Terrie L Marrical v. Carolyn W Colvin, No. 5:2016cv00398 - Document 29 (C.D. Cal. 2017)
Court Description: MEMORANDUM OPINION AND ORDER by Magistrate Judge Rozella A. Oliver. IT IS ORDERED that Judgment shall be entered AFFIRMING the decision of the Commissioner denying benefits. IT IS FURTHER ORDERED that the Clerk of the Court serve copies of this Order and the Judgment on counsel for both parties. (sbu)
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Terrie L Marrical v. Carolyn W Colvin Doc. 29 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 TERRIE L. MARRICAL, 12 Plaintiff, 13 14 15 Case No. EDCV 16-00398-RAO v. NANCY A. BERRYHILL, Acting Commissioner of Social Security, MEMORANDUM OPINION AND ORDER Defendant. 16 17 18 I. 19 20 21 22 23 24 25 26 27 INTRODUCTION Plaintiff Terrie L. Marrical (“Plaintiff”) challenges the Commissioner’s denial of her application for a period of disability and disability insurance benefits (“DIB”). For the reasons stated below, the decision of the Commissioner is AFFIRMED. II. PROCEEDINGS BELOW On December 30, 2010, Plaintiff filed a Title II application for DIB alleging disability beginning November 15, 2008, through March 31, 2010, the date last insured. (Administrative Record (“AR”) 323-24). Her application was denied initially on March 17, 2011, and upon reconsideration on June 3, 2011. (AR 165- 28 Dockets.Justia.com 1 76.) On July 6, 2011, Plaintiff filed a written request for hearing, and a hearing was 2 held on July 13, 2012. (AR 177-79, 253.) Represented by counsel, Plaintiff 3 appeared and testified, along with an impartial vocational expert. (AR 59-90.) On 4 July 25, 2012, the Administrative Law Judge (“ALJ”) found that Plaintiff had not 5 been under a disability, pursuant to the Social Security Act,1 since November 15, 6 2008. (AR 151.) On August 23, 2012, Plaintiff sought review, and the Appeals 7 Council granted her request. (AR 275-78.) Another hearing was held on April 28, 8 2014, where an impartial vocational expert testified in light of additional medical 9 records. (AR 91-114.) On August 1, 2014, the ALJ again found that Plaintiff had 10 not been under a disability, pursuant to the Social Security Act, since November 15, 11 2008. (AR 13-28.) The ALJ’s decision became the Commissioner’s final decision 12 when the Appeals Council denied Plaintiff’s request for review. 13 Plaintiff filed this action on March 3, 2016. (Dkt. No. 1.) (AR 1-4.) 14 The ALJ followed a five-step sequential evaluation process to assess whether 15 Plaintiff was disabled under the Social Security Act. Lester v. Chater, 81 F.3d 821, 16 828 n.5 (9th Cir. 1995). At step one, the ALJ found that Plaintiff had not engaged 17 in substantial gainful activity since November 15, 2008, the alleged onset date 18 (“AOD”), through March 31, 2010, her date last insured2. (AR 18.) At step two, 19 the ALJ found that through the date last insured, Plaintiff has the following severe 20 impairments: degenerative joint disease and degenerative disc disease of the lumbar 21 spine; pancreatitis; hypertension; depression; cervical strain; and obesity. (Id.) At 22 step three, the ALJ found that Plaintiff “did not have an impairment or 23 combination of impairments that met or medically equaled the severity of one of the 24 1 25 26 27 28 Persons are “disabled” for purposes of receiving Social Security benefits if they are unable to engage in any substantial gainful activity owing to a physical or mental impairment expected to result in death, or which has lasted or is expected to last for a continuous period of at least 12 months. 42 U.S.C. § 423(d)(1)(A). 2 As discussed below, the relevant time period that the ALJ evaluated was a period that ended in 2010, prior to the administrative hearings and the ALJ’s decision in this matter. 2 1 listed impairments in 20 CFR Part 404, Subpart P, Appendix 1.” (AR 19.) Before proceeding to step four, the ALJ found that Plaintiff had the residual 2 3 functional capacity (“RFC”) to: 4 [P]erform a range of sedentary work . . . . Specifically, the claimant can lift 10 pounds occasionally; can stand and/or walk for two hours out of an eight-hour workday; can perform postural activities occasionally; cannot perform repetitive or constant handling or fingering, but frequent is still permissible; is restricted to unskilled work; and is precluded from fast paced work production or assembly line type work. 5 6 7 8 9 (AR 20.) 10 At step four, based on the Plaintiff’s RFC and the VE’s testimony, the ALJ 11 found that Plaintiff was not capable of performing past relevant work as a retail 12 merchandiser, cashier/checker, retail supervisor, or sales clerk. (AR 26.) At step 13 five, the ALJ found, “considering the claimant’s age, education, work experience, 14 and residual functional capacity, there were jobs that existed in significant numbers 15 in the national economy that the claimant could have performed.” 16 Accordingly, the ALJ found that Plaintiff had not been under a disability from the 17 AOD through the date last insured. (AR 28.) 18 III. (AR 27.) STANDARD OF REVIEW 19 Under 42 U.S.C. § 405(g), a district court may review the Commissioner’s 20 decision to deny benefits. A court must affirm an ALJ’s findings of fact if they are 21 supported by substantial evidence, and if the proper legal standards were applied. 22 Mayes v. Massanari, 276 F.3d 453, 458-59 (9th Cir. 2001). “‘Substantial evidence’ 23 means more than a mere scintilla, but less than a preponderance; it is such relevant 24 evidence as a reasonable person might accept as adequate to support a conclusion.” 25 Lingenfelter v. Astrue, 504 F.3d 1028, 1035 (9th Cir. 2007) (citing Robbins v. Soc. 26 Sec. Admin., 466 F.3d 880, 882 (9th Cir. 2006)). An ALJ can satisfy the substantial 27 evidence requirement “by setting out a detailed and thorough summary of the facts 28 3 1 and conflicting clinical evidence, stating his interpretation thereof, and making 2 findings.” Reddick v. Chater, 157 F.3d 715, 725 (9th Cir. 1998) (citation omitted). 3 “[T]he Commissioner’s decision cannot be affirmed simply by isolating a 4 specific quantum of supporting evidence. Rather, a court must consider the record 5 as a whole, weighing both evidence that supports and evidence that detracts from 6 the Secretary’s conclusion.” Aukland v. Massanari, 257 F.3d 1033, 1035 (9th Cir. 7 2001) (citations and internal quotation marks omitted). 8 susceptible to more than one rational interpretation,’ the ALJ’s decision should be 9 upheld.” Ryan v. Comm’r of Soc. Sec., 528 F.3d 1194, 1198 (9th Cir. 2008) (citing 10 Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005)); see Robbins, 466 F.3d at 11 882 (“If the evidence can support either affirming or reversing the ALJ’s 12 conclusion, we may not substitute our judgment for that of the ALJ.”). The Court 13 may review only “the reasons provided by the ALJ in the disability determination 14 and may not affirm the ALJ on a ground upon which he did not rely.” Orn v. 15 Astrue, 495 F.3d 625, 630 (9th Cir. 2007) (citing Connett v. Barnhart, 340 F.3d 16 871, 874 (9th Cir. 2003)). 17 IV. “‘Where evidence is DISCUSSION 18 Plaintiff raises two issues for review: (1) whether the ALJ properly 19 considered Plaintiff’s testimony; and (2) whether the ALJ properly characterized 20 Plaintiff’s inability to manipulate repetitively. (Joint Stipulation (“JS”) at 5, Dkt. 21 No. 28.) 22 testimony (JS at 5-9) and inaccurately characterized Plaintiff’s handling and 23 fingering ability (JS at 22-24). The Commissioner contends that the ALJ properly 24 evaluated Plaintiff’s credibility (JS at 9-18) and that substantial evidence supports 25 the RFC and step five findings (JS at 24-28). For the reasons below, the Court 26 agrees with the Commissioner. 27 /// 28 Plaintiff contends that the ALJ improperly discredited Plaintiff’s /// 4 1 A. The ALJ’s Credibility Determination Is Supported By Substantial Evidence 2 3 Plaintiff argues that the ALJ’s finding that her subjective complaints are not 4 fully credible is unsupported by clear and convincing evidence. (See JS at 5-9.) 5 The Commissioner argues that the ALJ’s reasons for finding Plaintiff not fully 6 credible are supported by substantial evidence. (See JS at 9-18.) 1. 7 Plaintiff’s Testimony 8 At the July 13, 2012 administrative hearing, Plaintiff testified that she was 9 born on December 6, 1961, and graduated from high school. (AR 66.) She last 10 worked in November 2008, doing part time customer service work at a bowling 11 alley. (AR 66-67.) Plaintiff also testified that after she left the bowling alley, she 12 tried to go back to work as a cashier in a store for about a month, but “it just didn’t 13 work” due to the pain in her side. (AR 67-68.) After that, she looked for other 14 work, but “didn’t get anything.” (AR 68.) 15 Plaintiff testified that she lives with her partner and two of her three adult 16 children. (AR 72.) Her partner’s job is the sole source of household income. (AR 17 72.) She testified that her children helped “a lot” with housework. (AR 79.) 18 Plaintiff testified that she was hospitalized for three days in January 2008 19 when her pancreatitis developed. (AR 78, 80.) She was unable to work prior to 20 March 2010 because about once a week, she would get an “off and on” pain in her 21 right side that would “double [her] over” and make it hard to do anything. (AR 74, 22 81.) The pain would last for about an hour, and Plaintiff would need to lie down. 23 (AR 74, 81.) On a bad day, she would stay in bed because she feared that the pain 24 would start again if she got up. (AR 81-82.) Plaintiff testified that she is not able 25 to engage in any activity during a pancreatitis flare-up. (AR 83.) Her pain is 26 “about a ten” without medication, but “probably may even go down” after her 27 medication begins working. (AR 83.) 28 /// 5 1 Plaintiff testified that she also has “constant, constant” back pain that makes 2 it hard for her to lift things and stand. (AR 74.) Before March 2010, her pain was 3 an eight on a ten-point scale. (AR 74.) Plaintiff began taking Vicodin, but “that 4 wasn’t really working,” so she switched to Norco. (AR 74.) Medication would 5 “take the edge off” and bring the pain down to a six. (AR 74.) Plaintiff would have 6 muscle spasms in her lower back three or four times a week, “maybe a couple times 7 a day,” for 10 to 15 minutes at a time. (AR 82-83.) During a spasm, Plaintiff 8 cannot engage in any activity or focus on anything else. (AR 83.) Plaintiff also 9 testified that “once in a while” she has neck pain when she turns her neck. (AR 82.) 10 Plaintiff testified that since she stopped working in November 2008, she has 11 done “[n]othing.” (AR 75.) She talks to her children when they are home, but 12 otherwise “really do[es]n’t do too much” besides sitting or lying down. (AR 76.) 13 Plaintiff sometimes feels depressed because there is “just a lot going on.” (AR 75- 14 76.) Her depression began bothering her “off and on” beginning in 2008. (AR 76, 15 84.) 16 wouldn’t leave her room, and wouldn’t take care of her hygiene. (AR 85.) A 17 depressive episode would last for “[a] couple days” every week. (AR 85-86.) Her 18 primary care doctor prescribed Lexapro, but “[i]t didn’t really help much.” (AR 19 76.) Plaintiff did not see a therapist or psychologist. (AR 76.) Before March 2010, Plaintiff kept to herself, “wouldn’t do anything,” 20 Plaintiff testified that before March 2010, she could lift and carry ten pounds. 21 (AR 77.) She could not walk or stand for very long because her back “had started 22 really bothering [her].” (AR 77.) She could stand for about 30 to 45 minutes and 23 could sit for “a couple hours” before needing to lie down. (AR 79.) Plaintiff would 24 lie down for two hours about three or four times a day. (AR 79.) She testified that 25 an x-ray revealed degenerative disease, which began to “get worse.” (AR 78.) 26 Plaintiff testified that her doctor told her to “take it easy” and “[d]on’t lift a lot.” 27 (AR 79.) 28 /// 6 1 Plaintiff testified that she would sometimes drop things. (AR 74.) She has 2 difficulty with both small and large objects. (AR 84.) She can keyboard “[o]nce in 3 awhile,” but she doesn’t use a computer very much. (AR 84.) Plaintiff can pick up 4 objects like utensils, but when her hands bother her, she drops the objects due to 5 numbness in her fingers. (AR 84.) No doctor has suggested an explanation; 6 Plaintiff testified that it is “[p]robably just from [her] back.” (AR 84.) 7 Plaintiff completed a function report on February 4, 2011. (AR 390-97.) 8 Plaintiff’s son also completed a third party function report on February 4, 2011. 9 (AR 398-405.) His report repeated Plaintiff’s responses. Both reports were 10 completed after the date last insured, and the responses addressed Plaintiff’s 11 current, not past, functioning. 12 Plaintiff completed an exertion questionnaire on April 30, 2011. (AR 435- 13 37.) She again reported her current conditions and abilities, after the date last 14 insured. 2. 15 Applicable Legal Standards 16 “In assessing the credibility of a claimant’s testimony regarding subjective 17 pain or the intensity of symptoms, the ALJ engages in a two-step analysis.” Molina 18 v. Astrue, 674 F.3d 1104, 1112 (9th Cir. 2012) (citing Vasquez v. Astrue, 572 F.3d 19 586, 591 (9th Cir. 2009)). “First, the ALJ must determine whether the claimant has 20 presented objective medical evidence of an underlying impairment which could 21 reasonably be expected to produce the pain or other symptoms alleged.” Treichler 22 v. Comm’r of Soc. Sec. Admin., 775 F.3d 1090, 1102 (9th Cir. 2014) (quoting 23 Lingenfelter, 504 F.3d at 1036) (internal quotation marks omitted). If so, and if the 24 ALJ does not find evidence of malingering, the ALJ must provide specific, clear 25 and convincing reasons for rejecting a claimant’s testimony regarding the severity 26 of his symptoms. Id. The ALJ must identify what testimony was found not 27 credible and explain what evidence undermines that testimony. Holohan v. 28 /// 7 1 Massanari, 246 F.3d 1195, 1208 (9th Cir. 2001). “General findings are 2 insufficient.” Lester, 81 F.3d at 834. 3. 3 Discussion 4 “After careful consideration of the evidence,” the ALJ found that Plaintiff’s 5 “medically determinable impairments could reasonably be expected to cause some 6 of the alleged symptoms,” but found that Plaintiff’s “statements concerning the 7 intensity, persistence and limiting effects of these symptoms are not credible to the 8 extent those statements are inconsistent with the residual functional capacity 9 assessment herein.” (AR 21.) The ALJ declared her testimony to be “only partially 10 credible.” 11 statements; (2) routine and conservative treatment; and (3) lack of supporting 12 objective evidence. (AR 22.) No malingering allegation was made, and therefore, 13 the ALJ’s reasons must be clear and convincing. 14 (Id.) The ALJ relied on the following reasons: (1) inconsistent a. Reason No. 1: Inconsistent Statements 15 The ALJ found that Plaintiff made inconsistent statements about her ability 16 to work during the alleged disability period. (AR 22.) Specifically, the ALJ noted 17 that, despite Plaintiff’s testimony that she could not work due to her impairments, 18 Plaintiff “admitted that she had looked for other work, but had been unsuccessful in 19 finding anything.” (AR 22, 68.) The ALJ also noted that Plaintiff had once told her 20 physician that she applied to work as a truck driver. (AR 22, 645.) 21 As part of the credibility determination, the ALJ may consider 22 inconsistencies between the claimant’s testimony and her other statements, conduct, 23 and daily activities. See Light v. Soc. Sec. Admin., 119 F.3d 789, 792 (9th Cir. 24 1997); Tonapetyan v. Halter, 242 F.3d 1144, 1148 (9th Cir. 2001). Here, Plaintiff’s 25 statements that she was looking for work while allegedly disabled undermines the 26 credibility of her pain testimony. See Fregoso v. Astrue, 2012 WL 2195655, at *4 27 (C.D. Cal. June 14, 2012) (“[P]laintiff’s testimony at the hearing that she had been 28 looking for work was inconsistent with plaintiff’s assertions that she suffers from 8 1 disabling impairments which preclude her from working at all.”), aff’d (9th Cir. 2 Aug. 13, 2013). 3 4 5 The Court finds that this reason is a clear and convincing reason, supported by substantial evidence, to discount Plaintiff’s credibility. b. Reason No. 2: Routine and Conservative Treatment 6 The ALJ also discounted Plaintiff’s credibility because “[t]he treatment 7 records reveal the claimant received routine, conservative, and non-emergency 8 treatment since the alleged onset date through the date last insured” for her 9 pancreatitis, back pain, and depression. (AR 22.) An ALJ may discount a 10 claimant’s credibility based on routine and conservative treatment. See Parra v. 11 Astrue, 481 F.3d 742, 750-51 (9th Cir. 2007) (evidence of conservative treatment is 12 sufficient to discount a claimant’s testimony regarding severity of an impairment); 13 see also Meanel v. Apfel, 172 F.3d 1111, 1114 (9th Cir. 1999) (rejecting plaintiff’s 14 complaint “that she experienced pain approaching the highest level imaginable” as 15 “inconsistent with the ‘minimal, conservative treatment’ that she received”). 16 The ALJ noted several instances where Plaintiff sought medical treatment for 17 abdominal or right flank pain, but the ALJ concluded that Plaintiff received 18 “conservative treatment” each time. (AR 22-23.) ALJ’s conclusory determination 19 that Plaintiff received “conservative treatment” is an improper basis for discounting 20 Plaintiff’s credibility. Plaintiff has been prescribed narcotic pain medication for her 21 abdominal pain since at least January 2008. (AR 553, 675.) See Childress v. 22 Colvin, 2014 WL 4629593, at *12 (N.D. Cal. Sept. 16, 2014) (“It is not obvious 23 whether the consistent use of such a narcotic (for several years) is ‘conservative’ or 24 in conflict with Plaintiff’s pain testimony, and therefore requires further 25 explanation.”). Moreover, Plaintiff asserts that chronic pancreatitis, the cause of 26 her abdominal pain (see AR 74, 78, 553), has no cure. (JS at 6.) “A claimant 27 cannot be discredited for failing to pursue non-conservative treatment options 28 where none exist.” Lapeirre–Gutt v. Astrue, 382 F. App’x 662, 664 (9th Cir. 2010); 9 1 see also Carmickle v. Comm’r of Soc. Sec. Admin., 533 F.3d 1155, 1162 (9th Cir. 2 2008) (“[C]onservative course of treatment . . . is not a proper basis for rejecting the 3 claimant’s credibility where the claimant has a good reason for not seeking more 4 aggressive treatment.”). 5 The ALJ also stated that Plaintiff received “routine conservative treatment” 6 for her back pain and depression, but the ALJ failed to explain how the treatment 7 was conservative. (AR 22.) Indeed, the ALJ failed to mention any treatment for 8 back pain during the relevant disability period.3 The ALJ noted that Plaintiff’s 9 primary care physician prescribed medication for her depression, and the record did 10 not contain objective psychological findings or records of any treatment by a 11 mental health specialist. (AR 23.) 12 The ALJ stated that “[t]he lack of more aggressive treatment, surgical 13 intervention, or even referral to a specialist” suggested that Plaintiff’s symptoms 14 were not as severe as alleged. (AR 22.) However, there is no evidence in the 15 record that more frequent or aggressive treatment was available to treat Plaintiff’s 16 conditions, and the ALJ was not qualified to draw her own inference regarding 17 whether such treatment was available. See Tran v. Colvin, 2016 WL 917891, at *6- 18 7 (C.D. Cal. Mar. 8, 2016) (finding no support for ALJ’s finding that surgery or 19 more aggressive treatments were available options to treat claimant’s conditions, 20 and stating that an ALJ is not qualified to draw inferences regarding whether more 21 aggressive treatment is available to treat a claimant’s conditions) (citing Lapeirre- 22 Gutt v. Astrue, 382 F. App’x 662, 664 (9th Cir. 2010) (“A claimant cannot be 23 discredited for failing to pursue non-conservative treatment options were none 24 25 26 27 28 3 The ALJ noted a treatment record dated November 16, 2008 that discussed Plaintiff’s diagnosis of degenerative joint disease and degenerative disc disease. (AR 22.) The Court, however, believes that the handwritten date is read as November 10, 2008—before Plaintiff’s AOD. (AR 620). Regardless whether this record falls within the disability period, the ALJ did not discuss any treatment, conservative or not, arising from it. 10 1 exist.”) (citations omitted); Boitnott v. Colvin, 2016 WL 362348, at *4 (S.D. Cal. 2 Jan. 29, 2016) (an ALJ is not qualified to draw his own inference regarding whether 3 more aggressive courses of treatments were available)). The Court finds that this is not a clear and convincing reason, supported by 4 5 substantial evidence, for discounting Plaintiff’s credibility. c. Reason No. 3: Lack of Supporting Objective Evidence 6 Finally, the ALJ discounted Plaintiff’s credibility because her “allegations 7 8 are greater than expected in light of the objective evidence of record.” (AR 22.) 9 As the ALJ noted, the evidence in the record for the relevant time period— 10 November 15, 2008 to March 31, 2010—regarding Plaintiff’s back problems was 11 limited. (AR 22-23.) An x-ray on September 30, 2009 revealed narrowing of 12 Plaintiff’s lumbar spine, but the ALJ noted that it was “otherwise unremarkable.” 13 (AR 23, 651.) Plaintiff had “mild” range of motion limitations at a November 3, 14 2009 examination. (AR 23, 685.) Plaintiff testified at the hearing that she would 15 drop things and had difficulty using her hands due to numbness in her fingers. (AR 16 74, 84.) She speculated that the problem was “[p]robably just from [her] back” and 17 admitted that a doctor never suggested a cause. (AR 84.) The ALJ noted that the 18 record is devoid of any evidence that Plaintiff reported this issue to her doctor. (AR 19 22.) 20 The ALJ noted that the evidence in the record regarding Plaintiff’s 21 pancreatitis and abdominal pain indicated a pattern of treatment with pain 22 medication. (AR 22-23.) On January 26, 2009, Plaintiff sought treatment for pain 23 on her right side and received pain medication. (AR 22, 616.) She continued to 24 receive pain medication for similar complaints. (AR 22, 467-73.) The ALJ noted 25 that a May 11, 2009 ultrasound showed mild fatty infiltration of the liver, “but was 26 otherwise unremarkable.” 27 Plaintiff’s “pancreas appears unremarkable.” 28 abdominal pain, nausea, and loose stools on August 4, 2009, and again received (AR 23, 483.) 11 The exam report also stated that (AR 483.) Plaintiff reported 1 pain medication. (AR 22, 636.) A September 2009 computerized tomography 2 (CT) study showed a wider than usual appendix, prominent walls in the mid and 3 lower descending colon and rectosigmoid. (AR 23, 634-35.) Although the ALJ 4 stated that the study contained “no reference to the pancreas” (AR 23), the exam 5 report did note that “[t]he pancreas demonstrates no enlargement” and that “[t]here 6 are several scattered, predominantly linear calcifications in the pancreas compatible 7 with the given clinical diagnosis of chronic pancreatitis.” (AR 634.) On November 8 2, 2009, Plaintiff complained of pain in her lower left quadrant and occasional 9 diarrhea and constipation; treatment records characterized the pain as “on-off.” 10 (AR 23, 645.) The ALJ also noted that Plaintiff’s right side pain on March 10, 11 2010 was treated conservatively. (AR 23.) 12 Regarding Plaintiff’s depression and mental impairments, the ALJ noted that 13 Plaintiff received psychotropic medications from her general practitioner 14 physicians. (AR 23, 647, 667.) The ALJ observed that the record did not contain 15 objective psychological findings or treatments records from a mental health 16 specialist. (AR 23.) 17 Saif Bajwa, M.D., submitted several medical source opinions related to his 18 treatment of Plaintiff from December 21, 2007 to August 5, 2013. (AR 23, 583-88, 19 652-57, 733-36.) The ALJ noted that although Dr. Bajwa has treated Plaintiff since 20 2007, that does not mean that she has been disabled since 2007. (AR 23.) In his 21 January 2011 assessment, Dr. Bajwa indicated that Plaintiff could sit, stand, and 22 walk for no more than two hours in an eight-hour workday; lift and carry no more 23 than 10 pounds occasionally; and never stoop, bend, or crouch. (AR 23, 583.) The 24 ALJ noted that the cited positive straight leg raise test was not documented until 25 after the date last insured. (AR 23, 589.) Dr. Bajwa’s March 2011 assessment 26 again referenced the positive straight leg raise test that was conducted outside the 27 relevant time period. (AR 23-34, 584-88.) In his August 2011 report, Dr. Bajwa 28 /// 12 1 specifically stated that the earliest date of Plaintiff’s symptoms and limitations was 2 July 28, 2011. (AR 24, 657.) 3 The ALJ stated that she did not reduce the weight of Dr. Bajwa’s opinions 4 simply because they were submitted on checklist-style forms. (AR 24.) The ALJ 5 rejected Plaintiff’s argument that Dr. Bajwa misunderstood the question about the 6 date that Plaintiff’s limitations began. (Id.) 7 In her representative brief submitted before the remand hearing, Plaintiff also 8 argued that the record should be further developed and that Dr. Bajwa should be 9 recontacted for clarification about the dates listed on his earlier forms. (AR 24, 10 465.) On March 28, 2014, Dr. Bajwa wrote a letter that indicated that Plaintiff had 11 suffered from chronic back pain since he began treating her in December 2007. 12 (AR 732.) The ALJ noted that Dr. Bajwa did not, however, indicate any functional 13 limitations. (AR 24.) At the April 28, 2014 hearing, the ALJ instructed Plaintiff to 14 obtain a clarifying medical opinion from Dr. Bajwa regarding Plaintiff’s limitations 15 before the date last insured. (Id.) Dr. Bajwa completed a medical source statement 16 on May 12, 2014. 17 concerned Plaintiff’s limitations beyond the relevant time period of November 2008 18 to March 31, 2010. (AR 24.) In his assessment, Dr. Bajwa listed the entire 19 duration of his treatment of Plaintiff—December 21, 2007 to August 5, 2013—in 20 response to the question, “What is the earliest date that this assessment applies?” 21 (AR 24, 736.) Dr. Bajwa stated that Plaintiff could sit and stand for one hour at a 22 time, but less than two hours total in an eight-hour workday; could occasionally 23 twist but never stoop, bend, crouch, squat, climb stairs, or climb ladders; would be 24 off-task twenty-five percent or more of the time; and was incapable of even “low 25 stress” work. (AR 24, 735-36.) Dr. Bajwa identified tenderness and limited range 26 of motion of the cervical and lumbar spine as his supporting clinical findings and 27 objective signs. (AR 24, 733.) 28 (AR 733-36.) The ALJ noted that this assessment again /// 13 1 The ALJ gave “significant weight” to Dr. Bajwa’s opinions and adopted his 2 limitations to the extent that the record reasonably supported them. (AR 24.) 3 Although he indicated that the limitations were present during his entire course of 4 treating Plaintiff, the ALJ stated that the record as a whole does not support the 5 degree of limitations until after the date last insured. (Id.) The ALJ gave less 6 weight to the opinions of the State agency physical review consultants, although 7 they were credible, in deference to Plaintiff and Dr. Bajwa. (Id.) The ALJ also 8 gave little weight to the opinions of the State agency mental review consultants. 9 (AR 24.) Finally, the ALJ found that the third-party function report and opinions of 10 Plaintiff’s son were not credible or unbiased. (AR 25-26.) 11 The ALJ found that the treatment record as a whole revealed mild findings 12 relating to Plaintiff’s alleged back problems, pancreatitis, and depression. (AR 22- 13 26.) In light of the objective evidence discussed, the Court finds that the ALJ’s 14 determination is supported by substantial evidence. 15 16 The Court finds that this is a clear and convincing reason, supported by substantial evidence, for discounting Plaintiff’s credibility. 4. 17 Conclusion 18 Having determined that one of the ALJ’s reasons for discounting Plaintiff’s 19 credibility—routine and conservative treatment—is not clear and convincing, the 20 Court must decide whether the ALJ’s reliance on that reason was harmless error. 21 Carmickle, 533 F.3d at 1162. The relevant inquiry “is not whether the ALJ would 22 have made a different decision absent any error,” but whether the ALJ’s decision is 23 still “legally valid, despite such error.” Id. The “remaining reasoning and ultimate 24 credibility determination [must be] . . . supported by substantial evidence in the 25 record.” Id. (emphasis in original) (citing Batson v. Comm’r of Soc. Sec. Admin., 26 359 F.3d 1190, 1197 (9th Cir. 2004)). Here, given the discussion above concerning 27 Plaintiff’s inconsistent statements and the lack of supporting objective evidence, the 28 /// 14 1 Court concludes the ALJ’s credibility finding is legally valid and supported by 2 substantial evidence. 3 B. The ALJ Properly Characterized Plaintiff’s Ability to Manipulate in the RFC 4 5 Plaintiff contends that the ALJ abused her discretion in the assessment of 6 Plaintiff’s RFC by permitting “frequent” handling while precluding “repetitive” 7 handling. (JS at 22-24.) Plaintiff argues that “[t]he concept of repetitively doing a 8 task encompasses constant activity and at least half of frequent activity. 9 limitation against a repetitive action is broader than a limitation against constant 10 action.” (JS at 23.) Plaintiff acknowledges that the vocational expert’s suggested 11 jobs involve “frequent” handling and fingering, but contends that she “cannot 12 perform these jobs on a full-time basis because she cannot repeatedly handle and 13 finger.” (Id.) A 14 As a preliminary matter, there is nothing facially contradictory about the 15 RFC’s limitations on handling or fingering. Although “repetitive” is not defined by 16 the Dictionary of Occupational Titles (“DOT”), each time the ALJ used the term 17 “repetitive” in these proceedings, she defined it as “constant.” 18 (“repetitive or constant”), 103 (“what I mean by repetitive movement is constant 19 movement”), 107 (“no repetitive or constant”).) The DOT defines “constantly,” in 20 the context of handling and fingering, as occurring “2/3 or more of the time.” E.g., 21 DOT 211.467-030 (ticket seller); DOT 159.341-010 (juggler); DOT 144.061-010 22 (painter). “Frequently” refers to handling or fingering that occurs “from 1/3 to 2/3 23 of the time.” E.g., DOT 209.587-010 (addresser); DOT 209.567-014 (order clerk, 24 food and beverage); DOT 713.687-026 (lens inserter). Accordingly, permitting 25 “frequent” handling does not conflict with prohibiting “repetitive or constant” 26 handling. 27 28 (See AR 20 The ALJ is responsible for assessing a claimant’s RFC. 20 CFR 404.1546(c). In doing so, the ALJ may reject the opinion of a treating or examining 15 1 doctor if she articulates specific and legitimate reasons for the rejection. See 2 Thomas v. Barnhart, 278 F.3d 947, 957 (9th Cir. 2002). Here, “[a]fter careful 3 consideration of the entire record,” the ALJ determined that Plaintiff “cannot 4 perform repetitive or constant handling or fingering, but frequent is still 5 permissible.” (AR 20.) In formulating the RFC, the ALJ gave “significant weight” 6 to Dr. Bajwa’s opinions and adopted his limitations “to the extent they could be 7 reasonably supported by the record,” as discussed above. (AR 24.) Plaintiff notes 8 that Dr. Bajwa reported that Plaintiff could “occasionally lift less than 10 pounds,” 9 but “[o]ccassional lifting does not equate to frequent or repetitive lifting.” (JS at 10 22.) The ALJ did not reject this limitation: the RFC limits Plaintiff to lifting “10 11 pounds occasionally.” (AR 20.) The ALJ also noted that Dr. Bajwa’s most recent 12 report did not include limitations on manipulating. (AR 24.) The ALJ nevertheless 13 deferred to Plaintiff’s testimony and precluded repetitive handling and fingering. 14 (AR 24.) 15 At step five, it is the Commissioner’s burden to establish that, considering the 16 RFC, a claimant can perform other work. 20 CFR 404.1520(g)(1). To make this 17 showing, the ALJ may rely on the testimony of a vocational expert. Tackett v. 18 Apfel, 180 F.3d 1094, 1099 (9th Cir. 1999). Here, the ALJ posed a hypothetical to 19 the vocational expert that presented the same limitations as contained in Plaintiff’s 20 RFC. (AR 107.) The vocational expert provided examples of sedentary, unskilled 21 entry-level work that would be available to someone with those limitations. (AR 22 107.) The jobs identified—addresser, food and beverage order clerk, and lens 23 inserter—all require “frequent,” but not “repetitive or constant,” handling and 24 fingering. (Id.) The ALJ did not err in relying upon this testimony to find that 25 Plaintiff was capable of performing other work and therefore not disabled. 26 The Court finds that the ALJ provided sufficient reasons for rejecting Dr. 27 Bajwa’s opinions and that RFC’s limitations on manipulating are supported by 28 substantial evidence. 16 1 2 3 4 5 V. CONCLUSION IT IS ORDERED that Judgment shall be entered AFFIRMING the decision of the Commissioner denying benefits. IT IS FURTHER ORDERED that the Clerk of the Court serve copies of this Order and the Judgment on counsel for both parties. 6 7 8 DATED: October 27, 2017 ROZELLA A. OLIVER UNITED STATES MAGISTRATE JUDGE 9 10 11 NOTICE 12 THIS DECISION IS NOT INTENDED FOR PUBLICATION IN WESTLAW, LEXIS/NEXIS, OR ANY OTHER LEGAL DATABASE. 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 17
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