Dominic Martini v. Nancy A. Berryhill, No. 5:2017cv00408 - Document 22 (C.D. Cal. 2018)
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. (sbu)
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Dominic Martini v. Nancy A. Berryhill Doc. 22 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 DOMINIC MARTINI, 12 Plaintiff, 13 14 15 Case No. ED CV 17-00408-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 Dominic Martini (“Plaintiff”) challenges the Commissioner’s denial of his 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 January 16, 2013, Plaintiff filed a Title II application for DIB alleging disability beginning October 20, 2012. (Administrative Record (“AR”) 65-66.) His application was denied initially on July 2, 2013, and upon reconsideration on January 2, 2014. (AR 97, 103.) On February 4, 2014, Plaintiff filed a written 28 Dockets.Justia.com 1 request for hearing, and a hearing was held on September 29, 2015. (AR 32, 109.) 2 Represented by counsel, Plaintiff appeared and testified, along with a medical 3 expert and an impartial vocational expert. (AR 34-64.) On November 13, 2015, 4 the Administrative Law Judge (“ALJ”) found that Plaintiff had not been under a 5 disability, pursuant to the Social Security Act,1 from October 20, 2012 through the 6 date of decision. (AR 26.) The ALJ’s decision became the Commissioner’s final 7 decision when the Appeals Council denied Plaintiff’s request for review. (AR 1-3.) 8 Plaintiff filed this action on March 3, 2017. (Dkt. No. 1.) 9 The ALJ followed a five-step sequential evaluation process to assess whether 10 Plaintiff was disabled under the Social Security Act. Lester v. Chater, 81 F.3d 821, 11 828 n.5 (9th Cir. 1995). At step one, the ALJ found that Plaintiff did not engage in 12 substantial gainful activity since October 20, 2012, his alleged onset date (“AOD”). 13 (AR 16.) At step two, the ALJ found that Plaintiff has the following severe 14 impairments: obesity; syndactyly of the fingers; essential hypertension; 15 strain/sprain of the left knee and left shoulder; and degenerative disc disease of the 16 cervical spine. (Id.) At step three, the ALJ found that Plaintiff “does not have an 17 impairment or combination of impairments that meets or medically equals the 18 severity of one of the listed impairments in 20 CFR Part 404, Subpart P, Appendix 19 1.” (AR 18.) Before proceeding to step four, the ALJ found that Plaintiff has the residual 20 21 functional capacity (“RFC”) to: [P]erform medium work . . . involving sitting 6 hours, standing/walking 6 hours, occasionally lifting 50 pounds, and frequently lifting 25 pounds in an 8-hour workday. He can frequently climb stairs/ramps, but only occasionally climb ladders/ropes/scaffolds. The claimant can occasionally balance and 22 23 24 25 26 27 28 1 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 stoop, and frequently kneel, crouch, and crawl. He can frequently use the bilateral upper extremities for gross and fine manipulation. 1 2 (Id.) 3 At step four, based on Plaintiff’s RFC and the vocational expert’s testimony, 4 the ALJ found that Plaintiff was capable of performing past relevant work as a 5 truck driver. (AR 25.) Accordingly, the ALJ found that Plaintiff had not been 6 under a disability from the AOD through the date of decision, and thus the ALJ did 7 not proceed to step five. (AR 26.) 8 III. STANDARD OF REVIEW 9 Under 42 U.S.C. § 405(g), a district court may review the Commissioner’s 10 decision to deny benefits. A court must affirm an ALJ’s findings of fact if they are 11 supported by substantial evidence and if the proper legal standards were applied. 12 Mayes v. Massanari, 276 F.3d 453, 458-59 (9th Cir. 2001). “‘Substantial evidence’ 13 means more than a mere scintilla, but less than a preponderance; it is such relevant 14 evidence as a reasonable person might accept as adequate to support a conclusion.” 15 Lingenfelter v. Astrue, 504 F.3d 1028, 1035 (9th Cir. 2007) (citing Robbins v. Soc. 16 Sec. Admin., 466 F.3d 880, 882 (9th Cir. 2006)). An ALJ can satisfy the substantial 17 evidence requirement “by setting out a detailed and thorough summary of the facts 18 and conflicting clinical evidence, stating his interpretation thereof, and making 19 findings.” Reddick v. Chater, 157 F.3d 715, 725 (9th Cir. 1998) (citation omitted). 20 “[T]he Commissioner’s decision cannot be affirmed simply by isolating a 21 specific quantum of supporting evidence. Rather, a court must consider the record 22 as a whole, weighing both evidence that supports and evidence that detracts from 23 the Secretary’s conclusion.” Aukland v. Massanari, 257 F.3d 1033, 1035 (9th Cir. 24 2001) (citations and internal quotation marks omitted). 25 susceptible to more than one rational interpretation,’ the ALJ’s decision should be 26 upheld.” Ryan v. Comm’r of Soc. Sec., 528 F.3d 1194, 1198 (9th Cir. 2008) (citing 27 Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005)); see Robbins, 466 F.3d at 28 3 “‘Where evidence is 1 882 (“If the evidence can support either affirming or reversing the ALJ’s 2 conclusion, we may not substitute our judgment for that of the ALJ.”). The Court 3 may review only “the reasons provided by the ALJ in the disability determination 4 and may not affirm the ALJ on a ground upon which he did not rely.” Orn v. 5 Astrue, 495 F.3d 625, 630 (9th Cir. 2007) (citing Connett v. Barnhart, 340 F.3d 6 871, 874 (9th Cir. 2003)). 7 IV. DISCUSSION 8 Plaintiff raises the following issues for review: (1) whether the ALJ properly 9 considered the relevant medical evidence of record and whether the RFC 10 assessment is supported by substantial evidence; and (2) whether the ALJ properly 11 considered Plaintiff’s subjective complaints and testimony. 12 (“JS”) 3, Dkt. No. 21.) Plaintiff contends that the ALJ failed to consider the 13 combination of his impairments, erred in formulating the RFC, and improperly 14 discredited Plaintiff’s subjective testimony. (JS 5, 9, 16-17.)2 The Commissioner 15 contends that the ALJ properly considered all evidence and provided multiple 16 permissive reasons to discount Plaintiff’s credibility. (JS 20, 25.) For the reasons 17 below, the Court agrees with the Commissioner. A. 18 (Joint Stipulation The ALJ’s Credibility Determination Is Supported By Substantial Evidence3 19 20 Plaintiff argues that the ALJ failed to properly consider his subjective 21 statements and failed to provide clear and convincing reasons for rejecting his 22 testimony. (JS 10, 16.) The Commissioner disagrees. (See JS 25-31.) 23 /// 24 /// 25 2 26 27 28 The Joint Stipulation is not consecutively paginated. For ease of reference, the Court uses the pagination automatically generated by the Court’s electronic docket. 3 Because subjective symptom testimony is one factor that the ALJ must consider when assessing a claimant’s RFC, the Court addresses the issue of credibility first before discussing the overall RFC determination. 4 1 1. Plaintiff’s Testimony 2 At the administrative hearing, Plaintiff stated that he had completed eleventh 3 grade and pursued automotive studies at a community college. (AR 37.) Plaintiff 4 last worked on June 4, 2012 as a construction equipment truck driver. (AR 38.) At 5 that job, Plaintiff lifted chains and binders that weighed 20 or 25 pounds. (Id.) 6 Plaintiff had been a truck driver at various companies since at least 1999. (AR 39.) 7 Plaintiff testified that he cannot work due to pain in his hands, which he has 8 had for about 10 years. (AR 40.) Plaintiff described feeling “bone on bone” when 9 he touches things. (Id.) He stated that he has arthritis, bone spurs in his hands and 10 neck, and “[a] lot of pain” in his neck and back. (Id.) 11 On a zero-to-ten pain scale, Plaintiff assigned a ten to the pain in his right 12 hand. (Id.) Plaintiff takes gabapentin and duloxetine, which helps his pain level. 13 (Id.) Plaintiff stated that his pain level is below a ten when he is asleep, but “it 14 always hurts if [he] touch[es] something.” (Id.) Plaintiff then agreed that his pain 15 is a constant ten even with pain medication. (AR 41.) 16 Plaintiff assigned a nine to the pain in his left hand, and he stated that the 17 pain goes down to an eight-and-a-half with medication. (Id.) He explained that the 18 medication “doesn’t help much,” but he does not have pain as long as he does not 19 move or touch anything. (Id.) Without medication, Plaintiff has pain, throbbing, 20 and numbness even if he does not move. (Id.) 21 Plaintiff is seeing a doctor who gives him nerve blockers and cervical 22 epidurals to treat his hand pain. (AR 45.) The treatments make his hands numb 23 and take away the pain for two weeks. (Id.) Plaintiff is right-handed, and he can 24 hold a pen or pencil with two fingers, but not without pain. (AR 41.) When using 25 his right hand, Plaintiff cannot write a page, hold items like water glasses, open 26 jars, or fasten buttons, but he can open a doorknob. (AR 41-42.) With his left 27 hand, Plaintiff cannot hold a pen or pencil, but he can hold water glasses without a 28 handle by using an open hand. (AR 42.) Plaintiff can dress himself if he does not 5 1 need to tie shoelaces, he can fasten one button on his pants, and he can operate a 2 zipper. (AR 42-43.) 3 Plaintiff described occasional difficulty bathing or showering due to 4 problems with his left shoulder. (AR 43.) Plaintiff explained that he injured his 5 left shoulder seven years ago when he fell down a ladder. (Id.) He rated the pain in 6 his shoulder as a seven and stated that he cannot raise his left arm to or above his 7 shoulder level without pain. (AR 43-44.) An arthritis doctor gave Plaintiff the 8 option of having surgery on his shoulder, which he declined. (AR 55-56.) Plaintiff 9 also has neck problems from whiplash in a car accident about 10 or 15 years ago, 10 for which he has received chiropractic treatment. (AR 44.) Plaintiff assigned a five 11 to his neck pain and explained that he has difficulty looking up and to the right. 12 (AR 44-45.) Plaintiff stated that medication does not help his shoulder or neck 13 pain. (AR 43-44.) 14 Plaintiff testified that he has difficulty sitting due to pain in his left knee, 15 which he rated as an eight. (AR 45-46.) Plaintiff has pain “[a]ll the time,” and 16 medication does not help. (Id.) Plaintiff can sit for 15 minutes before he needs to 17 adjust his leg or lower back through stretching or standing up. (AR 46.) Plaintiff 18 can stand for five minutes before he has knee pain. (AR 46-47.) Plaintiff can walk 19 for 15 minutes. (AR 47.) He wears a brace on his left knee daily, when his left 20 knee gets swollen after walking. (Id.) Plaintiff has a cane, but he does not use it 21 because his left hand cannot hold it. (Id.) Surgery was suggested after he injured 22 his knee in 1996, but Plaintiff declined it. (AR 56.) 23 Plaintiff also has hour-long spasms in his lower and middle back every day. 24 (AR 47-48.) When he has a spasm, he needs to “get up and move” and cannot stay 25 in one position. (AR 48.) 26 Plaintiff does not drive because “[i]t hurts to drive a vehicle.” (Id.) Plaintiff 27 has other people drive him places; his parents drove him to the hearing. (Id.) They 28 did not stop during the drive, which took an hour and forty-five minutes. (Id.) 6 1 Plaintiff is currently homeless, but he has a temporary room at his parents’ 2 house. (AR 49.) Plaintiff has lived with his parents since July, but he does not plan 3 to live there indefinitely. (Id.) He does not do laundry, and his mother does all the 4 cooking. (AR 49.) Plaintiff goes grocery shopping “[j]ust for little things, like 5 packages of hot dogs.” (Id.) 6 Plaintiff stated that he wakes up in pain two or three times every night, and 7 he does not feel rested in the morning. (Id.) Plaintiff lies in bed and rests during 8 the day. (Id.) If Plaintiff stays in bed too long, he wakes up “very stiff,” so he 9 doesn’t stay in bed more than a half hour. (Id.) 10 Plaintiff sees a psychiatrist or psychologist once every three months at his 11 primary doctor’s recommendation. (AR 50.) Plaintiff receives “verbal treatment” 12 and answers the doctor’s questions. (Id.) Plaintiff testified that he is depressed and 13 feels like he needs someone to speak to. (Id.) Plaintiff cries about once a week. 14 (Id.) Plaintiff denied having friends to socialize with, and he denied going to 15 movies, shows, or other entertainment. (Id.) Plaintiff also denied belonging to any 16 clubs, social organizations, or religious organizations. (AR 51.) Plaintiff does not 17 watch television or do any other activities other than getting up and lying in bed. 18 (AR 52.) 19 Plaintiff’s doctor stopped prescribing medication while Plaintiff tried using 20 medical marijuana for two months. (AR 51.) Plaintiff had previously been 21 prescribed Norco and Tramadol. (AR 54-55.) Plaintiff stated that the medical 22 marijuana made him “more relaxed” and he “didn’t really mind being in pain.” 23 (AR 52.) Plaintiff stopped using medical marijuana about four months before the 24 hearing and has been waiting to get an appointment with another pain specialist. 25 (AR 51.) Plaintiff stopped using medical marijuana so he could get prescription 26 narcotics. (AR 55.) 27 Plaintiff stated that he was still married, but did not know if his wife had filed 28 for divorce. (AR 52.) He last saw his wife in June, about three months before the 7 1 hearing, after she asked him to leave and they packed up his belongings. (Id.) 2 Plaintiff has one adult child, who he sees occasionally for brief visits. (AR 53.) 2. 3 Applicable Legal Standards 4 “In assessing the credibility of a claimant’s testimony regarding subjective 5 pain or the intensity of symptoms, the ALJ engages in a two-step analysis.” Molina 6 v. Astrue, 674 F.3d 1104, 1112 (9th Cir. 2012) (citing Vasquez v. Astrue, 572 F.3d 7 586, 591 (9th Cir. 2009)). “First, the ALJ must determine whether the claimant has 8 presented objective medical evidence of an underlying impairment which could 9 reasonably be expected to produce the pain or other symptoms alleged.” Treichler 10 v. Comm’r of Soc. Sec. Admin., 775 F.3d 1090, 1102 (9th Cir. 2014) (quoting 11 Lingenfelter, 504 F.3d at 1036) (internal quotation marks omitted). If so, and if the 12 ALJ does not find evidence of malingering, the ALJ must provide specific, clear 13 and convincing reasons for rejecting a claimant’s testimony regarding the severity 14 of his symptoms. Id. The ALJ must identify what testimony was found not 15 credible and explain what evidence undermines that testimony. 16 Massanari, 246 F.3d 1195, 1208 (9th Cir. 2001). “General findings are 17 insufficient.” Lester, 81 F.3d at 834. 3. 18 Holohan v. Discussion 19 “After careful consideration of the evidence,” the ALJ found that Plaintiff’s 20 “medically determinable impairments could reasonably be expected to cause the 21 alleged symptoms,” but found that Plaintiff’s “statements concerning the intensity, 22 persistence and limiting effects of these symptoms are not entirely credible.” (AR 23 19.) 24 (2) inconsistent statements; and (3) lack of objective medical evidence to support 25 the alleged severity of symptoms. (AR 16-17.) No malingering allegation was 26 made, and therefore, the ALJ’s reasons must be “clear and convincing.” 27 /// 28 /// The ALJ relied on the following reasons: (1) activities of daily living; 8 1 2 3 a. Reason No. 1: Activities of Daily Living The ALJ found that Plaintiff’s “regular activities contradict several of his reported problems and show he is more capable than he alleged.” (AR 20.) 4 Inconsistencies between symptom allegations and daily activities may act as 5 a clear and convincing reason to discount a claimant’s credibility, see Tommasetti v. 6 Astrue, 533 F.3d 1035, 1039 (9th Cir. 2008); Bunnell v. Sullivan, 947 F.2d 341, 346 7 (9th Cir. 1991), but a claimant need not be utterly incapacitated to obtain benefits. 8 Fair v. Bowen, 885 F.2d 597, 603 (9th Cir. 1989). “If a claimant is able to spend a 9 substantial part of his day engaged in pursuits involving the performance of 10 physical functions that are transferable to a work setting, a specific finding as to this 11 fact may be sufficient to discredit a claimant’s allegations.” Morgan v. Comm’r of 12 Soc. Sec. Admin., 169 F.3d 595, 600 (9th Cir. 1999); accord Vertigan v. Halter, 260 13 F.3d 1044, 1050 (9th Cir. 2001). 14 The fact that Plaintiff fed and walked his dog, took care of his personal care 15 with some difficulty, prepared meals, performed minor chores, shopped, rode a 16 motorcycle, participated in hobbies, and could manage money does not detract from 17 his overall credibility, as the record does not show that this consumed a substantial 18 part of Plaintiff’s day. See Vertigan, 260 F.3d at 1049-50 (holding that a claimant’s 19 ability to “go grocery shopping with assistance, walk approximately an hour in the 20 malls, get together with her friends, play cards, swim, watch television, and read . . . 21 does not in any way detract from her credibility as to her overall disability”). In his 22 Function Report, Plaintiff stated that he spent one hour vacuuming and 20 minutes 23 doing outside work. (AR 195.) He also spent one hour shopping every two weeks. 24 (AR 196.) Further, the ability to perform some tasks is not necessarily indicative of 25 an ability to perform work activities because “many home activities are not easily 26 transferable to what may be the more grueling environment of the workplace, where 27 it might be impossible to periodically rest or take medication.” Fair, 885 F.2d at 28 603; see also Molina, 674 F.3d at 1112-13 (the ALJ may discredit a claimant who 9 1 “participat[es] in everyday activities indicating capacities that are transferable to a 2 work setting”). The critical difference between such activities “and activities in a 3 full-time job are that a person has more flexibility in scheduling the former . . . , can 4 get help from other persons . . . , and is not held to a minimum standard of 5 performance, as she would be by an employer.” Bjornson v. Astrue, 671 F.3d 640, 6 647 (7th Cir. 2012) (cited with approval in Garrison v. Colvin, 759 F.3d 995, 1016 7 (9th Cir. 2014)). Indeed, Plaintiff stated in his Function Report that his wife helped 8 him care for the pets, and he needed his wife to accompany him places. (AR 194, 9 197.) Plaintiff also stated that his wife would remind him to take care of his 10 personal needs and grooming. (AR 195.) But by his September 2015 hearing, 11 Plaintiff was no longer living with his wife. (AR 52.) 12 13 The Court finds that this reason is not a clear and convincing reason, supported by substantial evidence, to discount Plaintiff’s credibility. b. Reason No. 2: Inconsistent Statements 14 15 The ALJ also found other inconsistencies between the Function Report and 16 Plaintiff’s alleged limitations. As part of the credibility determination, the ALJ 17 may consider inconsistencies between the claimant’s testimony and his other 18 statements, conduct, and daily activities. See Light v. Soc. Sec. Admin., 119 F.3d 19 789, 792 (9th Cir. 1997); Tonapetyan v. Halter, 242 F.3d 1144, 1148 (9th Cir. 20 2001). 21 The ALJ observed that Plaintiff’s “ability to complete a 9-page Function 22 Report in his own handwriting” did not support his allegations of “difficulty using 23 his hands, grasping objects, and performing fine manipulations.” 24 Plaintiff testified that he struggled to hold a pen or pencil and could not write a 25 page. (AR 41.) Although Plaintiff argues that the record does not reveal how long 26 it took Plaintiff to complete his Function Report (JS 12), the ALJ was permitted to 27 consider this discrepancy between Plaintiff’s testimony and his demonstrated 28 conduct. See Light, 119 F.3d at 792; see also Ryan, 528 F.3d at 1198 (“‘Where 10 (AR 20.) 1 evidence is susceptible to more than one rational interpretation,’ the ALJ’s decision 2 should be upheld.”). Next, the ALJ noted that Plaintiff reported that he could walk 3 for up to a mile, “despite allegations of knee pain causing difficulty walking.” (AR 4 20; see AR 198.) 5 limitations,” Plaintiff “admitted spending time with his wife, going to the park, and 6 going shopping,” and “denied having problems getting along with others and said 7 he got along well with authority figures.” (AR 20; see AR 198-99.) The ALJ 8 properly considered these discrepancies between Plaintiff’s alleged limitations and 9 his self-reported activities. See Berry v. Astrue, 622 F.3d 1228, 1234-35 (9th Cir. 10 2010) (affirming an adverse credibility determination when a claimant’s self- 11 reported activities contradicted the claimant’s alleged functional limitations). 12 13 14 15 The ALJ also noted that, “contrary to his alleged social The Court finds that this reason is a clear and convincing reason, supported by substantial evidence, to discount Plaintiff’s credibility. c. Reason No. 3: Lack of Supporting Objective Medical Evidence 16 The ALJ found that “[t]he objective medical evidence fails to provide strong 17 support for the claimant’s allegations of disabling symptoms and limitations.” (AR 18 20.) The lack of supporting objective medical evidence cannot form the sole basis 19 for discounting testimony, but it is a factor that the ALJ may consider in making a 20 credibility determination. Burch, 400 F.3d at 681; Rollins v. Massanari, 261 F.3d 21 853, 857 (9th Cir. 2001) (citing 20 C.F.R. § 404.1529(c)(2)). 22 Regarding Plaintiff’s hand and shoulder impairments, the ALJ noted that 23 medical records confirmed contracture of the fourth and fifth fingers before the 24 AOD. (Id.; see AR 332, 407.) In June 2012, Plaintiff exhibited discomfort in his 25 third and fourth fingers, reported “a lot of pain in his hands,” and wondered how 26 long he could continue his current work. (AR 20, 320-21.) About one month after 27 the AOD, in November 2012, Plaintiff was treated in the emergency room for 28 chronic pain in both hands and left shoulder pain. (AR 20, 288, 290.) In December 11 1 2012, Plaintiff was diagnosed with ulnar nerve entrapment at the wrist, which was 2 treated with a wrist splint and medication. (AR 20, 310, 315.) Plaintiff underwent 3 an orthopedic consultation in May 2013, which revealed scarring and joint changes 4 due to syndactyly, some deformities of the PIP and DIP joints, no loss of sensation, 5 normal motor strength bilaterally, normal deep tendon reflexes, normal and painless 6 range of motion in his wrists and elbows, normal pulses, and negative Tinel’s sign 7 over the ulnar nerve at the cubital tunnel. (AR 22, 370-71.) Plaintiff’s grip strength 8 was measured as 20-40 pounds with his right hand and 20-30 pounds with his left 9 hand. (AR 22, 369.) Plaintiff also had generalized mild tenderness and pain 10 through the range of motion in his left shoulder, but his shoulder was otherwise 11 unremarkable. (AR 22, 370.) X-rays in July 2013 showed deformity of the fourth 12 middle phalanx, flexion deformity of the fourth digit, and mild flexion deformity of 13 the third phalanx on Plaintiff’s right hand. (AR 22, 388-89.) Plaintiff also had 14 anchyloses of the fourth PIP joint and severe joint space narrowing of the fourth 15 DIP joint with marginal osteophytosis and flexion deformity in his left hand. (Id.) 16 The x-rays of Plaintiff’s wrists were unremarkable. (AR 22, 433-34.) Plaintiff was 17 treated at Neighborhood Healthcare beginning in July 2013, where he was treated 18 for chronic pain but was noted to be “in no acute distress.” (AR 23; see, e.g., AR 19 399-409.) In December 2013, Plaintiff complained of chronic pain in his fingers 20 and hand numbness that radiated up both arms. 21 electrodiagnostic/nerve conduction consultation revealed no evidence of peripheral 22 neuropathy, cervical radiculopathy, or peripheral impingement in the median, ulnar, 23 or radial nerves. 24 Plaintiff’s condition did not significantly change, and he was treated with 25 medication. (AR 23; see, e.g., AR 421-22, 516-17.) In February 2014, Plaintiff 26 was prescribed a Medrol Dosepak; he reported only 15% relief from this 27 medication. (AR 23, 418-20.) No orthopedic source of Plaintiff’s problems could 28 be identified, and it was recommended that Plaintiff see a rheumatologist. (AR 23, (AR 23, 425-26.) (AR 23, 507-08.) An Between January 2014 and June 2014, 12 1 418.) Plaintiff also tried medications for neurologic symptoms and underwent more 2 testing, which was unsuccessful at diagnosing or alleviating Plaintiff’s symptoms. 3 (AR 23, 443.) A February 2014 x-ray of Plaintiff’s left shoulder was unremarkable. 4 (AR 23, 517.) An April 2014 rheumatology consultation revealed slightly limited 5 rotation of the neck, flexion at multiple IPs on prayer sign, poor finger curl, poor 6 grip, multiple deformities and abnormalities of the bilateral fingers, negative 7 Tinel’s signs, and wrists that were relatively well preserved and without pain. (AR 8 23-24, 539-44.) Plaintiff’s deep tendon reflexes were symmetric and his shoulders 9 were unremarkable. (Id.) Plaintiff was diagnosed with osteoarthritis and left lateral 10 epicondylitis, which was confirmed in a June 2014 x-ray. (AR 24, 516, 543.) 11 Regarding Plaintiff’s back impairment, a May 2013 orthopedic evaluation 12 revealed normal range of motion of the cervical spine with pain at the extremes and 13 minimal tenderness of the paracervical muscles. (AR 369.) Plaintiff was observed 14 to sit comfortably. (Id.) Plaintiff began reporting back pain at Neighborhood 15 Healthcare in July 2013, but no significant findings were made. (AR 23, 403.) July 16 2013 x-rays of the cervical spine were normal. (AR 22, 432.) 17 Regarding Plaintiff’s knee impairment, a May 2013 orthopedic evaluation 18 revealed a normal gait and no limp. (AR 22, 369.) In October 2013, Plaintiff 19 reported injuring his left calf; he was provided with a cane and anti-inflammatory 20 medication. (AR 23, 391, 397-98.) Plaintiff complained of knee pain during his 21 treatment at Neighborhood Healthcare, but no significant findings were made. (AR 22 23; see, e.g., AR 458, 461, 468, 498.) A February 2014 x-ray of the left knee 23 revealed osteoarthritis. (AR 23, 518.) 24 From August 2014 to May 2015, Plaintiff had a positive response to 25 treatment with epidural steroid injections, nerve blocks, and other medications. 26 (AR 24; see, e.g., 547, 555, 559, 571, 629, 632, 635, 647.) 27 The ALJ thoroughly considered Plaintiff’s medical records and found that 28 they did not support Plaintiff’s allegations of disabling symptoms and limitations. 13 1 See Reddick, 157 F.3d at 725. The ALJ was permitted to rely on the normal 2 examination results and lack of significant medical findings in assessing the 3 credibility of Plaintiff’s testimony. See Garza v. Astrue, 380 F. App’x 672, 674 4 (9th Cir. 2010) (finding that an ALJ properly considered a claimant’s normal exam 5 findings when noting a lack of objective medical evidence to support the claimant’s 6 allegations). The Court finds that this is a clear and convincing reason, supported by 7 8 substantial evidence, for discounting Plaintiff’s credibility. 4. 9 Conclusion 10 Because the Court found that one of the ALJ’s reasons for discounting 11 Plaintiff’s credibility—activities of daily living—is not clear and convincing, the 12 Court must decide whether the ALJ’s reliance on that reason was harmless error. 13 Carmickle v. Comm’r of Soc. Sec. Admin., 533 F.3d 1155, 1162 (9th Cir. 2008). 14 The relevant inquiry “is not whether the ALJ would have made a different decision 15 absent any error,” but whether the ALJ’s decision is still “legally valid, despite such 16 error.” Id. The “remaining reasoning and ultimate credibility determination [must 17 be] . . . supported by substantial evidence in the record.” Id. (emphasis in original) 18 (citing Batson v. Comm’r of Soc. Sec. Admin., 359 F.3d 1190, 1197 (9th Cir. 19 2004)). 20 statements and the lack of supporting objective evidence, the Court concludes the 21 ALJ’s credibility finding is legally valid and supported by substantial evidence. 22 See Garza, 380 F. App’x at 673 (finding that contradictions created by inconsistent 23 statements and a lack of objective medical evidence constituted substantial 24 evidence to discount credibility, despite finding that the ALJ’s other reasons were 25 not clear and convincing). 26 /// 27 /// 28 /// Here, given the discussion above concerning Plaintiff’s inconsistent 14 1 B. Formulating Plaintiff’s RFC 2 3 The ALJ Properly Considered the Medical Evidence When Plaintiff contends that the ALJ failed to properly consider his combination of 4 impairments and erred in assessing Plaintiff’s RFC. 5 Commissioner contends that the ALJ properly considered all the evidence. (See JS 6 20, 24-25.) 7 1. (See JS 5, 9-10.) The Applicable Legal Standards 8 The ALJ is responsible for assessing a claimant’s RFC “based on all of the 9 relevant medical and other evidence.” 20 CFR § 404.1545(a)(3), 404.1546(c); see 10 Robbins, 466 F.3d at 883 (citing Soc. Sec. Ruling 96-8p (July 2, 1996), 1996 WL 11 374184, at *5). In doing so, the ALJ may consider any statements provided by 12 medical sources, including statements that are not based on formal medical 13 examinations. 14 determination of a claimant’s RFC must be affirmed “if the ALJ applied the proper 15 legal standard and his decision is supported by substantial evidence.” Bayliss v. 16 Barnhart, 427 F.3d 1211, 1217 (9th Cir. 2005); accord Morgan, 169 F.3d at 599. See 20 CFR § 404.1513(a), 404.1545(a)(3). An ALJ’s 17 Courts give varying degrees of deference to medical opinions based on the 18 provider: (1) treating physicians who examine and treat; (2) examining physicians 19 who examine, but do not treat; and (3) non-examining physicians who do not 20 examine or treat. Valentine v. Comm’r, Soc. Sec. Admin., 574 F.3d 685, 692 (9th 21 Cir. 2009). Most often, the opinion of a treating physician is given greater weight 22 than the opinion of a non-treating physician, and the opinion of an examining 23 physician is given greater weight than the opinion of a non-examining physician. 24 See Garrison v. Colvin, 759 F.3d 995, 1012 (9th Cir. 2014). 25 The ALJ must provide “clear and convincing” reasons to reject the ultimate 26 conclusions of a treating or examining physician. Embrey v. Bowen, 849 F.2d 418, 27 422 (9th Cir. 1988); Lester, 81 F.3d at 830-31. When a treating or examining 28 physician’s opinion is contradicted by another opinion, the ALJ may reject it only 15 1 by providing specific and legitimate reasons supported by substantial evidence in 2 the record. Orn, 495 F.3d at 633; Lester, 81 F.3d at 830; Carmickle, 533 F.3d at 3 1164. A non-examining physician’s opinion can constitute substantial evidence if it 4 is supported by other evidence in the record and is consistent with it. Morgan, 169 5 F.3d at 600. “An ALJ can satisfy the ‘substantial evidence’ requirement by ‘setting 6 out a detailed and thorough summary of the facts and conflicting evidence, stating 7 his interpretation thereof, and making findings.’” Garrison, 759 F.3d at 1012 8 (citation omitted). 9 Other non-medical sources may also provide opinions and testimony 10 regarding a claimant’s symptoms or the effects of a claimant’s impairments on his 11 or her ability to work. Sprague v. Bowen, 812 F.2d 1226, 1232 (9th Cir. 1987) 12 (citing Nguyen v. Chater, 100 F.3d 1462, 1467 (9th Cir. 1996)). The ALJ must take 13 this evidence into account, unless the ALJ “expressly determines to disregard such 14 testimony, in which case ‘he must give reasons that are germane to each witness.’” 15 Nguyen, 100 F.3d at 1467 (quoting Dodrill v. Shalala, 12 F.3d 915, 919 (9th Cir. 16 1993)); see Lewis v. Apfel, 236 F.3d 503, 511 (9th Cir. 2001). Because such 17 testimony is competent evidence, it “cannot be disregarded without comment.” 18 Nguyen, 100 F.3d at 1467 (emphasis in original). 2. 19 Opinion Testimony 20 Treating physician Thomas E. Rastle, M.D., completed Mental and Physical 21 Medical Source Statements in March 2013. (AR 20, 356-63.) Dr. Rastle treated 22 Plaintiff occasionally over the course of five years. (AR 356, 361.) In his Mental 23 Medical Source Statement, Dr. Rastle indicated that Plaintiff had no psychiatric 24 condition. 25 dependent on hands condition,” and Plaintiff suffered from decreased energy and 26 sleep disturbance. (AR 356-57.) Dr. Rastle indicated that Plaintiff had “unlimited 27 or very good” abilities to perform unskilled work, semiskilled and skilled work, and 28 particular types of jobs. (AR 356, 359.) He noted that Plaintiff’s prognosis was “entirely (AR 358-59.) 16 Dr. Rastle also noted that Plaintiff’s 1 psychological condition would not cause him to be absent from work and that his 2 only impairments were physical. 3 Statement, Dr. Rastle diagnosed Plaintiff with hand pain secondary to arthritis after 4 hand surgeries for a congenital condition. (AR 361.) Dr. Rastle stated that Plaintiff 5 had a fair-to-poor prognosis, noting Plaintiff’s severe, constant finger pain and 6 deformities. (AR 361.) Dr. Rastle indicated that Plaintiff required a cane or other 7 assistive device for occasional standing or walking. (AR 361.) Dr. Rastle opined 8 that Plaintiff could stand or walk for six hours of an eight-hour workday, sit for 9 eight hours, never lift or carry any weight, and rarely perform postural activities. 10 (AR 362.) He also stated that Plaintiff had significant limitations with reaching, 11 handling, or fingering. (Id.) Dr. Rastle determined that Plaintiff could never grasp, 12 turn, or twist objects; could perform fine manipulations 1% of a working day; could 13 never reach with his left arm; and could reach with his right arm only 5% of a 14 working day. (Id.) Dr. Rastle noted that Plaintiff’s symptoms would constantly 15 interfere with attention and concentration needed to perform simple work tasks. 16 (AR 363.) Dr. Rastle also indicated that Plaintiff could tolerate moderate work 17 stress and would likely be absent from work more than four days per month. (Id.) (AR 360.) In his Physical Medical Source 18 Alan Berkowitz, M.D., performed a psychiatric evaluation in April 2013. 19 (AR 21, 364-67.) Dr. Berkowitz noted that Plaintiff was given medication for 20 anxiety, but Plaintiff did not believe that anxiety made him unable to function in the 21 workplace. (AR 364; see AR 365.) Dr. Berkowitz observed that Plaintiff was 22 polite and engaging, put forth a good effort, had normal and well-organized speech, 23 made good eye contact, and was completely oriented. (AR 365.) Dr. Berkowitz 24 noted that Plaintiff had normal memory, intact judgment, and well-organized 25 thought processes. 26 shopping with his wife, doing laundry and some simple cooking, reading books 27 daily, paying bills, and light computer use. (AR 366.) Dr. Berkowitz determined 28 that Plaintiff had no mental functional limitations. (AR 366-67.) During this (AR 365-66.) Plaintiff reported doing light housework, 17 1 examination, Plaintiff was also assigned a Global Assessment of Functioning 2 (“GAF”) score of 65. (AR 366.) 3 Thomas Sabourin, M.D., completed a comprehensive orthopedic evaluation 4 in May 2013. (AR 22, 368-74.) In his medical source statement, Dr. Sabourin 5 determined that Plaintiff could lift or carry 20 pounds occasionally and 10 pounds 6 frequently, stand and walk for six hours of an eight-hour workday, sit for six hours 7 of an eight-hour workday, and push and pull 50 pounds occasionally and 25 pounds 8 frequently. (AR 371.) Dr. Sabourin found that Plaintiff has no postural limitations 9 and can do gross and fine manipulation only frequently. (Id.) 10 Dr. Lorber, a Board Certified Orthopedic Surgeon, reviewed the evidence of 11 record and served as a medical expert during Plaintiff’s hearing. (AR 24, 32-64.) 12 Dr. Lorber identified obesity and congenital syndactyly with post-surgical 13 deformities as medically determinable impairments. (AR 57.) Dr. Lorber also 14 considered Plaintiff’s allegations of cervical spine fracture and left knee injury, but 15 he did not find any diagnostic findings to support that they were medically 16 determinable impairments. 17 impairments, singly or in combination, met or equaled any listed impairments. (AR 18 57-59.) Dr. Lorber determined that Plaintiff had the capacity to occasionally lift 50 19 pounds and frequently lift 25 pounds. (AR 59.) Dr. Lorber found no restrictions on 20 standing or walking and limited Plaintiff to frequent manipulation with his hands. 21 (Id.) (AR 58.) Dr. Lorber did not find that Plaintiff’s 22 State agency medical consultants reviewed Plaintiff’s records initially and 23 upon reconsideration. (AR 24, 66-77, 79-94.) The consultants determined that 24 Plaintiff could perform light work, stand or walk for six hours, sit for six hours, 25 frequently perform postural activities, and frequently perform gross and fine 26 manipulations. (AR 74-75, 90-92.) 27 28 State agency psychological consultants also reviewed Plaintiff’s records and found that Plaintiff had no severe mental impairments. (AR 24, 66-77, 79-94.) 18 1 Plaintiff’s wife, Silvia Martini, completed a Third Party Function Report in 2 March 2013. (AR 24-25, 208-16.) Mrs. Martini reported that Plaintiff had pain in 3 his hands and difficulty lifting, squatting, reaching, walking, kneeling, using his 4 hands, and getting along with others. (AR 208, 211, 213.) She noted that Plaintiff 5 watched TV, read, did light chores at home, made his bed, cared for the dog, 6 prepared his own meals, vacuumed, used a leaf blower, went outside three or four 7 times a week, and could manage money. (AR 209-11.) Mrs. Martini also reported 8 that Plaintiff got along “very well” with others, handled stress well, and handled 9 changes in routine very well. (AR 214.) 3. 10 Discussion 11 In determining Plaintiff’s RFC, the ALJ “considered all symptoms and the 12 extent to which these symptoms can reasonably be accepted as consistent with the 13 objective medical evidence and other evidence . . . [and] also considered opinion 14 evidence” in accordance with social security regulations. (AR 18.) 15 The ALJ assigned Dr. Rastle’s opinions “little weight.” (AR 21.) The ALJ 16 noted that Dr. Rastle “offered no rationale, diagnostic findings, or no clinical 17 notations for the restrictions.” (Id.) The ALJ also noted that Dr. Rastle’s opinions 18 were inconsistent between his Mental Medical Source Statement and his Physical 19 Medical Source Statement. (Id.) The ALJ observed that Plaintiff’s reported use of 20 his hands was significantly more than Dr. Rastle’s reported 1% to 5% of a workday. 21 (Id.) Accordingly, the ALJ found Dr. Rastle’s opinion to be unreliable. (Id.) The 22 Court finds that the ALJ provided specific and legitimate reasons, supported by 23 substantial evidence, for rejecting Dr. Rastle’s opinion. See Magallanes, 881 F.2d 24 at 751 (an ALJ may disregard a treating physician’s opinion that is brief, 25 conclusory, and lacks clinical findings); Morgan, 169 F.3d at 603 (the ALJ is 26 responsible for resolving internal inconsistencies in medical reports and 27 determining whether these inconsistencies are relevant to discrediting medical 28 opinions). 19 1 The ALJ assigned Dr. Berkowitz’s opinion “great weight,” finding it 2 consistent with clinical findings and Plaintiff’s reports of “mild” symptoms. (AR 3 21.) However, the ALJ assigned the GAF score from Dr. Berkowitz’s assessment 4 “little weight.” (AR 22.) The ALJ noted that GAF scores vary widely, are not 5 standardized or based on normative data, and offer “only a snapshot opinion” about 6 the level of functioning. (Id.) The ALJ also explained that GAF scores are used by 7 treating clinicians to plan and measure the impact of treatment, and they do not 8 measure the ability to meet the mental demands of unskilled work. 9 Accordingly, the ALJ properly found that the GAF score is not an appropriate 10 measure of Plaintiff’s functional abilities. See Chavez v. Astrue, 699 F. Supp. 2d 11 1125, 1135 (C.D. Cal. 2009) (finding that the unreliability of GAF scores is a 12 specific and legitimate reason to reject the scores); Taylor v. Astrue, No. EDCV 08- 13 1708-OP, 2009 WL 4349553, at *3 (C.D. Cal. Nov. 24, 2009) (same). (Id.) 14 The ALJ assigned Dr. Sabourin’s opinion “partial weight,” noting that his 15 assessments of lifting or carrying only 10 to 20 pounds was not consistent with both 16 the clinical findings and his determination that Plaintiff could push and pull at a 17 medium level. (AR 22.) The ALJ also found the lack of postural limitations to be 18 inconsistent with Plaintiff’s obesity. 19 inconsistent conclusions. See Tommasetti, 533 F.3d at 1041 (rejecting opinion 20 testimony that was inconsistent with medical records). The ALJ also gave “great 21 weight” to Dr. Sabourin’s opinions about Plaintiff’s ability to manipulate, finding 22 them consistent with Plaintiff’s chronic hand pain and continued use of his hands 23 on a daily basis. 24 recommendations about standing, walking, and sitting were consistent with his 25 findings of normal ambulation and no apparent discomfort while seated. (Id.) (AR 22.) (Id.) The ALJ properly rejected these The ALJ also found that Dr. Sabourin’s 26 The ALJ assigned “partial weight” to the opinions of Dr. Lorber and the state 27 agency medical consultants, noting that they did not have an opportunity to review 28 all of the evidence. (AR 24.) The ALJ noted that recent records show additional 20 1 impairments but a positive response to treatment; accordingly, the opinions were 2 “not a fair assessment of the claimant’s functional limitations.” (Id.) Because these 3 non-examining doctors’ opinions did not take into account the full record, the ALJ 4 properly discounted their weight. See Herron v. Astrue, 407 F. App’x 139, 141 (9th 5 Cir. 2010) (rejecting an ALJ’s assignment of “great weight” to the opinion of a state 6 agency consultant who did not review a substantial portion of the relevant medical 7 evidence). 8 The ALJ properly assigned “great weight” to the opinions of the state agency 9 psychological consultants, finding the opinions to be consistent with the medical 10 evidence. (AR 24.) See Morgan, 169 F.3d at 600 (“Opinions of a nonexamining, 11 testifying medical advisor may serve as substantial evidence when they are 12 supported by other evidence in the record and are consistent with it.”). 13 The ALJ assigned Mrs. Martini’s opinion “little weight,” noting that she is 14 not a medical expert, her statements are inconsistent with the activities that she 15 acknowledged that Plaintiff could do, and her opinions are inconsistent with the 16 objective medical evidence. (AR 25.) These are germane reasons to support 17 discounting her lay opinion. See, e.g., Lewis, 236 F.3d at 511 (“One reason for 18 which an ALJ may discount lay testimony is that it conflicts with medical 19 evidence.”). 20 Plaintiff also argues that the ALJ improperly considered the combination of 21 impairments that affect and limit Plaintiff’s use of his hands and fingers. (JS 5.) 22 The ALJ found that Plaintiff’s tendonitis, chronic hand pain, diabetes mellitus, 23 arthritis, degenerative joint disease, and tensor fascia lata syndrome were redundant 24 or non-severe conditions. (AR 17.) The ALJ noted that these conditions “were 25 either alternatively diagnosed, managed medically, resolved, or amenable to proper 26 control” through treatment. (Id.) The ALJ also noted that no aggressive treatment 27 was recommended or anticipated, and several conditions presented only slight 28 abnormalities with no more than a minimal effect on Plaintiff’s abilities. (Id.) 21 1 Plaintiff relies on Dr. Rastle’s medical source statement and his finding of 2 “substantial limitations” on Plaintiff’s abilities, as well as Dr. Sabourin’s opinion 3 about Plaintiff’s functional abilities. (JS 6-9.) But as discussed above, the ALJ 4 properly gave Dr. Rastle’s opinions little weight and properly rejected Dr. 5 Sabourin’s opinion that Plaintiff was limited to lifting and carrying 10 to 20 6 pounds. See Batson, 359 F.3d at 1197 (“The ALJ was not required to incorporate 7 evidence from the opinions of [the claimant]’s treating physicians, which were 8 permissibly discounted.”). 9 maintained throughout this claims process that he is significantly limited in his 10 ability to use his upper extremities for activities such as gripping, gross 11 manipulation, and fine manipulation.” (JS 5.) Plaintiff also notes medical records 12 that document his reports of pain. (JS 5-6.) However, the ALJ properly found that 13 Plaintiff’s allegations were “not entirely credible” (AR 19), and the ALJ was 14 permitted to disregard Plaintiff’s subjective complaints in making his findings. See 15 Stenberg v. Comm’r Soc. Sec. Admin., 303 F. App’x 550, 552 (9th Cir. 2008) (after 16 an ALJ found a claimant not credible, “he was not required to include limitations 17 that she claimed in reliance solely on her subjective reports of pain”). The ALJ 18 properly considered the objective medical evidence and determined that these 19 conditions were non-severe. See Ukolov v. Barnhart, 420 F.3d 1002, 1005-06 (9th 20 Cir. 2005) (ALJ committed no legal error in finding no impairment because, 21 “[r]egardless of how many symptoms an individual alleges, or how genuine the 22 individual’s complaints may appear to be, the existence of a medically determinable 23 physical or mental impairment cannot be established in the absence of objective 24 medical abnormalities; i.e., medical signs and laboratory findings . . . .” (quoting 25 Social Security Ruling 96-4p, 1996 WL 374187, at *1-2)). Finally, Plaintiff notes that he “has consistently 26 The ALJ concluded that Plaintiff has multiple severe physical impairments 27 that would limit Plaintiff to a reduced range of medium work, as stated in the RFC. 28 (AR 25.) The ALJ noted that multiple exams mentioned only Plaintiff’s upper 22 1 extremities, and references to his cervical spine and left knee are intermittent. (Id.) 2 The ALJ noted that the record does not indicate the need for any limitations for 3 Plaintiff’s obesity or mental impairments. (Id.) The ALJ therefore found that there 4 was support for limitations based on Plaintiff’s physical impairments, but no 5 support for any severe mental impairment. (Id.) 6 In sum, the Court finds that the ALJ’s RFC assessment is supported by 7 substantial evidence. See Arrieta v. Astrue, 301 F. App’x 713, 715 (9th Cir. 2008) 8 (finding that substantial evidence supported the RFC determination when the ALJ 9 properly evaluated the opinion evidence and relied on supporting medical reports 10 and testimony). 11 V. 12 13 14 15 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. 16 17 18 DATED: January 29, 2018 ROZELLA A. OLIVER UNITED STATES MAGISTRATE JUDGE 19 20 21 22 NOTICE THIS DECISION IS NOT INTENDED FOR PUBLICATION IN WESTLAW, LEXIS/NEXIS, OR ANY OTHER LEGAL DATABASE. 23 24 25 26 27 28 23
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