Peter Anthony Spoto v. Carolyn W Colvin, No. 5:2015cv01314 - Document 21 (C.D. Cal. 2016)
Court Description: MEMORANDUM DECISION AND ORDER AFFIRMING COMMISSIONER by Magistrate Judge Jean P. Rosenbluth. Consistent with the foregoing, and under sentence four of 42 U.S.C. § 405(g),15 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) 3 . (bem)
Download PDF
<![CDATA[
Peter Anthony Spoto v. Carolyn W Colvin Doc. 21 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 PETER ANTHONY SPOTO, Plaintiff, 12 13 v. 14 CAROLYN W. COLVIN, Acting Commissioner of Social Security, 15 Defendant. 16 ) Case No. CV 15-1314-JPR ) ) ) MEMORANDUM DECISION AND ORDER ) AFFIRMING COMMISSIONER ) ) ) ) ) ) ) 17 18 19 I. PROCEEDINGS Plaintiff seeks review of the Commissioner’s final decision 20 denying his application for supplemental security income benefits 21 (“SSI”). 22 undersigned U.S. Magistrate Judge under 28 U.S.C. § 636(c). 23 matter is before the Court on the parties’ Joint Stipulation, 24 filed April 25, 2016, which the Court has taken under submission 25 without oral argument. 26 Commissioner’s decision is affirmed. The parties consented to the jurisdiction of the The For the reasons stated below, the 27 28 1 Dockets.Justia.com 1 II. 2 BACKGROUND Plaintiff was born in 1959. 3 127.) 4 handyman. 5 (Administrative Record (“AR”) He completed 11th grade and worked as a house painter and (AR 36-37.) On December 11, 2008, Plaintiff filed for SSI, alleging that 6 he had been unable to work since May 1, 2006 (AR 65, 127), 7 because of lower-back and tail-bone problems (AR 66, 135). 8 his applications were denied initially and on reconsideration, he 9 requested a hearing before an Administrative Law Judge. After (AR 66, 10 72, 88.) 11 Plaintiff, who was represented by counsel, testified, as did a 12 vocational and a medical expert. 13 decision issued December 9, 2010, the ALJ found Plaintiff not 14 disabled. 15 A hearing was held on November 2, 2010, at which (AR 32-63.) In a written (AR 18-25.) On October 3, 2011, Plaintiff sought review of the 16 Commissioner’s decision in this Court. 17 2012, a magistrate judge found that the ALJ had erred in relying 18 on the VE’s testimony that Plaintiff could perform jobs requiring 19 constant or frequent reaching notwithstanding his residual 20 functional capacity (“RFC”)1 for only occasional work above the 21 shoulder. 22 for further proceedings. (AR 293-300.) (AR 316-18.) On July 10, The magistrate judge remanded the case (AR 300.) 23 On September 25, 2012, the Appeals Council vacated the ALJ’s 24 decision and remanded the case for further proceedings consistent 25 with the Court’s order. (AR 321.) On April 23, 2013, a second 26 27 28 1 RFC is what a claimant can do despite existing exertional and nonexertional limitations. § 416.945; see Cooper v. Sullivan, 880 F.2d 1152, 1155 n.5 (9th Cir. 1989). 2 1 ALJ held a hearing, at which Plaintiff, who was represented by 2 counsel, testified, as did a second VE. 3 written decision issued July 22, 2013, the ALJ found Plaintiff 4 not disabled. 5 denied review, specifically finding that the ALJ had “properly 6 evaluated the evidence of record and provided good reasons for 7 affording less or no weight to certain medical opinions.” 8 221.) 9 the undersigned magistrate judge because of the unavailability of (AR 247-54.) (AR 260-91.) In a On May 5, 2015, the Appeals Council (AR Plaintiff then filed this action, which was assigned to 10 the first magistrate judge. 11 III. STANDARD OF REVIEW 12 Under 42 U.S.C. § 405(g), a district court may review the 13 Commissioner’s decision to deny benefits. The ALJ’s findings and 14 decision should be upheld if they are free of legal error and 15 supported by substantial evidence based on the record as a whole. 16 See id.; Richardson v. Perales, 402 U.S. 389, 401 (1971); Parra 17 v. Astrue, 481 F.3d 742, 746 (9th Cir. 2007). 18 evidence means such evidence as a reasonable person might accept 19 as adequate to support a conclusion. 20 401; Lingenfelter v. Astrue, 504 F.3d 1028, 1035 (9th Cir. 2007). 21 It is more than a scintilla but less than a preponderance. 22 Lingenfelter, 504 F.3d at 1035 (citing Robbins v. Soc. Sec. 23 Admin., 466 F.3d 880, 882 (9th Cir. 2006)). 24 substantial evidence supports a finding, the reviewing court 25 “must review the administrative record as a whole, weighing both 26 the evidence that supports and the evidence that detracts from 27 the Commissioner’s conclusion.” 28 720 (9th Cir. 1996). Substantial Richardson, 402 U.S. at To determine whether Reddick v. Chater, 157 F.3d 715, “If the evidence can reasonably support 3 1 either affirming or reversing,” the reviewing court “may not 2 substitute its judgment” for the Commissioner’s. 3 IV. Id. at 720-21. THE EVALUATION OF DISABILITY 4 People are “disabled” for purposes of receiving Social 5 Security benefits if they are unable to engage in any substantial 6 gainful activity owing to a physical or mental impairment that is 7 expected to result in death or has lasted, or is expected to 8 last, for a continuous period of at least 12 months. 9 § 423(d)(1)(A); Drouin v. Sullivan, 966 F.2d 1255, 1257 (9th Cir. 10 42 U.S.C. 1992). 11 A. The Five-Step Evaluation Process 12 The ALJ follows a five-step sequential evaluation process to 13 assess whether a claimant is disabled. 20 C.F.R. 14 § 416.920(a)(4); Lester v. Chater, 81 F.3d 821, 828 n.5 (9th Cir. 15 1995) (as amended Apr. 9, 1996). 16 Commissioner must determine whether the claimant is currently 17 engaged in substantial gainful activity; if so, the claimant is 18 not disabled and the claim must be denied. In the first step, the § 416.920(a)(4)(i). 19 If the claimant is not engaged in substantial gainful 20 activity, the second step requires the Commissioner to determine 21 whether the claimant has a “severe” impairment or combination of 22 impairments significantly limiting her ability to do basic work 23 activities; if not, the claimant is not disabled and the claim 24 must be denied. 25 § 416.920(a)(4)(ii). If the claimant has a “severe” impairment or combination of 26 impairments, the third step requires the Commissioner to 27 determine whether the impairment or combination of impairments 28 meets or equals an impairment in the Listing of Impairments 4 1 (“Listing”) set forth at 20 C.F.R. part 404, subpart P, appendix 2 1; if so, disability is conclusively presumed. 3 § 416.920(a)(4)(iii). 4 If the claimant’s impairment or combination of impairments 5 does not meet or equal an impairment in the Listing, the fourth 6 step requires the Commissioner to determine whether the claimant 7 has sufficient RFC to perform his past work; if so, he is not 8 disabled and the claim must be denied. 9 claimant has the burden of proving he is unable to perform past § 416.920(a)(4)(iv). Drouin, 966 F.2d at 1257. The If the claimant meets 10 relevant work. 11 that burden, a prima facie case of disability is established. 12 Id. 13 work, the Commissioner then bears the burden of establishing that 14 the claimant is not disabled because he can perform other 15 substantial gainful work available in the national economy. 16 § 416.920(a)(4)(v); Drouin, 966 F.2d at 1257. 17 comprises the fifth and final step in the sequential analysis. 18 § 416.920(a)(4)(v); Lester, 81 F.3d at 828 n.5; Drouin, 966 F.2d 19 at 1257. If that happens or if the claimant has no past relevant That determination 20 B. The ALJ’s Application of the Five-Step Process 21 At step one, the ALJ found that Plaintiff had not engaged in 22 substantial gainful activity since December 11, 2008, the 23 application date. 24 Plaintiff had severe impairments of degenerative disc disease 25 with radiculopathy and chronic neck and shoulder pain of 26 undetermined cause. 27 Plaintiff’s impairments did not meet or equal a listing. 28 250.) (AR 249.) (Id.) At step two, he concluded that At step three, he determined that 5 (AR 1 At step four, the ALJ found that Plaintiff had the RFC to 2 perform a range of medium work (id.), which is defined as 3 “lifting no more than 50 pounds at a time with frequent lifting 4 or carrying of objects weighing up to 25 pounds.”2 5 Plaintiff could stand, walk, or sit for six hours in an eight- 6 hour workday and occasionally stoop, bend, or work above shoulder 7 level. 8 working at heights, and balancing, and he had no reliable grip 9 strength in his left, nondominant hand. (AR 250.) § 416.967(c). He was precluded from climbing ladders, (Id.) Finally, based on the VE’s testimony, the ALJ concluded that 10 11 Plaintiff could not perform his past relevant work as a house 12 painter but could perform other work in the regional economy. 13 (AR 252-53.) 14 V. 15 16 Accordingly, he found him not disabled. (AR 254.) DISCUSSION Plaintiff alleges that the ALJ (1) erred in assessing the opinion of Dr. Isaias Paja and (2) failed to articulate legally 17 2 18 19 20 21 22 23 24 25 26 27 28 The ALJ stated that Plaintiff could perform “medium work as defined in 20 CFR 416.967(c)” and was “able to lift or carry up to 25 pounds on occasion and up to 50 pounds frequently.” (AR 250.) As the Commissioner notes (J. Stip. at 12 n.2.), it appears that this was a scrivener’s error given that the correct definition for medium work is “lifting no more than 50 pounds at a time with frequent lifting or carrying of objects weighing up to 25 pounds,” § 416.967(c)(2), and given that the ALJ gave significant weight to Drs. Philip Wirganowicz’s and Thu N. Do’s opinions that Plaintiff could lift and carry 25 pounds frequently and 50 pounds occasionally. (AR 173, 177, 252.) In any event, any error in stating that Plaintiff could lift and carry “up to 50 pounds frequently” was harmless because the ALJ ultimately concluded that Plaintiff could perform only certain medium- and light-work jobs. (AR 253); § 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.”); see also Stout v. Comm’r, Soc. Sec. Admin., 454 F.3d 1050, 1055 (9th Cir. 2006) (nonprejudicial or irrelevant mistakes harmless). 6 1 sufficient reasons for rejecting Plaintiff’s subjective symptom 2 testimony. (J. Stip. at 4, 25.) 3 A. The ALJ’s Assessment of the Medical Evidence 4 Plaintiff argues that the ALJ “failed to articulate specific 5 and legitimate reasons for rejecting” Dr. Paja’s opinions. 6 at 9.) 7 on this ground. For the reasons discussed below, remand is not warranted 1. 8 9 (Id. Applicable law Three types of physicians may offer opinions in Social 10 Security cases: (1) those who directly treated the plaintiff, (2) 11 those who examined but did not treat the plaintiff, and (3) those 12 who did neither. 13 opinion is generally entitled to more weight than an examining 14 physician’s, and an examining physician’s opinion is generally 15 entitled to more weight than a nonexamining physician’s. 16 Lester, 81 F.3d at 830. A treating physician’s Id. This is true because treating physicians are employed to 17 cure and have a greater opportunity to know and observe the 18 claimant. 19 If a treating physician’s opinion is well supported by medically 20 acceptable clinical and laboratory diagnostic techniques and is 21 not inconsistent with the other substantial evidence in the 22 record, it should be given controlling weight. 23 If a treating physician’s opinion is not given controlling 24 weight, its weight is determined by length of the treatment 25 relationship, frequency of examination, nature and extent of the 26 treatment relationship, amount of evidence supporting the 27 opinion, consistency with the record as a whole, the doctor’s 28 area of specialization, and other factors. Smolen v. Chater, 80 F.3d 1273, 1285 (9th Cir. 1996). 7 § 416.927(c)(2). § 416.927(c)(2)-(6). 1 When a treating physician’s opinion is not contradicted by 2 other evidence in the record, it may be rejected only for “clear 3 and convincing” reasons. 4 Admin., 533 F.3d 1155, 1164 (9th Cir. 2008) (citing Lester, 81 5 F.3d at 830-31). 6 only “specific and legitimate reasons” for discounting it. 7 (citing Lester, 81 F.3d at 830-31). 8 not accept the opinion of any physician, including a treating 9 physician, if that opinion is brief, conclusory, and inadequately See Carmickle v. Comm’r, Soc. Sec. When it is contradicted, the ALJ must provide Id. Furthermore, “[t]he ALJ need 10 supported by clinical findings.” 11 947, 957 (9th Cir. 2002); accord Batson v. Comm’r of Soc. Sec. 12 Admin., 359 F.3d 1190, 1195 (9th Cir. 2004). 13 14 2. Thomas v. Barnhart, 278 F.3d Relevant background On March 1, 2009, Dr. Philip Wirganowicz, an orthopedic 15 surgeon, performed an orthopedic evaluation of Plaintiff at the 16 agency’s request. 17 Plaintiff’s April 2006 lumbar-spine x-ray, noting that it showed 18 first-degree spondylolisthesis at L5-S1.3 19 (Apr. 2006 x-ray report).) 20 devices or take any medications for pain. 21 range of motion of the lumbar spine; normal range of motion of 22 all joints in the upper and lower extremities, including the 23 shoulders; and no limp. (AR 169-73.) Dr. Wirganowicz reviewed (Id.; see also AR 194 Plaintiff did not use any assistive (AR 171-72.) (AR 169.) He had full He had “slight weakness” 24 3 25 26 27 28 Spondylolisthesis is a condition in which one vertebra slips out of place onto the vertebra below it. Spondylolisthesis, Cleveland Clinic, http://my.clevelandclinic. org/health/diseases_conditions/hic_your_back_and_neck/ hic_Spondylolisthesis (last accessed Aug. 4, 2016). “Grade I” is the lowest degree of spondylolisthesis, indicating a one- to 25percent slippage. Id. 8 1 in the ankle and toe but otherwise “5/5” strength in all 2 extremities and intact sensation. 3 have muscular atrophy or asymmetry. 4 diagnosed chronic lower-back pain with radiculopathy. 5 opined that Plaintiff could lift 25 pounds frequently and 50 6 pounds occasionally; sit, stand, or walk for six hours in a 7 normal workday with appropriate breaks; and use his upper 8 extremities for gross-motor and fine manipulative movements. 9 173.) (AR 172.) (Id.) Plaintiff did not Dr. Wirganowicz (Id.) He (AR On April 1, 2009, Dr. Thu N. Do, a general practitioner,4 10 11 reviewed the record and completed an RFC assessment. 12 82.) 13 frequently and 50 pounds occasionally; sit or stand and walk for 14 six hours in a eight-hour workday with normal breaks; and perform 15 unlimited pushing and pulling with his upper and lower 16 extremities. 17 (AR 176- Dr. Do opined that Plaintiff could lift and carry 25 pounds (AR 177.) On May 2, 2013, Dr. Paja, who specialized in family medicine 18 (AR 427), completed three medical-opinion forms: a “medical 19 source statement of ability to do work-related activities 20 (mental),” an “evaluation form for mental disorders,” and an RFC 21 questionnaire. 22 form, Dr. Paja checked boxes indicating that Plaintiff had 23 “moderate” restriction on his ability to maintain attendance and 24 punctuality; perform at a consistent pace; interact appropriately (AR 427-33.) In the medical-source-statement 25 26 27 28 4 Dr. Do’s signature line included a medical-consultant code of 12, indicating “[f]amily or [g]eneral [p]ractice.” (AR 180); see Program Operations Manual System (POMS) DI 24501.004, U.S. Soc. Sec. Admin. (May 5, 2015), http://policy.ssa.gov/poms.nsf/ lnx/0424501004. 9 1 with the public, supervisors, and coworkers; sustain an ordinary 2 routine without special supervision; and respond appropriately to 3 changes in a routine work setting. 4 listing “[w]hat supports [his] assessment,” he cited Plaintiff’s 5 “self assessment of work.”5 6 Plaintiff’s memory was decreased “secondary to med[ication].” 7 (Id.) In the space for Dr. Paja also noted that In the mental-disorders-evaluation form, Dr. Paja listed 8 9 (Id.) (AR 427.) Plaintiff’s complaints as chronic lower-back, left-shoulder, and 10 neck pain. 11 perform activities of daily living but only with his right hand 12 because his left shoulder was weak. 13 “when [Plaintiff] takes medication it can impair [his] memory.” 14 (Id.) 15 (AR 429.) Dr. Paja wrote that Plaintiff was able to (AR 431.) He wrote that In the RFC questionnaire, Dr. Paja opined that Plaintiff 16 could sit for less than 30 minutes at a time for a total of less 17 than two hours in an eight-hour day and walk for about 30 minutes 18 at a time for a total of about four hours in an eight-hour day. 19 (AR 432.) 20 (Id.) 21 up to 20 pounds rarely but never more than that, and he could 22 occasionally bend or stoop. 23 for handling frequently and for pushing, pulling, and fine 24 manipulation occasionally. 25 unprotected heights, marked temperature changes, noise, dust, or 26 fumes. He had “no significant limit” on his ability to stand. He could lift and carry up to 10 pounds occasionally and (Id.) (Id.) Plaintiff could use his hands He could never be exposed to (AR 433.) 27 28 5 Some of Dr. Paja’s writing in this section is illegible. 10 1 Under “objective signs of pain,” Dr. Paja cited Plaintiff’s 2 April 2011 left-shoulder x-ray findings of moderate to severe 3 degenerative changes to left acromioclavicular joint and his 4 April 2011 lumbar-spine x-ray showing a bilateral pars defect at 5 L5, grade I anterior spondylolisthesis at L5-S1, mild to moderate 6 disc-space narrowing, and small anterior osteophytes. 7 see AR 420-21 (x-rays).) 8 was “marked” and that he was unable to reach with his left 9 shoulder. (AR 433.) (AR 433; Dr. Paja believed that Plaintiff’s pain Dr. Paja opined that Plaintiff’s lower-back 10 pain limited his range of motion and ambulation and required pain 11 medication with a “sedating effect.” 12 remarked that Plaintiff was “very limited in activities of daily 13 living.” 14 15 (Id.) Finally, Dr. Paja (Id.) 3. Analysis The ALJ accorded “significant weight” to Drs. Wirganowicz’s 16 and Do’s opinions and “no weight” to Dr. Paja’s.6 17 Because Dr. Paja’s opinions were contradicted by Drs. 18 Wirganowicz’s and Do’s, the ALJ had to give only specific and 19 legitimate reasons for rejecting them. 20 at 1164. (AR 252.) See Carmickle, 533 F.3d As discussed below, the ALJ did so. 21 First, the ALJ found that “no evidence” indicated that Dr. 22 Paja had “even personally examined [Plaintiff] or reviewed” the 23 medical evidence of record. (AR 252.) Indeed, Dr. Paja’s name 24 25 26 27 28 6 The ALJ also accorded “reduced weight” to treating physician Kurt Frauenpreis’s opinion because his findings were “not supported by either the consultative examination, the objective tests contained in the record, or by [Plaintiff’s] own work history.” (AR 252.) Plaintiff has not challenged that portion of the ALJ’s decision. 11 1 appeared on only one of Plaintiff’s progress notes, which was 2 dated March 7, 2013 (AR 407), less than two months before Dr. 3 Paja rendered his opinions, on May 2, 2013 (see AR 427, 433). 4 Other than basic findings like weight, height, and blood 5 pressure, the progress note — which appears to be in two 6 different handwritings — lists only “disability paperwork” and 7 Plaintiff’s subjective complaints. 8 listing “Systems Examined,” someone checked only the box for 9 indicating that Plaintiff’s general appearance was normal; he did (AR 407.) In the section for 10 not check boxes indicating that anyone had examined Plaintiff’s 11 back, extremities, “neuro,” neck, or any other system, nor did he 12 record any examination findings or prescribe any medication or 13 other treatment. 14 examined Plaintiff when he completed the opinion forms in May 15 2013; rather, it appears that Plaintiff simply faxed the forms to 16 Dr. Paja’s office and that Dr. Paja then filled them out. 17 AR 426 (fax cover sheet).) 18 section of the forms for listing “date patient first examined,” 19 “date of most recent examination,” and “frequency of visits.” 20 (AR 429.) 21 indicate that Dr. Paja reviewed Plaintiff’s medical records other 22 than the April 2011 x-rays. 23 was in fact a treating or even examining doctor.7 (Id.) And nothing indicates that Dr. Paja (See Indeed, Dr. Paja left blank the Nor does anything in the forms or treatment note Thus, it is not clear that Dr. Paja 24 25 26 27 28 7 Plaintiff’s counsel asserts that Plaintiff “testified that he treats with Dr. Paja.” (J. Stip. at 7 (citing AR 274).) That is not accurate. All that Plaintiff said was, “What I did do was go to Dr. Paja,” never clarifying how often or for what purpose. In light of the evidence discussed above showing that Plaintiff had very little if any interaction with Dr. Paja, this statement 12 1 The ALJ properly relied on the apparent lack of treatment 2 history and examination findings to discount Dr. Paja’s opinion. 3 See § 416.927(c)(2)(i) (“[l]ength of the treatment relationship” 4 and “frequency of examination” are relevant factors in assessing 5 treating-source opinion); Edlund v. Massanari, 253 F.3d 1152, 6 1157 & n.6 (9th Cir. 2001) (as amended) (same); see also 7 § 416.927(c)(6) (extent to which doctor is familiar with record 8 is relevant factor in deciding weight to give opinion). Next, the ALJ found that Dr. Paja’s mental-health 9 10 limitations were “without foundation in the record.” 11 Indeed, Plaintiff’s medical records don’t reflect any diagnosis 12 of or treatment for any mental-health problems. 13 405-24.) 14 support his findings of moderate mental limitations; instead, he 15 noted that they were based on Plaintiff’s “self assessment of 16 work.” 17 Plaintiff’s medication caused memory problems (id.), Plaintiff 18 testified that his medication didn’t cause any side effects (AR 19 276). 20 support[ive] of [his alleged] physical impairments” than his 21 mental ones. 22 record and Dr. Paja’s opinion was a permissible reason to reject 23 it. 24 (ALJ may permissibly reject check-off reports that do not contain 25 explanation of basis for conclusions); Connett v. Barnhart, 340 26 F.3d 871, 875 (9th Cir. 2003) (treating physician’s opinion (See AR 191-206, And Dr. Paja cited no medical or clinical findings to (See AR 427.) Although Dr. Paja asserted that Plaintiff, moreover, now “concedes that the record is more (J. Stip. at 8.) The inconsistency between the See Molina v. Astrue, 674 F.3d 1104, 1111 (9th Cir. 2012) 27 28 (AR 252.) is at best ambiguous. 13 1 properly rejected when treatment notes “provide[d] no basis for 2 the functional restrictions he opined should be imposed on 3 [plaintiff]”); Batson, 359 F.3d at 1195 (“an ALJ may discredit 4 treating physicians’ opinions that are conclusory, brief, and 5 unsupported by the record as a whole . . . or by objective 6 medical findings”).8 7 The ALJ also found that Dr. Paja’s opinion regarding 8 Plaintiff’s physical limitations was “not consistent with 9 [Plaintiff’s] current work status.” (AR 252.) Indeed, Plaintiff 10 testified at the April 2013 hearing that he had been working part 11 time as a bagger at Vons grocery store for 10 months. 12 66.) 13 worked four-hour shifts for a total of 16 hours a week. 14 269.) 15 and boxes, vegetables, and bread items on top and then place the 16 bagged groceries in the customer’s cart (AR 267, 278); he 17 sometimes helped customers take bags out to their car (AR 266). 18 Plaintiff testified that the job required “a lot of hustling” in 19 that he would have to “run from one end of the store to the next 20 to find items for someone.” 21 testimony that he could take extra breaks at work (id.), 22 supposedly didn’t lift anything weighing more than five or 10 23 pounds (AR 268-69, 277-78), and never packed grocery bags so that 24 they weighed more than eight pounds (AR 278), his ability to (AR 265- Plaintiff took the bus to and from the grocery store and (AR 266, At work, he would place three or four canned items in bags (AR 270.) Even despite Plaintiff’s 25 26 27 28 8 In denying Plaintiff’s request for review, the Appeals Council specifically noted that the record showed that Plaintiff “received very limited[] personal treatment” from Dr. Paja and that “[t]here is also no indication from the record that [Plaintiff] alleged any mental limitations.” (AR 221.) 14 1 perform such an active job appears inconsistent with Dr. Paja’s 2 limitations. 3 and carry up to 10 pounds only “occasionally,” which is defined 4 as “up to 2 hours,” and 11 to 20 pounds only “rarely,” which is 5 defined as “30 minutes or less” (AR 432), but Plaintiff 6 apparently lifted groceries and bags of groceries for most of his 7 four-hour shift. 8 factor to discount Dr. Paja’s opinion. 9 261 F.3d 853, 856 (9th Cir. 2001) (ALJ’s finding that doctor’s Indeed, Dr. Paja found that Plaintiff could lift As such, the ALJ did not err in relying on this See Rollins v. Massanari, 10 “restrictions appear to be inconsistent with [plaintiff’s] level 11 of activity” was specific and legitimate reason for discounting 12 opinion); Morgan v. Comm’r of Soc. Sec. Admin., 169 F.3d 595, 13 601–02 (9th Cir. 1999) (ALJ permissibly rejected treating 14 physician’s opinion when it conflicted with plaintiff’s 15 activities); see also Fisher v. Astrue, 429 F. App’x 649, 652 16 (9th Cir. 2011) (conflict between doctor’s opinion and claimant’s 17 daily activities was specific and legitimate reason to discount 18 opinion).9 19 The ALJ was also entitled to rely on Drs. Wirganowicz’s and 20 Do’s opinions instead of Dr. Paja’s. Dr. Wirganowicz was a 21 board-certified orthopedic surgeon (AR 173), whereas Dr. Paja 22 23 24 25 26 27 28 9 Plaintiff contends that Dr. Paja’s opinion was not inconsistent with Plaintiff’s work status because Dr. Paja stated that Plaintiff could work part time. (J. Stip. at 9; see also AR 432.) It is true that some of Dr. Paja’s limitations might be consistent with Plaintiff’s description of his job duties. But even if the ALJ somehow erred in relying on Plaintiff’s work status to discount Dr. Paja’s opinion, it was harmless because the ALJ provided other specific and legitimate reasons for his assessment. See Stout, 454 F.3d at 1055 (nonprejudicial or irrelevant mistakes harmless). 15 1 practiced family medicine (AR 427). See § 416.927(c)(5) (“We 2 generally give more weight to the opinion of a specialist about 3 medical issues related to his or her area of specialty than to 4 the opinion of a source who is not a specialist.”). 5 Wirganowicz performed a complete orthopedic evaluation of 6 Plaintiff, finding that he had full range of motion in all 7 joints, a normal gait, full motor strength in all joints except 8 his ankle and toe, and intact sensation (AR 171-72). 9 Wirganowicz personally observed and examined Plaintiff and his Dr. Because Dr. 10 findings were consistent with the objective evidence, his opinion 11 constitutes substantial evidence supporting the ALJ’s decision. 12 See Tonapetyan v. Halter, 242 F.3d 1144, 1149 (9th Cir. 2001) 13 (finding that examining physician’s “opinion alone constitutes 14 substantial evidence, because it rests on his own independent 15 examination of [plaintiff]”); Andrews v. Shalala, 53 F.3d 1035, 16 1041 (9th Cir. 1995) (opinion of nontreating source based on 17 independent clinical findings may itself be substantial 18 evidence). 19 relationship with Plaintiff. 20 This is particularly true given Dr. Paja’s limited See Lester, 81 F.3d at 830-31. Dr. Do’s opinion also constitutes substantial evidence 21 because he relied on Dr. Wirganowicz’s objective medical 22 findings. 23 under “significant objective findings)); see Tonapetyan, 242 F.3d 24 at 1149 (non-examining physician’s opinion constituted 25 substantial evidence because it rested on examining physician’s 26 objective findings); Thomas, 278 F.3d at 957 (“The opinions of 27 non-treating or non-examining physicians may also serve as 28 substantial evidence when the opinions are consistent with (AR 181-82 (listing Dr. Wirganowicz’s RFC assessment 16 1 independent clinical findings or other evidence in the record.”). 2 Plaintiff argues that the ALJ ignored medical records 3 showing that Plaintiff would eventually need surgery on his left 4 shoulder.10 5 specifically discussed Plaintiff’s April 2011 shoulder x-ray, 6 which showed moderate to severe degenerative changes of the left 7 acromioclavicular joint (AR 251 (citing AR 420)), and he 8 expressly stated that Plaintiff’s medical records “noted that 9 [Plaintiff] would eventually require surgery on the left 10 (J. Stip. at 8 (citing AR 417).) shoulder” (AR 251 (citing AR 417)).11 But the ALJ Plaintiff also argues that 11 12 13 14 15 16 17 18 19 10 Contrary to Plaintiff’s assertion (see J. Stip. at 23), it is not clear that a doctor made this assessment. Nothing on the progress note stated that the provider was a doctor, and he did not check a box in his signature line for indicating whether he was an “MD,” “DO,” “PA,” or “NP.” (AR 417; compare AR 407 (progress note signed by Dr. Paja with notation “Paja md, Isaias” and “MD” box checked).) Indeed, several of Plaintiff’s progress notes were completed by providers who were not doctors. (See, e.g., AR 202 (note completed by Calvin Pramann “DC,” or doctor of chiropractic), 408 (note completed by Sam Som “NP,” or nurse practitioner), 409 (note completed by Joyce Kusuma “NP,” or nurse practitioner).) Neither nurse practitioners nor doctors of chiropracty are acceptable medical sources. See SSR 06-03p, 2006 WL 2329939, at *2 (Aug. 9, 2006); § 416.913(d). 20 11 21 22 23 24 25 26 27 28 The ALJ erroneously stated elsewhere in his opinion that Plaintiff’s “medical evidence of record” from a particular provider ended on March 15, 2011, and “no more contemporaneous evidence is in the record.” (AR 252.) The record in fact contains treatment notes from that provider from June, July, and August 2011; January, February, April, June, and November 2012; and January, February, and March 2013. (AR 407-20.) Several of those notes concerned Plaintiff’s treatment for bronchitis, sore throat, or other complaints not related to his allegedly disabling conditions. (AR 409, 412-15.) The ALJ may have been confused by Plaintiff’s testimony seeming to indicate that he stopped going to that provider in 2010. (See AR 274.) But in any event, the ALJ apparently reviewed the more recent notes, because he specifically noted that one of them, from August 2011, 17 1 “[t]he ALJ’s reliance on Drs. Wirganowicz and Do does not seem to 2 take into account the significance of [Plaintiff’s] left arm 3 impairments” (J. Stip. at 19-20), but the ALJ in fact 4 accommodated Plaintiff’s left-shoulder condition by stating in 5 his RFC that Plaintiff had “no reliable grip strength in his 6 left, non-dominant hand” and could perform only occasional work 7 above shoulder level. 8 warranted. 9 B. (AR 250.) As such, remand is not The ALJ Properly Assessed Plaintiff’s Credibility Plaintiff argues that the ALJ “failed to articulate legally 10 11 sufficient reasons for rejecting” his testimony. 12 25.) 13 14 (J. Stip. at For the reasons discussed below, remand is not warranted. 1. Applicable law An ALJ’s assessment of symptom severity and claimant 15 credibility is entitled to “great weight.” 16 Sullivan, 877 F.2d 20, 22 (9th Cir. 1989); Nyman v. Heckler, 779 17 F.2d 528, 531 (9th Cir. 1986). 18 believe every allegation of disabling pain, or else disability 19 benefits would be available for the asking, a result plainly 20 contrary to 42 U.S.C. § 423(d)(5)(A).” 21 (citing Fair v. Bowen, 885 F.2d 597, 603 (9th Cir. 1989)). 22 See Weetman v. “[T]he ALJ is not required to Molina, 674 F.3d at 1112 In evaluating a claimant’s subjective symptom testimony, the 23 24 25 26 27 28 indicated that Plaintiff needed left-shoulder surgery. (AR 251 (“It was noted that [Plaintiff] would eventually require surgery on the left shoulder.” (citing AR 417)), 417 (Aug. 2011 note).) Plaintiff does not point to any specific evidence in the other notes that the ALJ should have considered but didn’t. Cf. Howard ex rel. Wolff v. Barnhart, 341 F.3d 1006, 1012 (9th Cir. 2003) (“the ALJ is not required to discuss evidence that is neither significant nor probative”). Thus, any error was harmless. 18 1 ALJ engages in a two-step analysis. 2 at 1035-36. 3 has presented objective medical evidence of an underlying 4 impairment [that] could reasonably be expected to produce the 5 pain or other symptoms alleged.” 6 medical evidence exists, the ALJ may not reject a claimant’s 7 testimony “simply because there is no showing that the impairment 8 can reasonably produce the degree of symptom alleged.” 9 80 F.3d at 1282 (emphasis in original). 10 See Lingenfelter, 504 F.3d “First, the ALJ must determine whether the claimant Id. at 1036. If such objective Smolen, If the claimant meets the first test, the ALJ may discredit 11 the claimant’s subjective symptom testimony only if he makes 12 specific findings that support the conclusion. 13 Astrue, 622 F.3d 1228, 1234 (9th Cir. 2010). 14 affirmative evidence of malingering, the ALJ must provide “clear 15 and convincing” reasons for rejecting the claimant’s testimony. 16 Brown-Hunter v. Colvin, 806 F.3d 487, 493 (9th Cir. 2015) (as 17 amended); Treichler v. Comm’r of Soc. Sec. Admin., 775 F.3d 1090, 18 1102 (9th Cir. 2014). 19 (1) ordinary techniques of credibility evaluation, such as the 20 claimant’s reputation for lying, prior inconsistent statements, 21 and other testimony by the claimant that appears less than 22 candid; (2) unexplained or inadequately explained failure to seek 23 treatment or to follow a prescribed course of treatment; (3) the 24 claimant’s daily activities; (4) the claimant’s work record; and 25 (5) testimony from physicians and third parties. 26 Comm’r Soc. Sec. Admin., 807 F.3d 996, 1006 (9th Cir. 2015) (as 27 amended); Thomas, 278 F.3d at 958-59. 28 finding is supported by substantial evidence in the record, the See Berry v. Absent a finding or The ALJ may consider, among other factors, 19 Rounds v. If the ALJ’s credibility 1 reviewing court “may not engage in second-guessing.” Id. at 959. 2 3 4 5 2. Relevant background In an undated disability report, Plaintiff wrote that 6 “[l]ower back and tail bone problems” limited his ability to work 7 and that he could “not lift anything because the doctor tol[d] me 8 I could be paralized [sic].” 9 another undated disability report that he had an x-ray to “prove (AR 135.) Plaintiff wrote in 10 his disability” and that if he lifted the “wrong way” he would be 11 paralyzed from the “waist down.” 12 (AR 152.) In an October 9, 2009 disability report, Plaintiff stated 13 that his “condition ha[d] worsened with the pain moving into the 14 middle and upper back,” and he had “severe pain and numbness in 15 [his] arms and neck” and “severe headaches.” 16 unable to run or jog, could walk only with “great hardship,” and 17 was in “constant pain.” 18 as “Motrin 800mg.” 19 (Id.) (AR 158.) He was He listed his current medication (AR 161.) At the April 2013 supplemental ALJ hearing following remand, 20 Plaintiff testified that he had worked as a part-time bagger at 21 Vons grocery store for the preceding 10 months. 22 worked four-hour shifts and was given the option of taking a 23 break when he was “wanting to sit down.” 24 testified that in each grocery bag he placed three or four cans 25 and then boxes, vegetables, and bread items, and that he had 26 “gotten in trouble for putting less items into a bag because of 27 the weight, concerning the bag could rip.” 28 Plaintiff lived alone in a motor home and didn’t use any shelves 20 (AR 265-66.) (AR 269-70.) He Plaintiff (AR 266-67.) 1 or cabinets that were above shoulder level. 2 took the bus to and from work. (AR 271-72.) He (AR 274.) 3 Plaintiff testified that his left arm was “basically” numb 4 and he did not have “a lot of function in [his] left hand,” but 5 he could still bag groceries with his right, dominant hand. 6 267.) 7 of shoes, and put on a belt. 8 top of his head with his left hand. 9 arm, Plaintiff could “pick up [a] five-pound gallon of milk and (AR He could use his left hand to button a shirt, tie a pair (AR 267-68.) He could touch the (AR 268.) With his right 10 then put it away.”12 11 his right arm he could “hold a cup,” “hold a five, seven, eight- 12 pound back [sic] of something,” and lift about “five to ten” 13 pounds for “[n]ot very long”).) 14 “gotten in trouble” at work “for using too many bags for smaller 15 items” and didn’t pack grocery bags to weigh more than eight 16 pounds because he had trouble picking them up and putting them in 17 the cart. 18 “bone [was] snapping [his] hips out of place.” 19 (AR 278.) (AR 269; see also AR 277 (stating that with His legs “cramp[ed] out a lot,” and the 15 at the most.” 21 his legs were weak. 22 effects from his medication. 3. 23 25 (AR 273.) Plaintiff could sit for “[m]aybe about five to ten minutes, 20 24 Plaintiff testified that he had (AR 275.) (Id.) He couldn’t stand “too much” because Plaintiff didn’t have any side (AR 276.) Analysis The ALJ found that Plaintiff could perform medium work that required no more than occasional stooping, bending, or work above 26 27 28 12 A gallon of milk actually weighs approximately eight pounds. Hernandez v. Colvin, No. 1:12-CV-00330-SMS, 2013 WL 4041862, at *9 n.4 (E.D. Cal. Aug. 8, 2013). 21 1 shoulder level; never required climbing ladders, working at 2 heights, or balancing; and that accommodated Plaintiff’s lack of 3 any “reliable grip strength” in his left hand. 4 doing so, the ALJ credited some of Plaintiff’s asserted 5 limitations, including his claim that he had difficulty reaching 6 above shoulder level and could not use his left hand. 7 discussed below, to the extent the ALJ rejected Plaintiff’s 8 complaints (see AR 252 (according “reduced weight” to Plaintiff’s 9 subjective complaints)), he provided clear and convincing reasons 10 11 (AR 250.) In As for doing so. The ALJ found that the “objective medical evidence of 12 record” was inconsistent with Plaintiff’s allegedly disabling 13 functional limitations. 14 that he couldn’t lift anything with his left arm (AR 267-68) and 15 could lift only five to 10 pounds with his right arm for “not 16 very long” (AR 278), could sit for only five to 15 minutes at a 17 time (AR 275), couldn’t stand “too much” (AR 275), and could walk 18 only with “great hardship” (AR 158). 19 that Plaintiff had full range of motion in all joints, full motor 20 strength in all joints except his ankle and toe, no muscle 21 atrophy or asymmetry, and intact sensation. 22 Wirganowicz and Do both believed that Plaintiff could lift 25 23 pounds frequently and 50 pounds occasionally; sit for six hours; 24 and stand and walk for six hours. 25 Paja believed that Plaintiff had “no significant limit” on his 26 ability to stand and could lift 10 pounds “occasionally,” or for 27 up to two hours, and 20 pounds “rarely,” or for up to 30 minutes. 28 (AR 432.) (AR 252.) Indeed, Plaintiff claimed Yet Dr. Wirganowicz found (AR 170-72.) (AR 173, 177.) Drs. And even Dr. Moreover, nothing in the medical records supported 22 1 Plaintiff’s allegations that his doctors believed that if he 2 lifted “anything” he could be paralyzed (AR 135, 152) or that his 3 hip bones were out of place (AR 273). 4 251), an April 2011 lumbar-spine x-ray showed only “mild 5 degenerative changes of the lumbar spine” at L1 to L3, “mild-to- 6 moderate disc-space narrowing” at L5-S1, a bilateral pars defect 7 at L5, and “grade I anterior spondylolisthesis” at L5-S1 (AR 8 421).13 9 medical evidence in assessing Plaintiff’s subjective complaints And as the ALJ noted (AR The ALJ was entitled to consider the lack of objective 10 and his credibility. 11 (9th Cir. 2005) (“Although lack of medical evidence cannot form 12 the sole basis for discounting pain testimony, it is a factor 13 that the ALJ can consider in his credibility analysis.”); 14 Carmickle, 533 F.3d at 1161 (“Contradiction with the medical 15 record is a sufficient basis for rejecting the claimant’s 16 subjective testimony.”); Lingenfelter, 504 F.3d at 1040 (in 17 determining credibility, ALJ may consider “whether the alleged 18 symptoms are consistent with the medical evidence”). 19 See Burch v. Barnhart, 400 F.3d 676, 681 Plaintiff contends that the ALJ “failed to articulate what 20 evidence undermines [Plaintiff’s] testimony.” (J. Stip. at 23.) 21 The ALJ is required to “specifically identify the testimony [from 22 a claimant] she or he finds not to be credible and . . . explain 23 what evidence undermines the testimony.” Treichler v. Comm’r of 24 13 25 26 27 28 “Degenerative changes in the spine are those that cause the loss of normal structure and/or function.” Degenerative Back Conditions, Cleveland Clinic, http://my.clevelandclinic.org/ services/orthopaedics-rheumatology/diseases-conditions/ degenerative-back-conditions (last accessed Aug. 5, 2016). “Nearly everyone experiences some disc degeneration after age 40.” Id. 23 1 Soc. Sec. Admin., 775 F.3d 1090, 1102 (9th Cir. 2014) 2 (alterations in original, citing Holohan v. Massanari, 246 F.3d 3 1195, 1208 (9th Cir. 2001)); see also Brown-Hunter v. Colvin, 806 4 F.3d 487, 493 (9th Cir. 2015); SSR 96-7p, 1996 WL 374186, at *4 5 (July 2, 1996) (decision “must be sufficiently specific to make 6 clear to the individual and to any subsequent reviewers the 7 weight the adjudicator gave to the individual’s statements and 8 the reasons for that weight”). 9 Plaintiff’s testimony that he had a limited ability to use his Here, the ALJ summarized 10 left arm to lift and carry, lift either arm above shoulder level, 11 and sit or stand for extended periods of time. 12 found that those statements were “not entirely credible” (id.), 13 summarized the medical evidence (AR 251-52), and found that it 14 “strongly indicate[d]” that Plaintiff could perform “some work” 15 despite his limitations (AR 252). 16 See Treichler, 775 F.3d at 1103 (ALJ’s analysis “need not be 17 extensive” as long as he “provide[s] some reasoning in order for 18 [the court] to meaningfully determine whether the ALJ’s 19 conclusions were supported by substantial evidence”). 20 (AR 251.) He The ALJ therefore did not err. The ALJ also discounted Plaintiff’s account of his 21 limitations because his “part time work . . . strongly 22 indicate[d] that [he] remain[ed] capable of performing some work, 23 despite his limitations.” 24 was unable to run or jog, could walk only with “great hardship,” 25 was in “constant pain” (AR 158), and couldn’t stand “too much” 26 because his legs were weak (AR 275). 27 that he took the bus to and from work (AR 274) and worked four- 28 hour shifts at a grocery store (AR 269-70), where he bagged (AR 252.) 24 Plaintiff claimed that he But Plaintiff testified 1 groceries, lifted the bags into carts, occasionally helped take 2 the groceries to a customer’s car (AR 266-67, 278), and had to 3 “hustl[e]” and “run from one end of the store to the next to find 4 items for someone” (AR 270). 5 Plaintiff’s credibility because such activities were inconsistent 6 with his subjective symptom testimony. 7 1112 (ALJ may discredit claimant’s testimony when “claimant 8 engages in daily activities inconsistent with the alleged 9 symptoms” (citing Lingenfelter, 504 F.3d at 1040)); id. (“Even The ALJ did not err in discounting See Molina, 674 F.3d at 10 where those [daily] activities suggest some difficulty 11 functioning, they may be grounds for discrediting the claimant’s 12 testimony to the extent that they contradict claims of a totally 13 debilitating impairment.”); Bray v. Comm’r of Soc. Sec. Admin., 14 554 F.3d 1219, 1227 (9th Cir. 2009) (ALJ properly discounted 15 plaintiff’s credibility when she had “recently worked as a 16 personal caregiver for two years, and has sought out other 17 employment since then”); Foster v. Astrue, No. EDCV 11-1077-OP, 18 2012 WL 243253, at *10 (C.D. Cal. Jan. 23, 2012) (finding that 19 ALJ properly considered plaintiff’s “ability to perform part-time 20 work” when assessing credibility). 21 Plaintiff argues that the ALJ erred in discounting his 22 credibility based on his ability to work part time because “[a]n 23 individual can work and qualify for benefits.” 24 24.) 25 described as “ongoing, physical work” (AR 252) that was 26 inconsistent with his asserted functional limitations; as such, 27 the ALJ permissibly discounted Plaintiff’s credibility. 28 Plaintiff points to regulations allowing people who are already (J. Stip. at 23- But as discussed above, Plaintiff performed what the ALJ 25 1 receiving benefits to undergo a “trial work period” without 2 having their benefits terminated (J. Stip. at 24 (citing 3 § 404.1592)), but that regulation does not apply to Plaintiff 4 because he was never found to be disabled and awarded benefits. 5 Plaintiff also cites the regulations for determining whether a 6 claimant has performed substantial gainful activity (J. Stip. at 7 24), but here the ALJ specifically found at step one that 8 Plaintiff “ha[d] not engaged in substantial gainful activity 9 since December 11, 2008”14 (AR 249). 10 In sum, the ALJ provided clear and convincing reasons for 11 finding Plaintiff only partially credible. Because those 12 findings were supported by substantial evidence, this Court may 13 not engage in second-guessing. 14 Plaintiff is not entitled to remand on this ground. See Thomas, 278 F.3d at 959. 15 16 17 18 19 14 20 21 22 23 24 25 26 27 28 Plaintiff, however, apparently did work enough in 2013 and 2014 to meet the substantial-gainful-activity level. In denying review of the ALJ’s July 2013 decision, the Appeals Council noted that “updated earnings records document that [Plaintiff] continued to work at the substantial gainful activity level in 2013 and 2014, which evidence further supports the [ALJ’s] decision.” (AR 221 (Appeals Council’s May 5, 2015 order).) Because the Council denied review, however, this Court reviews only the ALJ’s decision for substantial evidence. (See AR 221 (Appeals Council noting that ALJ’s “decision is the final decision of the Commissioner”)); Brewes v. Comm’r of Soc. Sec. Admin., 682 F.3d 1157, 1161–62 (9th Cir. 2012) (“[w]hen the Appeals Council declines review, ‘the ALJ’s decision becomes the final decision of the Commissioner,’ and the district court reviews that decision for substantial evidence, based on the record as a whole” (citations omitted)). 26 1 2 3 4 VI. CONCLUSION Consistent with the foregoing, and under sentence four of 42 5 U.S.C. § 405(g),15 IT IS ORDERED that judgment be entered 6 AFFIRMING the decision of the Commissioner, DENYING Plaintiff’s 7 request for remand, and DISMISSING this action with prejudice. 8 IT IS FURTHER ORDERED that the Clerk serve copies of this Order 9 and the Judgment on counsel for both parties. 10 DATED: August 8, 2016 11 ______________________________ JEAN ROSENBLUTH U.S. Magistrate Judge 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 15 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.” 27
]]>
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You
should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google
Privacy Policy and
Terms of Service apply.
