Tyren Lavar Seabrooks v. Nancy A. Berryhill, No. 5:2017cv00467 - Document 24 (C.D. Cal. 2018)
Court Description: MEMORANDUM DECISION AND ORDER by Magistrate Judge Suzanne H. Segal IT IS ORDERED that Judgment be entered AFFIRMING the decision of the Commissioner. (See document for further details). (mr)
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Tyren Lavar Seabrooks v. Nancy A. Berryhill Doc. 24 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 TYREN LAVAR SEABROOKS, Plaintiff, 12 13 14 15 CASE NO. ED CV 17-0467 SS v. MEMORANDUM DECISION AND ORDER NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant. 16 17 18 I. 19 INTRODUCTION 20 Tyren 21 Lavar Seabrooks (“Plaintiff”) brings this action 22 seeking to overturn the decision of the Acting Commissioner of 23 Social 24 applications 25 Supplemental Security Income (“SSI”). 26 pursuant 27 undersigned United States Magistrate Judge. Security to (the for 28 “Commissioner” Disability U.S.C. § or Insurance 636(c), to “Agency”) denying his Benefits (“DIB”) and The parties consented, the jurisdiction of the (Dkt. Nos. 11, 12, 28 Dockets.Justia.com 1 13). For the reasons 2 stated below, the Court AFFIRMS the Commissioner’s decision. application for 3 4 II. 5 PROCEDURAL HISTORY 6 7 On April 18, 2012, Plaintiff filed an 8 Disability Insurance Benefits (“DIB”) pursuant to Title II of the 9 Social Security Act, alleging a disability onset date of January 10 1, 2009. (AR 111-13). 11 application for Supplemental Security Income (“SSI”) 12 Title XVI of the Social Security Act, also alleging a disability 13 onset date of January 1, 2009. 14 denied Plaintiff’s applications initially and on reconsideration. 15 (AR 16 hearing before an Administrative Law Judge (“ALJ”) (AR 82-84), 17 which took place on July 21, 2014, and March 9, 2015 (AR 1280- 18 338).1 The ALJ issued an adverse decision on June 25, 2015, finding 19 that Plaintiff was not disabled because there are jobs that exist 20 in significant numbers in the national economy that he can perform. 21 (AR 15-26). 22 Plaintiff’s request for review. 23 on March 13, 2017. 43-62, 64-68, On July 25, 2012, Plaintiff filed an 77-81). (AR 165-66). Thereafter, pursuant to The Commissioner Plaintiff requested a On January 12, 2017, the Appeals Council denied (AR 5-7). This action followed 24 25 1 26 27 28 After the first hearing, the record was held open for interrogatories from the medical experts (“MEs”), which were provided in September 2014. (AR 15). Because the prior ALJ left the Agency and became unavailable, the case was assigned to a new ALJ, who held a supplemental hearing on March 9, 2015. (AR 15). 2 1 III. 2 FACTUAL BACKGROUND 3 4 Plaintiff was born on February 19, 1977. (AR 111, 1303). 5 was thirty-seven (37) years old when he appeared before the ALJ on 6 July 21, 2014. 7 (AR 1303). 8 Plaintiff previously worked as a truck driver, working up to 9 fourteen hours a day, six days a week, and lifting up to fifty (AR 1293). Plaintiff has a high-school degree. He is divorced with two daughters. (AR 125-26). He (AR 1301-02). 10 pounds. He alleges disability due to right shoulder 11 rotator cuff surgeries, right knee surgery, lower back and neck 12 pain, depression and anger issues. (AR 115). 13 14 A. Plaintiff’s Testimony 15 16 At the July 2014 hearing, Plaintiff testified that he cannot 17 work due to pain in his right shoulder, both knees, right hip and 18 lower back, along with chronic migraines throughout the day. 19 1312). 20 (AR 1307-08, 1315-16). 21 1311-12). (AR His medications alleviate the pain but make him groggy. He denied using any drugs since 2002. (AR 22 23 Plaintiff testified that he can walk only a block or two 24 before needing to rest for a minute or two. 25 sometimes “give out” so he needs to move them up and down to keep 26 them from locking. 27 only a quart of milk with his upper right extremity. (AR 1310, 1318). 28 3 (AR 1317). His knees He estimated that he can lift (AR 1325). 1 At the March 2015 hearing, Plaintiff testified that his right 2 shoulder “pops out of place” whenever he tries to reach for 3 anything. 4 walking. 5 broke his elbow. 6 hours before needing to take them again. (AR 1286). (AR 1286). He denied any problems with standing or He denied riding a bicycle since he fell and (AR 1287). His pain medications help for a few (AR 1288). 7 8 B. Treatment History 9 Plaintiff sustained work-related injuries in June 2007, when 10 11 the front-end loader he was operating fell around twenty feet. (AR 12 1132). 13 hip, right knee and lower back. (AR 1132). 14 sprains and strains. After his injury, he worked for 15 Viola Services “in a relatively light job” at a refinery, requiring 16 some bending and lifting. 17 in his right shoulder, right hip and right knee. 18 2008 MRI of the cervical spine revealed only mild degenerative 19 changes at C5-6 and C6-7. 20 refinery until July 2009 when he left to have abdominal surgery. 21 (AR 1133). He complained of pain in his right shoulder, neck, right (AR 1132). (AR 1132). (AR 214). He was treated for He continued to have pain (AR 1132). A June Plaintiff worked at the 22 On July 15, 2012, Richard J. Palmer, Ph.D., performed a 23 24 comprehensive psychiatric evaluation on behalf of the Agency. (AR 25 627-32). his 26 movements were slow, stiff and apparently painful. 27 denied current drug and alcohol abuse and dependency issues. 28 628). While Plaintiff ambulated without assistance, (AR 627). He (AR He acknowledged being in drug rehabilitation in 2002 but 4 1 claimed that he has been “clean” and “rarely” drinks alcohol since 2 that time. 3 basic activities of daily living independently, including household 4 tasks, cooking and shopping. 5 and exercising his injured areas. 6 major depressive disorder and adjustment disorder with anxiety. 7 (AR 630). 8 repetitive tasks, accept instructions from supervisors and interact 9 with coworkers and the public. (AR 628). Plaintiff acknowledged being able to perform (AR 629). He spends the day walking (AR 629). Dr. Palmer diagnosed He opined that Plaintiff is able to perform simple, (AR 631). Plaintiff is mildly 10 limited in his ability to maintain regular attendance, complete a 11 normal workday without psychiatric interruptions and handle normal 12 work-related stresses. (AR 631). 13 14 On July 28, 2012, David Hoenig, M.D., performed a 15 comprehensive orthopedic examination on behalf of the Agency. 16 634-37). 17 On examination, Plaintiff ambulated with a normal gait and without 18 assistance. 19 and off the examination table without difficulty. 20 physical examination was largely unremarkable. 21 Hoenig opined that Plaintiff can lift and carry twenty-five pounds 22 occasionally, secondary to reduced range of motion in his right 23 shoulder. Plaintiff complained of right shoulder pain. (AR 635). (AR (AR 634). He was able to sit comfortably and get on (AR 635). (AR 636). A Dr. (AR 637). 24 25 On June 18, 2013, Plaintiff was riding his bicycle around 26 fifty miles per hour when he fell over his handlebars, fracturing 27 his left elbow. (AR 965). 28 5 1 On January 4, 2014, Plaintiff presented to the emergency room, 2 complaining of a severe headache. 3 an exercise program, riding his bicycle for several miles, several 4 times a week. (AR 886). 5 unremarkable. (AR 886-87). 6 syndrome, 7 underlying tension headaches, and a history of pituitary adenoma. 8 (AR 887). chest pain, (AR 885). He reported starting A physical examination was largely He was diagnosed with acute viral headache with acute exacerbation of 9 On January 16, 2014, x-rays of Plaintiff’s right knee were 10 11 essentially normal. (AR 830). X-rays of the right shoulder 12 revealed multiple ossicles in the soft tissues adjacent to the 13 acromioclavicular joint, which had increased since June 2012. (AR 14 831). Plaintiff tested positive for cocaine and marijuana. (AR 15 1206). On July 16, 2014, Plaintiff presented with flank pain. (AR 16 17 18 1221). He reported that he continues to ride his bicycle and lift 19 weights. 20 flank pain, chronic kidney disease and history of pituitary tumor 21 treated medically. (AR 1221). He was diagnosed with acute musculoskeletal (AR 1222). 22 23 On August 4, 2014, Andrew an orthopedic Burt, an orthopedic security disability surgeon, 25 evaluation 26 representative. 27 from Plaintiff and reviewed some medical records. 28 Dr. at the request (AR 1132-41). performed an social M.D., 24 Burt performed K. of Plaintiff’s non-attorney Dr. Burt obtained a medical history orthopedic 6 examination, (AR 1134-36). limited to 1 Plaintiff’s right shoulder, right knee and right hip. 2 Dr. 3 shoulder, i.e., forward flexion was limited to seventy degrees, 4 posterior extension limited to thirty degrees, abduction limited 5 to forty degrees and adduction limited to twenty degrees. 6 1137). 7 (AR 1137). 8 surgery, residual right shoulder loss of motion and pain due to 9 rotator Burt found limited range of in motion (AR 1137). Plaintiff’s right (AR Plaintiff complained of pain at the extremes of motion. Dr. Burt diagnosed postoperative status right shoulder cuff injury and subsequent surgical distal clavicle 10 excision, posttraumatic trochanteric bursitis of the right hip, 11 posttraumatic degenerative osteoarthritis of the right knee and 12 status post arthroscopic right knee with residual. 13 Burt opined that Plaintiff cannot perform heavy physical activity 14 and is limited in his ability to sit, stand and walk. (AR 1139). Dr. (AR 1141). 15 16 On November 7, 2014, Plaintiff reported temporary relief of 17 his right shoulder and right knee pain with injections of Kenalog 18 and Marcaine. 19 to intensify his home exercise program for his right shoulder 20 emphasizing scapular stabilization exercises, progressive rotator 21 cuff strengthening and capsular stretches. 22 advised Plaintiff to continue to use his exercise bicycle to 23 strengthen his right knee. 24 Anaprox (naproxen) and referred Plaintiff for physical therapy. 25 (AR 1160). (AR 1159). Eric S. Schmidt, M.D., advised Plaintiff (AR 1160). 26 27 28 7 (AR 1160). He also Dr. Schmidt prescribed 1 IV. 2 THE FIVE-STEP SEQUENTIAL EVALUATION PROCESS 3 4 To qualify for disability benefits, a claimant must 5 demonstrate a medically determinable physical or mental impairment 6 that prevents the claimant from engaging in substantial gainful 7 activity and that is expected to result in death or to last for a 8 continuous period of at least twelve months. 9 157 F.3d 715, 721 (9th Cir. 1998) (citing 42 U.S.C. § 423(d)(1)(A)). 10 The impairment must render the claimant incapable of performing 11 work 12 employment that exists in the national economy. 13 180 14 § 423(d)(2)(A)). previously F.3d performed 1094, 1098 or (9th any Cir. other 1999) Reddick v. Chater, substantial gainful Tackett v. Apfel, (citing 42 U.S.C. 15 16 To decide if a claimant is entitled to benefits, an ALJ 17 conducts a five-step inquiry. 20 C.F.R. §§ 404.1520, 416.920. 18 The steps are: 19 20 (1) Is the claimant presently engaged in substantial gainful 21 activity? 22 not, proceed to step two. 23 (2) Is the If so, the claimant is found not disabled. claimant’s impairment 24 claimant is found not disabled. 25 severe? If not, If the three. 26 27 (3) If so, proceed to step Does the claimant’s impairment meet or equal one of the specific impairments described in 20 C.F.R. Part 404, 28 8 1 Subpart P, Appendix 1? 2 disabled. 3 (4) If so, the claimant is found If not, proceed to step four. Is the claimant capable of performing his past work? If 4 so, the claimant is found not disabled. 5 to step five. 6 (5) If not, proceed Is the claimant able to do any other work? 7 claimant is found disabled. 8 If not, the If so, the claimant is found not disabled. 9 10 Tackett, 180 F.3d at 1098-99; see also Bustamante v. Massanari, 11 262 F.3d 949, 953-54 (9th Cir. 2001); 20 C.F.R. §§ 404.1520(b)- 12 (g)(1), 416.920(b)-(g)(1). 13 The claimant has the burden of proof at steps one through four 14 15 and the 16 Bustamante, 262 F.3d at 953-54. 17 affirmative duty to assist the claimant in developing the record 18 at every step of the inquiry. 19 claimant meets his or her burden of establishing an inability to 20 perform past work, the Commissioner must show that the claimant 21 can perform some other work that exists in “significant numbers” 22 in 23 residual functional capacity (“RFC”), age, education, and work 24 experience. 25 721; 20 C.F.R. §§ 404.1520(g)(1), 416.920(g)(1). 26 may do so by the testimony of a VE or by reference to the Medical- 27 Vocational Guidelines appearing in 20 C.F.R. Part 404, Subpart P, 28 Appendix 2 (commonly known as “the grids”). the Commissioner national has economy, the burden of at step five. Additionally, the ALJ has an Id. at 954. taking proof into If, at step four, the account the claimant’s Tackett, 180 F.3d at 1098, 1100; Reddick, 157 F.3d at 9 The Commissioner Osenbrock v. Apfel, 1 240 F.3d 1157, 1162 (9th Cir. 2001). When a claimant has both 2 exertional (strength-related) and non-exertional limitations, the 3 Grids are inapplicable and the ALJ must take the testimony of a 4 vocational expert (“VE”). 5 Cir. 2000) (citing Burkhart v. Bowen, 856 F.2d 1335, 1340 (9th Cir. 6 1988)). Moore v. Apfel, 216 F.3d 864, 869 (9th 7 8 V. 9 THE ALJ’S DECISION 10 11 The ALJ employed the five-step sequential evaluation process 12 and concluded that Plaintiff was not disabled within the meaning 13 of the Social Security Act. 14 that Plaintiff met the insured status requirements through March 15 31, 2014, and had not engaged in substantial gainful activity since 16 January 1, 2009, the alleged disability onset date. 17 step two, the ALJ found that Plaintiff’s right shoulder impairment, 18 status-post 19 September 4, 2012; right knee impairment, status-post surgery on 20 September 7, 2010; osteoarthritis; obesity and affective disorders 21 are severe impairments. (AR 18). At step three, the ALJ determined 22 that Plaintiff does not have an impairment or combination of 23 impairments that meet or medically equal the severity of any of 24 the listings enumerated in the regulations. (AR 19-20). surgeries on (AR 26). June 28, At step one, the ALJ found 2009, July (AR 18). 19, 2011, At and 25 26 The ALJ evaluated Plaintiff’s credibility and rejected the 27 degree of pain and limitation asserted by Plaintiff. 28 factors, the ALJ noted that Plaintiff’s statements regarding his 10 Among other 1 prior drug use (Plaintiff stated that he was drug-free since 2002) 2 were undermined by a positive drug test for cocaine and marijuana 3 in 2014; by a State Agency analysis noting polysubstance abuse in 4 2009, and an observation by Dr. Hasan in 2009 that Plaintiff had a 5 history of chemical dependence (alcohol and cocaine). 6 The ALJ also noted that the State Agency found Plaintiff had an 7 RFC for medium work. (AR 22). (AR 21). 8 9 The ALJ assessed Plaintiff’s RFC and concluded that he can 10 perform the full range of light work, as defined in 20 C.F.R. §§ 11 404.1567(b) and 416.967(b).2 12 least simple repetitive tasks equating to unskilled work.” 13 20). 14 work . . . is not determinative in this case, as [Plaintiff] is 15 not considered disabled if able to perform unskilled light or 16 sedentary work.” 17 Plaintiff is unable to perform any past relevant work. 18 25). 19 education, work experience and RFC, the ALJ determined at step five 20 that there are jobs that exist in significant numbers in the 21 national 22 Accordingly, (AR 20). “He is able to perform at (AR The ALJ also noted that Plaintiff’s “limitation to unskilled Utilizing economy the (AR 20). the that ALJ grids At step four, the ALJ found that and Plaintiff found that considering can Plaintiff’s perform. Plaintiff (AR 24- was (AR not age, 25-26). under a 23 24 25 26 27 28 “Light work involves lifting no more than 20 pounds at a time with frequent lifting or carrying of objects weighing up to 10 pounds. Even though the weight lifted may be very little, a job is in this category when it requires a good deal of walking or standing, or when it involves sitting most of the time with some pushing and pulling of arm or leg controls. To be considered capable of performing a full or wide range of light work, you must have the ability to do substantially all of these activities.” 20 C.F.R. §§ 404.1567(b), 416.967(b). 2 11 1 disability as defined by the Social Security Act from January 1, 2 2009, through the date of the ALJ’s decision. (AR 26). 3 4 VI. 5 STANDARD OF REVIEW 6 7 Under 42 U.S.C. § 405(g), a district court may review the 8 Commissioner’s decision to deny benefits. “[The] court may set 9 aside the Commissioner’s denial of benefits when the ALJ’s findings 10 are based on legal error or are not supported by substantial 11 evidence in the record as a whole.” 12 1033, 1035 (9th Cir. 2001) (citing Tackett, 180 F.3d at 1097); see 13 also Smolen v. Chater, 80 F.3d 1273, 1279 (9th Cir. 1996) (citing 14 Fair v. Bowen, 885 F.2d 597, 601 (9th Cir. 1989)). Aukland v. Massanari, 257 F.3d 15 16 “Substantial evidence is more than a scintilla, but less than 17 a preponderance.” 18 Chater, 112 F.3d 1064, 1066 (9th Cir. 1997)). 19 evidence which a reasonable person might accept as adequate to 20 support a conclusion.” 21 evidence supports a finding, the court must “‘consider the record 22 as a whole, weighing both evidence that supports and evidence that 23 detracts from the [Commissioner’s] conclusion.’” Aukland, 257 F.3d 24 at 1035 (quoting Penny v. Sullivan, 2 F.3d 953, 956 (9th Cir. 25 1993)). 26 or reversing that conclusion, the court may not substitute its 27 judgment for that of the Commissioner. Reddick, 157 F.3d at 720 (citing Jamerson v. (Id.). It is “relevant To determine whether substantial If the evidence can reasonably support either affirming 28 12 Reddick, 157 F.3d at 720- 1 21 (citing Flaten v. Sec’y of Health & Human Servs., 44 F.3d 1453, 2 1457 (9th Cir. 1995)). 3 4 VII. 5 DISCUSSION 6 7 In his opening brief, Plaintiff contends that the ALJ erred 8 for the following two reasons: (1) the ALJ erred in rejecting 9 Plaintiff’s testimony regarding his subjective symptoms and 10 functional limitations; and (2) the ALJ failed to properly evaluate 11 Dr. 12 limitations. Burt’s opinion regarding Plaintiff’s right shoulder (Dkt. No. 17 at 2-9). 13 14 Plaintiff vigorously argued in his opening brief that the ALJ 15 erred in rejecting his subjective statements. 16 6). 17 expressly 18 evaluation of [his] testimony.” 19 in reaching his opinion, Dr. Burt relied in part on the reliability 20 of Plaintiff’s subjective statements. 21 Plaintiff’s 22 assessment of Plaintiff’s second argument, i.e., whether the ALJ 23 properly evaluated Dr. Burt’s opinion regarding Plaintiff’s right 24 shoulder limitations. 25 credibility determination prior to addressing the ALJ’s analysis 26 of Dr. Burt’s opinion. (Dkt. No. 17 at 2- However, after Defendant filed her response brief, Plaintiff “withdr[e]w his credibility first is argument regarding (Dkt. No. 23 at 3). therefore the ALJ’s Nevertheless, The ALJ’s evaluation of vital to the Court’s As such, the Court will evaluate the ALJ’s 27 28 13 1 2 A. The ALJ’s Reasons for Discrediting Plaintiff’s Subjective Symptom Testimony Were Specific, Clear and Convincing 3 4 Plaintiff asserted that he is unable to work because he is in 5 constant pain. 6 his pituitary tumors. 7 to be groggy during the day. 8 or two blocks before needing to stop and rest. 9 estimated that he can lift only a quart of milk with his upper 10 (AR 1312). right extremity. He experiences residual headaches from (AR 1318). His pain medications cause him (AR 1307-08). He can walk only one (AR 1317). He (AR 1325). 11 12 1. Standards 13 14 When assessing a claimant’s credibility regarding subjective 15 pain or intensity of symptoms, the ALJ must engage in a two-step 16 analysis. 17 First, the ALJ must determine if there is medical evidence of an 18 impairment that could reasonably produce the symptoms alleged. 19 Garrison v. Colvin, 759 F.3d 995, 1014 (9th Cir. 2014). 20 analysis, the claimant is not required to show that her impairment 21 could reasonably be expected to cause the severity of the symptom 22 she has alleged; she need only show that it could reasonably have 23 caused some degree of the symptom.” 24 (citation omitted). “Nor must a claimant produce objective medical 25 evidence of the pain or fatigue itself, or the severity thereof.” 26 Id. (citation omitted). Trevizo v. Berryhill, 874 F.3d 664, 678 (9th Cir. 2017). 27 28 14 “In this Id. (emphasis in original) 1 If the claimant satisfies this first step, and there is no 2 evidence of malingering, the ALJ must provide specific, clear and 3 convincing reasons for rejecting the claimant’s testimony about 4 the symptom severity. 5 see also Smolen, 80 F.3d at 1284 (“[T]he ALJ may reject the 6 claimant’s testimony regarding the severity of her symptoms only 7 if he makes specific findings stating clear and convincing reasons 8 for doing so.”); Robbins v. Soc. Sec. Admin., 466 F.3d 880, 883 9 (9th Cir. 2006) (“[U]nless an ALJ makes a finding of malingering 10 based on affirmative evidence thereof, he or she may only find an 11 applicant 12 credibility and stating clear and convincing reasons for each.”). 13 “This is not an easy requirement to meet: The clear and convincing 14 standard is the most demanding required in Social Security cases.” 15 Garrison, 759 F.3d at 1015 (citation omitted). not Trevizo, 874 F.3d at 678 (citation omitted); credible by making specific findings as to 16 17 18 In discrediting the claimant’s subjective symptom testimony, the ALJ may consider the following: 19 20 (1) ordinary techniques of credibility evaluation, such 21 as 22 inconsistent 23 other testimony by the claimant that appears less than 24 candid; 25 failure to seek treatment or to follow a prescribed 26 course 27 activities. the claimant’s (2) of reputation statements concerning unexplained treatment; for or and (3) 28 15 the lying, symptoms, inadequately the prior and explained claimant’s daily 1 Ghanim v. Colvin, 763 F.3d 1154, 1163 (9th Cir. 2014) (citation 2 omitted). 3 conduct, or internal contradictions in the claimant’s testimony, 4 also may be relevant. 5 Cir. 2014); Light v. Soc. Sec. Admin., 119 F.3d 789, 792 (9th Cir. 6 1997). 7 treating and examining physicians regarding, among other matters, 8 the functional restrictions caused by the claimant’s symptoms. 9 Smolen, 80 F.3d at 1284; accord Burrell, 775 F.3d at 1137. However, 10 it is improper for an ALJ to reject subjective testimony based 11 “solely” on its inconsistencies with the objective medical evidence 12 presented. 13 (9th Cir. 2009) (citation omitted). Inconsistencies between a claimant’s testimony and Burrell v. Colvin, 775 F.3d 1133, 1137 (9th In addition, the ALJ may consider the observations of Bray v. Comm’r of Soc. Sec. Admin., 554 F.3d 1219, 1227 14 15 Further, the ALJ must make a credibility determination with 16 findings that are “sufficiently specific to permit the court to 17 conclude that the ALJ did not arbitrarily discredit claimant’s 18 testimony.” 19 2008) (citation omitted); see Brown-Hunter v. Colvin, 806 F.3d 487, 20 493 (9th Cir. 2015) (“A finding that a claimant’s testimony is not 21 credible must be sufficiently specific to allow a reviewing court 22 to conclude the adjudicator rejected the claimant’s testimony on 23 permissible grounds and did not arbitrarily discredit a claimant’s 24 testimony regarding pain.”) (citation omitted). 25 interpretation of a claimant’s testimony may not be the only 26 reasonable one, if it is supported by substantial evidence, “it is 27 not [the court’s] role to second-guess it.” 28 261 F.3d 853, 857 (9th Cir. 2001). Tommasetti v. Astrue, 533 F.3d 1035, 1039 (9th Cir. 16 Although an ALJ’s Rollins v. Massanari, 1 2. 2 Factors Supporting The ALJ’s Adverse Credibility Determination 3 4 The ALJ provided two specific, clear and convincing reasons 5 to find Plaintiff’s complaints of debilitating pain not entirely 6 credible. 7 the Commissioner’s decision. (AR 20-24). These reasons are sufficient to support 8 9 a. 10 Plaintiff’s Testimony Was Inconsistent With His Reported Activities 11 12 The ALJ found Plaintiff not entirely credible because his 13 reported symptoms 14 activities. (AR 21-22, 24); see Bray, 554 F.3d at 1227 (“In 15 reaching credibility 16 inconsistencies between the claimant’s testimony and his or her 17 conduct, daily activities, and work record, among other factors.”). 18 When asked by the ALJ about references to bicycling in the record, 19 Plaintiff testified that it was “just something he was trying out” 20 and that he had not ridden a bicycle since he fell off his bicycle 21 and broke his elbow in June 2013. 22 as the ALJ noted, the medical record indicates that in January 23 2014, Plaintiff had started an exercise program, riding his bicycle 24 for several miles, several times a week. 25 in July 2014, Plaintiff reported that he continues to ride his 26 bicycle and lift weights. a were inconsistent with determination, 28 17 ALJ acknowledged may (AR 21, 965, 1287). (AR 21, 1221). 27 an his (AR 21, 886). weigh However, Further, 1 The ALJ also noted that Plaintiff told Dr. Burt that he had 2 worked in a relatively light job at a refinery from 2007 through 3 2009. 4 that his job as a truck driver at the refinery involved working up 5 to fourteen hours a day, six days a week, and required lifting up 6 to fifty pounds. (AR 22, 1132). However, Plaintiff had previously reported (AR 22, 125-26). 7 8 Additionally, Plaintiff told Dr. Palmer in July 2012 that he 9 had a history of cocaine and alcohol abuse, but that after being 10 in drug rehabilitation in 2002, he has been “clean” and “rarely” 11 drinks alcohol. 12 that while he had used drugs and alcohol in the past, he had been 13 clean and sober since 2002. 14 in January 2014 was positive for cocaine and marijuana. 15 1206). (AR 24, 628). Plaintiff testified in July 2014 (AR 1311-12). However, a drug test (AR 22, 16 17 Finally, Plaintiff acknowledged to Dr. Palmer that he was 18 living alone and was able to independently perform basic activities 19 of daily living, including household tasks, cooking and shopping. 20 (AR 24, 629). 21 and exercising. 22 in concluding that daily activities are inconsistent with testimony 23 about pain, because impairments that would unquestionably preclude 24 work and all the pressures of a workplace environment will often 25 be consistent with doing more than merely resting in bed all day.” 26 Garrison, 759 F.3d at 1016. 27 consider the claimant’s daily activities in weighing credibility. 28 Tommasetti, 533 F.3d at 1039. Plaintiff also reporting spending his days walking (AR 24, 629). “ALJs must be especially cautious Nevertheless, an ALJ properly may If a claimant’s level of activity 18 1 is inconsistent with the claimant’s asserted limitations, it has a 2 bearing on credibility. Garrison, 759 F.3d at 1016. 3 4 The ALJ properly could find, on the basis of Plaintiff’s 5 reported activities, that his testimony regarding debilitating pain 6 was not entirely credible. 7 (9th Cir. 2005) (“In determining credibility, an ALJ may engage in 8 ordinary techniques of credibility evaluation, such as considering 9 claimant’s reputation for Burch v. Barnhart, 400 F.3d 676, 680 truthfulness and inconsistencies in 10 claimant’s testimony.”); Thomas v. Barnhart, 278 F.3d 947, 958-59 11 (9th Cir. 2002) (In evaluating a claimant’s credibility, the ALJ 12 may consider “inconsistencies either in claimant’s testimony or 13 between her testimony and her conduct.”) (citation and alterations 14 omitted). 15 b. 16 Reported Symptoms Not Corroborated By Medical Record 17 18 19 The ALJ found Plaintiff not entirely credible because his 20 reported symptoms were not corroborated by the medical evidence of 21 record. 22 with 23 allegations of debilitating pain. (AR 20-24). sufficient The ALJ identified multiple medical records specificity that contradicted Plaintiff’s 24 25 The ALJ noted that Plaintiff treated his shoulder and knee 26 pain with injections, a home exercise program, an exercise bicycle 27 and physical therapy. 28 his pain medications (AR 23, 1159-60). relieved 19 his Plaintiff testified that pain. (AR 23, 1308). 1 “Impairments that can be controlled effectively with medication 2 are not disabling for the purpose of determining eligibility for 3 SSI benefits.” 4 1006 (9th Cir. 2006); see Crane v. Shalala, 76 F.3d 251, 254 (9th 5 Cir. 6 claimant 7 testimony.). 8 of conservative treatment is sufficient to discount a claimant’s 9 testimony regarding severity of an impairment.” 1996) Warre v. Comm’r of Soc. Sec. Admin., 439 F.3d 1001, (ALJ properly responded F.3d well considered to treatment evidence in suggesting rejecting that claimant’s The Ninth Circuit has also concluded that “evidence 742, 10 481 11 Tommasetti, 553 F.3d at 1039-40 (ALJ may properly infer that 12 claimant’s pain “was not as all-disabling as he reported in light 13 of the fact that he did not seek an aggressive treatment program” 14 and “responded favorably to conservative treatment”); Meanel v. 15 Apfel, 172 F.3d 1111, 1114 (9th Cir. 1999), as amended (June 22, 16 1999) (“Meanel’s claim that she experienced pain approaching the 17 highest 18 conservative treatment’ that she received.”). level 751 (9th imaginable Cir. was 2007) Parra v. Astrue, (citation inconsistent with omitted); the see ‘minimal, 19 The 20 ALJ inconsistencies objective “Contradiction with the medical record is a sufficient basis for 23 rejecting the claimant’s subjective testimony.” 24 Comm’r, Soc. Sec. Admin., 533 F.3d 1155, 1161 (9th Cir. 2008); see 25 SSR 16-3p, at *5 (“objective medical evidence is a useful indicator 26 to 27 persistence of symptoms, including the effects those symptoms may 28 have on the ability to perform work-related activities”). conclusions 20 evidence. Plaintiff’s 22 reasonable medical between testimony make the noted 21 help and also about the (AR 20-24). Carmickle v. intensity and January 1 2014 x-rays of Plaintiff’s right knee were essentially normal and 2 an MRI of the cervical spine in June 2008 indicated only mild 3 degenerative 4 comprehensive orthopedic examination found that Plaintiff had no 5 difficulty sitting, standing or walking. changes. (AR 22, 214, 830). The July 2012 (AR 23, 634-37). 6 7 Plaintiff contends that the Court “should reject the ALJ’s 8 analysis of [Plaintiff’s] testimony because the ALJ relied only on 9 the medical evidence.” (Dkt. No. 17 at 4). While the ALJ “may 10 not reject a claimant’s subjective complaints based solely on a 11 lack 12 claimant’s allegations,” 13 consider whether an individual’s statements about the intensity, 14 persistence, and limiting effects of his or her symptoms are 15 consistent 16 record,” SSR 16-3p, at *5 (emphasis added). 17 reject 18 evidence to support Plaintiff’s allegations. Instead, the ALJ 19 discredited Plaintiff’s statements because they are inconsistent 20 with the medical signs and laboratory findings in the record. 21 Further, as discussed above, the ALJ also found inconsistencies 22 between Plaintiff’s testimony and his conduct and daily activities. 23 The 24 inconsistent and conservative treatment history, that Plaintiff’s 25 testimony 26 credible. of objective with the Plaintiff’s ALJ medical properly regarding evidence signs subjective his fully corroborate the Bray, 554 F.3d at 1227, the ALJ “must medical could to and laboratory symptoms find, on debilitating 27 28 21 of Here, the ALJ did not because the findings basis pain was of of a lack of Plaintiff’s not entirely 1 In sum, the ALJ offered clear and convincing reasons, 2 supported by substantial evidence in the record, for his adverse 3 credibility findings. 4 5 6 B. The ALJ Provided Specific And Legitimate Reasons For Rejecting Dr. Burt’s Opinion 7 8 Plaintiff contends that the ALJ failed to properly evaluate 9 Dr. Burt’s opinion regarding Plaintiff’s right upper extremity 10 limitations. (Dkt. No. 17 at 6-9). 11 12 “To reject an uncontradicted opinion of a treating or 13 examining doctor, an ALJ must state clear and convincing reasons 14 that are supported by substantial evidence.” 15 427 F.3d 1211, 1216 (9th Cir. 2005); see Lester v. Chater, 81 F.3d 16 821, 830 (9th Cir. 1995), as amended (Apr. 9, 1996) (“As is the 17 case with the opinion of a treating physician, the Commissioner 18 must provide ‘clear and convincing’ reasons for rejecting the 19 uncontradicted 20 treating or examining doctor’s opinion is contradicted by another 21 doctor’s opinion, an ALJ may only reject it by providing specific 22 and legitimate reasons that are supported by substantial evidence.” 23 Bayliss, 427 F.3d at 1216; see Lester, 81 F.3d at 830-31 (“And like 24 the opinion of a treating doctor, the opinion of an examining 25 doctor, 26 rejected for specific and legitimate reasons that are supported by 27 substantial evidence in the record.”). 28 conflicting medical opinions, an ALJ may reject an opinion that is even opinion if of an contradicted examining by 22 Bayliss v. Barnhart, physician.”). another doctor, can “If only a be Further, when weighing 1 conclusory, brief, and unsupported by clinical findings. Bayliss, 2 427 F.3d at 1216; Tonapetyan v. Halter, 242 F.3d 1144, 1149 (9th 3 Cir. 2001). 4 Dr. Burt examined Plaintiff on a referral from Plaintiff’s 5 6 non-attorney representative. 7 Plaintiff met listings 1.01 and 1.02, was limited to less than a 8 full range of sedentary work, could not sit for six hours during 9 the workday, and could not stand or walk for two hours during the (AR 1132-41). Dr. Burt opined that The ALJ gave “little weight” to Dr. Burt’s 10 workday. 11 opinion “because it appears to have been based to a large degree 12 on [Plaintiff’s] subjective complaints and is not consistent with 13 the weight of the additional medical evidence or the record as a 14 whole.” 15 Instead, he argues that the ALJ ignored Dr. Burt’s finding that 16 Plaintiff “cannot use his right upper extremity away from his 17 body,” which Plaintiff interprets as “restrict[ing] [Plaintiff] 18 from reaching with his right upper extremity.” 19 6). 20 limitation. (AR 1140-41). (AR 23). Plaintiff does not contest these findings. (Dkt. No. 17 at However, Dr. Burt did not assess an upper right extremity 21 22 Dr. Burt noted Plaintiff’s subjective complaints that he had 23 right shoulder pain and could not use his right arm away from his 24 body. 25 regarding Plaintiff’s functional limitations, he merely concluded 26 that Plaintiff could not perform heavy physical activity and was 27 limited in his ability to sit, stand and walk. 28 Burt did not include any reaching limitations. (AR 1139-40). However, when Dr. Burt provided an opinion 23 (AR 1141). (AR 1141). Dr. 1 Even if Dr. Burt had included a reaching limitation, the ALJ 2 properly afforded the opinion little weight. 3 treating physician’s opinion if it is based ‘to a large extent’ on 4 a claimant’s self-reports that have been properly discounted as 5 incredible.” 6 2008) (citation omitted). 7 to 8 subjective statements. 9 above, the ALJ’s rejection of Plaintiff’s subjective complaints 10 was supported by substantial evidence, a conclusion that Plaintiff 11 no longer contests. review “An ALJ may reject a Tommasetti v. Astrue, 533 F.3d 1035, 1041 (9th Cir. and relied to Dr. Burt was given only limited records a significant extent on (AR 23, 1132-37, 1139-40). Plaintiff’s As discussed 12 13 Further, Dr. Burt’s opinion was contradicted by Plaintiff’s 14 statements. 15 2001) (physician’s opinion may be rejected when it is inconsistent 16 with the claimant’s level of activity); Hensley v. Colvin, 600 F. 17 App’x 526, 527 (9th Cir. 2015) (“ALJ reasonably determined that 18 [the physician’s] opinion was inconsistent with [the claimant’s] 19 reported daily activities, which included attending to personal 20 care, cooking, cleaning, shopping for groceries, taking the bus 21 and swimming for exercise.”). 22 perform less than sedentary work, yet Plaintiff reported to Dr. 23 Palmer that he was living alone and was able to independently 24 perform basic activities of daily living and spent his days walking 25 and exercising. 26 Burt’s opinion, Plaintiff reported bicycling and lifting weights. 27 (AR 21, 1221). See Rollins v. Massanari, 261 F.3d 853, 856 (9th Cir. Dr. Burt opined that Plaintiff could (AR 24, 629). Less than a month prior to Dr. Plaintiff also testified in March 2015 that he had 28 24 1 no problems standing or walking and could sit for a long period of 2 time before needing to stretch his legs. (AR 21, 1286). 3 Dr. Burt’s opinion that Plaintiff meets listings 1.01 and 1.02 4 5 was inconsistent with the medical record. As the ALJ noted, two 6 MEs and the State Agency physicians all concluded that Plaintiff 7 did not meet or equal a listing. (AR 23, 27-62, 1143, 1148). 8 9 Plaintiff contends that Dr. Hoenig’s supports a 10 reaching limitation. 11 Dr. Hoenig’s “assessment of reaching limitation on the right . . . 12 not . . . to be supported by the record” (AR 23), a finding that 13 Plaintiff does not directly contest. 14 Plaintiff to no more than light work, which “involves lifting no 15 more 16 416.967(b), 17 21). 18 from lifting no more than ten pounds at a time, he would still not 19 be disabled. 20 disabled if able to perform unskilled light or sedentary work.”); 21 see 20 C.F.R. §§ 404,1567(a), 416.967(a) (“Sedentary work involves 22 lifting no more than 10 pounds at a time . . . .”). than 20 pounds (Dkt. No. 17 at 8-9). opinion at a time,” However, the ALJ found In any event, the ALJ limited 20 C.F.R. §§ 404,1567(b), “primarily [due to his] lifting limitations.” (AR Even if Plaintiff’s right shoulder impairment precluded him (AR 20) (ALJ noting that Plaintiff “is not considered 23 24 In sum, the ALJ provided specific and legitimate reasons, 25 supported by substantial evidence in the record, for giving Dr. 26 Burt’s opinion little weight. 27 evidence supports the ALJ’s assessment of Dr. Burt’s opinion, no 28 remand is required. Accordingly, because substantial 25 1 VIII. 2 CONCLUSION 3 4 Consistent with the foregoing, IT IS ORDERED that Judgment be 5 entered AFFIRMING the decision of the Commissioner. The Clerk of 6 the Court shall serve copies of this Order and the Judgment on 7 counsel for both parties. 8 9 DATED: January 18, 2018 10 /S/ __________ SUZANNE H. SEGAL UNITED STATES MAGISTRATE JUDGE 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 26
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