 6 on "ordinary techniques of credibility evaluation," in assessing 7 the credibility of the allegedly disabling symptoms. 8 Sullivan, 9 Plaintiff's statements in his disability report regarding possible 10 medication side effects were inconsistent with the medical record 11 947 20 C.F.R. F.2d 341, § 404.1529(c). 346-47 (9th Cir. An ALJ may also rely 1991). Bunnell v. In this case, and his testimony at the hearing. 12 Accordingly, these were valid reasons supported by substantial 13 14 evidence of record for discounting Plaintiff's credibility. 15 c. Conservative and Routine Treatment 16 17 18 19 20 The ALJ's credibility assessment also relies on the fact that Plaintiff's treatment for his "'allegedly disabling impairment" has been "essentially routine and/or conservative in nature." 14). (A.R. She noted that Plaintiff had received physical therapy, and 21 was "discharged" from that practice on June 10, 2010, "having met 22 all of his goals." (Id. (citing id. 405)). 23 24 A review of the record supports the ALJ's conclusion. For 25 II instance, Plaintiff's Worker's Compensation reports indicated that 2 6 II he had been treated conservatively for "the past four years," with 2711 medications and physical therapy. 28 22 (Id. 518, 525). On July 27, 1 2010, 2 and medications as well as his home exercise program." Plaintiff was "instructed to finish his [physical] therapy (Id.). 3 4 The ALJ was entitled to discount Plaintiff's credibility based 5 on his positive response to conservative treatment. 6 v. Astrue, 533 F.3d 1035, 1040 (9th Cir. 2008) 7 11 claimant's "response to conservative See Tommasetti (ALJ may infer that treatment undermines 8 [claimant's] reports regarding the disabling nature of his pain" ) ; 9 Johnson, 60 F.3d at 1432 (ALJ may properly rely on the fact that o nly conservative treatment has been prescribed). 10 11 The ALJ also relied on the fact that Plaintiff had refused 12 "somewhat mo r e invasive" therapies than physi c al therapy, including 13 epidural steroid injections, and a discogram. 14 522, 15 52 5) ) . c laimant's 16 An ALJ may consider many credibility, 17 exp la ined failure including factors "unexp lained to seek treatment or to course of treatment. (A.R. 14 (citing id. in or follow weighing a inadequately a p rescribed Tommasetti, 533 F.3d at 1039. 18 19 20 According ly , these were clear and convincing reasons to discount Plaintiff ' s credibi lit y. 21 22 d. Activities of Daily Living 23 24 25 The ALJ also discounted Plaintiff's credibility to the extent his complaints we re inconsistent with his reported activities , 26 II incl uding the abil ity to attend to his own hygiene and grooming , 27 drive a car , a ttend to ligh t yard wo r k , a tte nd to l i ght mechan ica l 28 23 1 maintenance, 2 television for pleasure. 3 concluded: prepare his own meals, (A.R. 15 shop in stores, (citing id. and watch 248)). The ALJ 4 5 In short, 6 which are not limited to the extent one would expect, 7 given 8 limitations. 9 activities is functional limitation 10 11 12 13 14 the claimant has described daily activities, the although complaints It is not none of of noted disabling that consistent the scope with alleged these symptoms by the the activities, of and these degree of claimant, considered and alone, would warrant or direct a finding of not disabled, when considered in combination, they strongly suggest that the claimant activity would be capable contemplated by of engaging the in residual the work functional 15 capacity. 16 17 18 19 20 21 (Id.). The ALJ also noted that although Plaintiff alleges he performs "few house chores," he lives alone and does not report that he gets any sort of help in maintaining his residence. (Id.). Daily activities that are inconsistent with alleged symptoms are a relevant credibility determination. Rollins, 261 F.3d at 857. 22 23 24 Accordingly, the Court finds that this was a legally reason for the ALJ's adverse credibility finding. 25 26 27 28 24 Conclusion 3. 1 2 The legally valid reasons given by the ALJ for discounting 3 4 Plaintiff's credibility sufficiently allow the Court to conclude 5 that the ALJ credibility finding was based on permissible grounds. 6 The Court therefore defers to the ALJ's credibility determination. 7 See Lasich v. (court 8 will Astrue, defer 252 Fed. to ALJ' s App'x 823, 825 (9th Cir. 200 7 ) credibility determination when the proper process is used and proper reasons for the decision are 'I 9 p r o vided); a ccord Flat e n v. Sec'y of Health and Human Serv., 44 10 F. 3d 1453, 1464 (9th Cir . 1995). Where the ALJ has made specific 11 findings justifying a decision to disbelieve Plaint i ff's sympt om 12 a ll egations 13 and those fin d ings e v idence i n t h e re c ord, are "we may n ot supported by substant ia l e n ga ge in s e cond gue ss i n g ." 14 .. Thomas, 278 F.3d at 958-59. 15 16 ORDER 17 18 19 Fo r all of the foreg oi ng reason s , the dec i sion of t he La w J udge i s affi rme d . 20 2 1 II 22 LET JUDGMENT BE ENTERED ACCORDINGLY. IIDATED: Decembe r 4 , 2 01 4 . 23 s ALKA SAGAR UNITE D STATES MAGI STRATE J UDGE 24 25 26 27 28 25

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