Pamela Sue Gravinese v. Nancy A. Berryhill, No. 8:2018cv00335 - Document 24 (C.D. Cal. 2019)
Court Description: MEMORANDUM OPINION AND ORDER by Magistrate Judge Autumn D. Spaeth. The decision of the Social Security Commissioner is AFFIRMED, and the action is DISMISSED with prejudice. (see document for further details) (hr)
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Pamela Sue Gravinese v. Nancy A. Berryhill Doc. 24 O 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 PAMELA S. G., an Individual, 12 Plaintiff, 13 v. Case No.: 8:18-0 0 335 ADS MEMORANDUM OPINION AND ORDER 14 SAUL1, ANDREW M. Social Security, Com m issioner of 15 Defendant. 16 17 I. 18 IN TROD U CTION Plaintiff Pam ela S. G.2 (“Plaintiff”) challenges Defendant Nancy A. Berryhill, 19 Acting Com m issioner of Social Security’s (hereinafter “Com m issioner” or “Defendant”) 20 denial of her application for a period of disability and disability insurance benefits 21 22 23 24 1 On J une 17, 20 19, Saul becam e the Com m issioner of Social Security. Thus, he is autom atically substituted as the defendant under Federal Rule of Civil Procedure 25(d). 2 Plaintiff’s nam e has been partially redacted in com pliance with Federal Rule of Civil Procedure 5.2(c)(2)(B) and the recom m endation of the Com m ittee on Court Adm inistration and Case Managem ent of the J udicial Conference of the United States. -1Dockets.Justia.com 1 (“DIB”). Plaintiff contends that the Adm inistrative Law J udge (“ALJ ”) im properly 2 evaluated the m edical evidence, as well as Plaintiff’s credibility and subjective 3 com plaints. For the reasons stated below, the decision of the Com m issioner 4 is affirm ed, and this m atter is dism issed with prejudice.3 5 II. 6 FACTS RELEVAN T TO TH E APPEAL A review of the entire record reflects certain uncontested facts relevant to this 7 appeal. Prior to filing her application for social security benefits on Septem ber 23, 20 14, 8 Plaintiff last worked on October 11, 20 11, her alleged disability onset date. 9 (Adm inistrative Record “AR” 169-172). Plaintiff’s application alleges disability based on 10 “spine surgery-lum bar, pain and weakness on right side of body, lim ited walking and 11 lim ited standing.” (AR 76). Plaintiff’s em ploym ent history indicates that she worked as 12 a Hum an Resources director from 1997 until her cessation of work in 20 11. (AR 214). 13 In April 20 14, Plaintiff returned to work full-tim e as a Hum an Resources generalist but 14 stopped working on August 20 , 20 14. Plaintiff testified that she stopped working 15 because she had to have surgery, “but I could have continued working if I didn’t have m y 16 surgery.” (AR 52). Plaintiff underwent a spinal lam inectom y at L4-5 on August 21, 17 20 14. (AR 30 9-310 ). 18 According to Plaintiff’s testim ony, she has suffered from chronic back and leg 19 pain since she suffered a fall in 20 11. (AR 54-58). Since 20 11, she has undergone two 20 knee surgeries and two back surgeries, as well as received epidural injections. Id. 21 22 23 24 3 The parties filed consents to proceed before the undersigned United States Magistrate J udge, pursuant to 28 U.S.C. § 636(c), including for entry of final J udgm ent. [Docket(“Dkt.”) Nos. 9, 13]. -2- 1 III. PROCEED IN GS BELOW 2 A. Pro ce d u ral H is to ry 3 Plaintiff filed a claim for Title II social security benefits on Septem ber 23, 20 14, 4 alleging disability beginning October 4, 20 11 (AR 86, 169). Plaintiff’s DIB application 5 was denied initially on Novem ber 13, 20 14 (AR 98-10 2), and upon reconsideration on 6 J anuary 22, 20 15 (AR 10 4-10 8). A hearing was held before ALJ Helen E. Hesse on 7 Novem ber 16, 20 16. (AR 30 -75). Plaintiff, represented by counsel, appeared and 8 testified at the hearing, as well as m edical consultant Eric D. Schm itter, M.D., via 9 telephone, and vocational consultant Alan Ey. Id. 10 On December 13, 20 16, the ALJ found that Plaintiff was “ not disabled” within the 11 m eaning of the Social Security Act.4 (AR 10 -29). The ALJ ’s decision becam e the 12 Com m issioner’s final decision when the Appeals Council denied Plaintiff’s request for 13 review on February 14, 20 18. (AR 1-4). Plaintiff then filed this action in District Court 14 on February 27, 20 18, challenging the ALJ ’s decision. [Dkt. No. 1]. 15 B. Su m m ary o f ALJ D e cis io n Afte r H e arin g 16 In the ALJ ’s decision of Decem ber 13, 20 16 (AR 10 -29), the ALJ followed the 17 required five-step sequential evaluation process to assess whether Plaintiff was disabled 18 under the Social Security Act.5 20 C.F.R. § 40 4.1520 (a)(4). At s te p o n e , the ALJ found 19 20 21 22 23 24 4 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 m ental im pairm ent expected to result in death, or which has lasted or is expected to last for a continuous period of at least 12 m onths. 42 U.S.C. §423(d)(1)(A). 5 The ALJ follows a five-step sequential evaluation process to assess whether a claim ant is disabled: Step one: Is the claim ant engaging in substantial gainful activity? If so, the claim ant is found not disabled. If not, proceed to step two. Step two: Does the claim ant have a “severe” im pairm ent? If so, proceed to step three. If not, then a finding of not disabled is appropriate. Step three: Does the claim ant’s im pairm ent or com bination of im pairm ents m eet or equal an im pairm ent listed in 20 C.F.R., Pt. 40 4, Subpt. P, App. 1? -3- 1 that Plaintiff had not been engaged in substantial gainful activity since October 4, 20 11, 2 the alleged onset date.6 (AR 15). At s te p tw o , the ALJ found that Plaintiff had the 3 following severe im pairm ents: (a) grade one spondylolisthesis L4-5, status post 4 lam inectom y in 8/ 20 14, status post fusion in 8/ 20 15; (b) status post bilateral knee 5 arthroscopies in 20 13; and (c) m orbid obesity. (AR 15). At s te p th re e , the ALJ found 6 that Plaintiff “does not have an im pairm ent or com bination of im pairm ents that m eets 7 or m edically equals the severity of one of the listed im pairm ents in 20 CFR Part 40 4, 8 Subpart P, Appendix 1 (20 CFR 40 4.1520 (d), 40 4.1525 and 40 4.1526).” (AR 16). 9 The ALJ then found that Plaintiff had the following Residual Functional 10 Capacity7 (“RFC”) from October 4, 20 11 through August 21, 20 14 (the date of Plaintiff’s 11 first spinal surgery): 12 13 14 15 [P]erform light work as defined in 20 CFR 40 4.1567(b), with the following additional lim itations: can sit for six hours out of an 8hour day and stand and/ or walk for two hours out of an 8-hour day, with norm al workday breaks; can occasionally lift 20 pounds, frequently lift 10 pounds; can occasionally clim b stairs, bend, balance, stoop, kneel, crouch, or crawl; is precluded from clim bing ladders, ropes or scaffolding; and precluded from working at unprotected heights. 16 17 18 19 20 21 22 23 24 If so, the claim ant is autom atically determ ined disabled. If not, proceed to step four. Step four: Is the claim ant capable of perform ing his past work? If so, the claim ant is not disabled. If not, proceed to step five. Step five: Does the claim ant have the residual functional capacity to perform any other work? If so, the claim ant is not disabled. If not, the claim ant is disabled. Lester v. Chater, 81 F.3d 821, 828 n.5 (9th Cir. 1995) (citing 20 C.F.R. §40 4.1520 ). 6 The ALJ found Plaintiff’s four-m onth period of work, from April 20 14 – August 20 14, to be an “unsuccessful work attem pt” under 2 C.F.R. § 40 4.1574(a)(1), which therefore does not constitute disqualifying substantial gainful em ploym ent. (AR 15). 7 A Residual Functional Capacity is what a claim ant can still do despite existing exertional and nonexertional lim itations. See 20 C.F.R. §§ 40 4.1545(a)(1), 416.945(1)(1). -4- For the period from August 22, 20 14 through the date of the ALJ ’s 1 2 decision, the ALJ found that the Plaintiff had the following RFC: [P]erform sedentary work as follows: can sit for six hours out of 8hour day and stand and/ or walk for two hours out of an 8 hour day, with norm al workday breaks; can occasionally lift 10 pounds, frequently lift less than 10 pounds; can occasionally clim b stairs, bend, balance, stoop, kneel, crouch, or crawl; is precluded from clim bing ladders, ropes or scaffolding; and precluded from unprotected heights. 3 4 5 6 7 (AR 16). At s te p fo u r, based on Plaintiff’s RFC and the vocational expert’s testim ony, the 8 9 ALJ found that Plaintiff was capable of perform ing past relevant work as a personnel 10 m anager. (AR 23). The ALJ noted, “[t]his work does not require the perform ance of 11 work-related activities precluded by the claim ant’s residual functional capacity...” Id. 12 The ALJ did not proceed to s te p five . (AR 23-24). Accordingly, the ALJ determ ined 13 that Plaintiff had not been under a disability, as defined in the Social Security Act, from 14 October 4, 20 11 through Decem ber 16, 20 16. (AR 24). 15 IV. AN ALYSIS 16 A. Is s u e s o n Ap p e al 17 Plaintiff raises two issues for review: (1) whether the ALJ properly 18 evaluated/ considered the m edical evidence of record; and (2) whether the ALJ properly 19 evaluated Plaintiff’s credibility and subjective com plaints. [Dkt. No. 17 (J oint 20 Stipulation), 2-3]. Specifically, Plaintiff contends the ALJ erred in her assessm ent of 21 whether Plaintiff’s im pairm ents m et or m edically equaled a listing and in giving greater 22 weight to the testim ony of m edical consultant Eric Schm itter, M.D., than to that of 23 Plaintiff’s treating physician J effrey Deckey, M.D. In addition, Plaintiff contends the 24 -5- 1 ALJ im properly discounted Plaintiff’s testim ony regarding the nature and severity of her 2 conditions. 3 B. Stan d ard o f Re vie w 4 A United States District Court m ay review the Com m issioner’s decision to deny 5 benefits pursuant to 42 U.S.C. § 40 5(g). The District Court is not a trier of the facts but 6 is confined to ascertaining by the record before it if the Com m issioner’s decision is 7 based upon substantial evidence. Garrison v. Colvin, 759 F.3d 995, 10 10 (9th Cir. 20 14) 8 (District Court’s review is lim ited to only grounds relied upon by ALJ ) (citing Connett v. 9 Barnhart, 340 F.3d 871, 874 (9th Cir. 20 0 3)). A court m ust affirm an ALJ ’s findings of 10 fact if they are supported by substantial evidence and if the proper legal standards were 11 applied. Mayes v. Massanari, 276 F.3d 453, 458-59 (9th Cir. 20 0 1). An ALJ can satisfy 12 the substantial evidence requirement “by setting out a detailed and thorough sum m ary 13 of the facts and conflicting clinical evidence, stating his interpretation thereof, and 14 m aking findings.” Reddick v. Chater, 157 F.3d 715, 725 (9th Cir. 1998) (citation 15 om itted). 16 “[T]he Com m issioner’s decision cannot be affirm ed sim ply by isolating a specific 17 quantum of supporting evidence. Rather, a court m ust consider the record as a whole, 18 weighing both evidence that supports and evidence that detracts from the Secretary’s 19 conclusion.” Aukland v. Massanari, 257 F.3d 10 33, 10 35 (9th Cir. 20 0 1) (citations and 20 internal quotation m arks om itted). “‘Where evidence is susceptible to m ore than one 21 rational interpretation,’ the ALJ ’s decision should be upheld.” Ryan v. Com m ’r of Soc. 22 Sec., 528 F.3d 1194, 1198 (9th Cir. 20 0 8) (citing Burch v. Barnhart, 40 0 F.3d 676, 679 23 (9th Cir. 20 0 5)); see Robbins v. Soc. Sec. Adm in., 466 F.3d 880 , 882 (9th Cir. 20 0 6) (“If 24 the evidence can support either affirm ing or reversing the ALJ ’s conclusion, we m ay not -6- 1 substitute our judgm ent for that of the ALJ .”). However, the Court m ay review only “the 2 reasons provided by the ALJ in the disability determ ination and m ay not affirm the ALJ 3 on a ground upon which he did not rely.” Orn v. Astrue, 495 F.3d 625, 630 (9th Cir. 4 20 0 7) (citation om itted). 5 C. W h e th e r Th e ALJ Pro p e rly Evalu a te d Th e Me d ical Evid e n ce 6 Plaintiff m akes two claim s of error with regard to the ALJ ’s assessm ent of the 7 m edical evidence. First, Plaintiff contends that the ALJ did not properly analyze 8 whether Plaintiff’s m edical conditions m et or m edically equaled a listing. Second, 9 Plaintiff contends that the ALJ erred in dism issing the opinion of her treating physician. 10 11 1. The ALJ Properly Evaluated Step Three At step three of the five-step sequential evaluation process to assess whether a 12 claim ant is disabled, the ALJ determ ines whether a claim ant’s im pairm ent or 13 com bination of im pairm ents m eet or equal an im pairm ent listed in 20 C.F.R., Pt. 40 4, 14 Subpt. P, App. 1 (the “Listings”). The Social Security Adm inistration, at step three, 15 awards benefits to the m ost severely im paired claim ants, regardless of their actual 16 functional ability. See Carolyn A. Kubitschek & J on C. Dubin, Social Security Disability 17 Law and Procedure in Federal Court §3:18 (20 18). A claim ant who satisfies the test at 18 the third step is entitled to benefits, and the evaluation ends. Kennedy v. Colvin, 738 19 F.3d 1172, 1175 (9th Cir. 20 13) (“If [the third step is found in favor of a claim ant], the 20 claim ant is considered disabled and benefits are awarded, ending the inquiry.”) The 21 Social Security Adm inistration has developed a lengthy list of im pairm ents “considered 22 severe enough to prevent a person from doing any gainful activity.” 20 C.F.R. 23 §§40 4.1525(a); 416.925(a); Sullivan v. Zebley, 493 U.S. 521, 525 (1990 ); Lester v. 24 Chater, 81 F.3d at 828. Accordingly, the criteria in the step three listings are -7- 1 “dem anding and stringent.” Falco v. Shalala, 27 F.3d 160 , 162 (5th Cir. 1994). They are 2 “purposefully set at a high level of severity because ‘the listings were designed to operate 3 as a presum ption of disability that m akes further inquiry unnecessary.’” Kennedy v. 4 Colvin, 738 F.3d at 1176 (quoting Sullivan v. Zebley, 493 U.S. at 532). The list of 5 autom atically disabling im pairm ents has been divided into 14 categories for adults, each 6 category encom passing one body system or one category of disorders. See 20 C.F.R. Pt. 7 40 4, Subpt. P, App. 1 (Part A). Within each of the 14 categories, the regulations specify 8 one or m ore im pairm ents, and the degree of each im pairm ent which is considered 9 severe enough to be disabling as a m atter of law. 10 To qualify for a disability under a listing, a claim ant carries the burden of 11 establishing that his condition meets or equals all specified m edical criteria. McCoy v. 12 Astrue, 648 F.3d 60 5, 612 (8th Cir. 20 11). An im pairm ent that m anifests only som e of a 13 listing’s criteria, no m atter how severely, does not qualify. Sullivan v. Zebley, 493 U.S. 14 at 530 . A claim ant m ust satisfy all the criteria in a listing in order to m eet that listing. 15 Id. Each listed im pairm ent has one or m ore com ponents, and for each com ponent, the 16 Social Security Adm inistration has prescribed a certain degree of intensity which the 17 agency considers sufficiently serious to disable a claim ant. See Kubitschek & Dubin, 18 supra, §3:20 . If a claim ant’s im pairm ent does not satisfy every com ponent, then the 19 im pairm ent does not m eet the listing. Sullivan v. Zebley, 493 U.S. at 531; Young v. 20 Sullivan, 911 F.2d 180 (9th Cir. 1990 ). 21 Despite this stringent burden upon a claim ant to establish disability at step three, 22 Plaintiff here fails to even m ake the argum ent that her im pairm ents m eet or equal a 23 listing. Rather, Plaintiff sim ply argues that the ALJ erred in failing to fully articulate 24 whether Plaintiff did or did not m eet every criteria of each listing articulated and that -8- 1 the ALJ relied upon the m edical consultant who did not specify the precise listing he 2 was referring to when he testified that Plaintiff’s im pairm ents did not m eet or equal a 3 listing. As noted above, the ALJ found that Plaintiff suffered from the following severe 4 5 im pairm ents: “grade one spondylolisthesis L4-5, status post lam inectom y in 8/ 20 14, 6 status post fusion in 8/ 20 15; status post bilateral arthroscopies in 20 13; and m orbid 7 obesity.” (AR 15). The ALJ ’s decision stated that Plaintiff’s im pairm ents do not m eet or 8 equal a listing as follows: After consideration of the evidence, detailed below, the undersigned concludes that the claim ant’s spinal condition and or her knee condition do not satisfy the criteria in section 1.0 4 (disorders of the spine), 1.0 2 (m ajor dysfunction of a joint due to any cause) or 1.0 3 (reconstructive surgery or surgical arthrodesis of a m ajor weightbearing joint). The m edical evidence shows an ability to am bulate effectively (Exhibits 6F, 15F, 16F). The im partial m edical expert opined that the claim ant’s physical im pairm ents do not m eet or m edically equal the requirem ents of any listing. 9 10 11 12 13 14 (AR 16). Plaintiff contends the ALJ set forth only two reasons as to why she did not find 15 16 that Plaintiff’s conditions satisfied a listing: (1) the m edical evidence shows an ability to 17 am bulate effectively and (2) the m edical expert’s testim ony that Plaintiff’s conditions 18 did not satisfy a listing.8 Plaintiff, however, fails to acknowledge that, after the above 19 8 20 21 22 23 24 The Court has reviewed and considered but finds no error in Plaintiff’s argum ent that her attorney was not perm itted to cross-exam ine Dr. Schm itter. As Defendant argues, the ALJ has discretion to control the scope and lim it cross-exam ination. See Solis v. Schweiker, 719 F.2d 30 1, 30 2 (9th Cir. 1983) (“A claim ant in a disability hearing is not entitled to unlim ited cross-exam ination, but rather ‘such cross-exam ination as m ay be required for a full and true disclosure of the facts. 5 U.S.C. § 556(d). The ALJ , therefore, has discretion to decide when cross-exam ination is warranted.”) While this Court m ay not have so restricted Dr. Schm itter’s cross-exam ination and likely would have allowed greater latitude in the scope of questioning, it cannot be found that the ALJ abused her discretion. It would be an abuse of discretion for the ALJ to have precluded all cross- -9- 1 language, the ALJ spends the following six single-spaced pages of her decision reviewing 2 the records of Plaintiff’s various doctors and sum m arizing Plaintiff’s and the m edical 3 consultant’s testim ony and takes all of this evidence into consideration in her decision. 4 Indeed, the ALJ specifically states that her finding at step three “is based upon the 5 testim ony of the im partial m edical expert and a review of the longitudinal record.” 6 (AR 16). 7 According to Plaintiff, listing 1.0 4 (disorders of the spine) only requires inability 8 to am bulate effectively in part 1.0 4(c), and not in the criteria for 1.0 4(a) or 1.0 4(b). 9 9 Plaintiff therefore contends that the ALJ needs to “explain why Plaintiff’s having 10 ‘inability to am bulate effectively’ m eans Plaintiff does not m eet or equal Listing 1.0 4 11 when two (2) of the three (3) subparts to said listing do not require such a showing.” 12 [Dkt. No. 17, J oint Stipulation, 17]. The ALJ , however, is not required to specify which 13 listings a claim ant fails to satisfy. “It is unnecessary to require the Secretary, as a m atter 14 of law, to state why a claim ant failed to satisfy every different section of the listing of 15 im pairm ents.” Gonzalez v. Sullivan, 914 F.2d 1197, 120 1 (9th Cir. 1990 ) (noting that 16 “[t]he Secretary’s four page ‘evaluation of the evidence’ is an adequate statem ent of the 17 18 19 20 21 22 23 24 exam ination of the testifying physician. See Carter v. Barnhart, 58 F. App’x. 30 4, 30 50 6 (9th Cir. 20 0 3) (“An ALJ abuses his discretion when he denies a claim ant’s request to cross-exam ine a m edical source where that source’s report is ‘crucial’ to the ALJ ’s decision.”). Here, however, there is no abuse as the ALJ did perm it cross-exam ination of Dr. Schm itter, but sim ply lim ited the scope of the exam ination. 9 The Court notes that all of the listings identified by the ALJ (AR 16) fall within the category, “1.0 0 Musculoskeletal System ”, which states: “Regardless of the cause(s) of a m usculoskeletal im pairm ent, functional loss for purposes of these listings is defined as the inability to am bulate effectively on a sustained basis for any reason, including pain associated with the underlying m usculoskeletal im pairm ent, or the inability to perform fine and gross m ovem ents effectively on a sustained basis for any reason, including pain associated with the underlying m usculoskeletal im pairm ent.” 20 C.F.R., Pt. 40 4, Subpt. P, App. 1 (1.0 0 (b)(2)(a)). -10 - 1 ‘foundations on which the ultim ate factual conclusions are based.’”) (citing Stephens v. 2 Heckler, 766 F.2d 284, 287 (7th Cir. 1985)); see also Abreu v. Astrue, 30 3 F. App’x. 556, 3 557 (9th Cir. 20 0 8) (unpub.) (noting that the ALJ is not required to perform a detailed 4 analysis for every possible listing and pointing out that the plaintiff had failed to present 5 evidence that he ever argued before the ALJ that he m et or equaled particular listings). 6 To the extent the record is “unclear” as Plaintiff contends, the Courts finds such 7 an am biguity to be harm less error. Plaintiff does not now argue that her m edical 8 conditions m eet or equal a listing. [Dkt. No. 17, J oint Stipulation, 18]. Thus, any 9 vagueness as to what specific listings the ALJ found Plaintiff did not m eet or equal, fails 10 to satisfy an error causing harm to the Plaintiff. See Molina v. Astrue, 674 F.3d 110 4, 11 1111 (9th Cir. 20 12) (noting that the Court “m ay not reverse an ALJ ’s decision on 12 account of an error that is harm less” and that “[t]he burden of showing that an error is 13 harm ful norm ally falls upon the party attacking the agency’s determ ination.”) (citing 14 Shinseki v. Sanders, 556 U.S. 396, 40 9 (20 0 9)). 15 2. The ALJ Properly Weighed The Medical Opinions 16 Plaintiff contends it was im proper for the ALJ to give greater weight to the 17 opinion of the testifying m edical doctor than to the opinion of one of her treating 18 physicians. 19 20 a. Standard for Weighing Medical Opinions The ALJ m ust consider all m edical opinion evidence. 20 C.F. R. § 40 4.1527(b). 21 “As a general rule, m ore weight should be given to the opinion of a treating source than 22 to the opinion of doctors who do not treat the claim ant.” Lester v. Chater, 81 F.3d at 23 830 (citing Winans v. Bowen, 853 F.2d 643, 647 (9th Cir. 1987)). Where the treating 24 doctor’s opinion is not contradicted by another doctor, it m ay only be rejected for “clear -11- 1 and convincing” reasons. Id. (citing Bayliss v. Barnhart, 427 F.3d 1211, 1216 (9th Cir. 2 20 0 5)). “If a treating or exam ining doctor’s opinion is contradicted by another doctor’s 3 opinion, an ALJ m ay only reject it by providing specific and legitimate reasons that are 4 supported by substantial evidence.” Trevizo v. Berryhill, 871 F.3d 664, 675 (9th Cir. 5 20 17) (quoting Bayliss, 427 F.3d at 1216). In Trevizo, the Ninth Circuit addressed the 6 factors to be considered in assessing a treating physician’s opinion. 7 8 9 10 11 12 13 14 The m edical opinion of a claim ant’s treating physician is given “controlling weight” so long as it “is well-supported by m edically acceptable clinical and laboratory diagnostic techniques and is not inconsistent with the other substantial evidence in [the claim ant’s] case record.” 20 C.F.R. § 40 4.1527(c)(2). When a treating physician’s opinion is not controlling, it is weighted according to factors such as the length of the treatm ent relationship and the frequency of exam ination, the nature and extent of the treatm ent relationship, supportability, consistency with the record, and specialization of the physician. Id. § 40 4.1527(c)(2)-(6).” 871 F.3d at 675. “Substantial evidence” m eans m ore than a m ere scintilla, but less than a 15 preponderance; it is such relevant evidence as a reasonable person m ight accept as 16 adequate to support a conclusion.” Lingenfelter v. Astrue, 50 4 F.3d 10 28, 10 35 (9th Cir. 17 20 0 7) (citing Robbins, 466 F.3d at 882). “The ALJ can m eet this burden by setting out a 18 detailed and thorough sum m ary of the facts and conflicting clinical evidence, stating his 19 interpretation thereof, and m aking findings.” Magallanes v. Bowen, 881 F.2d 747, 751 20 (9th Cir. 1989) (citation om itted); see also Tom m asetti v. Astrue, 533 F.3d 10 35, 10 41 21 (9th Cir. 20 0 8) (finding ALJ had properly disregarded a treating physician’s opinion by 22 setting forth specific and legitim ate reasons for rejecting the physician’s opinion that 23 were supported by the entire record). 24 -12- b. The ALJ Gave Specific and Legitim ate Reasons, Supported by Substantial Evidence, for Rejecting the Opinion of Dr. Deckey 1 2 3 The ALJ com plied with Magallanes and provided specific and legitim ate reasons 4 for rejecting the opinion of Plaintiff’s treating physician, J effrey Deckey, M.D., that are 5 supported by the entire record. The ALJ detailed the findings and opinions of Dr. 6 Deckey, and stated as follows: The undersigned gives little weight to Dr. Decker’s [sic] opinion because it is overly restrictive and not supported by his own clinical findings. Dr. Deckey only saw the claim ant two or three tim es, and his exam inations revealed little evidence to support lim itations in lifting and carrying. In fact, he noted the claim ant was not taking any pain m edications in J uly 20 15, she was doing quite well in October 20 15, and she was able to sit constantly after the surgery in 20 15 (Exhibits 10 F, 23F). 7 8 9 10 11 12 (AR 19). Rather, the ALJ determ ined to give great weight to the opinion of Eric Schm itter, 13 M.D., the m edical expert who testified at the hearing. The ALJ recognized that, 14 generally, the opinions of non-exam ining m edical sources are entitled to less weight 15 than the opinions of treating and exam ining sources. However, the ALJ stated: 16 17 18 19 20 In this case, Dr. Schm itter is an im partial m edical expert Board certified in orthopedic surgery (Exhibit 17F). His assessm ent is based on his review of the evidence of record through exhibit 25F. Dr. Schm itter cited specific evidence in the treatm ent records to support his opinions. He has an understanding of Social Security disability program s and requirem ents. Most im portantly, Dr. Schm itter’s statem ents are well reasoned and generally consistent with the record as a whole. For these reasons, the undersigned gives great weight to Dr. Schm itter’s m edical opinions. 21 22 (AR31). Therefore, the ALJ explained this decision by weighing the m edical opinions 23 against her review of all Plaintiff’s m edical records in evidence, including Plaintiff’s 24 treating physician’s own prior reports that she found to be contradictory to his asserted -13- 1 opinion. See 20 C.F.R. § 40 4.1527(c)(2)-(6); Batson v. Com m ’r of Social Security, 359 2 F.3d 1190 , 1195 (9th Cir. 20 0 4) (ALJ properly gave m inim al weight to treating physician 3 opinions that were based on the claim ant’s subjective com plaints, were unsupported by 4 the objective evidence, contradicted by other statem ents and assessm ents, and were in 5 the form of a checklist). 6 Plaintiff contends it was im proper for the ALJ to discount Dr. Deckey ‘s opinion 7 based on his only seeing Plaintiff two or three tim es, when Dr. Deckey is associated with 8 a m edical facility that has treated Plaintiff since 20 14. [Dkt. No. 17, J oint Stipulation, 9 8]. The ALJ , however, gave the specific and legitim ate reason that he found Dr. 10 Schm itter’s review of the entire of Plaintiff’s m edical records to be a m ore thorough 11 basis for assessing Plaintiff’s m edical condition than sim ply basing an opinion on two or 12 three m edical visits. Indeed, Dr. Deckey m akes no m ention in his October 10 , 20 16 13 report that he has based his opinion on, or even reviewed, any of Plaintiff’s m edical 14 records, other than his own, associated with his m edical facility. (AR 1127-1131). 15 Plaintiff further contends that the ALJ im properly “cherry picked” only portions 16 of Dr. Deckey’s opinion which she found problem atic and did not give weight to other 17 parts of the opinion.10 The ALJ , however, was not required to m ake detailed findings of 18 every single aspect of Dr. Deckey’s report. The ALJ sim ply weighed all of the evidence 19 and gave greater weight to Dr. Schm itter, while providing sufficient specific and 20 legitim ate reasons, as set forth above, in her decision for giving less weight to Dr. 21 Deckey. See Peterson v. Colvin, 668 F. App’x. 278, 279 (9th Cir. 20 16) (finding ALJ had 22 23 24 10 Plaintiff contends the ALJ provided a lim ited discussion of Dr. Deckey’s report, however, Plaintiff does not dispute the ALJ ’s specific finding that Dr. Deckey’s treatm ent notes lack any support for his carrying and lifting lim itations. -14- 1 im properly discounted opinion of treating physician where the ALJ “failed to specifically 2 identify any objective m edical evidence or activities that underm ine [the treating 3 physician’s] opinion”). 4 Plaintiff also argues it was error for the ALJ not to challenge Dr. Schm itter on 5 m any of his opinions that Plaintiff contends the ALJ sim ply accepted as fact. As an 6 exam ple, Plaintiff points to Dr. Schm itter’s testim ony that Plaintiff did not need a cane, 7 contending that “this was a direct contradiction to the evidence of record that showed 8 that Plaintiff needed ‘Standard Walker’ or ‘Crutches (AR 1184, 1186, 1188 an[sic]1198).” 9 [Dkt. No. 17, J oint Stipulation, 7 (em phasis added)]. Contrary to this assertion, 10 however, there is no evidence in the record that Plaintiff needed a walker or crutches. 11 As Defendant points out, the evidence cited to by Plaintiff is vague, at best. Plaintiff 12 relies on physical therapy notes in her argum ent, which each treatm ent note contains a 13 “Subjective” portion and has what appears to be a standard category to be com pleted of 14 “Durable Medical Equipm ent.” In response on each of Plaintiff’s treatm ent dates is 15 written “Standard Walker; (Crutches).” (e.g., AR 1159). Further responses in the 16 physical therapy notes, however, provide no indication of Plaintiff using a walker or 17 crutches. In fact, the notes indicate that “[Plaintiff] went hiking over the weekend and 18 only felt sore afterwards, no com plaints during the actual hike” and was “able to 19 negotiate 36 stairs using step-to pattern without pain” (AR 1159); “[Plaintiff] reports no 20 pain and felt good over the weekend” and was “able to negotiate 36 stairs using step-to 21 pattern without pain” (AR 1161); “Knee feels ok, but during a job interview on Monday 22 PM, [Plaintiff] had to negotiate 36 stairs in heels for a job interview” (AR 1165) 11; 23 24 11 Plaintiff claim s that Defendant cited to exhibits, including AR 1165, and that “a review of these cited exhibits states nothing about Plaintiff negotiated stairs in ‘heels.’” [Dkt. -15- 1 Plaintiff “walked about 4 hrs yesterday through the swapm eet” (AR 1175); and Plaintiff 2 “did report on Friday that she had to negotiate 20 stairs and had no pain.” (AR 1184). 3 There is also m uch discussion by Plaintiff as to Dr. Schm itter’s characterization of 4 an April 20 16 electrodiagnostic study. But, as with the issue of crutches, the m edical 5 evidence regarding this study is conflicting and the ALJ reviewed all m edical opinions 6 and records in m aking her determ ination. Even though the ALJ ’s opinion is well- 7 supported by the m edical records, Plaintiff would like for the conflicting m edical 8 opinions to be weighed in her favor. But, it is the ALJ who is the “final arbiter with 9 respect to resolving am biguities in the m edical evidence.” Tom m asetti, 533 F.3d at 10 10 41; see also Andrews v. Shalala, 53 F.3d 10 35, 10 39-40 (9thCir. 1995) (“The ALJ is 11 responsible for determ ining credibility, resolving conflicts in m edical testim ony, and for 12 resolving am biguities.”) The Court concludes that the ALJ provided “specific and 13 legitim ate” reasons based on substantial evidence for her giving little weight to 14 Plaintiff’s treating physician’s opinions. 15 D . W h e th e r th e ALJ Pro p e rly Evalu ate d Plain tiff’s Te s tim o n y 16 Plaintiff asserts that the ALJ im properly evaluated her credibility and subjective 17 com plaints. Defendant contends that the ALJ appropriately found Plaintiff’s testim ony 18 not fully supported by the record. 19 20 21 1. Legal Standard for Evaluating Claim ant’s Testim ony A claim ant carries the burden of producing objective m edical evidence of his or her im pairm ents and showing that the im pairm ents could reasonably be expected to 22 23 24 No. 17, J oint Stipulation, 19]. The Court has found that Plaintiff’s physical therapy notes of March 13, 20 13, specifically state that Plaintiff reported having to negotiate 36 stairs in heels for a job interview. (AR 1165). -16- 1 produce som e degree of the alleged sym ptom s. Benton ex rel. Benton v. Barnhart, 331 2 F.3d 10 30 , 10 40 (9th Cir. 20 0 3). Once the claim ant m eets that burden, m edical 3 findings are not required to support the alleged severity of pain. Bunnell v. Sullivan, 4 947 F.2d 341, 345 (9th Cir. 1991) (en banc); see also Light v. Soc. Sec. Adm in., 119 F.3d 5 789, 792 (9th Cir. 1997) (“claim ant need not present clinical or diagnostic evidence to 6 support the severity of his pain”) (citation omitted)). Defendant does not contest, and 7 thus appears to concede, that Plaintiff carried her burden of producing objective m edical 8 evidence of her im pairm ents and showing that the im pairm ents could reasonably be 9 expected to produce som e degree of the alleged sym ptom s. 10 Once a claim ant has m et the burden of producing objective m edical evidence, an 11 ALJ can reject the claim ant’s subjective complaint “only upon (1) finding evidence of 12 m alingering, or (2) expressing clear and convincing reasons for doing so.” Benton, 331 13 F.3d at 10 40 . To discredit a claim ant's sym ptom testim ony when the claim ant has 14 provided objective m edical evidence of the im pairm ents which m ight reasonably 15 produce the sym ptom s or pain alleged and there is no evidence of m alingering, the ALJ 16 “m ay reject the claim ant’s testim ony about the severity of those sym ptom s only by 17 providing specific, clear and convincing reasons for doing so.” Brown– Hunter v. 18 Colvin, 80 6 F.3d 487, 489 (9th Cir. 20 15) (“we require the ALJ to specify which 19 testim ony she finds not credible, and then provide clear and convincing reasons, 20 supported by evidence in the record, to support that credibility determ ination”); 21 Laborin v. Berryhill, 867 F.3d 1151, 1155 (9th Cir. 20 17). 22 The ALJ m ay consider at least the following factors when weighing the claim ant’s 23 credibility: (1) his or her reputation for truthfulness; (2) inconsistencies either in the 24 claim ant’s testim ony or between the claim ant’s testim ony and his or her conduct; (3) his -17- 1 or her daily activities; (4) his or her work record; and (5) testim ony from physicians and 2 third parties concerning the nature, severity, and effect of the sym ptom s of which she 3 com plains. Thom as v. Barnhart, 278 F.3d 15 947, 958-59 (9th Cir. 20 0 2) (citing Light, 4 119 F.3d at 792). “If the ALJ ’s credibility finding is supported by substantial evidence in 5 the record, [the court] m ay not engage in second-guessing.” Id. at 959 (citing Morgan v. 6 Apfel, 169 F.3d 595, 60 0 (9th Cir. 1999)). 7 2. The ALJ provided Clear and Convincing Reasons Supported by Substantial Evidence 8 9 Having carefully reviewed the record, the Court finds that the ALJ provided 10 specific clear and convincing reasons for discounting Plaintiff’s subjective com plaints. 12 11 The ALJ found that Plaintiff’s subjective com plaints were not consistent with her 12 treatm ent history or daily activities, that there is conflicting evidence in the record of 13 Plaintiff’s return to work in 20 14 and that she was not fully com pliant with her 14 prescribed treatm ents. (AR 21-22). 15 The ALJ perform ed a thorough review and analysis of Plaintiff’s entire m edical 16 record and found Plaintiff’s testim ony inconsistent with the m edical records. (AR 17- 17 21). The ALJ found that Plaintiff’s treatm ent history revealed that the treatm ents she 18 received have generally been successful in controlling her sym ptom s, such as the 19 im provem ent reported in her physician treatm ent and physical therapy notes. Indeed, 20 the ALJ cited to specific exhibits throughout the record evidencing Plaintiff’s 21 im provem ent with treatm ent. (AR 21-22). Plaintiff argues that the treatm ent history 22 23 24 12 The ALJ did not m ake a finding of m alingering in her opinion. (AR 10 -29). Thus, in discounting Plaintiff’s subjective com plaints, the ALJ was required to articulate specific, clear and convincing reasons. See Benton, 331 F.3d at 10 40 ; Brown-Hunter, 80 6 F.3d at 489. -18- 1 does not show success as she has undergone m ultiple surgeries and injections for her 2 condition. This, however, does not contradict the ALJ ’s pointing to specific evidence in 3 the record stating im provem ent in Plaintiff’s condition after undergoing the treatm ents. 4 See Warre v. Com m ’r of Soc. Sec. Adm in., 439 F.3d 10 0 1, 10 0 6 (9th Cir. 20 0 6) (noting 5 that im pairm ents that can be controlled effectively with m edication are not disabling for 6 the purpose of determining eligibility for SSI benefits). Thus, the ALJ provided specific, 7 clear and convincing reasons why Plaintiff’s treatm ent history, set forth in the m edical 8 records, does not support her subjective complaints. 9 In addition, the ALJ discounted Plaintiff’s subjective com plaints on the basis that 10 she was not fully com pliant with her prescribed m edications and treatm ent. (AR 22). 11 Plaintiff takes issue with this reason as she argues the ALJ ignored the fact that she did 12 undergo num erous m edical procedures, such as surgeries and steroid injections, for her 13 condition. Once again, however, the ALJ did cite to specific exam ples in the m edical 14 record of non-com pliance by Plaintiff. And while Plaintiff argues that the surgeries and 15 injections show she was com pliant, she does not dispute any of the specific instances of 16 non-com pliance highlighted by the ALJ in her decision. Thus, there was no error in the 17 ALJ providing non-com pliance as a reason for discounting Plaintiff’s subjective 18 com plaints. See 20 C.F.R. § 40 4.1530 (a), (b) (“If you do not follow the prescribed 19 treatm ent without a good reason, we will not find you disabled); Bunnell, 947 F.2d at 20 346 (failure to follow prescribed treatm ent is a relevant ground for finding a claim ant 21 not credible). 22 In discounting Plaintiff’s com plaints, the ALJ also relied upon the fact that after 23 Plaintiff claim ed to be disabled, she attem pted to return to full-tim e work for four 24 m onths in 20 14. The ALJ cited to Plaintiff’s testim ony at the hearing wherein she stated -19- 1 that she only stopped working because she underwent another surgery, but she would 2 have otherwise continued to work. (AR 22). The ALJ argued that Plaintiff’s stated 3 ability to work during the four-m onth period, indicates that her alleged sym ptom s were 4 greater than she generally reported. Plaintiff contends that because her em ploym ent in 5 20 14 was found to be an “unsuccessful work attem pt”, it is im proper for the ALJ to use 6 this work attem pt to discount her credibility. The ALJ sim ply stated, however, that the 7 Plaintiff’s ability to work full-tim e during this four-m onth period and only stopping due 8 to surgery, indicates that Plaintiff m ay have exaggerated her claim ed sym ptom s. See 9 Carter v. Astrue, 472 F. App’x. 550 , 552 (9th Cir. 20 12) (unpub.) (“the fact that 10 [claim ant] continued working past his alleged onset date form s a valid basis for 11 doubting his veracity”). 12 Finally, the ALJ also found that Plaintiff’s daily activities, particularly as reported 13 in her physical therapy notes such as “light house cleaning, cam ping, walking around at 14 a swap m eet for 4 hours, working full-tim e, and walking throughout the day to attend 15 m eetings and m eet with staff” underm ine her testim ony. (AR 22-23). Indeed, the ALJ 16 pointed out that, “[i]n March 20 13, the claim ant reported she had to negotiate 36 stairs 17 in heels going to a job interview (Exhibit 26/ F).” (AR 23). Although Plaintiff takes issue 18 with this, an ALJ is perm itted to consider daily living activities in her credibility 19 analysis. See 20 C.F.R. § 40 4.1529(c)(3) (daily activities are a relevant factor which will 20 be considered in evaluating sym ptom s); see also Burch, 40 0 F.3d at 681. In Burch, the 21 Ninth Circuit noted, “[a]s this Court previously has explained, if a claim ant engages in 22 num erous daily activities involving skills that could be transferred to the workplace, the 23 ALJ m ay discredit the claim ant’s allegations upon m aking specific findings relating to 24 those activities.” Id.; see also Bray v. Astrue, 554 F.3d 1219, 1227 (9th Cir. 20 0 9) (“In -20 - 1 reaching a credibility determ ination, an ALJ m ay weigh inconsistencies between the 2 claim ant’s testim ony and his or her conduct, daily activities, and work record, am ong 3 other factors”). Thus, the ALJ ’s including the consideration of Plaintiff’s daily activities 4 as reported in her m edical records, into her finding that Plaintiff was not disabled as 5 defined by the Social Security Act, was proper. See Thom as, 278 F.3d at 958 (citation 6 om itted) (ALJ m ay consider inconsistencies in claim ant’s testim ony when weighing the 7 claim ant’s credibility). 8 Based on the clear, convincing and specific reasons for partially rejecting 9 Plaintiff’s pain and lim itations testim ony and the substantial evidence to support her 10 determ ination, the Court concludes that the ALJ did not com m it error in discounting 11 Plaintiff’s testim ony. 12 V. 13 CON CLU SION For the reasons stated above, the decision of the Social Security Com m issioner is 14 AFFIRMED, and the action is DISMISSED with prejudice. J udgment shall be entered 15 accordingly. 16 17 DATE: J une 18, 20 19 18 19 / s/ Autum n D. Spaeth THE HONORABLE AUTUMN D. SPAETH United States Magistrate J udge 20 21 22 23 24 -21-
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