Josette Nicole Thibeaux v. Carolyn W Colvin, No. 8:2016cv00952 - Document 21 (C.D. Cal. 2017)

Court Description: MEMORANDUM OPINION by Magistrate Judge Alka Sagar. The decision of the Commissioner is AFFIRMED. (See document for complete details) (afe)
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Josette Nicole Thibeaux v. Carolyn W Colvin Doc. 21 1 2 3 4 5 6 7 8 9 UNITED STATES DISTRICT COURT 10 CENTRAL DISTRICT OF CALIFORNIA – SOUTHERN DIVISION 11 12 JOSETTE NICOLE THIBEAUX, 13 Plaintiff, v. 14 15 16 NANCY A. BERRYHILL,1 Acting Commissioner of Social Security, Defendant. 17 ) No. SA CV 16-00952-AS ) ) MEMORANDUM OPINION ) ) ) ) ) ) ) ) ) 18 PROCEEDINGS 19 20 On 21 May 24, 2016, Plaintiff Josette Nicole Thibeaux 22 (“Plaintiff”) filed a Complaint seeking review of the Commissioner’s 23 denial of Plaintiff’s application for a period of disability and 24 Disability Insurance Benefits (DIB) and Supplemental Security Income 25 Benefits 26 Defendant 27 1 28 (SSI). filed (Docket an Answer Entry to No the 1). On Complaint November and the 30, 2016, Certified Nancy A. Berryhill is now the Acting Commissioner of Social Security and is substituted for Acting Commissioner Carolyn W. Colvin in this case. See 42 U.S.C. § 205(g). 1 Dockets.Justia.com 1 Administrative 2 parties have consented to proceed before a United States Magistrate 3 Judge. 4 Stipulation 5 their respective positions on Plaintiff’s claims. 6 20). Record (“AR”). (Docket (Docket Entry Nos. 13, 15). (“Joint Stip.”) on Entry Nos. 18-19). The The parties filed a Joint February 28, 2017, setting forth (Docket Entry No. 7 8 SUMMARY OF ADMINISTRATIVE DECISION 9 10 On February 25, 2014, Plaintiff, formerly employed as an 11 information clerk, salesperson, and hostess, (see AR 366), filed an 12 application for DIB and SSI benefits, alleging disability beginning 13 on May 15, 2009. 14 Law Judge (“ALJ”), Joseph Lisieski III, deferred a scheduled hearing 15 because Plaintiff was not aware that her attorney had withdrawn as 16 her representative. 17 the record and heard testimony from Plaintiff who was represented by 18 counsel. 19 to obtain more records from Plaintiff’s treating neurologist, Dr. 20 Michael 21 examined the record and heard testimony from Plaintiff, vocational 22 expert, Corinne Porter (“VE”), and medical expert, Dr. Irvin S. 23 Belzer, M.D. 24 Plaintiff benefits in a written decision. (AR 255, 262). (AR 96-97). (AR 32-46). Mahdad, M.D. On October 1, 2013, Administrative On April 8, 2014, the ALJ examined The ALJ continued the second hearing in order (AR (AR 47-93). 43-45). On July 15, 2014, the ALJ On September 12, 2014, the ALJ denied (AR 11-31). 25 26 The ALJ applied the five-step process in evaluating Plaintiff’s 27 case. At step one, the ALJ determined 28 engaged in substantial gainful activity after the alleged onset date 2 that Plaintiff had not 1 of May 15, 2009, and that Plaintiff’s date last insured was June 30, 2 2011. 3 following 4 resulting loss of concentration, headaches, and poor vision in the 5 right 6 Plaintiff’s impairments did not meet or equal a Listing found in 20 7 C.F.R. Part 404, Subpart P, Appendix 1. (AR 16). At step two, the ALJ found that Plaintiff had the severe eye. (AR impairments: 16). At multiple step three, sclerosis the ALJ (“MS”) with determined that (AR 16). 8 9 Before proceeding to step four, the ALJ found that, through the 10 date last insured, Plaintiff had the residual functional capacity 11 (“RFC”)2 to do less than a full range of sedentary work, including 12 frequent lifting or carrying ten pounds; standing or walking for 2 13 hours 14 occasional foot 15 bilateral upper 16 occasional postural 17 ladders, scaffolds, or unprotected heights; no job that requires 18 driving a vehicle; no activities that require depth perception; no 19 working 20 moisture and wetness; occasional cold; no concentrated exposure to 21 heat or vibrations; limited to simple tasks with simple work related 22 decisions, object oriented; and no inherently stressful jobs such as 23 taking complaints. and in with an 8-hour controls; workday; sitting with frequent pushing and extremity; reaching, limitations; objects smaller no than no pulling handling, climbing, newspaper limitations; and with feeling; balancing, print; no the ropes, frequent (AR 18). 24 The ALJ found Plaintiff’s statements regarding the intensity, 25 persistence, and limiting effects of her symptoms not credible 26 27 28 2 A Residual Functional Capacity is what a claimant can still do despite existing exertional and nonexertional limitations. See 20 C.F.R. § 404.1545(a)(1). 3 1 because (1) the objective medical record did not support Plaintiff’s 2 assertions of debilitating symptoms; (2) Plaintiff made inconsistent 3 statements regarding her ability to work at a low-stress, sedentary 4 job; (3) Plaintiff’s condition remained unchanged when she stopped 5 taking her MS medication while pregnant; (4) although Plaintiff was 6 diagnosed with MS in 2000, she has had several jobs and worked after 7 her May 2009 onset date, until August 2009; and (5) Plaintiff’s 8 daily activities indicated that she could do more than alleged. 9 19-21). (AR 10 After making a credibility finding, the ALJ addressed the 11 opinions of Plaintiff’s treating and examining physicians and the 12 non-examining consultants. (See AR 20-23). The ALJ gave partial 13 weight to the opinion of nonexamining, medical expert, Dr. Belzer, 14 who testified at the hearing. (AR 22). After reviewing the medical 15 record, Dr. Belzer testified that Plaintiff had partial blindness in 16 the right eye; took Rebif;3 had headaches, but records did not 17 indicate how severe or frequent; had good exercise habits; and an 18 October 2012 MRI of the brain showed MS and volume loss, which 19 suggests that Plaintiff was developing dementia on an “early basis,” 20 which may have caused memory problems. (AR 54-57). 21 22 Dr. Belzer opined that Plaintiff could lift or carry 20 pounds 23 occasionally and 10 pounds frequently; had no sitting limitations; 24 could stand or walk for 4 hours in an 8-hour workday but not on a 25 continuous basis and would need breaks every 4 hours for 5 minutes; 26 could frequently push and pull; could occasionally use foot controls 27 28 3 Rebif is prescribed to reduce symptoms and associated with relapsing-remitting https://medlineplus.gov/druginfo/meds/a604005.html. 4 episodes MS. 1 with both feet; could occasionally use the stairs but no ladders or 2 scaffolds; could not do activities that required the ability to 3 assess distance with vision or see small objects; no unprotected 4 heights, moving machinery, or motor vehicles, no frequent exposure 5 to wetness, odors, and dust; occasional exposure to cold; infrequent 6 exposure to heat; and occasional exposure to vibrations. 7 59). 8 Plaintiff’s assertions “the benefit of the doubt,” finding that she 9 had a sedentary RFC. (AR 58- The ALJ gave partial weight to Dr. Belzer’s opinion and gave (AR 21). The ALJ found that Dr. Belzer’s 10 opinion was based on objective medical evidence. Plaintiff had a 11 significant vision impairment in the right eye, and an October 2012 12 MRI of Plaintiff’s brain showed MS and volume loss, which suggested 13 that Plaintiff may be developing dementia, but was not conclusive 14 that Plaintiff had severe MS. (AR 22). 15 The ALJ rejected the opinion of examining physician, Dr. Robert 16 A. Moore, M.D., because Dr. Moore did not have an opportunity to 17 review additional relevant medical evidence. (AR 22). The ALJ 18 rejected the opinions of State agency physicians, Dr. Nicolas 19 Tsoulas, M.D., and Dr. Keith Wahl, M.D., because their opinions were 20 not “supported by the cumulative evidence.” (AR 23). 21 22 The ALJ gave no weight to the opinion of Plaintiff’s treating 23 neurologist, Dr. Mahdad. 24 could sit 6 hours and stand or walk 2 hours in an 8-hour workday; 25 needed breaks every 30 to 45 minutes; could not handle low-stress 26 jobs; could lift or carry less than 10 pounds occasionally and 10 27 pounds 28 twisting, rarely; never reaching, (Id.). climb and Dr. Mahdad opined that Plaintiff ladders; doing fine 5 was limited manipulations; in grasping, should avoid 1 exposure to extreme heat, humidity, and hazards; and would likely be 2 absent four days per month. 3 that because of Plaintiff’s gait disturbance, poor coordination, 4 vision and cognitive impairments, and general weakness, Plaintiff 5 was “not employable in any capacity.” 6 weight to Dr. Mahdad’s opinion because (1) while Dr. Mahdad found 7 that Plaintiff could not perform even a low-stress job, Plaintiff’s 8 July 2014 hearing testimony that she could perform a sedentary, low- 9 stress job contradicted (AR 422-27). Dr. Mahdad’s Dr. Mahdad also opined (AR 463). The ALJ gave no opinion; (2) the objective 10 medical record, including Dr. Mahdad’s own treatment notes, lacked 11 support for his opinion; and (3) Dr. Mahdad’s opinion that Plaintiff 12 was 13 alone. not employable is a decision reserved for the Commissioner (AR 23). 14 The ALJ rejected the opinion of Plaintiff’s treating primary 15 care physician, Dr. Kenneth Horwitz, M.D. (Id.). Dr. Horwitz 16 opined that Plaintiff could sit for 4 hours and stand or walk less 17 than 2 hours in an 8-hour workday; lift or carry 20 pounds 18 occasionally and 10 pounds frequently; and was incapable of even a 19 low-stress job. (AR 428-33). The ALJ rejected Dr. Horwitz’s 20 opinion because Plaintiff’s testimony that she could perform a job 21 that required her to sit for 8 hours in an 8-hour workday day 22 contradicted Dr. Horwitz’s assessment, and Dr. Horwitz’s own 23 examination of Plaintiff did not support “such restrictive 24 limitations.” (AR 23). 25 26 The ALJ rejected the opinion of Plaintiff’s former treating 27 physician, Dr. Thuc Tu, M.D., who opined that Plaintiff could not 28 6 1 work, 2 Commissioner. because such a finding is reserved solely for the (AR 23, 410). 3 The ALJ rejected the statements of Harriet Thibeaux, 4 Plaintiff’s mother, because (1) her statements discussed Plaintiff’s 5 symptoms in relation to her abilities, and Ms. Thibeaux was not a 6 medical professional; (2) Ms. Thibeaux’s statements were biased 7 because of her familial relationship with Plaintiff; and (3) the 8 medical evidence did not support her statements. (AR 23-24). 9 10 At step four, the ALJ determined that Plaintiff was not able 11 to perform her past relevant work as a policyholder information 12 clerk. (AR 23). At step five, the ALJ found Plaintiff was able to 13 perform jobs consistent with her age, education, and medical 14 limitations existing in significant numbers in the national economy. 15 The ALJ adopted VE testimony that Plaintiff could perform the jobs 16 of addresser (Dictionary of Occupational Titles (“DOT”) 209.587-010) 17 and order clerk (DOT 209.567-014). At the hearing, the ALJ asked 18 the VE whether her testimony conflicted with the DOT description for 19 these jobs. (See AR 91). Accordingly, the ALJ concluded that 20 Plaintiff was not disabled. (AR 26). 21 22 On November 11, 2014, Plaintiff requested that the Appeals 23 Council review the ALJ’s Decision, which was denied on March 25, 24 2016. (AR 1-10). The ALJ’s Decision then became the final decision 25 of the Commissioner, allowing this Court to review the decision. 26 See 42 U.S.C. §§ 405(g), 1383(c). 27 28 7 1 STANDARD OF REVIEW 2 3 This court reviews the Administration’s decision to determine 4 if it is free of legal error and supported by substantial evidence. 5 See Brewes v. Comm’r of Soc. Sec. Admin., 682 F.3d 1157, 1161 (9th 6 Cir. 2012). 7 but less than a preponderance. 8 1009 (9th Cir. 2014). 9 supports a finding, “a court must consider the record as a whole, 10 weighing both evidence that supports and evidence that detracts from 11 the [Commissioner’s] conclusion.” 12 1033, 1035 (9th Cir. 2001). 13 reasonably 14 conclusion, [a court] may not substitute [its] judgment for that of 15 the ALJ.” 16 2006). “Substantial evidence” is more than a mere scintilla, support Garrison v. Colvin, 759 F.3d 995, To determine whether substantial evidence either Aukland v. Massanari, 257 F.3d As a result, “[i]f the evidence can affirming or reversing the ALJ’s Robbins v. Soc. Sec. Admin., 466 F.3d 880, 882 (9th Cir. 17 PLAINTIFF’S CONTENTIONS 18 19 Plaintiff 20 alleges that the ALJ (1) improperly rejected the 21 opinions of treating physicians, Dr. Mahdad, Dr. Horwitz, and Dr. 22 Tu, in favor of the opinion of nonexamining medical expert, Dr. 23 Belzer; (2) erred in finding that Plaintiff could perform the jobs 24 of 25 convincing reasons to reject Plaintiff’s subjective pain testimony. 26 (MSP 4-7, 14-18, 21-25, 32-33). addresser and order clerk; and 27 28 8 (3) did not give clear and 1 DISCUSSION 2 3 After reviewing the record, the Court finds that the ALJ (1) 4 gave 5 treating physicians, Dr. Mahdad, Dr. Horwitz, and Dr. Tu, in favor 6 of the opinion of nonexamining medical expert, Dr. Belzer; (2) did 7 not err at step five in finding that Plaintiff could perform other 8 jobs existing in significant numbers in the national economy; and 9 (3) articulated clear and convincing reasons to find Plaintiff not 10 specific credible. and legitimate reasons to reject the opinions of The Court therefore AFFIRMS the ALJ’s decision. 11 12 A. The ALJ Properly Rejected The Opinions Of Treating Physicians, 13 Dr. Mahdad, Dr. Horwitz, And Dr. Tu, In Favor Of Nonexamining 14 Medical Expert, Dr. Belzer 15 16 Plaintiff contends that the ALJ did not provide sufficiently 17 specific reasons to reject the opinion of Dr. Mahdad, Dr. Horwitz, 18 and Dr. Tu, all treating physicians, in favor of the opinion of Dr. 19 Belzer, a nonexamining medical expert. 20 these physicians’ opinions been given proper credit, Plaintiff would 21 22 23 have been found to meet a Listing. Plaintiff asserts that, had (Joint Stip. at 4-7, 14-16). Defendant asserts that the ALJ properly rejected these physicians’ opinions because support their (1) the objective evidence of record did not 24 opinions; (2) Plaintiff made statements that 25 contradicted Dr. Mahdad and Dr. Horwitz’s opinions; and (3) to the 26 extent that Dr. Tu and Dr. Mahdad opined that Plaintiff could no 27 28 9 1 longer work, such a determination is reserved for the Commissioner 2 alone. (Joint Stip. at 7-13). 3 4 Social Security regulations require the Agency to “evaluate 5 every medical opinion we receive,” giving more weight to evidence 6 from a claimant’s treating physician. 7 Where a treating or examining physician's opinion is contradicted by 8 another doctor, the “[Commissioner] must determine credibility and 9 resolve the conflict.” 20 C.F.R. § 404.1527(c). Valentine v. Comm'r Soc. Sec. Admin., 574 10 F.3d 685, 692 (9th Cir. 2009) (quoting Thomas v. Barnhart, 278 F.3d 11 947, 956–57 (9th Cir. 2002). 12 examining, but non-treating physician, in favor of a non-examining, 13 non-treating physician when he gives specific, legitimate reasons 14 for doing so, and those reasons are supported by substantial record 15 evidence.” 16 amended (Apr. 9, 1996) (quoting Roberts v. Shalala, 66 F.3d at 179, 17 184 18 cannot 19 rejecting the opinion of a treating physician. 20 831. The opinions 21 substantial evidence 22 “independent clinical findings or other evidence in the record.” 23 Thomas, 278 F.3d 947 at 957. (9th “An ALJ may reject the testimony of an Lester v. Chater, 81 F.3d 821, 831 (9th Cir. 1995), as Cir. by 1995)). itself The constitute of opinion of substantial non-examining when the a nonexamining evidence that are justifies Lester, 81 F.3d at physicians opinions physician may serve consistent as with 24 25 26 27 28 Dr. Belzer’s opinion contradicted the opinions of Dr. Mahdad, Dr. Horwitz, and Dr. Tu. provide opinion. specific and Accordingly, the ALJ was required to legitimate reasons to reject each doctor’s See Ghanim v. Colvin, 763 F.3d 1154, 1161 (9th Cir. 2014). 10 1 1. Dr. Mahdad The ALJ 2 3 4 5 6 7 contradicted limitations. 1989) properly rejected Plaintiff’s own Dr. Mahdad’s statements opinion regarding because her it functional Magallanes v. Bowen, 881 F.2d 747, 751–52 (9th Cir. (upholding ALJ's rejection of treating physician's opinion that contradicted the claimant's own testimony); Myers v. Barnhart, 8 2006 WL 1663848, at *6 (C.D. Cal. 2006) (“[A] treating physician's 9 assessment of a claimant's restrictions may be rejected to the 10 extent it ‘appear[s] to be inconsistent with the level of activity’ 11 the claimant maintains, or contradicts Plaintiff's testimony.”) 12 13 14 (internal citations omitted). Dr. Mahdad opined that Plaintiff was precluded from performing all work and could sit for 6 hours in an 15 8-hour workday. (AR 424-25). However, at the July 2014 hearing, 16 Plaintiff testified that she could perform a sedentary, low-stress 17 job where she sat for 8 hours in an 8-hour workday, which directly 18 contradicts Dr. Mahdad’s opinion. (AR 428-33). 19 20 The ALJ also rejected Dr. Mahdad opinion because it was 21 contradicted by his own treatment notes which indicated somewhat 22 normal findings. 23 2012, examination with Dr. Mahdad, Plaintiff had a normal range of 24 motion, no facial weakness, no nystagmus,4 no involuntary movements, (See AR 375-78, 388-98). During a September 13, 25 26 4 27 28 Nystagmus is a vision condition in which the eyes make repetitive, uncontrolled movements. These movements often result in reduced vision and depth perception and can affect balance and coordination. One of the causes of Nystagmus is MS. 11 1 no focal motor weakness with normal sensation, and a normal stance 2 and gait. 3 Plaintiff had no loss of sensation; normal focal motor sensation; 4 and normal attention, concentration, and had an intact short term 5 6 7 (AR 375-77). memory. (AR examination 390-98, Plaintiff Subsequent examinations indicated that 411-12). had a During mild a December antalgic gait 27, and 2012, slight hyperflexion, which were her most severe physical symptoms. (AR 8 386). 9 10 Yet, Plaintiff asserts that the objective medical record 11 supports Dr. Mahdad’s opinion because clinical findings showed that 12 13 14 Plaintiff suffers from exacerbations, ataxia, forgetfulness, blurred vision, and gait issues. symptoms 16 walking, and mental limitations that Dr. Mahdad opined. 17 August 10, 2012, examination with consultative examiner, Dr. Moore, 18 Plaintiff had normal ambulation and motor skills, diminished vision 19 in the right eye, a balance problem, abnormal tingling on her right 20 palm, and no indication that Plaintiff could not sit for extended 21 periods or control her upper extremities. 22 2012 MRI showed that Plaintiff had early signs of dementia, but 23 there is no medical evidence that this condition limits Plaintiff 25 not correlate to the from holding even a low-stress job. psychological evaluation of restrictive Such generalized 15 24 do (Joint Stip. at 5). lifting, (AR 379-82). sitting, During an An October Rather, a February 23, 2013, Plaintiff performed by clinical 26 27 http://www.aoa.org/patients-and-public/eye-and-visionproblems/glossary-of-eye-and-vision-conditions/nystagmus?sso=y. 28 12 1 psychologist, Dr. H. McGee, Ph.D., showed that Plaintiff had “mild 2 cognitive 3 deficits in processing, speed,” attention, and concentration, but 4 Plaintiff was reasoning capacities 5 6 7 limitations in capable her of were ability learning adequate; regular stress in competitive work.” same opinion, (AR a 64-68), and to work, routine, and was ALJ repetitive “able (AR 408). the displaying to mild skill; deal with Dr. Belzer held the adopted Dr. Belzer’s 8 reasoning, which was proper given the clinical findings. 9 Magallanes, 881 F.2d at 747 (an ALJ properly rejects a treating 10 physician’s opinion where the ALJ relies on contrary lab results, 11 examinations findings, and other physicians’ opinions). 12 13 Moreover, the ALJ made multiple attempts to develop the record. 14 15 The ALJ continued the second, April 2014, hearing in order to obtain 16 additional medical evidence from Dr. Mahdad. 17 some new records were submitted, there was still scant evidence to 18 support Dr. Mahdad’s opinion, and when the ALJ offered to schedule 19 another consultative examination, Plaintiff’s attorney rejected the 20 proposition. (See AR 44-45). While (See AR 21, 69-70). 21 22 23 24 25 26 Lastly, the ALJ appropriately found that Dr. Mahdad’s speculation that Plaintiff was “unemployable” carried no probative weight. an (AR 23, 463). issue reserved physician's opinion Whether a claimant can work competitively is specifically on this issue to is the not Commissioner, entitled to and a special 27 significance. 20 C.F.R. § 404.1527(d)(1); Social Security Ruling 28 (“SSR”) 96-5p, 1996 WL 374183 (July 2, 1996) (medical source opinion 13 1 about 2 controlling 3 Barnhart, 420 F.3d 1002, 1004 (9th Cir. 2005) (“Although a treating 4 physician's opinion is generally afforded the greatest weight in 5 6 7 whether a claimant weight or is given unable to special work is not significance); entitled to Ukolov v. disability cases, it is not binding on an ALJ with respect to the existence of disability.”) an impairment (citation or omitted). the ultimate Non-medical determination opinions that of a 8 plaintiff is disabled or unable to work are not binding on the 9 Commissioner. See Boardman v. Astrue, 286 Fed. Appx. 397, 399 (9th 10 Cir. 2008) (“[The] determination of a claimant's ultimate disability 11 is reserved to the Commissioner . . . a physician's opinion on the 12 13 matter is not entitled to special significance.”). 14 15 Accordingly, Plaintiff’s own statements regarding her physical 16 limitations which contradicted Dr. Mahdad’s opinion, the fact that 17 Dr. Mahdad’s own treatment notes failed to support his opinion, and 18 the medical record as a whole which showed mild abnormalities, were 19 all specific and legitimate reasons to reject Dr. Mahdad’s opinion. 20 21 2. Dr. Horwitz 22 23 24 25 26 The ALJ properly rejected Dr. Horwitz’s opinion because it was also contradicted by Plaintiff’s own statements. As stated above, an ALJ may reject the opinion of a treating physician where the Plaintiff’s statements directly contradict the treating physician’s 27 assessment. Magallanes, 881 F.2d at 747 (upholding ALJ's rejection 28 of treating physician's opinion that contradicted the claimant's own 14 1 testimony); Here, Dr. Horwitz opined that Plaintiff could only sit 2 for 4 hours in an 8-hour workday and that Plaintiff was incapable of 3 working a low-stress job. 4 could do a low-stress job where she sat for 8 hours in an 8-hour 5 6 7 workday. (AR 428-33). regarding her physical However, Plaintiff testified that she Accordingly, limitations Plaintiff’s own statements contradicted Dr. Horwitz’s opinion, which is a legitimate and specific reason to reject his 8 opinion. 9 10 The ALJ also rejected Dr. Horwitz’s opinion because it was not 11 supported by his own examination findings and the objective medical 12 13 14 record. Magallanes, 881 F.2d at 747. Although Dr. Horwitz opined that Plaintiff cannot lift more than 20 pounds occasionally and 10 15 pounds frequently, can sit for 4 hours in an 8-hour workday, or 16 stand for 2 hours in an 8-hour workday, Dr. Horwitz’s examination 17 findings were minimal. 18 normal musculoskeletal system results, normal reflexes, and normal 19 neurological findings, with the exception of loss of sensation in 20 the right thigh and “mild” lack of coordination on the left side. 21 Plaintiff’s chief complaint for the visit was headaches. 22 37). 23 treatment notes only list Plaintiff’s medications. 24 25 26 The A March 2014 examination of Plaintiff showed (AR 436- Plaintiff attended a follow-up visit with Dr. Horwitz, but record Horwitz. does not otherwise contain treatment (AR 478-79). notes from Dr. Thus, the severe limitations that Dr. Horwitz’ found were not supported by the medical record and the mild irregularities that 27 were documented. Accordingly, the ALJ gave specific and legitimate 28 reasons to reject the opinion of Dr. Horwitz. 15 1 3. Dr. Tu 2 3 The ALJ appropriately found Dr. Tu’s opinion that Plaintiff 4 cannot work carried no probative weight. 5 Whether a claimant can work is an issue reserved specifically for 6 the Commissioner, and a physician's opinion on this issue is not 7 entitled to 8 Ukolov, 420 9 Accordingly, the ALJ gave a specific and legitimate reason to reject 10 Dr. Tu’s opinion where Dr. Tu opined only that Plaintiff could not 11 work. special F.3d significance. at 1004; 20 Boardman, (AR 23, 410, 413, 416-20). C.F.R. 286 § 404.1527(d)(1); Fed. Appx. at 399. 12 13 14 B. The ALJ Properly Found That Plaintiff Could Perform The Job Of Addresser 15 16 Plaintiff contends that the ALJ erred in finding that she could 17 perform the occupations of addresser (DOT 209.587-010) and order 18 clerk (DOT 209.567-014), because Plaintiff’s RFC conflicts with the 19 the required level of reasoning for both jobs as described in the 20 DOT. (Joint Stip. at 16-18, 21). 21 performing “simple tasks with simple work related decisions,” (AR 22 18), which precludes her from performing jobs that require level 2 23 or 3 reasoning skills. 24 description for addresser and order clerk require level 2 and 3 25 reasoning 26 jobs. 27 recognize and then reconcile the conflict between these jobs and 28 Plaintiff’s RFC, the ALJ committed reversible error. skills (Id.). Plaintiff’s RFC limits her to (Joint Stip. at 17-18). respectively, Plaintiff Plaintiff asserts 16 that could because Because the DOT not perform the ALJ (Id.). these did not 1 In considering potential occupations that a claimant could 2 perform, the ALJ relies on the DOT and VE testimony. 3 416.966(e); Zavalin v. Colvin, 778 F.3d 842, 845-46 (9th Cir. 2015); 4 Valentine, 574 F.3d at 689. “When there is an apparent conflict 5 between and 6 testimony that a claimant can perform an occupation involving DOT 7 requirements that appear to be more than the claimant can handle — 8 the ALJ is required to reconcile the inconsistency.” 9 F.3d at 846 (citing Massachi v. Astrue, 486 F.3d 1149, 1153–54 (9th the [VE’s] testimony the DOT — for 20 C.F.R. § example, expert Zavalin, 778 10 Cir. 2007). An ALJ's failure to inquire into an apparent conflict 11 is harmless where there is no actual conflict between the RFC and 12 the DOT. 13 (citing Massachi, 486 F.3d at 1154 n. 19). Ranstrom v. Colvin, 622 F. App'x 687, 689 (9th Cir. 2015) 14 Here, 15 the of VE testified addresser that 209.567-014), 18 conflicted with the DOT. 19 testimony did not conflict with the DOT. 20 the VE’s testimony. 21 requires Level 25 Reasoning and the DOT description for order clerk 22 requires Level 36 Reasoning. asked whether (AR 89-90). (See AR 25). the order VE’s clerk the 17 ALJ and perform occupations the 209.587-010) could 16 and (DOT Plaintiff (DOT testimony The VE responded that her (AR 90). The ALJ adopted The DOT description for addresser See ADDRESSER, DOT 209.587-010; ORDER 23 24 25 26 27 28 5 The DOT defines Level 2 Reasoning as “[a]pply[ing] commonsense understanding to carry out detailed but uninvolved written or oral instructions. Deal with problems involving a few concrete variables in or from standardized situations.” ADDRESSER, DICOT 209.587-010. 6 The DOT defines Level 3 Reasoning as “[a]pply[ing] commonsense understanding to carry out instructions furnished in written, oral, or diagrammatic form. Deal with problems involving several concrete 17 1 CLERK, 2 Plaintiff 3 object oriented and no inherently stressful jobs such as taking 4 complaints.” FOOD to AND BEVERAGE, “simple tasks DOT 209.567-014. with simple The work ALJ related limited decisions, (AR 18). 5 6 Plaintiff relies on Rounds v. Comm’r of Soc. Sec. Admin., 807 7 F.3d 996, 1002 (9th Cir. 2015) to assert that a person who is 8 limited to performing “simple tasks” cannot perform jobs, such as 9 addresser, which require Level 2 reasoning. the holding 10 However, 11 represents. 12 performing “one to two-step tasks,” not “simple tasks.” 13 Rounds, 807 F.3d at 1001; with (AR 18). 14 “there was an apparent conflict between Round’s RFC, which limited 15 her to performing one -and two-step tasks, and the demands of Level 16 [2] 17 understanding to carry out detailed but uninvolved written or oral 18 instructions.’” 19 1991 WL 688702). 20 Level 1 reasoning, which requires a person to apply “commonsense 21 understanding to carry out simple one – or two-step instructions,” 22 supported the court’s finding that Rounds could only perform jobs 23 that require Level 1 reasoning. 24 perform simple tasks, instead of only one and two-step tasks, which In in Rounds, reasoning, which Rounds the requires is (Joint Stip. at 17). narrower plaintiff’s a RFC than Plaintiff limited her to Compare The court concluded that person to ‘[a]pply commonsense Rounds, 807 F.3d at 1003 (citing DOT, App. C, § 3, The “obvious similarity” between Round’s RFC and Id. Here, Plaintiff is able to 25 26 27 variables in or from standardized situations.” AND BEVERAGE, DICOT 209.567-014. 28 18 ORDER CLERK, FOOD 1 distinguishes Plaintiff’s mental limitations from the claimant in 2 Rounds. 3 4 Moreover, courts have found that a person who is limited to 5 “simple tasks” can perform jobs that require Level 2 reasoning. 6 See, e.g., Hackett v. Barnahart, 395 F.3d 1168, 1176 (10th Cir. 7 2005) (“[L]evel-[2] reasoning appears 8 Plaintiff's [residual functional capacity]” to perform “simple and 9 routine work”); Meissl v. Barnhart, 403 F. Supp. 2d 981, 984 (C.D. 2005) (finding consistent Cal. 11 “simple tasks . . . that had some element of repetitiveness to them” 12 indicated a reasoning level of 2); Bowman v. Colvin, __ F.Supp.3d 13 __, 2017 WL 66390, at *15 (D. Or. 2017) (“Level [2] allows for the 14 performance 15 complex . . . when the RFC [limiting someone to simple tasks] is 16 compared 17 reasoning, it is clear that the RFC here aligns with Level [2] and 18 not 19 simple 20 Plaintiff could perform the job of addresser, a Level 2 reasoning 21 occupation. to Level detailed the definitions [3].”). tasks, but the plaintiff's simple of ALJ properly instructions both Accordingly, ability Level because adopted to with 10 of that more which [2] and Plaintiff the VE’s perform are Level could not [3] perform testimony that 22 The ALJ erred in adopting the VE’s testimony that Plaintiff 23 24 could perform 25 occupation. 26 between 27 repetitive tasks, and the demands of Level 3 Reasoning”). 28 failed to resolve this conflict. the the job of order clerk, a Level 3 reasoning Zavalin, 778 F.3d at 847 (finding “an apparent conflict residual functional capacity (See AR 25). 19 to perform simple, The ALJ However, this error 1 was harmless because the ALJ also identified a Level 2 reasoning job 2 — addresser — that Plaintiff could perform. 3 Sec., 454 F.3d 1050, 1055 (9th Cir. 2006) (ALJ errors are harmless 4 when they are inconsequential to a non-disability finding); Burch v. 5 Barnhart, 400 F.3d 676, 679 (9th Cir. 2005) (an ALJ's decision will 6 not be reversed for harmless error); Curry v. Sullivan, 925 F.2d 7 1127, 1131 (9th Cir. 1991) (harmless error rule applies to review of 8 ALJ decisions regarding disability). Stout v. Comm'r of Soc. 9 10 C. The ALJ Articulated Clear And Convincing Reasons To Find Plaintiff Not Credible 11 12 Plaintiff 13 asserts that the ALJ improperly found her not 14 credible for the following reasons: (1) the medical record suggests 15 that Plaintiff has a disabling condition because she had a visiting 16 nurse come to her home; (2) the ALJ exhibited a gender bias in 17 finding that Plaintiff was not credible because she did not take MS 18 medication while pregnant; and (3) the ALJ gave too much weight to 19 Plaintiff’s 20 supporting Plaintiff’s credibility. daily activities when compared to other factors (Joint Stip. at 22-25, 32-33). 21 Defendant contends that the ALJ provided the following clear 22 23 and convincing reasons 24 objective 25 Plaintiff made inconsistent statements regarding the severity of her 26 condition; 27 physical 28 considered record (3) did to not Plaintiff’s ability than Plaintiff’s she find Plaintiff support daily Plaintiff’s activities claimed; failure to 20 not and take MS (1) statements; demonstrated (4) her credible: the ALJ the (2) greater properly medication while 1 pregnant because an ALJ may consider the medications a claimant 2 takes when making a credibility determination. 3 30). (Joint Stip. at 25- 4 5 A claimant initially must produce objective medical evidence 6 establishing a medical impairment reasonably likely to be the cause 7 of his subjective symptoms. 8 (9th Cir. 1996); Bunnell v. Sullivan, 947 F.2d 341, 345 (9th Cir. 9 1991). Smolen v. Chater, 80 F.3d 1273, 1281 Once a claimant produces objective medical evidence of an 10 underlying impairment that could reasonably be expected to produce 11 pain 12 malingering, the ALJ may reject the claimant’s testimony regarding 13 the severity of his pain and symptoms only by articulating specific, 14 clear, and convincing reasons for doing so. 15 806 F.3d 487, 492-93 (9th Cir. 2015) (citing Lingenfelter v. Astrue, 16 504 F.3d 1028, 1036 (9th Cir. 2007)). 17 of malingering, the “clear and convincing reasons” standard applies. or other symptoms alleged, and there is no evidence of Brown-Hunter v. Colvin, Because there is no evidence 18 In 19 her disability application, Plaintiff asserted that she 20 cannot work because she has MS that causes debilitating symptoms, 21 including 22 right 23 Information form that she needs help showering and bathing; has no 24 energy 25 standing; and either stays at home or walks to the park with her 26 daughter. 27 hearing 28 forgetfulness, and a loss of appetite, which makes her weak and seizures, eye. to (AR clean 288). but (AR 325). that she severe migraines, Plaintiff can cook and blurred stated easy meals in that vision an do in Updated not the Work require Plaintiff testified at the third, July 2014, suffers from dizzy 21 spells on a daily basis; 1 causes headaches; needs help to clean and cook; on a normal day, 2 lays and watches television; and leaves the house once every other 3 day to go to church or the grocery store. (AR 70-72, 75-76). 4 The ALJ found Plaintiff not credible for the following reasons: 5 6 (1) the objective 7 assertions of debilitating symptoms; (2) Plaintiff made inconsistent 8 statements regarding her ability to work at a low-stress, sedentary 9 job; (3) Plaintiff did not take her MS medication while pregnant and condition medical remained record support 11 diagnosed with MS in 2000, she had several jobs and worked after her 12 May 2009 onset date, until August 2009; and (5) Plaintiff’s daily 13 activities 14 alleged. she had although Plaintiff’s her that (4) not 10 indicated unchanged; did greater Plaintiff abilities than was she (AR 19-21). 15 16 First, the ALJ properly found that the medical evidence did not 17 support Plaintiff’s statements. The ALJ noted that “[c]learly, the 18 claimant has MS,” but “the record does not show severity . . . ” 19 (AR 21). 20 showed largely normal results regarding Plaintiff’s motor strength 21 and ability to ambulate. (AR 20). 22 “small to large areas of abnormal 23 throughout . . . ” the brain, “consistent with history of MS and 24 moderate degree of diffuse generalized volume loss, advanced for 25 patient’s age,” but the MRI did not correlate to the severity of the 26 condition, 27 indicated that Plaintiff had mild optic neuritis in the left eye and 28 neuritis Examinations with Dr. Mahdad, Dr. Moore, and Dr. Horwitz just in the its presence. right eye, The October 2012 MRI showed T2/flair (Id.). which 22 left hyper intensities Ophthalmologist Plaintiff’s records right eye 1 significantly 2 asserts, she was seen by a visiting nurse, but “just because one has 3 a visiting nurse, it does not mean one is disabled.” impaired and left eye normal, and, as Plaintiff (AR 20-21). 4 The ALJ’s summary of the evidence reflects the record as a 5 6 whole. A MRI of Plaintiff’s brain showed MS and early signs of 7 dementia, but a psychological evaluation concluded that Plaintiff 8 had 9 regular only mild cognitive stress that limitations requires using and a could routine, hold a job repetitive with skill. 10 (See AR 388, 408). 11 visual 12 perception, but it does not preclude her from all work. 13 Moreover, 14 encompassed examinations conducted by Dr. Horwitz and Dr. Mahdad, 15 had 16 intermittently complained of dizziness and headaches, but not to the 17 constant degree that Plaintiff asserts. 18 of 19 physical 20 Plaintiff was not credible. 21 lack of objective medical evidence cannot form the sole basis for 22 discounting pain testimony, it is a factor that the ALJ can consider 23 in his credibility analysis.”). impairment the normal As the ALJ noted, Plaintiff has a significant in her objective findings. objective and medical mental right eye, medical Nurse evidence limitations which affects evidence, records her (AR 64-65). which show that (See AR 470-79). regarding supports Plaintiff’s the ALJ’s depth primarily Plaintiff The lack disabling finding that Burch, 400 F.3d at 680-81 (“Although 24 Moreover, the mere fact that Plaintiff was seen by a visiting 25 26 nurse does not constitute 27 Plaintiff’s 28 clinical findings, physical examinations, or tests done by a medical allegations. objective Objective 23 medical medical evidence evidence supporting includes 1 source, 2 supporting 3 evidence, 4 notes. 5 2004) (treating physician notes did not provide objective medical 6 evidence of alleged limitation); Thomas, 278 F.3d at 957 (ALJ need 7 not accept treating physician's opinion if inadequately supported 8 by clinical findings). 9 with Plaintiff’s statements. which a establishes finding an ALJ may of give a condition disability. no weight and related Without to a symptoms such objective physician’s treatment See Batson v. Comm’r, 359 F.3d 1190, 1195 n. 3 (9th Cir. Accordingly, the record is not consistent 10 Second, the ALJ properly found Plaintiff’s testimony that she 11 12 could do 13 allegations 14 regarding a Plaintiff’s functional limitations provide a clear and 15 convincing reason to find a plaintiff not credible. 16 at 17 credibility 18 statements to her doctors); see also Brown v. Astrue, 405 F. App'x 19 230, 233 (9th Cir. 2010). 20 sedentary job, “if easy and repetitive, and not stressful.” 21 21). 22 is lay and watch television because of constant, severe headaches 23 and dizzy spells. (AR 70-72, 75-76, 325). 24 contradicts her previous statements. 25 clear 26 credible where Plaintiff testified that she could hold a sedentary, 27 low-stress job. 1284; a low-stress, of See sedentary disabling Thomas, finding symptoms. 278 in job F.3d part at due to inconsistent Inconsistent 959 a with her statements Smolen, 80 F.3d (upholding claimant's an adverse inconsistent Plaintiff testified that she could do a (AR Yet, Plaintiff also stated that on a normal day all she can do and convincing reason to find 28 24 Plaintiff’s testimony Accordingly, the ALJ gave a Plaintiff’s statements not 1 Third, the ALJ improperly found Plaintiff not credible because 2 she did not take her MS medication, Rebif, while pregnant. 3 21). 4 (a) 5 Plaintiff’s 6 Plaintiff’s condition was not as severe as claimed. 7 address both interpretations. (See AR It is not clear whether the ALJ provided this reason because Plaintiff failed condition to follow remained prescribed unchanged, treatment, or indicating (b) that The Court will 8 9 It is improper to discount a claimant's credibility on the 10 basis of failure to pursue medical treatment when the claimant “has 11 a good reason for not” doing so. 12 Security Admin., 533 F.3d 1155, 1162 (9th Cir. 2008); see also SSR 13 96–7p, 1996 WL 374186, at *7 (ALJ must not draw inferences about 14 claimant's symptoms and their functional effects from failure to 15 follow 16 explanations provided or other information in the record that may 17 explain that failure). 18 stopped taking Rebif while pregnant and did not make any objections 19 in his treatment notes. (See AR 375). 20 pregnancy was an explanation for Plaintiff to not take Rebif for a 21 period of time. prescribed treatment, Carmickle v. Commissioner, Social without first considering any Here, Dr. Mahdad was aware that Plaintiff Accordingly, Plaintiff’s 22 23 Alternatively, the ALJ improperly substituted his judgment for 24 that of the medical evidence in interpreting Plaintiff’s physical 25 condition while she was not taking Rebif. 26 medical evidence with his own judgment, and such speculation cannot 27 support an inference on which an ALJ’s credibility determination 28 depends. An ALJ cannot substitute Day v. Weinberger, 522 F.2d 1154, 1156 (9th Cir. 1975) 25 1 (an ALJ who is not qualified as a medical expert cannot make “his 2 own 3 condition”); see also Rohan v. Chater, 98 F.3d 966, 970–71 (7th Cir. 4 1996) (ALJ may not rely on his own lay opinion regarding medical 5 matters); Ferguson v. Schweiker, 765 F.2d 31, 37 (3d Cir. 1995) 6 (same); Miller v. Astrue, 695 F. Supp. 2d 1042, 1048 (C.D. Cal. 7 2010) (same); cf. Rudder v. Colvin, 2014 WL 3773565, at *12 (N.D. 8 Ill. 2014) (“The ALJ may be correct that disabling limitations from 9 multiple sclerosis would result in more frequent treatment or need exploration and assessment as to [the] claimant's physical 10 for medication. However, the ALJ must include evidence to support 11 such a conclusion in his opinion because he is not qualified, on his 12 own, to make such determinations”). 13 14 Here, the ALJ viewed Plaintiff’s apparent stabilized condition 15 while she was pregnant and not taking Rebif as a reason to discredit 16 Plaintiff’s MS symptoms. 17 whether 18 whether Plaintiff’s symptoms should have been worse while not on 19 Rebif. 20 the need for such medications or opine on how stable a claimant’s 21 condition should be. 22 was not credible because she did not take her MS medication while 23 she was 24 Plaintiff not credible. 25 Plaintiff’s Yet, the medical record does not address condition was stable during this time, or Because the ALJ is not a medical expert, he cannot assess Accordingly, the ALJ’s finding that Plaintiff pregnant was not a clear and convincing reason to find Fourth, the ALJ improperly found that Plaintiff was not 26 credible because she had a failed work attempt after her onset date. 27 (AR 21). 28 distinguished A failed work attempt versus the ability to work is under 42 USC § 422(c); 26 SSR 84-25. A plaintiff's 1 unsuccessful work attempt is not a clear and convincing reason to 2 conclude that her symptoms would not preclude consistent employment. 3 Lingenfelter, 504 F.3d at 1028 (ALJ erred in relying on period of 4 work 5 Accordingly, 6 convincing reason to reject Plaintiff’s pain testimony. as proof that a Plaintiff’s claimant’s attempt to pain work was is not not disabling). a clear and 7 Fifth, the ALJ properly found that Plaintiff’s daily activities 8 9 undermined her credibility. claimant 10 found 11 that she was quite functional). 12 fatigue, headaches, dizziness, and lack of coordination. 13 76). 14 Plaintiff 15 washing dishes; sometimes cleaning; going to church, the grocery 16 store, and the beach; and babysitting her friend’s children four 17 times 18 Plaintiff had good exercise habits and did normal activities of 19 daily living. 20 was a clear and convincing reason to find Plaintiff not credible. Yet, not during reported per credible Burch, 400 F.3d at 680 (ALJ properly month. a (AR 436). her daily activities suggested Plaintiff describes having severe February reading; (AR where 2013 cooking; 405). Dr. consultative using a Horwitz (AR 70-74, examination, computer; also sometimes reported that Accordingly, Plaintiff’s daily activities 21 22 In sum, the ALJ articulated clear and convincing reasons to 23 find Plaintiff not credible: the medical evidence did not support 24 Plaintiff’s statements; Plaintiff testified that she could perform a 25 low-stress, 26 living 27 asserted. 28 not credible in citing Plaintiff’s decision to not take Rebif while sedentary revealed that job; and Plaintiff Plaintiff’s had greater activities abilities of daily than she The ALJ also provided improper reasons to find Plaintiff 27 1 pregnant and her failed work attempt. 2 such 3 convincing reasons to find Plaintiff not credible. 4 F.3d at 1162. error harmless, since the However, the Court finds any ALJ provided other clear and Carmickle, 533 5 6 D. The ALJ Properly Found Lay Witness Testimony Not Credible 7 Plaintiff 8 9 asserts that the Plaintiff’s mother’s testimony. contends that the ALJ failed to properly consider (See Joint Stip. at 24-25, 33). 10 Defendant ALJ provided 11 rejecting Plaintiff’s mother’s testimony. 12 germane reasons for 32). (See Joint Stip. at 30- 13 14 The ALJ is required to give germane reasons for rejecting lay 15 witness testimony. See Carmickle, 533 F.3d at 1164; Greger v. 16 Barnhart, 464 F.3d 968, 972 (9th Cir. 2006); Lewis v. Apfel, 236 17 F.3d 503, 511 (9th Cir. 2001); Smolen, 80 F.3d at 1288-89. 18 19 Here, the ALJ gave a germane reason for rejecting Plaintiff’s 20 mother’s testimony because it was inconsistent with the objective 21 medical evidence. 22 Cir. 2015) (inconsistency with the medical evidence is a germane 23 reason for discrediting the testimony of a lay witness); Lewis, 236 24 F.3d at 511 (“One reason for which an ALJ may discount lay testimony 25 is that it conflicts with medical evidence.”); Vincent v. Heckler, 26 739 F.2d 1393, 1395 (9th Cir. 1984) (“The ALJ properly discounted 27 lay witness testimony that conflicted with the available medical 28 evidence.”). See Bayliss v. Barnhart, 427 F.3d 1211, 1218 (9th 28 1 2 However, the ALJ erred in discrediting Plaintiff’s mother’s 3 statements 4 bias. “[L]ack of medical expertise and family bias are not germane 5 reasons to reject lay witness testimony. 6 1113, 1116 (9th Cir. 2009) (ALJ cannot reject law witness testimony 7 because of lack of medical training or family bias). 8 error was harmless because he provided another germane reason to 9 reject because Plaintiff’s she lacks mother’s medical testimony expertise and has familial Bruce v. Astrue, 557 F.3d in finding The ALJ’s that it was 10 inconsistent with the medical record. 11 F.3d 1035, 1038 (9th Cir. 2008) (citation and quotation omitted) 12 ("The court will not reverse an ALJ's decision for harmless error, 13 which exists when it is clear from the record that the ALJ's error 14 was inconsequential to the ultimate nondisability determination."). 15 \\ 16 \\ 17 \\ 18 19 20 21 22 23 24 25 26 27 28 29 Tommasetti v. Astrue , 533 1 CONCLUSION 2 3 4 For the foregoing reasons, the decision of the Commissioner is AFFIRMED. 5 6 LET JUDGMENT BE ENTERED ACCORDINGLY. 7 8 Dated: May 10, 2017 9 10 11 12 _____________/s/______________ ALKA SAGAR UNITED STATES MAGISTRATE JUDGE 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 30