Ray Lee Bray v. Carolyn W Colvin, No. 5:2014cv01772 - Document 20 (C.D. Cal. 2015)
Court Description: MEMORANDUM OPINION AND ORDER AFFIRMING COMMISSIONER by Magistrate Judge Jean P. Rosenbluth. IT IS ORDERED that judgment be entered AFFIRMING the decision of the Commissioner, DENYING Plaintiff's request for remand, and DISMISSING this action with prejudice. IT IS FURTHER ORDERED that the Clerk serve copies of this Order and the Judgment on counsel for both parties. (See Order for details) (bem)
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Ray Lee Bray v. Carolyn W Colvin Doc. 20 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 RAY LEE BRAY, Plaintiff, 12 13 v. 14 CAROLYN W. COLVIN, Acting Commissioner of Social Security, 15 Defendant. 16 ) Case No. EDCV 14-1772-JPR ) ) ) MEMORANDUM OPINION AND ORDER ) AFFIRMING COMMISSIONER ) ) ) ) ) ) ) 17 18 I. PROCEEDINGS 19 Plaintiff seeks review of the Commissioner’s final decision 20 denying his application for Social Security disability insurance 21 benefits (“DIB”) and supplemental security income benefits 22 (“SSI”). 23 undersigned U.S. Magistrate Judge under 28 U.S.C. § 636(c). 24 matter is before the Court on the parties’ Joint Stipulation, 25 filed July 23, 2015, which the Court has taken under submission 26 without oral argument. 27 Commissioner’s decision is affirmed. The parties consented to the jurisdiction of the The For the reasons stated below, the 28 1 Dockets.Justia.com 1 II. 2 BACKGROUND Plaintiff was born in 1964. (Administrative Record (“AR”) 3 141.) 4 year of college and worked in construction. 5 In a Disability Report he stated that he completed one (AR 160.)1 On February 9, 2011, Plaintiff filed applications for DIB 6 and SSI (AR 141, 145), alleging that he had been unable to work 7 since April 11, 2009, because of severe asthma and ankle and back 8 problems (AR 159). 9 and on reconsideration, he requested a hearing before an After his applications were denied initially 10 Administrative Law Judge. 11 September 17, 2012, at which Plaintiff, who was represented by 12 counsel, testified, as did a vocational expert. 13 a written decision issued September 27, 2012, the ALJ found 14 Plaintiff not disabled. 15 Appeals Council denied Plaintiff’s request for review. 16 This action followed. 17 III. STANDARD OF REVIEW 18 (AR 79.) (AR 19-32.) A hearing was held on (AR 39-59.) In On May 13, 2014, the (AR 4.) Under 42 U.S.C. § 405(g), a district court may review the 19 Commissioner’s decision to deny benefits. 20 decision should be upheld if they are free of legal error and 21 supported by substantial evidence based on the record as a whole. 22 See id.; Richardson v. Perales, 402 U.S. 389, 401 (1971); Parra 23 v. Astrue, 481 F.3d 742, 746 (9th Cir. 2007). 24 evidence means such evidence as a reasonable person might accept 25 as adequate to support a conclusion. The ALJ’s findings and Substantial Richardson, 402 U.S. at 26 27 28 1 At the hearing before the ALJ, however, Plaintiff stated that he completed seven years of college total at two different schools but didn’t graduate from either. (AR 41.) 2 1 401; Lingenfelter v. Astrue, 504 F.3d 1028, 1035 (9th Cir. 2007). 2 It is more than a scintilla but less than a preponderance. 3 Lingenfelter, 504 F.3d at 1035 (citing Robbins v. Soc. Sec. 4 Admin., 466 F.3d 880, 882 (9th Cir. 2006)). 5 substantial evidence supports a finding, the reviewing court 6 “must review the administrative record as a whole, weighing both 7 the evidence that supports and the evidence that detracts from 8 the Commissioner’s conclusion.” 9 720 (9th Cir. 1996). To determine whether Reddick v. Chater, 157 F.3d 715, “If the evidence can reasonably support 10 either affirming or reversing,” the reviewing court “may not 11 substitute its judgment” for that of the Commissioner. 12 720-21. 13 IV. Id. at THE EVALUATION OF DISABILITY 14 People are “disabled” for purposes of receiving Social 15 Security benefits if they are unable to engage in any substantial 16 gainful activity owing to a physical or mental impairment that is 17 expected to result in death or has lasted, or is expected to 18 last, for a continuous period of at least 12 months. 19 § 423(d)(1)(A); Drouin v. Sullivan, 966 F.2d 1255, 1257 (9th Cir. 20 1992). 42 U.S.C. 21 A. The Five-Step Evaluation Process 22 The ALJ follows a five-step sequential evaluation process to 23 assess whether a claimant is disabled. 24 §§ 404.1520(a)(4), 416.920(a)(4); Lester v. Chater, 81 F.3d 821, 25 828 n.5 (9th Cir. 1995) (as amended Apr. 9, 1996). 26 step, the Commissioner must determine whether the claimant is 27 currently engaged in substantial gainful activity; if so, the 28 claimant is not disabled and the claim must be denied. 3 20 C.F.R. In the first 1 §§ 404.1520(a)(4)(i), 416.920(a)(4)(i). 2 If the claimant is not engaged in substantial gainful 3 activity, the second step requires the Commissioner to determine 4 whether the claimant has a “severe” impairment or combination of 5 impairments significantly limiting his ability to do basic work 6 activities; if not, the claimant is not disabled and his claim 7 must be denied. 8 9 §§ 404.1520(a)(4)(ii), 416.920(a)(4)(ii). If the claimant has a “severe” impairment or combination of impairments, the third step requires the Commissioner to 10 determine whether the impairment or combination of impairments 11 meets or equals an impairment in the Listing of Impairments 12 (“Listing”) set forth at 20 C.F.R. part 404, subpart P, appendix 13 1; if so, disability is conclusively presumed. 14 §§ 404.1520(a)(4)(iii), 416.920(a)(4)(iii). 15 If the claimant’s impairment or combination of impairments 16 does not meet or equal an impairment in the Listing, the fourth 17 step requires the Commissioner to determine whether the claimant 18 has sufficient residual functional capacity (“RFC”)2 to perform 19 his past work; if so, he is not disabled and the claim must be 20 denied. 21 has the burden of proving he is unable to perform past relevant 22 work. 23 burden, a prima facie case of disability is established. §§ 404.1520(a)(4)(iv), 416.920(a)(4)(iv). Drouin, 966 F.2d at 1257. The claimant If the claimant meets that Id. 24 If that happens or if the claimant has no past relevant 25 work, the Commissioner then bears the burden of establishing that 26 27 28 2 RFC is what a claimant can do despite existing exertional and nonexertional limitations. §§ 404.1545, 416.945; see Cooper v. Sullivan, 880 F.2d 1152, 1155 n.5 (9th Cir. 1989). 4 1 the claimant is not disabled because he can perform other 2 substantial gainful work available in the national economy. 3 §§ 404.1520(a)(4)(v), 416.920(a)(4)(v); Drouin, 966 F.2d at 1257. 4 That determination comprises the fifth and final step in the 5 sequential analysis. 6 Lester, 81 F.3d at 828 n.5; Drouin, 966 F.2d at 1257. §§ 404.1520(a)(4)(v), 416.920(a)(4)(v); 7 B. 8 At step one, the ALJ found that Plaintiff had not engaged in 9 The ALJ’s Application of the Five-Step Process substantial gainful activity since April 11, 2009, the alleged 10 onset date. (AR 21.) 11 had the severe impairment of degenerative disc disease of the 12 lumbar spine with radiculopathy.3 13 determined that Plaintiff’s impairments did not meet or equal a 14 listing. 15 RFC to perform light work with additional restrictions. 16 25.) 17 pounds occasionally and 10 pounds frequently. 18 stand and walk for at least two hours and sit for about six hours 19 of an eight-hour day. 20 postural activities such as climbing, balancing, stooping, 21 kneeling, crouching, and crawling but could not climb ladders, 22 ropes, or scaffolds. 23 exposure to irritants such as fumes, odors, dusts and gases.” 24 (AR 25.) 25 Plaintiff could not perform his past relevant work as a (AR 24.) At step two, he concluded that Plaintiff (Id.) At step three, the ALJ At step four, he found that Plaintiff had the (AR 24- Specifically, Plaintiff could lift, carry, push, or pull 20 (Id.) (Id.) (AR 24.) He could He could occasionally perform He was also to “avoid even moderate Based on the VE’s testimony, the ALJ concluded that 26 27 3 28 The ALJ found that Plaintiff’s other alleged impairments were not severe (AR 21-24), which Plaintiff does not challenge. 5 1 construction superintendent. 2 found that Plaintiff could perform jobs existing in significant 3 numbers in the national economy. 4 him not disabled. 5 V. 6 (AR 29-30.) (AR 30.) At step five, the ALJ Accordingly, he found (AR 31.) DISCUSSION Plaintiff claims that the ALJ erred in assessing the 7 opinions of two treating physicians and Plaintiff’s credibility. 8 (J. Stip. at 4.) 9 contentions in reverse order. 10 A. 12 The ALJ Properly Assessed Plaintiff’s Credibility 1. 11 For efficiency, the Court addresses Plaintiff’s Applicable law An ALJ’s assessment of symptom severity and claimant 13 credibility is entitled to “great weight.” 14 Sullivan, 877 F.2d 20, 22 (9th Cir. 1989) (as amended); Nyman v. 15 Heckler, 779 F.2d 528, 531 (9th Cir. 1985) (as amended Feb. 24, 16 1986). 17 of disabling pain, or else disability benefits would be available 18 for the asking, a result plainly contrary to 42 U.S.C. 19 § 423(d)(5)(A).’” 20 Cir. 2012) (quoting Fair v. Bowen, 885 F.2d 597, 603 (9th Cir. 21 1989)). 22 See Weetman v. “[T]he ALJ is not ‘required to believe every allegation Molina v. Astrue, 674 F.3d 1104, 1112 (9th In evaluating a claimant’s subjective symptom testimony, the 23 ALJ engages in a two-step analysis. See Lingenfelter, 504 F.3d 24 at 1035-36. 25 has presented objective medical evidence of an underlying 26 impairment ‘[that] could reasonably be expected to produce the 27 pain or other symptoms alleged.’” 28 v. Sullivan, 947 F.2d 341, 344 (9th Cir. 1991) (en banc)). “First, the ALJ must determine whether the claimant 6 Id. at 1036 (quoting Bunnell If 1 such objective medical evidence exists, the ALJ may not reject a 2 claimant’s testimony “simply because there is no showing that the 3 impairment can reasonably produce the degree of symptom alleged.” 4 Smolen v. Chater, 80 F.3d 1273, 1282 (9th Cir. 1996) (emphasis in 5 original). 6 If the claimant meets the first test, the ALJ may discredit 7 the claimant’s subjective symptom testimony only if he makes 8 specific findings that support the conclusion. 9 Astrue, 622 F.3d 1228, 1234 (9th Cir. 2010). See Berry v. Absent a finding or 10 affirmative evidence of malingering, the ALJ must provide “clear 11 and convincing” reasons for rejecting the claimant’s testimony.4 12 Brown-Hunter v. Colvin, __ F.3d __, No. 13-15213, 2015 WL 13 6684997, at *5 (9th Cir. Nov. 3, 2015); Treichler v. Comm’r of 14 Soc. Sec. Admin., 775 F.3d 1090, 1102 (9th Cir. 2014); Ghanim v. 15 Colvin, 763 F.3d 1154, 1163 & n.9 (9th Cir. 2014). 16 consider, among other factors, (1) ordinary techniques of 17 credibility evaluation, such as the claimant’s reputation for 18 lying, prior inconsistent statements, and other testimony by the 19 claimant that appears less than candid; (2) unexplained or 20 inadequately explained failure to seek treatment or to follow a 21 prescribed course of treatment; (3) the claimant’s daily 22 activities; (4) the claimant’s work record; and (5) testimony 23 from physicians and third parties. 24 Admin., 795 F.3d 1177, 1186 (9th Cir. 2015); Thomas v. Barnhart, The ALJ may Rounds v. Comm’r Soc. Sec. 25 26 27 28 4 Defendant objects to the clear-and-convincing standard but acknowledges that her argument was rejected in Burrell v. Colvin, 775 F.3d 1133, 1136-37 (9th Cir. 2014). (J. Stip at 29 n.7); see Brown-Hunter v. Colvin, __ F.3d __, No. 13-15213, 2015 WL 6684997, at *5 (9th Cir. Nov. 3, 2015) (reaffirming Burrell). 7 1 278 F.3d 947, 958-59 (9th Cir. 2002). 2 finding is supported by substantial evidence in the record, the 3 reviewing court “may not engage in second-guessing.” 4 F.3d at 959. 5 2. 6 If the ALJ’s credibility Thomas, 278 Relevant background At the hearing, Plaintiff testified that he had had lower- 7 back pain for several years before February 2009, when he hurt 8 his back trying to lift a manhole cover off a truck at a 9 construction site. (AR 47-48.) After the incident, he could not 10 get out of bed and took Oxycontin twice a day for 30 days, which 11 seemed to help. 12 (AR 48.) Plaintiff testified that he had lower-back pain every day, 13 and it lasted all day but at different levels. 14 scale of zero to 10, level three was a “good day” and he could 15 “handle” level five, but he had a “hard time” when the pain was 16 “severe,” at level seven. 17 for a maximum of two hours and stand for an hour or two. 18 44.) 19 it” in pain. 20 around his house. 21 (AR 49.) On a He testified that he could sit (Id.) (AR He stated that he could “lift anything” but would “pay for (AR 45.) The farthest he could walk was a block (AR 44-45.) Plaintiff also testified that he had shooting pain down his 22 right leg, and if he used his feet, he had pain down his left leg 23 and in his lower back. 24 lower-back spasms. 25 (AR 53.) He also experienced sudden (AR 54.) Plaintiff testified that he was taking several pain 26 medications, including oxycodone, Soma, Norvasc, fentanyl 27 patches, and Meloxicam but was going to discontinue Meloxicam 28 because it wasn’t helping. (AR 49-50, 55.) 8 He wanted to change 1 his doctor because he thought his medications weren’t managing 2 his pain. 3 to concentrate to read, he did not have any side effects from his 4 pain medication. 5 discussed surgery with him, but he did not want it because they 6 told him there was a 70 percent chance it would not be 7 successful. 8 9 (AR 50.) Other than feeling groggy and being unable (AR 52.) He testified that his doctors had (AR 46-47.) Plaintiff appeared at the hearing in a wheelchair, and he testified that he used it when he knew he would be “up” for two 10 to three hours, which happened about five times a month. 11 42.) 12 to help with housework, cleaning, and grocery shopping. 13 43.) He had difficulty showering and bathing but sometimes tried 14 15 (AR 3. (AR 42- Analysis The ALJ found Plaintiff “partially credible because he has 16 some limitations, but not to the extent alleged.” 17 discussed below, he provided clear and convincing reasons for 18 doing so. 19 (AR 25.) As The ALJ discounted Plaintiff’s testimony because his alleged 20 symptoms and limitations were “inconsistent with the objective 21 medical evidence, which indicates an attempt by [Plaintiff] to 22 exaggerate the severity of his symptoms.” 23 noted that the record contained no treatment notes from April 24 2009, the alleged onset date, to mid-2010. 25 although treatment records from July 2010 to August 2012 showed 26 that Plaintiff had tenderness and decreased range of motion in 27 his lower extremities, they also documented many instances of 28 negative or only mildly positive straight-leg raises, normal 9 (AR 25.) (AR 26.) He first Further, 1 motor strength, and only mildly reduced sensation. For example, 2 every treatment note from Plaintiff’s physician at Global Pain 3 Care from November 2011 to August 2012 indicated that Plaintiff 4 had motor strength of five of five and was negative for straight- 5 leg raise in both legs. 6 556, 559, 562, 565.) 7 the neurosurgery clinic at Arrowhead Regional Medical Center, in 8 October 2011, April 2012, and August 2012, showed motor strength 9 of five of five in upper and lower extremities (AR 484, 506, (AR 535, 538, 541, 544, 547, 550, 553, Additionally, Plaintiff’s three visits to 10 567), “very mildly reduced” sensation in the right leg (AR 484), 11 and negative or only mildly positive results for straight-leg 12 raising (AR 506 (mildly positive in right, negative in left), 567 13 (negative in right and left)). 14 Plaintiff’s “extreme” description of the severity of his pain, 15 there was no evidence of muscle atrophy in the record. 16 see Meanel v. Apfel, 172 F.3d 1111, 1114 (9th Cir. 1999) (as 17 amended) (affirming ALJ’s discounting of claimant’s allegations, 18 including that claimant “did not exhibit muscular atrophy”); 19 Spurlock v. Colvin, No. EDCV 14-01521-JEM, 2015 WL 1735196, at *8 20 (C.D. Cal. Apr. 16, 2015) (finding that lack of muscle atrophy is 21 legitimate consideration in evaluating claimant’s credibility). 22 The ALJ was entitled to consider the lack of objective medical 23 evidence in assessing Plaintiff’s credibility. 24 Barnhart, 400 F.3d 676, 681 (9th Cir. 2005) (“Although lack of 25 medical evidence cannot form the sole basis for discounting pain 26 testimony, it is a factor that the ALJ can consider in his 27 credibility analysis.”); Carmickle v. Comm’r, Soc. Sec. Admin., 28 533 F.3d 1155, 1161 (9th Cir. 2008) (“Contradiction with the The ALJ also noted that despite 10 (AR 26); See Burch v. 1 medical record is a sufficient basis for rejecting the claimant’s 2 subjective testimony.”); Lingenfelter, 504 F.3d at 1040 (in 3 determining credibility, ALJ may consider “whether the alleged 4 symptoms are consistent with the medical evidence”). 5 The ALJ also discredited Plaintiff’s allegations because the 6 record showed that he received “routine conservative treatment 7 for complaints [of] back and leg pain.” 8 the “lack of more aggressive treatment such as surgical 9 intervention suggest[ed] [Plaintiff’s] symptoms and limitations (AR 26.) (Id.) Specifically, 10 were not as severe as he alleged.” Indeed, in June 2011, 11 a physician at the orthopedic clinic told Plaintiff that surgical 12 intervention was “not appropriate” and advised him to continue 13 his pain-management regimen with his primary-care physician. 14 525.) 15 for surgery evaluation, but examination results were generally 16 unremarkable, and the physician noted that Plaintiff needed a new 17 MRI because the most recent MRI was a year old and his symptoms 18 were “waxing and waning.” 19 another MRI until five months later, on March 14, 2012 (AR 502), 20 which he presented at his next visit to the neurosurgery clinic, 21 on April 5, 2012 (AR 484). 22 results of multilevel degenerative disc disease and posterior 23 degenerative facet-joint disease (AR 502), the neurosurgery 24 specialist concluded that “no neurosurgery intervention is 25 indicated” and that Plaintiff required “strenuous physical 26 therapy” instead (AR 485). 27 therapy Plaintiff had tried “was not professional physical 28 therapy and it was only done through [Plaintiff’s] friend.” (AR In October 2011, Plaintiff went to the neurosurgery clinic (AR 506.) But Plaintiff did not get Even after reviewing the MRI’s He further noted that the physical 11 (AR 1 484.) He also indicated that Plaintiff appeared “very strong” 2 and that “since [Plaintiff] is an athlete, physical therapy can 3 truly be beneficial to him.” 4 August 2012, a different physician at the same neurosurgery 5 clinic noted that Plaintiff had failed to do the physical therapy 6 that was prescribed at his last visit.5 7 the doctor did not recommend surgery and instead advised 8 Plaintiff to do physical and occupational therapy and to continue 9 treatment with pain medication. (AR 484-85.) Four months later, in (AR 567.) (AR 567-68.) As before, As the ALJ noted, 10 this evidence contradicted Plaintiff’s testimony that his doctors 11 had recommended surgery but he declined to pursue it because 12 there was a 70 percent chance it would not be successful. 13 46-47.) 14 (AR Plaintiff also states that he “was not a candidate for 15 surgery because of his other multiple problems.” (J. Stip. at 16 25.) 17 in June 2011 because of Plaintiff’s unspecified “multiple 18 problems” (AR 525), later, in April and August 2012, neurosurgery 19 specialists did not mention any such issues in concluding that 20 surgery was not appropriate (see AR 485, 567). 21 noted “no neurosurgical lesion at this time amenable with 22 surgery” (AR 567), prescribed continued conservative treatment 23 with pain medication, physical therapy, and possible injections 24 (AR 485, 567), and concluded that Plaintiff did “not need any 25 further neurosurgical followup” (AR 567). Although an orthopedic specialist advised against surgery Instead, they See Riddell v. Astrue, 26 27 5 28 Plaintiff told the doctor he never received the referral for physical therapy. (AR 567.) 12 1 No. 3:11-CV-381-BR, 2012 WL 1151585, at *8 (D. Or. Apr. 5, 2012) 2 (ALJ properly based credibility determination on conservative 3 treatment when no physician recommended surgery, including 4 neurosurgeon who found that claimant was “neurologically intact” 5 and “no instability in the cervical spine” accounted for his neck 6 pain); Martinez v. Colvin, No. CV 13-6741-SH, 2014 WL 2533784, at 7 *3 (C.D. Cal. June 5, 2014) (ALJ properly discounted claimant’s 8 testimony based on conservative treatment when no physician 9 recommended surgery and claimant was treated with “pain 10 management” and epidural injections). The ALJ also stated that although Plaintiff testified that 11 12 he needed to use a wheelchair five times a month, there was no 13 evidence in the record that a physician ever actually prescribed 14 one. 15 wheelchair for Plaintiff. 16 doctor who ordered the wheelchair is the same doctor whose 17 assessments of Plaintiff’s condition the ALJ properly rejected, 18 as explained in the next section, and thus any error in the ALJ’s 19 statement was harmless. 20 454 F.3d 1050, 1055 (9th Cir. 2006) (error harmless when it is 21 “inconsequential to the ultimate nondisability determination”); 22 see also Molina, 674 F.3d at 1115. 23 (AR 26; see AR 42.) In fact, a doctor apparently ordered a (See AR 414, 423, 430, 456.) But the See Stout v. Comm’r, Soc. Sec. Admin., Finally, as the ALJ noted, although Plaintiff’s 24 prescriptions for “strong narcotic medication weigh[ed] in [his] 25 favor,” the record indicates that his medications were 26 “relatively effective in controlling [his] symptoms with 27 28 13 1 occasional adjustments,” which was contrary to his testimony.6 2 (AR 26; see, e.g., AR 537, 540, 543, 549, 552, 558, 561.) 3 Plaintiff also received epidural injections and radiofrequency 4 neurotomies, which were sometimes helpful.7 5 (Plaintiff reporting “marked improvement” after Dec. 2010 6 radiofrequency neurotomy), 271 (in Sept. 2010, Plaintiff 7 reporting that epidural injections in past several years had 8 relieved pain), 322 (June 2011 injection provided 30 percent pain 9 relief), 555 (Jan. 2012 injection provided 20 to 30 percent pain (See AR 252 10 relief for two weeks), 558 (Dec. 2011 injection provided 20 to 30 11 percent pain relief for two weeks).) 12 That orthopedic and neurosurgery specialists recommended 13 treatment with only pain medication and physical therapy was a 14 clear and convincing basis on which to discount Plaintiff’s 15 16 17 18 19 20 21 22 23 24 25 26 27 28 6 Several physicians expressed suspicion that Plaintiff might be abusing or diverting his narcotic pain medication. (See AR 207-08 (on Aug. 19, 2010, emergency-room physician writing, “need to get DOJ report” in notes and noting that Plaintiff was “very aggressive” in requesting “refill of narcotics” given two weeks earlier because he had allegedly lost them), 203 (on Sept. 3, 2010, physician refusing to refill pain medication and explaining to Plaintiff that he had received several pain medications in August), 201 (on Sept. 17, 2010, physician reminding Plaintiff to see only one doctor for change in medication), 272 (on Sept. 27, 2010, nurse practitioner telling Plaintiff he would receive no early refills and advising him not to engage in further “diversional behavior”), 522 (on July 3, 2011, emergency-room physician advising Plaintiff that “ER is not the place for chronic pain [treatment] or refills”).) 7 Radiofrequency neurotomy is a procedure for reducing back and neck pain using heat generated by radio waves to interfere with nerves’ ability to transmit pain signals. See Radiofrequency neurotomy, Mayo Clinic, http://www.mayoclinic.org/ tests-procedures/radiofrequency-neurotomy/basics/definition/ PRC-20013452?p=1 (last updated Nov. 26, 2014). 14 1 complaints of disabling pain. 2 1035, 1040 (9th Cir. 2008) (that claimant “did not seek an 3 aggressive treatment plan” and had favorable response to 4 conservative treatment with physical therapy, transcutaneous- 5 electrical-nerve-stimulation unit, lumbosacral corset, and anti- 6 inflammatory medication undermined allegations of disabling 7 impairment); Parra, 481 F.3d at 751 (evidence of conservative 8 treatment sufficient to discount claimant’s testimony regarding 9 severity of impairment); Walter v. Astrue, No. EDCV 09–1569 AGR, 10 2011 WL 1326529, at *3 (C.D. Cal. Apr. 6, 2011) (ALJ permissibly 11 discredited claimant’s allegations based on conservative 12 treatment consisting of medication, physical therapy, and 13 injection). 14 medication constituted nonconservative care, any error was 15 harmless given the ALJ’s reliance on Plaintiff’s inconsistent 16 statements about surgery and his daily activities, as explained 17 below, and the neurosurgeons’ prescribed conservative care. 18 Carmickle, 533 F.3d at 1162-63 (finding error harmless when ALJ 19 cited other reasons to support credibility determination). 20 See Tommasetti v. Astrue, 533 F.3d Even if Plaintiff’s injections and narcotic pain See Additionally, the ALJ refused to credit Plaintiff’s 21 allegations that his daily activities were “fairly limited” 22 because they could not “be objectively verified with any 23 reasonable degree of certainty” and it was “difficult to 24 attribute that degree of limitation to [Plaintiff’s] medical 25 condition, as opposed to other reasons, in view of the relatively 26 weak medical evidence and other factors discussed.” 27 Plaintiff may be correct that the ALJ improperly discounted his 28 testimony concerning his daily activities because it could not be 15 (AR 26.) 1 objectively verified. See Altamirano v. Colvin, No. ED CV 12- 2 1862-PLA, 2013 WL 3863956, at *7 (C.D. Cal. July 24, 2013) 3 (noting that “[o]bjective verifiability to a reasonable degree of 4 certainty is not a requirement imposed by law” (citation 5 omitted)); Baxla v. Colvin, 45 F. Supp. 3d 1116, 1128 (D. Ariz. 6 2014) (“that ‘“a fact cannot be verified objectively provides 7 little evidence to support the conclusion that the individual is 8 not being truthful about such fact in any particular instance”’” 9 (citation omitted)), appeal docketed, No. 14-17222 (9th Cir. Nov. 10 7, 2014). 11 activities do not appear to have been as limited as he alleged. 12 As the ALJ noted in particular, in October 2011, Plaintiff 13 reported that he was “extremely involved in sports” but had been 14 “taking it easy” in the last six weeks, and as a result, his pain 15 had improved. 16 precaution when doing excessive physical activity, including 17 fighting, jujitsu, walking, or any other physical activities that 18 he states he does for an extended period of time.” 19 Moreover, in April 2012, Plaintiff reported that he could 20 exercise for 25 minutes and that he used to run three miles but 21 now was capable only of walking six miles. 22 six months later, Plaintiff testified that he could walk no more 23 than around the block. 24 But he correctly found that Plaintiff’s daily (AR 506.) The doctor advised that he “take (AR 506-07.) (AR 484.) Less than (AR 44-45.) As discussed above, the ALJ was entitled to discount 25 Plaintiff’s allegations based on a lack of objective medical 26 evidence, the inconsistent statements surrounding his surgery and 27 daily activities, and, possibly, the conservative treatment 28 regimen prescribed by Plaintiff’s physicians. 16 In sum, the ALJ 1 provided clear and convincing reasons for finding Plaintiff 2 partially credible. 3 substantial evidence, this Court may not engage in 4 second-guessing. 5 entitled to remand on this ground. 6 B. See Thomas, 278 F.3d at 959. Plaintiff is not The ALJ Properly Assessed the Treating Physicians’ Opinions 7 Plaintiff contends that the ALJ erred in assessing the 8 9 Because those findings were supported by opinions of treating physicians Andres de la Llana and Nasrin 10 Lopa. (J. Stip. at 4-10.) 11 remand is not warranted. 12 1. For the reasons discussed below, Applicable law 13 Three types of physicians may offer opinions in Social 14 Security cases: (1) those who directly treated the plaintiff, (2) 15 those who examined but did not treat the plaintiff, and (3) those 16 who did neither. 17 opinion is generally entitled to more weight than an examining 18 physician’s, and an examining physician’s opinion is generally 19 entitled to more weight than a nonexamining physician’s. 20 Lester, 81 F.3d at 830. A treating physician’s Id. This is true because treating physicians are employed to 21 cure and have a greater opportunity to know and observe the 22 claimant. 23 opinion is well supported by medically acceptable clinical and 24 laboratory diagnostic techniques and is not inconsistent with the 25 other substantial evidence in the record, it should be given 26 controlling weight. 27 treating physician’s opinion is not given controlling weight, its 28 weight is determined by length of the treatment relationship, Smolen, 80 F.3d at 1285. If a treating physician’s §§ 404.1527(c)(2), 416.927(c)(2). 17 If a 1 frequency of examination, nature and extent of the treatment 2 relationship, amount of evidence supporting the opinion, 3 consistency with the record as a whole, the doctor’s area of 4 specialization, and other factors. 5 416.927(c)(2)-(6). 6 §§ 404.1527(c)(2)-(6), When a treating physician’s opinion is not contradicted by 7 other evidence in the record, it may be rejected only for “clear 8 and convincing” reasons. 9 Lester, 81 F.3d at 830-31). See Carmickle, 533 F.3d at 1164 (citing When it is contradicted, the ALJ 10 must provide only “specific and legitimate reasons” for 11 discounting it. 12 Furthermore, “[t]he ALJ need not accept the opinion of any 13 physician, including a treating physician, if that opinion is 14 brief, conclusory, and inadequately supported by clinical 15 findings.” 16 Soc. Sec. Admin., 359 F.3d 1190, 1195 (9th Cir. 2004). 17 Thomas, 278 F.3d at 957; accord Batson v. Comm’r of 2. 18 Id. (citing Lester, 81 F.3d at 830-31). Relevant background Dr. de la Llana treated Plaintiff for his lower-back pain 19 from April to June 2011. 20 a year later, he completed an Authorization to Release Medical 21 Information form, apparently in connection with Plaintiff’s 22 application for state welfare benefits. 23 he checked a box indicating that Plaintiff was unable to work. 24 (Id.) 25 opined that Plaintiff could sit and stand or walk no more than 26 two hours each a day. 27 using his hands or fingers for repetitive motions but was 28 restricted in using his feet for such motions because of muscle (AR 319-35.) On April 18, 2012, nearly (AR 442.) On the form, In an attached Physical Capacities form, Dr. de la Llana (AR 443.) 18 Plaintiff was not restricted in 1 spasms caused by prolonged standing and operating of foot 2 controls. 3 lift or carry even 10 pounds and could not climb, stoop, kneel, 4 crouch, crawl, or reach from below knees to chest. 5 could occasionally balance and reach from chest to above 6 shoulders. (Id.) Dr. de la Llana opined that Plaintiff could not (AR 444.) He (Id.) The ALJ gave “less weight” to Dr. de la Llana’s opinion 7 8 because it reported “extremely severe limitations, but his 9 treatment notes fail to reveal the type of significant clinical 10 and laboratory abnormalities one would expect if [Plaintiff] were 11 in fact disabled.” 12 Llana’s opinion “contrasts sharply with the other evidence of 13 record and is without substantial support from the other evidence 14 of record.” 15 (AR 28.) The ALJ noted that Dr. de la (Id.) Plaintiff saw Dr. Lopa on February 16, 2011, for a referral 16 to a pain-management specialist. 17 on February 24, 2011, for follow-up on lab work and requested 18 that she fill out a form for “social service cash aid.” 19 336.) 20 Information form identical to the one completed by Dr. de la 21 Llana. 22 that Plaintiff was unable to work and had functional limitations 23 that affected his ability to work. 24 Llana, however, Dr. Lopa did not attach a Physical Capacities 25 form specifying what those limitations were. 26 27 28 (AR 339-41.) He saw her again (AR That form was an Authorization to Release Medical (AR 447.) 3. On the form, Dr. Lopa checked boxes indicating (Id.) Unlike Dr. de la Analysis Dr. de la Llana’s opinion was contradicted by the opinions of the nonexamining state-agency physicians, who opined that 19 1 Plaintiff could lift or carry 20 pounds occasionally and 10 2 pounds frequently and could stand or walk for at least two hours 3 of an eight-hour workday, among other limitations.8 4 355.) 5 neurosurgery specialists who examined Plaintiff, who told 6 Plaintiff to “take precaution when doing excessive physical 7 activity” but did not limit him in any daily activity. 8 07.) 9 reasons supported by substantial evidence for rejecting Dr. de la 10 11 (AR 303, Dr. de la Llana was also contradicted by one of the (AR 506- Thus, the ALJ was required to give specific and legitimate Llana’s opinion, see Carmickle, 533 F.3d at 1164, which he did. The ALJ properly gave “less weight” to Dr. de la Llana’s 12 opinion because it was not supported by his treatment notes, 13 which did not document “the type of significant clinical and 14 laboratory abnormalities one would expect if [Plaintiff] were in 15 fact disabled.” 16 Llana saw Plaintiff from April to June 2011, he reviewed only one (AR 28.) Indeed, in the five times Dr. de la 17 8 18 19 20 21 22 23 24 25 26 27 28 Plaintiff asserts that the nonexamining state-agency physicians found him capable only of sedentary work, not light work. (J. Stip. at 5.) Although the state-agency physician on initial consideration did indicate a sedentary RFC in his Case Analysis (AR 309), he also opined on a separate Physical Residual Functional Capacity Assessment form that Plaintiff was capable of lifting or carrying 20 pounds occasionally and 10 pounds frequently (AR 303), which was consistent with the Social Security Administration’s definition of light work, see §§ 404.1567(b), 416.967(b) (“Light work involves lifting no more than 20 pounds at a time with frequent lifting or carrying of objects weighing up to 10 pounds.”); §§ 404.1567(a), 416.967(a) (“Sedentary work involves lifting no more than 10 pounds at a time . . . .”). The state-agency physician on reconsideration affirmed the “prior physical RFC as written” but did not resolve the discrepancy. (AR 355.) The discrepancy appears to have been a clerical error. Indeed, the ALJ reasonably interpreted the state-agency physicians’ findings as determining that Plaintiff could perform light work, not sedentary work. (See AR 29.) 20 1 imaging test: a year-old MRI of his lower back, which showed a 2 herniated disc at L5-S1 with mass effect on sacral nerve roots 3 but no significant central-canal stenosis of the lumbar spine. 4 (See AR 322.) 5 significant tenderness on palpation of his lower back and had 6 intact knee reflexes, Dr. de la Llana did not record any clinical 7 findings in his treatment notes supporting the functional 8 limitations he assessed. 9 Indeed, his treatment of Plaintiff consisted mainly of refilling Other than observations that Plaintiff had (See AR 320, 324, 328, 331-32, 334-35.) 10 his pain medication while he continued treatment at a pain- 11 management clinic (AR 324, 329) and referring him to specialists 12 in neurosurgery and orthopedics (AR 321, 324, 332). 13 the ALJ’s finding that Dr. de la Llana’s opinion was not 14 supported by his own treatment notes was specific and legitimate 15 and supported by substantial evidence. 16 416.927(c)(3) (more weight given “[t]he more a medical source 17 presents relevant evidence” and “[t]he better an explanation” it 18 provides to support its opinion); Connett v. Barnhart, 340 F.3d 19 871, 875 (9th Cir. 2003) (treating physician’s opinion properly 20 rejected when treatment notes “provide[d] no basis for the 21 functional restrictions he opined should be imposed on 22 [claimant]”); Thomas, 278 F.3d at 957 (“The ALJ need not accept 23 the opinion of any physician, including a treating physician, if 24 that opinion is . . . inadequately supported by clinical 25 findings.”). 26 Accordingly, See §§ 404.1527(c)(3), The ALJ also accorded less weight to Dr. de la Llana’s 27 opinion because it “contrast[ed] sharply with” and was not 28 supported by other evidence in the record. 21 (AR 28.) Indeed, as 1 the ALJ noted, other evidence in the record showed “relatively 2 benign findings.” 3 V.A, numerous treatment notes in the record indicated that 4 Plaintiff had straight-leg raises that were negative or only 5 mildly positive, normal motor strength, and very mildly reduced 6 sensation in his lower extremities. 7 541, 544, 547, 550, 553, 556, 559, 562, 565, 567.) 8 ALJ’s finding that Dr. de la Llana’s opinion was inconsistent 9 with the record was specific and legitimate and supported by (Id.) For example, as discussed in Section (See AR 484, 506, 535, 538, Thus, the 10 substantial evidence. 11 weight given “the more consistent an opinion is with the record 12 as a whole”); Batson, 359 F.3d at 1195 (“an ALJ may discredit 13 treating physicians’ opinions that are conclusory, brief, and 14 unsupported by the record as a whole . . . or by objective 15 medical findings”). 16 See §§ 404.1527(c)(4), 416.927(c)(4) (more Plaintiff argues that the ALJ erred in failing to address 17 the opinion of treating physician Lopa. 18 see AR 447.) 19 was harmless. 20 Cir. 2015) (holding that ALJ errs if he “totally ignore[s]” 21 treating-physician opinion but harmless-error analysis applies). 22 Dr. Lopa’s one-page opinion consisted only of checked-off boxes 23 indicating that Plaintiff was not able to work and had functional 24 limitations, without specifying what those limitations were. 25 447); cf. Molina, 674 F.3d at 1111 (ALJ may “permissibly reject 26 check-off reports that do not contain any explanation of the 27 bases of their conclusions” (alterations and citation omitted)). 28 Further, Dr. Lopa completed the form after seeing Plaintiff only (J. Stip. at 7-10 & n.2; Although the ALJ erred by not doing so, the error See Marsh v. Colvin, 792 F.3d 1170, 1172-73 (9th 22 (AR 1 two times total, over a two-week period, beginning about a week 2 after Plaintiff filed his Social Security applications. 3 41 (on Feb. 16, 2011, Plaintiff requesting “referral to pain 4 management”), 336 (on Feb. 24, 2011, Plaintiff requesting “form 5 fill out for social service cash aid”)); see Dominguez v. Colvin, 6 927 F. Supp. 2d 846, 858-59 (C.D. Cal. 2013) (ALJ properly 7 rejected treating-source opinion when physician completed 8 medical-source statement after seeing claimant only twice); cf. 9 Marsh, 792 F.3d at 1171-72 (error not harmless because ALJ failed (AR 339- 10 to mention progress notes spanning three years). 11 Dr. de la Llana, Dr. Lopa’s treatment of Plaintiff in those two 12 sessions consisted only of referring him to a pain-management 13 specialist, refilling his medications, and prescribing 14 “conservative therapy” with massage, a warm compress, and 15 exercise as tolerated. 16 recommended that Plaintiff perform “brisk walking” for 30 minutes 17 a day at least five days a week (along with other exercise) (AR 18 341), contradicting Plaintiff’s testimony that he could walk only 19 around the block. 20 any clinical support for the functional limitations she assessed 21 on the Authorization to Release Medical Information form. 22 §§ 404.1527(c)(3), 416.927(c)(3); Connett, 340 F.3d at 875; 23 Thomas, 278 F.3d at 957. 24 address Dr. Lopa’s opinion was harmless. 25 (AR 338, 341.) And, as with Indeed, Dr. Lopa Thus, her treatment notes failed to provide See Accordingly, the ALJ’s failure to Plaintiff is not entitled to remand on this ground.9 26 27 28 9 Plaintiff claims that the ALJ should have ordered a consultative examination. (J. Stip. at 9.) An ALJ has broad (continued...) 23 1 2 VI. CONCLUSION Consistent with the foregoing, and under sentence four of 42 3 U.S.C. § 405(g),10 IT IS ORDERED that judgment be entered 4 AFFIRMING the decision of the Commissioner, DENYING Plaintiff’s 5 request for remand, and DISMISSING this action with prejudice. 6 IT IS FURTHER ORDERED that the Clerk serve copies of this Order 7 and the Judgment on counsel for both parties. 8 9 DATED: November 17, 2015 ____________________________ JEAN ROSENBLUTH U.S. Magistrate Judge 10 11 12 13 14 15 16 9 17 18 19 20 21 22 23 24 25 26 27 28 (...continued) discretion in determining whether to order a consultative examination and may do so when “ambiguity or insufficiency in the evidence . . . must be resolved.” Reed v. Massanari, 270 F.3d 838, 842 (9th Cir. 2001) (citation omitted); §§ 404.1519a(b), 416.919a(b). Here, the ALJ found the evidence sufficient to support a decision. (See AR 29.) He determined that Plaintiff was capable of a limited range of light work after reviewing medical-opinion evidence not only from Dr. de la Llana and the nonexamining state-agency physicians but also from Jamshid Mistry, a neurosurgery specialist, and from a physician’s assistant to Zoheir El-Hajjanoi, M.D., who both concluded only that Plaintiff should reduce excessive physical activity. (See AR 226, 506-07.) Thus, the ALJ was not required to order a consultative examination. 10 That 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.” 24
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